the one case than in the other. The enacting words therefore embrace those cases, and enact that a man charged with an offence in either country shall be arrested wherever he is found; this is the general effect of the enacting clause: it thus reaches the whole of the mischief recited, and in fact, does not by this construction go a jot beyond it. The rules for construing statutes laid down in Heydon's case, in Coke, conclude with this, that the judge is to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions, for the continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the act. This solemn duty I think I perform by the construction I give to the words of this act. But it is said that to hold the construction which I adopt, we must reject the words escape and go into:" this has been fully answered by the attorney general; they are included in the subsequent more general words, and you cannot reject those general words without disappointing the plain intent of the act. Then it is said-we cannot suffer the defendant to be transmitted, because the offence, circumstanced as he appears, is not triable in England. It is a sufficient answer to this to say, that he is indicted in England, and a warrant is come over to this country; for if he be indicted there, I know no authority we have to decide upon their right of judicature, and the act requires that the party accused shall be made answerable to the jurisdiction where he stands accused. But on what grounds are we expected to hold that doctrine? The defendant shows by his affidavit, that he has not been in England for a year before the publication, nor ever since. If this were offered to us as a defence to the charge, or if in his affidavit the defendant absolutely denied his guilt,-which he does not, we could not listen to it, for the defence must be made where the charge is made. It is said, if this were a felony, being of an accessorial nature, it could not be tried in England, but if triable at all, must be tried here, and so, that there is no failure of justice; and then, to show that it is possible to try the defendant here, an affidavit is made, to show that the libel complained of was actually published here. Now, without resting on the fact that if the law were so, the affidavit does not show it to be the same libel that he is indicted for, that was published in Dublin, though Mr. Emerson states he believes it the same; yet I say, supposing it to be the same, and if we had the power of deciding on the jurisdiction of the Court of King's-bench in England, can we say that they shall not be allowed to try au indictment for a libel for publishing the same papers in Westminster? Why? Because af terwards the same libel was published in Dublin, not by the defendant but another; and then the trial of this defendant shall not be had in Westminster, because another man has committed the same offence in Dublin! But suppose the fact were, that the defendant himself had published it in Dublin, is that a reason he should not be tried in Westminster, if he is charged with committing a similar offence there? I think not-they are distinct offences, distinct in law, for an acquittal or conviction of the one could not be pleaded in bar of the other; and for any thing we can know, they are distinct in fact as to the procuring the publication. And to decide that the Court of King's-bench in England shall not try this case, we must hold, that it is impossible for a man residing in the county of Dublin to procure a publication of a libel in Westminster, and that we have a right to go into that defence, and to prohibit the Court of King's-bench in England from trying an indictment found before them. But it is said,-and this seems to have weight with my brother Day,-that the defendant cannot be transmitted, because, as he may be tried here, though not for the same, yet for a similar offence, he cannot be said to avoid justice, and therefore is not an object of the act. To this I think a short answer may be given; that the avoidance of justice meant by this act, is the not submitting to trial where the accusation is, and that it is no sufficient reply to make, that the defendant is ready to answer where no accusation is made, or, for any thing we can tell, ever will, or can be made with effect. This last ground of objection to the operation of the act, would equally apply, if the defendant were indicted at Cork for a publication there, and if a warrant for apprehending him were endorsed as this is, in the county of Dublin. He might say, I have not been in Cork these ten years, and another man has published it in Dublin, and I ought to answer there. But the gentlemen admit that the act is perfect and without defect, as between county and county, and reaches all possible offences and every offender, and therefore would reach the present case, and why? Because, say they, the preamble of the county clause contains the words "reside and be," aud therefore the legislature had such cases in contemplation, but not in the clauses respecting the two islands-the preamble there has only the words "escape and go into." I have already stated the effect of the preamble; the enacting words are the same with respect to island and island, as they are between county and county; the mischief is the same; the act has the same precise object in both provisions, and must therefore have the same construction in both. But there are other objections made in the argument, some of which, perhaps, I ought to advert to. It is said that the Habeas Corpus act of England is repealed by my construction. If it is, that has been done by parliament. I do not carry the act a jot beyond its express words. This act certainly creates a power of bringing offenders to justice, which, within the provisions of that most valuable statute, was prohibited; but I believe, and hope, that few men will think that a law which does that, has done any injury to public liberty. Many inconveniences are pointed out, with great eloquence and ingenuity, as likely to follow the construction I give the act. It exposes, say the gentlemen, every man in each island to be taken to the other, to answer the most frivolous charge, perhaps invented and contrived by malice. Abuses of the best laws may certainly happen-they may be punished where they occur, but cannot be made impossible. And, in truth, the same inconveniences might exist, even if the construction of the act confined it to cases of felony; but, as I have already said, by such construction, the plain intent and operation of the act would be construed away. Would there be no inconvenience in the desired construction? Would there be no inconvenience in reducing this act merely to the effect of changing the mode of transmitting felons, and leaving persons guilty of enormous misdemeanors free from apprehension of punishment? If we hold, that on account of the personal presence of a defendant here, he shall not be obliged to answer to a crime af. fecting the peace of England, capable of being committed by him, though resident here, would that be no public inconvenience? Is there no public inconvenience in holding, that a man may safely write libels here, and transmit them to England for publication there, disturbing the peace of that country and defying its jurisdiction? Is there no public inconvenience in holding, that a resident here might plan, and by his instruments in England effect, the greatest fraud without being responsible in either country? Or in the case put by the attorney general, that a man might send poison, under pretence of medicine, to England, and actually commit a murder there; but, not being personally present, shall he be protected here, in a case where a country under a distinct separate and independent government would probably give him up to justice-nay in a case where even hostile governments have been known to do it? And what injury to public liberty has any man to apprehend from the construction I give this act? I do no more than say,- and that in compliance with the express words of this act of parliament,-that any person or persons resident in either of the two countries, and accused by a competent jurisdiction in the other, of any offence against the law of the country where he is accused, must answer it. If he were there accidentally or volunta ily, the present defendant could not resist being amenable. We say that this act of parliament lends its aid to the administration of justice, against those who will not voluntarily submit, be their offence what it may. In desirous only of adding one more observation, in answer to the principal ground on which my brother Day has rested his opinion-that to be within this act, the person accused must have been, at the time of the offence, within the country, the law of which he is accused of violating, and must have fled from it, or left it afterwards; and it is thisthis act is to be executed by the ordinary magistrates, and it gives those magistrates no power of inquiring into the fact of escape, or any of the circumstances attending the offence. The only document for the magistrate to act upon is the warrant coming from the country where the offender is accused: it is impossible for the magistrate to ascertain the fact that is relied on, as exempting the person accused from the operation of the act. The arrest (from the nature of the case) must be made, before he can be apprized of that fact. If the prisoner tells him that he is not an object of the act, because he was not in the country where the crime is charged to have been committed, at the time that the offence is supposed to have been committed, is the magistrate to take the prisoner's word, or his affidavit of that fact? Or is he to examine witnesses to it? Or to call for the informations given in England, or the witnesses who swore them? In short, in all such cases, if persons, circumstanced as the defendant is, are exempt from the operation of this act, the magistrate is guilty of false in prisonment, and liable to an action, without any means given by the law of preventing it. I shall now close this unhappy case, in many respects so lamentable. Much more might be added to what 1 have said, but I have touched on the principal parts of the subject; and shall only add, that I have no manner of doubt that the defendant's case is within the act of parliament; and of course, that the return is good, and that he must be remanded. The legality of the arrest was thus confirmed by a majority of the judges present; but the defendant having obtained a writ of Habeas Corpus out of the Court of Exchequer, the question was re-argued on the fourth day of February, before the judges of that court. Proceedings before the Court of Exchequer* in Ireland, in the Case of the Hon. Mr. Justice Johnson. Court of Exchequer, Dublin, Present. The right hon. Barry viscount Yel- The writ of Habeas Corpus, and the return thereto, and the affidavits of the hon. Justice Johnson and John Swift Emerson, gent. being read, Mr. Burrowes, after stating the facts disclosed by the return and affidavits, spoke as follows:-To justify this arrest, and to warrant your lordships to remand, an act of par liament of the last session is resorted to. If that act of parliament must be so construed, abhorrent as such construction must be to the principles of our laws and constitution, the legislature must be obeyed; and we can not be suffered to take refuge in judicial misconstruction from the mandates of the supreme power of the state. Whether the legislature has so clearly and unequivocally expressed its will as to preclude all judicial interpretation in favour of preexisting rights of the most sacred kind, is now to be argued and decided. What is the proposition which, in order to justify this arrest, it is admitted must be received as the perpetual law of these realms, enacted by this statute? I say perpetual; because, as the act is not limited in duration, this Court never can make the possible correction of it in future any ground of their construction; and you must decide whether the legislature in To the original report of these proceedings the following advertisement was prefixed: "In laying this work before the public, I have the satisfaction to state, that it has been compiled from original and authentic documents: I beg leave, at the same time, to express my acknowledgments for the kind condescension of those learned and eminent characters, by whose assistance I have been enabled to prepare a full and correct report of a case, which has so much and so justly interested the attention of the people of Ireland. J. S. EMERSON." "No. 48, Camden-street, "April 8th, 1805." † See p. 87, 88.-N. B. The return to the writ of Habeas Corpus, which issued out of the Court of Exchequer, stated, in addition, the rule to remand, which was made in the King's-bench. See them, p. 103, 104. tended that its subjects should exist for ever under such a rule. The proposition contended for is, "That wherever any man of any rank, however low, shall obtain a warrant from any magistrate, for any misdeamieanor, however petty, against any man, however high, he may cause him to be arrested in any extremity of the United Kingdoms, and to be transmitted bailed, to the kingdom where the offence is at the public expense, without a right of being charged to have been committed; even though such person never had been for one moment in the kingdom to which he is transmitted." Such a proposition startles every man who hears it. The peculiar hardship of my client's case is merged in the public mischief; and I will not weaken his claim to a constitutional interpretation of this act, by dwelling upon his peculiar situation. It is equally his wish and his interest, that this act should be discussed upon general grounds; and in respect of him personally I shall only say, that in rejecting the attorney-general's offer to waive the operation of the law in his case and accept of bail, he acted as became the subject of a free state; and if he had compromised this question, and submitted to a violent and unconstitutional interpretation of this law in return for personal indulgence, he would have disgraced his character as a judge, and ought to be stigmatized. In arguing this question, I will in limine admit that the obvious and primary (I do not say necessary) meaning of the enacting words establishes such a rule. The enacting words are sufficiently comprehensive to include my client's case, and every case which I have stated; and unless there be passages in the act which, according to the rules of judicial construction, may explain and limit the extent of these words, my client must be remanded. I admit, also, that the enacting words of a law are not necessarily restrained by the title or preamble; but that, on the contrary, the enacting words may extend to many cases not mentioned in either title or preamble; and that judicial interpretation in pursuit of the manifest intent of the legislature, may extend a law to cases not strictly or literally within title, preamble, or enacting words. I am so far from denying this, that I conceive that the principal strength of my client's case depends upon its admission; because, I mean to argue, that from the whole of the act, accurately examined and collated, you never can say that it was the will of the legislature that such a rule should be established; and it is not my interest, nor am I warranted, to fetter judicial interpretation within narrow and irrational limits. Upon two grounds I contend that the act between county and county of the same kingdom; but that persons arrested in one kingdom for bailable offences committed in another cannot be bailed, though as between county and county they may. We say that as between kingdom and kingdom the law only acts upon offences not bailable, and that therefore the objects of the law cannot be bailed.-Their distinction repeals the Habeas Corpus acts of both countries; our's conforms to them; their dis does not embrace this case:-first I say, "That as to the transmission of persons from kingdom to kingdom, it ought to be limited to persons charged with offences not bailable:" -Secondly, That it only extends to persons who having committed an offence in any place where they were personally present, have ccased in any way to continue within the jurisdiction where the offence was actually committed." Mr. Justice Johnson is only accused of a misdemeanor which is bailable; and I have a right to assume (it being distinction respects the right of being bailed closed by affidavit, and not contradicted in the return), that he was in the kingdom of Ireland when the alleged libel was stated to have been published, by his procurement, in England and ever since; consequently, if I establish either ground, he must be discharged. In construing this act, I am not ashamed to refer you to an elementary book; and to a part of that book at which a diligent student might arrive in the first day of his legal studies. The rules or signs, as he terms it, by which the will of the legislature may be best explained in acts of parliament, are no where laid down with more judgment and clearness than by Mr. Justice Blackstone, in the first volume of his Commentaries, page 59. These signs, according to that elegant and luminous writer, are, 1st, the words-2nd, the context -3rd, the subject matter-4th, the effects, or consequences-5th, the spirit and reason of the law. I have already admitted that the first impression of the mere enacting words would make against my argument; but if I succeed in proving that upon the whole four latter grounds of interpretation, they are struggling on the other side against the will of the legislature, as well as against the liberty of the subject, you will no doubt discharge my client. Apply these principles to my first objection -the legislature manifestly makes a distinction between the objects of the acts in the arrest and transmission of offenders from kingdom to kingdom, and from county to county within the same kingdom. If no distinction were intended, the whole object of the legislature would be accomplished by the first section, by merely substituting the words United Kingdom for Ireland whenever the latter term occurs; and the third and fourth sections would not only be superfluous, but the law would be uniform and free from the objections to which it is admitted by the other side to be liable, and which it is said will be remedied by the legislature. Upon the other side it is admitted that a distinction is made-What is the distinction according to their interpretation, and what according to ours? and let me ask you, in the first place, which is most probable to have been the intention of the legislature? They say that as between kingdom and kingdom every class of offenders is included as well as when its violation would be comparatively unoppressive, and annihilates it when it is most necessary. According to their distinction we must suppose that the legislature, when in the first section they are providing for the arrest of a person accused of a misdemeanor in an adjoining county, are so tender of liberty as to provide that he shall be bailable upon the very spot where he is arrested; but that in the third and fourth sections they lose sight of every pre existing right and valuable personal privilege, and empower the transmission of the same class of offenders from kingdom to kingdom, without a right of being bailed; and that they have distinguished the cases for the sole purpose of making this preposterous and inverted distinction. If it be said that the law would be imperfect if it did not act upon inferior offenders as well between kingdom and kingdom as between county and county, I answer that it is a vain hope to frame any law which will not be in some particular defective; and that to exclude all inferior offences would upon the whole be more practically wise than to include them all-inasmuch as the safety and peace of each distinct kingdom might be considered as sufficiently provided for by the pursuit and bringing back to punishment of daring and dangerous criminals, while the flight and banishment of inferior offenders, who would still be punished if they should ever come within the jurisdiction, might be deemed sufficient.-I shall now proceed to show how the context of this act bears upon and establishes my distinction; but I shall first state how the law before this act stood in relation to the arrest and transmission of offenders from kingdom to kingdom. First, no man could be legally arrested for any misdemeanor committed in another kingdom, consequently he could not be legally transmitted; the case was entirely unprovided for, and perhaps in wisdom should for ever remain so. In respect of felons and traitors, the practice, and perhaps the law, was different. There existed a practice, founded upon the ancient prerogative of the crown, of arresting high delinquents accused of offences not bailable, and transmitting them for trial from kingdom to kingdom, and this usage was recognized and sanctioned by the Habeas Corpus act in England. The arrest was always under a secretary of state's warrant, and the prisoner was transmitted by a king's mes senger. No ordinary magistrate ever did, or could grant such a warrant: it was a mere state proceeding, optional on the part of the crown, and the authority was local and limited. In respect therefore of the arrest and transmission of higher offenders, there was some, but an insufficient remedy; in respect of inferior offenders none. The pre-existing law being as I have stated, strongly illustrates the inference I derive from the preamble and context of the act; and the object, spirit, and policy of the act, and the consequences of the different interpretations in my opinion remove all doubt upon the subject, The preamble of the first section, which establishes the law as between county and county, recites, "Whereas it frequently happens that persons against whom warrants are granted by, &c. &c. escape into other counties, &c. &c." Nothing can be more comprehensive than the description of the objects of this act mentioned here and in every part of this section. There is not a syllable to restrain their generality. The description both in the preamble and enacting part is precisely the same. The context concurs with the enacting words, and the spirit and reason of the law are answered by a literal and comprehensive construction-no bad effects can follow from it—no grand constitutional law is indirectly repealed-no vital principle of personal liberty is sacrificed. The letter, context, object, spirit, and policy of the law are the same; and the legislature, having unquestionably intended to extend its provisions to misdemeanors, have provided that the liberty of the subject should not be sacrificed; and they have enacted a right of being bailed in bailable offences, commensurate to the new power of arrest which they have introduced. such offenders, and transmitting them, &c. &c." Is it not manifest from these words, that the offenders within the contemplation of the legislature are felons and other malefactors, in respect of whom there pre-existed some, but an imperfect, provision by law as to arrest and transmission? In respect of inferior offenders, there pre-existed no provision at all. In respect of the higher order of criminals, there pre-existed an imperfect, and insufficient provision. Does it not follow that the legislature most clearly meant to extend the provision of these distinct sections to the latter description of offenders, and not to the former? But it is said the enacting words are universal, and not to be restrained by the preamble. I admit they are not necessarily to be restrained; but I contend, that when the context, the subject matter of the law, the effects and consequences of the different constructions, and the spirit and reason of the law, all (as in this case) conspire to limit the generality of the enacting words, all those latter guides conjointly ought to govern. The enacting words certainly are very general: "If any person or persons against whom a warrant shall be issued, &c. &c. for any crime or offence against the laws in force in Ireland, &c. &c." If this description in the enacting part stood alone and unexplained by other words and by the context, a word could not be said in support of my construction; but I contend that it is not unreasonable or unprecedented, in pursuit of the intention of the legislature, to construe "any person" to mean any such person as was before described;" and the words "for any crime or offence against the laws," to "any such crime or offence as was before described."-By the Whiteboy act, a number of offences are made capital by words totally unlimited, and by distinct sections. Innumerable instances have occurred of cases which have fallen manifestly within the enact " mean Look now to the preamble, and examine the context of sections 3 and 4, which provide for cases between kingdom and kingdom.ing words; yet the judges have looked at the How are the objects of these sections de- title, the preamble, and the recitals of that scribed?" And whereas it frequently hap- act for its object, and have never considered pens that felons and other malefactors in that any case within it, unless proof was previously part of the united kingdom called Ireland, made that the particular county, where the make their escape into that part of the united question arose, was in that rebellious, riotous kingdom called Great Britain." Is it a vio- state, which gave rise to the severe provisions. lation of our language to say that these words Upon a similar principle was Renwick import the higher and more enormous of Williams's case decided, by which a monfenders? If it be said that the term "malefac-strous offender, clearly within the letter of tors" may be used to designate any offenders, is it no answer to state that that term is generally used to denote the higher offenders? that felons and other malefactors, according to the rules of construction, mean malefactors of a like kind? and that if malefactors be interpreted as comprehending all offenders, the word felons may be rejected as surplusage? But examine the context farther, in order to discover who are the objects of this part of the act. Whereby their offences often remain unpunished, there being no sufficient provision by the laws now in force for apprehending the law, was acquitted, because his case did not fall within the evil intended to be remedied by the law under which he was tried. It has been argued, that by the 13th Geo. 3rd in the British parliament a similar law was enacted, as between England and Scotland, with almost the same recitals and enacting words; and that that act extends to all misdemeanors, although no provision is made for bail. I say, that if these two acts be collated, important differences will be found * 1 Leach, 529. |