IN ERROR, v. the 6th count undisposed of. I could, in that case, have entered a W. S.O'BRIEN, nolle prosequi on that count. If the objection only applies to the AND OTHERS, 6th count, I deny that the plaintiff in error can bring a writ of error to reverse a judgment of acquittal in his own favour on that THE QUEEN. count. Some cases have been referred to in support of this plea High treason. which have, in my judgment, no application-the instance which has been cited, that the parol shall demur if an infant prays his aid, only amounts to this, that the proceedings shall be delayed. It would only amount, in the present case, to this, that we could not go to trial leaving the 6th count undisposed of, because it would work a discontinuance. In criminal cases a man may plead different pleas to different parts of the indictment. I admit, that if to one count a man plead in abatement, and it is ruled against him, and judgment of respondeat ouster awarded, we could not, until that judgment, go to trial on the other counts, but that is because there could not be two trials on one indictment. As to the disallowance of the twenty-first peremptory challenge, the law in Ireland on the subject was governed by the 10 & 11 Car. 1, which limited the challenges in high and petit treason to twenty instead of thirty-five. The word "treason," in the statute of 9 Geo. 4 clearly extends to both descriptions of treason. As to the allocutus, it is sufficient; the prisoner was asked why judgment should not be pronounced against him, and there was only one judgment which could be pronounced against him according to law. Upon the whole I trust, therefore, that the court will be of opinion that the judgment in this case ought to be affirmed. An application having been made on behalf of the other plaintiffs in error, who had each sued out separate writs of error, that the arguments on their behalf should be heard before the court pronounced its decision in the case of O'Brien v. The Queen, it was arranged on both sides, in order that the arguments might be heard during the present term, that one counsel should be heard on behalf of each of the plaintiffs, T. F. Meagher, T. B. M'Manus, and P. O'Donohue, and that then the Attorney-General should reply on behalf of the crown; and, accordingly, on the 23rd and 24th of November, Butt, Q. C., Napier, Q. C., and Sir Colman O'Loghlen were respectively heard for P. O'Donohue, T. B. McManus, and T. F. Meagher, and cited the following cases and authorities in support of their arguments, which, together with the errors assigned, were for the most part similar to those adduced in support of the errors assigned by the plaintiff in the first case: (a) Upon the form of the caption:-Reg. v. O'Connell, per Crampton, J., Armst. & Trev. Rep. 59; 2 Hawk. P. C. 18; Falkner's case, 1 Saunders, 248, note a.; IT. R. 320; 2 Gabbett's Cr. L. 139, 339; stat. 7 Edw. 3, (a) Regard to our limited space compels us to omit the arguments, having given those of the counsel on each side in the preceding case, and the judgment repeating them.-ED. VOL. III. 2 F IN ERROR, v. W.S.O'BRIEN, 8 Geo. 1, c. 6; 2 Hale P. C. 167; R. v. Fearnley, 1 T. R. 316; Plowd. AND OTHERS, 485; Brooke's Ab. tit. Return Plac. 66; 1 Bulstrode, 105; Fost. Cr. L. 4; Hardy's case, 24 St. Tr.; O'Coigley's case, 26 St. Tr. 1204; Thistlewood's THE QUEEN. Case, 33 St. Tr.; Frost's case, Gurney's Rep. Trials per Pais, 201; 3 Edw. 2, c. 5; 13 Edw. 1, c. 30; R. v. Hinchey, Batty, 509; Conway v. The Queen, 1 Cox's Crim. Cas. 210; 7 Ir. Law Rep. 149, (1844); Meehan's case, (unreported); R. v. Atkinson, 4 East. High treason. In support of the argument that there was no such treason as levying war against the Queen in Ireland:-Poyning's Act, 10 Hen. 7; 25 Edw. 3; 18 Hen. 6, c. 17; 1 Salk. 324; 1 Saunders, 121, a.; E. P. C. 76, 77, 85; White v. Rose, 2 Gale & Davison; Batersby v. Scott, 3 Scott, 11; Sir John Davies' Account of Ireland; Gabbett v. Clancey (per Sir Michael O'Loghlen, M. R.; Hales P. C. 155; 1 M. & W. 7; R. v. Spaight, 3 Taunt. As to non-delivery of the lists:- Thistlewood's case, 33 St. Tr. 383, 918; 1 Hale P. C. 108, 130, 266, 322; 7 Co. Rep. 10 (b); Storey's case, 3 Dyer, 298; 6th Rep. of Crim. Law Commissioners; Coke Litt. 141 (b); Wright v. Murphy, Jebb. & B. 53; Russell v. Ledson, 14 M. & W. 588; Edwards v. Bishop of Exeter, 7 Scott, 652; 11 & 12 Vict. c. 12; 57 Geo. 3, c. 6; 36 Geo. 3, c. 7; Twyn's case, 6 St. Tr. 553; 5 & 6 Will. 4, (Apportionment Act); 6 & 7 Vict. c. 26; 8 & 9 Vict. c. 85; Dingley v. Moore, Croke El. 750; Bacon's Ab., Statute I., 322; 6 Geo. 4, c. 50, s. 21. As to form of plea:-Conway and Lynch v. The Queen, per Perrin, J.; 1 Cox's Crim. Cas. 210; 7 Ir. Law Rep. 149, S. C.; Hume's Com. on the Law, 247-8; Alison's Criminal Law of Scotland, 322; Lilly's Prac. Reg. tit. Oyer of Deed; Longueville v. Inhabitants of Thistleworth, 2 Ray. 969; 6 Mod. 27; 3 James 1; Anonymous, 3 Salk. 119; Lane v. Glenny, 7 Ad. & El. 83; 1 Chitty on Pl. 372; 1 Saunders, 9, note (b); Hawk. P. C. lib. 2, c. 32; Hays's Cr. L., tit. Trial; Godson v. Good, 6 Taunt. 587; R. v. Shakespeare, 10 E. note in p. 85; R. v. Wesley, 10 E. 83; Le Bret v. Papillon, 4 E. 502; Reg. v. Mitchell, 3 Cox's Crim. Cas. 93, Q. B.; 3 Thomas's Coke Litt. 390, 400. On the challenge:-Stat. 10 & 11 Car. 1; 9 Geo. 4. As to the allocutus:-R. v. Garside, 4 Nev. & M. 33; Comyn Dig. Indictment, N.; Anon. 3 Mod. 265; 4 Geo. 4; R. v. Walcot, Salk.; Coke's Entries, 361; 1 Trem. P. C. 280, 311; 1 Lilly's Entries, 241; Cr. Circ. Com. 29; 4 Bl. C. App. 3; 4 Chitty Cr. L. 391; 2 Hale, 55; Perrot's case, 1 St. Tr. 1326; Frost's case, Gurney's Rep. 3 Mod. 117, 170; The Duchess of Kingston, 20 St. Tr. 625; The Duke of Norfolk's case, 1 St. Tr. 451; Blunt's case, ib. 1443. The Attorney-General replied, citing in addition to the authorities he had referred to in the previous case of O'Brien v. The Queen, upon the question of the caption, Viner's Ab. tit. Error, 554; ib. Letter H. 9; 2 Hawk. P. C. 235; The Queen v. King, 7 Mod. 151. Upon the error assigned upon the overruling the plea:-6 Geo. 1, c. 51; Dwarris on Stat. 503-4 (referred to by opposite side). Cur, adv. vult. JUDGMENT.-January 16, 1849. IN ERROR, v. THE QUEEN. High treason. Judgment of Blackburne, CJ. BLACKBURNE, C. J.-In these several cases writs of error have been brought W. S.O'BRIEN, to reverse the judgments and convictions for high treason pronounced at a AND OTHERS, special sessions under a commission of oyer and terminer and gaol delivery for the county of Tipperary. The errors assigned, and which have been argued, are the same in all, and I shall consider them in the order in which they have been argued at the bar. The first is to the caption of the indictment, that it does not show with sufficient certainty that the commissioners of oyer and terminer and gaol delivery before whom the convictions were had, had authority to hold the special sessions. The caption states that at a special sessions of oyer and terminer and gaol delivery before the two Chief Justices and Mr. Justice Moore, nominated and appointed to hear and determine, and from time to time, as need should be, to deliver the gaols by virtue of a commission under the great seal of Ireland, directed to them and others, it was found and presented. It is contended that this represents the commission as conferring a joint authority on the three judges named, and others. If this were so, the objection would be well founded; but I think this is not the import of the caption. It contains two averments, each independent of and distinct from the other; one, that the three judges were nominated and appointed to hear and determine; the other, that the commission whereby they were so appointed was directed to them and to others. Each of these refers to a different matter: one, the direction and address to all the commissioners; the other, to the operative part of the instrument: so distinct are these from each other, that the address contains not the least intimation of the contents of the patent, or of the authority it confers. Both of these being matter of record cannot be averred against, and must be taken to be true; nor is there any reason why they should not be both in fact true. A commission may be directed to many, and authorize them to fulfil its duties severally as well as jointly. The arguments for the plaintiffs in error assume that, because the commission was directed to others besides the three who acted, the statement that those three were nominated and appointed is necessarily falsified. But there is no contradiction between them; and it would be against all right and reason that one should be used to disprove the other, both standing on the same authority, and being therefore entitled to the same credit. Nor are the consequences of the assumption we are required to make to be lightly regarded; they are no less than the inculpation of the officer in making a false entry, and of the judges in the illegal usurpation and exercise of the authority of this commission. There is no authority to warrant such an assumption; and it appears to conflict with the rule of law in favour of judicial and official acts, omnia presumpta rite et solemniter acta-a rule which might very reasonably be applied in the present case if it were necessary (which it is not) to maintain the proceedings of the high court, which is contended to have inquired and decided without jurisdiction. English precedents have been referred to to show that the caption in the present case deviates from them in form. Now, we must remember, that the caption is the minute or record of the clerk of the crown of the proceedings in court, and of the commission which is delivered to him by the particular judges, to whom it is issued by the crown to be executed, and is then read by him in open court. As the contents of such commissions may vary in a vast variety of particulars, so must the form of the captions. The precedents of commissions in England show that they differ from the forms of commissions in Ireland. We have judicial knowledge that the commissions for the circuits here are joint and several, and may be executed by one, two, or more judges. I have had a search made for the forms of commissions in the Hanaper Office, and except in commissions for counties of cities and towns, in which, as in general in English commissions, there is a quorum clause, all commissions of oyer and terminer and gaol delivery, whether general or special, are joint and several, and authorize their execution by one, two, or more of the judges named in them. I have also had a search made for the captions of indictments in this court returned on writs of error and certiorari; and although in a great many cases the ground of objection that is assigned to the present case does not exist, yet there are sixteen precedents in the form of that before us in the certiorari returns, and within a very short time exactly similar captions W.S.O'BRIEN, of indictments are returned on writs of error, and in none of those was the matAND OTHERS, ter of this objection ever alleged to be error. It is, therefore, very obvious from IN ERROR, v. THE QUEEN. High treason. Judgment of 66 the precedents of commissions in use in Ireland, that a commission in the ordinary form would be truly described and recorded, if it were stated to be a commission directed to three and others, whereby three were nominated and appointed to execute it. It is not improbable that the present form was adopted to suit that of the commission; and for these reasons I think these captions are not erroneous. As I am the legal depositary of this commission, I think it is not impossible that if I were silent as to its contents, it might be erroneously supposed that this caption is upheld by reasoning and arguments which the production of the commission would refute. I think it right to say, that any one, two, or more of the judges are expressly authorized to execute it; and there is no foundation, in fact, for the objection, that the court below had not jurisdiction. The second objection is, that it is not, and never was, high treason to levy war against the sovereign of these realms in Ireland. As I entirely dissent from the position and grounds on which that is rested, and think it is important, and mean to state my reasons for doing so, I shall not dwell on the answers suggested by the numerous precedents of indictments in Ireland on which convictions have been had, and which contain counts for levying war; nor shall I do more than express my concurrence in the position that this was treason at the common law, of which the 25 Edw. 3 was only declaratory. I come, therefore, at once to consider the proposition, whether the 25 Edw. 3 became the law of Ireland by the act of 10 Hen. 7, c. 10, called Poyning's Act. That that act made the 25 Edw. 3, the law of Ireland, with respect to the treason of compassing the death of the sovereign, is admitted; but it is at the same time denied that the offence of levying war, also declared to be treason by the same act, became treason in Ireland, because, as is said, we must read Poyning's Act as if it contained the words his realm," and used them in the same sense as that in which they were used in the statute of Edward—that is, Blackburne, CJ. as meaning England, then the only realm of the king. If we yield to this argument, Poyning's Act must be understood and read to enact that it shall be treason to levy war against the king in his realm—that is, in England-which would be utterly nugatory and absurd. What could be the use or meaning of enacting, by an Irish statute, that that was, or should be, treason in England, which was and had been always so by the common law, or, at all events, from the reign of Edw. III.? The Irish Parliament had no right to declare what was, or to enact what should be, law in England. But if we must read Poyning's Act as if it used the very words "his realm," and if they cannot, without leading to the most absurd consequences, be understood to mean England, I can see no reason why they should not be held to mean Ireland as the king's realm or territory, over which he exercised sovereign authority by any style or title, and for which it was in the power of the Irish Parliament to legislate. That this is the effect of Poyning's Act is established by the authority referred to in the course of the argument by my Brother Perrin, Coke Littleton, 141, B. That states that Poyning's Act enacted, that all the statutes made in the realm of England before that time should be in force and put in use in this realm of Ireland. And to the same effect is the passage in i Hale, 147, which refers to the statute of 25 Ed. 3, as one of the affirmative acts which were introduced into Ireland, and made it treason to levy war therein. That this is the true meaning and effect of the statute will be so obvious as to preclude all doubt on simply referring to its language. After reciting that "there are divers good and profitable statutes made in the realm of England, whereby the said realm is ordered and brought to great prosperity, and by all likelihood so will this land if the said statutes were used and executed in the same," it is enacted, “that ail statutes of late made within the said realm, concerning and belonging to the public weal, shall, from henceforth, be deemed good and effectual in the law; and over that, be accepted, used and executed in this land of Ireland in all points and at all times, according to the tenor and effect of the same, and over that by authority aforesaid, that they, and every of them be authorized, proved, and confirmed in this land." The mere perusal of this language makes it im possible to doubt that it was intended that the same offence which would be treason in England should be treason if committed in Ireland. But if any doubt still remained on the subiect. it would be removed by 5 Geo. 3, IN ERROR, v. High treason. c. 21, the Irish statute, which enacts, that any person indicted in Ireland under W. S.O'BRIEN, 25 Edw. 3, shall have a copy of the indictment and counsel assigned to defend AND OTHERS, him. This recognizes and acts on the liability of a party to be indicted in Ireland for any of the offences which, committed here, are declared to be treason by THE QUEEN. that act, and of course includes the levying of war against the Queen. For these reasons I think that the second cause of error is utterly insupportable. The next cause of error is, the disallowance of the pleas. These indictments contain six counts, the first five are for levying war against the Queen, and the sixth is for compassing the death of Her Majesty. This sixth count states various overt acts, all of levying war or conspiring to levy war; and the two first overt acts are concluded with averments, that the purpose was to bring or put our lady the Queen to death. The plea of William Smith O'Brien to this count alleges, that the prisoner should not be compelled now to answer the indictment, because he says he is thereby indicted, amongst other offences, for compassing, imagining, and intending to put our lady the Queen to death; and that by the statutable enactments in that case made and provided, and now in force in this realm, any person indicted for compassing death or destruction to our lady the Queen is entitled to have delivered to him, ten days before his trial, in the presence of two or more credible witnesses, a copy of the indictment, and at the same time a list of the witnesses to be produced on the trial, mentioning their names, professions, and places of abode. It then avers, that the indictment was found on the 21st of September, on which day a copy of it was delivered to him in open court; but that no list of witnesses was then or at any time delivered to him, and that ten days had not elapsed since the indictment was so delivered. It concludes with a verification, and prays judgment that he may not now be compelled to answer the indictment. In the case of Meagher v. The Queen, the plea is the same, with the addition of an allegation, that he ought to have been, and was not, given a copy of the panel of the jurors who were to try him. The pleas in the other two cases aver, that by an act of Parliament of Great Britain Judgment of in the 7th year of Queen Anne, it was enacted, that where any one should be Blackburne, CJ. indicted for high treason, a list of the witnesses and a copy of the jury panel should be delivered to him, and a copy of the indictment, ten days before trial; and it avers, that no list of the witnesses was furnished to them. The commencement and conclusion of all the pleas are the same. The AttorneyGeneral demurred to all, and the demurrers were allowed. On the form of these pleas there has been a great deal of controversy and argument. Amongst other objections, the crown has strongly insisted, that the matter of them was ground of motion, not of plea. If we should decide that the pleas on that ground only, or on any matter of form, are invalid, the judges who presided below, and who refused the application by motion to postpone the trials, would undoubtedly adopt a course by which the consequences of their mistake would be obviated. So that I feel myself bound to consider what are the real merits of the case made by the pleas; that is, were the prisoners entitled to be served with copies of the indictments, and lists of the witnesses and panel, ten days before they were called upon to plead; or as two of the pleas put it, to the benefits given to persons charged with treason by the English act of 7 Anne, c. 7? The counsel for the plaintiffs in error contend, they are so entitled by the 4th section of the act of 57 Geo. 3, c. 6. This act of the imperial Legislature, they argue, is unrepealed and in force in Ireland. On the part of the crown it is insisted, that this section of that act did not, and does not extend to Ireland. The counsel for the plaintiffs in error, in the second place, contend, that even though this section of the act of 57 Geo. 3 did not originally extend to Ireland, yet that by the act of 11 Vict. c. 12, it has now become the law of Ireland. This is controverted by the counsel for the crown, who also insist that, were the effect of the 11 Vict. such as it is contended to be, the present indictments are not so framed as that the plaintiffs in error can take any benefit from it. These are the three distinct propositions which I now proceed to consider. In considering these important questions, it is necessary to refer to the state of the law both in England and in Ireland, when these different statutes were passed. The act of 25 Edw. 3, amongst other things, declared it to be treason to compass the death of the sovereign. The actual death of the sovereign, in the literal sense of the word is, and was always held to be, what the statute meant; but in admi |