Case of the Hon Mr. Justice Johnson Lord Ellenborough. That is rather too large a proposition; for the court of parliament may try for offences committed in any part of the United Kingdom, as in the case of lord Strafford for treason in Ireland; or within the other dominions of his majesty, such as the East Indies. Mr. Richardson.-That applies to peers of parliament, who are constructively resident in England as advisers of the Crown. Lord Ellenborough.-Mr. Hastings was no peer of parliament; I only state this to show that your proposition is not true to the extent to which you would lay it down as applicable to the present case. Mr. Richardson.-The objection here is, that the offence, if any, is altogether foreign to the law of England-that it is no offence against the law of England. When I state, by this plea, that the act complained of as an offence, is the act of a person who owes no obedience to the law of England, that is a sufficient plea to oust the jurisdiction of the courts of England: this plea states that the person so charged with having committed the act, is amenable only to the law, and triable only by the courts of the country where he was born and where he resided. My learned friend stated a supposed case of a native of Bristol as analogous to this; but my learned friend, after hearing my argument, and adverting to the principles on which it is founded, will not press that point, for it has no bearing upon the case in the way in which I take it up in argument. I do not set up any local jurisdiction in this kingdom against that of this Court; but I say that the party here charged, is, with reference to the laws of England, to all intents and purposes a foreigner; that, at the time the act is charged to have been committed by him, he owed no obedience whatever to the laws of England; and that therefore he committed no offence for which he can be accountable to the laws of England. My learned friend stated the case of a conspiracy where the party was indicted, convicted, and punished here, although he himself had done no act in the county where the venue was laid. My lords, these are cases in which no question arises or can arise, as to the jurisdiction of the court, unless the party accused in these cases stood in the situation in which the present defendant stands, namely, the being a native of another country-a foreigner as to the laws of this-the being at the time he is charged with having committed this supposed offence against the laws of England, resident in another and that other his native country. Mr. Justice Lawrence.-The question of the jurisdiction of the court was pressed in the case of the King v. Brisac & Scott. Mr. Richardson.-Not in a manner similar to this; for there the defendant pleaded the general issue, and an act in furtherance of his crime was proved to be done in the county of Middlesex. [408 question made on the ground of that deMr. Justice Lawrence.-There was no fendant being a native of a different part of the kingdom. no question similar to the question in the Mr. Richardson. In that case there was there was no act of conspiracy proved to have been committed in the county of Middlesex; present. It was there only contended that thing in this county; but no question at all was made whether or not that defendant that Brisac being at sea, he could not do any owed obedience to the laws of England. it is held that any foreigner may be made Mr. Richardson.-There is no case in which amenable to the laws of England, for a conspiracy to carry any purpose into effect in England, while that foreigner is resident in his own country; and I submit to your lordships, it cannot be, because he owes no obedience to the laws by which that is made an offence. Mr. Justice Lawrence.-Certainly not. larity, or even if it were so the identity of the laws of England and Ireland, makes no My lords, the circumstance of the simireal, although it may make an apparent difof our objection to the jurisdiction of this ference in the case; and therefore the force court does not at first sight appear to advantage or to be so powerful as it will on closer inspection; or as for instance if the question had arisen between England and Scotland. Suppose that the publication charged by this indictment to be a libel had made its appearance in Edinburgh instead of Westminster; the principle contended for by my learned friend would be the same, but there the party must be tried not by the laws of England but by those of Scotland; and there would be a very different species of punishment in case of conviction. Lord Ellenborough.-I believe deportation: law of England, by the law of a country with Mr. Richardson.-Yes, my lord. He would which he cannot be supposed to have any acbe subject to a punishment unknown to the quaintance. my learned friend that the subject matter of this plea would be more properly a defence With respect, my lords, to the statement of under the general issue, I beg to remind my friend that in the case of the Kinlochs* it was determined that the question of jurisdiction could not be raised upon the general issue. gentleman, whom I have the honour to represent before your lordships, for taking this My lords, the motive of the honourable of this subject here or any where; but he thinks, and I confess, as it appears to me, course, is not that he dreads the investigation of a trial in the country where he lives, where he is well known and eminently regarded, for fairly thinks, he ought to have the benefit • Fost. 16 et seq. England, for which no authority had been or could be cited; for there was no character or privilege belonging to a subject of this coun try which did not belong to an Irishman, both at home and abroad. Then, if protection and obedience are co-relative, as the de fendant has every protection and benefit which the law of England can bestow, he must owe obedience to that law. If an Irishman were libelled by a subject of this country, he would have his redress; hut the law of England would not punish an Englishman for libelling a foreigner residing abroad, except so far as it might be considered to be a state. offence in interrupting the harmony between the two countries, if in amity with each other. And this is also a charge of a libel upon the king's administration of government in Ire land. And in answer to the case of the Kinlochs, he observed that Mr. Justice Foster* was finally of opinion that the prisoners might, if it had been well founded, have availed themselves of the objection to the jurisdiction, on the general plea of Not Guilty. Cur. adv. vult. he has a number of witnesses as well to his innocence as to the proof of an excellent character who are resident in Ireland where he has long and ably filled an important station. It is not to be doubted, that if it be true that he did compose this publication in Ireland, he might be subject to punishment there, un proof of the fact. I do not deny that the fact, which I say cannot be inquired of in the county of Middlesex, may be inquired of in Ireland, where this gentleman indisputably was during the whole time this indictment states him to have written, composed, and published the supposed libel in question; and although I have a confident hope that if necessary he will establish his innocence, still if found guilty he might be punished in Ireland. But I must not omit to observe, that the course which has been taken, by instituting proceedings here, has subjected him to considerable inconvenience; for at the time when this indictment was exhibited, he had no means of commanding the attendance of witnesses here, nor are there any such means at present. There is I understand a bill now before the legislature which is intended to make some provision for that case, of which however we can as yet take no notice; but if he should have a compulsory process for the attendance of such witnesses as he may think necessary to examine to establish his case, nobody can doubt that the expense must be very considerable of itself a serious punishment, as applied to the case of this honorable gentleman, under all its attendant circumstances,—an expense of itself more burthensome than the effect even of a conviction in his own country; to say nothing of the inconvenience of bringing persons of high station the distance of four hundred miles over sea. I do not mean that the argumentum ab inconvenienti is conclusive against the rules of law, but these are the grounds which have induced him to press his objections to a trial here, and to ask your lordships whether he may not have the benefit of a trial in his native country; which, to a person standing in bis situation, may be a great benefit for there he will be tried before persons to whom he is well known, and where he can vindicato his character without the expense which this course of proceeding entails upon him, and which to a person e moderate fortune would be absolute ruin. On these grounds I submit our case to your lordships and humbly pray that this plea may be established. Mr. Abbott in reply said, that the argument ab inconvenienti could not be admitted where the law was clear. That the principal arguments resolved themselves into an objection, that an Irishman was to be considered as an alien with respect to the laws of See the introductory note to the trial at bar p. 413. This reply and the judgment of the Court are taken from 6 East, 596. Court of King's-bench, July 1, 1805. Lord Ellenborough, C. J.-This is an indictment charging the defendant with the publication of a libel at Westminster in the county of Middlesex; to which the defendant has pleaded that before and since the Union of the kingdoms of Great Britain and Ireland, Ireland had been and yet is governed by its proper statutes and laws, and not by the statutes and laws of England; and that in Ireland there are courts competent for the trial of all offences committed by the natives of Ireland during their residence there. The plea then proceeds to state, that the defendant was born in Ireland, and that the writings, in the indictment called libels, are concerning things which took place in Ireland after the first of November, 1802, whilst he the defendant was resident in Ireland; and concludes to the jurisdiction of the court. To this plea there is a demurrer, and a joinder in demurrer. And in support of the demurrer it is objected that the plea is bad, inasmuch as it does not show any other court where the defendant may be tried for this offence: and that it amounts but to an argumentative plea of Not Guilty. And in support of the objection to the manner in which this plea is framed, the Doctrina Placitandi, p. 234, a book of considerable authority on questions of pleading, and also what was said by lord Mansfield in his judgment of the case of Fabrigas Mostyn in Cowper's Reports, 172, have been relied on, "that in every case, to repel the jurisdiction of the king's courts, you must show a more proper and sufficient jurisdiction; for if there be no other mode of trial, that alone will give' • Cr. L. 23. Case of the Hon. Mr. Justice Johnson the king's courts a jurisdiction." And as to The necessity of thus pleading in general [412 Y part of the realm, though belonging to the crown of Great Britain, and that no lands, &c. there ought to be tried or examined into here; and demanding judgment whether he should be put to further answer. Lord Chancellor.-This comes to be of great consequence to all the courts in England. There are two general questions on this plea; first, Whether the plea be good in point of form; not a trifling form; for if the objection thereto on the part of the plaintiff be right, it is material to the nature of such a plea. Secondly, whether good in substance? As to the first, it is objected for the plaintiff that although it be shown in the negative, and alleged that this court has no jurisdiction over the Isle of Man, and that it is not to be tried here, yet it is not shown in the affirmative, are any courts in the Isle of Man holding plea what other court has jurisdiction, or that there thereof: and the rule is insisted on, that whoking's superior courts of general jurisdiction, must show what other court has jurisdiction. ever pleads to the jurisdiction of one of the I am of that opinion; and that for the want thereof the plea is bad, and ought not to be allowed, if nothing more be in the case; as it is expressly laid down in 2 H. 7. 17. a, and Doctrina Placitandi, 234, and is agreeable to the general rule of pleas of this sort; as in the pleas of abatement, wherein it must be shown that the plaintiff may have a better writ. The reason of this is, that in suing for his right a person is not to be sent every where to look for a jurisdiction, but must be told what other court has jurisdiction, or what other writ is proper for him: and this is a matter of which the court where the action is brought is to judge. There are not many authorities on this head; but in the old books of entries the form of pleading is so; and the opinion of Popham, C. J. in Yel. 13, and Fitz. Ab. tit. Jurisdiction concerning Wales: and although lord Vaughan may have denied that to be law, he was a very strong Welchman, as appears, through his argument; in which ing; yet it never was delivered, though intended to be so. It is said to this, that the there is a great deal of good and useful learncourt ought in this case to take notice of what is the jurisdiction; that the matter of fact is shown; and it is likened to the case of inferior courts, wherein it is sufficient for the defendant to plead that the cause of action arose out of the jurisdiction of that court. But I cannot put this (which is a superior court of general jurisdiction, in whose favour the presumption will be, that nothing shall be intended to be out of its jurisdiction which is not alleged and shown to be so) upon a level with an inferior court of a limited local jurisshall be intended to be which is not alleged to be so. diction, within whose jurisdiction nothing informed how the pleas were in this court, which are looser than at law; and no case 1 Saund. 74. I was desirous to be has been cited in which the plea to the juris T diction of this court has not given jurisdiction | this country for such publication, this impu to another, as to a visitor," &c. And afterwards, in The Bishop of Sodor and Man v The Earl of Derby, 2 Ves. 357, lord Hardwicke, speaking of the plea to the jurisdiction in the former case, and of the grounds on which he had over-ruled it, says, "I would not be understood when I over-ruled the plea of the duke of Atholl, to have over-ruled it on affirmance of the general jurisdiction of this country to try and determine the title to the Isle of Man, or any such feudatory dominion; but merely on this:-the plea was to the jurisdiction, without averring to what court the jurisdiction belonged; and the rule of law is, that in a plea to jurisdiction, like a plea in abate ment, where it is to a court of general jurisdiction, you must also show where the jurisdiction vests, as well as negatively that it is not there: but if it be an inferior court, you need only plead thereto, and not show where it is," &c. If then the circumstances attending the defendant, of his birth in Ireland, and his residence there at the time of the publication made in this country, have the effect of rendering him not punishable in any court of nity must follow as a consequence, from its being no crime in the defendant, so circumstanced, to publish a libel in Middlesex. And indeed the argument rested wholly upon this position, that the defendant owed no obedience to the laws of this part of the United Kingdom, and if he owed no obedience to them, that he had been guilty of no crime in acting contrary to them. But such defence, if it can be in any form available in law is matter of absolute bar and an entire answer to the charge that he unlawfully published the libel in question; and the plea in that case ought not to have been in its present form, in which, as was said by the counsel for the crown, it is at most but an argumentative plea of Not Guilty. On this account therefore there must be judgment that the defendant answer over to the indictment. Respondeat ouster. It was then ordered that the defendant do answer over instanter, otherwise that judgment must be entered against him peremptorily. Proceedings on the Trial of the Hon. Mr. Justice Johnson at the Bar of the Court of King's Bench Westminster, before a Special Jury of the County of Middlesex, on Saturday Nov. 23: 46 GEO. III. a. D. 1805.* INTRODUCTORY NOTE. Ir is proper, in this place, to advertise the Reader of the proceedings which took place in the Houses of Parliament subsequently to the decision of the Irish Courts of Law on the motions for Mr. Justice Johnson's discharge, and antecedently to the trial at Bar. I have therefore extracted from Hansard's Parliamentary Debates the following passages: "House of Commons, Friday, "Mr. James Fitzgerald, in consequence of the determination of the court of King's-bench in Ireland, on the construction of the act passed in the last session, for the more easy trial of offenders escaping from one part of the United Kingdom to another, in which determination the construction had been established by the opinion of two judges against that of one; in consequence also of the great agitation that had arisen in Ireland, on this determination, and assured of the concurrence of the gentlemen of the Irish bar, who, if they did not See the trials of Cobbett, pp. 1 and 53 of this Volume. concur with him, would have abandoned all that independence of judgment, and all those sound principles of law and reason of which they had ever been so honourably tenacious, felt it his duty to call the attention of the House to the provisions of the act in question, which so flagrantly called for amendment in the point he alluded to. He should have felt it his duty to give notice of a particular motion on this head, if he did not think the amendment would come better from the quarter in which the act had originated. He trusted the hon. and learned author of the act would offer such amendment as would be best calculated to preserve the spirit of the act, and at the same time to remove every thing that could give rise to such unjust construction. "The Attorney General had no difficulty in allowing that the act required amendment in some points. At the same time he doubted, whether the amendments he thought it required were the same that were wished for by the learned gentleman, for he knew of no amendments that were rendered necessary by the proceedings in that court, nor did he think it right, in the present state of those proceedings, to prejudice the discussion of the case now before the courts, by a parliamentary declaration of the sense of the House upon the construction of the act. "Mr. Fitzgerald said, that according to his view of the justice of the case, the person taken up should be at liberty to give bail where the arrest took place, for his appearance where the offence was committed. It could never have been the intention of the framer of the act, that a person arrested in Ireland, for a bailable offence committed in England, should be brought to the place where the offence was committed without being allowed to give bail; or, that a person arrested in England for an offence committed in Ireland, should be conveyed to that country without availing himself of the legal mode of liberation till the time of trial. "The Attorney General, in explanation, agreed perfectly, that the evil complained of by the learned gentleman had never been in his contemplation. The provisions of the act of last session had been copied from the act of 13th Geo. 3rd between England and Scotland, in which the defect had not been noticed until the occurrence now alluded to had case pending in the courts of the sister kingdom. That case had been decided, and therefore he felt himself at liberty to bring forward his measure. The object he had in view, was simply to enable a magistrate in Ireland who might execute a warrant issued by a magistrate in England, to give the same bail as if the warrant had been issued in that country, and vice versa. The charge, that he had framed the measure of last session with a view to bring Mr. Justice Johnson a prisoner to attend his trial in this country, would fall before a statement of a fact. The bill had been prepared by order of the secretary of state the preceding ses sion, though, from the advanced stage of the session, it had been deferred till last session, and he had obtained leave to bring in the bill some days previous to the conviction of Mr. Cobbett; and it was not till some days after, when the original manuscripts had been given up by Mr. Cobbett, that Mr. Justice Johnson could be considered as the object of a prosecution. Leave was given to bring in the bill." 5 Hans. Parl. Deb. 119. The bill appears to have passed through mons without further notice. In the upper House, however, the following proceedings took place upon it: discovered it in both." 3 Hans. Parl. its respective stages in the House of Com Deb. 309. "House of Commons, Tuesday, April 30, 1805. "Mr. J. Fitzgerald called the attention of the House to an extraordinary construction (the arrest of judge Johnson) which had been put upon the act made for the purpose of arresting felons and traitors in any other part of the United Kingdom. He was proceeding to comment with severity on this construction, when the Speaker informed him it was not regular to enter fully into observations of this nature, but that he should simply give notice of the measure he intended to bring forward. The Attorney-General said that it was still his intention to move for an amendment of the law alluded to; but he did not think right to do so, while discussions were pending in the Irish courts of law on the true construction of it with respect to that country." 4 Hans. Parl. Deb. 507. "House of Commons, Monday, May 27, 1805. "The Attorney General, pursuant to notice, moved for leave to bring in a bill to amend the act of last session, for facilitating the arrest of offenders escaping from one part of the United Kingdom to another, or from one county to another. He had deferred this motion hitherto, lest it might appear, if he had brought it forward earlier, to be a prejudging of a "The Duke of Cumberland presented a petition from Mr. Justice Johnson. The petition, after setting forth the leading circumstances of his case, stated in substance, that the petitioner was put to very considerable expense in defending himself in a cause now depending in his majesty's court of King's-bench. That he was informed that a bill (the Felons' Escape) was in that House, which contained several clauses which if passed, would have the effect of an er post facto law upon his cause, and prayed that their lordships, in their wisdom and justice, would so amend such clauses, as that the law, at the time of the alleged offence, might not be altered. The petition was ordered to lic upon the table." 5 Hans. Parl. Deb. 557. "House of Lords, Thursday, "[OFFENDERS' ESCAPE BILL.]-Their lordships having resolved into a committee on this bill, "The petition of Mr. Justice Johnson, presented and read against certain clauses of the bill, which went as stated to affect his case in the nature of an ex post fucto law, and praying, as in the concluding terms of the petition, that his case might not be affected by |