« EelmineJätka »
General prosecuting for the Queen ; and the word lawful men of the place, probi et legales homines, “person," in the disabling clause of the 9th section which they might well be, and yet pot residents, and in the 13th section being, it was contended, in- R. v. Adland, (4 B. & C. 772). And, that consist sufficient for that purpose. On this, the opinion of ently with the averments in the plea, the jurors the court appears to have been, that the crown was might be principal merchants of the city, directors within the enabling, and would not be bound by or shareholders in a bank, qualifications which the disabling parts. Perrin, J. (Ir. Jur. p. 85), would entitle them to act as grand jurors of the city
, says, “ Before the passing of this statute, it was though non-resident. Perrin, J., was of opinion not illegal to have a second bill found during the that the 5 & 6 W.4, c. 91, was applicable to grand pendency of the first, and it would be difficult to jurors at the Commission of Oyer and Terminer
, hold, that where there is no express provision in as well as to juries for the trial of issues, and grand the act, we should imply one restraining the crown juries at sessions, to which it had been contended from sending up a second bill in the place where the act only applied. That this act consolidated the offence was committed.” And Richards, B. the law, respecting jurors, as it previously existed, (p. 86 of the same report), speaking of the 13th and that as the plea did not negative the qualificasection, and of the use of the word " person,” says, tions given by this act it was bad. “ That section was plainly intended to apply to Still fertile in points, the counsel for the prisoner private prosecutors only, but it would be too much demurred to the indictment. to hold from that, that none of the preceding We are not aware of any case in which the law enabling sections of the act includes the crown." of criminal pleading has received such consider
Secondly, it was argued, that though the crown ation, at least no case of felony. This has arisen was not included within the letter of the act, yet, principally from the serious doubts which existed
, having taken advantage of it, it became bound by whether the prosecutor could, in the event of judg all its provisions. On this branch of the case, the ment being in his favour, demand final judgment, court does not appear to have come to any final and the consequent dislike of those entrusted with determination, their opinion (as we understand it) a prisoner's defence to incur the responsibility, and being, that the crown could scarcely be said to run the hazard, of risking the liberty, perhaps the have taken advantage of the provisions of the act; life, of their client on the result of a point of law, that no notices having been served, the election to The course taken was a bold one, but perfectly proceed in the new venue was not complete. The justifiable, this being a case arising on a new inclination of the mind of the court was apparently statute. that the crown should not be bound ; and the case The arguments and judgments will well repay of the Attorney-General v. Wilson (Jebb, C. C., the lawyer's perusal, and will be found useful for Reserved, 313) would appear to support this view. civil as well as criminal pleading, involving a nice
Thirdly, whether the Attorney-General could in consideration of the doctrine of innuendos or exany case be bound by the restrictive provisions of planatory averments, as applicable to the law of the 9th section; and on this question the court were libel or slander. of opinion that, as there were no express words The indictment preferred at the December Comto bind the crown, they were not to be implied. mission contained six counts. The first and third But Richards, B., at p. 87, says, “ Supposing the set out the portions of the publication relied upon 9th section to bear the construction contended for, by the crown, and in the first count charged the on the part of the defendant, in regard to cases prisoner with the publication of certain articles with coming plainly within its operation, it may, I the intent to “depose the Queen," and in the third apprehend, admit of some question - I will say, of count with the intent “to levy war." Three a very grave and serious question—whether the objections were taken to these counts, first, that court would not feel itself authorised to apply the the writings, by which the prisoner was alleged to principle to be extracted from such a provision as have expressed his intention, were not set out with that to crown prosecutions. I mean prosecutions sufficient certainty ; secondly, that they severally carried on by the Attorney-General, as well as to charged distinct felonies in the same indictment in all other cases where the Attorney-General had a manner not allowed by law, and thirdly, that the availed himself of the general provisions of the printings and writings were not accompanied with statute.” He then subsequently guards himself the averments or innuendos necessary to affix to from being considered to have expressed an opinion them the stamp of illegality necessary to bring them one way or the other.
within the act. These points, after much discussion and delay, All these objections the court overruled. having been disposed of, the prisoner, being called The second and fourth counts set out the same upon to answer the indictment, pleaded in abate printings and writings as the first and third, but ment that two of the grand jurors who found the stated them in the second count to be distinct overt bills were not either inhabitants of the city, or resi- acts evidencing the intention to depose the Queen
, dent therein, or freemen thereof, or burgesses, or and in the fourth count as evidencing the intention seized or possessed of, or entitled to, any lands, to levy war. tenements, or hereditaments within the city for any To these counts, the objections made to the first estate of freehold or less estate, or liable to be and third were also raised, and, in addition, it was rated for municipal and other taxes. The court objected that they were repugnant and inconsistent
, held that it was not necessary for grand jurors to and that the publications were improperly laid as be freeholders, Anonymous, (Russell & Ry. C. c. overt acts. 177,) that it was sufficient if they were good and The court decided that these counts were bad
for repugnancy as to all but the first overt act, finally, gave judgment of respondeat ouster in inasmuch as the first overt act being stated as evi- favour of the prisoner. deneing an intention to do an act on the 3d of June, These various proceedings were not terminated a subsequent overt act on the 17th could not until after the first day of Hilary Term, when the be said to evidence the same intention as that on judges declined then to try the case, and adjourned the 3d. To express the same idea in untechnical it to the next Commission of Oyer and Terminer. language, and by an illustration—it would be in At the ensuing Commission in February, the consistent and repugnant to state that the prisoner Attorney-General preferred an entirely new bill raised his arm on the 3d of June with the intention of indictment to the city grand jury, which being of striking the Queen, and on the 17th again found, the prisoner on the 7th of that month raised his arm to strike her on the 3rd. There was brought to the bar to answer the matter of the was but one felony charged, and it was impossible last indictment. The prisoner's counsel moved that a subsequent overt act could be said to relate that the court should direct that no proceeding be back to that which had been charged to have been taken on this indictment until the prisoner be tried previously committed, and on the same ground the on the former one, or it should be otherwise discourt rejected every overt act subsequent to that posed of. This application the court refused. laid on the 3d of June. They, however, decided Then the prisoner pleaded in abatement, that that publications might properly be laid as overt one of the grand jurors who found the bill resided acts.
at a place outside the city boundary, as it existed The fifth and sixth counts were general, not before the passing of the 3 & 4 Vic. c. 109, but setting out any of the printings or writings charged within the borough as defined by that act, and it in the previous counts, merely stating in the former was contended, first, that the city boundaries were that the prisoner on the several days therein men- not altered for the purposes of the Court of Comtioned expressed his intention to depose the Queen mission, the terms of the act being applicable to by divers overt acts of publication, and in the latter borough courts alone, which it was argued that count expressed his intention, by the same means, court was not; and secondly, that as the Court of to levy war against her. These counts were Commission sat by virtue of a commission of the objected to for not setting out the contents of the 1st of Vic., that the jurisdiction of the court must overt acts, and that they were also bad for repug. be taken to be co-extensive with the limits as they nancy. On the first objection the court decided existed at that time. The court were of opinion that the contents of the publications charged as that even if their own opinion had been otherwise, orert acts need not be stated, but that the same that they could not set it in opposition to the solemn arguments, on the question of repugnancy, which judgment of the superior courts, in the cases of applied to the second and fourth counts, applied the Queen v. the Inhabitants of St. George, (8 Ir. to these likewise, that is, that the demurrer Law Rep. 23); Lessee Barber v. Evans, (10 Ir. should be allowed as to all the overt acts except L. Rep. 480); and that the second point was not the first.
open for argument on the record. Although this part of the demurrer was allowed, On Saturday, February the 10th, the plea in get it will be observed that it only applied to part abatement being overruled, the prisoner demurred of the counts, therefore all the first and third counts to the indictment. were good, so, likewise, were the first overt acts The indictment contained four counts. The laid in the second, fourth, fifth, and sixth counts. first two set out the printings and writings as pubThe advantage supposed to have been gained by lications, and charged that the prisoner did, on the the prisoner was this, that in the last mentioned 3d of June, publish certain printings, stating the counts no evidence of overt acts could be given intent in the first count to be " to depose," and in subsequently to the 3d of June ; but this advantage the second to “ levy war,” and that he did on the appears to us not a very substantial one, as all the 17th of June further express the same compassing publications could be given in evidence under the by publications on that day, and so on the several counts that remained untouched.
subsequent days of publication. The third and At the termination of the judgment on the fourth counts were general, not setting out the demurrer, the Attorney-General asked for final publications, and charged them as overt acts, judgment; but the court said, that was a question that the prisoner did on the 3d day of June intend of much difficulty, one upon which they did not to depose, and that intention he expressed on the then wish to give any opinion, and suggested three said 3d of June, by divers overt acts and deeds, courses which might be adopted to bring the ques- and, in order to fulfil that intention, he published on tion before the court above. First, to reserve a the 3d of June, and further to fulfil, &c. he published case for the opinion of the twelve judges, as had on the 17th of June, and so through the subsebeen the practice before the passing of the 11 quent days of publication. The fourth count & 12 Vic.c.78. Secondly, to reserve a case for the was similar, except that the intention averred was opinion of the Court of Criminal appeal, under to levy war. the provisions of that statute; and, thirdly, for The objections raised on the argument of the the Attorney-General to remove the proceedings demurrer were, that all the counts were uncertain, by certiorari.
double, and repugnant; and to the third and fourth The Attorney-General, on a subsequent day, counts it was further objected, first, that there declined to adopt any of the courses suggested, was no distinct statement of any overt act, and and pressed for final judgment. The court directed that a publication was not an overt act within the the case, on this point, to be further argued, and,' meaning of the treason-felony statute. Secondly, that
the third overt act, in each count was averred to be afford to pay for land; though in future lettings a printing and not a publication; and, lastly, in at least, in the poorer parts of Ireland—it will neither of these counts was there any averment of probably have the effect of throwing the whole a contemplated rebellion or treasonable design. weight of the poor rate—and that at its maximum The court overruled the demurrer. This indict on the proprietor, as farmers will naturally take ment, it will be observed, was not open to the this maximum rate into consideration when proobjection for repugnancy that had been made suc- posing for land, and calculate on paying only the cessfully to the preceding one.
difference between the letting value and this maxiThe prisoner pleaded, Not Guilty, and a jury mum; and landlords are not now_and probably being about to be sworn, he, through his counsel
, will not be for some time--in a position to contest challenged the array, and shewed for cause that the the point with solvent bonâ fide bidders. We do panel had been arrayed unfavourably to the pris- not object to the limit at which the tax is fixed; oner. That the majority of the jurors of the city of and we think that if by sacrificing, even perma. Dublin were Roman Catholics, whereas the jury nently, one-fourth of their incomes, proprietors panel as returned, consisted of a large preponde- could save the other three-fourths, they should
, rance of Protestants, and he offered evidence to under present circumstances, be very well satisfied the triers appointed to try the challenge, of the re- indeed. ligion of the jurors, which the court held to be inad The suggestion to exonerate improvements on missible. The triers found against the challenge. land, during seven or ten years, from taxation for The prisoner then challenged every juror whose poor rate, is also a very valuable one ; outlay will age exceeded sixty, or who resided in the county, be encouraged, and thus the quantity of employment having only a place of business within the city. given be increased ; and this, in our opinion, is a
The jury sworn to try the issue having disagreed, much more rational method of restoring the counwere finally discharged, leaving this case, already try, than by endeavouring to force men, by legislaso unprecedented in length, to be brought under the tion, to do what a regard for their own interests consideration of another jury.
should compel them.
Clearly, however, as we see these beneficial
tendencies of the plan, and highly as we value the The open expression by the Premier, a few days importance of the suggestions noticed above, we since, of his conviction that the law of settlement cannot shut our eyes to the disadvantages under had worked badly in England, and that any law which it labours, or which will follow from it, as impeding the circulation of labour would be necessary consequences. attended with very injurious consequences to Ire The most important of these consequences we land, led us to hope, that the necessity of such an apprehend to be a law of settlement for paupers
, enactment would not have been involved in the It is is quite evident that this must be a necessary proposition he was about to submit to the Com- consequence; for the only advantage expected to mittee of Inquiry into the Irish Poor Law-a pro- follow from the part of the plan which limits the position for the relief of Irish pauperism.
area of taxation, is, that proprietors will undertake The plan he has proposed, however, exhibits no the profitable employment of their poor, when they indication that any such conviction existed in the will have these only to maintain, and their protecmind of its framer; it is based on the principle tion must consist in keeping the paupers from other that, to 25 per cent. on the valuation, property divisions within their own divisions. If paupers should support its poverty—that when this limit were allowed to wander from one division to has been reached, the neighbourhood shall be taxed another, then the proprietor who gave most employ. in aid, to 10 per cent., and that when these united ment would attract most paupers, and the prosupplies have been exhaused—and not till then-prietor would be best off who exerted himself a national rate of 2per cent. shall be resorted to least. If there is any benefit to be derived from Other subsidiary provisions are suggested,-one this part of the plan, it will be by individualizing exonerating any increase in the value of property responsibility; and this must lead to a law of setresulting from expenditure of capital, from liability tlement, with all its pernicious consequences, to poor rate, for from seven to ten years; and another A second objection consists in taxing, for the exonerating lands which have lain waste for a year benefit of the county generally, those very classes from arrears of poor rate. It is compounded of which have suffered most and are least able to bear the two rival systems,—based on limited and ex- the pressure. tended areas of taxation,—and is open to many of The failure of the staple article of food, -that the objections to which these systems are exposed, great calamity which has fallen on this country-is besides to others, and serious ones, peculiarly its the great cause of Ireland's present distress
. By own. It has, however, some advantages to recom- this calamity the small holders of land, who occupy mend it, and which we shall proceed, in the first the great extent, especially of the poor districts
, place, to consider.
have been either extinguished altogether, or reduThe most important of these consists in fixing ced to the brink of ruin. Their landlords rank the maximum to which taxation can reach. This next in the scale of suffering, whilst mortgagees and will do much to remove the present objection other incumbrancers, and owners of property, not entertained by substantial parties to undertake the connected with land, have, comparatively speaking
, cultivation of land in the distressed districts ; it not suffered at all. Those three classes represent will enable landlords to calculate what rent they the whole property of the country. It is admitted should demand, and tenants what rent they could on all sides that circumstances call for measures
very different from those hitherto adopted. The down of the population, or by some other means ; country is sinking, and some great and combined that – the law providing that these waste lands effort must be made to rescue it. Who, then, are should be free from arrears of poor rate—the very called on to make this effort ? The owners of pro- best position in which they could hold untenanted perty, which has not suffered from the universal and lands would be in a waste state, as thus they would repeated failure of the national food? They, whose be in a condition to be let immediately to any resources are unimpaired, and whose energies are tenant who might offer, and which, in the meantime, unexhausted ? By no means. The struggling, the would be no incumbrance. Here, then, we have a almost ruined occupier of a few acres of land, the direct premium on idleness—an idleness, too, to be landlord whose incumbrances remain to their full indulged in, at the expense of the neighbouring diamount, but whose means of meeting his engage- visions, or at the expense of the country generally. ment are cut off by the ruin of the small farmers ; In another particular, likewise, this plan seems who, in some instances, are in a prison, and in many by no ineans satisfactory. It is proposed that no others are with difficulty keeping without its walls. rate in aid shall be called for by any electoral diviThese are the parties who are called upon to inake sion, till 5s. in the £l is first collected on itself. this exertion—these are they, on whom the govern- Now suppose--and the lıypothesis is not an extrament plan casts the onus of supporting a sinking vagant one-that some divisions will not be able to country; and yet these two classes, who are thus pay this 5s. in the £l, will the rate in aid be refused about to be crushed under this enormous and dis- in that instance ? Or suppose further, that the proportionate weight, are the sole manufacturers of union cannot pay 5s. in the £1, will the national our wealth--the sole hope of our prosperity—the rate of 6d. in the £l be refused ? Perhaps Lord moving power, without which the machine of so- John intends to pursue the course he proposes to ciety would soon cease to work. The law impo-adopt in the commencement, namely, levying the sing an income-tax in England provides that, per- national rate first, and calling for the others as sons possessing property of less than £150 a year, they may be found wanting. And, indeed, some which in Ireland would be considered a respectable such intention as this is apparently shadowed out in income-shall be protected from its operation; while his proposal of exonerating waste lands from arrears in Ireland an almost diametrically opposite rule is of poor rate. adopted, and only those who are in reality least Much reliance is placed on the new arrangement able to pay, are taxed for the benefit of the whole to be founded on the report of Commissioners for country.
“ Inquiry into the number and boundaries of Poor The two first objections we mentioned before ; Law Unions and Electoral Divisions in Ireland.” the third has the merit of being peculiarly the con- In their report, however, after pointing out the sequence of the plan of the Premier. It follows from object they have sought to obtain, viz., the placing that part of it, which proposes, that property which the country, and each part of it, in a position which has lain waste for a year, shall be exonerated from shall best combine the interest of the labouring the arrears of poor rate. Here is a most convenient class with that of the employers of labour," and loop hole contrived for the escape of idle or indolent that it “ was to be found in such a change of bounproprietors, and one which, if passed into law, we dary, and, in many cases, in such a reduction of have no doubt will be taken advantage of. Pro- area of the present electoral divisions, as shall give perties in the distressed parts of Ireland are at this every practicable advantage to the zealous immoment, to a great extent, waste; any substantial prover, without unduly restricting the field of the tenants who survived the horrors of 1846 and 1847 labourer's employment," the Commissioners have, having gone away on the re-appearance of the after all the attention they have been able to bestow blight in 1848—for these waste tracts, whenever on the subject, and the peculiar means of informathe former tenants were valued at under £4 annu- tion which they possessed, only been able to report ally in the rate books—the proprietors have been that they “hoped to find it practicable to have in held liable, and have been in many instances com- each district such an amount of labour as was pelled to pay poor rates. What will be their con- necessary for its improvement, having regard to duct under the altered circumstances of their posi- the peculiar capabilities it might possess, without tion? Will they raise or borrow money, and by making the divisions so large as to prevent the employing the paupers endeavour to render these influence of each proprietor and occupier from waste tracts productive ? Not at all; for then they being usefully exerted, as well by the force of would cease to be waste tracts, and the proprietors example, with its valuable operation on public would be liable to poor rate for them. What, then, opinion, as by the more direct means of labour will be their course? They will not only not cul- afforded ; and this we had every reason to suptivate, or attempt to cultivate these waste lands, but pose could be accomplished with such regard to will render waste every acre, to the rate on which the boundaries of property, as at least to prevent they would otherwise be liable. They will argue, any part of an estate from being severed from that it will be better that their properties should be the other parts, unless they were outlying or unproductive, than that they should be ruined by, detached." perhaps, a fruitless exertion to provide employment That these hopes must have been disappointed for their resident poor, from any contribution to in very many cases, is the necessary result of the whose support they will be exonerated by merely manner in which the property of one proprietor is letting their lands lie waste; that they will lie hye found scattered in small portions over very wide till the storm blows over, either by the starving districts in many parts of the country. We know
one district in the Ballina union which hitherto first had and obtained, such consent may by leave of the court was comprised in two electoral divisions, and which be given subsequently, so as to render valid the proceedings the Commissioners propose to re-arrange into under such petition. thirteen ; and, minute as are these subdivisions, and a judgment affects lands in Ireland, and when the person
72. · And wbereas doubts are entertained whether, when anxious as the Commissioners were to "prevent entitled to such judgment is willing to release a portion of any part of an estate from being severed from the such lands in order to the sale thereof, or otherwise, he other parts,” one proprietor has property in twelve can grant such release without nullifying the effect of a. out of these thirteen divisions, and among the lidity of such judgment upon the residue thereof, or any thirteen divisions there is not one which does not to such judgment : and whereas it is expedient that such
other property which it is intended should remain subject embrace the properties of five, or six, or more, doubts be removed :' be it enacted, that the release of any different proprietors. In fact there is no arrange- portion of lands in Ireland from any judgment shall not ment, save that of throwing the same property, operate or be construed to extend or operate so as to nullify though scattered over a wide space, into one or in any manner to affect the validity and force of such jadą. electoral division for itself—and which the ment as regards the residue of such lands, or any other pros Commissioners regard as impracticable_by which perty not specially released from such judgment, but thet this property, or the other properties in these divi- property, nothwithstanding such release, in like manner
such judgment shall continue to affect such residue or other sions, could be more satisfactorily condensed. and with the like powers to enforce payment of interest and
In fine, the plan has the merit of pleasing no- principal, and to all intents and purposes, as if such deed of body, though it apparently was intended to please release had not been executed. all. For ourselves, we confidently expect that
73. That in the mouth of February in every year, or, if Lord John's sixpenny national rate will rapidly the next meeting of parliament, a return shall be laid before
parliament be not sitting, then within fourteen days after increase, and, as Aaron's rod swallowed up the both houses of parliament, showing the total amount or rods of the Egyptian magicians, so that it will quantity in statute acres of all lands sold under the provision swallow up in the end the union rate and the elec- of this act during the year ending the thirty-first day of De. toral rate, leaving no trace of that part of his plan cember then last past, together with a statement of the tota based on individualizing responsibility, but the per- shown in the proceedings, the total amount of incumbran. nicious consequences of the law of settlement.
ces which affected such lands at the time of the application for the sale thereof respectively under this act, the total
amount of purchase money for the same, together with the (Continued from p. 120.)
total amount of all such law costs incurred as shall have been into execution a contract for sale or for a sale shall have been the proceeds of such sales under the order of the court
. 69. That when any petition for confirming and carrying paid out of such purchase money, and of all other charges presented without the requisite consent, such consent may by leave of the court be given subsequently, so as to render
74. That in citing this act in other acts, and in legal invalid the proceedings under such petition; and that where struments, it shall be sufficient to use the expression « The any such petition shall be invalid for want of such consent
Irish Incumbered Estates Act." the court may make such order against the person who shall
75. That this act shall, except so far as the special provihave presented the same relative to the costs of any other sions
of the same otherwise require, extend only to Ireland
, person of any proceedings had under such petition as the and may be amended, altered, or repealed by any act to be court shall think fit.
passed in this session of parliament. 70. That any incumbrancer not being the first incumbran,
CAP. XLIX. cer on any land or on any lease of land in Ireland, who shall An Act for regulating the sale of beer and other liquors on be desirous of exercising the powers given to a first incum the Lord's day.
[14th August, 1818] brancer under this act, and for that purpose shall be willing to redeem the prior incumbrance, or all the prior incum
Cap. L. brances if more than one, may apply by petition in a sum-An Act to empower the Commissioners of Her Majesty's mary way to the court for liberty so to redeem such prior woods to remove the colonnade in the Regent's Quadrant, incumbrance or incumbrances; and the court, upon such
[14th August, 1842.) petition, may make such order and give such directions in all respects as might have been made or given in a suit by An Act to provide additional funds for loans for drainage
CAP. LI. such petitioning incumbrancer for redemption of such prior incumbrance or incumbrances; and in case the amount which
and other works of public utility in Ireland. shall be owing to any incumbrancer whose incumbrance shall
(14th August, 1848.] be sought to be redeemed shall not be admitted or agreed Sec. 1. Treasury may cause to be issued a further sum not upon, the court, upon payment into court by the petitioner
exceeding 915,0001. to the commissioners of public of the money due on such incumbrance, may order that the
works in Ireland. Sums issued not to exceed the petitioner shall, for the purposes of all proceedings in court
sum actually paid into the Exchequer under preci under this act, and for the purposes of sales without the or
sions of 9 & 10 Vict. cc. I, 107, and 10 g 1, der of the court under this act, stand in the place of the
Vict. c. 87. owner of such incumbrance, without prejudice to the rights
2. Sums issued to be applied for loans for completion of of the petitioner and of the incumbrancer whom he shall seek
public works commenced under 9 & 10 Vict
. c. li to redeem, upon taking the account of the incumbrance : 107., and for promotion of drainage and other provided, that it shall not be lawful upon any such petition
works of public utility. to question the validity or title of any such prior incum 3. Powers, 8c. of 10 g ii Vict. c. 106, to extend to brance.
this act. 71. That no petition shall be presented for confirming and 4. Power to treasury to postpone commencement of paz. carrying into execution a contract for sale or for a sale by
ment of annuities under 10 & 11 Vict. c. 87. order of the court under this act by any assignee of any
5. Power to treasury to convert annuities into others of bankrupt or insolvent debtor, without the consent thereto
longer or shorter duration of equal value. of the major part in number and value of the creditors as 6. If Grand Jury shall not make application at Sum. sembled at a meeting duly convened for that purpose first
mer Assizes for conversion of annuities, clerk of had and obtained: provided that where any such petition
the peace may call special sessions, at which jusshall have been presented without such consent having been.
tices may make application.