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1883.

Ex p. SEYMOUR suggested by Mr. Davitt that he had not had notice of the time v. DAVITT; of hearing.

Neither Mr. Davitt nor Mr. Healy apparently v. "HEALY; obtained any professional assistance, but made speeches on their Exp. SEYMOUR own behalf. Mr. Quin was represented by Mr. Adams as his v. QUINN.

counsel. Counsel for Mr. Quin contended that this court did not possess original jurisdiction to order sureties for good behaviour

to be given, though it was admitted that the court did possess Sureties for such original jurisdiction in cases of sureties to keep the peace. good behaviour.

The origin of the jurisdiction to order sureties for good behaviour is usually attributed to the English statute 34 Edw.3, c. 1, which is to the following effect : First, that in every county of England there shall be assigned for the keeping of the peace one lord, and with him three or four of the most worthy of the county with

ome learned in the law. Among other functions which these persons were directed to discharge in the way of repressing evil doers, they were directed “to take of all them that be not of good fame sufficient surety and mainprize of their good behaviour towards the King and his people.” That, upon the construction of this statute, justices of the peace appointed by the ordinary commission possess jurisdiction in proper cases to order sureties for good behaviour to be given, is not and could not be disputed. This court has on several occasions been recently called on to consider the law on this subject, and particularly in the cases of Reg. (Reynolds) v. The Justices of Cork (10 L. Rep. Ir. 1) and Reg. (Feehan) v. The Justices of Queen's County (10 L. Rep. Ir. 294; ante, p. 149); and it is sufficient to refer to those cases as showing the nature of this preventive jurisdiction. I should much prefer referring to the judgment of Lord Fitzgerald in the latter case to any judgment which I have pronounced. But with respect to the contention that this jurisdiction of ordering sureties to be given to be of good behaviour, though possessed by magistrates, is not possessed by this court, it is right to make a few observations. This court, and each member of it, are supreme convators of the peace in every county in Ireland. They are so by immemorial prescription, and long before the statute of Edward III.

This statute does not mention or refer to the ordinary justices of the peace; but upon the construction of the Act it has been held to apply to them as conservators of the peace. It would seem à multo fortiori proper so to construe it as to include this court, whose paramount office is the conservation of the peace throughout the country. In Burns' Justice of the Peace, a book of considerable authority, it is laid down, at page 743 of vol. 5, in treating of the surety of the peace : “This surety of the peace every justice of the peace may take and command by a twofold authority—(1) as a minister commanded thereto by a higher authority, as when a writ of supplicavit out of the Chancery or Queen's Bench is delivered to him; (2) as a judge, and by virtue of his office derived from his commission." This passage has reference to sureties for the peace. But Burn and all the ancient writers on the subject

SEYMOUR

1883.

treat sureties for the peace and sureties for good behaviour as Expo of near affinity, and scarcely distinguishable; and Burns, in

v. DaVITT;

Ex p. BEARNS treating of sureties for good behaviour, at page 758 of vol. 5, v. HEALY; cites a passage from Pulton, a contemporary of Lambard, in these Exp. SEYMOUR terms:

v. QUINN. The surety for the good abearing is ordained for the preservation of the peace, and

doth differ in nothing from that of the peace, but that there is more difficulty in the performance of it, and the party bound may more easily slide into the peril and Suretjes for

good behaviour. danger of it. The surety for the good abearing is most commonly granted in open sessions, or by two or three justices, or upon a supplicavit, and, great cause shown and proved, it is granted in the Chancery or Queen's Bench.” It would seem that in those early times in cases of importance application was made to the Court of Queen's Bench-not to the inferior tribunals-in cases of this nature. It appears to me that if any doubt existed as to the jurisdiction of this court it is removed by the statute 10 & 11 Car. 1, c. 10 (Ir.), which corresponds with the statute of 21 Jac. 1 (Eng.), which, reciting the inconvenience and hardship which the subjects had been put into by having process of the peace or good behaviour awarded against them in Chancery, or in the Queen's Bench, enacts that all process of the peace, or good behaviour shall be void unless awarded in open court, and upon sworn declarations made in open court. It plainly appears from this statute that such process had issued frequently out of these Superior Courts, and had been abused, and the statute regulates the practice in the Queen's Bench, both as to sureties for the peace and for good behaviour. Assuming that the jurisdiction of this court exists, it is next to be considered whether on the present occasion and as against the three respondents it should be exercised. The charge against them is grounded on certain speeches severally made by them, by Mr. Davitt and Mr. Quinn, in the county of Meath, and by Mr. Healy, in the county of Carlow. The affidavits of Charles Seymour and Pat. Bearns depose as to the existence for several years past of an agitation of an agrarian character in various parts of Ireland, and including the counties of Meath and Carlow, and state that in consequence of such agitation great excitement prevailed, and a combination had been set on foot againt the payment of rent, and numerous crimes and outrages had been committed in various parts of the country. The affidavit of the said Charles Seymour proceeds to state that on the 26th day of November, 1882, a meeting was held at Navan, in the county of Meath, summoned by placards; that such meeting was attended by four or five thousand persons, and that upon that occasion Michael Davitt made a speech, a few passages of which I will advert to. After mentioning an apprehended distress in some parts of Ireland, and that the periodical famines to which he declared this country subject was to be attributed to the system which permitted large portions of the land to be applied to grazing purposes, Mr. Davitt proceeds: “I

say

unless wise and just legislation should prevent its necessity, the time

Er

p.

1883.

Ex p.SEYMOUR will come when the starving people of Donegal and Connemara

will be told to march down in their serried phalanxes upon the BEARNS 7. Healy; plains, and seize the lands upon which to live like civilised Exp. SB) mour beings in a Christian country ;' and after speaking of compelling • QUINN. the Government to support the people during the coming winter,

he proceeds: "I propose that in case Mr. Gladstone does not

apply the surplus of the Arrears Act estimates to save the good behaviour. people, that no rent should be paid from November till next May.

That out of this sum a portion should be placed in the National
Relief Fund by which to save our people from starvation.” The
first
passage

I have referred to seems to me to amount to an open attempt to procure certain legislation by the threat of a treasonable insurrection. It seems that this portion of the speech approaches very nearly to an open and advised speaking which would bring the utterer within the operation of the Treason Felony Act of 1848. The second recommends that in a probable event rents payable to the owners of lands should not be paid to those entitled, but should be confiscated. I do not think it necessary for me to characterise such language, particularly, having regard to the recent unhappy history of this country. It is true that it is foolish and absurd. It is very improbable that any such insurrection will take place, nor can we apprehend that this advice as to non-payment of rents will now be followed as such exhortations have recently been followed. But its folly and absurdity does not excuse its wickedness; and, in my opinion its use, to say the very least of it, brings Michael Davitt clearly within the jurisdiction which the court is called upon at present to exercise. On the 26th day of November, at a meeting held at St. Mullins, in the county of Carlow, for the purpose of founding a branch of the National League, Mr. T. Healy made a speech in which he made use of the following language, impresssing on them the necessity of organisation. He said : “ The British Government in Ireland, which was simply a system of land piracy, was upheld simply by organisation. The police they saw were simply the officers of what they might call the Government League. The Government of this country, being as it was an organisation against the will of the people, was simply an organisation of so many pirates and so many brigands. It was entitled to the same moral respect as a cut-purse who held a revolver at your head and said to you, 'Your money or your life.'” Is it necessary to say that such language is clearly and grossly seditious, calculated to bring the Government of Her Majesty into hatred and contempt, and its use affords grounds abundantly sufficient to in. duce, or rather call upon, this court to exercise the same jurisdiction. With respect to P. Quinn, it appears upon the affidavit that at a meeting at Ross, in the county of Meath, called for the purpose of establishing another branch of the same National League, Mr. P. J. Quinn made a speech in which, after stating he had been arrested with many others as a suspect, and detained in prison ten months, he proceeded : “Well my friends, how did we come

out.

1883.

out of those prisons ? We went in mild, but how did we come Ex P. SEYMOUR We went in reformers, and we came out as rebels.

v. DAVITT;

Ex p. BEARNS Nine hundred of us were thus imprisoned during the term v. HEALY; of the Coercion Act. What are those nine hundred doing now, Exp. SEYMOUR and where are they? They were trained in the prisons and are

v. Quinn. now spread over the country from the Giant's Causeway to Cork, and from Dublin to my native county, and those are the men who are now inculcating the minds of our countrymen

Sureties for in their duties towards their native land-inculcating such advice,

good behaviour. it may be assumed, as rebels usually offer.” In another passage he says: “Our enemies have boasted that the Land League is dead. Well, it has been declared illegal. True, its flags are not seen here to-day; no banner bears its inscription here. But the banners on which it appears are carefully rolled up and hidden fast for a future time, when they shall expand themselves in the breeze," and so forth. That is, the resuscitation of an organised body declared illegal, and for the present dormant, is announced and advocated. He then proceeds: "I will make one remark to the farmers. They did not obey our words of advice they received from the prison, ‘pay no rent.' Till they come to this the people have not come to a right conclusion (pay no rent); and when the agent, the bailiffs, and satrap of the landlord comes button up your pockets; and when they come again the farmers know what to do.” This portion of this speech brings the case exactly within that of Mr. Feehan, in which a general exhortation to the tenants of a landed owner to pay no rents until a certain evicted tenant should be restored to his holding, was held by this court to justify magistrates in requiring sureties for good behaviour. Neither Michael Davitt or T. M. Healy offered any evidence. Quinn made an'affidavit in which he simply stated that the report of his speech was not a full or accurate report; but he did not deny that he had made use of language of similar import. None of the three respondents have made any apology or said anything approaching to an apology, nor a word that could mean that they intended to desist from holding such language in future. T. Healy, on the contrary, had the hardihood to state in court that he had made very many much worse speeches, and that he intended to continue making them. Now, having regard to all the circumstances of these cases, recollecting that these speeches were addressed by conspicuous persons to large bodies of people, and that those made by T. Healy and M. Davitt were manifestly intended to be reported, and have been reported in public journals having a wide circulation, copies of which have been handed up to the court, such speeches being attended with danger to the public tranquillity, as I think they are, in my opinion the officers of the Crown were well advised to make the application they have made to this Supreme Court of Criminal Jurisdiction, and not to any inferior tribunal. I think the court clearly possesses jurisdiction to make the orders sought. The responsible officers of the Crown

Exp. SEYMOUR have applied to us to exercise this preventive jurisdiction in the Exp.

Beding present case, and I think the application must be granted. v. HEAŁY ;

LAWSON, J.-In these cases of Davitt, Healy, and Quin, I desire Exp. SEYMOUR to state in a few words the reasons which have led me to concur v. QUINN. in the judgment of the court. We are asked, on the motion of 1883.

Her Majesty's Attorney-General, to make an order compelling

the traversers to give security for their good behaviour, and in Sureties for default thereof to be committed to prison. The application is good behaviour

grounded upon the allegation that they have delivered speeches of a seditious tendency, calculated to endanger the public peace, and that they intend to continue to do so unless prevented. Such applications are usually made to justices at petty sessions, and recently orders made by them in such cases have been brought before this court by certiorari with a view to quashing the orders, but they have been sustained after argument. These authorities are, Reg. (Reynolds) v. The Justices of Cork and Reg. (Feehan) v. The Justices of the Queen's County (ante, p. 149), both reported in the 10th volume of the Irish Reports. The judgments given in these cases exhaust the learning as to the jurisdiction of justices in such cases, and establish beyond all doubt the existence of such jurisdiction, and that its exercise will, in a proper case, be upheld by this Court. An application, however, to the Court of Queen's Bench in the first instance is in recent times not usual, and when the case was first mentioned to the court by the late Attorney-General it struck me as strange that we should be called upon to do what would appear to belong more properly to justices at petty sessions. But if we possess the jurisdiction, and if the cases be such as call for its exercise, the reasons assigned by the Attorney-General for applying to this court appear to possess considerable force; he says such cases are of frequent occurrence, that they involve a matter of great public importance and of wide application ; and in order to prevent the necessity of many applications to justices in different and remote localities he asks, not unreason. ably, that this court should itself exercise the jurisdiction, and authoritatively expound the law in order to guide the action of magistrates and others in similar cases. It appears to me, therefore, that only two questions arise for our judicial consideration, First, have we jurisdiction to make the orders sought; and, secondly, are these three cases such as in their circumstances call for the exercise of this jurisdiction ? As to the first question, it does not, in my mind, admit of any doubt whatever. Ordinary magistrates possess this power, and have continually exercised it from the earliest times, and the cases recently decided in this court have affirmed the legality of such action. It would certainly be a strange thing if we were to hold, as contended for by Mr. Adams in an able argument, that the judges of this High Court have a more limited jurisdiction in respect of the public peace than ordinary justices appointed by commission. I am clearly of opinion that at common law, and

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