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General in

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 EKROR,

" extend the whole of those English provinces, but extended a part THE QUEEN. only to Ireland. If the 57 Geo. 3 ever extended to Ireland, it is

only since the passing of the 11 & 12 Vict. c. 12. The very fact High treuson.

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it, then, be argued that where an act makes a limited act perpetual, it makes it apply to places for which it was not originally made?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 Argument of

57 Geo. 8, c. 6, was not the law of Ireland, and that it is a legis

57 co the Attorney

lative declaration that the statutes of William and Anne did not 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. 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 circum-
stances 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 ex-
tended, 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 ex-
tended 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 neces-
sary 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 indict-
ment, 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

AND OTHERS,

IN ERROR,

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 ANT having brought the statute 25 Edw. 3 into this country, that sta- o. tute making the offence no longer treason, it was no treason in THE QUEEN. Ireland : (1 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 36th 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 Attorney

General in statute of 36 Geo. 3 had never been passed, been overt acts of

reply. 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), Frosť'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. The 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 any actual injury to Her Majesty, would it be supported by the overt acts laid ? Mr. Whiteside's argument had 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

prov i party ni Anne trial in

the rego

IN ERROR,

V.

General in

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

" extend the whole of those English provinces, but extended a part THE QUEEN. only to Ireland. If the 57 Geo. 3 ever extended to Ireland, it is

only since the passing of the 11 & 12 Vict. c. 12. The very fact High trenson.

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 Argument of 57 Go

57 Geo. 8, c. 6, was not the law of Ireland, and that it is a legisthe Attorney

lative declaration that the statutes of William and Anne did not 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. 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 Frosts 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

aid, onde cited, "oy judgme been recital in his can bapplies to

viso to trial amount, in that the

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,

. IN ERROR, 6th count, I deny that the plaintiff in error can bring a writ of "N 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, unti! 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 OLoghlen were respectively heard for P. O'Donohue, T. B. M Manus, 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. O. 18; Falkner's case, 1 Saunders, 248, note a.; 1 T. R. 320; 2 Gabbett's Cr. L. 139, 339; stat. 7 Edw. 3,

(a) Regard to our limited space compels us to onit the arguments, having given those of the counsel on each side in the preceding case, and the judgment repeating them.--Ep. VOL. JII.

2 F

THE QUEEN

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; IN ERROR, Hardy's case, 24 St. Tr.; O'Coigley's case, 26 St. Tr. 1204 ; Thistlewood's

y case, 33 St. T. R.; 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 High treason. v. The Queen, i Cox's Crim. Cas. 210; 7 Ir. Law Rep. 149, (1844);

Meehan's case, (unreported); R. v. Atkinson, 4 East.

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 (6); Storey's case, 3 Dyer, 298; 6th Rep. of Crim. Law Commissioners ; Coke Litt. 141 (6); 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 Orim. 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 (6); 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 Ohitty 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. rult.

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