The Sun. — London, England, 1844-07-06 00:00:00

Lord BROUGHAM—The words of the finding are " to meet together in large numbers for the unlawful and se ditious purpose," &c. The LORD CHANCELLOR — As I understand the objec .tion, it is', that they are not found guilty of having con aoired unlawfully and seditiously to meet for an unlaw ful and Seditious object. Mr. PEACoCK said that was the case. Daniel O'Connell, "Barrett and Duffy were found guilty of so much of the residue of the re.nainder as related to the charge of endeavouring to corrupt the army ; but they : were =quitted of something, and he contended that this was -the portion of which they were acquitted. Mr. Tierney was acquitted of the greater portion. Five were ac quitted of that portion relating to the corruption of the r army, and three of the rest ofane charge. The LORD CHANCELLOR —I-Does not that mean that the 'tree Were found_guilty of all ? Mr. PEACOCK—No.Tney were acquitted of something— ' of all the residue of the remainder. Now they were charged with conspiring, unlawfully, and seditiously to meet: theywere found guilty oreonspiring to cause to meet. The LORD CHANCELLOR —TO cause them to meet for an unlawful and sediticees purpose? Mr. PEAcoCK—Yes my Lord. The jury had pro• fessed, however, to find them net guilty of that offence; they had found them guilty of all the residue of the re mainder except that, and they must, therefore, have in tended to find them not guilty of something. There was also.another part of the residue of the remainder : the parties were not only charged with conspiring with each other, but with Mr. Tierney. It was clear that such a conspiracy might take place ; but the death of one of the conspirators could not acquit the others, and yet by the verdict of the jury all were acquitted of the charge of conspiring. with Mr. Tierney., _ —Tbey were found guilty of conspiring with eight persons, and not with the ninth. Now those very parties might be indicted to-morrow with conspiring with Mr. Tierney ; and what had they got to defend themselves with but the finding of the jury ? The LORD CHANCELLOR—Suppose they were indicted with conspiring with Mr. Tyrrell ? Mr. PEACOCK—The finding of the jury would be a good answer, but he should have to deal with that more fully by and bye. Now although the jury had found them not guilty of that part of the charge, the Court bad given no judgment of acquittal. The jury had also found Mr. Tierney not guilty of certain parts of the indictment, and the Attorney-General had entered a no!le prosequi ; but there still remained in the indictment five persons who had been acquitted of attempting to excite discontent in the army - those persona were John O'Connell, Mr. Steele, Dr. Gray, and Mr. Ray, and the Court in giving judgment upon them gave it for that on which thy had been found guilty, but they had given no judgment of acquittal. He submitted that on this finding eight persons had been found guilty of a joint conspiracy, No. I. Seven were found guilty of conspi racy with each other, but not with the eighth, to do No. 2. Three had been found guilty of conspiracy with eeeli other, but not with any other parties, to do No. 3. He supposed his Learned Friend the Attorney-General -would contend that it was an offence to excite discontent in the army. If that was so, Daniel O'Conuell, Mr. Deify, and Mr. Barrett had been found only guilty of it ; and how could that be said to be any portion of the conspiracy of the eight to do some thing else, that was no portion of the conspiracy of the three to raise discontent in the army ? Unless the Attorney-General could say that it was an offence — unless he could do that he could not support the finding of the jury. The jury had found the parties guilty of three conspiracies, and the jury had given judgment against the parties for three conspiracies, in which they had been found guilty on the first count. Which of the threw offences was the punishment for, if it was not for the whole ? And if it was fur the whole then Mr. O'Connell had been convicted of three offences under one indictment that only charged him with one. Was it to be supposed that the Court would give the same amount Of punishment to a man that was found guilty of one conspiracy as it wou ld upon a man who had been fcundguilty of fifteen? The Court, it was true, in cases of misdemeanour, had a discretionary punishment, and in the exercise of that discretion they had sentenced Mr. O'Connell to a year's imprisonment and a large fine. Mr. John O'Connell not having been flexed guilty of conspiring to cause discontent in the army, was to have nine months ; whereas Daniel O'Connell, who bad been found guilty of the same offence, was to have one year's imprisonment and pay double the amount of fine. Why was that ? Was it not because Mr. Daniel O'Connell as considered by the Court to have been guilty of a greater number of offences, though th-ir nature was the same, than Mr. John O'Connell ? The one had been found guilty of simple conspiracy, the other of endea vouring to cause discontent in the army. Therefore he thought their Lordships must assume that the Court of Queen's Bench in Ireland, in apportioning the punish ment, had taken into consideration the finding of the istry, and the extent to which the defendants had been fa,end guilty ; and he submitted that if they had pas. , ed judgment upon the defendants for se veral offences for which they had never been indicaed, and which bad never been presented against - them by the grand jury, their punishment had been aggravated by the finding of the common jury upon the, first count, and that consequently judgment had been pronounced against them for a greater number of offenth% than they had been found guilty of. The jury having; acquitted some of the parties of a conspiracy, to cause discontent in the army,. and the petty jury having found. them not guilty of that conspiracy, he appre hendedthat the conspiracy of which the others had been found guilty was a separate and distinct conspiracy, and ,that the conspiracy to cause discontent in the army was * separate and distinct' conspiracy from that of which they were found guilty conjointly with the other five in the first part of this finding. Suppose seven persons were to go into one room and conspire to do certain things. Three of them said " Let us all conspire to do two things." The other four said, " No, we'll not go to the extent of No. 1,. but we'll go the extent of No. 2." In that case, he contended, the three would not be guilty of conspir ing to do No. 1 and No. 2. The conspiracy, in law, de pended not on the act, but on the combination and agree ecent bet Ween the parties. If seven parties agreed to do one thing, it was perfectly distinct from an agreement between three of them to do another thing ; it was a distinct conspiracy and separate offence. Me thought he could not better illustrate this than by reading the charge of Mr. Baron Rolfe to the jury who trieeMr. Feargus O'Connor. The Learned Counsel then read an extract from the charge. The Judge said, that in order to. convict all or three a the defendants, they must con vict theta of one and the same conspiracy. If they thought that all the defendants, or any number of them, had combined - together for the purpose of carrying the Charter, and some of them said, " I will not use any violence, I will give no countenance to any thing nut voluntary abstinence from labour ;" and others said, " I will g ive my countenance not only to voluntary, but also to forced abstinence ;" if they found the parties all agreeing in one act they might convict them ail upon separate counts. So here, Mr. Daniel O'Connell, Mr. Barrett, and Mr. Duffy, might have been found guilty—assuming the evidence to be sufficient— under separate and distinct counts, of having conspired together to cause discontent in the army. But having been found guilty under the first count of one joint offence, they could not afterwards be found guilty of a separate and distinct offence. Lord C.I3IPDELI 4 —The qUestion is whether it was a separate and distinct offend', or a part of the general off.nce. Mr. PRecocre—Suppose all of them had been found guilty of conspiring to create discontent in the army, except Mr. Daniel O'Comiel4 and then Mr. Daniel O'Gonnell himself had been found guilty of conspiring to cause discontent in the army. Would that be a good conspiracy ? One person could not conspire. If Yr. Daniel O'Connell was found guilty of alone conspiring to create discontent in the army, that finding was faulty. With whom did he conspire ? Certainly not with the others, who were nut found guilty of conspiring with him. If Mr. Daniel O'Connell had alone been found guilty of conspiring to cause discontent in the army, the finding that the other seven were guilty of some other conspi racy, would not support the finding as to Mr. Daniel O'(jorinvil of being guilty of conspiring to cause dis content in the army. If that were so, then Mr. Daniel O'Connell and the others, were found guilty of three .distiuct offences. Now, the same rule, he believed,.held An every cue, in civil cases as well as in criminal. If several persons were charged in an action of trespass, 'wit - it a joint trespass, and some of them were found guilty of part of the trespass, but all could not be found guilty jointly of part; each must then bo found guilty of :.some other part separately. Unless their Lordships -coud come to the conclusion that a conspiracy be tween eight persons to do one thing, was the same as a conspiracy between other persons to do another thing, .he thought their Lordships would agree with him in :what he had stated. The grand jury had presented tten offences, and the common jury bad found -the parties guilty of fifteen. In one action J'er trespass in which several parties are charged with one joint offence, which is proved against some of them, and not against another, the jury must utcquit him. lie quoted, in support of his argument, the case of Heron, Alexander, and others (3d Campbell's -Reports, p. 35), in which Lord Ellenborough said, that they :could not find one prisoner guilty of a separate offence ; and the other two guilty of one offence. Ile :believed that the rule was uniaersally adopted in courts sa justice. It was impossible to cite any case, either criminal or civil, in which several parties charged with -one joint trespass, and the whole of them are found :guilty of a part of the trespass, each of them is found :guilty of separate parts of the same offence. If a jury “eould go into that, it might eo into as many conspiracies .e. 3 it phased ; and by ringing.- the changes on all the suliarges of the indictment, it might find Mr. O'Connell : guilty of a hundred conspiracies ; whereas, when the delendants have been found guilty of one joint conspi xsey, this count is, as it were, exhausted, and the jury lad no right to go on finding them guilty o f an y more. 31r. D. O'Connell w as t h us found guilty of three oewnees, he did not mean to say that he might not have been found guilty of any one o f theist ; he would .not go into that point . , but he contended that on. party ought to be found guilty of more than one arena , . He submitted that defendants could not be found guilty ()lone joint offence and then guilty of sepa rate and eistinet offences. The next point was the Finding on the third count, which charged all the defen darts with " unlawfully, maliciously, and seditiously, contriving, intending, mid devising to raise and create discontent and disaffection amongst the liege subjects of our said Lady the Queen, and to excite the said liege alubjeete to hatred and contempt of the Government and constitution of this realm as by law established, and to excite hatred, jealousies, and amongst different classes of the :aid : subjects, and to create discontent and silsaffettien amongst slivers of the said subjects, and 4 ,,reeav l i t k l 'eii er s her Majesty's subjects serving in ber . P ' )-....,f;• 't • ~,,,t ‘,..........,, pc ., ',....".' ' ' '.1... , ‘"' .. .1 IfIVA CUANCELLifR.—IiiiV you left your 61'31 —Yes, my Lord: N 11 S ' The LORD CHANCELLOR—Then now enunciate your second. Mr. PEACOCK proposed on this point to show that the verdict on this count found Mr. O'Connell, Mr. Barrett, and Mr. Duffy, guilty of the premises, and found the other five defendants not guilty . of conspiring with the former three. The verdict in that respect, therefore, was repugnant. The verdict was bad on account of its ambiguity, and as being argumentative, finding three persons guilty of conspiring with six others, when four of these others were foun d not guilty of conspiring at all. The rule of law was this, that if a party is once put on his trial for an offence, the verdict must be such a ono as to prevent that person from being put on his trial again for that same offence. The verdict must be such an answer on the judgment, that on a second trial the prisoner shall be able to plead either previously convict or previously acquit. He cited thz case of " Hunger - ford in 2d East, 518," in which the prisoner was indicted for burglariously entering a house, and stealing to the value of 6/. The verdict found him not guilty of the burglary, but guilty of the stealing, and sentence of death was passed. The case was reserved fur the con sideration of the judges, who held that the finding was sufficient to warrant the judgment, but said the entry should have been "not guilty of breaking open by night," as that would have been more dis tinct. It appeared to be the constant course in indictments for murder, in which there was a verdict of guilty of manslaughter, to enter the finding as not guilty of the murder and guilty of the manslaughter, or of killing and slaying, although the charge of murder in cluded the killing and slaying ; therefore, though the finding of the jury might warrant the officer in entering judgment, still lie did not enter up the judgment so as to appear distinct. Now the question was, what was the meaning of the words—‘. Guilty of the premises ?" Daniel O'Connell, Duffy, and Barrett were found guilty, with other persons, to do several things. They were found guilty of the premises—that was, guilty of con spiring with each other. If one person was indicted for conspiring with another, and divers other persons un known : say that A and B were indicted for conspiring with each other, and divers others unknown, and that B Has acquitted ; A might be found guilty, but the entry of that verdict would be, that A was guilty of conspiring with persons unknown, not that he was guilty of con spiring with B and persons unknown, and therefore the entry of the verdict would be, that A was guilty of conspiring with persons unknown, B not guilty. But the verdict here was " guilty of the premises," that was to say, guilty of conspiring the other way. Whether it was that the jury found the eight guilty of conspiring together, though they found four not guilty, or whether they meant to find the whole eight guilty, he did not know. The LORD CHANCELLOR--IS it an objection to the finding that it is argumentative of the inference from the argument being clear ? Mr. PEACOCK said it was not clear what the jury meant here. The LORD CHANCELLOR said this branched itself into two points—one was, whether it was an objection to the finding that it was argumentative if the inference was clear ; the next was, whether it was clear. Mr. PEACOCK said that if it was certain what the jury meant, he did not-apprehend that it would be an objec tion ; but where it was not certain, the finding was bad. Lord CAMPBELL—There is another way in which this may be viewed. The jury are to find a true verdict, according to the evidence. This might be to show that A, B, and C, conspired with D upon their own acknowledgment, so that there would be no evidence against D, and D would be acquitted of the conspiracy with A, B, and C. Mr. - PEACOCK—That was what he wanted to show their Lordships. Supposing that A and B were in dicted for conspiracy together, leaving out the usual words, " with others unknown." Suppose that A con fessed that he was guilty of conspiracy with 13, that would be no evidence upon which to convict B, but it would be evidence to convict A. But if there was a failure of the evidence against B in point of law, A could not be convicted, because it was a contradictory finding in the record. If A, B, and C, were charged with a joint conspiracy, A and B could not be found guilty of conspiring with C in, the same verdict in which C is found not guilty of conspiring with them. The LORD CHANCELLOR—Supposing that A is in dicted for conspira 7 with B and C, and that he con fessed he conspired with B and C, and that the jury upon the trial find that C is not guilty, because there is no evidence against him ; and then, supposing that A and B are guilty of the premises, and in the same find ing it is found that C is not guilty, would not that do? Mr. PEACOCK submitted it would not. The LORD CHANCELLOR—The meaning of " Not Guilty" in that case must be, that there was no evidence • to find them guilty. Mr. PEACOCK submitted it would not be sufficient. The verdict, if it was one, and on ono record, must be consistent. The jury could not, upon the confession of Daniel O'Connell, Barrett, and Duffy, find them guilty of conspiring with others. What they should find was, that they were not guilty of conspiring with each other. They were to look to the finding of the jury, and they must presume that the jury meant what they found, for, if there was a difference, the record would be entered up accordingly, and therefore it could only be on the confession of the three that they could be found guilty of conspiring with others, when the others were not found guilty of conspiring with them. (The Learned Gentleman then quoted " Comyn's Digest," title Pleader, s. p. 23, to show that a verdict which was repugnant was void ; and also 2d Hawkins, Pleas of the Crown, b. 2, p. 47, s. 8.) He would sub mit that if a person confessed to conspiracy with another, but if the jury for want of evidence found that person not guilty, that the confession of the other would be void, because the record would be repugnant ; for if A confessed to be guilty of conspiracy with B, and B was found not guilty, A could not be found guilty of conspir ing with B, for there would be a repugnancy on the re cord. So when in an indictment A was charged as principal, and B as accessory, if A was acquitted, B could not be found guilty ; even if B confessed that A was the principal, and that he had been accessory, because there would be a repugnancy do the record if it said that B was guilty as accessory to it, and yet that A was not euilty as principal. Inc LORD CHANCELLOR—The question is, how would that be since the alteration of the law ? You have no authority, I suppose, since the alteration of the law ? Mr. PEACOCK apprehended that the alteration of the law, by which accessories could be convicted without the conviction of the principals, would not make any difference if both parties were included in the same re cord. The accessory might be convicted upon a sepa rate record, but he could not be found guilty in the same record which acquitted his principal, inasmuch as there would then be a repugnancy in the record. Therefore, if certain parties were found guilty on their own confession of a joint conspiracy with others, and those other parties were acquitted, the verdict against those parties on their own confession could not stand, because there would be a repugnancy on the record. The LORD CHANCELLOR—Does not the principle apply here that the Court can correct any repugnancy if they can show clearly what the jury intended. Mr. PEACOCK apprehended that that was an argu ment in his favour, because, if the repugnancy had nut exitted in fact, the Court could not have corrected it. They were bound to have it that the Court had entered a verdict according to the truth and finding of the case. The Court did not take it as a minute of the jury, but they entered it according to the actual finding to declare to a court of error what that real finding was. The LORD CHANCELLOR—I believe the finding on the record must be presumed to be the very words of the jury. Mr. PEACOCK had before directed their Lordships' attention to Comyn's Digest on argumentative verdicts. It was there stated that verdicts founded on argument and inference are void. (The Learned Counsel here quoted several cases from Comyn's Digest and Roll's Abridgement, in support of his position.) In section 23d of Comyn's Digest, it was said, "So if a verdict is repugnant, it is void." (The Learned Counsel again quoted several cases in which Verdicts had been declared void on the ground of repug nancy.) He submitted that in the present case the verict was repugnant, or else that it required argument to show that it was not repugnant. If it was repugnant, it was void, and if it was only not repugnant by reason of its being argumentative, then it was void for being an argumentative verdict. . If the verdict were taken merely as an argument to show that these parties had been guilty of conspiring with each other, there was no argu ment to show if the parties had entered into a conspiracy with each other, or with Mr. Tyrrell, who was dead. Were they guilty or not guilty of conspiring with Mr. Tyrrell ? The verdict was uncertain, ambiguous, and unargumentative ; and if it was not intended to say whe ther they were guilty or not guilty of conspiring with Mr. Tyrrell, then it was bad, because it did not find the whole matter at issue. In Comyn's Digest, title " Pleader, " it was laid down that a verdict was void as to the wh ole, if it found only part of the issue and said nothing as to the remainder, and the authority stated for that was " Coke upon Littleton," 227 A, in which it was laid down that a verdict finding matter uncertainly or ambiguously was insu ffi c i e nt, lno judgment could be given thereon. For these reasons he (Mr. Peacock) submitted that the verdict upon the third count was void, either for repugnance, or ambiguity, or not find ing upon the whole matter charged, and if the verdict was void on that count, then he submitted that the judg ment was also void, because some portion of the punish ment must have been given in consequence of the finding the party guilty on that count, and the judgment being void as to that count, was void altogether, but their Lordships could not say how much of the punishment had been given in consequence of the finding the parties guilty on that count. This objection applied equally to the sixth and all subsequent counts. The next point to which he would call the attention of their Lordships was, that upon the reccrd there was a discontinuance between the finding of the verdict and the sentence. The venire was returnable on the 15th January, and upon that day " the said jurors of the said jury so empannelled as aforesaid, being duly elected, tried, and sworn to speak the truth of the several matters in the indictment afore said specified and charged against the said Daniel O'Connell, John O'Connell, Thomas Steele, Thomas Mathew Ray, Charles Gavan Duffy, the Rev. Thomas Tierney, John Gray, and Richard Barrett, the trial of the issues as aforesaid by the jurors aforesaid, in the said court here before the Queen herself, is duly con tinued until and upon Wednesday the thirty-first day of January, in the year of our Lord one thousand eight hundred and forty-four ; and now at this day, that is to say, on the said thirty-first day of January, for as much as it appears to the Court here that the trial of the said issues so joined as aforesaid is not, nor can the said trial thereof be con cluded on this same day it is ordered by the said court here, that the said jurors so em p ane ll e d an d sworn to try the said issues shall have leave to withdraw this same day from the bar of this court here, and that the said jurors shall again come to the bar of this same court here on the morrow, that is to say, on the first day THE SUN, LONDON, SATURDAY MORNING, JULY 6, 1844. of February next, at the hour of ten o'clock in the fore noon ; and that the said Daniel O'Connell, John O'Con ' nell, Thomas Steele, Thomas Mathew Ray, Charles Gavan Duffy, the Rev. Thomas Tierney, John Gray, and Richard Barrett, do again appear at the bar of this court at that time, in order that the said trial may be continued ; and now at this day, that is to say, on the said first day of February, at the hour aforesaid, the sail Attorney-General for our said Lady the Queen comes into court here, and the said Daniel O'Connell, John O'Connell, Thomas Steele, Thomas Mathew Ray, Charles Gavan Duffy, the Rev. Thomas Tierney, John Gray,_and Richard Barrett, appear at the bar of the said court here, as in that behalf directed as aforesaid, and the said jurors so empanelled and sworn as aforesaid also come, and the said trial of the said issues is thereupon continued for a certain time, the same being necessary for the purpose thereof, that is to say, until and upon Monday, the twelfth day of February, in the year of our Lord one thousand eight hundred and forty-four. And now at this day, that is to say, on Monday, the said twelfth day of February, the said jurors, so empannelled and sworn as aforesaid to try the said issues, upon their oath say, that as to the premises in the said first and second counts of the said indictment respectively charged as aforesaid, the said Daniel O'Connell, John O'Connell, Thomas Steele, Thomas Mathew Ray, Charles Gavan Duffy, the Rev. Thomas Tierney, John Gray, and Richard Barrett, are and each of them is guilty of so much thereof as charges them for that they unlawfully, maliciously, and sedi tiously contriving, intending, and devising to raise and create discontent and disaffection amongst the liege sub jects of our said Lady the Queen, and to excite the said liege subjects to hatred and contempt of the Government and Constitution of this realm as by law established, and to excite hatred, jealousies, and amongst different classes of the said subjects, did unlawfully, maliciously, and seditiously combine, conspire, confederate, and agree with each other, and with divers other persons, whose names. are to the jurors unknown, to raise and create discontent and disaffection amongst the liege subjects of our said Lady the Queen, and to excite such subjects to hatred and contempt of the Government and Constitution of this realm as by law established, and to unlawful and seditious opposition to the said Government and Constitution, and also to stir up jealousies, hatred, and ill-will between different classes of her Majesty's subjects, and especially to pro mote amongst her Majesty's subjects in Ireland feelings of and hostility towards and against her Ma jesty's subjects in the other parts of Great Britain and Ireland, and especially in that part of the said United Kingdom called England, in the said first and second counts of the said indictment respectively charged as aforesaid, in manner and form as therein is so above charged as aforesaid ; and as to the residue of the said premises in the said first and second counts of the said indictment respectively charged as aforesaid, the said jurors, upon their oath aforesaid, say that the said Thomas Tierney is not guilty thereof." On the 15th day of April cometh the Attorney-General and parties into Court. Now, that was the place where there was the discontinuance—that, from the time of the parties being found guilty, there was no mention of when the parties were to be brought up to receive judgment. The LORD CHANCELLOR—The trial was out of term, under the authority of the Act; it was continued during the vacation under the authority of the Act. Mr. I'Fecocx admitted that the trial took place out of term, but he submitted that the order was not suffi nent to meet what was required by the Act )f the Ist and 2d William IV., c. 31, sec. 3, .ender which the days for holding terms were altered. The day originally fixed for the trial was the 15th of January, and the trial took place during the term. On :he 13th of January an order was made, not that a cer tain number of days should be,fixed for the trial, but an alternative, or rather a conditional, order, that in case the trial should not be completed by a certain day, ad ditional days should be added. The question was, whe ther that was an order within the meaning of the Act of Parliament—whether the Court ought not, in the first place, to have appointed a certain number of days for the trial at bar, making those days a part of the term. The Learned Counsel then read extracts from the record. The order for the trial at bar was made in Michaelmas term. The preceding part of the proceedings showed that in Michaelmas term the Court gave judgment against the traversers upon the plea of abatement. Their Lordships would observe, that before the order of the 15th of January there was an order made in Michaelmas term, that the trial should take place at . bar. The order for the trial at bar having been made, the jury were summoned for that day, and before that day namely, on the 13th January, two days before the return of the venire, an order was made that in case the trial, fixed for the 15th January, should not have terminated on the labt day of Hilary term, then Thursday, the Ist '.f February next, and every succeeding day till the sth of April, should be appointed for its continuation, and such days should be taken to be part of the term. The ques tion was whether, if the Court originally made an order for the trial at bar to take place on the 15th of January, they could, on the 13th of January, made an order in the alternative that, in case the trial should not be concluded' by a certain day, then that and certain succeeding days should be added. The words of the Act of Parliament were, " provided that any trial at bar shall be directed by any of the said Courts, it shall be competent to the judges of the Court to appoint such day or days for the trial as they should think fit." Now, unless the order were an order within the meaning of the Act of Parlia ment the trial at bar was clearly in error. The LORD CHANCELLOR-The Act is to be considered as a remedial Act. Mr. PEACOCK—The question was whether an order of the court, under that Act, was in compliance with that Act. He contended that the court should have made a positive order that these further days should be added for the trial at bar. In this case it was merely ordered that in case the trial should not be completed by a certain day then aiditional days should be fixed. The LORD CHANCELLOR—WouId it not be sufficient that the day were fixed for the continuance of the trial ? Mr. PEACOCK—Yes, but this was not an order that the days should v. hereby fixed for the continuation, but that in case the trial should not be completed, then certain days should be appointed. The LORD CHANCELLOR—And that the days so fixed for the continuation shall, accordingly, for the purpose of such trial, be taken for part of the term. Mr. PEACOCK said the Court would not say that incase it should be necessary, then certain days should be ap pointed. The trial took place on the 12th of February, and the jury having given their verdict on that day, the defendant had no notice to appear in Court on the fol lowing term, therefore, whether the days from the Ist of January to the 12th of February, were days of term, was immaterial. He referred to " Coke upon Littleton," who, having spoken of discontinuance, says, . " there is an other erroneous proceeding that consisteth in misdoing, as when one process is awarded instead of another, or a day given, that wai not a legal day. This is a miscon tinuance, and if the defendant does not choose to appear to it, it is an error ; but, if he did appear, then it was not a discontinuance." In the present case there is no continuance at all, and, therefore, it is a discontinuance. It might be said that this was a technical objection, but he was not there to say what the law ought to be, but w hat it was. The LORD CITANCFLLOR—The question is not whether it is a technical objection, but whether it is a valid one. Mr. PEACOCK cited the case of Bradley v. Banks, in James, 283, which was an appeal against which an ob jection was taken. It was moved for the defendant, that this appeal had been discontinued, because the writ of appeal was returnable on the 16th of October, and the capias ought to have been awarded on the same day, whereas the capias was dated on the 23d, seven days being thus omitted. It was argued that it was a manifest discontinuance, and the court so resolved. He also cited the case of the Queen v. Hutching, in the 2d of Lord Raymond's Reports, p. 1,061. The Learned Gentleman also quoted the King v. Wal cott, 4th Modern Reports, page 395, and several cases in 2 Hawkins' Pleas of the Crown, book 2, page 27, sec. 84. The next point to which he would call their Lordships' attention, was that no judgment of acquittal had been given in this case upon the finding of "not guilty" of the jury, either as regarded Mr. Daniel O'Con nell or any of the other parties. The Learned Gentle man quoted Viners' Abridgment, and Rolls' Abridgment, In support of his view upon this point. The next point to which he would call the attention of their Lord ships was that the verdict and the judgment were bad, inasmuch as it ordered the parties to enter into recognisances to keep the peace,' and to be of good behaviour for the space of seven years next ensuing the acknowledgment thereof. The question was, whether that judgment was good. It was doubted. At one time, as: a part of its judgment, the Court ordered parties to enter into recognisances to keep the peace. That case was considered before this House, in the case of Hart v. White, in the 30th vol. of the State Trials, and the part applicable to the case would be found in page 1334. The question was, whether the Court of Queen's Bench had power to send the defendant to any prison beyond their own jurisdiction, and whether sureties for a rea sonable time for good behaviour could be required. The judges said, they had no doubt whatever as to their authority to .send him to any prison in England ; and they were equally of opinion that the court possessed the authority legally to require such surety for a rea sonable time. The question was, whether this recognizance was one requiring surety for a reasonable time. He submitted that it was not. The time fixed was seven years from the time of the acknowledgment of the recognizance and the - party was ordered to be imprisoned until the recognisance should be given. Now if that sentence were valid, and if the person were unable to find sureties, he might be imprisoned for the whole term of his life. He submitted that to make it a reasonable time, the time ought to be fixed ; for instance, if he had been sentenced to be imprisoned for one, and then to enter into recog nisances to keep the peace for seven years from the time of his imprisonment, that sentence would be valid, be cause if he could not find the sureties, he would be im prisoned so long, and at the expiration of that time he would be discharged, because he would have in fact fulfilled his recognisances, he would have kept the peace for seven years, he would have been under re straint during that time. But under the present sentence he never would get released at all, if he could not procure recoo.misances. (The Learned Gentleman then quoted the judgment in the case of White and Hart, vol. 30 of the State Trials,page 1321.) In that case the judg ment was a legal one, for the parties were sentenced to enter into recognisances to keep the peace for five years from the expiration of the term of imprisonment. So that if they were unable to find recognisances, .they would be discharged at the end of the five years ; but in this case it might be imprisonment for life. The sen tence upon Daniel O'Connell was in the following words :—" Whereupon all and singular the premises being seen and fully understood by the Court of our said Lady the Queen now here, it is considered and adjudged by the said'Court here that the said- Daniel O'ConneH for his offences aforesaid, do pay a fine to our Sovereign Lady the Queen of two thousand pounds of lawful money of Great • Britain and IrelaTul, and be imprisoned in the prison of our said Lady the Queen in - and for the county of the city of Dublin, called the Richmond General Penitentiary, on the South Circular-road, for the term of twelve calendar months now next ensuing, and that the said Daniel O'Connell do before some one of the Justices of the Court of. our said Lady the Queen, here enter into a re cognizance, to be acknowledged by him and two suffi cient sureties to our said Lady the Queen. himself the said Daniel O'Connell in the sum of five thousand pounds, and each surety in the sum of two thousand five hundred pounds, conditioned to keep the peace and be of good behaviour towards our said Lady the Queen and all her liege people for the space of seven years next ensuing the acknowledgment thereof. And it is ordered that the said sheriff do deliver the said Daniel O'Connell,' John O'Connell, John Gray, Richard Barrett, Thomas Steele, Thomas Mathew Ray, and Charles Gavan Duffy, into the Custody of the keeper of the prison called the Richmond General Penitentiary, to be severally kept in safe custody in the said prison in exe cution of this judgment, and until they shall have paid their said fines respectively, and have severally entered into such recognizsnces and with such sureties as afore said to keep the peace and to be of good behaviour in manner and form aforesaid, and for the term. aforesaid." He would now consider if there was one bad count in the indictment, and the jury found the party guilty upon the K hole, and judgment was given on the whole, how far that judgment would stand if one count was bad. He submitted that it would not. There was a distinction taken in the text book between criminal and civil cases. The question was lo what extent that distinction applied hether it was applicable only in cases of arrest of judgment, or whether it was applicable after judgment had been given, and the case came before the 'court of error. There- was nothing in the judgment of Lord Mansfield in the case of " the King and Ben field," 2 Burrows, 9SI, to show that in a case in which one count was good, and another was bad, a court of error would not reverse that judgment, for if the court of error saw that the court below had given judgment on both counts, they must assume that that judgment had been given in respect of each count, and had not bsen lessened on- account of the deficiency in one of the counts. (The Learned Gentleman then quoted the case of " the King and Fuller," which had been alluded to yesterday by Sir T. Wilde, in support of his argument.) The Learned CouriSel then referred to a dictum of Lord Mansfield, in Cooper's Reports, and also to a dictum in Douglas's Reports. Now he would ask his Learned Friend the Attorney-General, upon what principle he would contend if there were two bad counts in the in dictment, and it appeared `from the record sent to a court of error that the judges - had given judgment on those counts, that the civilcourts had no jurisdiction ? Was it to be said that the judgment was warranted by law, and, there fore, that a court of' error eould not take it into considera tion ? Was it to be said, if there was a single good count in an indictment, that that was sufficient, and that the party was bound to submit to the judgment pronounced against him, as there was no appeal ? It would take away the power of appeal in every case. Suppose a jury were to find a party guilty, in a case of felony, of the murder of A and the murder of B, the court could not pass sentence of death on both those counts, because that would not be a judgment warranted by law. Directly a man had sentence of death passed upon him he was attainted, and the court could never af terwards pass sentence upon him for another offence, If the court did so, it would be a ground for reversing the judgment. If two sentences were passed it would be a good ground of reversal. A man could not be tried for one murder whilst he was under attainder for another murder. The plea of "autrefois atteinte" would be an effectual plea, ascording to Hawkins' Pleas of the Crown. It was impossible in the case of felony that sentence coulil be passed for two distinct offences. If a man were sentenced to transportation for life twice, and then . pardoned for one of the offences, what would be done with the remaining sentence? He contended that it would be void for ambiguity. It was a general rule of law that a party could . not be tried twice for the same offence ; and if a party received sentence on a bad count, it would be a sufficient reason for setting asicle a good one. In the case of appeals in 4th Cook's Reports, it was laid down by Lord de Grey that the reason why autrefois acquit was a maxim of English law, was that the life of a man should not twice. be put in jeopardy for one and the same offence. Suppose Mr. O'Connell should be charged to-morrow - with the same offences, and the counts should be better drawn, would he be able to plead his fernier conviction even though he was suf fering imprisonment on the judgment ? He contended that the only conclusion to which their Lordships could come Was, to reverse the judgment. Their Lordships then retired for refreshment, and the proceedings were suspended. On the return of their Lordships, Mr. PEACOCK resumed. He would cite the case of the King v. Holland, sth Term Reports, page 607, where an information was filed by the Attorney-General against the defendant, for malversation in an office. He submitted that the dicta to be found in the text books; amounted merely to this, that where there were several counts, and the jury found entire damages, and the court were _not able to distinguish how the jury assessed the damages, they must recite it in the judg ment, but in a criminal case, where there was no embar rassment about the finding of the jury, for the Court themselves asses s ed the amount of punishment, and where judgment was given against the defendants upon an indictment of which some of the counts were good, and others bad, how could this House, upon the case being removed by writ of error, distinguish between that portion of the judgment which was givers upon the good counts, and that portion which was given on the bad counts ? When the court passed sentence where some counts , wore good and _ some bad, and the judgment was discretionary, the judgment shonld be reversed altogether. He believed' his Learned Friends could produce no case where this point was distinctly decided, and he trusted their Lordships would maturely , weigh it. The next point was with re • gard to the suggestion as to whether that House could amend the judgment of the court below, as he contended the judgment of. the Court below was defective, as judgment was not given upon those points where the defendants were acquitted, and he apprehended their Lordships could not amend that judgment. The case of the King v. Nalcot, in 4th voltime Modern Reports, p. 395, was a strong authority on that point. That was a writ of error to reverse one attainder for treason committed by the father of the defendant. Certain formal words were left out of the jUdgment of the Court below, and the question was whether those words could' be added to the judgment of the Court below. That case showed that the omission of words was the ground of the reversal of the attainder, and that th ohf e im, r , e , cord, and add " Showers," the wt t hhoeorsdesC words. Court d c o b u l e d lbnu n r o n t iehde amend beeaf :er . e were omitted, and the House of Lords reversed the attainder on that account. That was a proof that the House could not amend the record by the insertion of words. The judgment' of every court of error, must be either an affirmation or a reversal of the judgment of the court below.. If it were a reversal, some questions might arise as to what that judgment ought to be. In Bacon's abridgement to the Error Letter, it was said that " Judgment is an entire thing, and cannot regularly be reversed part, and affirmed part." If judgment were 'passed upon various parties, and it was erroneous against one, it was reversed against all. In the case of the King and Kenworthy, 7 Barnew all and Cresswell, page 707, a party had been tried and convicted at Chester, for perjury, and irwas entered on the record that he had been ordered to be transported for seven years. In that case it was held that the entry was merely wrong, and a procedendo was ordered to issue to the Court below, order ing them to proceed to judgment, and Lord Chief Justice Abbot, in giving judgment, said, "It appeared from the record that an order had been made, but not fol lowed up by judgment." In the case of " The King v. Ellis," 5 Barnewall. and Cressvvell, 395, in which the cause of Kenworthy was quoted, judgment had been given in the court below, the court reversed the judg ment, and held that they could not send it to the court below, in consequence of that reversal. The prisoner had been sentenced to fourteen years' transportation for petty larceny, an offence punishable by law with only seven years' transportation. The distinction between these two cases was material. In the first no judgment had been passed ; in the second the one which had been passed was erroneous, and the prisoner was discharged. In the cases of the King against Board and others, 7 Adolphus and Ellis, page 58, prisoners had been sen tenced to transportation for an offence, the le gal punishment of which was death. In that case Lord Denman, giving judgment, said that, as an erroneous judgment had been passed by the inferior court, that court sitting in error had neither the power to pass the proper sentence nor to send back the case to the court below. The judgment, therefore, must be reversed, and t h e prisoners discharged. Their Lordships had no power, except to reverse or affirm the judgment, because if they were to amend it there would be two judgments on the record—an original judgment of the Court of Queen's Bench of conviction, a nd an original judgment of the Court of Error of acquittal. Now this was one of the objections in the King v. Walker, that there would be two judgments on the record, for if the court of error added to the judgment of the court below, that would make it a new judgment. The LORD CHANCELLOR said that the court below could cure the defect in the same term. Mr. PEAcocK—They could do so if it were a mere mis prision of the clerk. The Lone CHANCELLOR—I take it that this was a mis prision. Mr. PEACOCK submitted that it was an erroneous Itudg ment of the court, and , not a misprision of the clerk. was laid down in several authorities, amongst others, Bacon's , A v r b i r:d o g f the Court cannot amend, b u t must reverse the judgment. t When the meerrnotr,( h E e r r r o o r m N e s o . f 2 o ) r , a t h r a e t v s e v r h s a e nl oft h e t d h e e fe j n u d d a g n ii e b n r g a s nd a plaintiff brought a writ of error, he applied for that judgment from the Court above, which the Court below should have given. In this case, therefore, he submitted that the judgment of their Lordship's must be to reverse that of the Court below. He apologised f'or occupying their Lord ships so long, and thanked them for their indulgence. said' that in the division of the labour made amongst i them selves of the plai nt i ffs n this Mr. Mu, who appeared for Messrs. Steele and Bar rett , by the counsel on the par t writ of error, it had been assigned as his portion to address their Lordships on the objection to the iritnesses being sworn before the grand jury and not in open Cocurt.,. and, secondly, on the objections to the arraigns, it was ma'cie imperative by the Act of Parliament, that after the witness es had been sworn and their names placed on the back of the indictment, the swearing should be certified by the initials of the foreman placed opposite each name. Before the year 1816 a practice prevailed with some grand juries in Ireland to fin d bills with out examining witnesses, but on written statements. The Act 56th George 111., was passed to correct this practice, and enacted that no bill of indictment should be returned as found unless the witnesses were sworn in open Court ; so that their Lordships would see that if there had been any doubt at common law, it ras put an end to by that statute. From the passing of the Act it was clear that witnesses should be sworn in open Court, as was the case in England. But on the part of the Crown, another statute, the Ist and 2d Victoria, c. 37, was relied upon, and from it it was contended that in all proceedings before grand juries in Ireland, as well in the Court of Queen's Bench as in Courts of Session and Assizes, the wit nesses should be sworn by the grand jury. Now, he would call the attention of their Lordships to the Act itself, which was but short, and he would read the whole of it. It was entitled an Act to enable the foreman of the grand jury or any other grand juror to swear witnesses, and the preamble stated that the Act was intended to remove the inconvenience and delay occasioned by swearing witnesses in open court. He (Mr. Hill) apprehended that the best way to interpret an Act of Parliament was to read the body of the Act, and not to take the preamble alone. There were many authorities for that position, but he thought it was so well understood that he need not trouble their Lordships by arguing it. He would proceed, therefore, to the enacting part of this Act, and the whole question would turn on the enacting parts of the Ist section, which was to the effect, " That in all cases where indictments shall be laid before grand juries in Ireland, the names of the witnesses shall be indorsed upon the back of the indictment by the Clerk of the Crown at the Assizes, or the Clerk of the Peace at Sessions, and the twelve grand jurors being present, it shall be lawful for the foreman, or other juror, to administer to each witness the oath or affirmation," &c. Lord CAMrnELL asked was there any analogous Act in England ? Mr. Mu. said there was not. It was material to remark that their Lordships had to ascertain what was the intention of the Legislature, as shown by the means appointed, for carrying out that intention. The Act did not give grand juries an unconditional power to swear witnesses. They were only empowered to do so when the names of the witnesses were endorsed on the back of the bill, and that could not be done by every one, but only by the Clerk of the Crown at sessions, and the Clerk of the Peace at the assizes. He could not see any ground for saying that there was the slightest ambiguity in the Act, or that the duty laid upon the clerks designated could be assumed by any other as a duty to be performed or a privilege to be exercised. He understood that much stress had been laid by the Crown on the introductory words of the enaeting clause, which were, "that in all cases that may come before grand juries in Ireland;" but he contended that those words were not to be taken of themselves, but must have their meaning defined by the remainder of the sentence; and if so much of this clause as made a perfect sentence were examined, it would be found to fix the meaning of the former part. If they were to take a detached phrase in any Act of Parlia ment, or in any other writing, they might make the sense of that appear the very opposite of that which was intended. As Mr. Erskine once said, you might prove from the Bible that " there was no God,'' by omitting the important sentence which preceded—" The fool hath said in his heart." Let their Lordships try that experiment—let them try that mode of illustration upon ' the words before then, and the sense would be exactly the saiiie. Without changing a single word it might be read by putting the latter part of the clause first, and then there could be no possible cavil about the meaning. Suppose it had been stated that the clerk of the Crown at assizes, and the clerk of the peace at Quarter Sessions shall enter on the back of the bill of indictment the names of the witnesses, and send them before the grand jury, in all cases where bills were laid before the grand juries in Ireland. The construction that he put upon the Act of Parliament was, that the word assizes was used there in the popular sense. He did not know whether it -was intended to be urged that the word assize included, propria vigore , the Court of Queen's Bench in Ireland. The present use of the word assize, and perhaps the only use, was the one now given to it ; at all events, it was a part of popular speech in the reign of Richard 11. ; and Chaucer, in describing a sergeant, said " He was full oft a justice of assize." With respect to the word assize as connected with nisi prius, that was as old as the statute of Westminster; but their Lerdships were aware even after that statute it was neces sary that a new statute should be had to enable trials to take place in the Courts of Westminster at nisi prius instead of at bar. Now, the definition of assize given by Lord Coke, in his 2d Institute, page 422, was, that before Magna Charta assizes were only to be taken in the Court of Common Pleas. The Loan CHANCELLOR—We all know, Mr. Hill, what the meaning of the Clerk of the Crown at assizes is. We have had much experience on that subject, and the Judges will have practical experience of it again very shortly, Wyatt only allow them.—(Laughter.) Mr. HILL would dealt in his power to enable the Judges to do so, and after the observations that had been thrown out by their Lordships, he would proceed to another part of the case. The question, then, was—Was there upon this Act anything that could extend the words and meaning of the Act to the Court of Queen's Bench ? It was assumed in the judgment below to be the clear and evident intention of the Legislature that these enactments should include the Court of Queen's Bench. Nov, how were their Lordships to col lect that such was the intention, and that that was the true construction ? It was supposed to be in the title and preamble. With regard to the title, be need not argue that it was no part of the bill, any more. than the word "assizes" included the Court of Queen's Bench. But supposing it to be so, would it not be a very strange construction to take the general terms of a title which ought to be short, and which in the present case was short enough, and suppose that they defined the operation of the Act? Take the case of the Statute of Frauds, the title of which was, "An Act to prevent. Frauds and Perjury." W as that an Act to prevent all frauds and all perjuries? It would, indeed, be an invaluable Act if it had such an effect. This was an Act to empower grand juries in Ire land to administer oaths to witnesses upon bills of indict ment. The title could not be expected to contain the limi tations of the Act substantially. Sitting in a court of error on an indictment coming from Ireland, their Lord ships must be presumed to know the practice of the Court of Queen's Bench , in that' country; and that the number 'of criminal cases in that Court, as in the Court of Queen's Bench in England, was exceedingly few. The only words which at all bore on the question in the preamble, were the following:—" That the administra tion of the Court has been productive of delay and other in conveniences." Did it necessarily follow that it was produc tive of delay and inconvenience in every case, and in every court? Surely they had seen that day proof that there were some courts in which the swearing of witnesses in open court was not considered such an inconvenience as called for the in terpositibn of the Legislature. He apprehended that the full meaning of this preamble would be satisfied if, in the majority of instances, it had been found productive of delay and incon venience. When their Lordships saw that the limited mean ing which he ventured to put upon the Act would extend to 9,999 out of every 10,000 cases which were tried in Ireland, surely they would be of opinion that there was sufficient left, if they deducted the number of cases in the Queen's Bench, to satisfy all that was averred. Lord CAMPBEI.LIS there not in Dublin a Court of Oyer and Terminer ? analogous to our Central Criminal Court ? Mr. HlLL—There may be, my Lord. 'Lord CAmrnELL—Would you not allow that that Court is an assize ? _ _ _ Mr. HILL—As far as I am aware of the constitution of that Court, it is not an assize. It never was so called. . . . Loid CA3lPBEtt.—There are a great many persons tried in that Court, but I do not know that it will affect your argument. Mr. Hitt—Lord &icon mentions, as one of the incidents of an assize, that it is under a commission. The Lcinn CHANCELLOR—This indictment was found there, was it not ? Mr. HILL—No in the Court of Queen's Ben c h, b e f ore w h a t was called in Ireland, " The Term Grand Jury." It was not found at an assize in every sense of the word, and if that Commission Court could be considered an assize, it would not assist their Lordships. He would now call their Lordships' attention to the second point which he maintained as arising upon the construction of this Act. His client (Mr. Steele) had assigned.for error in fact, that the witnesses upon whose evidence the bill was found had not been certified in the manner pointed out by the Act, as having been sworn before the grand jury. The point would only be material, if their Lordships should be of opinion that the construction he had put upon the Act was erroneous. Then it resolved itself into this question, supposing the foreman of the - grand jury to be the proper person to swear these wit nesses, and not the officer of the Court in open Court, then they could not have been duly sworn ; and, at least, the indictment had not been duly returned, because the foreman of the grand jury had not put his initials so as to authenticate the fact that they had been sworn at all. The Legislature felt this difficulty, that if the authority to admi nister the oath was transferred from open court to the close and secret room of the grand jury, there would be no means by which the Court could be informed that any oath had been administered, or that it had been administered to one witness more than to another. The grand jury being sworn to secrecy, the defendants could not themselves attend, nor could any part of the public attend, to see what was done, and the only means of removing this difficulty was a statutory regulation. The cause was this. The officer of the court endorsed the names of all such witnesses as were likely to be called before the grand jury. But the grand jury were frequently satisfied with a fewer number of witnesses than the prosecutor had prepared. They found the bill, he supposed upon the evi dence of the first witness. How, unless the certificate was made as pointed out by the Act, was the court to know upon the evidence of what witness the bill had been found ? It was an unusual proposition that where the course of pro-- ceeding in a court of justice, according to the common law, was changed, where a new tribunal, if he might be per mitted to use that French word, was chosen, then the power by which that change was effected must be strictly pursued. After the 56th of George 111., and probably before it, it was illegal for grand juries to find bills upon the testimony of witnesses not sworn, and the effect of that bill was to provide that they should be sworn in open court. That was a declaratory law as well as an enacting one, and it was conclusive that the common law course was that the witnesses should be sworn in open court. There were some safeguards to the administration of justice arising from that regulation. There were some advantages to 'the defendants in their early notice of what witnesses might be called against them; it enabled them by quickly and promptly collecting information either to cross-examine those witnesses effectively or to contradict their testimony. It was thought right however by the Legislature to change that proceeding; doubtless for good reasons. But it gave a very exact and admirable mode of distinguishing between the names endorsed on the back of the indictment where the witnesses had been sworn, and where they had not been sworn, and the mode, therefore, of pointing out and returning a true bill. The evidence upon which the Court was to be satisfied that the bill brought into Court, and stated to be found by the grand jury was a bill found according to the course of the law, was that the certificate should be attached to the bill. It was worthy of remark, that not only was this the mode prescribed-by the statute, but it was the only mode in which the Court could ascertain the facts ; but it had not provided any other, and scarcely could provide any other. The Loeb CHANCELLOR—Point out the page in which the defect is stated. Mr. HILL—It would be found at page 83 of the defendant's appendix, where it was stated that, " neither the foreman nor any other member of the said grand jury did authenticate by his signature or initials, as is required by the said re cited statute, that the said witnesses or any of them had been sworn or has made such affirmation or de claration as aforesaid, nor did the said foreman or any other member of the said grand jury authenticate in manner aforesaid that no other witness or witnesses save the said hereinbefore mentioned witnesses were so sworn and affirmed or examined by and before them, pursuant to the provisions of the said recited statute ; and, therefore, in this there is ma nifest error ; and this the said Thomas Steele is ready to verify, to wit, at Dublin, in the county of the city of Dublin aforesaid." Would it be said that this part of the statute was merely directory ? He apprehended it was not for the reasons he had pointed out. It was a new power con ferred upon the grand jury—one not known to the common law—one that must be used as it was given, and used strictly as it was given. It was given by the Legislature, with cer tain safeguards attached to it—certain means by which the Court was enabled readily to know whether the prescribed law had been followed when the jury were sitting in their secret chamber. Let him put the case of an indictment for perjury. If the witnesses gave their evidence before the grand jury, in the absence of the certificates prescribed by the statute, how was the evi dence to be given? How was it to show that the jury were sworn, the grand jury themselves being sworn to secrecy. This was the prescribed form established by law, and must, therefore, be evidence. Was it not the statutory law that bills should be returned in a certain manner. But here was a new mode pointed out on account of the jury having new duties to perform—that of swearing the witnesses. Their Lordships were slow to construe any Act as a directing one when it had reference to criminal proceed ings. But their Lordships had never construed any words as directing where those words made a change in the course of the common law. His Learned Friend (Mr. Kelly) had directed his attention more fully to this part of the case, and would address their Lordships more fully upon it. He (Mr. Hill) should therefore proceed to the next point. Lord CAMPBELL said it would aid them very much if he would state how the question was to be raised, on the writ of error or on a writ coram nobis? Mr. Him said that question applied to the portion of the pleadings which would devolve more upon Mr. Kelly, but it appeared to him that if the plea of abatement was good in form, then it might be argued as a plea of abatement. If the objection to it was made that it did not set forth a sufficient number of facts, then the question might be raised. Lord CAmrnELL--Then you think it competent to take the question both on the assignment of error and the writ coram nobis. Mr. HlLL—There could not be a doubt about it. He now proposed to lay before their Lordships a very im portant point in the argument of this case. He would endeavour to show that the court below had come to an erroneous judgment when it disallowed the challenge to the array, Or rather when it allowed the demurrer of the Crown to that challenge of the array, assigning, as they did, that that challenge was not valid. Their Lord ships, by the argument of his Learned Friend, Sir Thomas Wilde, had been putin possession of the general terms of the challenge, as it stood upon the record. He did not, there fore, think it necessary to go over with particularity the form of that challenge. Ile would advert to it by call ing their attention to the provisions of the Act, which at present Was in force in Ireland for the purpose of regulating juries. There were two Acts for this purpose: one of the 3d and 4th William IV., and the other the 4th and sth William IV., being an Act to amend the former one. On these the question mainly rested. In the 4th section of the first Act, chap. 78, they would find that it was made the duty of the sheriffs to issue precepts for the collection of the grand jury cess in the month. of July, there to be returned with the names of persons duly qualified to act as jurymen. The 7th section states that the collector is to make out alphabetical lists of the persons liable to serve on juries—to deliver those lists to the clerk of the peace without fee or reward. The Learned Gentleman then read the 9th section of the Act of Parliament, which prescribed the mode in which the jury list was to be ma de out. The averment of the challenge in the case of Mr. Steele would be found in page 66 of the ease of the plaintiffs in error. It was stated that the general list, which was the duty of the Recorder, who had caused it to be made out, to deliver to the clerk of the peace, was not so delivered, and it stated that • a certain paper writing, purporting to be a general list, was illegally and fraudulently made out, and that it omitted several names which ought to be inserted, which was to his wrong and damage. The first question which he proposed to argue before their Lordships was one which at first sight their Lordships might sup pose it was scarcely necessary to argue, namely, that there was a great disobedience of the statute, and that after all the labour which had been gone through in the making out of the list ; the fruits of it' were lost to the public in general, and to this challenger in particular, by the fraudulent act of some one who interfered during that part of the proceedings pointed out by the Act, which said that the Recorder, or Justices, shall cause this general list to be laid before the Clerk of the Peace, and that by such intervention a document became the foundation of the jury list, which was not in obedience to the Act of Parliament, or in conformity with it. The challenge stated that this was to his prejudice, and that it was so intended by whosoever concocted the fraudulent document. If this was not a wrong and matter of great public concermnentrzs-if it was not a matter which demanded a remedy in the loudest possible voice, he knew not what did. He was not speaking here of the number, more or less, which was omitted from the list. That was not the thing material. He stood upon this allega tion, that a real and substantial injury had been committed, which gave this gentleman ground of challenge. The ques tion was, could there be a doubt that this was wrong, and that some remedy was requisite? The labour of the Re corder, and of so many officers who were engaged upon the list was thrown away, and the value of the document was destroyed, as regarded the challenge. He could hardly have a doubt of this if he had not read the judgment of the Court below. The course of argument which the Learned Judges pursued was this :—That they thought themselves justified in examining this question by putting some extreme case, and they asked by that process of sophistry, if he might venture to say so with regard to those learned persons, for whom he felt all respect, which was so frequently practised by those who did not wish to arrive at the truth—" Would you say that the list is void, because one name is omitted, or because there is a reversion in the order of a single name ?" He was not called upon to argue how much this was in disobedience to the Act of Parliament, because the ques tion here was not the question if more or less fraud was im puted; and the question was far superior to the number of names omitted, namely, that it was of damage, and the injury averred was as precise as possible, because, as their Lordships saw, the damage was prospective, because the damage was not arrived which it was the object of the challenge should not arrive, but which impended over the party. He was surprised it had not occurred to those learned persons who put this extreme case to put the other extreme, whether if all the names had been omitt e d b u t one it would be good. Supposing a rat had gnawed out one of the names, would that not render the list invalid ? Supposing a more hungry rat had gnawed out all the names, would not that render it invalid? But if a rat of discretion—a rat that knew what he was about—gnawed out cer tain of the names, would not that render it invalid ? Suppose it true that the names which had been omitted had each a mark on the side. Suppose it to be impossible to imagine that the loss of any number of sheets could account for the names omitted from the jury list. Suppose the names ought to have been spread all over the book. Suppose it appeared from the record, and he would not travel out of the record, that this was a great cause arising out of a great political and religious contest, and that there were indications to show the religious and political feelings of the persons whose names had been omitted, and that those names luul been omitted in consequence. Now, in a case like this, in which fraud was distinctly alleged, he was at a loss to understand why inquiry should be refused. even if it was demandable as a strict right. Inquiry ought to have been courted if each party had been equally desirous to have the jury list, which they ought to have had, fair and impartial. If the will of the Legislature had been complied with in every particular there would have been difficulty enough in the then social state of Dublin in procuring a fair and imparital jury This great question was the agitating the country. It would be no aspersion on the great body of men from whom the jurors were sworn, to say that there was not among them any one to be found who did not entertain strong feelings on this great question on one side or on the other. Indeed, he should feel little respect for any one man living in Ireland who had not strong feelings, on one side or on the other on this vital question. This case had been brought to trial under the able direction of his Learned Friend, the Attorney-General for Ireland. Every fact was to be subjected to the investigation of the jury, and every member of that jury was almost certain to be biased on one side or the other. without any fault of his own. Now if a case could be imagined which beyond all others required a strict—he might almost say a superstitious compliance with every portion of the Jury Act—it was the case before the House. It was expected that the trial would operate on public opinion—it was intended that it should be held up as an example to the people of Ireland ; could that be done in any way except by convincing the people that all was done, not from vengeance, but from justice, and to vindi cate the law ? If that were the object in view, he could only say that the means taken to effect it were most unfortunate. Above all things it was necessary that no suspicion should rest on the impartiality of the jury. On that point, he would quote the language in which, on one occasion which might be considered an epoch in law, one of their own Lordships had expressed his deliberate opinion :—" I should be guilty of no exaggeration—l should be led by fancy into no error if I said that all the vast establishments of this great empire—. that King and Lords and Commons were all instituted for the simple object of putting twelve good men into a box." If that were so, surely it was of infinite importance that the intentions of the Legislature to secure these twelve " good men" should be attended to. What was the meaning of" good. men ?" It was meant that they should be impartial and intelli gent. But as no general words introduced into an Act of Parlia ment could produce that particular effect, the Legislature had laid down certain qualifications which ought to be com plied with before the jury entered the box. Now, what was the remedy if these provisions were departed from ? The challenge of the array. It was admitted, he believed, that that right was not taken away by statute. But that omission was coupled with an exception. the ob ject of which was to show that the right could not be used in the present case, and for the purpose disclosed in this chal lenge. Now he proposed to show that the challenge of this array constituted the great right from which .this great wrong was to receive an effectual remedy. In England until the Revolution, and in Ireland until the Act of the 3d and 4th William IV., the sheriff was the only officer, who, by him self or his subordinates, could refuse the challenge to the array. In Coke upon Lyttleton, section 136, it was said that a challenge of the array would lie for nonindifferency or default of the sheriff. There could be no doubt Lord Coke, in laying down the right of challenge to the array in these raw and general terms, and in reference to the autho rities, it appeared that this right to challenge the array existed in all cases in which the sheriff was, or in the contemplation of the law might be, a partial person, or where, in contemplation of law, he stood in such a relation to one of the parties as that he lost his impartiality. So suspicious was the common law upon the subject, that it was thought right to set aside the sheriffs, and direct a'venire to the coroner, when he stood in any relation, even that of god father to a child, of any of the opposing parties. He had found cases in the old books replete on the subject of chal lenging the array, though in modern times those cases were not so numerous. There was a case in the 17th of Edward 111., in which the Sheriff who empannelled the jury was related to some of the parties, and upon the array being challenged, the panel was quashed : in an other case, where the under-sheriff empannelled the the jury, and where he was found to have some connexion with the parties, the appointment of the jury was quashed upon the array being challenged. Would it not then, he would ask, be a most monstrous thing, to put a con struction upon the Act that would put an end to that important remedy of challenging the array ? Could there be anything more important than such a right? It had been a subject of eulogium by Sir W. Blackstone, and even so far back as the time of Cicero, the appointment of jurors was matter of consent between the par ties ; and Blackstone says that the system in this country was very much upon a par :o that which existed in ancient Rome. He would put this upon the same footing as the writ of certiorari by which the inferior courts were prevented from running into licentiousness and from departing from law and justice. Then came the question whether the right of chal lenge was taken away by Acts of Parliament that were supposed to take it away. He considered that the subject was not to be deprived of this great remedy except by express words. He urged the right could not be taken away, or its efficacy injured, except by express words in an Act of Parliament. It appeared to him that the circumstance of the Act taking away this right in express terms was no unimportant part of his argument. It showed that the Legislature had in view this right of challenging the array, and that unless a change of society should render the right valueless, the Legislature was unwilling to abridge the force and efficacy of this great remedy. The proposition which he meant to submit, as con sequent upon the observations which he had made, was that wherever officers were appointed for the purpose of executing any portion of those duties which anciently fell upon the sheriff, and where, in consequence of such interposition, the array had some vice in it which, in ancient times, would have been met by the remedy in question, there that remedy still existed, for the same purpose as it existed in ancient times, The principle of the remedy was that there should be power to destroy every panel which had a vice in it. Applying that principle he thought their Lord ships would have no difficulty in saying, that the right of challenge was still preserved in all its integrity, and it was peculiarly applicable to the case then before the House. This was denied in the courts below. It would be said that there was no power of interfering with refire= to the various offences. The question had been treated as though their object was to ascertain whether the offences were deserving of punishment or not. If that question arose at all, it was only as a secondary or collateral one. The main question was this, was that document which was the result . of all these collections of names and inquiries with qualifica tions, a sound or an unsound document; was it a do cument which gave aid to the sheriffs? It was said that a judicial power was given here to the justices, repre sented by the recorder, w hi c h must not b e interfered with by the challenge of the array. In the present case there was no complaint of any adjudication made by the recorder, either of an omission or the retaining of names which ought to have been excluded. The complaint began after that ad judication was made—after the exercise of judicial power, if it were properly so called, which he very much doubted, was at an end. The office was then merely a ministerial one for the purpose of " causing"—to use the words of the Act-- " the adjudications to be collected into a general list to be taken to the clerk of the peace." There was no semblance of a judicial power, it was simply the work of an intelligent clerk. Up to the point of the adjudication no complaint ex isted, but after that adjudication some power intruded itself upon the scene, took this list, and dealt with it in a frau dulent manner. One of the Learned Judges was of opinion that the challenge was good. He asked this pertinent ques tion, " What was the' difficulty when the eror was discovered of rectifying it? How was the paper lost ?" This was a question which he thought it would be very difficult to answer on the part of the Crown. If the list for the former ,year had been sent by the Recorder, there could not have teen any hesitation in sending it back, on the ground that it was a mistake. It had been said that a difficulty arose here from the circumstance that the jury were a special jury, and one of the Judges had expressed doubts whether any chal lenge to the array existed in the case of a special jury. He quoted the case of the King v..Edinunds, in Barnewall and Alderson's Reports. In this case a challenge was made to the array on the ground of non-indifferency on the part of the Master of the Crown-office. Lord Tenterden de livered an elaborate judgment in that case, in which he stated that the challenge could not be allowed. The Muster of the Crown. office being the person who has to strike the jury in the charactor of an elisor, the Learned Judges in Ireland seemed to have supposed that the Recorder stood in the same position of elisor, and therefore his lists could not be challenged; that the challenge to his list must be in a different character, and in a different mode. But how could that apply to a case, in which the objection to the challenge was, that the Re corder was a person over whom the Court had no power. his proposition would be, that whoever was entrusted by the law with the selecting of a jury must necessarily, as far as those proceedings were concerned, come under the power of the Court. The question the Court had to consider was not how that list came into existence, but whether it was in itself a sound document, and whether it gave assistance to the Sheriff, or whether it was calculated to mislead him. Their Lordships' predecessors had thought the power of challenging the array so great, that no statute law could take it away. He was proceeding to cite the case of the King v. Burridge, in Lord Raymond's Reports, when The LORD CHANCELLOR said—You are now beginning a fresh point. Are you likely to finish your arguments in a few minutes ? Mr. my Lord. The LORD Cif.4.NOELLOR—Then we ,will adjourn till tea o'clock to-morrow. SPORTING INTELLIGENCE. WINCHESTER: RACES—THURSDAY. Handicap of 5 sovs. each, 2 ft, with 25 added; the winner to be sold for 100 sovs. Three-quarters of a mile. Mr. Preston's Bosphorus, aged Capt. Delme's Red Skin, 3 yrs •••• 5 Capt. Poyntz's Cayenne, 5 yrs 0 Mr. W. Etwall's Pelerine, 6 yrs Mr. W. Sadler's Alice Lowe, 3 yr 5..... The Two-yrs-old Stakes of 15 sovs. each, with 25 a dded. T.Y.C. Mr. W. Etwall's fby Defence, out of Soldier's Joy (Nat) 1 Duke of Richmond's c by Mus, out of Belvidere 2 The Winchester Stakes of 10 sovs. each, h ft, with 100 added; the winner to be sold for 1501. Heats, one mile. Lord G. Bentinck's The Best Bow e r, 3 y rs (Abd a l e ) 0 1 1 Mr. Etwall's Palladium, 5 yrs Mr. Braithwaite's Gaiety, 3 yrs Mr. Etwall's Venatrix, 4 yrs ... 0 3 4 Mr. King's f, by Jack-in-the-Green, out of Eliza... 3 odr The City Members' Plate of 50 sows. for 3 yrs old, 6st 41b four yrs, 7st 91b ; five yrs, Bst 41b ; six yrs, Bst 111 b ; and aged, 9st. Winners extra; mares, &c., allowed 31b. Heats' two miles. Duke of Richmond's Lothario, 4 yrs (W. Howlett) 1 1 Mr. Sadler's Belissima, aged 0 2 Mr. Pearce's:Jack, 5 yrs Mr. England's Spring Bok, 3 yrs . 0 3 Mr. Etwall's Queen of the Chase, 3 yrs 3 0 Captain Poyntz's Fire -king, 4 yrs 0 MARKET NE WS.-(YESTERDAY.) CORN-EXCHANGE. Since Monday we have received a full average time• of-yea r supply of English Wheat, the quantity of which on offer Ti° tolerably good. Although the attendance of buyers W s somewhat numerous the demand was in a very sluggish state , and prices had a downward tenden c y. Foreign Wheat W s a mere drug, and might have been purchased on easier terno. .For all descriptions of spring corn, the supplies o f which were by no means large, we had a very dull sale, and in al most every instance the currencies were somewhat easier. ARRIVALS. Barley. I Oat's. Flout 4. 330 qrs. 4,620 qrs. 4,210110" 2,630 ---• 10,090 —"" Wheat. English 4,100 qrs. 1ri5h....... - Foreign .. ...... 11,12) 4,880 Malt. 2,710 qrs. SMst ITHFIELD. The numbers of beasts on offer were only moderate, le' the Beef trade was in a very sluggish state, at, in some 5 stances, a decline of 2d per 81bs. There were on sat i n beasts from Holland, and 70 h orne d an d po ll ed Scots l '' Aberdeen. The supply of Sh ee p was t o l era bl y good, yet tio Mutton trade ruled somewhat active, at full prices. . ns Lambs a good business was doi ng , an d M on d ay ' s quo tatl° were well supported. Although the numbers of Calves f ull very extensive, the Veal trad e was somew h a t brisk, wereo currencies. In Pigs little was d o i ng , y e t p rev i ous o tes t supported. Mikh Cows moved o ff s t ea dily a t from 1 6l o 191 each. Per Sibs. to sink the offal. d. s d. to s. d. s. d . to s. 6 Inferior Beasts 2 4 2 8 Second qualitytlitte... 3 4 . 3 6 Second quality ditto 2lO 3 2 .Coarse.woolled ditto.. 3 6 1 0 Prime large Oxen 3 4 3 6 Southdown Wethers 310 4 Prime Scots, &c. - r 6 large coarse Calves 3 4 4 0 Large Hogs 3 0 ? 0 Prime small ditto 4 2 4 4 Small Porkers. ..... „. . 3 8 * ~, 0 Suckling Calves, each 18 0 2S n Quarter old Pigs,cachl6 0 ." 0 Inferior Sheep 2 6 3 2 Lambs 4 0 1. SUPPLY AT MARKET. Beasts. I She , ep. I Calves. I r s igs. 42 12159 469 o ra - E.vrGATE .4.1V1C1 X.E.A.DEN111%.7,1.• ~,, Although the supplies of meat were but m o d e rate, th e general demand was inactive, on the following terms : At per stone, 87 the Carcase. a. d. toe. d. 5. a• t" . 6 Beef, inferior.....-..... 2 2 2 4 Mutton, inferior 2 6 .2 2 - middling ......... 2ti 2 8 ---- middling 210 '' 5 -- prime large ...... 210 3 0 ------- prime 3 4 i 6 prime small ...... 3 2 3 4 Pork, lar ge 2 : 6 0 Veal .•...... .. .......•..... 3 0 4 0 -small .... 3 6 Lamb. 48 Od to 5s Od. BOROUGH HOP MARKET. The accounts from the plantations being by far more un favourable than were those of last week. The demand here far all kinds of hops is active. COLONIAL. SUGAR.—West India Sugar has not been so brisk this week, and prices are again rather 'lower. Sales about 9 ° ° hhds to last evening inclusive. Jamaica brown sorts ar d quoted 54s to 55s 6d; mid yellow 58s to 595; and fine 65s to 67s 6d ; Demerara and Berbice, fine 64s 6d to 65s 6d. ~.1 1 ; hhds Barbado es , at auction, realised 64s to 65s for yellow. Refined standard lumps have been heavy, at 75 9 4 75s 6d. Mauritius--There have been no public sales ; sculled 63's to 645, and yellow 57s to 60s. BENGAL is in less request ; 5,929 bags, rather more the half sold; fine w hit e at 64 s t o 67 s 6d, an d m id yellow st 61s 6d to 62s 6d. MANILLA.-4,201 bags were taken in at 17s 6d to 19 9 f°l. sound. FOREIGN.-3,138 bags Java were taken in at 16s 6d t° 22s 6d for sound. Yellow Havannah Sugar afloat has reap Used 19s 6d for a near port. COFFEE,—British Plantation has been in fair request, tins generally at full rates. Publicly 223 cas k s 123 b r l s sold„ 84s to 97s for mid to good mid Jamaica ; and at 67s to i" t ' for fine and fine ord Demerara. A few bags Domingo Or d; at 31s 6d per cwt Ceylon, is steady at about 50s for g ood cr„, 862 bags went at 51s 6d to 52s for real good ord, and at vv" g to 90s 6d for,Plantation quality. In foreign 131 bags 1'a (13 ,1, / sold at 30s 6d for good ord, and 345 bales Mocha Pa, r ;,;i found buyers at 66s to 6786 d for fine ord green mixed co' garbled. COCOA.—This article is dull ; B a hi a so ld at 20 s 6d t o 293- Ad for fine bright red. o SPicEs.—Pimento haS 'been in request at full rates, 31i to 4id per lb. Cassia Lignea i s fi rm ; M a l a b ar Pepper g,.;"°n t d 0 half heavy has been sold a t 3§d t o 34d per lb. Jion'' Ginger has been in request. 4 ,14 RUM.—Proof Leewards ha s b een a t 2 s 2 d to 2s 20, Calcutta proof at is l lid to 2s per gallon. SALTPETRE.—Refraction 15i- and 114 per cent. Bev has realised 23s to 245. RICE.-1,330 bags Bengal mo s tl y so ld at 10s 6 d to 118 for white, and 5,591 bags 617 mat s J ava were chiefly tak e n in at 8s 6d to lOs for sound. TEA.—There has not been much doing, and about prev i r ug rates are currenti „. TALLow.—P. Y. C. is 41s 3d to 41s 6d per c wt on the sr pt Odessa for arrival has been sold at 41s per cwt. COTTON.—A fair business continues to be transacted Fl a , vately, and at auction 3,500 bales S ura t an d 1,000 bales I% I A, dras sold at full rates. Surat very or d t o m id nd to 3 3 Bij Madras Western 3id to 3 -Ad, and ord Tinevelly aid REPRIEVE OF DALMAS.-011 Thursday afterncl; reprieve, during her Majesty's pleasure, was received a t norsemonger-lane G ao l f or va l mas. I t i s un d ers t oo d t „, e s Doctors Sutherland an d M onro h ave reported to Si r Jgp. Graham their opinion that the prisoner's mind is aff ee t ] s- He will not, therefore, be executed, b u t confined, it is r sumed, in one of the lunatic hospitals. SIX POUNDS of TEA, and upwards, sent, carriage flee, tf, w it• part of the Kingdom, at th e W holesale Price, on receipt o f A '` tance, or Post-office order. Black, 28.8 d., as., 39. 4d., 3s. Bd., 48., 49. 4d., 4s. Bcl , , Green, 3s. 4d., 3s. Bd., 45., 4s. 4d. ' Ss., ss. 4d. 6s„ Coffee, 9d„ Is. Is. 2d., I s . 4d . , I s. , 6d., is. Bcl., Is. led., 11,e5- G. T. MANSELL an d CO ., Wholesale Tea Dealers , 2, 41 0 LERSBURT, CHEAPSIDE. Agencies will be given to resP c ' parties; BIRTHS. On the 29th ult., at the Manor House, Nestor), ph,shire' the lady of Henry Hill, jun., Esq., of a son and heir. _, t he On the 29th ult., at Ridlingt on , No r f o lk, the lady u' Rev. John Webb Flavell, of a son. On the 30th ult., the wife of Dr. Rowland, Queen -5015 Bloomsbury, of a daughter. gussell' On the 2d inst., at Belgra ve - square , M rs . William of a son. On the 2d inst., Mrs. W. B. Minet, of a daughter, MARRIED. job° On the 2d inst., at St. George's, Hanover-square, erbi, Jephson Rowley, Esq., of Ro w th orne , i n the county of 9 of to Mary Ann Rowley, relict o f th e l a t e William.ttowleP Sheffield. On the 29th ult., at Milve r ton, J o seph, son of the litturett James, Esq., of Hascombe-place, Surrey, to Mariao c ,r!, e ' ha ltol l daughter of the late W. F. Reynolds, Esq., of House, in the same county. Whir On the Ist inst., at Wear's-hill, the Rev. Thomas 00 , ham, D.D. Vicar of Kingstelgnton-cum-Highweek, De s ick, On the Ist inst., at Hyde, John Wroughton Harrison, of Cambridge-terrace, Hyde-park. of On the 2d inst., Jane, the wife of J. W. Nicholson, °cl.' Lark-hall-rise, Lark-hall-lane, Clapham. -sr st6 On the Ist inst., in Cambridge-street, Connaught a rsr Mary, the widow of the late Richard Henry Crowe, 0 ' ham, Norfolk, aged 95. vl `; v London : Printed &nd Published by MURDO yoiqq, No. 112, Strand, Printer, at The Sux Office' )141 % ; 1 1 0 Strand, in the Precinct of , the Savoy in the C° 1313.° • TalddleseztrSatUrday, July 6, 1644.- • C et s Fare 8 nab; aecon Polk • -L H 60 1 10( Th( Tht a ges E wa t Of 1,1 4 (or tt, A Not ott /L: Christ this (14 Vter u'e lock mot , :b` -- f- s E dward Oeor °real ge Sio an ' I • Park Ca n 17. V J ohn p t terrac Jos eph eatob: Park. STS B A So ber' DEpA N , tk4 „ ai t !to ky lt ° 10 0 th, i ufnci r !tvi t i °the , fbr ~° 11 1) , ,,, rle.l th e "ety , Idl r,„th i4„,iller Pu 144 all