Star.
London, England, 1805-02-25 00:00:00

LAW INTELLTGENCE.

IN CONTINUATION IRON TN' raiciDlNG TAOS.

COURT OF KING'S lilNlll, DUBLIN, JAN.
THS KING V. MR. JVSTICR JoHMIIOM.
(Cx.e'udrd from our Paper of Tharlday lf•J

Mr. ATTORNEY GENERAL, in reply, argtieti that
the cafe before the Court was to be confidered like
any common cafe, without reference to the particular
mil-demeanor of the perfun who Rood accufed, or the
particular defcription of eetfon accufed. In order
to try the AA, every ptillible -cafe may be fuppofed,
atd applied as tens to alcertain it, meaning. It might
be fuppofed the cafe of an innocent man, falfely ac-
eukd, andlabonring under opprellion.• or it might
be conceived the cafe of a flagrant malefaaor, dread-
ing punithaseat, and 'kinking from trial. Mr. Jul:
tice Johnfon, it appeared, was indißed for a libel in
the King's Bench of England, and a warrant, figned
by the Chief Juftiee, Axed for his apprchenfion.—
Mc date of that warrant appears to be the 24th of
November, 1804; why the warrant remained unex-
ecuted from November to January, was not need-
fary to Rate; but, in reply to Come obfervations, ex-
prefred, probably, with more ha; Ihnefs than had been
intended, he would Rate, that on the Tuefday before
execution of the warrant it was diflially intimated
to Mr. Jake Johnfon, that unlefs he would fign a
paper, undertaking to appear and plead to the india•
silent which had been found, it would be necelTary
to enforce the warrant againß him ; but that if he
would undertake to appear a plead within the fiat
eight days of the then enfEng term, that the war-
rant fbould be withdrawn. Mr. Juftice Johnfon re-
plied, that his Counfel were out of town, and that on
their return he would confult them ; but gave no
other anfwer. No reply came on Wcdtrefday—none
on Thurfday ; and therefore, late on that day, the
warrant having teen previoufly indurfed, two Magif-
t.. it;, went to his houfe at Milltown, informing him
that thee had a warrant to urea him, and alio a pa-
per, which, if he figned, undertaking to appear and
plead, the warrant wculd nut be executed. Having
declined to fign it, be was then informed by the Ma-
gi.lraie, that be bad direr tions to execute it, tithe' on
that evening or the following morning, at any hour
ninft convenient to him ; and of courfe the alterna-

the being given, though be refuted to lip the pa-
per, the warrant was not then executed. The Ml-
gittrate, upon his return to town, was diteded to
write to Mr. Juttice Johnfon, that he would be waited
upon at one o'clock the next day. It was forefeen
that he might apply for a Habeas Corpus, but not
until &only before the execution of the warrant; and
accordingly copies of the neeeffary documents were
prepared to be furnithed to him on his arrival in
town ; but be required them on the (pot, and they
were copied accordingly. This occafioned Tome de-
lay. and mull appeal...to every one to have been alto-
gether unneeeffary. To avoid the inconvenience of
taking h;rn out of hls own room, a feconi Magiftrate
was prefent at the time of the arreft, who ofered to
bail him on the fpot, or to ditebarge him on his own
recognizance ; but refuting thorn terms, he was
brought to town, and was offered to be lodged in the
houfe of the Jutlice of Peace who apprehended him,
or in any other houfe in Dublin which he mould fi-
led, and accordingly he was taken, by his own dcfire,
t'. a houfe in Harcouttlreet. He then fent a mef-
fage to the Attorney General, requelling rermiffion
to return to Milltown, in the county of Dublin, and
Elating that it would require time days to prepare the
neceirary affidavits fir obtaining a writ of Habeas
Corpus. The Attorney General returned for an-
(wet, that it was beyond his authority to fend him
bask ro Milli .wn, and as term was approaching very
near, and that a little further delay woili have the
ailed r f rtiponing the prifoner's trial, Mr. Attorney
G • ral &Sued the Magittrate to tell him that there
wa. saity to detain him in town, and that he
n.n - • hunt-elf on his palfage to England.—
'1 a .ad the ha:ended effect : Mr. Juilice Johnfon
wen., s• ith the Magiltrate in whole cuflody he was,
t the houfe of the Chief Jaillice, who immediately
figned the fest ana then* fignified to tl.e Attorney
t.,entaal that he bad done fo, Lut that there might be
frame delay in preparing and fealing the writ. The
Attotney General therefore inflantly contented that,
upon Mr. Jullice Johnfon undertaking to fue out
she writ, and to have it ferved that evening, that he
fhould be difcharged ; he accordingly was difcharg-
ed, the wt it was afterwatds delivered, and at the ap-
pointed hour the next day the Magill: ate was prepar•
ed with the return to it. When charges of oppreffion
had been made it. courfe of argument, Mt. Attor-
ney General tattled he would be excufed for having
recited' a few fails in his own vindication. _ He with-

ed to take the firft occafion of meeting and refuting
the allegation, and diffiadly to diking% for himfelf
and others the moft remote idea of any proceeding
towards Mr. jullice johnfon, which the neceffitry at-
tainment of juftice did not indifpenfably require.
Having thus defcribed the arreft, Mr. Attort_y Ge.
literal called the attention of the Court to the motion
for difchatge : The All on which the party was ar
refted, ands, in the 4th fe&ion, That if any per-
fon or perfons, again!' whom a warrant (hall be it-
fued by any of the Judges of his Majefty's Court of
King's Bench, &c. for any crime or againft the
laws of England or Scotland refpetegly, mall eG
cape, gn into, refile, or be in any place of that part
of the United Kingdom, called Ireland, it (hall be
lawful to :weft him," &c. &c. itefe words were
fo plain and obvious, and there was fo little difficulty
in that part of the Al, the operative part upon which
the warrant was grounded, that he might be juftified
in alking what quantum of ingenuity, who: portion
of learning was neceffary to make plain words intel-
ligible> For that being once found, there would then
be afccrtained the portion of intelled ueceffary to en-
title Mr. juflice Johnfon to his difcharge. The
. .

words he had recited were not pretendceto be of

ambiguous import ; but to mire a doubt upon
them, the preamble of that, and all the they fic-
tions were to be fearched. to incteafe the con u i n,
recourk• was to he had to the title 01 the Aft, with
an auxiliary wthe.artiof before, namely, the marginal
altridgment of the compilers of the AB, 'who, in
abridging a elaufe, are fuppefed to be making the
.4fift of Parliament. Recourfe was to he had to all
odder (lactates upon the fame fubjea in England, not
to ltrengthen our aft, but to artive at this happy
conclufion, that by this mighty" 'Aft
meat, the legiflature intended little or nothing. The

Court was, however, to adhere to the old rules OI
confirudion; they were to oppofe the evil and the re-
medy to each other, and if the words of the aft were
found to embrace the whole of the fubjeft, they
would not carry the low into effect if they diminifh-
ed of thole words their full operation. The first oh-
jedion of the Prifoner's Counfel was, that the legif
latureintended to have cohfined the II to capital tali:,
and not tb have extended it to mifdemeanots, but
this ohjeflion is done away by looking to the Date of
the low previous to the aft under confederation.—
The King, by his prerogative, might have removed
from one part of his dominions to the other, all per-
Cons charged with capital offences, in order to abide
their trial. The truth of this porition was known to
every man at all converfant with the criminal pro-
ceedings in the two countries, and further founded
upon the authority of the Englifh Habeas Corpus
Ad. This aft was conceived in great jealoufy at
the conclufion of the reign of Charles 11. and Ilion.
ty before the acceffion of James. The Irith Habeas
Corpus Ad, having been enafted in the reign of his
prefent Majefly, it was not thought necelary to en-
tertain the fame jealoufy of the Houfe of Itnentwieh
as of the Houfe of Stuart, and therefore the Iri(h ad
did not contain the prohibitory claufe of the Englith
aiff, nor the provifo reftraining it. It left the Lim as
it found it with regard to the prerogative of the
Crown. To fupport the limited conttrultion pro
pofed on the part of the Defendant, it is contended,
Paid Mr. Attorney General, that the words "felons
and other malefa&ors," do not embrace minor of-
fenders, and that the word tnalefador is not appli•
cable to a man who has not committed one of the
greater crimes. In my judgment it extends to offen
den df all defciiptious. My conftrudion of the
word Malefactor does not needfully deny that a ma-
lefaCtor may be a man oho ought to be hanged, but
their conllrudion goes to deny that he is a man, the
meafure of whole guilt may be fatisfied by the char-
ofement of whipping. They fuppofe that a malefaftor
mull be ripe for execution ; I fuppofe he may be alto
man guilty of an inferior crime, and who may be ftopt
in his career of vice, by timely andfalutary punifhment.
The first obfervation natut ally occurring was, that
when the words " Felons and other bfalefaetors,"
were ufed, they nosh mean " Malefatiors"—" other"
than Felons. If the word applied only to fupetior
crimes, it might be laid down as a general role, that
though there might be felonies not capital, there are
no capital offences not a felony, t Hawk. 99. That
the word felon extends to cafes not capital is maid.
fell. Petty larceny is not capital, yet it is a felony.
Then who would fuppofe that the Legiflature laid
hands on the petty pilferer, and yet permitted the
malignant flanderer to range unmolefted. The word
malefallor fignifies an evil-doer literally. Taken in
the common acceptation of the Engliffi language, it
is an offender againft the law—ride, johnfree Dic-
tionary: by the way, this work is no indifferent re•
pertory of Bella Lettret, and has been rectified to
with great fuccefs by thole who conceive the Poets
to be the heft commentators upon an Aa of MIA.
meat. But look to the word as ufed in our antient
Statutes. The Stat. De MalefaBorilta in parvir, ap-
plies to folperior offenders, and obferving upon the
Stat. 34 Edward 3. Sir M. Hale (peaks of malefac-
tors being bound by Juftices of the Peace to their
good behaviour, and therefore the word, by decided
authority, defcribes inferior offences. In proof that
the words of the Ad of laf &Mon could admit of
no other conkultion than that maintained on the
part of the Crown. Mr. Attorney General put it in
this manner: " Suppofe I fhould be called upon to
prepare the draft of an Ad of Parliament to d)
away the doubt, I should begin—" Whereas tome
perfons of lingrilar lagacity in the laws of Ireland,
have -onfiderable difficulty in underftanding the
words " Felons or other Malchidors," be it, there-
fore declared and enacted that there words than he
held and confirued to extend to all perfons guilty of
any crime or cJnce again( the laws of England and
Ireland refpedively. '—This certainly would not be
;gnotmo per ignotime, for it would be explaining the
Ad, by ufing the very words to be found in the Sta-
tute fought to be explained. I know of no fpecies
of crime or offence that the words do not include.—
You are not to torture the plain meaning of the
words in order to render the Aft inoperative. You
are not to call about for a hook to hang a remnant
of the law upon; you arc not to Drip it of its legiti-
mate energy and force, and then expofe, the ineffettive
Ikeleton in mockery of the Legiflature. It has been
preffed that a criminal for a Leifer crime is not to be
removed in a manner fo inconvenient to him, but
yet it is admitted that a perfon guilty of petty lar-
ceny to the amount of twelvepence falls within the
Ad as a felon.—Does he who, with malice pro-
penfe, inflicts the vengeance of the fword, meeting
his adverfiry in the dark and (hiking him unfeen;
does he who fends his .poifon into other countries,
whether for the body or the miad, whether by ark.
nic or libel ; does he who writes from the malice of
his heart, or who lives upon the reputation of others
when he can no longer fubfift upon his own, does be
feet to be compared with every common pilferer,
and to profit by the companion Suppofe a man fent
pills under pretence of adminitlering to the health of
another in England, but in reality to poifon him, and
the party dies ; is filch an offender to (Ay that he
was not in England at the time of the offence being
committed ; (hall he be permitted to fay that he *as
not within the Aft of Parliament becaufe he did not
efrape from England ? If the Ad receive that con-
!fruition, the pifoner elcapec, the libeller efcapes, all
that train of crimes which debafe thetleart,ond thew
the cowardice of the criminal, becaule committed
in fuppnfed fecurity, will be relieved from the ope-
ration of an Aft profeffing to apply to all offenders.
Is not this a cafe of fuch enormity as comes with-
in the provifions and words of the ad. fo as to enable
the Law to grafp the offenders, and will you, my
Lord, Dand between the law and its legitimate ope-
rations But the feelings of the Court have been addref
fed on this occafion, and, through the Court, fore-
thing has been Paid to the public. • Bin I entreat you
not to let every criminal embody himfelf with the
liberty of the people ; and fuppofe there can be no
freedom. in the lipd, but while it is an afylum for
Malsfadors. I like to hear fine fentiments thanted
from the Dock—but, my Lord, the liberty of the
tithjed is to be preferved by other hands, and he who
attempts to fupport it, by defeating the law, will
find himfelf miferably mistaken. But I cannot pats
over the language which has been tired, of " Confti-
tutional Law and Constitutional Judges." How I

love to hen Judge paling over the law to gratis at
the Conflitution'; mounting the liberty of the tubjeft•'
to ride away from an Adak' Parliament. This Court
will not exhibit fuch a pitture. For my part I do
not underfiand the diainflion in a Court of Law. I
confider the laws as embodied in the conflitution, and
I do not feel that they can have any feparate exig-
ence. If you cannot get out of the Atft by legal
conaruftion, look :tot to the Conflitution to help you
out of the difficulty. He who is mutt obedient to the
Law is moil faithful to the Conflitution. Conftrue
this aft fo as to forward the remedy. and reprefs the
mifchief, and yOu may defpife the veils and idle at-
tempts of any criminal to excite a public feeling in his
favour, whore only pledge to the Conflitution will be
his refillance to the Law. I have pointed out feve-
ral clalfes of offenders, who would cfcape punithment.
if the words " or be" are (truck out of the Att,
and the meaning of the Legiflature confined to the
words " ej;-ape ane go into."—But inafmuch as a no-
table difcovery was made by the Defendants' Court-
fel, permitting the entire four words to remain, it
may be necelfary to obferve a little-upon this con-
firuaion. It teems that a word or two becomes ne
ceflary to be introduced for this purpore, and will
have the effea of making very great jargon of that
'vbich was very good fettle. The expolittoo is this—
the four words are to remain ; but then they are to be
feparated, and the two fill are to be applied to thefoo-
fax, and thetwo lath to (Imp:lce: thus at the expence of
a little law, a little grammar, and a little good-fenfe,
the perfon to be apprehended is the perfon who efcates
orgoes into, and the place where he is to be apprehend,
ed, is the place in •eitich he (hall type or k. 0 fa-
pient and fagacious Legiflature ! with what wifilrms
haft thou provided. that a man !hall not be taken
where he is not to be found. With what timely pro-
vidence halt th of pointed out to the Conttable the
precife line of his duty ? You 6rR deferibe the offen-
der and then you provide that he (hall never be ar-
relied but in the place where he (hall be. The perfon
who efcspes from England, and goes into Ireland, is
the perfou witl.;n the Aft. But what do the words
rflide or be" mean? 0 ! they have nothing to do
with the perfon; they only guard again& the indifere-
tion of the Conulable who might, otherwife, arrclt a
man in one county, while he was innocently employ-
ed in another."—There may he good fenfe in this ar-
gument, but I flail leave it to be difcovered by others,
protelling that to my humble judgment. it is a Con-
ltruetion which paffeth all underftanding. In refuta-
tion of the polition that the entraing part of the Sta-
tute was to be co:tooled by the Preamble, Mr. At-
torney General quoted Judge Buller when giving the
opinion of the Twelve Judges of England. The cafe
arofe out of the 9th of Geo. I. c. 22. fir fending
threatening letters, and the Judges decided again
the Preamble. To the argument, that the statute was
profpeetive as to crime, and could not attach where
the guilt was complete before the IR of Auguft laft,
Mr. Attorney General laid, that there was no new
crime created by the Ad, it only gives a new mode
of apprehending an old offender : But was every new
procefs for bringing a delinquent to be called an expo,
AS? Law? As Well might be a Conflable newly
created be called an " ex Hi faao" Conflable. The
appellation could properly be given only to a Law
which, after the fad done, made that criminal which
was innocent before ; the diftinflion was too plain to
be miftrolerflood although it might be palled over or
mifreprefented. Mr. Attorney General now came
to the lad obje&ion of the prifoner's Counfel, drawn
from the words " Whereby their og-nces remain un-
punifhed, &c." It was argued on the fide of the De-
fendant, that he m; ht be tried in Ireland for the
libel charged again& him. Mr. Attorney General
contended that no foch argument could have force ;
the King'speace was diliinCt in England and in Ireland,
and a man could not be tried in the one place for an
offence againfl the laws of the other; and upon this
point theUniun made no alteration, the almini aration
of jullice being diftind in both Minds, and conviaion
in the one could not be pleaded in bar to an indiftment
in the ether. But fuppoling the offence triable in
either country, did it follow that the criminal was
to chufe his own Judge? Becaufe he refuted to be
tried where the accufation is made, mutt juflice fub-
rnifilvely wait upon him where the may not have the
fame means of vindicating hcriclf? But, my Lord,
Paid Mr. Attorney General, to come to olain and
manly language, if the author be in this land, let him
come forward ; let him raife• his head and be teen,
and I will throw myfelf upon the juflice of an Is Mt
Jury and an Irifh Bench.—l will not shrink front the
trial of fuch a que(tion in my own country. Who is he
that ufes theft arguments ? He is fuppofed to be an
Irifhman, and ref ident in this country. If In, he knew
the falfehood of his calumny, at the moment he was
accufing a Member of this High Court (which I have
the honour to addrefs) of tarnifhing his robes, and
polluting his ermine, which had been cutrufted to
him as a facred depodt. And he preferred this ac-
cufation, not before an Irish public, where the inte-
grity and charaEler of the learned Judge would have
proteited him from the coarfe flander of his affail-
ant, but before the ttibunal of another country, where
he could not have equal proteftion. This libeller,
whoever he may be, dragged him to a diaant Court,
without notice of trial, without procefs to bring in
-his witneffes, without letting him fee the hand that
held the accufation. Shall filch a man complain of
being brought before the fame tribnnal to purge his
abominations ? But let him avow himfelf, let him
rest upon the merits of his publication, and I will try
him at home. Yes my Lord, I feel ft would he di•
vine retribution, that as he tried an !moat man
where he was not known, he fhould be tried himfelf
where be would not only have the charge of the ac
cuter, but the whole weight of his own charaficr to
contend with. I fhould be influenced by more than
ordinary zeal for his conviction, if I willed liim to
labour under more accumulated preffure. H;s cha-
rafter isnot unknown to the law. He mull be a man
unchalle in his manners, embarraffed in his fortunes,
and profligate in his principles. The language may
be my own, but the deltription is pretty accurately
taken from Lord Coke's report of the cafe De Liltellie
fastrofi." After meeting at let ,ipth many other points
of the oppofing argument, Zr. Attorney General
proceeded—" If there are imperfections in ibis AEI
of Parliament, they may be ratified ; and it will
mortify the vanity of thofe who have been •fo loud
in obferving upon the omiflion to provide hail, to
tell them that the obfervation did not originate with
them. I hope it may be remedied ; but certainly it
cannot without coufideration. As to the empty de-,

damation about the repeal of the Habcoc err:tr.:
Aft, it is idle and prepofterous. Every an
makes an arrell lawful, which was nut fo be(,
as well be called a repeal of the Habeas C'tri‘rs
Aft. It nrver was the intention of ttiat Aft to dir-
charge a i. 'don who was lawfolly arrested, and the
liberty of the fubjeft does not depend upon freedom
from arreft, but in having the cafes clearly and di/
tinftly defined, in which he may be liable t. it. The
Defendant is not in enftody under a Warrant of Com-
mitment: indicted for a crime in Eng'and, he will have
the full benefit in that country of the Habeas Corpus
Aft;--he is offcted the fame advantage here, but he
difclaims the favcur ; and ..et, in his propels to an
ENGLISH JUDGE and an Ewn1.1514 JURY, his dtnation
is compared to that of an unfutunate Duke, who
was hurried to Palk, and rxecteted at midnight ! It
does not become Connie! for the Crown to anticipate
his conviftion, and I trul the eloquence of his Ad-
vocate has hurried him beyond his own view of t'
fubje£l." After Conte further matter, the Attu 1! y
Ceneral concluded hi, reply, syLiLli ably c:.,
quently embraced the entire of tile oppofite argq-
ment, in the following winds : '‘ It has been alledg-
ed, that animadvcrtion upon puhlic fubjefts is a pnb.
lic right. Within certain bounds, I admit it. But
no man is to make pubic difctiffion the pretence for
petting forth private mllice and refcntment. The ho.
nett feelings of individuals are not to be made the
(port of every idle calumniator who fe::ks his own
repofe in the affliCtions of others. If he diffeminates
his poifon, he mull anfwer for the contequences, and
may be allied, Who fithjefled the aftions of hone&
and honourable men to fuel' a it ilvinal as thou art
Who made thee a Ru'.et and a Judge over us ? Ceafe
thy iniquitous incinifitit;n—judge not, left thou
thouldit be judged.' The Banderer fhould be deli-
vered °vet to the punithnient he deflrves. Thus
(hall you fatisfy the laws and preferve the conflitu.
tion ; and, ening with an even and unlitaken hand,
teach the body of die people this faltitary led ,n, that
•as the weakell man is flreatg when upheld by the law,
fo the ftrongeft man is weak when lie prcfnmes to re-
lilt it."

.On Thurfday, the 2S:11, the Court gave its opi,
nion firiatim, and the judgment was, that the prifo-
ner's cafe came within the At of Parliament, and
that therefore he wa, not entitled to be difcharged.
The defendant having vbta:ned a writ of Habeas
Corpus out of the Court of Exchequer, the cafe was
re•argued there, and judgment given correfpondent
with that of the King's Bench ; previous to which,
the dircuffion occupied three days. From thence the
cafe was carried, by the fame proccfs, into the Court
of Common Pleas, and continued to the 14 day of
term, when the Judges adjourned the declaration of
their opinion to the firft day of next term, and the
prifoner was admitted to bail in the Cow t of King's
Bench.