The Sun. — London, England, 1844-07-09 00:00:00

THE STATE TRIALS. (FOURTH DAY.) WRIT OF ERROR. HOUSE OF LORDS, July 2. - _ THE QUEEN AGAINST O'CONNELL AND OTHERS. Their Lordships met this morning at ten o'cloek, when Mr. KELLY resumed his arguments for the plaintiffs. The Learned Counsel said—ln resuming his argument he had now to submit to their Lordships upon this writ of error, that upon an indictment for several diffe rent and distinct misdemeanours, if one count in the indictment were bad the judgment must -be reversed, and that the opposite proposition which 'must be con tended for by the Crown, that on a writ 'of error for several misdemeanours, with one judgment and one sentence, if one count were good the judgment must be affirmed, was unsound in law, unreasonable, and unjust ; because it must in such cases, at least in many cases of such a character, be a presumption contrary to the known truth, opposed to all legal pineiples, and wholly unsupported by authority. It was a doctrine of which some loose and vague notions might have entered into and prevailed in the minds of even the most learned judges, by reason of the doctrine being sound and right as applied to motions in arrest of judgment in criminal cases ; but when the rule came to be applied to the case of writs of error, it was found in reason and justice al together inapplicable, and it would lead, in a variety of eases, which might be • imagined, to the most . frightful degree of injustice. It would be found to - suneunr:to this, that if, in a civil case; coming-before the 'Court of Error, where there was one judgment upon several counts of a general cha racter, the court were reasonably satisfied that with respect to one of the bad counts the jury could not add one shilling to the damages, yet, as it was not their pro vince to assess the damages, if one count were bad the whole judgment must be reversed and the venire de novo ordered. In a case precisely 'the' same in principle, where there was one.judgment for several different and distinct misdemeanors, where the court must feel satisfied, in point of fact, that one general sentence might have been pronounced in respect of -those . several misde meanors, they having no ' power by law to apportion or divide or modify the sentence, - nevertheless that which in a civil case they would be bound to do with reference to damages they could not do in a criminal case, though satisfied that the parties before them are-suffering punish ment for several offences, tifeall but one of which they had been illegally convicted. -This was a proposition so strikingly unjust and unressongble in itself, that he felt satisfied that when he should have called their Lord ehips' attention to the consequences which'in a great mane cases must result if this were 'declared by their Lordships' House to be la*, and when he should have shown that there was no :; authority whatsoever to be found in support of such a proposition, he felt confident that their Lordships would, not in that case for the first tune establish • a doctrine which, though perfectly sound and reasonable and just when applied to motions in arrest of judgment in criminal cases, would be unreasonable, unjust, and contrary to every principle' of their law, if applies:l to . eases of conviction for several misdemeanours. It was only necessary to look prac tically at what actually happened, and what might happen again upon an indictment for several different misdemeanours all included hit the several comets of 'one indictment to see the impossibility of applying this principle, which arose in motions in arrest of judgment to cases of writs of error, after cone viction without at once reversing and overturning e v ery principle of law, and what was perhaps of far more importance every principle of natural justice, he would submit one or two cases that might be' applied as tests to the soundness of this proposition, First, how ever, let it be considered what was the actual practice ; whether it was in .fact the. practice to indict several persons under one indictment for several misde- • meanours, and if these persons -were convicted. not of one', but really of several misdemeanours, committed-in succession, whether it must not . be the practice in ail criminal courts to impose a much severer punishment on those convicted of several offences, than if they had been convicted on'y of one?' And this was especially necessary in cases of political conspiracy. If the case were of some one misdenieaneur which was undoubtedly 'fele nious—although, if eteictly examined, the legal.principle of the proposition could not be maintained even in a case of felony—still, they foul:d that it was the practice to indict the samepersonsin.a.prosecution for several mis deraeanoutii, and if a person were convicted of one nes- ' demeanours only • punishmentewoold be light and venial. If two or Mete successive and different misdemeanours were proved, then the punishment would be proportion ately aggravated. Where persons were guilty of three misdemeanours of different characters and 'degrees, and• there was one offence of a very insignificant character, but the sentence in respect of the whole of the offences was very heavy and severe, yet if the court of error found the party illegally corrvioted •of the graver 9f- fences; but lawfully convicted of. the lighter one, it would commit a perversion and misapplication of a sound legal principle, if it did not' reverse that judgment. Would`.. their Lordships affirm .that under the law 'of this country, a heavy punishment and a heavy sentence might: be imposed upon persons illegally convicted, of those (Ounces, in.whieb a heavy punishment was awarded ? In troubling their Lordship with some illustrations of this peieeiple, he would refer to two or three cases by no means hetaginary, or beyond the bounds of possibility, by which they , would sot only see enough to prove that the• doctrine wCntld be produc tive of most grievous injustice , but would ..gt,ye rise to a system of absurdity and filsehood in the veil judges, the high ministers of . justice _themselves, if they hap pened to sit as judges in a court of errorin a proseeution of this kind. Take the simple ease of a number of per sons indicted for two conspiracies. Two men, needy and hungry, n:ay agree to go into the next, baker's shop and steal a loaf to satisfy the cra vin g s of their appetites. Thatieet eortspiracer to eommit felony,. and they might be indi c ted for it. ''fiae the same persons' next day may have conspired to break'open a house by night, and rob and `murder. the inhabitants:. They would 'be indicted under one indictment on two counts for these two several conspiracies. They may be convieted, and a motion may be made in the court where they a ore tried in arrest of judgment. • It might be argued - that boeb, the counts were bad, and theeourt might be of opinion that -they were both good, and proceed to pus-sentence upon thene Were they to suppose that any ' court in this country -would pass exactly the •same sentence on the two poor and-hungry men who took a loaf from the baker's shop, as the) would On those convicted of a conspiracy to break open a house and rob and murder? It would be an insult to any in.' dividual of ordinary judgment;_to entertain such a pro. position. In one • ease there would 'be the most lenient sentence which the I.s.w permittecl, while the very heaviest that could bepassed w'nuld be inflicted on the other. If. judgment were passed foreehe severest sentence, and a writ of error was brought' before this House, and this , House should hold that the coitnt charging the conspi racy to rob and murder was 'bad in law, and could not be maintained, but that the count flie,,,the conspiracy to take the loaf was a good one, upon the siceeteine contended for by the Crown this High Court of Error must affirm that judgment; by sending the parties back to the prison from whence they came, and must' inflict upon. ehem the seve rest sentence which the law allowed, though Avery member of the court should feel that the parties were illegally convicted of the only crime in respect to which such a sentence could be passed, while the days' or weeks' impiisottment they might have suffered under their sentence might be an ample punishment for the offence' of which they had been legally convicted ; yet • they r were to be told by the law officers of the• Crown, that in such as that the subject was without remedy. Lord CAMPBELL said, looking to what was -merely. possible, there might be two counts in the indictment, and the Court below might think the bad count a good one, and the good collet a bad oace and might give sentence on , the bad count; - if it then came to a court of error would that judgment be supported ? Air. KELLY said he was about to put that case, and under circumstances which would startle every- one if it could be applied for a moment. He was not suggesting im possible er even improbable easel . let them look back but for a years to the history of their own times, and see if cases h a ze not actually occurred in which parties' had been indicted' for a great many misdemeanours of such varied charact'er that a conviction oil one might be followed liy . a fine of a-shilling; and a 'conviction mettle by the heaviest sentence "the Court could pronounce. They were here on a case ot*political conspiracy charged against a number of persons hewing one ultimate object; which was in itself perfectly lawtiel, it being to effect a change in- a particular Act of 'Parliament. • The question was the -character of ,the means they • agreed 'on to ' effect "that object. Ile would not illustrate -the' case by anything that' . had oc curred in this very cause, because 'h e w ed-rather f ra in from • plug • mit , ' 'of 'the record. But , let their Lordships look back to what had occurred two` or three years since when a contest raged throughout thee country for the purpose of obtaining what was denomi nated—the People's Charter, when . it was desired to. obtain what was called the five. points of the Charter. How different he would ask were. the means resorted to to obtain that object? The prosecution of Mr. Fergua O'Connor, who was tried before Mr. Baron Rolfe, eloied as many-different 'degrees of - guilt es it' was Pose . Bible to conceive. The' collecting of persons in Public.- heuses, up to the proceedings of Frost and his associates' to commit Meirdee and treason. Now if that proceeding' had taken iilace in the North of England instead -of Wales, according to the principles laid down on the other. wide, they. must have been tried altogether. There must then have been a conviction upon several.. counts for ' several misdetneanonrs. Was. he driven- to • ask the question whether upon an indictment 'like that where a trivial offence vets''charged in the • first • count, and the other counts increasing the 'offence in semostmaterial de gree—incieseing till it mime tO murdeee-was it to be said that they were all`tolie found guilty on the . last count, :whereas some of them would only have been guilty of the offence charged in the 'first count? Supposing that the Court of Queen's 'Bench,- on the ease comma before them, bad held that the ten - counts wersegood in law, could any one doubethaetheCourfw•etildpass a severer sentence for the offences cointained he the ten-counts, than if the Court' had 'held that -the nine- taunts were bad, and the - first only good? would s'uppose that nine counts were bad. Had the subject his Writ ef error, or was he altogether withont reinedy ? -Here were. men . suffering the severest sentence of. the law—they are ado vieed that they were illegally convicted, yetl the law afferdi them no redress —they bring a writ-of -error in that House, and upon that writ, of error the Lord Chief Justice of England, who should have heard the argue ' teents, and come tie-the centlusion that the counts were good, and had participated hiethe-judgment on the par ties, on the ground that Iheyebild been - guilty of ten crimeseinstead of one—yet' that Noble Lord could sit in that Houie on a writ of error from his own judgment. Then, upon thevrit Of error' in that House, the vali dity of the whole teiteennte is argimd, and Upon-re-con sideration the (dord Chief Justice, and the other mem- bers of the Queen's Bench, may be of opinion that their former judgment was incorrect. Their Lordships might be also of opinion that nine of the counts were bad, and that consequently the parties before the House had been illegally convicted of nine grave charges, while in fact they had only been guilty of one very minor offence. In what situation, he would ask, were their Lordships, if the law was what was contended' for on the other side ? Was he to be told that the parties might apply for a free pardon ? Why was a Court 'of Error allowed in that House, but for the purpose of correcting the errors of other tribunals ? In political conspiracies, where hundreds of men joined together to effect a certain object—the repeal of an Act of Parliament, or so on — some might attempt to effect that object by lawful means, others might attempt to effect it by unlawful means, and others by the most criminal means. They would then be led to this conclusion, that in prosecution's of this nature, where parties suffering the sentence of the court had been illegally convicted of a greater offence, but had been legally convicted of a minor offence, the - : Court of Error must lay aside every principle of justice, and affirm the sentence, because it must assume that that sentence bad been passed for that for which, in fact, it had never been passed. The injustice and the absurdity of such a course of pro ceeding must be manifest. But he would suppose ano ther case, not a case of political conspiracy. Suppose a man indicted at the court of quarter session for two libels, the first altogether a libel in law, yet one of so trivial a nature, that if it had stood alone na one would have thought of prosecuting it ; the other an. accusation of some horrible offence, such as incest. Suppose him to be tried, convicted, and sentenced. He moves an arrest of judgment on the ground that the count charging the graver libel is bad in law. The Court hold's that both are good, and as they would only haie passed a lenient sentence on the first count they do their duty, and pass a heavy sentence, because he has been convicted upon both. The case is brought by writ of error before the Court of Queen's Bench. The Court of Queen's bench held that the first count is bad and. the second good, then this doctrine of presumption would prevail and the Court would refuse to reverse the judgment, be cause they would say that it was to be presumed that the Court below had passed sentence for the offence which was well laid, and for no other. The Court; therefore, would affirm the judgment in accordance with this doc trine of presumption. A writ of error would then be brought - before that House, and both counts are again argued. Their Lordships, including the Lord Chief Justice, who bad heard the case, argued before, and also the other judges of the Court of Queen's B ench, who had joined in that decision, are of opinion upon graver deliberation, that the Queen's Bench was wrong, that the second count was bad, and the first good, it would be the duty of the court of error to reverse the judg ment. But if this doctrine of presumption were to pre vail they must affirm it, and they would have this ab stirdity—the Court of Queen's Bench affirmed the judgment, becauie they presumed that the court had passed judgnient only ou the second count which they considered good, and the House of Lords affirmed it, because they considered . that sentence had been passed not on the second count 'which they considered bad, but on the first; and the unhappy defendant who was thus passed from court to court, having expressly "heard the judge say, " You have this sentence passed upon you because you have been convicted of two offences," would be told by the first court of error. " You are punished for one offence only," and when he came to that HOtise he would also be told that be was pu nished only for one offence, but that offence a different one from that which he had been told he was punished for by the Court of Queen's Bench. What a spectacle would thus be presented before the enlightened people of this country, who are so justly proud of their laws and institutions, and who looked up with' such respect to their Lordships' House, as the purest, most just, and most independent tribunal in the world. This defendant might see seated in that House the chairman of the quarter sessions who had sentenced him, the Lord Chief Justice, before whom the writ of error had been first brought ; and when he had proved to the satis faction of their Lordships, that he was suffering a grievous sentence for two offences, with respect to one of which he had been illegally convicted, he could not appeal to the NOble Lord who had sentenced him, and who told him that he had been sentenced upon two counts—he could not appeal to the Chief Justice of the Queen's Bench, who told him that he was , suffering the punishment for the graveroffence ; but that House, act ' ing upon this doctrine of presumption, told him that he was suffering, and must suffer this heavy punishment for that other offence, of which, if he had been alone con victed in the first place, he would not have suffered one half of the imprisonment which he had suffered before coming to that House. And if, after that decision, those who for the future framed indictments for conspiracy were not more careful, these cases would be of constant occurrence. Was it possible that their Lordships, sitting as a Court of Error, when they found that a person bad been convicted illegally of nine out of ten offences, and had been sentenced to an imprisonment for years, and' a fine amounting to half his fortune, not for the offence of which he had been legally convicted, but of that of which he bad been illegally convicted—were their Lordships bound by this principle of presumptive act, so contrary to- truth and justice, as to say "You must suffer this punisnment, and you must pay this fine, although if you had beeii brought up -for judgment for the offence of which you had been legally convicted,' you would have had no such punishment inflicted upon you." If they felt themselves compelled to affirm this doctrine — if there was , an Act of Parliament which gave them no discretion—if there was a solemn decision of that . House on the point oa a writ of error, undoubtedly their Lord ships must be bound by that decision, and the defend ants must submit. But he trusted if such were the case, that even the short remainder of the session would not be allowed to pass away without the introduction of a Bill to alter the law. But there was no authority—no Act of Parliament—no decision of that house, or of a court of law, laying down that a writ of error brought up on several misdeineanors, if there were one good count that would be sufficient, and the sentence would be affirmed. If there were such, it had eluded 'the search of himself and friends. In cases is which motions were made in arrestof judgment in civil actions, where general damages had been given, the court was compelled to arrest the judgment if 'one count was bad. As in a civil case it was impossible-for the court to say how 'much the damages the jury awarded upon the count which was bad, and how much upon that which was good, the court would reverse the judgment altogether, and send back the case to another, jury, that they might apportion the damages- ' and their Lordships would find that this principle of law, which was perfectly sound , 'when applied to civil cases was equally applieable to criminal cases for several offences with one sen tence upon a writ of error. In civil cases the court could, not . determine how much of the sum the jury awarded upon a count that was bad, where there was a eonvictionfor two misdemeanors with one sentence for two years' imprisonment, and a fine of 2,0001., the Court of Error had no power to determine how much of .the two years' imprisonment the Court below awarded upon the count that was bad, and how much upon the count that was good, nor how much of the-fine was awarded on the bad count, nor how much on the good count. The punishment was discretionary, and it might be that upon the count which was good a pu nishment of a month's imprisonment; and a fine of 1001 might be awarded, whilst upon the other count that was „pad, a-punishment of twenty-three months' imprisonment sad a fine of 1,9002 might have been awarded, and the -Court not only had no power to determine in what pro portion's the punishment was awarded, but they had no power to app.:Sion it themselves, because they did not sit there for that - purpose, and, therefore, upon a writ of error for several miscimeanors, where one discretionary sentence was imposed, the Court of -Error was precisely in the same-situation as either the Court below,, or the Court -of Error above, in , the. case of a verdict by a jury on several counts giving one sum as damages, and therefore the Court had no power except to reverse the judgment‘ltogetber. In the cases to which he had referred, the Oases for example of " l'eaker v. Oldham," and " Grant v. Aschans," the judges reversed the judg ment in tote, because they declared themselves unable to apportion the damages, and therefore the oases were sent back for another trial. But the judges were found to have made some such observations as- those—" but it was otherwise in criminal eases, because," and he prayed their Lordships to attend to the reason given, because it Would . determine the principle on which they acted— " because," thCy " the court there' eould apportion judgment--the court there could pronounce what it thought fit, if there was one good count in the indict ment Lord Mansfield said, We must reverse the judgment altogether, because we cannot apportion the damages, which would be to assume the functions of a jury;- but it is otherwise in a criminal case, if we find even one good -count; and why, because Nve are the jury • there, and we impose the punishment. 'Provided there be one good count in the' indictment we need not reverse the judgment, because we have it in our Over to award punishment, and we will award it accord in g to what is just and right. on one count, provided it be.good." They found. the judges using such expressions wh ere the general pr inciple of the -law was adverted to, and no doubtit was perfectly sound doctrine upon motion on arrest of judgment for there the court had it in its power to apportion the' punishment' according as the counts. were good or bad; but upon 'a writ of error the Court of Error was in a different situation. If their Lordships, in all cases *here there bad been a prosecntion for misdemeanour, though there might be a hundred counts, were in a situation to say that although there 'was a general count the party had been, convicted of but one' offence, then the doctrine applied as well, in point of-reason and justice, to writs of error Be to motions in arrest. The court of error might say, " Although we know this, all these are charged as several offences, yet, by universal and invariable practice, a party cannot be convicted of more than one offence ; therefore, we will net, upon the substantial justice of the case, and, although the offences are laid as several in - point of form, yet, as we know there can be but one offence-in pointof sub stance and truth, we will not refuse judgmentif we find one count good and valid in law." But the factor truth of the case was otherwise, and rendered the doctrine altogether inapplicble to writs of error, It was custo mary in all kinds of criminal proceedings for misdemea nour ; but in cases of conspiracy it was usual to include two, three, or more, of the distinct and several, offences in one indictment. One of their Lordships, Lord Chief Justice Tindal, would remember 6 very portant ease which had 'been tried before them within ,the past week. In that case, though there was a gr ea t. multiplicity of county, three perfectly distinct conspira cies were charged under .enti indictment One was a conspiracy to defraud a man of property by procuring a -foreign legislature to pass an Act to annul a con tract ; another was to turn a' an out•propertv of RAO he was lessee, and which: if ever it existed, could not have been formed till two years after the first was coin pieta ; the third was to destroy a man's oredit'as a mer chant. Now, if it had happened that, instead of Op charges being groundless they had been Well'proied, there would have been a conviction on the whole THE SUN, LONDON, TUESDAY MORNING, JULY 9, 1844 indictment. Now, if upon such an indict ment as that—it was quite immaterial of how many counts it consisted—the defendants had been convicted of three totally different and distinct offences, and had then gone before the Court of Queen's Bench to receive judgment, and had made a motion in arrest of judgment, their Lordships would then find a precise application of this principle to the one case of an arrest of judgment, and to no other. If he had succeeded in satisfying the court that the count of conspiracy to injure a man's credit as a merchant was ill-laid and bad in law, and and that the Gaunt for turning the man out of his pro perty was ill-laid and bad in law, but that the count re lating to the foreign legislature was good and valid in law, what would have been the conduct of the Queen's Bench ? Why, they would have passed sentence upon the one good count, and have said nothing as to the others ;• whereas they would have passed a sentence of three years' imprisonment if the three offences had been proved, they would have passed a sentence of one year's imprisonment for the offence of which the party had been duly convicted. Justice would then have been done, and the motion to arrest judgment would not have prevailed, because one of the counts had been held to be bad. But now he would suppose the same case in a a writ of error. In a case which he would put in which two sets of counts were bad, and in Which the court passed sentence upon the good one, it would be the duty of those who made up the re cord to enter judgment upon the good count, and to enter no judgment at all upon the bad counts. But if, instead of that, judgment were entered upon the record as if sentence had been passed for the three distinct offences, how would the doctrine then apply ? If their Lord ships looked at , the authorities, they would find nothing whatever to warrant the statement that although one good count would support an indictment on a motion to arrest judgment, the same doctrine had ever prevailed upon argument' in a court of error. It was in its appli cation that the error existed, and not in the dictum itself, which was just and right when properly applied. The dictum in the King v. Ingram was perfectly correct as applied to an arrest of judgment ; but altogether incor rect as applied to a writ of error. The case of the King v. Fuller was a case of reference to the judges on a point reserved at the Old Bailey ; and the object was not to reverse it judgment, but to submit to the court whether the parties should be pardoned, or the judgment stand as it did. The last caie, that of the King v.Vinty, established the principle for which he (Mr. Kelly) con • tended. Lord Mansfield there said that the judgment should not be arrested by reason of one or more of the counts being bad. But he gave this express reason for it, that .the court might lessen the punishment if the count were bad. Why, he besought their Lordships to consider the effect of that doctrine falling from Lord Mansfield. In that ease the Court will not arrest the judgment, but will lessen the punishment. These were all the cases that had been confirmed, and the question was, Whether anything in these cases, or any others. ruled that the principle so soundly applicable to , motions in arrest of judgment applied also to writs of error. He had pointed out hypothetically the strange and incredi ble results that would be caused, if this doctrine should prevail ;' it would cause the most frightful injustice. 'Parties might suffer an imprisonment of years, and sustain perhaps the loss of a fortune under the false contents of an 'indictment for one venial offence. When these consequences were submitted to their Lordships, he contended they must pause before th - ey produced them, unless there was some grand over ruling authority or decision which should be binding on that blouse. But he entreated their Lordships to re member that the House, sitting as a superior court of error, was called on, for the first - time, to lay down the doctrine; the effect of which would be to inflict such cruel injustice. Before he passed from this point alto gether, he must observe that it was not to be wondered at that the authorities should be so few on this point. , From the mode in which the criminal law -in this country was administered, it must easily occur to the minds of their Lordships that writs of error on charges of misdemeanour must be of very rare occurrence. With regard to cases of misde meanour at the aisires, in ninety-nine cases . out of a hundred the persons indicted were of a station in life ,that deprived them of the means of bringing a writ of error ; and with respect to the whole of this class of persons, if a point was reserved, it waszenerally settled and determined by the judges. Lord BROUGHAM reminded Mr. Kelly that this Court decided on points of law laid down by the practice of the courts of law and equity at Westminster, without ever coming to the House of Lords. Mr. KELLY—Certainly. But in this case it should be made out what had been the practice in writs of error. It was vain to expect that there should be many autho rities on this point. In trials for misdemeanor, which were removed by certiorari into the Court of Queen's Bench, the public were generally! satisfied with the decisions of that Court, and on looking through the books he scarcely found so many as four writs of error or misdemeanour during the last century, nor in any of them was there anything like a decision in which it was distinctly held in argument that where there was a con viction for several different misdemeanours one good count was enough to support the indictment. It might be argued that when the judgment was given " for the several offences aforesaid, ' this might be taken to mean the several offences that were well laid. But if it were doubtful that the judgment was passed in respect of the several offences. well laid, still he apprehended that the ' judgment must be bad for ambiguity. In order to maintain the sentence it must appear distinctly on the record what the offence or offences were for which sentence had been passed. If, therefore, the record left it doubtful whether i: was for the offences, well or ill laid, that was sufficient to vitiate the. judgment. But he contended that the words ".offences aforesaid" must refer to. their last ante cedent. And in pages 78 and 79 the finding stated all the counts against the several defendants, and then imme diately afterwards found Daniel O'Connell guilty of all the several offences, including all the counts, both good and bad. Now he would suppose, in order to see the meaning of these terms " several offences"—suppose in an indictment there were two counts—one alleging one offence, and the other another ; supposing there was a verdict of guilty on each, and then judgment was pro nounced against the party, that he should be imprisoned twelve months for the several offences; supposing upon a writ of error it was found that one count was bad in law and the other good, so that there remained but one offence well laid in point of law, what would be the meaning of judgment for the sever al offences ? It must mean the several offences whether well or ill charged in the in dictment. In the present case one meaning must be given to several offences, whereas in cases where there are only two counts other and different meanings must be given to those. words. Where they found several offences charged in an indictment, and they must sup pose them to be legally charged, the only meaning given to the term " several offences" must be one offence. Upon these grounds he. would 'submit that if there was one count bad the jbdgment must be reversed. The present convietion was forseveral misdemeanours, aad the de fendants had appealed to their Lordships to be relieved from offences of which they had been illegally convicted. If their Lordships did not affirm this doctrine and re verse this judgment, the consequence would be that their . Lordships would be maintaining and perpetuating a punishment, not in respect of offences of which parties had been legally convicted, but continuing punishment for offences of which the parties were not legally con victed, and that too upon the presumption that the par ties had been convicted upon the. good counts. That court of error could not assume the jurisdiction of ap propropriating the offences upon which the parties were suffering punishment ? The only course left open to their`Lordships was either to affirm or reverse the judg ment below. If the court reversed the judgment then the case must 'be- sent to another tribunal, where the case must be tried over again, and if the parties were found guilty they must -be punished according to the crimes they had committed. He would now submit to their- Lordships that there was at least one bad count in the indictment. He contended, for his own part, that every count in the indictment was bad ; but having been preceded by several of his Learned Friends, and 'particularly by Sir T. Wilde, who had called their Lordship? ettention to all the counts, he would only trouble the House with two of the counts which he contended were bad in the face of them, because they had not charged any offence with legal certainty. Those two counts were the sixth and the eighth. The sixth related to the exhibition of physical force, and the eighth to the transfering of other legal matters to other tribunals. ' With -respect to the sixth count it was too general. It showed no legal offence. In order to con stitute the legal offence of conspiracy, it must be ex pressly alleged that the conspiring was for some unlaw , ful object ; and. if "fdr an unlawful object, it must be shoWn to be such, and not merely called so. It was not sufficient to allege that persons had unlawfully conspired by unlawful means to do an unlawful act. But it must be shown that the means were such' as were necessarily unlaWful, or thnt'the end and object must be necessarily unlawful. This 6th count, when considered well, would be found to' amount to this : that eight persons men tioned, unlawfully, maliciously, and so forth ,conspired and confederated to cause and procure, and sided and assisted in , causing and procuring, divers subjects of the Queen to assemble in large numbers for the unlawful and seditious purpose of' changing the laws and constitution of the realm. ahe' fi rst part charges that they conspired to procure a large:aisembly of persons for a certain pur pose. Now to procure alarge assembly of persons was not illegal ; it must .be shown that the assembly was illegal, or- that 'the purposes 'for which they wens met was so. Then' the count want on to say that they caused them to assemble for -an unlawful *lld-fedi tious purpose. Now if the count stood there alone the count was . clearly' bad. Here' the purpose was stated, and therefore upon that - count the only question for their Lordships was, whether the purpose stated to be unlawful' and _seditious was upon that' statement' clearly shown to be either 'one or, the other? A conspiracy to procure changeein the Constitution was clearly not Ille gal. Could it be said that the parties who took mea sures 'tO procure the union of Scotland and Ireland with England, which Would affect a great alteration• in the law, were guilty of. an illegal conspiracy? or could it be said that the conspiring to procure the Catholic Relief Bill, or the Reform Bill, both of which measures effeeted great changes, had committed an illegal act? The endeavour to procure a change in the law was a 14011 object. Let, them consider if what was laid in . the count was necessarily unlawful, or if it were to be' brought about by necessarily unlawful means. The means were intimidation, caused by assembling meetings of the people. Who was. to be intimidated? Was it the Parlia ment or the Soiereign?Thitt might or might not be illegal Or was it any othpr person whom it might be perfectly legal to intimidate? So with regard to the words de monstration of physibal force," it was not stated on whom that was to operate. The count was bad from unperteinty. It ought to have been distinctly charged , whom it was that wes, to be intimidated —on whom the demonstration of physipal force was to operate ; for, un less .they could establish the prpposition that it was il to assepPe a meeting pp giumPate anybody, Al' tq operate b'y i"detuoristridou of phybical force ou anybody the count was bad. If they . charged a man with intend ing to intimidate as a criminal offence, and with intend ing to use a demonstration of physical force criminally, the indictment must state on whom the intinidation, and on whom the demonstration of physical force, was intended to operate. In indictments for obtaining money under false pretences, it was always necessary to state whose money was to be obtained. In indictments for conspiring to defraud it was necessary to stale who was to be defrauded, and how the fraud was to be accom plished. Therefore he contended that in an indictment for a political conspiracy in which intimidation was cri minally charged, it was necessary to state *hom it was intended to intimidate. He challenged the Counsel of the Crown to shew on what ground this count eould be held good, and why it was unnecessary to state on whom the demonstration of physical force was to act. It was bad for generality. Bat he would proceed to show that intimidation and the demonstration of physical force were not necessarily illegal, and if he could put a case in which it was lawful to use intimida tion and physical force to assist in procuring a change in the law, he should prove that this count did not ne cessarily charge any crime at all. He besought their Lordships to dismiss from their minds that the real ob ject of these meetings was to procure a repeal of the union, an object which was opposed to the wishes of the Legislature, and to the wishes of thd majority of the people in this country. But let them suppose that this charge related to a change in the law in favour of which the Sovereign, the great body of the people, and the ma jority of one House at least of the Legislature were united—a change just and desirable in itself, would it be unlawful to further that object by the intimidation of physical force ? Let him suppose that the third reading of some such measure as the Reform Bill was fixed to take place in their Lordships' House that evening, and that a body of 10,000 men were to _assemble in Spa-fields, and to say we will march down to the House of Lords, and prevent the Lords from altering the law, would it be illegal if a body of gentle men residing in Whitehall and the different streets through 'which these men would lave to pass, were to say let us oppose the progress of these men, and by inti midation and a demonstration of physical force, prevent their going down to the House of Lords? Would that be illegal or not ? Yet that proceeding would be described by this count of the indictment. Lord 13nouGUAM—Why do you not take the case of a person holding out a pistol to prevent a highwayman from robbing him by intimidation ? You take the case of parties engaged in an act almost of high treason, in which the loyal subjects of the King assemble to prevent the commission of crime. Mr. KELLY—That was just the case: yet • these loyal subjects were, in the words of the indictment, seeking by intimidation and a demonstration of physical force to change the law and the Constitution. That showed how important it, was that the person to be intimidated. Should be named •in the indictment, in order that it might be shown that intimidation was illegal, and that the party accused might know, at once, what he had to defend himself from. Unless it were intended to .overrule the principle laid down on the Queen v. Peck, 9th Adolphus and Ellis, page 626, and to adopt' a totally new and different principle, this count could not be sustained. He would, therefore, venture to ask whether was the intimidation of a large meeting necee• sarily—for that was the question —illegal ? Was a meeting to intimidate. evil doers illegal ? There were many cases in which a meeting to intimidate was attended with good. He therefore said, it would be necessary to show what the intimidation was, to show that the meeting was necessarily illegal, unless their Lordships were prepared to hold that, In all conceivable cases, where large, meetings were held to intimidate, no matter whom, thatall such were illegaL Where was the object stated here, which object was necessarily illegal? Where were the means stated, in furtherance of this object, which were unlawful ? The object was' not illegal. It 'was to "effect a Change in - the law, and in the Constitution. That was what was done in a multi tude of cases. Every , person who brought in a - Bill in, Parliament' had' more or less that object in view. It would not therefore be contended that the object was illegal. Then, with regard to the means employed, they would , find, diveiting the count of the mult i t ude o f ad jectives and' adverbsin which' 'the means were enveloped, that 'it was'to exhibit physical force, and to intimidate somebody. Why, if every large "meeting of persons whereat there was a large physical force exhibited was illegal, a large number of persons coming forward to be sworn in as special constables would be guilty of con spiracy, because they contemplated a meeting whereat great . 'physical force was to be exhibited, and whereby some persons were to be intimidated, would be illegal, though the meeting was for the purpose of exercising that physical force, and causing that intimidation in support of the law, and not in violation of thd law . . To the words "unlawful" and "seditious it was im 7 possible to giv‘ any precise meaning. He need no t refer to the details of the case of the Queen v. Rowet , a l rea d y cited. In that case there was an indictment charging two persons with being in an open place for certain ille gal and very bad purposes, and words were used which gave a particular character to •the illegality of the acts' said to be done. But the words were deemed insufficient to make the actsillegal. So here there was nothing on the face of the count to show what was illegal. Another. case in point was that of the King v. Cherer, 4th Berne wall and Cressy:TH. The defendant was indicted far that with force of arias in the churchyard of the parish he did unlawfully interrupt one Mr. Cecil, a clerk, in reading the service for the- " Burial of the Dead" over a corpse, and that he did prevent and hinder the burial.of the said corpse according to the rites and ceremonies of the Church of England, and laid violent hands on the said Mr. Cecil, and there were other counts: The court held that that charge was too general, observing that every interrup • tion was not an indictable offence. So here he (Mr. Kelly) contended that every intimidation was not an in dictable offence ; it must be shown how and upon whom it operated, in order to be indictable. The court said the defendant must see clearly what he had to answer ; so also with these defendants. • A meeting to procure the repeal of the union was perfectly lawful, and, in order to be made unlawful, it must be shown who were the parties intended to intimidate ; the count must state facts, from which it should be made evident that the meeting was illegal. He would trouble their Lordships with no other authorities with reference to this count, but at once submit that it was necessary, in order to establish a crime of this kind, not merely to state that the acts were the record circumstances how they were unlawful. to consider well the effect dnuinerlttoopwratlfyuyLe and nbdtUhetexiotroreLpsloslaide s chewingh ilippson upon the law, and upon the well-being of the people of this country in times of political excitement, of their de 7 general char ges , persons might cision in this case. He intreated th em to c onsider how In these times, when there was e b a o s t il r y o , a u ted pon is . v o a r g i u m e io n a n i d i. freedom of discussion, and freedom of assembly, when, before a Bill received the Royal assent, meetings were so frequently held in -Various parts of the country, some for the Bill and some against it, it did appear to him to be a strong proposition for that House to , affirm, sitting as a Court of Error, that every essembly, relating to a change of tho law, was illegal. Meetings were, and would, be held in this country for political objects in times of excitement—prosecutions thegratification of, private sometimes formight be resorted to ma lice—sometimes from party feelings—and it was impossible to shut their eyes to the, fact that even the ,best of menniust be subject to them, and he ventured humbly, to beseech their Lordships to pause before they held that any of the subjects of this realm. must be put upon their trial on a vague charge like that to which he referred. it was under these circumstances and upon these grounds that he submitted to their Lordships that this sixth count-earid the same line of argument would apply to the. other. Counts—was clearly too general and bad in law. He had said that there was only one other count in the indictment to which hewould call the atten possible, more 'extraordinary, when considered as tion of their Lordships. The eighth count w as, if the subject of a criminal charge, than the sixth ' count. It - was that these eight persons aforesaid, unlawfully, maliciously, and seditiously; did combine, conspire, confederate, .and agree, with each other, and with divers other persons, whose names are to the jurors aforesaid, unknown, to bring into 'hatred and disrepute the tribunals by law established in Ireland for the administration of justice, and to diminish the con. fidence of her said Majesty's liege subjects in Ireland in the adininistration of the law therein, with the intent to induce her Majesty's subjects to withdraw the adjudica tion of their differences with,- and claims upon each other, from the bognizance of the said tribunals by law established, and to submit the same to the judgment and determination of Other tribunals to be constituted and contrived for that purpose, in contempt of our said Lady the Queen, and 'the laws of this realm, •to the evil example of all others in the'lik e c ase offending, and against the peace of our said Lady the Queen, her Crown, and Di g nit y ." The, substance of this charge was the bring in g some tribunal or other—what - particular tribunal , is not men tioned—Tinto hatred and contempt, and withdrawing the confidence of the Queen's subjects from them. Now they could not mean all the tribunals of the country. They did not mean to bring all the minor courts, or all the courts of pie-poudre, into cont e mpt. .It must apply to (muds of other descriptions. S u pposing those courts to be so bad as to deserve hatred and contempt, and 'honest men de sired to effect an improvement in the law, which they could only effect by holding up these courts in their true colours, in order that they might by lawful means procure the interference of the Legislature to alter and amend the Lord ships could not here enter into , the question of whether law in , this respect,:would that be crim inal? Their or net the courts of law were so odious as to require that change. If the v i ce s and . defects of the mode ,in- ' justice was administered was to become a matter of question in dealing with people's rights in altering the law, fr e edom of discussion in this country would be at en end • could any great 'improvement in this country, even where it was most needed, be effected if they were to •be deemed criminal whO agreed together in any number to hold up a particular institution to the hatred and. contempt of the public? If indietineut, which .was framed at common law were good at the present day, it would have been good two centuries ago. And if any number of Englishmen had agreed together to write down the Star Chamber, or the High Commission Court, and hold them ,up to the hatred and execration they deserved, they might have been indicted for conspiracy. . Lord Csseeme--- 7 The overt act being the 'publishing the proceedings of the Star Chamber. Mr. KELLY—Precisely. That would have been in overt act, the effect of which must have been to hold up .the Star Chamber to hatred and contempt. But was it illegal? If the courts were such as to deserve the respect and confidence of the people, they would have it. But the question was n o t as t o the character of these courts. Two parties t o a ease m ight come- to very.- different opinions as to th e 'd ec i s i on - o n a Case ; caw might t hink it a very just o ne an d t h e ot h er the very reverse. But in a free count r y lik e t hi s , where- all the' vices and evils of an instituti on m i g ht, if- not checked, grow into and form part'::Was , it cri minal for Englishmen to agree toget her, if the y believed conscientiously that any institution deserved hatred and contempt, and to hold it up in its true light to the people ? He would quote to their Lordships the descrip tion given by an eloquent and learned writer, who had been a Cabinet Minister (Mr. Macaulay), of the manner in which justice was administered in England in the time of Charles the Second and James the Second ; he sit) s- " The next great blessing which we owe to the Revolu tion is the purification of the administration of justice in political cases. Of the importance of this change no person can judge who is not well acquainted with the earlier volumes of the State trials. Those volumes are, we do not hesitate to say, the most frightful record of baseness and depravity that is extant in the world. Our hatred is altogether turned away from the crime and the cri minals, and directed against the law and its ministers. We _ _ see villainies, as black as ever were imputed to any person, at any bar, daily committed on the bench, and in the jury box. The worst of the bad acts which brought discredit on the old Parliament of France—the con- demnation of Lally, for instance, or even that of Calas, may seem praiseworthy, when compared with the atrocities which follow each other in endless succession as we turn over that huge chronicle ofthe shame of England. The Magistrates of Paris and Toulouse were blinded by prejudice, passion, or bigotry. But the abandoned judges of our own country committed murder with their eyes open. The cause of this is plain. In France there was no constitutional opposition. If a man held language offensive to the Government he was at once sent to the Bastile or to Vincennes. But in England, at least after the days of the Long Parliament, the King could not, by a mere act of his prerogative, rid himself of a troublesome politician. He was forced to remove those who thwarted him by means of perjured witnesses, packed juries, and corrupt, hard-hearted, brew-beating Judges. The Opposition naturally retaliated, whenever they had the upper hand. Every time that the power passed from one party to the other, there was a pro scription and a massacre, thinly disguised under the forms of judicial procedure. The tribunals ought to be the sacred places of refuge, where, in all the vicissitudes of public affairs, the innocent of all parties may find shelter. They were; before the Revolution, an unclean public shambles, to which each party in its turn dragged its opponents, and where each found the same venal ferocious butchers waiting for its customer. Papist or Protestant, Tory or Whig, Priest or Alderman, all was one to those greedy and savage natures, provided only there was money to save and blood to shed. Of course those worthless judges soon created around them, as was natural, a breed of informers more wicked, if possible, than themselves. The trial by jury afforded little or no pro tection to the innocent. The , juries were nominated by _ the sheriffs. The sheriffs wore in most part of England nominated by the Crown. In London, the great scene of political contention, these officers were chosen by the people. The fiercest parliamentary election of our time will give but a faint notice of the storm which raged in the• city 'on the day whert two infuriated parties each bearing its badge, met to select the men in whose hands were to be the issues ,of life and death for the coming year. On that day nobles of the highest de scent did not think it beneath them to canvas and marshal the livery, to head the procession, arid to watch the poll. On that day the great chiefs of parties waited in an agony of suspense for the messenger who was to bring from the Guildhall the news whether their lives and es tates were, for the next twelve months, to be at the mercy of a friend or foe. In 1681, Whig sheriffs were chosen ; and Shaftesbury defied the whole power of the Government. In' 1682, the sheriffs were Tories. Shaftesbury iced to Holland.. The other chiefs of the party,broke up their councils, and retired in haste to their country seats, Sydney, on the scar f Old, told those sheriffs that his blood was on their heads. Neither of them could deny, the charge, and one of them wept with shame and remorse." Such wai a true description of the tribunals of the coun try at the time to which this eminent writer refers. Though, thank Heaven, they lived now in different times, and . under different institutions, yet, he would ask, if it would be criminal for any . number of men to unite to write or speak down tribunals in which there might' be many .vices of practice and administration.. Was the charge of an indictment of this kind necessarily a criminal charge-'—that of con spiring to bring the tribunals of the , country into con tempt? If the courts did not deserve ',contempt, they would, not receive it ; that decency of language and moderation should be used in the discussion, might be necessary, but it was another and a very different ques tion, because parties believed that 'such were vices of the system, that it deserved hatred and comtempt ; they be came criminal because they agreed to speak of that insti tution in what they believed to be just and becOnaing terms. .Again, this was extremely . vague. " He would not say how the administration of ~justice had been carried on ; he weget net say anything of how the ecclesiastical courff c lideiheen spoken of in and out of Parliament. The attacks that had been made upon these courts, was not upon the judges, but upon the system ; look at the criminal courts; in those courts many men had been tried who were not guilty, and suffered death, in consequence, perhaps, of the badness of the system ; all *as it to be said, that those who had been their, nearest and dearest relatives, suffer under a bad sys tem, that, if they decreed it, they would be guilty of conspiracy ? It wai too much to say that parties could not attack a bad system without being guilty of conspiracy. 'There were many parts of the system that might he assailed, , and with truth, a not to be considered crimin 1 . d i l, for doing so men ought As to the latter part of the count, was it to' be said th t it was a crime, to say that the administration of jus tice had become hateful and contemptible, and that parties would refer their differences to another tribunal? He submitted that there was nothing illegal or criminal in attempting to bring any part of the system into contempt in order to obtain an improvement ; there was nothing he believed that it would be illegal to bring into con ' tempt except the religion of the country, and that had been even held not to be illegal. On these grounds the' count being bad the whole wag vitiated, and_the whole indictment must linieversed. Lord CAMPBELL wished to advert to this difficulty. You say, Mr. Kelly, that these bad counts charge no offence, then. we find the record saying "'for the offences aforesaid." Now, can that be supposed to include that which you say is no offence. Mr, KELLY submitted that ,that must be so, because the word offence aforesaid must mean the offence the jury had found. Offence could not mean offences ; it must mean one offence well laid, and an offence ill laid. The LORD CDANCIIILLOR—Every time, Mr. Kelly, you adverted to this circumstance, you used a word that is not in the indictment—several offences—whereas, it is offences aforesaid. . Mr. KELLY asserted that there was not a single offence, legally charged ; the offences aforesaid must mean the offences found by the jury. Suypose, for instance, in ail action for slander he were to introduce a most absurd' and ridiculous count—suppose in the first count the slan der was stated to be that the man had been' called a felon, that in the second count it wits stated to consist of something, equally actionable, and that is the third count it was stated that he had called the plaintiff an honest and en honourable man--ifen those three counts a verdict was given' with general damages, the court not being able to disOirninate hcisi much had been given by the jury ,on - the.goodriourits,-. and'how much on the bad ones, would reverse the judgment, and send the case back again for trial: ' So in this base the eourt - did not know how much of,the piiiiishmerittiad been apportioned to the good counts and..how.-much to the bad ones, and he apprehended thestattno choke, but must reverse the judgment altogether. ' - Their Lordships here' retired for it sh c 00 tithe,; on their return, Mr. KELLY resumed, and said that in reference - to the point he had just concluded with, the only consequence which would arise from reversing the judgment, would be that the liame degree of precision would be observed in criminal cases which was now observed in civil cases ; and it would be competent for the prosecutor to enter up judgment upon one count which the court held to be good, as was done in civil cases. He would now proceed to the ques tion which rose upon the writ of error, in fact relative to the swearing of the witnesses before the grand jury ; and it would .appear, both in the plea in abatement in the case, 'and on the assignment of the . writ of error, in fact, that the witnesses in support of of the indictment, if sworn at all, had been sworn, not in open court, but before the grand jury only ; and he would submit to their Lordships that, under the statute regulating the swearing of witnesses upon indictments in Ireland, there was no authority in the grand jury , to swear the witnesses in this prosecution,• being in the Queen's Bench, but that they. must be sworn in open court ; and upon this, this further and more import an t question arose, whether, supposing the statutes did ex tend to the Court of Queen's Bench, and therefore the witnesses were properly sworn, whether they did not authorise that the names of the witnesses should not be indorsed on , the bill, and signed by the name, of the foreman, or by his initials. He would refer to this latter point first ; but, before doing so, he would proceed with regard to the swearing or witnesses upon trials on indictment in Ireland. This was regulated by two Acts of Parliament, - the 56 Geo. 111., c. 87 and the 1 and 2 VictOria ' c. 37. Before he called the atten tion of their Lordships - to the particular language of these statements, 'he would state what he considered -, to be the effect of them. Before the statute of 56th George 111. was passed, a practice prevailed in Ireland of sending witnesses before the grand jury without being sworn at all, and indictments were found on, the testimony ' of those witnesses who were not sworn ; and to regulate this 'evil' that statute was passed:. That statute provided akpressly that in all cases where witnesses were to give evidence before a grand jury, on any . indictments ; they were first to be sworn in open Court, so that from the time of passing the Act to the year, 1838 noo - Bill had been properly returned, and no person was put . upon his trial upon ', ant indictment unless the witnessess in' support. of it had been sworn in open Court. It was found that the .swear ing of witnesses in op en court .wasp roduct i ve of inconvenience, -was p at last the great an some rem e dy necessary. Provision_ was made by the . Act o f ~t e Ist and 2d of Victoria, c. 37, for the swearing of witnesses before the grand jury: The question was, whether that article applied. to the swearing or witnesses in the Court of Queen's Bench in Ireland, or whether it was. ' limited to those courts which, were particularly men tioned—the Assizes and the Querter Sessions. He con-. tended that it was necessarily limited ' by the languag e t o the Assizes and the Quarter Sessions. It was provided in the Act that upon !prosecutions being instituted, the clerk of the Crown at- the Assizes, and the clerk of ti\e' peace at Quarter Sessions, should endorse upon th e in`, ; dictment the names of the witnesses to be sworn ; that the grand jury should administer the oaths to those wit: , nesses, and receive their evidence, and then that thtlt foreman or other member of the grand jury, who should ' administer the Oaths to the witnesses, should endorse the names of the witnesses whom he should have sworn upon the iudictment, and authen; ticated the fact to the court by signing the list, either with his name , or initials.. Now that had not been done. It was assigned for error that there was no evidence on the record of those witnesses whose names sip& peared on the back of the bill, having been sworn by the grand jury according to the provisions of the statute, because neither the foreman of the grand jury nor any member of the grand jury had affixed his signature or initials to that list. He submitted to their Lordships that the non-compliance with that statute entirely vitiated these proceedings. It was quite unneces sary to remind their Lordships upon what very slight grounds in criminal proceedings judgment had been re versed in writs of error. If in any part of the process error had been committed either by the sheriff or any other officer connected with the court, the judgment was reversed. (The Learned Counsel then referred to Comyn's Digest in support of this proposition.) Among other causes of error it was alleged that if the swearing were not well performed, as for instance, if the words " to speak" were omitted, it was error. If, then, it were clearly required by law that the witnesses before the grand jury should be sworn in a particular way, and that the swearing of the witnesses should be certified to the court in the manner pointed out by the statute, why should not the non-swearing of witnesses be considered as error ? The authenti- cation of the swearing , of the witnesses before the grand jury was now rendered as important a part of the proceedings as the impanelling of the petty jury; also in the case of the "King v. Carlisle," 2 Barnewall and Adolphus, p. 97. He could not go through all the facts of this case, but he would merely state that the nature of the objection was not to any part of the proceedings themselves, but to an extrinsic part unnecessary to the validity of the proceedings. It appeared that only one of the justices named in the Commission to try the prisoners was present when the verdict was returned. That was assigned as an error of 'fact. But when it came before the court of error, in the first instance it was held to be a statement contradictory to the record, and could not be assigned for error on that record. But, it was not contended that, if it had agreed with the record, the objection would have been sufficient to set aside the judgment. The matter of fact itself was a good objec tion. When the matter came before the Court again, on an amended record, the Court held that it had no power to reverse its own judgment in another town. He (Mr. Kelly) maintained that the matter alleged was error in fact, and, no matter who ought to be present, the absence of any such person when the , verdiCt was given vitiated' the judgment ; that was not an error fatal in the premises, but was an extrinsic fact ; yet the court field that it would be good ground of reversal if it were not contradicted by the record. In the ease of " Rogers v. Simpson," 1 Adolphus and Ellis, p. 772 ; with that case a great variety of authorities were connected, but he would not trouble their Lordships by going through them. The error assigned was that the distringas was not returned by the sheriff of Yorkshire or any other sheriff, nor was there any return of the panel annexed to the writ. The jury had been summoned, convened, and sworn to try the case, but it appeared that when the record was made up there was no return by the Sheriff ; that is, he had not signed the return upon the record. He called the attention of their Lordships to this case because he could see no difference between an erroneous return of witnesses and an erroneous return of jurors on the panel, for both were equally necessary for the validity of the proceedings ; and Lord Denman, giving . judgment in this " case, stated that every such omission must be considered fatal, and he reversed the judgment. In the " King v. Bittals," where the defendant was found guilty of stealing a heifer, the objection was that the witnesses were sworn before the jury without , coming into court. The judge held that the objection came too late, as it was 'after conviction, but would recommend him to a free pardon. This case was brought before a court of error. He quoted the opinions of Lord Den man, Mr. Jestice Coleridge, and Mr. Justice Patteson on this case, all concurring that the indictment ought not to be quashed. In the present proceedings there were no means of the prisoner knowing that the witnesses had not been sworn ; but that law was imperative, and said that no man shall b• put on his trial except on, evi dence of witnesses to whom an oath has been duly ad ministered ; nor shall" he be punished 'without a due finding on oath. He conceived that the proper mode of taking advantage of this non-compliance with the Act of Parlisnient as to the non-swear- ing of the witnesses, was by the assignment of error in fact, this was the only way in which the pri soner could have an opportunity of making the objec tion. He read the . section of the Act of 1 and 2 of Victoria, and stated , the _ course of proceeding under it 'to be; that assuming the. swearing to. take-place before the grand jury, and they only, they are to endorse the names of the witnesses on the back of the indictment, to sign . the endorsement and -send it thus authenticated before the court. Could it be contended that this was a mere form, or that it was an unnecessary one? He had heard with great satisfaction something th at had fallen from one of their Lordships, which relieved him in some sort from the habitual necessity in which they were placed of con sidering what was directory and what was imperative in it statute. He was glad to adopt the term essential, and he would ask was it essential that the provisions of the Act should be complied with ?. What security had, the court in putting' men on trial, it might be for a capital offence, that the witnesses bad been sworn, except the certificate ofthe foreman ? It showed that this part of the Act could not be what was called directory'; . they were provisions, the complying rp . vith which was absolutely necessary... The Act consisted not : so much of provisions by which the general oklect of swearing Witnesses Was to be attained, as of a series -of provisiond forming 'the machinery by which that swearing was to be accom plished. He i _citedted the case of'"HOldsworth v. Procter," in Crook, James, in which the sheriff not having signed his name to the venire. facias, the judgment was reversed. ' Tt was urged that the name of the sheriff was not neces `aiy; but all the court held that it, 'was bad, and, .set it aside. This was not a proceeding at common law, but by statute, and the omission signed by the foreman • of the' grand; • jury was matter of importance, 'because, . ' unless he signed it, . the court would not know whether the, party had been' put properly on his trial or not. There was another case—Crook, Elizabeth, " Staner v. James."' The 'Learned Gentleman having alluded to this, case, observed:that there were other reasons why . : it, was essential that , the court should have the means - of knonting who were the witnesses sworn. In the case of anindictment forperjury, sup pose Bill ,caine. ' down with.. the • names ,of four or five witnesses but without the signature of the. foreman 'attesting that they had - 'been sworn, how.was the court to know whether the bill bad, been found upon the evidence o£ witnesses who had been properly sworn unless their foieman had put his initiala to the bill'? There was another casein Crook, Elizabeth, of ." Blood ward and Edwards,". where . error , was as signed, that the sheriff's 'name was not attached to the :writ of :habeas., corpus. Where the statute for the first time, . created , . a new system of procedure in a matter so • iinportant as giving, evidence upon oath before a grand jury, he conceived it was neces sary that they should be well • satisfied that the provi sions of the statute had been carried out before any pro ceedings could be properly taken. The question here was, whether this Act extended to the Queen's Bench in Ireland, whether the witnesses should be sworn be fore' the grand jury, or ,in open court ; .and he sub mitted that the Act could not be considered as applying to the Queens , Bench in 'lrelan4 that court not being mentioned in any of its provision& If it had been intended that the Act should apply to the Court of Queen's Bench, that court would have been expressly mentioned in the.Aet. But, instead of that, the Court of Queen's Bench, the principal criminal 'court in Ire land, was nowhere mentioned in the Act ; and accord ing to the ordinary rules for construing Acts of Parlia ment, it could not be . contended . . that the Act was in tended to apply to the Court of Queen's Bench. Courts of assize and quarter sessions were expressly mentioned, and doubtless the , Court of Queen's Bench would also have been mentioned, - had it been intended that the Act should apply to that court. • The LORD CHANCELLOR—Mr. Kelly, whom do you re present with respect to this part of the argument ? Mr. KELLY—Mr. John O'Connell, and the three whom I have named. • The Loan CHANCELiQR--The point I believe was not raised for Mr. Steele. 'Mr. KELLY—Yes, my Lord.' They all raised the ob jection that the witnesses were not sworn in open court, but Mr. Steele raises the additional point that the notice was not signed by the foreman. • The LORD CHANCELLOR—Is it so stated ? Mr. KELLY—Mr. Steele raised that point on the plea of abatement. - - . ' • The LORD CHANCELLOR--It does not matter, because if the 'point is good for one, it is good Pak all. only Wished to inquire who you represented. Mr. KELLY then proceeded with his' argument, and contended that •if the provisions of the Act had been intended to' apply to the' Court of Queen's Bench that court would hate 'been expressly named, ind,quoted the case, of the " King- v. Richards," Bth Barnewall and Cresswell, p. 420, in supPort,of this branch - of hid srgu inent. Now what were the' words of the Act, " Tliat in all cases of indictment the clerk of the Crown at the as sizes, and the clerk of the peace at the quarter sessions, shall endoise on the back of the indictment the 'names of the witnesses, and send them to the, grand jurY." To what grand jury ? Why,'of cotirse to the grandjury at' the assizes; or to the grand jury at the sessions ; and the 'foreman or other member of the grand jury soempanelled shall swear such witnesses. Now it was contended that the words " grand jury so empanelled." meant any grand jury in' Ireland. How could that be so ? What grand jury could be meant but. the grand jury at sessions or assizes ? •It was true there were general words in the introductory 'portion, but those words were limited by the words Of the 56th section,' in, which" there, was no mention made of the Court of Queen's Bench. There was a proviso that no foreman o f any gran d j ury s h ou ld examine a witness whose name was not indorsed on the back of the indictment by the clerk of the Crown, or the clerk of the peace, respectively. And, however general the words might be in the introductory portion of the Act, here was a new and entire provision, pointingout the mode and the object to be attained in a clear and spetific manner. He would advert to an'answer which had been given by the court below. In order to extend 'the provisions of the words " clerk of the Crown' at the assizes," and "clerk of the peace at the quarter sessions," to all officers of that character, it seemed to have been thought by some of the judges that' beeause such a construction was given to ancient - statutiii, such a constrUctionshould also be given to modern statutes, and they referred to the statute circumspicite nods, but that statute was set aside in the case of Wilson v. Nadley, 7th East, p. 127. The Loan CHANCELLOR said he did not think the judges below had relied on the ancient Meaning of the • statutes: Mr.' Justice Perrin distinctly, and in words, • threw such a doetrine Overboard. Mr. KELLY said he was glad, to be relieved from ar guino that; but it wee-' ill his. recollection. that Chief Justice Pennefather referred to it. If it were . the in tention of the Legislature that in all eases of indictment throughout Ireland the grand jury should administer the oath' instead of• the Court of Queens Bench; it would have been very easy for' the --Ant-OPParlia- meat to to say so. rpon these grow-els-shp su L bmltO that this statute did not apply to the`CAtirt of Queen' s Bench, in Dublin, at all ; but he SaMitted . ,' at all events/ with confidence, that it was of the, very essence, of those criminal proceedings under„andliccording to this new Act of Parliament; that whether thelVitnesses were sworn in by the grand jury or. in 'Open' conk; it' slidufd be _certified that they were sworn, and it should We ar on the back of the bill that the Act of -Parliament - w as complied with in this respect. ".;It - necessary, that the Act of Parliament should be-strictlY complied It was not complied with in this respect, and onAn" ground also he submitted that the judgment should Is reversed. With regard to the remaining 'points lON ° case, which had been so fully gone through by DJ' to Learned Friend, Mr. Peacock, and first, with regard the point of repugnance in the finding of the WY , it would appear from this finding that eight persOnst leaving out the deceased, were indicted for a conspired with each other to do certain unlawful acts ; seven per sons were found guilty of that conspiracy, and 'of the whole of that conspiracy,.in the largest and most ern' phatic language which could be used in finding .persons guilty of the entire offences charged agaihst'them ;' se e° were found guilty of conspiring with each other and the eighth : then came the finding That the eighth .pers ° ! was not guilty of the whole premises ; that was, °"" guilty of conspiring with them ; so that upon the record there was this repugnance, that seven pers°,, g , were found guilty of conspiring with each other and wit' the eighth, and the eighth was not found guilty of 'con ' , , spiring with the others. (The Learned Gentleman tn e ' went on to argue the paint respecting the continuanc es ' but their Lordships seemed to take a different view frot a , him upon the point.) He would next contend .I°' the Court below should have pronounced in meat on the points upon which the defenclalw were found not guilty. This was necessary in order t° secure the'defendents from another indictment. 'M ire could be no doubt that this was not a complete and per feet judgment, and he contended that their Lordship s could not amend it. Then, with regard to the recogn v a sauces, which were fully entered into by his Lear n Friend, Mr. Peacock, he would contend that th e judgment was bad, because the time at which t he recognisances were to be entered was uncertain. It uncertain whether they were to be entered into at t, beginning or the termination of the sentence. He stil t milted that, on this ground likewise, the judgment Irla bad. There was but one more point which he wo',' advert to, and, having already occupied so much of tk „ ,"; Lordships' time, he should not feel justified in do h so, did he not feel a confident opinion that ",fie point was of the highest importance to all defendants. He meant the objection with regn. to the challenge of the array. It was required by in of Parliament that the juries in Ireland should be selen; in the particular form prescribed by Act of Parliatela and it was of the highest importance that juries shoals be fairly and impartially selected, in order to 81, security to the subject. But their Lordships aware, and from the facts brought forr 4 s, it was perfectly manifest, that the Act of Parlient, had not been complied with here, and that those poi:, had been tried by a jury in whom there could - ne, o manner of confidence, they not being chosen or select 10 the law required. It was evident that a jar,' t o from which the special jury and the jury panels W o made out had been fabricated by some persons unkti, ° ,,,t for an unlawful and injurious purpose, and ~.,wro from this list so fabricated the jury had. 1: i t chosen which tried the defendants. It might be '` t b e any stranger who was badly disposed, towards defendants had forged and fabricated the list: 1,0 beginning to end, and it was complained that *",,f was to the injury and damage at least of t e t te the defendants. Their Lordships would not peraw . itet provisions of an important Act of Parliament 11 ° • which the jurors were chosen, who were to :tr ibot. man, it might be for his life, to be vielaticri..o, they would require, it to be strictly complied p He submitted to their Lordships upon this groan: of upon all the other grounds mentioned in the collo the argument, that the defendants not having. b°", 4 01 to which every British subject was entitled, 0f,..% 0 1,1 trial civil or criminal—that is, not having had a fai nt by law—were entitled to claim the benefit of the . ,r t iot 'upon the record, and to submit to their Lordshir this judgment ought to be reversed. Those we i r t i o pt grounds upon which they submitted, that thisju no te was erroneous, and they submitted with all confid e n :;be their Lordships, that upon all, or some of thent,oel judgment must be reversed.—(The Learned Cie concluded his address at four o'clock, and this dos'? , case for the traversers.) , The LORD CHANCELLOR inquired whether for the Crown were ready' to proceed. -, ib ° The ATTORNEY...GENERAL (for Ireland) saia.i, .e bat Attorney-General for England had left the ll9f ;0 0 he would be ready to proceed, if necessary, - minutes. rdeb i e After a short consultation between their .they adjourned until six o'clock. c 0 011 At a quarter-past six o ' c lo c k, the LORD Ce a t Ike/. addressing the Attorney-Ge n eral) said-- 1 71 of were ready to hear the argume n ts o n WO • Crown. -f the 0 The ATTORNEY-GENERAL said, on hew.- Crown, it would not be necessary either•for luTrehoicl, his Learned Friend, the Attorney-General fi.) , r eit , Le , 1 to occupy any great portion of the time. of t ships, because, although the arguments f o r the 1),. 0b y in error had lasted four days, yet the attention wut had thought it his duty to pay to the Arguments of_d Learned Friends would enable him to present thens, before their Lordships in a much narrower cool?, both as to the arguments that had been t F a it and the answers to them. He would not occupYl,ol Lordships' time by any preliminary observation e rs would at once consider • the objections that had' ,ro raised on the other side in the present case. ne begin with that one which, though not of pastel - 100 d sequence in the present case, yet was of meta l. lfe portance to the administration of criminal justietere alluded to the entering up of the judgment, and of cord. It was quite impossible in his view ll' the° case, that his Learned Friends could Succeed i 00 1 a rguments without calling upon th e H o use to ev e t hel,, the established law of this country as f a r back a s f t he°, Lo wer rdsip were any traces whether,traceofitu.ntiy this e question would appeal w to n gen mooy' 0..104 of the bar, any lawyer in England had ever h e r,,, would venture to say, th a t h e k new of al l / '" whatever in which a judgment had been s e, '' 02, the mode in which it was sought to be set ter the present case. If their Lordships were W 1,141 0 1 , 0 1 ' law as it now stood, hundreds, nay thousands,W e 0 0.,w„ been suffering punishment improperly. There./ len no doubt that the course which had been pure e- A le r e f present case in Ireland, was the recognised prieutoef 4 practice of the courts. There was not a single ft'? b 0 0 ; judgment being entered up in the manner in whi e tbs 0 ; sought that it should be. They asserted that , 0 c oe d was that on a motion for arrest of judgment, if °oil i f was bad the whole were bad, and that on e OIL error the judgment must be reversed. That be i g e doctrine it became important to consider whet w 0400 . 1) arguments, and what were the authorities u p? dv , #l Ol was put forward. They stated that by anm e t ; O l e ( civil cases if there was a general verdict and 0 0 firi t e pi Was bad the judgment was arrested, and thes.do venire de novo issues, but if there is error the o ot 0) 0 is reversed. That was one ground on which th ole 1 0 for the plaintiffs in error had proceeded. A ll % this, that a party . found guilty of only ell f e r,o charged in the indictment could not be punishe.e_.. 4 t v ij o such a thing would be a hardship on the he believed was the substance of the argum en t 0 11 ei other side. He would net attempt to enter s 1 40 the principle upon which the law decided.• In g o 01 01 0 ? Friends .had not ,stated a single authoriti,ed tli e t y question the law of the country, but they ree; to to selves on civil cases, and • the hardship r a oe e ye defendants. That, being the ground put forin t to 1 0 , ey e other side, he would state what he considered diet rye principle of the law. He believed it was tin 0 0 .` ec e , judgment should be warranted by the r ecor err oe e ye verdict of the jury, and then it was not 1111 t hat t e , judgment. In civil cases the judgment tot e 01 plaintiff had recovered against the defendant t" e s, to t,lO, awarded by the jury, and therefore in these I A Wity partie:, 00,010 whether the judgment was right, they inus'.„.rsei ;I ,° record and the . verdict ; and if they did not rit' s 'i e -o 00 ef was wrong. He would take a single civil c alo r o .sl l' counts—one a special agreement, and the ° f. d e ft , had,and received. The jury found daniag o . 3 ,,oir„'' be . pose it should turn out that the special c0un%,50/0.4; tive, the jury would not assess the deniers e ° hot.. a ty cause they had given their verdict upon__ 0 0 0 v, What, then, became of the case ? Sulix t of 0 0 ° jury had- given. -that verdict, and the wr, l ,, p olly was brought, it would award a venire e r '",,,..t0..na that the case would be sent back to the 4 1 1 4,,t ene the daes on the ount that was goo fd.' be se ll , • course in g civil cases. But what did his r iends o be criminal cases? Why, that the record sil o 0 5 , 1 ,f.5t".: back to Ireland. The analogy would be. he fr j , court of error to send the record back W_ .. .„'" t tl O l/ 1 low to pronounce judgment upon the eur t heir,•,ol ll 3 good. But his Learned Friends did not ass' pee 0 0' t he ,J shipsto do that; they asked them to reverse fie altogether, and to set the parties fre e. 0 00 031, 9 .. 0 now state the reason why, in hie.a es se t _ i , principle which was admitted iiielv fooilg",,,sey not apply in criminal cases. The jurY . l, dt: 6 l verdict, guilty or, not guilty ; they asse e ' re chsT e sl? tij i, they awarded no punishment.- if he ` 7l „ o ont ges t ,) an indictment with two offences, if one - n a b;:a, the jury who had found him guilty had f0i1 ... do e .; upon each count.- So, if one count 41eTtlP,i would support the verdict and the reeer_`,7 t hen, l)g, followed the record ; the record followe'',.oo,o:7.,eit and if the record and the verdict. were 7., to ;, 1 e el could the judgment be erroneous ?ca That Z e won; ciple in-civil as well as ineriminal see;.:;-'osie4 1 11 . P o ci call their .Lordships' attention to a . 7.. te d tiEN books in which this point had been adv,% n d ito: A e his Learned Friend said that they o ne of Ai r case in point, his answer was, thst,,t e " ie was fee r ip s thought of raising the question. l'_` ot - iffi f E t e ,c l assizes—not an Old Bailey sessions: --n .0 0 ,0 sions, in which cases did not occur inw a n u l io , e error, and it was impossible that 11W have been left so long withouti_q.', d f 6,- • p o , arose. There would have been anin_ucitionobei,,,ohbd under the notice of the courts, tot v tl place in which the point did not..e,eeL r d b o o gee , not been -clear. Ve advert to the principal cases wiuen " e ' ll i e or „boi li d the other side. The fikst was the . _ 0 0 40,4) No sittings As land, -Learned Friend „ e • a u t. "a l cou . e.. orptioto rerer4ee to a writ of error, althougn_evu.„lo.r.rjo made an extra-judicial observation ' or: tu__AtV era it so-happened that the case was on _ 0 was a writ of error to the King's Benchal;io7. to pe, the King's Bench in Ireland, in , a ountt gl .0! copyhold tithes. There were seVer_u which was .defective, and Lord...l47regefrief!je jument, said, that he , exceelf tgdilt soil-founded a 'rule BS' thii; t,FT 140 counts one was-htlt the' judgmenSes Such had , • "n il bad Nit t. 4 ' ' l '4l 'Yes obs Sri .+►w f L t itlc