We may exult that George the third is on The judges stand (at least they may stand), the throne; and that his gracious dispositions in the breach; and ought manfully to mainare represented by lord Hardwicke; but we tain their privileges and independence: less are bound to maintain the checks of our well-for their own sake, than for that of the conguarded constitution, against evil times, and stitution. Nor has any thing happened arbitrary rulers. lately in this country, which seems calcuWe are therefore not to overlook what ap-lated to warrant their slumbering on their pears upon the record: namely, that the pre- posts. Therefore, in the moment in which we sent is a sort of state prosecution; for an al- find a judge the object of this proceeding, it leged libel on the executive government of illustrates the abuses to which, ill construed, the this country. statute, at some future period, might give rise. We are not to forget, that what is contended for by the servants of the crown is, that the Habeas Corpus act shall be ineffectual to procure the enlargement of one, who has incurred their displeasure, by the supposed commission of one of the lowest bailable offences: by the publication of what (having no judicial knowledge of its contents) we want the means of pronouncing to be untrue. We should remember that it is of emphatic consequence to the public, that the independence of the bench should exist, not merely in theory, but substantially in practice; and that the Habeas Corpus act (which counsel for the crown by a side wind would overturn), is a barrier erected by the patriotism of our ancestors, against the encroachments of the crown: encroachments as likely to be made, if at all attempted, upon the judges of the land (those impediments to despotic rule), as upon any other order in the state. ever have to investigate hereafter. If the judges reject my construction of this act, I shall bow to their interpretation, as the true one :-and my deference for parliament will prevent me from pronouncing, that so expounded, the statute is oppressive. We, the legitimate expounders of the ler terra, and especially called on to give efficacy to those laws, which form an entrenchment round the liberties of our country,-are bound On the whole, I consider this as perhaps to ask ourselves, what motive the servants of the most vital question which I have been the crown might in arbitrary periods have, for ever called on to discuss. A more important ignominiously sending as a prisoner, to another one, than I ever expected to find submitted to country, a man placed in one of the most dig-me: a more critical one, than I hope I shall nified situations amongst the magistracy, whilst as yet his innocence of any crime must be presumed; and when the suffering him to remain at home, so far from producing a failure of justice, would subject him to the jurisdictions of the country, where his offence, if any, was committed: where the merits of his case could be most fairly tried :—where his defence could be most advantageously made; and his innocence, if he were innocent, most easily made appear-where amongst friends he could find security, to exempt him from a prison-where, if acquitted he would be unpunished;-and if convicted, his punishment would be proportionate to his offence. With what view do I make this observation?-Shall the judges be less responsible to justice for their conduct, than the most obscure individual of the country?-God forbid !-I am rather disposed to maintain the opposite opinion. But it is to be recollected, that in our frame of government, the judicial order forms a distinct, and sort of barrier estate: and that it is a principle of the first importance to our freedom, that this body should be protected from all oppressive control, and jealously removed from all seductive influence, which the executive might be tempted to exert. But, while the question is yet open, I may avow my opinion, that the provisions, which a construction different from mine must introduce, would tend to shake our liberties and constitution to their foundations. I admit that they might equally affect the liberties of England. But the proud and enlightened magistrates of that country will, I am persuaded, assert theirs with sufficient boldness. I for my part confess, that my first anxiety is for the honour, the freedom, and the welfare of my native land. Indeed the silence with which the event of this arrest has been received, might lead one to infer that I have been exaggerating its importance; and that the transaction is less momentous, than I conceive, or represent it. But the test afforded by such silence might, in times less fortunate than ours, become highly dangerous and fallacious and therefore it is unsafe to resort to it at all. This is probably an allusion to the proceedings instituted in the House of Lords by the marquis of Abercorn against Mr. Justice Fox, which were in progress at the time when this argument was delivered. A very full account of the different proceedings in the case of judge Fox will be found in Hansard's Parliamentary Debates, Vols. 2 to 7 inclusive. See also 2 Plowden's Hist. of Ireland from the Union to 1910, pp. 11, 56, 158, 373. abuses; nor culpable for having unwittingly contributed to produce them, by being party to a league, from which they need not have arisen. We cannot have forgotten how profound the silence was, which the Moniteur observed on a far different occasion: dissimilar to what, while our laws are rightly construed, can ever disgrace or terrify this country. I mean the apprehension of the late duke d'Enghien: when he was hurried from a foreign territory into that of France, by the persons exercising the powers of government there, to be tried by a law with which he was unacquainted,-for a crime alleged to have been committed in a country where he had not been. The silence there may have originated in terror or corruption. But I have already protested against the sophistry of deriving conclusions from the virtues of our sovereign, the merits of the viceroy, or circumstances of the day. We therefore should, on the contrary, remember, that in this country like causes may produce the like effects; as our history shows them to have done in evil days; which might recur. If this were ever hereafter to be the case, would not such frightful stillness supply an argument, more impressive and eloquent than words could frame, to prove how alarmingly unconstitutional an occurrence must be, of which the press did not venture to take notice? I know that some will be, or affect to be, surprised by the tone which I have thought it proper to assume. There may indeed be a tame, and creeping, and tradesman-like mode of administering the law conceived; but it is not one which meets my ideas of the duties or station of a judge. Laws are but means; and though it be not our province to legislate, but to interpret, yet should we not forget, or fail to further, the end and object of those laws, which we are called upon to construe; namely, the preservation of public morals; the promotion of social order; and the establishment of good government, of our liberties, and of the constitution. Nor would it be possible that any laws, whose direct and obvious tendency was, to overwhelm this latter, could flow from the only source, which should give them force and authenticity; viz. from the true principles and spirit of the con stitution. Therefore I repeat, that where the words of a statute are ambiguous, I shall always hold that so to construe them as to work oppression, is to interpret them falsely. Besides, the statute which we are expounding, may be considered as in some degree consequential to the Union; a measure which (let me without egotism, be permitted to recollect that), while a member of the legislature, I supported. If that arrangement, now the law of the land, and as such entitled to our (and especially to my) respect, should, as may happen to the best measures, be abused, still, so long as I was not an accomplice in them, I should not hold myself responsible for those VOL. XXIX. - But the united parliament never will enact what, rightly construed, can be subversive of Irish freedom. How therefore can abuses in the statute law spring up, unless through misinterpretations, proceeding from the bench? Or how could I pretend to an unblemished character or tranquil mind, if I were advisedly to lend my hand to a perversion of that compact, which I fondly considered as ensuring the happiness of Ireland,-and in the formation of which I therefore actively concurred? How indeed could I look for pardon from my God, if by (what strikes me as) the forced construction of a corollary statute, I should effect the degradation and enslavement of my country? No. Let us leave the Habeas Corpus act untouched: the Union on the liberal basis, on which, when carried, it was placed: the constitution in the state, in which our brave ancestors bequeathed it. We are not likely to render our liberties more secure, by alteration. To the rash innovator who attempted it, I should be disposed to exclaim, in the ominous and emphatic language of the Roman Centurion, " signifer statue signum: HIC MA NEBIMUS OPTIME. These were the observations which I han to make. In entering so far upon the subject to which they apply, I may have wearied my hearers; but I have satisfied my conscience. Mr. Baron George.-In this case. I am of opinion with baron Maclelland. How the notion now before the Court shall be ruled seems to be a matter of great concern to the defendant, and in its discussion many great questions have been introduced: on that account I came this day prepared to deliver my sentiments in some method; but the line of argument I had proposed seems ill-suited to this late hour, I shall therefore offer but very few arguments: I shall pass over the return that has been made to this writ, and the se- . veral English acts from which that of the 44th of the King is taken, by saying, that I concur in the observations baron Maclelland has made upon them. We must observe that the legislature studies to avoid all ambiguity in wording statutes. which authorize arrests. Acts which authorise magistrates and constables to commit, or to arrest, do in general show them their duty in plain terms, and so furnish such as intend to act well with an explicit and certain justification; but any statute calling on peace officers to act, and yet leaving it doubtful to them and to others whether they had any authority would be a reproach to legislation. The counsel for the defendant have argued that the act of the 44th of the King is of this last description, for after denying to it the 2 A Case of the Hon. Mr. Justice Johnson extent which it expresses to have, those But much of the weight of the argument This act of the 44th of the King is, as far as the case before us is concerned, a transcript of the 13th of Geo. 3rd; and in my mind the apprehensions here so well expressed for the liberties of the people and of the press, by the possible abuses of this law, lose much of their alarm when it is known that the same provisions in force for thirty years and more, between England and Scotland, have not as yet produced any inconvenience to either of those countries. When the legislatures of the two countries were united, it became necessary that a law similar to that which had till then been in force between England and Scotland should be adopted between Great Britain and Ireland. It seems an obvious and a necessary policy to make every man throughout the united kingdom amenable for any offence against the law of any part of it; and therefore going against the express words of this statute would also be going against its plain intent. It is argued, that had this act been [356 designed to extend to bailable cases, a power to take bail in the country where the warrant perhaps, authority to admit to bail has been was to be endorsed would be given by it; but, admitted on far different grounds. By the statute each magistrate is empowered to bail district as are bailable. The magistrate is for such offences against the laws of his own supposed to know what offences are bailable may be bailable by the laws of other counwithin his proper district: How far offences tries he knows not; and it might seem to be unless competent knowledge was to accomrash and unreasonable to give judicial power the duty of such an office, and should be pany it; besides, if foreign magistrates knew thought to abuse it wantonly and oppressively, evil without remedy; the Court, whose imthe law would be imperfect that left such an mediate officer he was, having no record before it, or knowledge of the merits, could not at a foreign tribunal. The difficulties of estreating, levying, and applying the money judge of his conduct; he must answer, if at all, forfeited, by recognizance of bail, in such cases have been mentioned. Thus we see what various and voluminous systems of law must arise, had authority to bail been given. requiring him to attend there for trial, has been treated as a wanton and an unconstituTransmitting the defendant to England, or tional severity; but it appears by the warrant and affidavits now before us, that the libel a paper of general circulation, which made its first appearance in London. That such imputed to him was printed and published in offence may be indicted here also, I doubt not. The injury done by a printed libel may be inflicted in many places; and no doubt a places: and if this be so, with which party does the choice of a venue rest?-with the prosecution may be maintained in any of those sufferer or with the person accused? The persons here charged to be libelled, highly as set as high a value on that in England. Besides, they appear to be persons holding they value the public opinion in Ireland, may highly dignified offices, and may prefer to have the issue on this indictment tried, as near as possible to the seat and observation of that legislature to which they are responwitnesses the defendant, no doubt, labours under; but a change of venue might cast this sible. The want of compulsory process for on the prosecutors. can imperfections have been imputed, it must be "a competent authority, for a crime against "the laws of England or Scotland, shall For these reasons, with many better already given by baron Maclelland, I concur in opinion with him. escape, go into, or reside, or be in Ireland; "the warrant shall be endorsed by a magisLord Chief Baron.-This case has been so "trate, of the place into which he has escaped fully and ably discussed as well on the one" or gone, or where he resides, or exists, and side as on the other, that very little remains" under the authority of that warrant, he shall to be said by him who comes last; and to say "be carried to the country from which it isany thing at all requires no small degree of " sued, and there dealt with, as if he had strength of mind, for before I can apply my- "been there apprehended." self to the subject, I must disengage myself from the effects of that fascinating eloquence which still vibrates upon my ear, has touched, and still acts upon the finest feelings of my heart, and which has renewed some of the pleasantest recollections of my life. And I am not only overpowered by the eloquence which we have heard at the bar; I must also try to deliver myself from the meshes of that net, in which the ingenuity and talents of my brother Smith have involved me; and here I am glad to observe, that though some apprehensions seem to be entertained by him, for the independence of the Irish bench, it is not likely to suffer in its reputation for ability he alone would be sufficient to avert that danger. But I confess that he has not convinced me; either the razor is too keen, or the block too coarse, for me to feel those impressions which his arguments have probably made upon men of finer understandings, and less debilitated constitutions. This question has been greatly magnified by the course which has been taken; one would be led to believe, that the respectable defendant was now at the bar to be tried, upon the charge made against him; but we are not called upon to pronounce either on his guilt or innocencethat is not the question-we are bound until a verdict has been given to consider him as innocent, but we are not to give that verdict. The question before us is, whether a warrant has been granted against him: that appears upon the face of the return; and then all we have to inquire is, whether the Irish justice was warranted in endorsing the warrant of the Chief Justice of England. In my opinion the act is imperative upon him; he had neither the means nor the right to inquire into the guilt or innocence of the party, or into the exility or enormity of the guilt, if any existed, -nor could he inquire, whether the warrant was granted against a person escaping or going into the country in which he receives the warrant; when he sees the warrant, he is bound by law to endorse it. The question before us then merely amounts to this-is the prisoner in custody under a warrant issued by a competent authority in England, and endorsed by a magistrate of competent authority in Ireland? If we take the fourth section of the act 44th Geo. 3, c. 92, and strip it of the tautology into which the legislature has fallen, we shall find the words of the act to be nearly these: "If any person or persons ❤against whom a warrant shall be issued by I seems to me to be impossible to create doubts upon the construction of this clause, without the exercise of that legal subtlety which can turn the plainest words into ambiguity: the enacting words can bear no other construction to any plain mind. Moliere was said to read his comedies to an old woman, as to a person who would best comprehend their obvious force and meaning; and I cannot doubt, that if this act were read to any old woman, she would understand its provisions precisely as I have done. What then is the objection ?-that there is a particular preamble to the enacting clause, which is to receive a different construction from the general preamble, and is to control the generality of the enacting clause, and to confine it to the case of escape; but this position I cannot admit to be law-the enacting clause cannot be controlled by the preamble, unless when the enacting clause refers expressly to the preamble, and here there is no such reference. It was an argument of this kind which excited the indignation of lord Cowper, who urged, that upon the construction of the Coventry act, it might with equal force be argued, that inasmuch as it is recited in the preamble to that act, that the cause of passing it, was the slitting of sir J. Coventry's nose; that therefore, the nose only was intended to be protected, and that all the other parts and features of the human body might be maimed and disfigured with impunity; for, said an ingenious barrister, the nose only is mentioned in the preamble. But another objection is raised-the statute gives no power of bailing, and therefore it is said, cannot extend to bailable cases. I deny that such a power is withheld by the law; for its very concluding words are, that upon his arrival in the nearest county in England, the person arrested shall be brought before a magistrate, to be dealt with as if arrested there; that is," shall be bailed, if the charge be bailable,"-if not, shall be transmitted in custody to the place where the offence is charged to have been committed. It is said, that the preamble of the third section applies also to the fourth part, which uses the words "felons and other malefactors;" but the same words are used in the 13th Geo. 3rd, which clearly extends to misdemeanors; for it directs, that when the person shall be brought from Scotland into England, he shall be taken before a justice, who shall proceed against him, as he might have done by the 24th Geo. 2nd, which regulates the process between county and county, and provides for the manner of giving bail; from whence I infer, that, notwithstanding the arguments at the bar, the word " malefactors" includes persons charged with bailable offences. it had been the law between England and Scotland for above thirty years; and when Ireland came to stand in the same relation to those countries as they bore to each other, it was but just to assimilate the proceedings in the three countries. No such hardships as those suggested, however, arise on the 13th Geo. Srd; nor has the propriety of that law ever been controverted. As to the opinion, that this act operates as a repeal of the Habeas Corpus act, if it do so, I cannot help it, but I do not think it does; at most, it does but suspend it while a prisoner is in transitu from one country to the other: and as to the hardship, if it exist, it is common to the whole empire. The act is an act of fair reciprocity; there is as much hardship in bringing an Eng lishman, without bail, from the Orkneys to the first northern county in England, or a Scotsman from the Land's-end in Cornwall to the first Scottish county, as in bringing an Irishman from Dublin to Holyhead. The object of the 13th Geo. Srd was, to put the criminal process in England and Scotland upon the same footing as it stood between county and county in England by the 24th Geo. 2nd; the 3rd and 4th clauses of the act under discussion are almost precisely the same as the 13th Geo. 3rd, and their object is, to put the process in Great Britain and Ireland upon the same footing as between county and county in England. It is said, that monstrous hardships will follow; and I admit, some curious evils have been pointed out; I am not answerable for them--I am not a law-makerI am only a law-teller. If I were to speak in a legislative capacity, I might perhaps say, that I was convinced that such a law ought I not to have been made without farther provisions; but sitting where I do, and finding the law so made, I must act under its direc-I tions. Besides, all the consequences which have been spoken of with respect to Ireland, will follow with respect to England and Scotland; and, if the people of England have been less tender of the rights of our people than they ought, this act puts it completely in our power to be even with them. If they are alive to the liberties of the country, we are not less so. No man who has heard the display of eloquence and ability which came from the bench this day, can suppose that we are less so: and I will not yield, even to my learned and eloquent brother, in being as feelingly alive to true constitutional liberty, as he or any man. But if the people of England were so alive to the feelings of liberty, how has it happened that they have not, for thirty-two years, repaired, as between England and Scotland, the very mischief which is now said to exist between Great Britain and Ireland? And this is a sufficient answer to the hints thrown out, that this law was framed for any particular purpose; it could not have been so intended: From the weak state of my health, I did not think, when I began to deliver my opinion, that should have been able to hold out so long; but I must, in mercy to myself, nay, and my audience, conclude;--and, if I have been com pelled to omit any of the reasons which have contributed to form my judgment, I trust I shall stand excused, the more especially, as I feel my opinion to be sustained by that of the court of King's-bench, and of two out of three of my brethren. The defendant subsequently obtained a writ of Habeas Corpus out of the court of Common Pleas, where the case was again argued. The Court deferred giving their decision until the first day of the next ensuing term; and the defendant was admitted to bail in the court of King's-bench. The decision of the court of Common Pleas was the same as that of the courts of King'sbench and Exchequer; but I have not been able to ascertain whether any difference of opinion subsisted amongst the learned judges. Proceedings before the Court of King's Bench in England, in the Case of the King v. the Hon. Mr. Justice Johnson, on the Defendant's Plea to the Jurisdiction of the said Court. The Indictment was as follows: Of Michaelmas Term in the Forty-fifth year of the Reign of King George the Third. Middlesex-BE it remembered that on Friday next after the Octave of Saint Martin in the forty-fifth year of the reign of our sovereign lord George the third by the grace of God of the United Kingdom of Great Britain and Ireland king defender of the faith in the court of our said lord the king before the king dlesex upon the oath of twelve jurors good himself at Westminster in the county of Midand lawful men of the said county of Middlesex now here sworn and charged to inquire for our said lord the king for the body of the same county It is presented as followeth (that is to say) Middlesex (to wit) The jurors for our lord the king upon their oath present that the honorable Robert Johnson late of |