TABLE OF CONTENTS-continued. Proceedings in the Court of Queen's Bench on Habeas Corpus to discharge prisoner committed for contempt by the Court of Chancery in the Isle of Man, before Proceedings before the Judicial Committee of the Privy Council, on petition from Canada, in re Justice Elzéar Bedard, as to a grant of precedence by the Crown, Trial of Prince Granatelli and others, on the prosecution of the Sicilian Minister, for a breach of the Foreign Enlistment Act, 59 Geo. 3. c. 69., in fitting out, &c., the s.s. Bombay, at the Central Criminal Court, before Coltman and Maule, JJ., Proceedings in the Court for Crown Cases Reserved, as to the claim of an alien-born woman married to a natural-born British subject, to be tried by a Jury de medietate, before Wilde, C.J., Pollock, C.B., Rolfe, B., Coleridge, J., Cresswell, J., and Judgment of the Court of Queen's Bench in an action of trespass against a County Court Judge for exceeding his jurisdiction, before Patteson, Coleridge, and Wight- man, JJ., January 19th, 25th, and February 26th, 1850 KING OF THE TWO SICILIES AGAINST WILLCOX AND OTHERS: Proceedings in the Court of Chancery in a suit commenced by the King of the Two Sicilies to obtain delivery of the s.s. Bombay, alleged to have been purchased with monies abstracted from the Royal Treasury by rebellious subjects, before Shad- well, V.C., on demurrers to bill, January 28th and February 7th, 1850, and April 23rd and May 24th, 1850, and before Lord Cranworth, V.C., on objection to Proceedings in the Court of Queen's Bench, on motion of a prohibition, as to the appeal from the Archbishops' Courts in cases touching the Crown, before Lord Campbell, L.C.J., Patteson, Wightman, and Erle, JJ., April 15th and 25th, 1850 THE QUEEN against SMITH O'BRIEN. TRIAL OF WILLIAM SMITH O'BRIEN, M.P., FOR HIGH TREASON AT THE CLONMEL SPECIAL COMMISSION, BEFORE BLACKBURNE, L.C.J., (a) DOHERTY, C.J., AND MOORE, J., SEPTEMBER 21, 1848, AND THE FOLLOWING DAYS. PROCEEDINGS IN THE COURT OF QUEEN'S BENCH, IRELAND, BEFORE BLACKBURNE, L.C.J., CRAMPTON, PERRIN, AND MOORE, JJ., ON WRIT OF ERROR, Nov. 21, 22, 23, 24, 1848, AND JAN. 16, 1849. (Reported in 3 Cox C.C. 360.) JUDGMENT OF THE HOUSE OF LORDS ON WRIT OF ERROR, MAY 11, 1849. (Reported in 2 H.L. 465.) High treason. (b) The prisoner was indicted for high treason, by levying war against the Queen in Tipperary between July 17th and 30th, 1848, as hereinafter described, and by compassing to raise insurrection, and subvert the government, and put the Queen to death. Verdict, guilty of treason by levying war. Held by the House of Lords, affirming the judgment of the Court of Queen's Bench, Ireland— 1. Treason-Levying war in Ireland-25 Edw. 3.—Poyning's Law, 10 Hen. 7. c. 22. Levying war in Ireland is treason within the words "levy war against the king in his realm," of the statute of 25 Edw. 3., acts which are treason in England under that statute having been made treason in Ireland, if committed there, by Poyning's Law, 10 Hen. 7. c. 22., which provided that the statutes late made within the realm of England concerning the public weal should be good and effectual within the land of Ireland. 2. Lists of witnesses and jurors—7 Ann. c. 21. ; 57 Geo. 3. c. 6. ss. 1-4; 11 & 12 Vict. c. 12. ss. 1, 2. The British statute, 7 Ann. c. 21. provided that prisoners indicted for treason should have The Treason Felony Act, 1848, 11 & 12 Vict. c. 12., (c) repealed all the provisions of On an indictment in Ireland for compassing the Queen's death, where the overt act alleged was not a direct attempt against the person of the Sovereign, the prisoner could not claim the benefit of the British statute, 7 Ann. c. 21, by virtue of 57 Geo. 3. c. 6. s. 4, or of 11 & 12 Vict. c. 12. s. 2(d), because (a) Afterwards Lord Chancellor of Ireland. (b) The fullest account of the events which gave rise to this trial is to be found in Sir Charles Gavan Duffy's " Young Ireland," Part II., or "Four Years of Irish History, 1845-49 "; See also Ann. Reg., Hist. 94; Walpole's History of England, vol. 4, p. 333; McCarthy's History of Our Own Times, vol. 2, p. 29; Townsend's State Trials, p. 474 (c) See 6 St. Tr. N.S. 599 n. (d) The provisions of 7 Ann c. 21. are now extended to Ireland by 17 & 18 Vict. c. 26., “An Act to assimilate the law and practice in cases of high treason in Ireland to the law and practice existing in cases of high treason in England." 85234. Wt. 21279. A (1) 57 Geo. 3. c. 6. ss. 1-4, perpetuating the British statute, 36 Geo. 3. c. 7. did not, when (2) S. 4 of 57 Geo. 3. c. 6. was not among the provisions of that statute extended to Ireland by 11 & 12 Vict. c. 12. s. 2. (3) Even if it were, the only provisions so extended to Ireland by 11 & 12 Vict. c. 12. s. 2, were such as related to direct attempts against the person of the Sovereign, an offence for which the prisoner was not indicted. Quare, whether the wrongful omission to furnish the prisoner with a copy of the indictment together with lists of the witnesses and jurors ten days before trial could be raised by way of plea on the record. 3. Caption. A caption setting forth that an indictment was found at a special sessions of Oyer and Terminer and General Gaol Delivery before three judges "nominated and appointed" to inquire into, hear, &c., by virtue of a commission under letters patent directed to them "and others in the said letters named," was not bad for not showing that the commission was joint and several. By CRAMPTON, J.,— The Court has power to amend a formal error made by the officer of the Court in drawing up the caption. 4. Peremptory Challenges in Ireland-Treason-9 Geo. 4. c. 54. s. 9. 9 Geo. 4. c. 54. s. 9, restricting persons 'arraigned for treason, or murder, or for other felony" in Ireland to twenty peremptory challenges, applies to high treason as well as petit treason. 5. Allocutus. The record having averred that the prisoner had been called upon to say why the Court should not proceed "to judgment" against him, instead of "to judgment of death," or "to judgment and execution," such form of allocutus was sufficient. Ruled at the trial by Blackburne, L.C.J., Doherty, C.J., and Moore, J. 6. Evidence, On an indictment for levying war and compassing to subvert the government and put the Queen to death, speeches made several months before the alleged levying of war were held admissible to show the intention with which war was levied. Documents found upon the prisoner at the time of arrest held admissible against him; also, documents found in a locked portmanteau belonging to him, of which the police obtained possession by his instructions after his arrest, but which had been out of his possession and control for some days before coming into the hands of the police. The Court refused to make an informer disclose the name of the person who had given him certain information, the informer having stated that to answer the question would expose such person to the risk of assassination. 7. Applications to inspect jury panel, and to ballot for jury, refused, pp. 19, 42. 8. Challenges to the array-Religion of Jurors, p. 20. 9. Prisoner invited to address the jury in treason cases after his counsels' speeches, p. 276. she calls upon her subjects to aid her, by performing their duty in the administration of the criminal law of the land. Distressing and deplorable as such a measure would be under any circumstances, it becomes so in the last degree, when we know that that measure has originated in machinations and attempts which constitute the crime of high treason-a crime, the highest in degree that a subject can commit a crime, whose object is the total destruction of our social system, the subversion of all security for property, and for life-and a crime which no reasonable being can contemplate without knowing that it must lead to the shedding of human blood, and that it must entail on the country all the horrors and all the miseries of civil and social war. As I have alluded to the former Special Commission, under which the greater number of you were called on to perform your duties in the month of January last, I think it but just to observe, that the crimes and the outrages which formed the subject of your investigation at that period, do not appear to have any connexion, as far as I am informed, with the matters which are now coming under your consideration. On the contrary, I have reason to believe, and I do sincerely hope, that the firm administration of the law under that Commission, and at the Assizes which have since intervened, has been attended with the most salutary effects, and will justify a hope of the restoration of peace and order in your county. Gentlemen, the crime of high treason is one, happily, of such unusual occurrence, and one with respect to which there are peculiar provisions, which do not belong to the investigation of other crimes or misdemeanors, that I think it my duty to point out to you the peculiarities of the law relative to that crime. But, in order to make those observations intelligible, I think it my duty to give you a general, and a very general, outline of the nature of the case as it appears to me upon the perusal of the informations which have been laid before me on the part of the Crown. Gentlemen, it will appear from them, that for some months past a political body- a body or society formed for political purposes-held its meetings and conducted its proceedings in the city of Dublin. At these meetings there were a number of inflammatory and seditious speeches delivered by the leading members of the body. About the middle or towards the latter end of July these members-I mean the leading members, or some of them-appeared in different parts of the south of Ireland, and at last seemed to have determined to make the county of Tipperary the scene of their further operations. Accordingly, large bodies of the people were assembled; they were harangued, and, upon more than one occasion, it was distinctly announced that there was to be an immediate arming of the population, with the view of severing Ireland from the British dominion, and erecting it into an independent kingdom. In pursuance of these instructions, which extended to the procuring of arms, by any means whatever, legal or otherwise, in the last week of July several armed bodies of men appear to have congregated in a part of the county. They were marshalled and trained, and officers, upon some occasions of their meeting, nominated. Barricades were erected in some parts of the county, which, upon one occasion, had the effect of obstructing the march of Her Majesty's troops, and which upon that occasion appear to have been designed for the protection of a person or persons against whom warrants had been issued by Her Majesty's Government. On the 29th of July these proceedings appear, for that time at least, to have reached their consummation. A body of police, on its march to the scene of the disturbance which had taken place, was encountered and nearly surrounded by different armed bodies of men. The result was, that they took shelter in a house; and there an actual conflict took place between them and their assailants. On the same day another body of police was similarly assailed. The result in both cases is probably known. This is all which I think it necessary to lay before you, preparatory to the statement of those rules which, in respect to the law of high treason, are made for your government, the regulation of the Court, and the security of the subject. The indictments, as I am informed, gentlemen, will contain two distinct classes of counts; and each of these classes of counts relates to a distinct treason. Both are founded on the provisions of a very ancient statute-a statute passed so long ago as the reign of King Edward 3. It contains, amongst others, two provisions relating to the two distinct species of treasons which are the subject of the indictment. The first of those is expressed in the language of that day to be " the compassing the death of the Queen." Gentlemen, by compassing the death of the Queen,” it is not meant merely to impute a design against the personal life or personal safety of the Sovereign-the Sovereign, whether king or queen, being in our constitution the representative of the State--an attack upon the sovereign power of the 66 |