1805. The KING [ 589 ] could not take cognizance of a libel published in Middlesex out of their jurisdiction. There are three classes of objec tions to the jurisdiction of the court; 1st, To the subjectmatter of the suit, as in the case of land holden in ancient demesne. 2d, Where the subject-matter arises out of the ordinary jurisdiction of the court; as in case of charters creating exclusive local jurisdictions with a ne intromitant clause. These two classes are out of the question. The 3d class goes to the person of the defendant; the usual instance of which is in the case of officers of the superior courts who are privileged to be sued in their own courts. The defendant by his plea sets up a new claim of personal privilege, as a resident subject at the time of the offence committed of that part of the U. K. called Ireland, which he alleges to have been an independent kingdom before the union, and governed still by its own peculiar laws, and having its own distinct and independent courts of justice, competent to the trial of all offences committed by its inhabitants; but whatever may have been the case before the union (though there would have been no difficulty in deciding that question) at least since the union every subject of Ireland is not merely a subject of the king, but of the crown of this realm (4). This, therefore, is the case of a subject sending a libel from one part of the realm to be published in another part: and and at this day at least there is no difference between the present case and that of a subject sending a libel from one county in England to be published in another. As if an inhabitant of Bristol, which has an exclusive jurisdiction, were to send a libel into Middlesex, and publish it there, it could not be doubted but that he would be triable in Middlesex, and could not plead a similar plea to the jurisdiction. The plea amounts in effect to no more than an alibi; the defendant says that he cannot be guilty of publishing the libel in Middlesex, because he was at that time in Ireland: but that cannot make a difference; for in misdemeanor where all are principals, the rule applies qui facit per alium [590] facit per se (b); besides, if that were a good defence, it would avail him under the general issue, and the plea would be (a) Lord Hale says, That Ireland, the isles of Man, Jersey, &c. though not within the realm of England, are parcel of the dominions of the Crown of England. Hale's P. C. 255, b. 317. (b) Vide Rex. . Tutchin, 5 St. Tr. 538, and Rex. v. Middleton, Bull. N. P. 6, causing a thing to be printed in London, is a publication there. bad bad on that account, as amounting only to the general issue; but the defendant need not have been at the time of the offence committed in the county where the trial is afterwards had. As in the case of conspiracy, in Rer v. Bowes and Others (a), where the acts of some of the conspirators were in Middlesex, the trial was had there, though the acts of others of the conspirators indicted at the same time were wholly confined to other counties. So in Rex v. Brisac and Scott (b), which was an information for a conspiracy between the captain and purser of a man of war, for planning and fabricating false vouchers of payments on account, in order to cheat the crown; they were indicted in Middlesex, where such false vouchers were delivered for payment by innocent holders, which were, therefore, considered as the defendants' own acts, although the only acts proved to have been done by themselves personally in pursuance of the conspiracy, were either on the high seas, or at Lerwick, in the isle of Shetland. Of the like nature was the case of one Munton, who was a government storekeeper in Antigua, and while resident there, transmitted false vouchers to his agent in London, which were by such agent delivered at the Custom-house in London; for which Munton was indicted and convicted at the sittings after Michaelmas term 1793. Upon the same principle, where one employs an idiot or lunatic, who are themselves unconscious instruments of the crime to murder another, -the procurer, though absent at the time of the act done, is a principal (c). He concluded with referring to what had been said by Mr. Baron M'Leland in the Court of Exchequer in Ireland (a) upon the return to the writ of habeas corpus sued out there by the defendant upon his arrest for this offence. "It has been urged by the prisoner's counsel, that the prisoner cannot be tried in England on the indictment, and should, therefore, be now discharged, inasmuch, say they, as he is not amenable to the laws of England for an act done there by his influence (a) In 1787, cited fa Rex v. Brisac and Scott, 4 East, 171. (b) Ib. 164. (c) 1 Hale's P. C. 431. (d) This was on the 7th of Feb. 1805; and is to be found in a publication, entitled "A Report of Proceedings in the Court of Enxchequer in Ireland in the Case of the Hon. Mr. Justice Johnson, by Mr. Emerson, Dublin, 1805." 1805. The KING JOHNSON. [ 591 ] VOL. VI H h and 1805. The KING JOHNSON. and procurement while he resided in Ireland. This posi he do Richardson, contra. The principle applicable to persons natives of the same country, and living under the same jurisdiction and laws, does not apply to the natives of different countries amenable to different jurisdictions and laws. To 592] enable any court to take cognizance of an offence, the act must not only be done locally within the jurisdiction, but the actor must be bound by the law which constitutes the of fence. The defendant then being a native Irishman, and living at the time of the publication in question in Ireland, which has distinct laws of its own, was not bound by the law of England, though both countries owe allegiance to the same king. First, taking the case upon the general ground, as if England and Ireland had been wholly foreign to each other. The laws of a separate state are only bind ing upon the proper subjects of that state; and though s foreigner residing in England owe a temporary allegiance to the king during his residence, that is founded on an implied contract whereby he submits himself to the laws of the state, in return for the protection afforded him by the same laws. The civil law which binds the subject of each particular state, is distinguished from natural law, which binds all mankind. Justinian's Inst. lib. 1, tit. 2, s. 1 (a); and the maxim Nemo potest exuere patriam, applies only to the proper state of which a man is born a subject, and to (a) Vide Puffend. L. of N. and N. b. 2, c. 3, §. 23. which he owes a natural allegiance; but local allegiance is due from a stranger only while he resides in a foreign state, and ceases as soon as he withdraws (a).. 1 Blac. Com. e. 10. In Calvin's case (b) the rule is given protectio trabit subjectionem, et subjectio protectionem. Therefore, even the presence of a stranger in a country, if not under the express or implied protection of its laws, will not subject him to their constraint; as in Perkin Warbeck's case (d), who being an alien born, and invading the kingdom with an army to claim the crown, under pretence of being a son of Edward the Fourth; and being taken prisoner, was deemed not punishable by the common law. In Moliere's case, indeed, which was that of a French prisoner of war indicted capitally for privately stealing in a shop to the value of 20.; whom Mr. Justice Foster directed to be acquitted of the capital part of the charge, and found guilty of the simple larceny to the value laid in the indictment; a distinction seems to have been taken between mala prohibita and mala in se. [Lord Ellenborough, C. J. That case must not be considered as having the assent of the Court. For my own part, I could never see the distinction between convicting the prisoner of larceny at common law and of aggravated larceny by the statute: if liable to answer for the one, he must have been liable also for the other. Grose, J. assented to that opinion.] It should rather seem, upon general principles, that a prisoner of war, being brought into the kingdom and confined here against his will, was, not bound at all by the laws of the country; but, at any rate, if there be any such distinction, it must be admitted that the offence of libel is as much of positive institution as any which can be named. On the other hand, it has always been considered that a subject of this country is not bound by the revenue laws of a foreign state, but may enforce in England contracts made in breach of them (a); and by a reciprocal rule, though the exportation of wool be by stat. 13 and 14 Car. 2, c. 18, s. 11, declared a public nuisance, for which a subject of Eng land would be indictable, yet if done by the order of a foreigner residing abroad, he would not be amenable to trial (b) 7 Rep. 5, 4. (a) Vide Fost. Cr. L. 185. (c) Ib. 6, b. (d) Plauche v. Fletcher, Dougl. 251, and Lever v. Fletcher, in 1780, cor. Lord Mansfield, C. J. Park's logur. 269, 1st edit. 1805. The KING against The Hon. ROBT. JOHNSON. [598] 1805. against The Hon. ROBT. JOHNSON. here, though he should afterwards come to this country. The KING Secondly, It does not differ the case that England and Ireland are under the same sovereign, or that they have adopted the same system of common law. It is doubtful at what period and by what authority the common law was first * 594] adopted in Ireland in the place of the Brehon law, which formerly prevailed there: Lord Coke (a) refers its adoption to the time of King John, de communi omni de Hibernia consensu; Lord C. J. Vaughan (b), however, thinks that Lord Coke is mistaken, and that there was no consent of any Irish parliament, but that it was imposed by conquest before, by Henry II. as appears in Calvin's case (c); where it is also said that the king may change the laws of a conquered kingdom; but that until such change, the ancient laws remain. At all events, however, the law, when adopted, became and was in force there as the common law of Ireland, and not of England. It may, indeed, be said, that Ireland was for a long time a dependent kingdom, and that in fact this country legislated for it, particularly while the stat. 6 Geo. 1, c. 5, was in force; but that was repealed by the act of the 22 Geo. 3, c. 53; and the stat. 23 Geo. 3, c. 28, made the matter still clearer by an express renunciation of the legislative and appellant jurisdiction of this country over Ireland. Before the union, therefore, with Ireland, that kingdom stood in the same relation to England as Scotland did after the accession of James 1. and before the union in the time of Queen Anne. The Irish Union has since strengthened the argument; for the two legislatures treated with each other upon the footing of perfect equality; and both then became extinct and gave birth to a new legis. lature, compounded of the two: and by the 8th article (d) "all the laws in force at the time of the union, and all the courts of civil and ecclesiastical jurisdiction within the re[595]spective kingdoms, are to remain as then by law established within the same;" thereby extending this article to both countries. If then by the union the laws of England, as such, extend to Ireland, by the same rule the laws of Ireland would extend to England; but it would not be allowed that an Englishman residing here would be bound by the (a) Co. Lit. 141, b. (b) Vaugh. Rep. 292, 4, &c. laws |