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AND OTHERS,

v.

THE QUEEN.

Argument of

W.S.O'BRIEN, E. P. C. s. 54.) If the court were now for the first time to interpret IN RRROR, the act, I am sure your lordships would give the same interpretation to it as has been from the earliest times, and hold that the thing charged here could not be effected without danger to the sovereign. High treason. In 3 Inst. 6, it is laid down to be an overt act of compassing the king's death, to imprison him, or take him into the party's power. Now these acts are not at all as strong as the words contained in the charge in this case: (3 Inst. 12; Lord Essex's case, 9 St. Tr. 491; Lord Cobham's case, 1 St. Tr. 220.) Lord Essex, though he had an affection for the sovereign (Hale's P. C. 110, 111, 119), yet, because he took possession of the person of the sovereign, was convicted and executed. From a war levied to dethrone Her Majesty, and to subvert the constitution, with great deference be it spoken, Her Majesty would be in much greater danger than from the shot fired by a half-maniac at Her Majesty as she was going along the streets of London. This indictment does not charge a levying war for a limited or partial purpose, but to destroy the constitution: (Hale, 197, 210, 211, s. 3; Rex v. Harding, 2 Vent. 316; Watson's case, 23 St. Tr. 1390; Hardy's case, 24 St. Tr. 202, 204.) Therefore, upon the doctrine contained in some of those cases, the charge of endeavouring to subvert the whole constitution must involve an offence against the person of the sovereign: (Horne Tooke's case, 20 St. Tr. 730.) The king is bound to support Whiteside, Q.C., his government. The 36 Geo. 3, c. 7, was not introduced for for the prisoners. the purpose of extending or altering the law, but for the purpose of making overt acts of compassing the king's death high treason: (Watson's case, 23 St. Tr. 579; Thistlewood's case, 33 St. Tr. 919, per Lord Tenterden.) Everything that was treason was an offence against the person by the statute of Edw. 3, is so by the statute of 36 Geo. 3, c. 7, (read sect. 5); it is both a declaratory and an enacting statute. The 5 Geo. 3, c. 21, gave persons accused a copy of the indictment five days before trial. The 36 Geo. 3, c. 7, gives the benefit of 7 Will. 3, c. 3, and 7 Anne, to all persons indicted for any treason made, or declared to be made, by this statute. The next act passed was 39 Geo. 3, c. 93, which provides that in all cases in which the overt act shall be the act of assassinating the king, &c., he shall not have the benefit of the statute of Will. 3; in every other case of compassing the death the benefit of the statute of Will. 3 is not taken away. Ireland is not excluded in terms from the 57 Geo. 3. Since the Union every act is just as binding in Ireland as if it was passed by the Irish Legislature; and so in a case where the question was, whether the 1 & 2 Geo. 4, applied to Ireland, because it was not excluded; and it was held to include Ireland: and as regards Scotland, it was so held by Lord Mansfield, in a case in Burrow. The statute 57 Geo. 3, in point of fact, is but declaratory of the law as it stood before, as to the value of the word "declare" in an act: (Reg. v. Millis, Jebb. & S. 352, per Perrin, J.) If he came to this country he would not be out of the protection of this statute; because

to

IN ERROR,

v.

THE QUEEN.

it does not exclude, it includes, Ireland, and gives parties indicted W.S.O'BRIEN, here the benefit of the 4th section. The 5 & 6 Vict. c. 51, does AND OTHERS, not specifically mention Ireland; but does not that act include Ireland, and, if so, why? Because it does not exclude it. The statute of 11 & 12 Vict. c. 12, is an act to assimilate the law; it describes High treason. a doubt, certainly, whether a particular part, namely, the 1st section of the previous statute, extends to Ireland; because, as to the applicability of the 2nd, 3rd, and 4th sections to Ireland, there could be no doubt: the language of the statute rather implies that the act did extend to Ireland. Cases have been cited to prove that acts to make perpetual former acts do not extend the former acts, but those cases, being decided before the Union, are no authority on the point. The statute of Vict. did not merely extend the crime to Ireland, but also the benefits of the previous statute. The doubt mentioned is a doubt which the Legislature manifestly thought was ill founded; the reason it omits mentioning the benefits of the previous statutes is, because there was no doubt about the provisions respecting them being in force. As to the validity of the plea-it is said, on the part of the crown, to be a mere subject of motion; but, if not by plea, the party has no mode of enforcing his statutable right. Frost's case (9 C. & P. 129), shows that if we had not pleaded before pleading to the indictment, we should have come too late (p. 141 of Gurney's Rep. of Frost's case); and as an indictment is an entire thing, if the prisoner could not be called on to plead to one count, he could not be called on to plead to the others: (Rex v. Collins, 5 C. & P. 305.) Even if, as is said by the counsel for the crown, the plea is only applicable to the 6th count, the act gives a right to a copy of the whole indictment; the Attorney-General might, if he had chosen, have entered a nolle prosequi on that count. As to the disallowance of the twenty-first peremptory challenge, the plaintiff in error ought not to have been deprived of his right to challenge thirty-five jurors, unless it has been clearly taken away; but it would appear from the language of the statute that the privilege was taken away only from the inferior kinds of treason.

In the two

the AttorneyGeneral in reply.

The Attorney-General (Monahan) in reply. I shall take up Argument of the questions in this case in the same order in which they have been argued on behalf of the plaintiffs in error. cases cited by Mr. Lynch (Fogarty v. The Queen, and Hayes and Rice v. The Queen, 2 Cox's Crim. Cas. 105); the captions were identical with the present, and in Gray's case (11 Cl. & Fin. 427), and in Shea and Dwyer v. The Queen (3 Cox's Crim. Cas. 141), the captions were in the same form. The fact of the commission under which the prisoners in the present instance were tried being a special commission makes no difference. There is, however, this distinction on the subject between England and Ireland. In Ireland there is no such thing as what are known as special commissions in England, where they are commissions to inquire into the particular cases, as in Thistlewood's case (33 St.

IN ERROR,

บ.

Argument of the Attorney General in reply.

W.S.O'BRIEN, Tr. 683), Watson's case (32 St. Tr. 1). This commission is in AND OTHERS, the form used in Ireland directing the commissioners to deliver the gaol generally. The caption states that the session of Oyer and THE QUEEN. Terminer was held before the Right Honourable Francis BlackHigh treason, burne, the Right Honourable John Doherty, and the Right Honourable Richard Moore, "justices and commissioners of our said lady the Queen of Oyer and Terminer within the said county of Tipperary, nominated and appointed to inquire into, hear, and determine all and all manner of treasons, &c., within the said county of Tipperary, as well against the peace, &c., and also nominated and appointed from time to time, as need should be, to deliver the gaols of our said lady the Queen, of the said county of Tipperary, &c." The allegation of the caption here is that these justices were nominated and appointed to do a certain act, and that would be untrue in fact, if they were nominated and appointed with others whose concurrence was necessary to enable them to do the act; the court, in such case, could not have been held. The case of Leicester v. Haydon (Plow. 334), was different. It appeared that the commission was one to try a person on an indictment described by it to have been found before fifteen, whereas the indictment was, in reality, only found before eight. It was not necessary that it should have stated here before whom the sessions were held: it would have been enough to have stated that they were held before commissioners appointed for the purpose; all that is required is that it should appear by fair intendment that the commissioners who constituted the court did, in fact, do what they had authority to do. It is impossible to contend that these three justices were authorized to hear and determine offences in the county of Tipperary, if they were only authorized with others. No precedents can be referred to in which it has been held necessary to introduce the quorum clause. The next objection urged upon this record is, that there is no such thing in Ireland as the treason of levying war against the Queen. What I submit is that the statute of 25 Edw. 3 is merely declaratory of what the common law was, and not a statute creating for the first time or declaring any new treason (2 Hale's P. C. 189); and indictments for the treasons contained in the statute of Edward concluding without the words contra formam statuti would be good. I admit that the word "realm" in the stat. of Edward did not mean Ireland, and that up to that time it was called "the land of Ireland," and that the designation of the sovereign was Lord of Ireland. The fair meaning of Poyning's Law is that those acts which have been passed in England for England are to have the same effect in Ireland as if they had been passed there for Ireland. In some of the cases concerning the Duke of Devonshire's fisheries, a passage in a statute mentioning all weirs from the Trent to the Medway was held to apply to Ireland. But there is, in the statute 10 Hen. 7, c. 13, a legislative declaration that levying war in Ireland is treason. Upon the fair construction of these statutes it is plain that levying

66

AND OTHERS,
IN ERROR,

v.

THE QUEEN.

General in reply.

war in Ireland is treason: (1 Hale's P. C. 147.) Levying horse- W.S.O'BRIEN, mail in Ireland was treason; but it was said that Poyning's Law having brought the statute 25 Edw. 3 into this country, that statute making the offence no longer treason, it was no treason in Ireland: (I Hale's P. C. 155.) In the former passage it may be High treason. said Hale was merely reporting the opinion of others, but in the latter he gives his own. We have, therefore, the opinion of that very eminent judge in favour of the construction of Poyning's Act for which I contend. It is alleged that there is an informality in the indictment because we allege a levying war in this realm," whereas the words of the statute are, "his realm;" but from the time of Hen. 8 downwards, the proper description of Ireland was the realm of Ireland, and in all the cases, down to Frost's case, there is no further description of the place given than "this realm;" but, at all events, in one of the counts the words "this realm" are omitted, and the offence is merely said in the indictment to have been in the county of Tipperary, which, of course, the court will take judicial cognizance of, to be in this realm of Ireland. As to the validity of the plea, it is contended, that if we went to trial on the 6th count alone the prisoner would have been entitled to the benefit of the provisions of the 36 Geo. 3, c. 7, giving the benefit of the statutes of Will. 3 and Anne; but it is not pretended that upon any one of the other counts he would have been entitled to Argument of those privileges; each and every of the overt acts would, if the the Attorneystatute of 36 Geo. 3, had never been passed, been overt acts of treason under the statute of Edward. It is not denied that this 6th count is exactly according to the precedents in Brandreth's case (32 St. Tr. 755), Frost's case (Gurney's Rep. 201), and Thistlewood's case (33 St. Tr. 681). Now, if it were so very clear that the offences in the other counts were treasons under the stat. of Edw. 3, what would have been the object of passing the stat. of 36 Geo. 3? It is perfectly plain, from the recital of that statute, and the mischief they wanted to guard against, that the Legislature was aware that it had previously provided for the compassing generally the death of the sovereign. true construction of the statute of 36 Geo. 3 is, that it applies only to actual violence, or compassing actual violence, to the sovereign; and I would ask if the indictment charged attempting the actual death of the Queen, or compassing actual injury to Her Majesty, would it be supported by the overt acts laid? Mr. Whiteside's argument has gone a little too far; he says that the overt acts here go the length of showing a compassing of actual personal violence to the sovereign under the 36 Geo. 3; but if it does, then it places him in this dilemma, that it brings the case within the provisions of the 39 & 40 Geo. 3, c. 93, s. 4, which deprive the party in such cases of the benefit of the statutes of Will. 3 and Anne. Those portions of the 57 Geo. 3, regulating the mode of trial in England, are not the law of Ireland. Trials for treason in Ireland are regulated by the statutes 1 & 2

The

v.

W.S.O'BRIEN, Geo. 4, c. 24 and 5 Geo. 3, c. 21. The Legislature, after passing AND OTHERS, acts in England, conferring certain privileges, thought fit not to IN ERROR, extend the whole of those English provisions, but extended a part THE QUEEN. only to Ireland. If the 57 Geo. 3 ever extended to Ireland, it is High treason. only since the passing of the 11 & 12 Vict. c. 12. The very fact of a similar act not having been passed for Ireland, is, in my mind, a strong argument to show that the 36 Geo. 3 was meant to apply to cases of personal violence to the sovereign in the country where he was. The 57 Geo. 3 makes perpetual, but does not in terms extend, the 1st sect. of the 36 Geo. 3 to Ireland. Can it, then, be argued, that where an act makes a limited act perpetual, it makes it apply to places for which it was not originally made? There is a legislative declaration that the statutes of William and Anne do not apply to Ireland in the 5th sect. of the 57 Geo. 3, enacting that nothing in the act shall be construed to extend to prevent any prosecution to which the party would have been liable if the act had not been enacted. The 1 & 2 Geo. 4 recites the statutes of William and Anne, giving parties a copy of the indictment and jury panel; and yet, though the Legislature had those provisions before them, the statute of Geo. 4 does not confer the privileges. I use the latter statute to show that, at the passing of that act (1 & 2 Geo. 4), the 57 Geo. 3, c. 6, was not the law of Ireland, and that it is a legisArgument of the Attorney- lative declaration that the statutes of William and Anne did not General in reply. extend to Ireland. Now, upon the recent act of 11 & 12 Vict. c. 12, it is conceded that the only portion of the 36 Geo. 3 made perpetual by the 57 Geo. 3, c. 6, is a portion of the 1st section, and that those parts regarding the mode of proceeding to trial are not made perpetual, but that the provisions in that respect are extended by direct enactment; but, if not by that act, when were they so extended? If a change had taken place in the circumstances of this country since the passing of the 1 & 2 Geo. 4, c. 24, by which act the provisions of the former statutes were not extended, can it be supposed that the Legislature would not, when it had the act 11 & 12 Vict. before it, if it had seen fit, have extended to this country those provisions which were not extended to Ireland by the statute of Geo. 4? The 11 & 12 Vict. has enacted that, from a certain day, a certain provision of the former statute shall be extended to Ireland; and does not that leave the necessary inference that the other provisions were not before extended to Ireland? The objection raised by the plea here is not properly the subject of a plea, but of an application to the court. On such a plea no judgment known to the law could be given. It is not stated in Frost's case that he should have raised the objection by plea, but that he should, when called on to plead to the indictment, have applied to the court. There are several cases in which things are a good subject-matter of defence though not of a plea. The prisoner should have pleaded to the five first counts. I do not say that I could have gone to trial on those five counts and leave

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