« ForrigeFortsett »
1805. SALYIN against JAIN,
the plaintiffs' counsel were well founded, that the interval of
of the Court
the matter I
not by the laws of Great Bri
The King against The Hon. ROBt. Johxson. July 1st. Every plea to THIS was an indictment, found by the grand jury of the the jurisdiction 1
county of Middleser against the defendant, one of the ought to give Judges of the Court of Cominon Pleas in Ireland, charging some other Court by which him with having, and having caused to be written, published,
may and printed, at Westminster, in the county of Middleser, a be tried. Therefore, it is certain libel, therein set forth; which publication was Dot sufficient for a vative af alleged, in the prefatory part of the indictment, to bare Ireland.charg. been made with intent to incite the king's subjects to hatred ed with the publication of a and dislike of his majesty's administration of government in libel in Middle
to this kingdoin, and to cause * it to be believed that the people the jorisdiction of that part of the U. K. of G. B. and I. called Ireland, of B. R. that Freland before were oppressed and injured by the king's government of the the union was said part of the U. K. and to defame and vilisy the persons governed by its own laws, and employed by the king in the administration of the government
** of the said part of the U. K. and especially the Right Hon. tain, and that Philip Earl of Hardwicke, Lieutenant-General and Goversince the union is yet governed nor-General of the said part of the U. K. and the Right by its own laws, Hon. John Lord Redesdale, the king's Lord Chancellor, &c. &c. and that there always - of the said part of the U. K. There were other counts have Been and
charging an intention to defame the same and other public and jurisdie- characters in Ireland, in other libels. tions in Ireland, distinct from ' To this indictment the defendaat put in the following
G. B. plea to the jurisdiction of the Court; and now the said and competeot for the trial of Robert Johnson in his own proper person comes, and having all offences
• heard the indictment aforesaid read, and protesting that he the patives is not guilty of the premises charged in the said indictment, resident there ; and that the or of any part thereof, for plea, nevertheless, saith, that he defendant is a ought not to be compelled to answer to the said indictment, native of and was resident is because he saith that the kingdom of Ireland, before and
until the time of tbe union of the two kingdoms of Great time of the orfeuce alleged, Britain and Ireland, was regulated and governed by the and that the subject-matter proper laws and statutes of the kingdom of Ireland, and not of the supposed by the laws or statutes of the kingdom of Great Britain, or libel related to thiogs in Ireland; for the objection, if any, going to the total want of jurisdiction in any of the Courts of this part of the kingdom to try the defendant for such an offence, it should either be taken advantage of by a plea in bar or by evidence under the general issue.
Besides the common four-day rule on a defendant in misdemeanor to join in demurrer to his plea, there must be a peremptory rule, giving him a certain day in the discretion of the Court; without which judgment cannot be signed against him. * [ 581
Now are courts
Ireland at the
by the laws or statutes of England; and that ever since the union of the two kingdoms, that part of the said united kingdom of G. B. and I. called Ireland, bath been and yet is governed and regulated by the proper laws and statutes of that part of the said U. K. called Ireland, and not by the laws or statutes of that part of the said U. K.called G. B. or by the laws or statutes of England: And the said Robt. Johnson further saith, that in the said kingdom of Ireland, before the said union, and in that part of the said U. K. called Ireland since the said union, there always have been and now are courts and jurisdictions therein being and thereto belonging, distinct from the courts and jurisdictions of G. B. or of England, or of any part thereof, and competent and sufficient for the trial of all offences committed by the natives or inhabitants of Ireland during the time of their respective residence and commorancy in Ireland : And the said R. Johnson further saith, that he was born within Ireland aforesaid, and out of Great Britain, and before the said union (to wit) on the ist of October, 1752 (to wil) at Westininster, in the county of Middleser; and that he the said R. Johnson, on the 1st of Nov. 1802, and thenceforth continually, and until, at, and after the time of presenting the said indictment by the jurors aforesaid, in form aforesaid presented (to wit) until and upon the 31st of May, 1805, was resident and commorant within that part of the said U. K. called Irelund, and not elsewhere; and that the writings by the said indictment,
called Libels, and in the said indiciment mentioned, are of , and concerning certain matiers and things which took place in Ireland after the said 1st of Nov. 1802 (to wit) on the 23d of July, 1803, and subsequent thereto; and that the composing, writing, publishing, and printing the said writings by the said indictment, called Libels, and causing the same to be composed, written, published, and printed in and by the said indictment alleged and mentioned, and the committing of all the supposed offences therein mentioned, took place, and were after the said 1st of Nov. 1802, and while he the said R. Johnson was so resident and commorant in Ireland aforesaid, and pot elsewhere (to wil) on the 1st of January, 1804 (to wit) at Westminster aforesaid, in the county of Middleser aforesaid; and this he is ready to verify: To this there was a general demurrer. And on Tuesday the 25th of June, The Attorney-General
· 1805. The King against
moved the Court for a peremptory rule on the defendant to join in demurrer on the morrow; the usual four-day rule to join in demurrer having expired on Saturday the 22d, and the intervening Monday being a dies non jurid. He stated, That the indictment had been found in Michaelmas term last, and no plea put in until this term, when the above plea to the jurisdiction of the Court was pleaded as of the last term : and that the object of his motion was to have the demurrer argued on Saturday next, the last crown paperday in the term. That according to the practice on the civil side (a), the plaintiff may enter the joinder in demur. rer for the defendant, without giving him any rule to join in demurrer: and though by the rule of Court of Trin. 1 Geo. 2 (6), by which that practice is regulated, if there be no joinder in demurrer by the time the rule (c) for pleading is out, the plaintiff may sign judgment, still the practice on the crown side of the Court has been not to enter up judgment with. out giving a peremptory rule to join in demurrer within such time as the Court shall direct. This appears from an ancient book in the Crown-office by Sir Simon Harcourt, formerly master of that office, where is this entry:- Post regulam peremptoriam quatuor dies ad placitandum non de recto sed ex gratia ; curia semper existens interrogata quando dies appunctuatur ut curiæ placet. And he mentioned as instances of such peremptory rules given, The King v. Williams (a), where the Attorney-General having demurrer to a plea to the jurisdiction, pleaded to an information for a libel; and the defendant being in court, it was insisted that he should join in demurrer instanter (b); but the Court gave two rules for joio.
ing (a) 2 Tidd's Pract. 649, 2d edit. b) Rules and Orders of K. B. p. 94, edit. of 1735. (c) By the practice of the Crown-office there are two four-day rules given to bring a defendant in to plead, and then a peremptory rule is moved for, giving, in town prosecutions, the morrow; in country prosecutions, ten days to plead. In subsequent stages of pleading, only one four-day rule is given, and then a peremptory rule moved for, which is in generat drawn up for four days more; but in vacation it is considered that such peremptory rule is not neressary.
(d) This was an information for a libel filed in the latter end of tbe reigo of Car. 2, against the defeodant, Speaker of the House of Commons, who as such had licensed, by order of the House, the publication of Dangerfield's Narrative, on which acmount he pleaded to the jurisdiction of the Court; to which plea the Attorney-Geueral demurred; and on the first opening of the case, judgment of respondeas ouster was given: and finally the defendant was fined 10,000 1. E. 2 Jac. 2. Skin. 217, Comb. 18, and 2 Show. 471.
(e) This is said to mean within 24 hours, 1 Tidd's Pract. 508, 3d edit. which cites Pryce v Hodgson, E. 35 Geo. 3. Sed quære by whoin this acSount of hours is to be kept ? and whether instanter, as applied to the subject
[ 587 ]
ing in demurrer, and then a peremptory rule ; after which, 1805. they said, if the defendant did not join in demurrer, they
The King would give judgment; and the general practice in this re against
The Hon. spect, as reported by the same master in Layer's case (c),
Rost. “ That in prosecutions for misdemeanors two four-day rules JORNSON. to plead are given, and a peremptory rule moved for; and then, if there be a demurrer, one four-day rule to join in i demurrer is given, and a peremptory rule moved for: but. that in capital cases (as that was) there is no rule given either to plead or join in demurrer, the prisoner being obliged in all cases lo answer immediately." He also referred to two other precedents from the Crown-office, the one Ree v. Ryder, s Geo. 2, where, after the common rule was out, a rule was given for the defendant to join in demurrer peremptorily on the morrow: and Rex v. Broughton, Trin. 28 Geo.2, where a rule was given on the defendant to join in 1 588 ) demurrer on the Friday, and a peremptory rule on the Mon. day following. On these precedents The Court now gave the rule required: - 56 That unless the defendant should peremptorily join in demurrer on the morrow, judgment should be entered for the king."
On Saturday the 29th, the demurrer was argued.
Abbott, in support of the demurrer. The rule is, laid dowo in i Doct. Plac. 234, and Mostyn v. Fabrigas (a), “ That in every plea to the jurisdiction, the party must state another jurisdiction; as if an action were brought here for a matter arising in Wales, in order to bar the remedy sought in this court, the party must shew the jurisdiction of the court of Wales : and in every case to repel the jurisdiction of the king's court he must shew a more proper and more sufficient jurisdiction; for if there be no other mode of trial, that alone will give the king's courts a jurisdiction.” Then, if there be no other court shewn competent to take cognizance of the offence imputed to the defendant in this case, it follows that this court must. Now, bere the offence imputed being the publication of a libel in Middleser, it is no answer to shew that the defendant is an Irishman, and that there are courts of justice in Ireland which have jurisdiction of the matter of libel; for they
Watter, may not more easily be taken to mean before the rising of the Court, where the act is to be done in Court? or before the shutting of the office on the sains night when the act is to be done there?
(c) 6 State Tr. 238. . (6) Cowd. 172.