2. Or that if that statute did not originally extend to Ireland, it was afterwards so extended by the operation of 57 Geo. 3. c. 6., and by 11 and 12 Vict. c. 12. The judges are of opinion that neither of these grounds can be supported. The statute of 36 Geo. 3. passed before the Union, and did not bind ireland, and therefore if it has any application to Ireland, it must be by the effect of 57 Geo. 3., or 11 and 12 Vict. The first section of 36 Geo. 3. c. 7. enacted, that certain acts done during the life of his Majesty George 3., and until the end of the next session of Parliament after a demise of the Crown, shall be deemed treason; and the first section of the 57 Geo. 3. c. 6. made those provisions perpetual, but did not extend the operation of the statute of 36 Geo. 3. to Ireland. The fourth section of 57 Geo. 3. c. 6., which has been principally relied upon, expressly gives the benefit of 7 and 8 Will. 3. and 7 Ann. c. 21. to persons accused of any treason made or declared by that Act of 57 Geo. 3., and it is enough to say that the charge in the sixth count is not for any treason made or declared by that statute. With regard to the statute of 11 and 12 Vict., the only effect of that statute was to extend to Ireland certain of the provisions of 36 Geo. 3. made perpetual by 57 Geo. 3.; and the fourth section of 57 Geo. 3., which has been relied on, is limited to treasons made or declared by that Act, and the treason which is the subject of the sixth count was not one of them, to which, therefore, it does not apply. As to the objection that the counts charging the levying of the war in Ireland do not charge an offence which, in point of law, amounts to treason This objection depends upon the construction of the statute of 10 Hen. 7. c. 22., passing by the name of Poyning's Law. By that statute we think that those acts which were treason in England by the statute of Edward 3. were made treason in Ireland, if committed there, and we cannot deem it necessary to say more upon the subject than that the terms of the statute admit of no doubt. As to the objection to the allocutus, we think it is the proper form. All that the prisoner in that stage of the proceedings can properly be asked is, what he has to say why judgment should not be pronounced; and as to precedents which go further, we deem the matter beyond the question stated to be surplusage. The only remaining error assigned refers to the challenge to the jury. That error has not been urged at your lordships' Bar, and we think it was very pro perly abandoned, as the question is not open to any doubt, the language of the statute of 9 Geo. 4. c. 54. s. 9 being clear and unambiguous. The judges have not thought it necessary to trouble your lordships with a more detailed statement of their reasons for the opinions they entertain, as the general assignments of error have been so fully and ably and satisfactorily discussed by the learned judges of the Court of Queen's Bench in Ireland, and which arguments are before your lordships. Lord COTTENHAM, L.C.: Your lordships having now heard the grounds of the opinion of the learned judges, those learned judges concurring unanimously in the judgment pronounced in the Court below, I do not apprehend that your lordships will feel any difficulty in coming to the same conclusion as that at which those learned judges have arrived. In my own mind, indeed, my lords, I have never had any doubts, from the time when I first read these papers, as to the result of these writs of error. The reasons assigned by the learned judges in Ireland, who certainly have most learnedly and most elaborately, and in a manner highly creditable to them, investigated the several grounds upon which the plaintiffs in error rely, leave no doubt as to the correctness of their decision. They properly considered the importance of the subject which they had under their consideration, and their judgments, when carefully perused, leave not any doubt upon the mind of any lawyer as to the soundness of their conclusion. We have now, ever, had a confirmation of those reasons in the opinions of the learned judges who have assisted us in considering the cases now before the House; and if your lordships' concur in the opinion which I have formed, you will affirm the judgments of the Court below. how I therefore move your lordships, on these grounds, that judgment be given for the defendant in error in each of the cases under consideration. Lord LYNDHURST: My lords, I am of the same opinion as my noble and learned friend who has just addressed your lordships. Lord BROUGHAM: My lords, I entirely agree with my noble and learned friend, that the judgment ought to be given for the defendant in error. I cannot express my entire concurrence without adding my tribute of respectful commendation of the great learning and distinguished ability with which the learned judges in Ireland have dealt with the whole of this important matter. I never, in the course of my experience, read a more able and satisfactory argu ment in every respect than that of Chief MATERIALS MADE USE OF.-The above Justice Blackburne; and the other learned report is compiled from the Report of judges have all, in my opinion, distin- the Trial of William Smith O'Brien, guished themselves by their ability and by John George Hodges, Government their learning, and their careful and elabo- Shorthand Writer, Dublin, 1849, and rate consideration of these cases. from the reports in 3 Cox. C.C. 360, and 2 H.L. 465. Lord CAMPBELL: My lords, I cannot abstain from expressing my approbation and admiration of the very able manner in which these questions have been treated by the Lord Chief Justice of Ireland and the other learned judges of the Court below. I have only further to add that I entirely concur with my noble and learned friend on the woolsack in the opinion which he has expressed. Judgment for the defendant in error. The judgment of death was afterwards commuted to transportation, under 12 & 13 Vict. c. 27.(a) (a) This statute, which was passed in consequence of an objection taken by the prisoners that the Crown had no power to respite the judgment of death for treason except by a free pardon, recited that doubts had arisen as to the power of the Crown to mitigate the punishment of offenders under judgment of death for treason On May 18th, 1849, the House of Commons THE QUEEN against DOWLING. TRIAL OF WILLIAM DOWLING FOR TREASON-FELONY, AT THE CENTRAL CRIMINAL COURT, BEFORE ERLE(a) AND WILLIAMS, J.J., SEPTEMBER 22 AND 23, 1848. (REPORTED IN 3 Cox, C.C. 509.) The prisoner was indicted under the Treason Felony Act,(b) 11 & 12 Vict. c. 12., for feloniously compassing to depose the Queen, &c., and to levy war against the Queen in order, &c. Evidence was given that he was secretary of the Davis Confederate Club, in London; that in July and August 1848 he took part in meetings of Chartists and Irish Confederates, at which a rising was planned for August 16th; and that on that day groups of men were arrested in different parts of London armed with pikes, guns, combustible balls, &c. Verdict, Guilty. 1. Treason-Felony.-Levying War.-Compassing to depose the Queen. An intention that numbers should assemble in arms, prepared to resist opposers, and intending to prevent the Government from the free exercise of any of its lawful powers is an intention to levy war against the Queen, within the meaning of 11 & 12 Vict. c. 12. An intention to subvert the monarchical constitution, or to sever Ireland by force from the Crown of England, is an intention to depose the Queen from the style and royal name of the Imperial Crown of Great Britain and Ireland, within the meaning of 11 & 12 Vict. c. 12. 2. Practice. Copy of Indictment.-Lists of Witnesses and Jurors.-Reading over Panel. —Inspection of Indictment and names of witnesses after arraignment. In felony the prisoner is not entitled to a copy of the indictment, or to lists of the witnesses and jurors, or to have the panel read over (c) ; but he is entitled to have the indictment read over once before arraignment, and it is the practice, after arraignment, to allow the prisoner's counsel to look at the indictment and the names of the witnesses indorsed on it. 3. Challenge.-Voir dire. A juror cannot be examined on the voir dire until a cause of challenge has been assigned. (a) Afterwards Chief Justice of C.P. (b) Short title under the Short Titles Act, 1892; see note to Reg. v. Mitchel, 6 St. Tr. N.S. 599. (c) But see Reg. v. Cuffey, below, p. 467. CENTRAL CRIMINAL COURT. On Thursday Sept. 21st, the grand jury returned true bills against William Dow ling and others for treason-felony under 11 & 12 Vict. c. 12. The prisoners, who were Chartists and Irish Confederates, were charged with conspiring to effect a rising in London on August 16th, 1848, as herein-after described. Counsel for the Crown.-The Attorney-' General (Sir John Jervis, (a)) Welsby, Clarkson, Bodkin, and Clerk. This Counsel for the prisoner.-Kenealy. Kenealy applied on behalf of Dowling for a copy of the indictment. is a prosecution for treason disguised as felony by the Crown and Government Security Act, and it would be a hardship for the prisoner to come before the Court without knowing the nature of the charge. The common law right to have the indictment read over, very slowly, twice or three times would involve great waste of time. Ballantine on behalf of other prisoners made the same application, and referred (a) Afterwards Chief Justice of C.P. to the recent case of Reg. v. Martin, (a) in Ireland, where it was granted ex gratia. ERLE, J., refused the application. This is a trial for felony, and ought to be conducted in the same way as other trials for felony. It would be the worst possible example to make any difference in a court of criminal justice, as to the mode in which that justice is administered. The intention of the Legislature in lowering the more aggravated crime of treason to that of felony, was that persons guilty of this breach of the law should be tried in the same way as other criminals. With respect to the parties not knowing what they have to answer, the depositions for the most part give full information of the facts. Sometimes there are persons who look at the way the facts are stated in the indictment in point of form as a fruitful source of technical errors, and by availing themselves of them, justice is frequently defeated. We ought not to give any extra facility for that species of objection, beyond what our law has provided. Bodkin stated that the prisoners' counsel might have access to the indictment, to save the necessity of its being read over two or three times in open Court. (a) 6 St. Tr. N. S. 958. Friday, September 22. Kenealy, after an application had been made on behalf of the other prisoners to postpone the trials, stated that his client desired to be tried at once, and again appealed for a copy of the indictment. ERLE, J.: You are entitled to have it read over at full length. Kenealy I believe I am entitled at common law to have it read twice. I have a very strong idea that I can produce cases to have it read three times. Attorney-General: I must state in my own justification that Mr. Kenealy was informed that he should have an opportunity of reading the indictment. He went to the office of the Clerk of Assize, saw it, and would not read it, and now he makes this application. ERLE, J. My opinion is that you are entitled to have it read once. I have considered this matter in consequence of your mentioning your intention yesterday. I am quite sure that the rules and practice of the Court are to be conducted upon some principle which shall tend to the due administration of justice. And I am clearly of opinion that where the counsel has had the opportunity of seeing the indictment and where afterwards that indictment has been read over once slowly in his presence, it would be an absurd rule of practice to say that those same words shall be read three times slowly, merely to waste the time of the Court. I therefore decide that you may have it read once slowly but not more. Kenealy Your lordship has decided without hearing me. I have the names of twelve cases in the State Trials where it was done. ERLE, J. I will hear anything you wish to say. Kenealy: In Grahme's trial before Holt(a) the indictment was read twice in English and once in Latin; in Charnock's case, (b) three times; in Rosewell's case, (c) three times; in Weston's case, (d) twice; in Lord Maguire's case, (e) twice; in Morris's case (f) in Lilburne's case; (g) in Atkin's case,(h) twice; in Konnigsmark's case, (i) twice; in Ratcliffe's case, (j) three times; in Algerom Sidney's case, (k) twice. (a) 12 St. Tr. 645. (b) 12 St. Tr. 1386. (c) 10 St. Tr. 152. (d) 2 St. Tr. 912. (e) 4 St. Tr. 653. (f) 4 St. Tr. 1250. (g) 4 St. Tr. 1269. (h) 7 St. Tr. 231. (i) 9 St. Tr. 3. (j) Fost. Cr. L. 40. (k) 9 St. Tr. 836. ERLE, J. In the one case it would be a sensible proceeding, and in the other an absurd one. Have you taken the trouble to enquire whether the second reading in English was at a second stage or another day? Kenealy Certainly it was on another day. That makes no difference. : ERLE, J. Your application at this moment is that the indictment should be read over three times consecutively-that is what I have decided you have no right to. The indictment was read by the Clerk of Arraigns. Parry: I understood it was to be read slowly; it is being read rather fast. Roberts (prisoners' attorney): I must personally apply to have it read so that I can copy it. ERLE, J.: I must conduct this case in the same way as all other trials for felony. I refuse the application. The prisoners were called on to plead, and all pleaded, Not Guilty. Kenealy: Your lordship has said that the case is to be conducted as an ordinary felony, but I do not know if the AttorneyGeneral will grant the application that I am about to make for a list of the jurors. ERLE, J. I refuse the application. If you wish to make any such application to any other person you are at liberty to do so, but I myself feel that I am bound to conduct the trial for this felony by the rules applicable to felonies. The judge does public mischief who at all at his discretion departs from those rules. I therefore feel it my duty at once to say that I will not direct any list of jurors to be given in the case which would not be granted in an ordinary trial. The Attorney-General having refused a list of the witnesses, Ballantine applied that the prisoners' attorney might see the names of the witnesses on the back of the bill. ERLE, J. I have seen it constantly done in trials, after the party is called on upon the arraignment, for the counsel for the prisoner to see the indictment, and that I have been told is the regular rule; and therefore I will direct, if you wish it, that the indictment should be handed to you, your client being now arraigned. It is usually permitted, and I permit you to look at it now. Kenealy applied that the list of jurors should be read over, and referred to Townley's case. (a) That was high treason, where the prisoner had already a copy of the panel, but the common law right to have the panel read over was allowed. This is a strange case. ERLE, J.: If it is put now as a matter of right, and I am called upon to decide whether upon every trial for felony the counsel for the prisoner has a right to have the panel of the jury read over, I am of opinion that there is no such right, and I refuse the application. William Preston having been calledKenealy: I wish to ask if that gentleman is a special constable ? any ERLE, J.: You have no right to ask such question. You have a right to chal. lenge him. : Kenealy I know I have a right to challenge twenty, and I wish to examine every one of them on the voir dire. ERLE, J.: Not without exercising some right of challenge. Kenealy: Then I shall challenge him for cause, and then ask if he is a special Constable. ERLE, J.: What is your cause? cause. Attorney-General: My lord will ascer tain whether it is a good cause, and will appoint triers to try him. Kenealy: My lord, I cannot tell you the cause until I have the juryman sworn on the voir dire. Kenealy: Am I to understand your lordship to say that I am not to be allowed to examine upon the voir dire? Am I to understand that that right is to be taken away from the people of England, as all the other rights are taken away by this Crown and Felony Act? I am not aware of a single instance, and I assure your lordship that I have entered into this case with a great deal of particularity, where a judge called upon a counsel to assign a cause. I do not know whether it is Hawkins that your lordship has in your hand, but I believe Mr. Serjeant Hawkins was one of the loosest law-writers who ever wrote. He has laid down a good many things which are not law. ERLE, J.: I have never seen it done. I have read many text books upon the subject and I have never seen the right laid down. I have had no authority cited to me showing that the right was ever exercised, and it appears to me an extremely unreasonable and improper thing that a juror should without any reason be crossexamined by the counsel for the prisoner I am sure that no harm can be done to without any instructions upon the subject. the prisoner while the prisoner has the right secured to him by law of challenging peremptorily any juror who is unsatisfactory to his mind. That being the state of the case, I dispose of your application to put questions to the juror by that right, and I direct the officer of the saying, that in my opinion, you have not Court to swear the juror. Kenealy applied to the Court to reserve ERLE, J.: Have you any cause? Kenealy That he does not stand in the point. different. no cause. Attorney-General: That is ERLE, J.: As I understand a challenge for cause, you must make out to the satisfaction of the Court some reason for believing that your cause is well founded. Can state to me what is your reason you for believing that you have cause for challenging the impartiality of William Preston? Kenealy I have reason to believe that he is a special constable and has prejudged this case. It is perfectly notorious that the great majority of the inhabitants about here were sworn as special constables. I have no special instructions with regard to this gentleman. I never heard his name before. ERLE, J.: Then I now proceed-having disposed of that challenge for cause-the officer of the Court will proceed with William Preston, and the swearing of him in due course. 85234. (a) Fost. Cr. L. 7. ERLE, J. I am clearly of opinion that if the question was answered in the affirmative, it is no ground of challenge. The jury having been sworn. |