recently mooted in Ireland; for instance, as to whether the names of
the witnesses should be furnished to the accused, and whether their
address and description should also be supplied. In such matters the
practice might vary, in a considerable degree, in the superior courts
of England and Ireland; and yet each course would be strictly legal,
in the respective courts in which it was adopted; for, as it was
clearly put by one of the Irish judges on a recent occasion, the
practice of the court is the law of the court, and the law of the
court is the law of the land.
When the time has arrived at which the accused must put in his answer
to the indictment, if he do not confess the charge, or stand mute of
malice, he may either plead, 1st, to the jurisdiction, which is a good
plea when the court before whom the indictment is taken has no
cognizance of the offence, as when a case of treason is prosecuted at
the quarter sessions; or, 2dly, he may demur, by which he says, that,
assuming that he has done every thing which the indictment lays to his
charge, he has, nevertheless, been guilty of no crime, and is in
nowise liable to punishment for the act there charged. A demurrer has
been termed an issue in law--the question to be determined being, what
construction the law puts upon admitted facts. If the question of law
be adjudged _in favour_ of the accused, it is attended with the same
results as an acquittal in fact, except that he may be indicted afresh
for the same offence; but if the question be determined _against_ the
prisoner, the law, in its tenderness, _will not_ allow him, at least
in cases of felony, to be punished for his misapprehension of the law,
or for his mistake in the conduct of his pleadings, but will, in such
case, permit him to plead over to the indictment--that is, to plead
not guilty; the consequences of which plea we will consider hereafter.
A third alternative is a plea of abatement, which is a plea praying
that the indictment may be quashed, for some defect which the plea
points out. This plea, though it was recently, made use of by the
defendants in the case now pending in Ireland, is of very rare
occurrence in ordinary practice--a recent statute having entirely
superseded every advantage formerly to be derived from this plea, in
cases of a misnomer, or a wrong name, and of a false addition or a
wrong description of the defendant's rank and condition, which were
the principal occasions on which it was resorted to.
Public-domain text, read in full here on John Shaqi.
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