R v O'Brien (Smith) (high treason)
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 1849 |
| Date | 11 May 1849 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 1169
House of Lords
Mews' Dig. iv. 1600, 1724; v. 139. S.C. 7 St. Tr. N.S. 1; 3 Cox. C.C. 360. Cited as to effect of Poyning's Act in extending 25 Edw. iii., stat. 5, c. 2 to Ireland, in Mulcahy v. Reg. 1868, L.R. 3 H.L. 318.
High Treason - Copy of Indictment - Lists of Witnesses - Plea in abatement - Allocutus.
o'brien v. keg. [1849] iih.l.c., 455 [465] WILLIAM SMITH O'BRIEN,-Plaintiff in Error; TERENCE BELLEW MAC-MANUS,-Plaintiff in Error; The QUEEN,-Defendant in Error [May 10, 11, 1849]. [Mews' Dig. iv. 1600, 1724; v. 139. S.C. 7 St. Tr. N.S. 1; 3 Cos. C.C. 360. Cited as to effect of Poyning's Act in extending 25 Edw. iii., stat. 5, c. 2 to Ireland, in Mulcahy v. Reg. 1868, L.R. 3 H.L. 318.] High Treason-Copy of Indictment-Lists of Witnesses-Plea in abatement-Allocutus. An allegation upon a record that three Judges executed a commission in relation to the trials of prisoners, to try whom that commission was issued, is an affirmative allegation of their authority to perform that duty, and is not rendered uncertain by a subsequent statement that the commission was directed-to them and others. An indictment, charging a prisoner in Ireland with compassing, etc., to excite insurrection there, and to levy war, and to put the Queen to death, and charging as overt acts assembling with others, armed with weapons to excite insurrection and to levy war, is not an indictment founded on the 57 Geo. 3, c. 6. Such prisoner, therefore, is not entitled, under section 4 of that act, to the benefit of the statutes 7 and 8 W. III., c. 3, and 7 Anne, o. 21, and consequently is not entitled to a copy of the indictment, and to a list of witnesses, to be delivered ten days before the trial. The 4th sect, of the 57 Geo. 3, c. 6, extends only to treasons made or declared by that statute. Quaere, whether the objection for the want of such copy and list is to be raised by plea on arraignment? The 36 Geo. 3, c. 7, having been passed before the Union, did not bind Ireland. The 57 Geo. 3, c. 6, s. 1, made perpetual the provisions of the 36 Geo. 3, but did not extend the provisions of that statute to Ireland. The only effect of the 11 and 12 Viet., c. 12, was to extend to Ireland certain of the provisions of the 36 Geo. 3, made perpetual by the 57 Geo. 3, but not to estend thither the provisions of the 4th section of the lasi mentioned act, which was limited to treasons made or declared by that act. The offence of levying war against the King, declared by the 25 Edw. III., stat. 5, c. 2, is high treason in Ireland by the effect of the Irish statute 10 Hen. VII., c. 22, commonly called Poyning's Act, by which, acts which were treason in England under the statute of Edw. III., were made treason in Ireland. An Allocutus, whether " the justices and commissioners ought not on the premises and verdict aforesaid to proceed to judgment" against the prisoner, is sufficient. The form " judgment of death," or " judgment to die," is surplusage. These were cases in which writs of error had been brought upon judgments pronounced by the Court of [466] Queen's Bench in Ireland against the two* plaintiffs in error respectively, on charges of high treason. There had been a special commission issued into the county of Tipperary in the month of September 1848, to try certain prisoners then in the jail of that county. The two- plaintiffs in error were among those prisoners, and indictments for high treason were preferred against them. They were tried before Lord Chief Justice Blackburne, Lord Chief Justice Doherty, and Mr. Justice Moore, three of the commissioners named in the commission. The caption of the indictment was in each case in the following form: - County of Tipperary, to wit. Be it remembered, That at a Special Sessions of Over and Terminer, and general gaol delivery holden in and for the county of Tipperary, at Clonmel, in the said county of Tipperary, on Thursday the 21st day of September, in the twelfth year of the reign of our Sovereign Lady Queen Victoria, and in the year of our Lord, one thousand eight hundred and forty-eight, before the Right Honourable Francis Blackburne, Chief Justice of her Majesty's Court of Chief Place in Ireland, the Right 1169 n h.l.c., t o'brien v. reg. [1849] Honourable John Doherty, Chief Justice of her Majesty's Court of Common Pleas in Ireland, and the Right Honourable Richard Moore, fourth Justice of her Majesty's Court of Chief Place in Ireland, Justices and Commissioners of our said Lady the Queen, of Oyer and T'erminer, within our said county of Tipperary, nominated and appointed to enquire into , hear, and determine all, and all manner of treasons, murders, man-slaughters, burnings, felonies, robberies, crimes, contempts, offences, transgressions, evil doings, and matters and things whatsoever, by whomsoever done, committed, or perpetrated within the said county of Tipperary, as well against the peace and the common law of Ireland, as against the form and effect of any statute or statutes, acts, ordinances, or provisions [467] theretofore made, ordained or confirmed, and also nominated and appointed, from time to time, as need should be, to deliver the gaols of our said Lady the Queen, of the said county of Tipperary of all prisoners and malefactors therein, saving to our said Lady the Queen all amercia-ments thence arising and accruing, being by virtue of a commission under letters patent of our said Lady the Queen, under the Great Seal of that part of the United Kingdom of Great Britain and Ireland called Ireland, bearing date at Dublin, the first day of September, in the twelfth year of the reign of our said Lady the Queen, to them the said Francis Blackburne, John Doherty, and Richard Moore, and others, in the said letters named, directed by the oaths of, etc. (the names1 of the grand jury) ; it is presented in manner following, that is to say, etc. The indictment against O'Brien contained six * counts, after setting forth which, * The first five counts charged the prisoner with the offence, at different times and places, of levying war against the Queen. The sixth count charged that the said William Smith O'Brien (and others named), being subjects, on the seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days, between that day and the thirtieth day of the same month of July, with force and arms at, etc., maliciously and traitorously among themselves, and together with divers other false traitors, whose names are to the said jurors unknown, did compass, imagine, and intend to move and excite insurrection, rebellion, and war against our said Lady the Queen within this realm, and to subvert and alter the legislature, rule, and government now duly and happily established within this realm, and to bring and put our said Lady the Queen to death, and the said compassing, imagination, invention, device, and intention, did then and there express, utter, and declare by divers overt acts and deeds, hereinafter mentioned, that is to say, in order to fulfil, perfect, and bring to effect their most wicked treason and treasonable compassing, imagination, invention, device, and intention aforesaid, they, the said W. S. O'Brien etc., as such false traitors as aforesaid, on the said seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the thirtieth day of the same month of July, with force and arms, etc., maliciously and traitorously did assemble, meet, consult, and conspire amongst themselves, and together with divers other false traitors, whose names are to the said jurors unknown, to1 devise, arrange, and mature plans and means to stir up, raise, make and levy insurrection, rebellion, and war against our said Lady the Queen within this realm, and to subvert and destroy the constitution and government of this realm, as by law established, and so. to bring and put our said Lady the Queen to death. And further in order to fulfil, perfect, and bring to effect, their most wicked treason, and treasonable compassing, imagination, invention, device and intention aforesaid, they the said W. S. O'Brien etc., on the said seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the said thirtieth day of the same month of July, with, etc., maliciously and traitorously did arm themselves with, and bear and carry certain weapons, etc., with intent to associate themselves with divers other false traitors, armed, etc., whose names are to the said jurors unknown, for the purpose of raising, levying and making public insurrection, rebellion, and war against our said Lady the Queen, and of committing and perpetrating a cruel slaughter of, and amongst the faithful subjects of our said Lady the Queen within this realm, and to bring and put our said Lady the Queen to death. And further, in order to fulfil, etc." Several other overt acts were then set out, all of which consisted of attempts to levy war, and of levying war, by firing at the constables, and obstructing the marching of troops, the acts charged being in fact those which had been previously stated in the first five counts of the indictment. 1170 o'brien v. reg. [1849] n h.l.c., s the record went on to [468] shew continuances by adjournment to the 22d and 23d, and thence to the 28th of September, on which day it alleged that O'Brien was brought to the bar, and after hearing the indictment read, and being asked how [469] he would acquit himself thereof, he pleaded in abatement as follows: " He, the said William Smith O'Brien, says that he ought not to be compelled now to answer the same, because he saith that by the indictment aforesaid, he the said William Smith O'Brien is charged and indicted for, amongst other offences, compassing, imagining, and intending to put our...
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