The Sun. — London, England, 1844-07-10 00:00:00

THE STATE TRIALS. (FIFTH DAY.) WRIT OF ERROR. HOUSE OF LORDS, July 9. THE QIIEEN AGAINST O'CONNELL AND OTHERS. The House presented an unusual appearance. The woolsacks were deserted, and the clerks' table was re moved from the upper part of the House down to the bar. The Lord Chancellor's chair was placed at the head of the table, around which the Judges were seated, instead of their usual seats upon the lower woolsacks. All the Peers in the House took their seats close to the bar. This arrangement was made to relieve the Attor ney-General from the necessity of so much exertion as he had yesterday to make. The Right Hon. Gentleman was accommodated with a seat, and spoke in a feeble tone, and leaning over the bar. Prayers having been read, this case was called on, when The ATTORNEY-GENERAL resumed his arguments on behalf of the Crown. He last night called the attention of their Lordships to the objections taken to the record ; he would now proceed to the other part of the objections, and first, with regard to the challenge ; their Lordships were aware that the technical points argued before them were points of form with respect to the making-up of the record in that House, and not involving anything that took place in the Court of Queen's Bench in Ireland ; but the points he was now going to argue were argued in the Court of Queen's Bench in Ireland, and judgment given on them in favour of the Crown. Now he would first call their Lordships' attention to the challenge of the array, but perhaps it would be better before doing so to advert to the challenge itself, because he was satisfied when it was read all their Lordships would come to the conclusion that it was impossible for the Crown to take any issue upon it, and that the only course left open to them was to demur to the judgment. Their Lordships were aware that, according to the challenge, it was an array of special jurors, and the forms and terms in which the special jury was to be struck was pro vided by the statute, the panel must be struck by the Sheriffs. Upon this challenge 'Their Lordships would find, in the first place, no allega tion that any person was returned that was not duly qualified to serve as a juror—there was no allegation that the panel returned by the sheriff was not a fair one —and there was no allegation that any of the jury did not stand indifferent between the parties—and there was no charge that the parties making the challenge were prejudiced by the array, and certainly there was no averment that any act of impropriety had been done by the sheriff, or that the Crown had interfered with the return to the indictment. In Coke upon Lyttleton, 156 B, the doctrine of challenge to the array was laid down; and it was there stated, that the challenge might be either for a principal cause of challenge of the array, or a challenge by favour. The principal cause of challenge respected partiality in the officer returning the array, and if it were established, the array was quashed as a matter of course. In a challenge_ by favour, the array was not quashed as a matter of course, but the matter was tried. The grounds of the principal challenge were, that the sheriff or other officer returning the array were of kindred or affinity to the plaintiff or de fendant. Secondly, one of the jurymen were returned sit the nomination of the plaintiff or defendant ; or if he returned any one more favourable to the one than to the other, or if the plaintiff or defendant had an action of battery or debt against the sheriff, or the sheriff had an action against them ; or if the sheriff were under distress at the suit of either party, or for cause of an indiffer ency ; or, lastly, if he did not return hundreders when i me d e eelers ought to be returned. In a challenge by favour, the challenge must show all the circumstances of The case. If the plaintiff or defendant's daughter were of affinity to the sheriff's son, that would be a good ground of challenge for favour. The consequence of quashing an array would be that a new process would issue to another officer, different to the one whose fault had caused the array to be quashed, who would return a fresh panel. 'Their Lordships would find that the doc trine of challenges to the array laid down in Chitty's " Criminal J aw," page 526 ; Viner's " Abridgment," article "Trials ;" and. Bacon's "Abridgment," title, ".Juries." The Learned Gentleman then proceeded to quote a case in which a sheriff had delivered in an array fir the grand jury, and had sent it by a messenger. The plaintiff got hold of the messenger, and had induced him to alter the panel, by inserting certain names. At this lime the old sheriff was removed, and a new one ap pointed. The array was challenged, and the former - sheriff came into Court and disavowed the panel. The bench decided that it might be a good ground of chal lenge of the persons wh.ec names were inserted, but was not a good ground of challenge in the array. He would not read the challenge in this instance, but their Lordships would perceive that there was no statement of any de fault, partiality, or misconduct on the part of the sheriff who returned ti:e array. Although the allegations of the challenge were not made out, yet he understood that it proceeded upon this principle—that if, in making up the juror's book, under the statuteof 1 WilliamlV., there should happen to be any omission of any name, it mattered not whether the omission was one name or of twenty, but if there happened to be the omission of the name of any person entitled to serve on juries, that -could be a good ground of challenge to the array. He contended that there was no ground of challenge to the array in the case of this jury only ; but it would go to any other jury. In fact, the allegation went to show that no jury could be returned. It had nothing to do with the officer ; but in fact it went to this, that no trial, civil or criminal, could take place in the year during which the mistake took place. It was said if there were no jurors' book they could take the book of the year before. But surely they would not contend that there was not a regular jurors' book for 1844, because some of the names were omitted. Why, the same was most likely the case with the book of 1843. It was exceedingly improbable that all the names were in that book. The fact was that the challenge of the array was not the proper remedy for the iejury which the defendants alleged they had suffered. His Learned Friend Mr. Hill alluded to a proposition which had been made on the part of the defendants to show the bona fides of the challenge, but his Learned Friend the Attorney-General for Irelnd, would be guilty of a neg lect of his duty if he consented to anything of the kind, for if he had done so, it would prevent the jury from being a good jury. (The Hon. and Learned Gentleman then referred to the provisions of the Act of Parliament under which the general list of jurors was made out.) 'The challenge began by stating that the collectors of grand jury cess delivered twenty lists to the Recorder, and it went on to state that the Recorder had duly made out a list, but had not caused to be made out from the several lists one general list containing the names of all the persons whose qualifications had been so ar ranged according to rank and property, nor had the Recorder causd such to be fairly copied in the same order. Nobody had said that the Recorder had not made out a general list—that it was not delivered to the ch rice of the peace, and to the sheriff by the clerks of the peace. Nor was it denied that the sheriff had not anade out the jury-liss from it. But what was denied was, that a list was made out with all the names arransed according to rank and property. There was nu desial that the Recorder had made out a general list, though not a general list containing all the names arranged according to rank and property. This was what he would call a negative pregnant. The challenge went on:—" And the said Daniel O'Connell says that said paper writing, purporting to be such general list as aforesaid, did not contain the names of all the persons whose qualifications had been allowed upon the correct ing. allowing, and signing of said list as aforesaid by the Recorder, but omitted the names of divers, to wit, filly-nine persons, whose qualifications to be on the said lists respectively had been so allowed as afore raid by the said Recorder, which said several peraons whose names were so omitted are as follow." That was the challenge of Mr. Daniel O'Connell, but he begged to call the attention of their Lordships to the fact, that the challenges of all the other defendants were dif ferent, for it was added, " for the purpose, and with the intent of prejudicing the said so and so." What was the tneaning of the allegation that " a certain paper writing was made out by some person, or persons unknown?" What was the effect of it ? What was its bearing on the case ? There was no allegation in the challenge that the Recorder had not made out a general list—that it was not delivered to the clerks of the peace—that it was not delivered to the sheriff. There was no allegation that in that list so made up, and so returned, there was the omission of a single name. But there was an allegation that there was an omission of names from a certain paper writing, made up by some person, or persons, unknown. It was easy to see why the challenge was made up in that way. They had not referred to the general list made out by the Recorder and the other officers, because they found it would be hard to do so without alleging fraud against some one of the officers. In a subsequent part of the challenge, it was said that the challenger was not aware of or privy to the omission of the names from the paper writing ; but there was no allegation that he was not aware of or privy to the omission of the names from the general list. The challenge then went on to say, The said D. O'Connell further says, that the said several persons whose names were so omitted from the raid fraudulent paper writing, purporting to be the ge neral list as aforesaid, were, at the time of the said re turn of the collector's lists and at the time of the raid special sessions, and still are, severally resident within the county of the said city of Dublin, and sere at the said several times and now are duly quali fied to be, and should and ought to have been, placed upon the said general list." On this allegation he called their Lordships' attention to this fact, that it did not ap pear that the names so omitted from the general list, -were qualified to be placed on the special jurors' list. 'They were qualified to be placed on the general list, but there was no allegation that they were qualified to I , e on the special jurors' list. The challenge then went 1141 to say, " and the said Daniel O'Connell further says, shat from the said fraudulent paper writing, purporting to be such general list as aforesaid, a certain book, purporting to be the jurors' book of the said county of the city of Dublin for the current calendar year, to 'nit, for the year one thousand eight hundred and forty four, was made up and framed." He would ask by whom was it made up, by whom was it framed ? 'There was no averment that the book was not made up by the challenger himself ; it was not stated by whom it was made up, or under what circumstances ; it was slot averred that the challenger himself was not privy to and a contenting party to the framing it. He also re anindecl them that the jurors' book could not be made up by the Recorder, as it was made up by the clerk of the peace. The challenger then went on to say, " from the said book so purporting to be the jurors' book of the isaid county of the city for the said current year was made up the special jurors' list for the said current year, to wit, for the year one thousand eight hundred and forty-four." Again, he would ask by whom ? Was that done with the consent of the challenger ? there was not a word to say that it was not. " And the I said Daniel O'Connell saitb, that the said several per sons whose names were so omitted from the said frau dulent paper writing purporting to be such general list, were also omitted from the said book purporting to be the said jurors' book, and from said list pur porting to be the said special jurors' list." Here again, there was no allegation that the names were not omitted from the jurors' book ; it was only alleged that they were omitted from another paper which was not a document within the Act of Parliament. The challenge again proceeded, to say :—" And the said Daniel O'Connell further saith, that the said several persons so omitted as aforesaid had been duly ad judged and allowed by the said Recorder at said special sessions to be the persons having the qualification qualifying and entitling them and each of them respec tively to be upon the jurors' book, and also to be upon the special jurors' list, for the current year, to wit, the year one thousand eight hundred and forty-four." Now, he contended, that there was no power in the Recorder to allow any such thing. He read the 26th section of the Act to bear him out in this assertion, that the Recorder had nothing to do with judging whether these persons were qualified to be on the jury-list at all. The next allegation was, that the said Daniel O'Connell further saith, that the panel made to try the issue in this case was arrayed and constructed from the special jurors' list, for 1844, " to the manifest wrong and injury of the said Daniel O'Connell." Again, in this allegation it was not denied that the special jury-list was re gularly made up by the Sheriff, and though it was sated it was to the manifest wrong and injury of the chal lenger, yet there was no affirmation that it was made without his privity and knowledge, or that he was not the party by whom it was done. These were the grounds on which the challenge was to be set aside and quashed. This was the whole of the challenge ;it was quite unnecessary to enter here on a discussion upon the Act of Parliament, because there did not arise any point on the challenge which could vitiate the array. Bat with regard to the course taken by the Crown, of demur ring to the challenge instead of joining issue upon it, he contended that the Attorney-General for Ireland had no other course open to him, and would have committed a gross violation of duty if he had not done so. He had pursued the same course himself in a challenge made on the special commission. Ile should now pro ceed to the enactments of the Act of Parliament. The omission of a name could not render the whole array illegal There was a penalty upon the collectors if they die[ not make out the list right, or inserted any names improperly. Names might be omitted by the collectors of the grand jury cess ; the book might be made up and the jurors impanelled with that omission; but then there was a provision in the Act by which a party might get his name inserted. An omission could not have the effect of invalidating the jury list. This point had been vice brought before the judges in Ireland. The first case was that of "The Queen v. Fitzpatrick," in Craw ford and Dick's Reports, vol. 3, p. 513. The second case was that of " The Queen v. Conroy." A prisoner was indicted for murder upon four counts. There was a challenge to the array, and Mr. Justice Holy well, in giving judgment, said that the effect of allowing one de fect to vitiate the whole indictment, would be that the whole fabric of the adminis tration of justice would fall to the ground. The coroner was a general and not a particular officer. The array in the case of the coroner might be challenged, but it could not be challenged in the case of a particular officer. If there were any fault in the Crown-office, application should be made to the Court. He trusted that from the authorities which he had cited he had shown to their Lordships that there was no ground for challenging the array on the ground of the omission of names. He would not trouble their Lord ships further on that point. He would next come to the plea in abatement, that the traversers ought not to have been called on to answer the indictment, because the witnesses examined before the grand jury had not been sworn in court. It was impossible to contend that such a plea could have been allowed by the court. The Act does not say that the jurors should be "sworn," but that they should be "sworn or affirmed" in court. But there was another ground on which the plea was bad. It does not state the names of those witnesses, nor that they were unknown to the defendants. He held it an essen tial point in pleading that these things should be stated. But the fact that four witnesses were examined before the grand jury was not a ground of objection to the indictment ; for it was a non-constat that other witnesses were not examined. Lord BROUGHAM—The grand jury might find from their own knowledge. The ATTORNEY-GENERAL—Or they might examine one of their own body, upon his oath as a juror. (The Learned Attorney-General then cited cases in support of that view, from Carrington and Marshall, and also from Lewin's report ; but it was impossible in the gal lery to guess even their purport.) There was now an important matter to which he wished to call their Lord ships' attention. It was the assignment of errors in fact in an appeal to the House of Lords. That was She first time he had heard of errors in fact asigned in that House. He submitted that their Lordships' House, as a house of appeal, could not deal with errors in fact. He would first read the plea. (The Hon. and Learned Gentle man then read the pleas from pages 80 and 82 of the appeal.) A fortiori the defendants had pleaded an abatement in the course of the suit, and the authorities upon that sub ject were to be found in " Comyn's Digest." He trusted that their Lordships would hold that the judgment of the Court of Queen's Bench on this subject was correct. In " Comyn's Digest," in page 597, there was the case of " Roe v. Sir John Moore,' and the point there de cided was that error in fact was not assignable in the Exchequer Chamber. That case was brought before the Court of Queen's Bench in the case of " Castledyne v. Mundy," in 4th Barnewall and Adolphus, p. 97, and the point was also raised in the " King v. Wood," in " Chitty's Reports." In that case the ground of error was the separation of the jury before they had given their verdict. There was an application for a new trial, and afterwards a writ of error was brought into the Court of Queen's Bench, and that court gave judgment against the parties who brought the writ of error. There was then a writ of error to the House of Lords, and one error assigned was the fact, and the ques tion put to the judges was, whether the error was such as to enable the House to take into consideration the error of fact ; and the judges gave it as their opinion that it was not. The judges decided that Parliament could not decide the question. Lord CAMPBELL—Was it decided that in a case of coram nobis there was no remedy by writ of error ? The ATTORNEY-GENERAL said that it was. Lord CAMPBELL thought it monstrous that the subject should have no remedy if the Court of Appeal decided against him by writ of error. If there was an assign ment of error coram nobis it was upon the record. Lord BROUGHAM—Was not what was assigned for error more ministerial than anything else ? The ATTORNEY-GENERAL was not aware of any other authority upon the subject, and he merely mentioned these cases for the purpose of calling the attention of their Lordships to them. Now with regard to the con struction to be placed upon the Act of Parliament, he would, in the first peace call their Lordship's attention to the Act 56, Geo. 111. cap. 87. The enactments of that Act were intended to apply to all indictments; its object being to prevent grand juries in Ireland from returning Bills without examining witnesses. Then came the Act of the Ist and 23 Victoria, cap. 37, and he wished to di rect their Lordships' attention to the preamble of this Act, more particularly after what had fallen from the Lord Chief Justice of the Common Pleas that morning in giving judgment, before their Lordships. There could be no doubt but that the proper way to construe an Act of Parliament was to look at the preamble and enact ments, and collect from them the intentions of the Legis lature. Now the preamble said that after the pissing of that Act was, no bill should be returned to a grand jury unless the witnesses had been sworn; and it went on to say, " Whereas the viva voce examination of witnesses was very salutary, and whereas great delay had arisen from swearing them in court, for the re medy thereof, this Act had been made." And it then w ent on to enact that in all cases of bills of indictment sent up to grand juries in Ireland, before such bill should be sent up the clerk of the Crown at assizes or the clerk of the peace at quarter sessions, shall be en dorse upon the back of the indictment the names of wit nesses, and the grand jury were authorised to examine such persons upon oath, to he administered by the fore man or one of the jury. The enacting part went on, after reciting that the oath so administered was to be in lieu of the oath required by the Act of Geo. 111., to enact " that no foreman or juryman shouldexamine any witness whose name was nut so entered. The clerk of the Crown had in this case endorsed on the back of the indictment the names of the witnesses, and the question was if when the clerk of the Crown of the Court of Queen's Bench in Dublin had endorsed the names of the witnesses on the back of the indictment, and those wit nesses had been sworn and examined before the grand jury, if the provisions of the law had not been complied with? lie would refer their Lordships to the case of " Doe and Brandy," 7 Barnewall and Cresswell, p. 643, as to the manner in which Acts of Parliaments were to be construed. It was there laid down that to construe an Act of Parliament, it was necessary to take the con struction, not only of the preamble, but of the whole Act ; and when a clause was more extensive than the preamble, they would put the more extended interpreta tion upon it, if necessary, to give the Act effect. Now here they found that the object was the substitution of this Bill for the Acts of the 56th George 111. The pro viso at the end said nothing about the clerk of the Crown at the assizes, or the clerk of the peace at quarter ses sions ; but it simply said, " the clerk of the peace or the clerk of the Crown." The object of the Legislature was to substitute one mode of swearing for another, and it was intended to apply to all indictments. There was another view to be taken of the case, which was, that, according to strict legal meaning, the Clerk of the Crown in the Queen's Bench Dublin, was in fact the clerk of the assize. In the case of the " King and the Justices of Middlesex," 3d Barnewall and Adolphus, p. 300, in a case in which the Sheriffs of Middlesex applied for com pensation for the loss of gaol fees, under an Act of Par liament which stated that such compensation should be assessed by the justices at quarter sessions, subject to the award of the judges of the assize, the justices refused to award compensation. on the ground that there were na judges of assize in Middlesex, and no judges of as size, properly so called. The question then arose, whether the Court of Queen's Bench was not the assizes for the county of Middlesex, and whether the Judges of that Court were not the judges of assize. Lord Tenterden, in giving judgment, said that the Judges of the Court of Queen's Bench and of .the Court of Common Pleas were the judges of assize , for the County of Middlesex within the meaning of tti6 - ,Act of Parliament. Then, if that were the case, and the - Court of Queen's Bench was the proper Court of Assize, then the provisions of the Act had been literally complied with. They found, therefore, the intention of the Le gislature, coinciding with the strict legal meaning of the words, and he thought their Lordships would de cide that the assizes yi ere; in legal parlance, in that instance, sitting in the Court of Queen's Bc one h. There were a great number of other cases, which show ed that the Court of Queen's Bench was a court of w size. He would only make a few observations upon what had been said with regard to the counts of the indictment, as his Learned Friend, the Attorney-General for Ire land, would deal more at large upon that point. Ile would contend that it was immaterial even if there were bad 0 - tints in the indictment ; but be was prepared. to argue that all the counts in this indictment were good and valid counts. He would contend that the offence was but one, though it was laid in different ways. He would first call the attention of their Lordships to that, count which charged the defendants with con spiring to bring into contempt the tribunals eqs blished for the administration of the law in Ire land, and to diminish the confidence of her ma jesty's liege subjects in them. The Hon. Gentleman then referred to a case in page 678 of the 6th volume of Term Reports, and to other cases, to show that there was a distinction between an indictment for a conspi racy, and an indictment against an individual. He asked, was, or was not, the charge laid in the eighth count, namely, the conspiracy to bring into contempt the tri bunals of the country, an indictable offence? His Ron. Friend said, that reform might be made in the law, that persons might league together to make those re firms—to reform the Ecclesiastical Courts for instance. He (the Attorney-General) did not dispute that, but he said it was an indictable offence for parties to conspire and confederate to bring into contempt the tribunals of the country as by law established. He begged on this point to refer their Lordships to the observations ma de by Mr. Justice Buller, in the case of the King v. Wat son, 3d Term Reports, p. 196. His Learned Friend, put the case of a number of persons meeting together, and agreeing to write down the Court of Star Chamber, and he then put the case of the abuses which prevailed in the Court of Queen's Bench and the Court of Common Pleas, amongst the judges of the land, in the time of the Stuarts, and he read a pas sage from a work of the Right Hon. Gentleman in the other House, in which he, in strong terms of vitupera tion, attacked the courts of justice of that time. But he (the Attorney-General) would contend that, with re gard to the Court of Star Chamber, and with re gard to those bad times, it was net a mode of trying what persons were justified in doing at present. His Learned Friend might just as well have said that they were now indebted for the liberties they enjoyed to the army of the Prince of Orange. and to the employ ment of that army by the gentry of England against the King. If the abuses that prevailed were put down by force of arms, yet it was a means beyond the law ; and I though we may feel that men were then justified in re sorting to them, transgressing . the law and going beyond it, for the purpose of redressing their grievances, yet it did not follow that at the present day parties were at liberty to take the same means of bringing the constituted authorities of the coun try into contempt. Suppose a conspiracy was formed, of which the overt acts were publications of a nature that would bring the Constitution into con tempt, would not that be an offence. This count of the indictment charged a conspiracy to bring into hatred and contempt the administration of justice. That count could be proved if it should be established that the parties had poured fourth a succession of libels having that intention; beyond all doubt this would be an indis putable offence. But his Learned Friend said if persons did honestly believe that the Court of Queen's Bench now was in the same bad state as in the time which had been mentioned, they were entitled to meet together, and combine, in order to write it down. This he wholly denied, and when his Learned Friend said that if they honestly believed such to be the case they had a right to meet for that purpose, let them ob serve what it would lend to. Where was the distinction to be drawn ? In the same way, parties might honestly believe that it would be for the benefit of the public to conspire in the same manner against the Houses of Lords and Commons ; for the same reasons they would be jus tified in writing them down. In the attempt to reform the institutions of the country, persons were not jus tified in meeting together to conspire to bring into hatred and contempt, above all with respect to an authority which could not be brought into disrepute ithout sapping the foundations of the Constitution. Were their Lordships prepared to say that this was no crime, or that any number of persons might meet to gether for the purpose of writing down the tribunals of the country, and bringing them into contempt and dis repute ? Lord CAMPBELL—You should take the whole of the count which lays the charge of bringing the tribunals of the country into disrepute, for the purpose of having others substituted for them. That is certainly much like what we call law reform. The ATTORNEY-GENERAL said the count did not state certain of the tribunals of the country, but the tribunals. Lord CAMPBELL—That others may be constituted ; it may be that those others are to be constituted by Act of Parliament. The ATTORNEY-GENERAL said that the statement in the count was that parties unlawfully conspired, for the purpose of inducing her Majesty's subjects to withdraw their business from the tribunals of the country. It was not that these tribunals were to be swept away and others substituted. The existing tribunals in Ireland are to remain ; but the conspiracy was to shake their founda tions, by bringing them into disrepute, and withdrawing their business from them. Lord CAmPBELL—The courts are to remain ; but a concurrent jurisdiction is to be given to new ones, and there is an incitement to the people to leave the old ones and come to the new. The ATTORNEY-GENERAL said it was not for him to argue with his Lordship ; but he supposed, if the exist ing tribunals were to continue, they were, at the same time, to be brought into disrepute and contempt. . _ Lord BnoucirAm said it would have made the count quite clear, if it bad said these new tribunals were to have been constituted by other means than by Act of Parliament. The ATTORNEY-GENERAL continued. There was only other count to which he wished to call their attention. It was the sixth, which charged the meeting in large numbers, and, by demonstrations of great physi cal force, to make changes in the law. It was objected that the count did not distinctly state who was to be intimidated, or how the intimidation was to be effected. He submitted that that was not Reces sary. The allegation was that the parties codtpired together to cause a large number of persons to meet toge ther. with a view of procuring a change in the law. The Learned Counsel then referred to the case of The Queen v. Eccles. In that case certain persons conspired toge ther by divers indirect means to prevent a certain person from carrying on the business of a tailor. The Court was of opinion that it was not necessary that the means should be set out. In the case of the King v. Gill, Ist Barnewall and Alderson, the parties were charged with combining and conspiring together, by divers means, unlawfully to obtain possession of large sums of money. Lord Tenterden said that the indictment was sufficient, as the gist of the offence was the conspiracy. The Learned Counsel mentioned another case, in which certain persons were indicted for a conspiracy to de fraud divers of her Majesty's subjects. The Court of Queen's Bench were of opinion that the count was good without stating who the persons to be defrauded were. So with regard to the persons to be intimidated. Here was a conspiracy to collect together great masses of the people, with a view to pro cure a change in the law ; and the inti midation was used against all persons and all bodies who might oppose and resist a change in the law. It was not necessary that the count should state against whom the intimidation was to be directed. Lord CAMPBELL—It is said, on the other side, that the intimidation might be that of a highwayman, or of persons seeking to intimidate the Legislature. The ATTORNEY-GENERAL said that would not apply to a count which referred to an attempt to change the law, Lord BROUGHAM—Mr. Kelly argued in this way. There is a body of people coming down to prevent the Legislature from doing what it is minded to do. Then would very loyal people take part with the Legislature, and preserve to them free liberty of action, by intimidating the intimidators. The ATTORNEY-GENERAL said he did not suppose for a moment that their Lordships would adopt that view. He would now leave this case after referring to the form of the recognisances. His Learned Friend said that if a person remained six years in prison, he might then come out of prison without entering into recognisances. The object of recognisance was, that the person so imprisoned, should not be let out of prison until he had entered into recognisance to keep the peace—no matter what length of time he had been imprisoned. He would not trouble the House by further reference to precedents. He submitted that he had shown that this eppeal in error must be rejected. Mr. Justice GURNEY suggested that the Attorney- General had said nothing about the indorsement. The ATTORNEY-GENERAL said that there were other points upon which his Learned Friend, the Attorney- General for Ireland, would presently address their Lord ships. With respect to the indorsement, he would only say that there was only one error assigned on that point, and that was by Mr. Steele. The indictment could not be affected by that, for the indictment was found before the endorsement could'be made. The LORD CHANCELLOR—There is no time fixed at all for the endorsement. _ _ The ATTORNEY-GENERAL—COrtaillly not. The error in fact admitted that the witnesses were all sworn properly before the grand jury, and that the Bill was founded upon that evidence. In conclusion, he sub mitted that he had shown to their Lordships that the verdict was not at variance with the indictment—that it did not find the defendants guilty of more offences than they were charged with—that there were no grounds for the challenge of the array—and that there was no ground for impeaching the judgment of the court below, because the witnesses were sworn by the grand jury. lie sub mitted that their Lordships must decide tirzt there were no grounds whatever for reversing the judgment of the court below. The Iron. and Learned Gentleman, who was heard for the last few minutes with great difficulty, then withdrew, apparently much exhausted. The Lord Chancellor and the Judges then retired for a short time. On the return of their Lordships, Mr T. B. C. SMITH (the Attorney-General for Ire land) then proceeded to address their Lordships. He appeared also on the part of the Crown, and he thought it would not be consistent with his duty to occupy their Lordships at any great length, as the case had been so fully argued by his Learned Friend the Attorney-General. He would endeavour to compress his observations into as narrow a compass as possible. Now he would first apply himself to the challenge of the array, and he thought that when their Lordships came to consider the challenge it would be found to be unsupported either by substance or form. There was no default or misconduct attributed to the sheriff. The challenge was only to the array empannelled by that officer. Now by the 9th section of the Jury Act, to which their Lord ships had been rekrred, the clerk of the peace having made out the jurors' book, was to de- THE SUN, LONDON, WEDNESDAY MORNING, JULY 10, 1644. liver it to the sheriff, and by the 24th section of the same Act, the sheriff, within ten days after the jurors' book had been delivered to him, was to make out a special jury list, arranging the persons according to their rank, property, and so on; and that the jury list so made nut by the sheriff was to be the special jury list for that year; and there was a special rule in the 11th section, by which the sheriff was not to return the names of any persons not contained in the jurors' book for the then. current year, and by the 25th section, where an order was made for a special jury, there was a provision that the officer of the court, who was to strike the special jury, was to appoint a time and place for that purpose ; and the statute then provided that the sheriff and under-sheriff should be required to bring on that day their special jury -list. Now there was no pretence whatever that the provisions he had mentioned had not boon properly complied with, and there was nothing to show that the twenty-four jurors had not been properly selected. In this case there was no default, partiality, or misconduct attributed to the sheriff, and he could not believe that their Lordships would uphold the novel doctrine, that a challenge to the array was to be considered as good when there was no default, partiality, or mis conduct attributed to the sheriff. The law, as laid down in Coke upon Lyttleton, 156 B, is clear and precise upon this subject, and in the same work, 158 A, it was stated that if the array was quashed process should be awarded to the coroners, and if the coroners were indifferent then to persons appointed by the court. This proved clearly that the cause of challenging the array must be so'ne fault in the sheriff, and he would ask the Learned Counsel on the other side what would be the nature of the award which he would have entered upon the record if the panel were quashed without; fault of the sheriff, and to whom under those circumstances they would have it directed ? Thia was. not an unfair test, fir if they set aside the panel returned by the sheriff; the law pointed out the officer to whom they were to app7y. But in this case everything that had been done by the sheriff had been right and correct throughout; and h' would ask what award was to be entered on the record? Were they to call on the coroners to re turn a new panel? Why, they would return the same, and there would be the challenge to the array again. The statute expressly stated that the sheriff was to return no name except he found. it in the jurors' book. How was the sheriff then to take upon himself to say, of his own mere motion, that al though he. had a jurors' book in his possession, returned to him by the proper officer, ho would cancel the juroi!s' list of 1844, without any order of the court? Way they were calling upon the sheriff to violate the Act of Parliament. He must be justified, when he had no jurors' book for 1844, to go to the one for 1843. But how could he take upon himself to decide that the jurors' book de facto for 1844, was not the jurors' book de jury in the case of the Queen v. O'Connell, although it might be in other ea ses? In a ease of this kind, if there were any fraud in the jurors' book for 1844, or any ground for saying so, it was a nullity in point of law. The defendants should make application to the Queen's Bench, founded on a' proper case, and supported by proper affidavits, and nto doubt the court would inter fere. He could not admit that the court would inter fere in every case ; but, where it saw a proper case, it would interfere. $e submitted that the chal lenge was bad ; but if it were capable of being entertained, and they 'Wished to establish the invalidity of the jurors' book, thfay were bound to raise distinct issues, so as to raise the question of validity or inva lidity. He. submitted„ as in the present case, there , was no pretext for saying - there had been any fault on the part of the sheriff; there was no ground for challenging the array. The Right Honourable and Learned Gentleman then re- ferred to the provisions of the Jurors' Act, and the mode in which the Act prescribed that the general list was to be made out. The challenge of Mr. O'Connell had admitted that the provisions of this Act had been complied with, except, in one particular, namely, that the names were not arranged according to rank and pro perty, and that a list containing all the names arranged according to rank and property . was net de:ivered to the clerk of the peace. Would their Lordships bold that such an averment could be supported if even there was a single name placed out of its proper order? lie did not believe their Lordships would hold any such thing. The challenger went on to state that " a paper writing, purporting to be a general list, had been illegally and fraudulently made out by some person or persons unknown." ',Chat was the averment in the chal lenge of Mr. O'Connell, but there was a slight variation ii the challenges of the other traversers which had been alluded to by his Learned Friend the Attorney-General. The challenger stated that fifty-nine names were omitted which ought to have been returned ; and he then went on to state that from /he said paper writing a certain book, purporting to be the jurors' book for the year 1844 was made up, from which the special jury list was made out. It was not denied in the challenge that a general list was made up by the Recorder—that it was delivered by him to the clerk of the peace—that the clerk of the peace made up, in pursuance of the Act of Parliament, a book from the general list, which he delivered to the sheriff, and that the sheriff from that made up the spacial jury list; yet it was now contended that this omission invalidated the jurors' *hook, though the omission might have either occurred through mistake on the part of the Recorder's registrar, or at the dictation of one 'of the defendants, or any other person unconnected with the Crown. He certainly thought their Lordships would come to the conclusion that it would ba impossible for him, on the part of the Crown, to take issue on an aver ment of that kind, and that he should be guilty . of a breach of his duty to the Crown if he had joined issue upon it, and. notwithstanding all the obloquy which he had been suffering in consequence of it in Ireland, he was the more strengthened in the opinion that he had acted properly, becausehis Learned Friend the Attorney General was of opinion that he ought not to have done so. He begged to call their Lordships' attention to sec tions 35 and of the Act of Parliament, which would show in what cases names which were omitted might be inserted. In the 35th section of the Act there was a specific provision to meet the particular case of fraud, and penalties were provided if it was proved that the collectors had fraudulently omitted any names, and in that particular case the book was to be corrected, if there was either a wilful insertion or omission of names, which ought not to have been inserted or omitted. The 36th section stated the penalties which should be suffered by persons who were found guilty in this respect, and it gave power to the justices before whom such conviction took place, to certify to the clerk of the peace that such wrong omission or insertion had occurred, and the clerk of the peace was to make a list in which such wrong insertion or omission was to be cured. Thus their Lord ships would see that the Act of Parliament had specifi cally provided for those cases where there was a wilful insertion or omission of the names, and the means of amending .. such insertion or omission was pointed out ; yet it was said that he should have made the amendment in the list in defiance of the Act of Parliament, which specified those particular cases in which the Act of Par liament provided that amendments were to be made. Lord Cameneme--Ilarl you consented, with the con sent and privity of the traversers, that such a course should be adopted, could the traversers have assigned for error that the Act of Parliament had not been properly complied with? The ATTORNEY-GENERAL (for Ireland) apprehended that in that case the jurors' book would not be a good jurors' book, and if the parties challeeged that they were tried by names not in thejurors' book, his consent would not be a good plea to the challenge. He submitted that it was really the object of the Legislature to take awayt e sheriff e th ri e ff e f h r a o l m lenge tothe array, an d t o p re clude hexercising any control' over the list. The next point to which he should call the attention of their Lordships was that of the pleas in abatement. Their Lordships would understand, from the manner in which the record was made up, that all these pleas in abatement exactly corresponded with each other, without the slightest difference. They all sought to raise this question, that the witnesses before the grand jury ought to have been sworn under the provisions of the 58th of George 111., that is to say, they ought to have been swore in open court, and that, not having been so sworn, the proceedings were altogether illegal. Now, he con tended that all these pleas were both insufficient and informal. Both in England and in Ireland it was necessary that pleas in abatement should be verified. Now there was no allegation that the names of the wit nesses who were sworn were unknown to the plaintiffs in error. He then cited from Comyn an opinion of Lord Holt on this point, where that learned authority stated that a matter could never be assigned as error which the party might have pleaded in abatement, as it must be taken for his own folly that he had omitted to do so. The whole object of the assignment of errors in fact was to amend the plea in abatement. For this purpose only one error in fact could be assigned though as many errors in law "might be assigned as a . party pleased. As only one error in fact could be assigned, they could, net allow that to be assigned as an error in fact at two periods of the same proceedings, which they would not allow to be assigned as error twice over. He submitted that on the principle laid down in the authori ties already cited, they could not assign an error in fact and use it as a plea of abatement also. It could be proved by the Journals of the House of Lords, that their Lordships, on a writ of error, would not investigate matters of fact in error, and would not, therefore, re verse a judgment on a matter of fact ascertained. Lord CAMPBELL—I believe if you look at the books you will find that in nullo est erratum admits the fact, and if you wish to traverse it, you must deny the fact. The ATTORNEY-GENERAL (for Ireland)—He would apply himself to that point. Upon an assignment of error, the Court of Queen's Bench could not have denied any of the facts in dispute. Lord CAMPBELL—Do you say that if the record were brought by writ of error to the superior court, that court could not review the judgment of the court below, and overrule the error assigned in fact ? The ATTORNEY-GENERAL(for Ireland)—lrespectfully submit that to your Lordships. The LORD CrteeteeeLon—lt comes here as a question of law. The ATTORNEY-GENERAL (for Ireland) thought he was justified in asserting, that if this matter came on upon a writ of error in England, it could not stand for one moment. It was stated in Teesdale's case that at Durham it had been the uniform practice for the foreman of the grand jury to swear the witnesses. The practice was so stated by Sir Gregory Lewin; and if it were not justified by the common law, it never could have passed without objection. Before the 56th of George 111. c. 87, a practice had prevailed in many of the grand juries in Ireland of their finding a bill of in dictment without examining witnesses for the crown. The object of that Bill was to make it compulsory to swear witnesses in open court previous to the finding of the bill of indictment. Their Lordships would ob serve that all the pleas in abatement admitted that the witnesses should have been sworn under the Act of 1816 —the Act to empower the foreman of any grand jury in Ireland to administer oaths to witnesses in Ireland. The Act of 1816 was admitted to extend to every grand jury in Ireland. The mischief to be remedied was, Ithat the informations were laid before the grand jury, and no witnesses were examined viva voce, the object being to substitute viva voce examinations for written testimony; and, as one of the Learned Counsel had ad verted to the practice in the House of Lords, he sub mitted that the swearing of witnesses whilst the pro ceedings were going on led to some confusion, and that the oath so administered was not so impressive as when adminstered by those who had to receive the testimony. Persons sworn in court might not be examined for two or three days, and certainly the impressiveness of an oath, might lose its force in that interval, which used to occur before the Act of 1838. That Act was an im portant general remedial measure. The preamble stated that the practice of swearing witnesses in court was at tended with great delay and inconvenience. Since that time, in all the commission§ that had been issued, and tried in the Recorder's Court in Dublin, the witnesses ware sworn by the grand jury. How, then, would the case be, if, as represented for the appellants, the Act did not extend to Commissions in which the judges of the superior courts were included ? It frequently hap pened that the jury had been charged by the Recorder, had retired, examined the witnesses, and found the bills by the time that the two judges came into court. Now, was it necessary that all the witnesses should be re-sworn in open Court before the Judges, and the whole of the proceedings gone over again ? Yet, if this objection were good, such would be the case ; and every man who had been convicted and transported under these commissions was wrongly transported. It was a. cu rious coincidence that the first judge who charged a grand jury under the Act was Baron Wolfe, whose name '.as on this bill. Lord CAMPBELL—Had he the Act before him at the time ? The ATTORNEY-GENERAL (for Ireland) did not know. But he thought that when a judge instructed a jury on the construction of an Act of Parliament, he would have made himself acquainted with that Act. In the enacting part of the Bill it was ena'ted, that "In all cases which should come before grand juries in Ireland for their consideration," the witnesses might be sworn by the foreman or other members of the grand jury, and that the clerk of the crown at assizes, and the clerk of the peace at sessions, should endorse the names of the witnesses on the back of the bill. Mr. Kelly laid great stress upon this point. The Right Ron. and Learned Gentleman then proceeded to refer to cases on the subject, in the 2d Institute, pages 393, 394. and 426. He did not think it was necessary he should trouble their Lordships with any further ob servations on the assignment in error, except with respect to Mr. Steele's assignment of error in fact, and that he ventured to say could not be sustained for the reasons he had already mentioned. He admitted that a'l the witnesses had been sworn, but that the officer not having put his initials on the bill, the whole was in valid; now he submitted that it was not. He would now shortly call the attention of their Lordships to the in dictment in the present case. He thought he had some grounds to complain of some of the Learned Counsel who appeared on behalf of the plaintiffs in error, one of them having adverted to matters that were not within the record. Whoever had instructed the Learned Counsel to make the statement he did had instructed him to state that which was not true. Having said thus much he would proceed with his arguments notwithstanding the language that had been used by one of the Counsel for the plaintiffs in error, who in speaking of the vituperative language of some parts of the indictment, seemed to have made use of it himself, leause he said that nothing but confidence in a political jury could have induced this indictment to be framed as it had been. Nothing in his opinion could have justified counsel in making such observations. The fifth count of the indictment appeared to be the first to which an objection had been made, and the reason probably there was no allusion made to the earlier counts was that the fifth and subsequent counts were embodied in a different way. By the fifth count the defendants were found guilty of unlawfully and maliciously conspir ing to create discontent and disaffection among the sub jects of the Queen and to the Government. Now the first case on the subject was the case of the King v. Redhead Yorke," reported in the State Trials. The Right Hon. and Learned Gentleman then quoted from the 9th volume of Carrington and l'ayne's Reports, page 275, the case of the " Queen v. Vincent." Vincent heel been one of the associates of Frost, who had been found guilty of high treason. Frost had not been tried upon the indictment for conspiracy, but Vincent had been tried. The first count on which he had been in dicted charged him with conspiring to excite discontent and disaffection amongst the liege subjects of her Ma jesty against the Constitution, and of endeavouring by assembling a large number of persons to excite peril and alarm in the mind of her Majesty's liege subjects, and by exciting such peril and alarm to procure a change in the Constitution. In that case the jury had found Vincent guilty. He had procured a copy of the indictment from the so licitor of the Treasury. The indictment had been tried lon the Mh of March, 1840, and the indictments in that case were identical with the present. One of the Learned Counsel who had addressed them on the present occasion for the plaintiffs in error, and who had par ticularly directed their Lordships' attention to that count in the indictment, had been one of the counsel for the Crown when Vincent was tried. But what was discontent and disaffection in 1840, when the Learned Gentleman was in office, be came legitimate opposition in 1844. However, the case of the " Queen v. Vincent" was a precedent for them. The case of the " King v. Hunt" furnished a similar precedent; and there was another preeedont in the case of !` Law v. Allan," reported in the 2d Lynch, page 796. That was a precedent for an indictment for general conspiracy. In that indictment it was al leged that Law had conspired to seduce men from their allegiance, without stating when or by what means. The Learned Gentleman then quoted the case of the " King v. De Berenger," as a ,precedent for the present indictment. The same observations applied to the 6th and 7th counts of the indictment. The Learned Gentle man on the other side had put the case of a mob who met to intimidite another mob which sought to procure changes in the law and in the Constitution. But a mob meeting for this purpose was not a mob meeting for the purpose of producing changes in the law by intimidation and the demonstration of physical force. Lord BROUGHAM — That would not be an answer to the case put by . Mr. Kelly. He put the case of an Orange mob coming down to intimidate the Houses of Parliament, and then he supposed a loyal mob coming down and saying that they would prevent the Orange mob from intimidating the Houses of Parliament, in order that the Act of Emancipation, or any other Act, might be passed. The ATTORNEY-GENERAL (for Ireland)—That would be a mob going down to intimidate the Orange mob, but it would not be a mob met for the purpose of procuring changes in the Constitution. L6id BROUGHAM—Yes, it would, for they came down to intimidate the Orange mob, in order to procure the Emancipation Act. The ATTORNEY-GENERAL (for Ireland) apprehended that a mob coming down to free Parliament from the pressure of another mob, would not be a mob convened to procure alteration and changes in the Constitution. The LORD CHANCELLOR—But would it be a mob unlawfully, maliciously, and seditiously convened? Lord BROUGHAM—Aye, aye, that is another question. The ATTORNEY-GENERAL (for Ireland)—When their Lordships came to examine the count they would find it did not apply to such meetings. There was nothing dissimilar in it from the count in the case of Feargus O'Connor, which had been tried before Mr. Baron Rolfe, in which the judgment was arrested on the count in which he was found guilty, because the count was with out a venue. Lord DENMAN said there were two counts in that case on which the defendant was convicted. One of those counts they considered too general, but they gave no Judgment, as the party was not broeight up for judg ment. They also thought that the venue count was not good. • The ATTORNEY-GENERAL (for Ireland)—The Learned Gentleman on the other side alluded to the words, the demonstration of great physical force, and said, that they meant nothing. He would refer their Lordships, on this point, to the language used by Lord Chief Justice Tindal. He then read the judgment of Chief Justice Tindal, and proceeded to say, that though the large meetings might be for a more innocent purpose than high treason, yet the holding those meetings certainly amounted to an aggravated misdemeanour, as it was impossible to say to what consequences they might not lead. It had been alleged as an objection to this count, that it was not stated who were the parties who were to be in timidated ; but he contended that this was not necessary ; in the case of a conspiracy' to defraud generally, it was not necessary to state who were to be defrauded. lle next proceeded to the counts which charged a conspiracy to bring the tribunals of the country into hatred and contempt. He could con ceive no more grave offence than thus endeavouring to bring the administration of justice into disrepute. In the case of the riot at the theatre in Dublin, in which a bottle was thrown at Lord Wellesley, it was decided that though the parties had a right to express their ap probation, yet what was right in the individual, was illegal when there was a pre-combination for that pur pose. In the case of the officers in the East India Company's service, reported in 4th Burrow, the parties were all indicted for a conspiracy. Lord Mans field held that, although each individual had a right to say "I will throw up my commission because batta, has been refused," yet an agreement to that effect constituted a conspiracy. The Learned Counsel then went on to show that the indictments in these cases were similar to the count fur endeavouring to procure a change in the law by a demonstration of phy sical force. and read the count for that purpose. His Learned Friend had so ably argued that part of the case that he would not trouble their Lordships by ar guing it at greater length. As to the extreme cases which had been put by the other side, such as the con spiring to steal a loaf of bread on one day, and conspiring to fire a house on the next, he would only say, that no judge would allow two such offences to be in cluded under one conspiracy. As to the ques tion of good and bad counts, there was no analogy in civil and criminal cases. In civil cases there could be a venire de novo ; but that could not apply to criminal cases. The court of assize could not make up its record with such a distinction between good and bad counts. They could not enter up a judgment non obstante vere dicto ; neither could they enter a verdict of acquittal. It was no matter how many counts there were in the in dictment, the question was whether the-party was guilty of the offence charged in the indictment, and was there a finding to warrant the judgment ? If the arguments on the other side were to prevail, it would strike at the full scope of criminal justice. He trusted their Lordships would not come to any conclusion that would do anything to alter the whole mode in which the criminal business of the country was transacted. There was another point to which he would slightly ad vert, and that was the point raised upon the first count of the indictment, It was not necessary that they should all be pronounced guilty, there was nothing inconsistent in saying that some might be guilty of the whole and some in part, and if that was without the issue it puts an end to the objection. As to the dis continuance point their Lordships had received no answer of any entries that had been made in accordance with the ancient custom. The LORD CHANCELLOR said, that if the Hon. Gentle man the Attorney-General for Ireland had any point on which he wished to remark, their Lordships would hear it when they re-assembled in an hour and a half. The further hearing was then adjourned till half past six. Their Lordships then re-assembled at a few minutes after seven o'clock. The ATTORNEY-GENERAL (fur Ireland) resumed. He then proceeded to cite auth or iti es i n su pp ort o f th e pro , position which he had laid down previous to the adjourn ment, and also re-statel his argument in reference to repugnancy. On these grounds he submitted that suf ficient cause;had not been shown for revising the judg , ment of the Court of Queen's Bench in Ireland. The. Learned Counsel closed the case for the Crown at half-past seven. Sir T. WILDE, before proceeding to address their Lordships apologised for not appearing in his wig, re questing that he might be excesed from wearing it on the ground that it produced headache. The LORD CHANCELLOR said, himselfand the Learned Judges felt the same inconvenience. This permission must not be taken as a precedent, and what the Learned Counsel curtailed in the wig was not to be added to the argument.—(Laughter.) Sir T. WILDE then proceeded with his reply on behalf of the defendants. He said, some of his Learned Friends on the opposite side had remarked upon the State trials and the circumstances which had attended some of them. He coulJ not help thinking, that if the present judgment were affirmed, it must be referred to a period two hundred years back. The indictment charged the defendants with certain political conspiracies in terms as general as any which could be found. The charge was one which might be made at almost any time against a political opponent. It was spread over nine or ten counts, supported by the speeches of diffe rent persons, and the contents of newspapers. A charge of that nature could at any time be brought against a political opponent. But not only was this case brought forward in a form suited to the worst of times and the worst of places, but if their Lordships yielded to the arguments on the other side, the challenge of the jury was entirely gone in Ireland. His Learned Friends, who appeared on behalf of the Crown, had supported their case by more positive assertions than he had ever before heard in a case of that nature. Every difficulty was removed by a statement that so and so was the settled practice, the constant usage, and this statement was accompanied by an absolute inability to produce a single precedent. He had before stated, that this was the first case in which counts so generally framed had been brought before the House of Lords. It was im possible to produce an instance in which the court had ever given judgment upon an entire record, without ex amining what counts were good. The judgment was always entered upon a good count, and the difficulty in doing so was altogether ima ginary on the part of his Learned Friends. Cases in point had recently occurred. Now, his Learned Friends had first to meet the general charge that this indictment did not contain, at least in some of its counts, a suffi ciently distinct legal charge. He was free to admit, that acts which individuals might innocently do separately were made criminal by combination. Such was the case where the agreement was calculated to oppress a par tieular person. If the officers of the East India Com pany entered into a confederacy to embarrass and injure the Company by all resigning at one time, he admitted that though each might lawfully have resigned at his discretion, a confederacy to resign would be illegal. So also he admitted that if a certain number of persons combined not to deal with a particular tradesman, that would be an offence in law. Ile would not ask the Counsel for the Crown to say, whether there was any such conspiracy in these counts. It had been said that there were cer tain articles in a literary work which were calculated to disturb the public peace. He admitted that there were several matters charged which might tend to disturb the public peace. But he asked, were these rightly charged in the indictment, or rightly found in the verdict ? Take the count which charged with conspiring to stir up hatred and jealousy between the subjects of the Crown, and dissatisfaction and hatred towards the Government. What could be more general than this ? every Opposition to the Government was accused by those in power of the same offence. But how was a man to know of what he was accused under a count like this? If this could hold good, any man taking part in politics might be entangled—no man could be safe from the charge of conspiracy. Looking at the nature of the evidence by which such charges were sup ported, their Lordships were to look to the terms in which the charge was stated in the indictment, and whether it waz enough to enable the accused to know what he was called on to answer. There was scarcely any political discussion that would not be liable to the same imputation of stirring up hatred and between dif ferent classes of her Majesty's subjects. Why should it be made a matter of conspiracy for men to join in endeavouring to obtain a repeal of the Act of Union or of any other Act ? He hoped that these words were too vague to be tolerated by their Lordships. Now with respect to the meetings to intimidate—Mr. Justice Burton stated that they were the more dangerous be cause they were so peaceable. They were as quiet as Quakers, and quite as dangerous. The only object of those meetings was to show the concurrence of mind of great numbers in one common object. It was ad mitted that there was no alarm, no intimidation? Had not those persons a right to ask what is the intimidation with which you charge us ? There were no arms, no violence, no dis order, no intimidation. Bat was it a legal charge to say that men conspired to intimidate, when they took every precaution that there should be no intimidation? He submitted that this charge was so vague that no subject of a free country ought to be put upon his trial for it. The calling of large meetings to show the extent of public opinion on the corn-laws, the Reform Bill, or any other, was not liable to such a charge. He thus dis posed of the sixth count. The seventh count charged them with conspiring to effect the repeal of the union by a great demonstration of physical force. That demon stration was to be found in the large meetings, which gave none of the alarm which intimidation implied. It did net even shake the nerves of the Government. The object—the avowed object of those who called the meetings—was to demonstrate what numbers were de sirous of the repeal, and that object was perfectly legal. It was not asserted in the indictment that the object was illegal. The next count (the eighth) was that they conspired to set aside the authority of the courts of law in Ireland. How had the defendants done this? They had done no more to bring the courts of law into contempt, or to set aside their authority, than to recommend arbi tration, instead of an appeal to the expensive and un certain law courts. But he would admit that such a legal object might be sought by illegal means. But then you should show the illegal means—you should prove that they were resorted.to, or were intended to be resorted to. It was quite competent to any man, or body of men, to point out the inefficiency of the existing courts, and to suggest a substitute for them. That might b e done in unbecoming language, and in. an illegal manner, but no such thing was charged in this count. The next count charged the defendants with conspiring to assume and usurp the prerogative of the Crown, in the establish ment of courts for the administration of the law. All that he would say of that clause was, that it was so vague and general, that it was unnecessary for him to occupy their Lordships by one word more than calling their attention to it. He submitted that these counts were substantially bad. He owned that he had heard with surprise the Learned Attorney-General for Ireland say that their Lordships were to take their law from the Courts below. He had always thought that the Courts below were to take their law from their Lordships. When a course of proceeding has arisen in the courts below, and which crane before their Lordships, it was new to him to hear that their Lordships were to take their law from the courts below. Considerable looseness had been allowed to creep into indictments for con spiracy of a private nature ; it was now sought to allow it to creep into indictments for political conspiracies. This might lead to very serious consequences. There was extreme danger In allowing a loose practice to creep into a law under the idea that it must be correct, because it had not been appealed from, when they must recollect the enormous expense parties were 'put to before they could obtain the benefit of their Lordships' opinion—a great luxury, he admitted, when they did get it, but a very high priced one, and out of the reach of those who couT.d not afford to spend hundreds of pounds to obtain it. He then called their attention to the third count. His Learned Friends had stated that if the indictments were noteene ral it would lead to many criminals escaping. But he referred them, for the very form of the process of setting aside a verdict, to Hales' Pleas of the Crown, ch. 29, in the case of Vaux, who was indicted for murder, pre cured the first verdict to be set aside, was tried de novo, and was hanged. Lord Hale considering that it was a hard case, as he ought to have been able to plead his former trial. In this case would be found the regu lar forms of the judgment and the discharge of the pri soner, by reason of the defect in the indictment. me jury is bound to decide upon every point of the indict ment, and if they found the accused guilty of only one part, they were bound to acquit him of the rest. With respect to the third count, what was the meaning of the finding? Nothing could be more precise or distinct than this, that the finding convicted the defendants on all the matters charged against them on the premises, and not only of the whole matter, but in the manner and form in which the:premises were charged. The matter charged was a conspiracy with a certain number of persons. But an acquittal of A for conspiracy with B, did not . prevent A from being afterwards indicted for conspiring with C, D, E, or F, or any num ber of letters. And here Mr. O'Connell, Mr. Barrett, and Mr. Duffy were found guilty of conspi ring with Mr. J. O'Connell, Mr. Steele, Mr. Ray, Mr. Gray, and Mr. Tierney. Now if Ais acquitted on a charge of conspir ing with B, they must acquit B of conspiring with A; one man could not be guilty of conspiring with himself. So if Mr. D. O'Connell. Mr. Barrett, and - Mr. Duffy are charged with conspiring with Mr. Steele, Mr. Ray, Mr. Gray, and Mr. TiernPy, and these last are acquitted of conspiring with the former, that finding negatives the verdict of guilty against Mr. D. O'Connell, Mr. Barrett, and Mr. Duffy ; the record showed the finding to be re pugnant. The subject of the challenge was a fearful point. It was a fearful point to hear his Learned Friend say that the Act of Parliament had taken away the right of challenge to the array. The LORD CHANCELLOR-It does not tece away the right. Sir T. WILDE said it did not, but he had understood his Learned Friend to say so. However, be would not further discus* it, although the 4rgunien4 'pt a long way to take it aw a y. Th e Att orney -G enera l had read the challenge in a curious way. He had read cert.'s - I li parts, and then commented upon them so long that thei r . o Lordships h a d l os t t h e connex i on b etween the Pa s r , r, which he had rea d an d t h e parts w hi c h f o ll owe d. " W. Follett had said that the Recorder could not adjudi• cats upon the jury list, but he had altogether omitted to state that the Recorder had to adjudicate upon the Ve t fications of the p ersons w h o are to b e p l ace d upon til,a; list; so that he h a d, i n f ac t, to a dj u di cate upon the lis"' Having made the list, that list was delivered over to form the j urors ' b oo k, an d f rom t h at j uror s' bee' the panel was arrange d, so that the Recorder did, in fact, select those persons who were eg t° t serve on the special j ur y. The Recorders was the foundation of the jury book—the j ur y bee' was the foundation of the jury list. Now the challenge averred that the Recorder (lid not make out and dale his list according to the terms of the statute, and he s ir prehended that the c h a ll engers h a d d one t h e i r duty il l so stating. 'The Attorney-General complained that th, challenger did n o t go on t o aver t h a t h e h a d delivere d another list furnished him by som e p e r son un known. , averred, however, that the list had b een fraudulent l y made to the prejudice of the def en d an t s . his Learns Friends on the other side had endeavoured to keep the l important fact out of their Lordships' sight. They" i over the matter, indulging in minute criticisms, but $; together kept out of sieht the important averment tll5, the list had been fraudulen t ly ma d e . N ow , this ws s , great political trial ; the d e fenda n t a ll ege d that tiu e " jury book had been fraudulently ma d e u p. l' t. returning officer was their well known political osponl, The LORD CHANCELLOR—It does not ,appear on t' e record. Lord CAMPBELL—Let us confine ourselves to the re, cord, for God's sake. The LORD CHANCELLOR—More particularly t'' L lb : reply. You may suppose a case of a list made by political opponent. Sir T. WILDE would beseech their Lordships to member that this was a case of political prosecuti°: which many would be inclined to cell persecuties The indictment was for acts extending over large space of time and place, so as to g . 1 ,8 the prosecutors • the• power of laying' the sy se almost where they p'eased. In such a prosecution, an ° Si all others, it was necessary to the pure administration Se justice, that there should be no taint of fraud upon for composition of the jury. The Attorney-General e Ireland asked what the defendants would propose to lla c , done. He should be inclined to think that it-evae tb business of the Officers of the Crown to find a reined}' They were bound to drop the prosecution if they A not try the men fairly. Hi., Learned Friend the , torney-General said they could only have the cballeegi when the fault was in the sheriff. Formerly the she ll was the only person who had to do with the jury. the Lord CAMPBELL—The common law assumes that sheriff himself summoned the jury. re• Sir THOMAS WILDE—Such was the case, and the 1 , fore the sheriff was the only person who could be c, lls s lenged for an indifferency. But now the law dio," e s those duties, and were all the amendments of the 1 %, to end in the destruction of those means which the s i, u cc i ject formerly had of protecting him against pasts'( juries ? The question was, whether, now that the d i had divided the duty amongst other persons, the reat e , o did not follow the altered means by which the evil l 'e produced ? The sheriff might be morally free ese blame, but he was legally to blame for having ale his list from a book imperfectly made up. It wa s , se duty to make u p hi s li s t f rom a p ro pe r b oo k, or, h a p, had used an impr o p er an d f r a u d u l en t b oo k for P. n ; then he should go to the book of 1843. That went to the root of the administration of justice. o : Counsel for the Crown were under a mistake in OPP ing that because the list was not good in this case' e , might not be good in others. There was fraud e 5 garded them, but others might not be injured. T" 0 e1 defendants averred iu their challenge that this liT ts • had been perpetrated to their prejudice, and this ohJlO tion was good in their mouths, though it might o°' oti good in the mouths of others. He would not touch no e l the points which had been so ably argued by his fr,'.„, Mr. Peacock ; and he trusted that, by their Lords il t l is decision on ths point of the challenge of the arraY, law would be secured for the future against ani e s si e abuse as had occurred—that the administration 01 L eo, Lice would be freed from this stain—and he, ther el s. prayed their Lordships that this judgment be I.o' o 'l t he Mr. HILL would limit his reply to the validity 01 0 ,4 challenge, and he would proceed at once, without t he preliminary observations. His Learned Friend , of Attorney-General for England, had passed over on;ses two points which were of the very deepest imports ere It had been said by the Attorney-General that nee was nothing to show that the list had been made floe Recorder. Now, it appeared that a fraudulent y l y t, writing had been made the basis of the Recorder s ch which had been made the basis of the jury book, w iil so had been made the basis of the special jury list' s th e that there was a distinct allegation, showing th 3 f s e ra special jury list had been made up , r iling' a book made up from th a t f rau d u l e nt ; n ape+ The only material question in the case was w as iecfed namely, the fact whether the special jury , a n etlY from the list the Record e r s en t in. It was ool itic averred upon the challenge that a fraud was e° c i se tedi in putting in the book from which the jury w aS 2 l ye t he The LORD CHANCELLOR—But did not that g right to challenge the array? Mr. HILL submitted it did. rig 1/1 Lord CAMPBELL doubted wh ether the y had any 4 to challenge at all, and whether their proper c ()I ; 1 0 would not have been to have moved the Court of (Pe e Bench to quash the panel. bu t'th° Mr. HILL said they objected to the . pan.'l, 0e Court of Queen's Bench decided they had no jurl _, 1 64 lion. The challenge to the array and the poll correctly any misfeasance in putting the jury into the box. I _ ll „ ts i , Jury Act was subject to the construction of his Le_ 4 , e ' os Friends, it would operate as a curse instead of a P' t he ing to Ireland. He should say, in the present case, best course to have adopted would have been t o the award to the coroner. to The LORD CHANCELLOR—Why should it go coroner? Was there any default in the coroner . re d Mr. HILL observed that the duties of the sheriff' es been subdivided by the Act. The Learned Coun sel , f at proceeded, at some length, to contend that the pan e on e bad. The Recorder had been commanded to d° e ti thing, and he had done another. Until he had perfo.red, the duty cast upon him of making out the list, an d ; c ig ing it to the clerk of the peace, how was he functus ° fr°o It 'appeared to him that no inconvenience arising „et the mistake or fraud in making out the list was to free 3 in comparison with the evils which would arise, re, having a jury form e d f rom an i mproper li s t. tioe_ oe corder had not done his duty, or if the clerk of the r ov e had not do ne hi s d uty, t h ey were i n t h e same 81.41,41014 as if they h a d not t i me to ma k e out a goo d hs," b olt there was no re ason w hy it should not be referr eu * to them t o ma k e a goc d list. It had been said th aouroc object of this Act of Parliament was to take away in i t i n ot degree the right of challenge to the array. fie did od see how that could be contended for, when his 10,d e il Friends argue d th a t th e 35th an d 36th sections Pr ° , l oll for the insertion of those names which were fraudn ie be omitted. But those related to the juror himself' sa m e felt himself aggrieved by not having his n inserted in the list, b u t it did not apP l l.O persons in the situation of the defen ds to He would conclude the o b serva ti ons he was ab ell st be make by observing that the ground of remedy n ill ti pou separated from a parti cu l ar case , an d h e called eth e their Lordships not to de c id e thi s p o i n t u p o n an e tr na tee case, and not to look upon it as if only one single - ,. 11 e 3 had been omitted or m i sarrange d, as th e ir Lea ',lO Friends upon the other side called upon them too! but if they were to decide it upon an extreme case avid ought, he contended, to take the opposite ex trenie' ro d; to decide it as if a mu l t i tu d e o f names h a d been ' t ~,b0 out. He b egge d o f t h e i r L or d s hi ps t o con sider 0 0 dangers might accrue if they pronounced that the r n e v gb; no remedy by c h a ll enge w hi c h might be 131. o tea before th a t august tr ib una l ; an d if he W " c ao an illustration of that it would best be found in the f t he now before their Lordships, for here was a case, ° o iD utmost importance, which divided the whole enVi r o lee which it was impossible to obtain a jury with°° degree of bias, and in which it was therefore TlL ee rj be that every safeguard which the la w p rov ided she ,, " t i et put in-requisition. Their Lordship s wou ld r ecollec t Ld 111 this book was made up after this case had origins , I '4a s the finding of the ju r y. H e t rus t e d th e ir IP r ','")/e 5 would find the means of accommodating great po n a l t, ~ to the machinery by which they were to be w roue ae le rather to accommodate the ma chinery to those :04" principles which set it in motion. With those o bs tions he would leave the case i n t hei r L or d s hips' 113 i ht Their Lordships having c a ll e d on M r . K e lly, w ool' Mr. KELLY rose and asked if their Lordships insist on his going o n at t h at l ate h our o f the nig",.'tllo The LORD CHAN CELLOR having stated that "gf would hear him till eleven e'clock, Mr. KELLY said he should feel it his duty to ech",' into the shortest space the observations he had He would first a d vert to t h e i mportant public cl",„er7r. now before thei r L or d s hi ps , w h et h er upon o ne g - u rt' indictment, where different counts were bad, the e e „ be r error must not reverse th e j u d gmen t aito,, e ' and he must say he heard no sound reason in an of ea . tending to support the opposite case. In the ea se d s hir t , indictment for several misdemeanours, if their Le i , i ,ttee decided that some of the counts containing w er e charges, up on w hi c h one j u d gment was pronounce S u ch bad, and that a court o f error cou ld no t reverse ta w& judgment, they would decide that which he a nb . us tie e ,: was clearly opposed to all principles of law and 3, no And he begged to remark that there 'easel 43; fear of that taking place which the Learned C° l— i , the other side contended would take place, nan i Wi l ere c i great offenders would escape with impunity. oate judgment was reversed on the grounds he ha" be/ there was nothing to prevent the accused &S t ol e tried over again, so that he was surprised his . Friends put forward this as a ,crrounti why the ir r oan ships should not reverse the judgrnent on this . F tw e to He submitted, that there was not even a SO ; support the proposition of his Learned Friend' 01 0 . 5 of the dicta cited re f erre d t o a cour t o f error ;.i tint of error was not ev en name d. Th e m ode in W hiev f l ere e case had been met was , by say i ng , that a court on, could not revise a j u d gment i n m i s d e meanor will or count was good. He had looked in vain do s if thorities to support that view. Upon ra n o 5 11 9 1 . s arrest of judgment all the cases went eo o 4 that if there was one good count th e en vie" would not arrest the judgment. But the eon' t ber e o . , that they were in the position of a jury, and co w nta .. oc y fore apportion the damages. The question 4,5 0 1 . ' 3 referred to in a court of error. Lord Man sil of t he b?i " We can lessen the punishment on accounti. aut her l o counts," and this was the whole extent 0 _ I ca', o to be found either in civil or crunT„'L e grt i , upon motips in arrest of judgment. and important proposition then before tr` i ilb O o t o ships with regard to a writ of error behalf t been argued. In opening this case that the r id for whom he appeared, he had admitted m ,..,. eivil sn: the questi have beer law o f E With nut) ugurnent ° IIIY q; stead ofuot they wen cases of 130 t it grow: d . accused v had tot, 4 4eartted could be Admi t t , d crime s in Mee( din The I. finished t Mr. is make. Th e L torrow, Their 1 10 Us Su L e i n a 3, 0 7 1. Nab' w as a 1113 di Zefulol E