Vict. c. 12. The first section of this Act repeals all the provisions of the Act 36 Geo. III. made perpetual by the 57 Geo. III. ; and all the provisions of the 57th in relation thereto, save those which it enumerates, and which are all before set forth in the recital of the 36 Geo. III. Sect. 2 of that Act declares and enacts, that such of the said recited provisions made perpetual by the 57 Geo. III. as are not thereby repealed, shall extend to and be in force in Ireland. What the recited provisions of the 36 Geo. III. not thereby repealed, are, there is not the least difficulty in ascertaining. They are such as relate-I copy the very words-to the compassing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maiming, wounding, imprisonment, or restraint of the person of the heirs or successors of King George III., and the expressing, uttering, and declaring such compassings therein.' These are the recited provisions, and the only recited provisions of the 36 Geo. III. which the 57th makes perpetual, and of necessity they are the only provisions which by sect. 2 are made law in Ireland. Sect. 4 of 57 Geo. III. is not, and could not be amongst them; so that it is impossible to say that it became the law, or of force, in Ireland. But it has been argued, that although sect. 2 does not in terms include or refer to sect. 4 of 57 Geo. III., yet that that section is not repealed by sect. 1 of 11 Vict., but is included in the exception, and is, therefore, still in force, and available to persons that may be indicted in England; and from hence it is inferred that it is also in force in Ireland. But no such inference can, in my opinion, be made, for, giving to the

exception the effect contended for, and assuming that sect. 4 of the 57 Geo. III. is included in the exception, the consequence is not that it is to be in force in Ireland; but the consequence is, that the law in that respect is to remain unchanged, and that sect. 4 must continue to be, as it had been, the law of England. Any other construction would be repugnant to the language and intention of the Legislature; while this, adhering to the words of the Act, continues the course of the proceedings in both countries as it had been theretofore regulated by the several statutes which have been so often referred to. This closes the observations I have to make on the second of those questions.

'But before I leave it, it is necessary to notice the argument according to the construction which has been urged by the counsel for plaintiffs in error. They contend that if sect. 4 of the 57 Geo. III. be not held to extend to Ireland, a person indicted here under 11 Vict. c. 12, for any of the treasons created by 36 Geo. III.-for example, the treason of compassing to maim or wound--could not in his defence have any benefit from the Irish statutes, and must be sentenced to undergo the barbarous punishment of treason at the common law. I cannot adopt this view of the case as affording grounds for questioning the conclusion, which, I think, is the plain and just result of such a great number of considerations. But though I think, from the terms in which the 5 Geo. III. c. 21, is expressed, there might be some question whether a person so indicted should have the benefit of its provisions, I think he would at all events be entitled to the benefit of the Act 1 and 2 Geo. IV. ; and I

further think that whatever may have been the reason for the introduction into the Act 57 Geo. III. of that of the 54th, the plain meaning of the 54 Geo. III. was to substitute the sentence prescribed in all cases in which, according to the existing law, the sentence for high treason was, or would be, that which it was the object of the statute to abolish. I now come to the position contended for by the Crown, and I think successfully, that even if a person indicted in Ireland under the 11 Vict. c. 12, could be entitled to the benefit of the English statutes, the plaintiffs in error cannot be so, as they are not so indicted -the indictments not containing any overt act of personal violence, either actual or intended. I have already stated that 36 Geo. III. c. 7, appears to me to refer to two distinct classes of treasons-the first class having for its object the protection of the person of the sovereign, the other the preservation of his authority and government. I think that these two classes are unequivocally recognised and distinguished by the Act 11 Vict. c. 12. After a full recital of all the treasons made or declared by the 36 Geo. III., the preamble states that its object is to repeal such of those provisions, so recited, as do not relate to offences against the person of the sovereign. This is a plain declaration that some of them do, and that others do not, relate to such offences-that some are in their nature personal, and others not so. The enactments that follow are in conformity with, and in exact execution of, the preamble. Sect. 1 preserves and continues the first class, by excepting it from the effect of the general repeal; and that every one of the offences so specified and excepted is, in VOL. XCI.

strictness and in the common acceptation of the words, an offence against the person, whether by violence actual or intended. It is most important to observe, that the words which describe the treason of compassing the death of the sovereign are not those used in the act of Edw. III., but are the compassing the death or destruction of the person; for these latter words at the conclusion of the enactment must be made to apply to every antecedent member of it. Sect. 3 of the Act makes all the offences comprised in the second or repealed class, felonies, and amongst them there is not one which can be properly termed an offence against the person. I therefore have come to the conclusion, that though now, as before the recent Act, the charge of compassing the death of the sovereign may be sustained under the 25 Edw. III., by overt acts directed against her imperial authority, as well as against her person, yet the 11 Vict. is confined to the latter species of treason; and as this indictment is framed, it cannot be considered as founded on its provisions, so as to let in these pleas, if in any view of these statutes the matter of them could have been made available to the plaintiffs in error. I have already, however, assigned my reasons for thinking that it could not. The result is, for these various grounds, and the reasons which I have stated, that I consider the demurrer to these pleas to have been properly allowed.

The next error assigned is, the rejection of the peremptory challenge of a juror, twenty having been already challenged peremptorily. The counsel for the Crown insist that the right is limited to twenty by 9 Geo. IV. c. 54, s. 9. The words of that Act are-"That 2 B

no person arraigned for treason, murder, or for other felony, shall be admitted so to challenge, or to challenge more than twenty peremptorily." On the other hand, the counsel for the plaintiffs in error contend, that the words "or for other felony" show that the section is conversant with felonies only, and that, therefore, we must read and understand the word "treason" as intended to signify the felony of petit treason. If this were the intention of the Legislature, the use of the word "treason" would have been superfluous, for, according to this argument, petit treason as a felony would be included under the words "or for other felony." But it besides appears to me, that the word "treason" is to be taken in its common, which is also its legal, sense as defined by Blackstone and other writers. Treason is the general appellation made use of by the law to denote, not only offences against the king and his government, but also that accumulation of guilt which arises whenever a superior reposes confidence in a subject or in an inferior. In Coke's Littleton, 133 B, it is said, if any do compass the death of the Queen, and declare it by overt act, the very intent is treason. I have looked through a great number of statutes, in order to ascertain the sense in which the word "treason" is used and understood; and I have found that the word without addition, and standing by itself, has uniformly been used to signify high treason. I have not discovered one in which it meant petit treason where that term has not been added to it. In many of the Acts which I have examined, treason and high treason are used as convertible terms, for example, in 10

Hen. VII. c. 13; 13 Hen. VIII. c. 1; 28 Hen. VIII. c. 7; 33 Hen. VIII. 1, c. 1. The Act of 3 and 4 Phil. and Mary, c. 11, is intituled "An Act whereby certain Offences are made Treason;" and so is the title of 2 Eliz. c. 1; and 11 Jac. I., relating to Admiralty commissions, enacts, that all treasons and felonies shall be tried as therein. The 10 Car. I., ses. 2, c. 18, enacts that the justices before whom any party shall be brought for any treason, murder, or manslaughter, shall take examinations. And the 10 & 11 Car. I. c. 9, on this very subject, is intituled "An Act for limiting Peremptory Challenges in cases of Treason and Felony." There are various other statutes in which the word "treason" is used to signify high treason. The Act of Will. III., relating to the observance of the Sabbath, provides that warrants for treason may be executed on the Sunday; and 33 Geo. III. c. 45, is an Act for the trial of treasons committed out of the king's dominions. The very title of one of the Acts referred to, that of Will. III., is for the regulating of trials in cases of treason. There is a recent Act, the 1 & 2 Geo. IV. c. 33, which enacts, that when on the trial of any person charged with treason, murder, or any other offence, it shall appear he was insane when the crime was committed, that certain proceedings shall take place. The very Act before us, 11 Vict. c. 12, in the 7th section uses the word "treason" as describing high treason, no less than three times; and the 6th section quotes the statute of Edw. III., and uses the same words. But if a more certain test of the exposition of this word was required, it is supplied by other sections of this very Act, in which its meaning

is the subject of inquiry. In the 8th and 11th sections, the word "treason" is not only used in its largest sense, but as contradis tinguished from "felony." There can be no reason for giving it in the 9th and the intervening sections a construction not only narrower than its natural import, and different from that in which it is used in such a vast number of statutes, but also at variance with the sense in which it is used in other parts of the very same statute. I have only further to remark, that the Act of 9 Geo. IV. c. 54, did not introduce for the first time the restriction of the right of peremptory challenge. That restriction had existed from the time of Charles I., and was enacted by one of the very statutes to which I have already referred. So far, therefore, as regards that objection, I think there is no ground

for it.

"The last error assigned is in the allocutus that it was demanded of the prisoner whether he had anything to say why the Court ought not on the premises and verdict to proceed to judgment? It is contended that it should have added, "to judgment of death," or "to judgment and execution;" and several precedents have been cited where these forms have been used; but none have been cited in which the judgment in the present form has been held to be void. The prisoner must have an opportunity afforded him by the Court, either of moving in arrest of judgment or pleading a pardon, but when he is demanded to show cause why judgment should not be pronounced, he has that opportunity fully afforded to him. The demand made is the plainest intimation that, unless he can allege matter of law or fact as

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If,

cause, such judgment as the Court has power and is bound to pronounce will be pronounced. The judgment here is that which is prescribed by the 54 Geo. III., which does not use the word " execution," and uses the word "sentence" as synonymous with " "judgment.' I cannot attribute, as the counsel for the plaintiffs in error contended we should, any technical meaning which makes the use of the word 'execution" absolutely indispensable. It would neither add to the sense nor explain the meaning of the word "judgment;" in that word are comprehended all the details that are to constitute the punishment, and there is no imaginable end to be answered by the enumeration of them. however, precedent and authority be required to sustain the present proceeding, I can refer to some. In 4 Bla. c. 29, he says, "The verdict being found, the prisoner is asked by the Court why judgment should not be awarded against him?" In Comyn's Digest, tit. Indictment, N., the form stated to be proper is, "Si quid dicere habeat quare judicium non, &c. In the case of Rex v. Royce (4 Burr. 2086), the question was, why judgment should not be pronounced upon him, and sentence awarded against him? Now, when "sentence" and "judgment" have the very same meaning, as the statute here shows they have, this is an authority against the position which it was cited to establish. Two of the other cases cited for the plaintiffs in error, viz., Rex v. Stack (Comb. 144), and Betscomb's case (3 Mod. 265), were cases in which there was no allocutus at all. In the former case, the very error assigned was, that the prisoner was not asked why judgment should not be

given against him. There is, besides, the authority of the highest Court in this kingdom, that of the House of Lords, in the Duchess of Kingston's case, for the very form which has been adopted here.

"For these several reasons, I think this, as well as the other errors assigned, should be disallowed."

Resolved to carry their contest with the Government to the utter most, the prisoners, remembering, perhaps, the fortunate experiment of Mr. O'Connell, appealed to the last and supreme tribunal of the empire, the House of Lords.

The appeal was heard before the House of Lords on the 9th and 10th of May, the Lord Chancellor presiding.

The Peers were assisted by the Judges-the Lord Chief Justice of the Common Pleas being seated on the right hand of the Lord Chancellor, and on his left the Lord Chief Baron; at tables on both sides of the woolsack were Baron Parke, Baron Rolfe, Mr. Justice Wightman, Mr. Justice Patteson, Mr. Justice Williams, Mr. Justice Cresswell, and Mr. Justice Erle.

The Counsel for the Crown were the Attorney-General, the Attorney-General for Ireland, Mr. Welsby, and Mr. Peacock. For the plaintiffs in error-Sir F. Kelly, Mr. Napier, M.P., Mr. Seager, Recorder of Wigan, Mr. M Mahon, Sir C. O'Loghlen, and Mr. O'Callaghan, of the Irish bar. The counsel for the plaintiffs in error having been heard, the Attorney-General was about to proceed with the arguments on the part of the Crown, when the Lord Chancellor informed the Peers that he had received an intimation from the Judges that they were unani

mously of opinion that the error assigned could not be maintained, and submitted that, therefore, it would be of no advantage that the arguments should proceed.

A short interval elapsed, during which the Judges retired to consider their verdict.

The Lord Chief Justice of the Common Pleas, advancing to the woolsack, read the decision of his learned brethren to the following effect:-The arguments in the case of William Smith O'Brien and Terence Bellew McManus, plaintiffs in error against the Queen, having been referred to the Judges, he was authorized by them to state that it was their unanimous opinion the errors assigned had not been maintained by the arguments urged at the bar. With respect to the first objection, that the allegation on the record that the Judges who conducted the commission were nominated and appointed to execute the commission with others, the Judges thought the terms of their authority were precise, and that the words "nominated and appointed" were not in any respect rendered uncertain or ambiguous by the subsequent allegation that the commission by which they acted was directed" to them and others." The second objection involved two points-first, that the plaintiffs in error were, with respect to the sixth count of the indictment, entitled to a copy of the jury panel and a list of the witnesses ten days before trial, under the provisions of 7 & 8 William III. and 7th of Anne, c. 7; second, that if they were so entitled, the matter was one which could be properly urged by plea. With respect to the first, the Judges were of opinion that the plaintiffs in error were not entitled, and therefore