A Complete Collection of State Trials and Proceedings for High Treason and ...

attorney-generals-attorney-general Wolfe and attorney-general Kemmis? or did Mr. Attorney-general Wolfe slide out of his place pro tempore, for the purpose of letting Mr. Thomas Kemmis slip in pro tempore, and act as attorney-general in the actions pending against the privy-councillors who caused the advertisement in question to be published? If that was the case, he was warranted in supposing that the right hon. Arthur Wolfe was acting solely in the situation of an amicus

curia.

Mr. Mac Nally then argued, that the notice was bad; it was bad as being too general. It called upon the Court to expunge certain words, but it did not state any cause for expunging those words-it did not state that those words were superfluous, impertinent, or scandalous; whereas, it should have specifically stated at least one of those causes; whether the words complained of deserved the epithets applied to them, he trusted the Court would not now determine, but grant a conditional order that the plaintiff's counsel might show cause why they should not be expunged. Mr. Solicitor-General and Mr. Prime Sergeant said a few words each to the question, in which they followed Mr. Attorney General, in stigmatizing the words excepted to, as being in their tendency seditious and scandalous. They applied to the Court that the sheriff should instantly return the writ of summons; which being, together with the declaration or bill, brought into court, and the words complained of read by the officer, the attorney-general, having made a few farther observations on the pernicious effects of the words "but not of right," called on the Court instantly to supersede the writ and expunge the words from the declaration, and not merely grant a conditional order.

The Court, thereupon, called on Mr. Tandy's counsel to show cause instanter why the writ of summons should not be superseded, and the words "but not of right" expunged from

the declaration or bill.

Mr. Emmet hoped the Court would only grant a conditional order, when he assured them, that he himself was then exceedingly indisposed, and utterly unable to do his client justice, and when he farther informed them, that, in consequence of the motion being made on behalf of his majesty, Mr. Tandy was deprived of the benefit of Mr. Butler's assistance, who, as king's counsel, conceived himself precluded from opening his mouth, until he could obtain a licence.

was

lord lieutenant was seditious, who was answerable for that sedition, but they who dragged it from out of the peaceful obscurity of a record of the court, and forced it into public attention? If any of the evil consequences mentioned by the attorney-general were likely to ensue from such a discussion, they must be imputed, not to the plaintiff's counsel, who had inserted the allegation in law, pleadings, which few or none would ever see, and where it was inaterial to their client's action but to the officious officers of the crown, who had given publicity to the assertion, they were unable to refute; who had selected it for argument in a crowded court; and by premature motions, rendered the discussion necessary. It would have been wiser in them silently to correct the error in the viceroy's appointment; than to show a pertinacious attachment to an abuse, after the principle of English supremacy, from which the abuse has grown, had been abandoned. Or if there be no such error, why do they not justify and bring the question forward on a solemn argument on the pleadings, rather than endeavour to crush it by the summary mode of motion? Having pursued these observations to some length, he insisted on it as a rule of law, that the Court would never expunge any matter from a declaration or bill, however scandalous or seditious it might be, if it was necessary to the plaintiff's cause of action, or if it went in aggravation of damages, -apply that rule here.-Suppose the proclamation complained of to be in its nature and tendency such as a legal chief governor and privy council would have been well warranted in issuing, yet surely it would in itself be sufficient to give the plaintiff a right of action, if it were issued by persons having no authority so to do, and who had accroached to themselves nothing less than a sovereignty which did not belong to them, and assumed the place of the executive power. If the proclamation was in itself illegal and insufficient to resist an action, yet even there it would exceedingly increase the injury, and would go in aggravation of damages that such an illegal proclamation was issued by such persons as he had already described.

There was another reason why the Court ought not to expunge the words excepted to; they would never make any alteration in any part of a suitor's pleadings that might lay them open to a demurrer. He did not absolutely say that was the case here; but it certainly was a matter of some doubt whether if those words were expunged, the defendant might not demur to the declaration or bill; and he trusted the Court would not comply with the motion until they were ascertained that that could not be the case.

The Court expressing their resolution to determine the question without further delay, Mr. Emmet proceeded, he acknowledged that he had signed the declaration or bill on which the writ of summons grounded. This he thought it necessary to In arguing on this motion he had hitherto say in consequence of the many charges of taken it for granted, that lord Westmoreland scandal and sedition that had been thrown was not of right the lord lieutenant of Ireland. out against that declaration or bill. If the al-It was no more than the truth.-The counsel legation which denied the authority of the for the crown, in order to excite the pride

and prejudices of the Court, had said that the plaintiff's counsel denied its jurisdiction in certain cases, inasmuch as certain of its processes were signed by the lord lieutenant. He should be exceedingly sorry that the jurisdiction of that court was necessarily connected with the mode of the viceroy's appointment-his acts with regard to that court were merely ministerial; but even if he said that the power of the Court ceased for the present, in consequence of the illegal appointment of the viceroy, he did not argue against its jurisdiction in the abstract, and he only urged an additional motive for correcting the illegality. It ought not to offend the Court, even if he did assert an occasional suspension of its jurisdiction in certain cases. All the courts of Westminster-hall asserted the same thing of themselves in every case at the Revolution; for when it was declared that king James had abdicated, they all shut, and continued so until the vacant throne was filled by the appointment of William.

bill that which was true and which was also material to his action.

The Chief Justice asked Mr. M⚫Nally, whether he intended to offer any thing farther against the motion.

Mr. Mac Nally said, he was certainly fully prepared to prove before his country, that the great seal of England was incompetent to appoint any legal jurisdiction or office of state in Ireland; which, since the Revolution of 1782, could not be considered as bound by any delegated power from the crown of Great Britain. Whenever the authority of Ireland came to be questioned, whether in the Common-pleas, the King's-bench, or before parliament, he had no doubt of being able to show, from constitutional principles, illustrated by sacred authorities, that letters patent under the great seal of Great Britain were inefficient and inoperative in Ireland.— He had determined not to speak to this question till it came in a more solemn manner before the Court by the pleading of the defenThe attorney-general had almost confessed, dant, but as the point had been broken by the that the objection against lord Westmore- mation before the Court, he would make one land's appointment was irresistible from his observation which he considered of weight— mode of answering it. He had said that the it was this. In 1782 it became a question in patent under the great seal of England was what manner the royal assent should be only a declaration of the king's will-that is, given to bills,the king of Ireland being resident tacitly confessing that it was not competent to in Great Britain, and a bill was brought into do more than barely declare the king's will- the Irish Commons, he believed by Mr. Yelbut if such a declaration only was sufficient, verton, now lord chief baron, to adjust that that was done by the order to be sworn in very serious point. By this bill it was enacted, that every lord lieutenant brings over under that all bills, in order to receive the royal the sign manual; or why was he not appoint- assent, should be transmitted to England ed merely by delivering to him the sword of under the great seal of Ireland, and having state? The reason is, because, to the appoint- received the royal assent there, be returned ment of a governor, not only a declaration of under the great seal of England into Ireland. the king's will is necessary, but also a delega- Now, said Mr. M'Nally, if, in the opinion of tion of power by a sufficient and legal instru- the legislature of Ireland, the great seal of ment giving him a right to exercise authority. England had recognition in Ireland, why But no power belonging to the independent enact a statute to give it recognition in any king of Ireland can be delegated by an in-particular instance? This act he said might strument that derives all its validity from the authority of the king of England. The great seal of England cannot constitute an officer to act under the authority of the king of Ireland.

The attorney-general had argued a good deal on all lord-lieutenants having been so appointed for upwards of six hundred years. The argument is not fair; many abuses crept into this country for the last six hundred years because its constitutional connexion with Englaud was but little known or attended to. If that had not been the case, there would have been no necessity for the Revolution in 1782. Since that time it might be fairly asserted that there has not been a legally appointed chief governor in Ireland.-But wherefore was this abuse suffered to remain after the other abuses abolished by that Revolution, or wherefore was it so obstinately contended for at present, if it was not retained for some evil purpose? Mr. Emmet concluded by hoping the Court would not do so great an injustice to the plaintiff as to expunge from his declaration or

be considered as an exception, strengthening the general and great constitutional position then before the Court, that the great seal of England was not recognized in this independent country.

Mr. Attorney General assured the Court that it was not the intention of the chancellor to delay the trial, but that his lordship would take defence with all possible expedition.

Lord Carlton. The writ of summons hav ing been returned, and an attested copy of the declaration or bill having been produced, the proceedings are before the Court, and they have judicial knowledge of the exceptionable parts.

The question is narrowed by what has fallen from the plaintiff's counsel; they deny that the lord lieutenant has legal authority, and the Court ought not to entertain a doubt for a moment of its duty to satisfy the public that there is a legal government in the country. The manner in which the question has been discussed forces the Court to this declaration; for if the arguments of counsel be just, there

neither is, nor has been for ages past, a legal government in Ireland.

It is true, as has been stated by one of the plaintiff's counsel, that, if scandalous matter inserted in the declaration or bill be relevant, and has a tendency to increase damages, the Court will not expunge it merely because it is scandalous matter; but that is not the case here. It is not relevant to, or material for the plaintiff's case, and therefore the insertion of it was not necessary.

The Court will take notice, that lord Westmoreland is legally lord lieutenant of Ireland. The court of Exchequer has decided so, and the public good requires that we should decide so.

We are bound to know the privy council and its powers; we are bound to know it as a privy council by right.

An objection was once made in the court of Common-pleas, in a case wherein baron Power was the plaintiff, that it did not appear upon the record that he was one of the king's judges; but we were bound to take notice judicially, that he was one of the king's judges; and so we are bound to take notice judicially, that the earl of Westmoreland is lord lieutenant of Ireland, and that the privy council are the privy council of Ireland.

formed the said House, that he had dispatched three of the messengers attending said House, to execute the order for taking into his custody James Napper Tandy, one of whom being brought to the bar, informed the House, that he went to the dwelling house of James Tandy in Chancery-lane, where he arrested the said James Napper Tandy, and showed him the warrant, and his authority; that the said James Napper Tandy went into a parlour, as if for his hat, but shut the door, and made his escape, as he supposed through a window.

And whereas, on the same day, it was resolved by the House of Commons, that the said James Napper Tandy having been ar rested by a warrant of Mr. Speaker, issued by the order of the said House, and having made his escape from the officer of said House who arrested him, has been guilty of a gross violation of the privileges of the said House.

And whereas an humble address hath been presented unto us by the knights, citizens, and burgesses, in parliament assembled, that we would be graciously pleased to issue our proclamation for apprehending the said James Napper Tandy, with a promise of reward for the same,

Now we, the lord lieutenant and council, The insertion, as I have before said, was have thought fit to issue this our proclamanot necessary. If the publication complained tion, hereby requiring and commanding all of by the plaintiff be a libel, that will be mat-persons whatsoever to discover and apprehend, ter for farther investigation. The authority from whence it issued must either be shown in a plea of justification, or in evidence upon a trial; and, if the question can possibly be agitated, then will be the plaintiff's time to

controvert it.

The writ of summons has been returned, and is now in court; though it bears the sig. nature of the chief justice, it never undergoes, but issues without, his inspection.

If any evil consequences ensue from this discussion, they must be imputed to the plaintiff, and those concerned for him, who inserted the exceptionable words in the pleadings, and not to the officers of the Crown, who brought forward the motion.

The other three justices coincided with the chief, and it was

Ordered, That the writ of summons be quashed, and the words which allege or question that John earl of Westmoreland is not of right lord lieutenant of Ireland, or that the privy council of Ireland is not the privy council thereof, wherever they occur in the declaration or bill, be forthwith expunged by the proper officer, the same being scandalous and impertinent.

By the Lord Lieutenant and Council of Ireland,

A PROCLAMATION.

Westmoreland,

WHEREAS the sergeant at arms of the honourable House of Commons, being called before the said House on Weduesday the twenty-second day of February instant, he int

or cause the said James Napper Tandy to be discovered and apprehended, and carry him before some of our justices of the peace, or chief magistrates of the county, town, or place, where he shall be apprehended, who are respectively required to secure the said James Napper Tandy so apprehended, and thereof to give speedy notice to the right hon. the speaker of the House of Commons, the sergeant at arms attending the said House, and to the clerk of the council, to the end he may be forthcoming to be dealt withal, and proceeded against according to law.

And for the prevention of the escape of the said James Napper Tandy into parts beyond the seas, we do require and command all officers of the custonis, and other officers and subjects of and in the respective ports and maritime towns and places within the kingdom of Ireland, that they and every of them, in their respective places and stations within the said kingdom, be careful and diligent in the examination of all persons that shall pass, or endeavour to pass, beyond the seas; and if they shall discover the said James Napper Tandy, then to cause him to be apprehended and secured, and to give notice thereof as aforesaid.

And we do hereby strictly charge and command all persons, as they will answer the contrary at their perils, that they do not any ways conceal, but discover him, the said James Napper Tandy to the end he may be secured; and for the encouragement of all persons to be diligent and careful in endea

vouring to discover and apprehend the said James Napper Tandy, we do hereby farther declare, that whosoever shall discover and ap prehend him, the said James Napper Tandy, and shall bring him before some justice of the peace or chief magistrate, as aforesaid, shall have and receive, as a reward for the discovering, apprehending, and bringing him, the said James Napper Tandy, before such justice of the peace or chief magistrate as aforesaid, the sum of Fifty Pounds.

Given at the Council Chamber in Dublin,
the 23rd day of February, 1792.
Fitzgibbon, C. John Foster, J. Parnell, Henry
King, William Conyngham, James Cuff,
J. Monck Mason, R. Hobart, Arthur Wolfe,
James Fitzgerald, Geo. Warde.

God save the King.
SOCIETY OF UNITED IRISHMEN,

Friday, March 30th, 1792. The Hon. SIMON BUTLER in the chair. The following Letter was read from the Chair. My dear Sir;-I have to request that you will be so good as to lay the following circumstances before the Society of United Irishmen, as the cause of my absence from that most respectable body.

was instantly issued by the lord lieutenant and council for apprehending me, with a promise of reward for the same. The proclamation recites the information given to the House by the Sergeant at Arms and messenger, and the resolution of the House subsequent to the same, but does not set forth the original complaint, or the immediate order in consequence thereof; but directs the person who should apprehend me, to carry me before some of the justices of the peace, or chief magistrates of the county, town, or place where I should be apprehended, who are respectively required to secure me, and thereof give speedy notice to the Speaker of the House, the Sergeant at Arms attending said House, and to the clerk of the council, to the endthatImight be forthcoming to be dealtwith or proceeded against according to law; and for prevention of my escape into parts beyond seas, it commands all officers of the customs, and other officers and subjects, of and in the respective ports and maritime towns and places in the examination of all persons that should within the kingdom, to be careful and diligent pass or endeavour to pass beyond the seas; and it also strictly commands all persons, as they will answer the contrary at their perils, not any ways to conceal, but to discover me to the end that I may be secured.

I have the honour to be, dear sir, very truly and sincerely your's,

March 26, 1792. JAMES NAPPER TANDY. P. S. I enclose you the Proclamation and Votes.

Resolved, unanimously, that tire power assumed by the House of Commons to order the Sergeant at Arms to take into custody a subject of this realm, not a member of that House, upon a complaint made by one of its members of a breach of privilege, without summoning the party complained of, to answer the complaint, is unwarranted by the laws of the land.

On the 22nd day of Feb. last, a complaint having been made to the House of Commons by one of its members, of a breach of privilege committed by me, the House, without summoning me to answer the complaint, ordered that I should be immediately taken into custody of the Sergeant at Arms, and brought To the Hon. Simon Butler, President forthwith to the bar of the House. The of the Society of United Irishmen. Sergeant at Arms informed the House, that he had dispatched three of the messengers at-tered on the Journals of the Society.] [The foregoing letter was ordered to be entending the House to execute the order for taking me into his custody; one of whom being brought to the bar, informed the House, that he went to the house of Mr. James Tandy, in Chancery-lane, where he arrested me, and showed me the warrant and his authority; that I went into a parlour, as if for my hat, but shut the door, and made my escape, as he supposed, through a window. The House then resolved, that I having been arrested by a warrant from Mr. Speaker, issued by the order of the House, and having made my escape from the officer of the House who arrested me, was guilty of a gross violation of the privileges of the House, and resolved, that an humble address be presented to the lord lieutenant, that he would be graciously pleased to direct, that a proclamation might issue for apprehending me, with a promise of reward for the same, and that said address be forthwith presented to the lord lieutenant by such members of the House as were of his majesty's most honourable privy council. The address having been accordinglypresented by the House to the lord lieutenant, a proclamation

Resolved, unanimously, That the proclamation issued in this case, is not warranted by law.

Resolved, unanimously, That the liberty of the subject is violated in the person of Mr. Tandy, that his cause must now be considered as that of the public, and brought forward to receive a judicial decision.

Resolved, unanimously, That a committee of secrecy be appointed to carry the last-mentioned resolution into effect, and empowered to draw upon the treasurer for such sums as it may require for that purpose.

Signed by Order,

THEO. WOLFE TONE, Pro. Sec.

646.

Proceedings on the Trial of JAMES HADFIELD, at the Bar of the Court of King's Bench, for High Treason, June 26: 40 GEORGE III. A. D. 1800.*

Mr.

COURT OF KING'S BENCH June 26th 1800. Present.---Lord Kenyon Chief Justice; Justice Grose; Mr. Justice Lawrence; Mr. Justice Le Blanc.

Counsel for the Crown.---Mr. Attorney General [sir John Mitford, afterwards lord Redesdale; successively Speaker of the House of Commons and lord chancellor of Ireland]. Mr. Solicitor General [sir William Grant, afterwards Master of the Rolls].

Mr. Law [afterwards lord Ellenborough and Chief Justice of the King's-bench].

Mr. Garrow [afterwards a Baron of the Exchequer].

Mr. Wood [afterwards a Baron of the Exchequer].

Mr. Abbott [afterwards Chief Justice of the King's-bench].

Solicitor.-Joseph White, esq. solicitor for the affairs of his Majesty's Treasury.

Counsel assigned for the Prisoner.-The Hon. Thomas Erskine [afterwards Lord Chancellor Erskine].

Mr. Serjeant Best [afterwards a Judge of the King's-bench].

Assistant Counsel.-Mr. Knapp. Solicitor.-Mr. Charles Humphries. The Court being opened, and James Hadfield set to the bar, the jurors returned by the sheriff were called over:

Rice Davis, esq. challenged by the pri