The Sun. — London, England, 1840-01-02 00:00:00

ra~.— EVENING P'1)IT1ON innocence, if they are innocent. t=entlemen, in cases of . high treason—which is of great importance to the accused i —the law is most particularly guarded in reference to the prisoners. It provides that they shall have ample op portunity of knowing the nature of the charge made against them, the witnessys by whom it is supported, and of the Jury by 'whom it is to be tried; and I believe it will be found that Mr. Frost has had ample opportunity of know in; the charge against him, the witnesses by whom it is supported, and the Jury who have to try it. I believe that no form of law has been omitted, or that anything has been interposed to prevent tile justice of the country proceeding. I have no doubt that the witnesses who will be called and examined will receive from you the f most careful attention, and that you will listen with the respect due to them, and to the arguments which may be adduced in favour of the prisoner. On this it will then be your important duty to pronounce your verdict of Guilty" or " Not Guilty," and I have no doubt that you will do so with justice towards the prisoner, and satisfac. tion to the public justice of the country. The Attorney-General then called Samuel Simmons, witness for the prosecution. Sir F. Pellock then roso to make his objection, and called on the Attorney-General to show that the list of witnesses had been delivered in pursuance of the Act. ' -,neral said he would do so, but without ',lion, that the objection of his Learned now made. As his Learned Friend t in which the name of Simmons ap iecame his duty to show that such list -otest against the competency of my iake an ohjetioa that the name of a is nut included in the list, and then that the whole list was not properly ly Learned Friend may make what When we have the evidence we can ,al—Let us bear the evidence. ie, solicitor t T o the reasurer, exa ,ant wid e —Has the conduct •f this ,red to the prisoner Frost a copy of a list of the jury, on the afternoon of .r last. Application had been made ,he indictment previously to that day e bill was found on the 11th, and Mr. !ourt, and appeared for some of the pri tor. Could not recollect exactly for iseners he appeared ; believed for se , Gcach being away, Mr. Owen ap ,me of them as his agent. ,Vildc—What passed between you and you delivered him a copy of the in- ,jetted to the question, and mentioned Atcd on so serious a charge as high words, or act of his awn, give any pi isfe, or forfeit in any manner the immu nitles which the law gave him. Mr. Kelly supported the objection. The simple fact to be ascertained was whether the requisitions of the statute had been complied with. Chief Justice Tindal—l don't see how the witness can avoid telling what took place at the time. The question is whether he delivered the copies. Examination continued— Witness stated to Frost that he delivered him a cop; of the indictment found against him, and also a list of the jury, which hid been tkiivered by the Sheriff to witness, and that in a day br two, as soon as he could get it ready, he would deliver to him a list of the wittwsses. That was all that passed. On the Tues day following (the 17th December), having th•Al com pleted the list of witnessc , , attended on Mr. Frost again and delivered him that list, which was a verbatim copy Jr the list new in witness's hands, and told him it was a list of the witnesses, which - was a;1 that passed on that occa sion. Mr. Thomas .1. Phillips, solicitor, of Newport ; Mr. Leyden, witness's principal clerk ; and Mr. Evans, solicitor, were the threo witnesses present on both occa sions ; application had been made to witness for the deli very of the indictment by Mr. Owen. Sir F. Pollock objected that they had nothing to do with any application by Mr. Owen, who was neither counsel nor solicitor to the prisoner. He could not be so without the act of the Court. Chief Justice Tindal—Does the Act require the attorney to be assigned ? The Attorney-General—By Mr. Frost himself. A desultory examination and conversation ensued, as to the precise manner in which Mr. Owen became concerned, in the absence of Mr. Geach, which elicited only the fact that Mr. Owen acted in the absence of Mr. Geach, as though for him, as regarded Frost, and that Frost applied to the Court for copies of the depositions, and that Mr. Owen might have them ; and that as Mr. Geach was ab sent, Mr. Owen might act for him ; to which the Court replied that, on application to the proper officer, the copies might be had, and that Mr. Owen afterwards applied to Mr. Maule for t he indictment, which was delivered to Mr. Frost next day. On cross-examination the witness recollected the Court observing, i n answer t o an application by prisoner, that Mr. O wen might act for him ; that they could not assign him any attorney at all, as it was not required by the Act. That all the Court could do was to give an order for access, but that he could not have access for two attorneys unless in case of partnership. Ile delivered copies of indictments and lists to all the prisoners at the same time. Mr. Owen was attorney for some of the other prisoners. Did not himself deliver any second list of wit. messes, though he ascertained afterwards that a list of fur ther wanesees was furnished by his agents. Believed the co py produced by Sir F. Pollock t o be that delivered b y bim, if it remained in the same state. Rc-examined by Mr. Sergeant Wilde—The name of Samuel Simmons is in the list delivered on the 17th. Sir F. Pollock said there was also a minor objection to the witness, Simmons, that his description was inaccurate. He was described as of the parish of St. Woollas, in the borough of Newport, as if the parish were part of the bo rough, whereas it never had included it • and, to be defi nite, it should have been of the borough of Newport, in the parish of St. Woollas. Sir F. Pollock--I am now, my Lords, about to submit to your Lordships one of the most important of those statutts, which constitute what my Learned Friend, the Attorney. General, has not inaccurately called the charter of the subject in cases of high treason, and which I beg most strongly to urge upon your Lordships, has not been duly complied with in the present instance. I trust, my Lords, you will believe that respect for your *Lordships, and respect for my Learned Friend and his high office, would have prevented me from interposing, as I did some time since, but would have led me to wait until the first witness was called, were it not that I hoped that my Learned Friend, in the exercise of his discretion, might have been induced to forbear making a statement calculated to pre. judice the prisoner, which the decision in favour of my objection would not have permitted I.itti to prove. Cer tainly my Learned Friend had a right to make his stabs. ment at the outset if he preferred it, and the presem is the proper time to make the objection. To the arguments in favour of that objection I ran sure your Lordships will listen with patience, as well as to the authorities I may submit in support of it ; and if in the discharge of this . duty your Lordships should feel that I may be trespassing at some length on your Lordships' indulgence, I hope I may be permitted to advance, al some claim to it, that I stand here ie ;s novel position—to myself a position wohich I will not say is one of embarrassment, but one of the deepest and most intense interest. The facts which are now before your Lordships are, I believe, shortly these— that the Commission under which your Lordships are now sittaig wes opened on the lath December; the bill was found against the prisoner on the 11th and 12th December. Copies of the indictment, and lists of the Jury, were de llveLed not to Mr. Frost only, but to every one of the per sons thee in prison ; amongst others, however, to Mr. Frost, whose case is now under consideration. This was on Thursday, the 12th December, and on the follow ing Tuesday, the 17th of December, and not till then, a list of the witnesses was delivered, by whom the charge stated in the i n di c t ment , a copy o f w hi ch was delivered on the preceding Thursday, was to be proved. 1 had, my Lords, c er t a i n l y hoped that Mr. Maule would have been able to have stated same fur ther matter with respect to the delivery of lists of wit nesses, which appeared to me to be of some importance. as showing that the act which had been done was never con templated to he done, as in obedience to the wishes of any person acting or supposed to be acting as the attorney for the pri , oi:er, but was strictly done under the intention of cotnpiyinc with the statute, and under the notion that it was sufficient if the lists of witnesses were delivered ten days helsre the trial, forgetting, which your Lordships will find even erteral of the tests books do not mention, that not only must they be delivered ten days before the trill, but that they must be delivered at the same time aiid with the copies of the indictment and the list of the jurors. My Lords, I do look to it wl - cn I shall have ,i-med the law and the ul - 4iversal practice on every oc cision where I have had the means of informing myself ; Ido look to a termination of this proceeding—a termina tion which, at least 1 consider, no one will hive any rea son to Lcgret, hut, on the contrary, with reference to many circumstances connected with public as well at private interests, the state of the tim-' and other matter, will rather induce ail persons to consider it as one of the fortunatre interpositions in favour of a prisoner without de- r‘ , gating from the, powers of justice, at which they may justly rejoice. My Lords, the vestion turns upon the statute of the ith of Ann, c. 21, s. 11. and I Kill submit to your I ...atrial:lips the very words of the Act of PArliaraent, 7h 1 1,n for the first time gave to the prisoner the right to ',Ave a list of the witnesses and a list of the jurors with the indictment ; for by the statute of William he was entitled to a copy of the indictment five days before the trial, and to a copy of the jury panel two days before the trial ; but not to a list of the witnesses at all. The statute of Ann was a prospective one. and enacted. that from arid after the decom,e of h, Protew'er. thr.?e years after the eats iolishment of the H.,use of Brunswick on the throne, according to the provisions of the Act of Succession, and not till both thcse events had taken place. The statute then enacts that " when any person so indicted for high treason, or misprision of treason, a list of ' the witnesses that shall be prcduced on the trial for proving the said indictment, and of the jurors, mentioning the names, professions, and places of abode of the said witnesses and jurors, be also given at the same time that th e c opy of the indictment is delivered to the party in dicted." Thus your Lordships see that there is first this chief arid most important provision, that whereas prior to that Act comity , into operation, the indictment was to be delivered five days beforehand, and a list of jurors merely two days before trial, that now the prisoner is entitled to have the list of witnesses as well as the iist of jurors de livered at the same time with the copy of the indictment; and the Act further provides in favour of the prisoner. that " a copy of all indictments for the offences aforesaid, with such lists, shall be delivered to the party indicted ten i days before✓ the trial, and in presence of two or more me- t dibl'e witnesses, any law or statute to the contrary not- withstanding." So that, my Lords, the copy of the in. dictment having been previously required to be accom parind at the same time by the two lists, it then provides i , h 4 i 4l copies of the indictments and all such lists shall be delivered ten days previously to the trial. I would remark here incidentally, that we find a prospective notice ; the operation of this Act, in reference to the very part The F,.,ey-Geu , • pr -'• ' . -• -t be r ' . , ,io list ' . inly be g at I prc a' ' - "nd to m - ' ‘ess i 3 .ct ion , . • --,NI 1 ' , • .. ..' Tin& t ..- Mauli ; .. ' ~. •. Sergea - ,a - Deltvel F . ent, with Drcembci ..1 . ~ copy t h ' T o e tl i , en. . 'ed in Cr e• so licit - r of pris - . Mr. ' . .a zt for son . - ' - ,:! - -geont \V 'isuner when ~ent ? „.), - F. Pollock oh a person coAlinii ;season could by no consent or compromi: whico lam now staling, by Sir M. Foster, and by him and I by several of the authorit , es quoted by my Learned Friend mentioned merely as an act requiring dim lists et wit nesses to be delivered ten days before trial; and this omis sion on the part of such authorities may in a great measure account for what has occurred on the present occ asion, . thoughit can in no manner change the m e aning of an Act of Parliament, nor affect the unceasing usag e which, in conformity with the terms of the statute, has occurred on every occasion since this st a tute came into operation. The book from which I quote this statute is" A Collection of Statutes," published in 1709, and we find it stated, I be. lieve by Sir Michael Foster himself, that this book was published by order and under the authority of the House of Lords; and I remember on the trial of Brandreth, in October, 1817, Mr. Gurney (now Baron Gur ney) mentioned that this book w as published by autho rity of the Judges, and, therefore, that the forms of the proceedings therein mentioned were of great authority, and your Lordships see that the book bears the name of Mr. Justice Powell, and all the other Learned Judges of the law, as authority . for its publication. The index of the statutes contained in this book gives the ac• count of it :—" After the Pretender's death, and three years after the succession to the Crown, shall take effect as limited, then a list of witnesses and jurors, and a copy of indictment to be delivered to the indicted ten days be fore trial;" and the index has omitted to draw any one's attention to the extremely important part of the clause, that the lists should be delivered at the same time as the indictment. The Attorney-General— cannot find the index. Sir F. Pollock—lt is not an index; it is called a " Table of the foregoing Acts," under the head " Trials.' With your Lordships' permission, I will refer you also to the notice which Mr. Justice Blackstone takes of the matter in his " Commentaries," in his 4th volume, page 351, 10th edition. After mentioning that by the statute of William it was provided that the prisoner should have a copy of the panel of the jurors two days before the trial, and that he should have a copy of the indictment, which includes the cap tion, but not the names of the witnesses, Ave days at least before the trial (which has been held to mean the period of arraignment), for then is the time for the pri soner to take exceptions thereto, and to plead or demui to the indictment, the Learned Jndge (Blackstone) pro ceeds to state that by the Statute of Anne, all persons in dicted for high treason shall not only have a copy of the indictment, but shall have a list of all the witnesses who are to be called to prove it, ten days before the trial, in the presence of two witnesses, not omitting also to state that the list of witnesses must be delivered at the same time as, and with, the copy of the indictment. But it eh() appears that this last Act of Anne, so far as regards some of the inferior cases of treason or misprision of treason has been repealed by the 6th George 111., cap. 53, most probably in consequence of a passage from Mr. Justice Foster's prospective view of the Act, which I shall read to your Lordship's presently. The work of Mr. Justice Foster leads me to allude to this historical fact, which is stated in several books, that the trial of Lord George Gordon, in 1781, for high treason, was the first occasion on which the Statute of Anne be came practically the law of the land. It is true that it was the law before, but the law had been in abeyance ; it was to come in force only upon contingency which depended on two events—the first was the establishment of the suc cession of the house of Brunswick, and the second was the death of the old Pretender. The old Pretender was alive in 1715 and 1748, and died at a very advanced ago. I do not know the exact period of his death, but there is no doubt that the Act came into practical operation, for tlie first time, at the trial of Lord George Gordon for the riots which took place in 1781. The Attorney-General There can be no doubt of that fact. _ _ Sir F. Pollock—Well, then, Mr. Justice Foster, in speaking of this Act, devotes a section to it, and his ob servations will be found in the 12th section of his dis course on high treason, page 249, where he says be should then proceed to consider .the clamed of the statute of Anne before pointed out, and he then alludes particularly to the 11th section. The book of Mr. Justice Foster, which the Attorney-General has quoted as a high autho rity, was written in 1762. The Attorney-General—lt was written, I believe, many years before, but not published till then. Sir F. Pollack—You are quite correct, I believe, but the book is dated 1762, from Sergeant's Inn, and there fore I mentioned that date. However, the author remarks that the statute, as it thea stood, would take place on the death of the Pretender ; but whether it might not be proper to postpone it to a still further period, or repeal that part of the enactment altogether, must be left to better judgment than his. And he goes on to remark that the words " treason and misprisions of treason," were large Foster, might lead t h t i o s badAot willc o n s b e e q u o e o n n cs considered enough to take in many offenc e s w h ere i n suc h a prov i s i on says of Justice re " d fo as r, o " n s e a of those which merit a liberal construction." Now, my Lords, I take it prisoner;that tliis in and I t mean ecaann scarcely c l a i r b :e r l a y l construction imaginemy Lineafarvnoeudr Friend f ie t n h d e will ask your Lordships to dep rive the prisoner of the benefit the statute conferred upon him by asking for a li beral construction in favour of the Crown and against the prisoner ; and permit me, although a humble member of the profession to which I have the honour to belong, to say that I shall ever, with all my might, deprecate for all purposes a liberal construction of any statute. I know the use that can be made of such a construction —not, indeed, that it has been made in modern times, or will be sought to be made now ; but I know the use that has been made, and may again be made, if what is called a liberal construction of the statutes is to prevail ; and I believe I may say that with the perfect ap. probation of the late Lord Tenterden. I adduced before him the same argument which I have now the honour to address to yonr Lordships, that we ought never to hear of either a liberal construction or a strict construction ; but that the question is what is the true construction, and by that let us abide, be it what it may. But to return to Mr. Justice Foster, he points out certain evils which might arise in cases of inferior descriptions of treason, from fur nishing to the prisoners the names of the witnesses, which might be made use of for bad purposes ; and which evils, thus anticipated by him, had been since remedied by the Act 6th George 3d, which takes away certain of these protections, is cases of coining and other matters. Still I must say, that Mr. Justice Foster does not speak of this Act with any very great degree of favour ; nor in a manner quite in accordance with the high constitutional character given of him by my Learned Friend, the A ttorney- General. I trust, therefore, having thus called your Lordship's atten tion to the state of the law on this subject, that you will fee! it your duty to expound it as laid down by the express and positive words of the Act, and as it has been acted upon in all instances since it has coma into operation. I now proceed to lay before your Lordships one other Act— and only one, before I call your attention to the cases in point—l mean Peel's Act ; and whether this Act has in aey degree contributed to the mistake made, bad what. ever apparent excuses may be offered for a supposed in dulgence on the part of the Crown towards the prisoners, in prematurely giving copies of the indictment—for your Lordships will remember that it was done for all, though ask , d fur only in respect to one, and that only at the request of a person not entitled to it, and clothed with no authority —I cannot help thinking that the objec tion I now make is founded on a mistake made either from a perusal of this Act, or probably from a perusal of a very valuable work in which the same mistake is made as occurs in Blackstone's Commentaries. By the 6th of Geo. IV., cap. 50, sec. 21, commonly called Peel's Act, new regulations were made for the empannei ling of jurors, and the extreme care with which that Act was drawn is admitted in all quarters. I had yesterday occasion to quota the 29th section relating to peremptory challenges, and I observed that in that, and in all other in. stances where the statute of the 6th Geo. IV. reenacts the ancient law, it does not repeal the; old law. I pre sume this was in order to guard against any omissions, in. asmuch as the Act was a re-modelment of the whole pro cess of summoning jurors, giving different qualifications, and consolidating and amending the various laws on the subject. I then observed that the Act of Edward was not repealed by that Act. Lord Chief Justice Tindal—lf you look at the end of the Act you will find that the 33d Edward 1., statute 4, so much of it as relates to giving a list of jurors' is repealed. Sir F. Pollock—l had not a copy of the Act in Court, but was indebted to the officer for a loan of his copy. Lord Chief Justice Tindal—lf you had not a full copy, you would not find it. I observe it repeals it at the end. The more modern practice is to repeal it at the beginning. Sir F. Pollock—The object for which I now particu larly call your Lordship's attention to Peel's Act, is, be cause it makes the true construction as clear as possible. It might be said that if you deliver the list more than ten days before the trial you satisfy the spirit of the Act ; hut in an important case like this, let us look to the letter._ what are the enactments ? I object to the doctrine of liberal construction of satisfying the spirit of the Act. Let us abide by the terms of the Act, and rely upon it; the best mode of enforcing justice by example and obe dience to the law is, to take care to obey its enactments in the seat of justice itself. Sec. 21, which re-enacts that a list of juror; shall be given, with a copy of the indictment, contains one exception with respect to a certain instance, and the v*iffa t of that y fact in stance being mentioned as an exceptive case, where you may deliver a list of jurors not with a copy of the indictment, but at a subsequent time, provided not more than ten days before the trial, emphatically proves that in all other instances the deli very of this copy of the list of jurors not with the in dictment would be bad, and therefore with the list of witnesses, which is as expressly ordered by the statute to be delivered with the indictment as the list of jurors, and respecting which there is no exception made, the delivery of that list at a different time from the indictment must be bad also. Peel's Act says that " a list of petit jurors, mentioning name, profession, and place of abode, shall be delivered at the same time as a copy of the indictment, which shall bc ten days before the arraignment. I notice the word arraignment, because, by the use of that word, the Act seems to adopt the construction put by Mr. Jus. tice Blackstone, and Mr. Justice Foster, and all the text writers, that ten days before trial means ten days before arraignment, for if the party is to have the copy of the in dictment for any useful purpose, he must have it ten days before he is arraigned and called upon to plead to it. 1 n „ quit this part of the subject by stating with the greatest confidence, that on the plain obvious construction of the Acts of Parliament, the accused is to have, at the Same time with the copy of the indictment, a list given him of the Jurors, and of the witnesses, and Peel's Act - only allows of an exception in that respect in reference to the list of Jurors only. With reference to proceedings in the Court of King's Bench itself, the section provides that in cases of high trcasoa tried in the Court of King's Bench, " b copy of the indictment shal l be delivered as aforesaid ; but the list of the Petit Jury may be delivered at any tune afterwards, so as delivered ten days before trial." But this does not touch the statute of Anne in respect to the list of witnesses ; a nd therefore a delivery of a list of witnesses after a delivery of a copy of the indict ment, though ten days prior to arraignment, is not a come pliance with the proeisioes of that Act. I have stated already an instance where the text hooks are certainly calculated to mislead upon this point, and though I am not bound to find any exc uses for those who acted under the advice of the ofjic . ll2/ the Cro wd as. THE SUN. LONDON, THURSDAY, JAiNTUARY 2, IP4O. there has been an attempt mad, to show that this tool , place out of inclu!gtoce to the priione:s, I think v ma' lot be miAt to 3nol! there a more probability that It took place out of an error cawed by tie omission in the text books. For even in the excellent work of that ablt and Industrious man, Mr. Sergeant Stephen, the saint omission is to be found ; and at the bottom of p. 279. speaking of Peel's Act, it urges the necessity of delivering the list of jurors with the copy of the indictment, but say.; nothing about the list of witnesses. I now come to thr. point of practice. The practice is to deliver both listt with the indictment. This practice seems to have pre vailed in all instances. On the trial of Hardy, Horne Tooke, and others, as reported in the 24th volume of State Trials, p. 19, after stating the proceedings, " in dictment found," surrender of one of the prisoners, as signed counsel and attorney, at their request, I find that on October 13th, Mr. White, Solicitor for the Treasury. delivered a copy of indictment to each of the prisoners, a list of jurors empanelled, and a list of the witnesses to prove the said indictment. Here your Lordships see that the Act was complied with, and you will find it complied with, I believe, on all subsequent instances, though I cannot pledge myself to that fact, as I Lave not beside me a full collection of State Trials. I brought down with me some of the most _ important. As your Lordships might see that I did not come prepared to make this objection, it was not until we examined the original papers down here that w• had seen that this irregularity existed a priori. But I will show your Lordships the course of every case that I have down here. On the occasiofis'of Crossfield's trial, it, 1796, which your Lordships will find in 20th vol. Stits Trials, page 1, there you will find the trial of Robert Thomas Crossfield at the Sessions in the Old Bailey. Here also the apprehension of the prisoner is stated as before. It is stated that on the 18th February Mr. White handed to each of the prisoners a copy of the indictment, a list of the Jurors empannelled, and of the witnesses to prove the indictment, and I have ascertained that in every one of the cases here cited tho same course was adopted. I find that the Attorney-General of that day, Sir John Scott, in opening the proceedings, mentioned this fact in particular to the Jury, which your Lordships will find in page 14. " Gentlemen, the individual accused meets the accusation lin the face of his country, and under circum stances which form a great protection to men when in such a situation as the present, which I cannot de scribe better than in the words of the Learned Judge whom I have already referred to The law in the case of high treason now provides that the prisoner should have the copy of the indictment for a certain number of days before he be called upon to plead to it, and it also requires that, at the same time, when the indictment is given to him, a list of the jurors shall be given to him, and that a list of the witnesses to be examined in proof of the indictment shall be put into bis hands." The prisoner, therefore, finds himself in a situation new to the law of England. Lord George Gordon was tht. first person on whose trial the Act first (same into ope ration, for the Legislature did not venture to apply this Act to the country in those times, but postponed the operation to a period which did not arrive till twenty years ago." My Lords, there is a trial which every one recollects connected with the rublic history of the country, and which is to be found in the same volume the trial of David MiLeanseep. 752 in the year 1797. In that report it is stated that the prisoner wss brought to he bar, &c., and that on Saturday, 17th June, a copy of the indictment, a list of the jurors to be impanelled, and a list of the witnesses, were delivered to the prisoner in the manner directed by the statute of Anne, sec. 11. Then, at the trial Of O'Quigly, 11 vol. 798, I find that on the 17th April, Mr. White, Solicitor to the Treasury, caused to be delivered to each of the prisoners copies of the caption and indict ment and lists of the petit jurors and witnesses. From the year 1791 to 1817, lam not aware—l don't recollect any important trial, except about 1803, that of Despard, which took place when I was at college, and though I have not a printed copy of the report here, I am sure my Learned Friends opposite would derive no benefit from it. Then, in a case reported in the 32d volume of Late Trials ( I have not the volume here, but am reading from the autho rised version taken in short-hand), it appears 1 Vol., p. 26, that on the 25th May, Mr. Litchfield, Solicitor to the Treasury, allowed to each prisoner a copy of the indict ment, together with a list of jurors and witnesses. The same circumstance is mentioned on occasion of the trial of Brandson, in the autumn of the same year. The case is re ported in the same volume of State Trials. This leads us up to the year 1120, to the trial of Thistlewood, and other State Trials, Vol. 33, where also I find, quoting from the short-hand version, Vol. 1, p. 22, that on the 3d April Mr. Maule, Solicitor to the Treasury, delivered to each of the prisoners a copy of the indictment, a list of jurors, and of witnesses. I might here close this part of the argument. I becauseel your it L showsordsh i p thee' attention iudioini tiohnas which But as I find the matter laid down in Lord G. Gordon's p lace,cue construction was then put upon the Act. There the Officer of the Crown applied to the Court, from the conviction that he was bound to take a particular course, namely, to deliver a list of the jury, with a copy of the indictment. That it should be done at the same time the officer felt, and I need not remind your Lordships that that which is true of the list of the jury must be equally true as to the list of the witnesses. This was an application to the Court to make an order on the Sheriff, and this, that the prose cutor might deliver such list to the prisoner, according to the provisions of the statute, to give to him a copy of the list of the jury at the same time with a copy of the indictment. The then Attorney-General said, that this seemed to be the only method of complying with the sta tute. The words aro that a list of the witnesses who should be produces on the trial should be delivered to the party indicted ten days before he was ar raigned. This, it was to be remarked, was be fore the party was arraigned—for there was no issue until the party was arraigned, and there could be strictly no jury until issue was joined. As to the other list, there was no necessity for an application for it to the Court, because the Attorney-General has himself the means of furnishing it. In a note to the case of Lord George Gordon, the copy of the original rule is pre served. It is set out in the note, and it is this. The rule is drawn up in the following manner Middlesex, the King against G. Gordon, Esq., commonly called Lord George Gordon (this is to be found in 648). It is ordered that the Sheriff of Middlesex do forthwith deliver to the prosecutor a list of the jury for the trial of the prisoner, mentioning their names and places of abode, in order that sch list may be delivered to the prisoner at the same time with a copy of the indictment." The Grand Jury here came into the Court with indict ments, by which it appeared that true bills had been found against John Aust, for a conspiracy ; true bills against Thomas Edwards, William John Llewellen, Evan Harris. and John Coles, for a oonspiraey ; true bills against John Gil:by, fur a conspiracy; true bias against Evan Edwards, for a conspiracy ; true bills against Frederick Turner, and Thomas Bolton, for a conspiracy and riot; true bills against John Bolton and Thomas Davis —no true bill upon the first count; true bills upon the third count ; and upon all the counts, against John Charles for a conspiracy and a riot. Lord G. Somerset remarked that the Grand Jury had no more bills before them. Mr. Bellamy said that those who were concerned for the prosecution ought not to keep the Grand Jury waiting. Sir F. Pollock resumed.—ln the case, then, of Lord George Gordon—l call your Lordship's attention to it, as most important, for there I find the form adopted by the Court itself, the Attorney-General then having been called upon to consider the way in which he had to comply with the statute—the Attorney-General then mentioned the only way, as it appeared to him, in which it could be done. The Court embodied that in their rule, and ordered that the list should be returned at the same time with the indictment. I consider that there is a recognition on the part of the Court of tbat which ought to be the practice. no There is o ther practice ; and if that is the practice with the list of the Jury, it ought to be so with the list of the witnesses. There is no distinction. I deny that the most subtle ingenuity can take any such to exist in the legislative enactment , as regards the one or the other. Not only is the prov ision of the statute c lear an d f ree from all doubt, but there is the practice invariable and un broken. It appears to be settled in the first instance, after very grave deliberation, that the law officers of the Crown in 1781, sanctioned by the Court, made a rule, calling upon the Sheriff to do that, which enables him to do that which the Act called upon him to do. I do not know whether it is my Learned Friend's intention, on the other side, to say that your Lordships are to look to the grounds of the provision, or to the object of the statute, or to the spirit in w hich it was framed, and that if you find that the Act has been substantially complied with, that , you will then proceed to try the priso n e r for his life. say here that the Act has not been literally complied with. With the object of the Act your Lordships have nothing to do here in public more than Mr. Justice Foster bad when he wrote about it in private. You are restricted by the necessity and the wisdom of the law; and here, on the part of the prisoner, I say that the law must be obeyed. Suppose it should turn out that Mr. Maule would be obliged to admit that he delivered a copy of the indict ' ment, and • list of the panel, and a list of the witnesses to the prisoner, but that he delivered them in the presence of one witness only. I put that case. What it might be said, would be then the prejudice done to the prisoner— what could he suffer—for he would get just as much in formation if he had the list of witnesses and the other do cuments—what more information could they give to him, by being delivered in the presence of one witness instead of two, and yet the law declared that they should be given in the presence of two, and not one witness ? I say, then, that they ought to come together to the prisoner, and if it be in the presence of fonts witness only, I have a right to say that there has been no delivery, in pursuance of the statute, as there ought to he. I say don't talk to me of the object of the statute, I claim the privilege of the law. I say, that if there were but one witness present, the law declares the delivery to be vicious. It is vain, and you can call no witness who is on the list, as there has been an imperfect delivery. But then if your Lordship; look to the reasons, against which however I still protest, there are very grave and very im portant reasons which may be found for every part of these provisions in that Act of Parliament. It was in tended a s against the Crown, and against the great influ ence and prerogative of the Crown ; it was thought that it was much better to have two witnesses rather than oue. So, my Lords, it was thought right, that the prisoner should have all those documents together, and not to be delivered to him by dribblets. The law required that the indictment should not be given at one time, a list of the i Jury at another time, and at another time perhaps, to I have one knocking at the dungeon. and after the doors had been closed, calling upon him at a late hour of the night, in order that he might receive from the Crown that which, within the rules of the prison, no sub ject could deliver to him. It is important that the de livery of the documents should be delivered together, be cause they are connected together. If there is not some thing to cr,nnect them together, how is the prisoner to know to what indictment the list of witnesses applies? I have here, my Lords, a list of witnesses, not, certainly, that given to Mr. Frost, but to some other prisoner; but they are all the carne.._they are all alike. They are printed, they aro the same; this, I suppose will not he denied. The Attorney-Genrral—l presum4, so ; as they .re the parn, ir eli,•tment Sir F. Pollock—The list of witnesses begin thus :—" A :ist of witnesses to be produced on the trial of John Frost, .n an indictment found against him and others in the sine indictment." It does not mention the nature of the barge. It does not say high treason ;it does not mend ion where or when the bill of indictment was found ; 'here is nothing to connect it with the indictment, ex eept that in pursuance of the statute, it bad been deli .ered along with it. All it says is, that it was merely .ipon an indictment found against him. There is, then, nothing but the connection together to show to what it refers. Charges for high treason in modern times are fortuaately very rare ; but in former times they have been exceedingly common. I hope such a period may never return again; but I believe that there are many instances n which persons were charged with high treason upon wo different indictments ; supposing then this—laxity I sill not condescend to call it—but supposing this illegality - were permitted to be practised, why might not happen, , hat one indictment wonid be sent with a list of the Jury. and another indictment with a list of witnesses, which did not refer to it, but to the first indictment? In such a case how was the prisoner to know to which indictment the list of witnesses referred ? Therefore it is that I say, if I am called upon to show it, that the Legislature has acted wisely and well in making this provision, seeing the scanty information which such a list gives. I say, that it is wise and just that the prisoner should have a list of the witnesses delivered to him at the same time with the in- dictment, in order that the prisoner may have the means of knowing that the list applies to the indictment and to no other. Thus, there might be persons in the un happy situation of the prisoner, and who night be subject to more than one indictment. A copy of an indictment might be sent with a list of the jury, but without a list of witnesses, and then there might after wards be delivered a list of witnesses without a list of the jury, or an indictment. Ido not think that this could be called a compliance with the statute. I suggest these as matters for the batter judgment of your Lordships; but after all I say that I haves right to stand upon that which is the law, and the prisoner is entitled to the benefit of it. Be the reason, the object, or the policy of the Legislature what it may, I will now state that, assuming that Mr. Frost had that, which he certainly had not, the benefit of Counsel being assigned to him at the very earliest moment, and that in accordance with the Act, a list of the jury and a copy of the indictment were sent to him, and that some days afterwards, I, as his Counsel, being still with Mr. Frost, and that then an officer of the Crown came to deliver him a list of the witnesses to be produced upon his trial. What is the course that then should have adopted? I have no hesitation in saying, with the statute before me as an authority— I should have said, " Put that list in the fire ; I give you hat advice with fearlessness, and your blood be upon my head if lam wrong." The provisions of the statute are ,slain and open, and any one who runs may read them. I shall now call your Lordships' attention to that which arises out of what my Learned Friend has uttered in the shape of a protest—that we are not estopped from con •ending that the objection comes too late, after he shall save condescended to give the evidence. I think it right ,o make a few more observations now. In fairness to -hose who represent the Crown, I do not mean to reserve any arguments for the reply ; but I state to your Lordships ; in the face of the country, and in the presence of the At torney aryl Solicitor Generals, every argument that occurs to me. I apps ehend, my Lords, that this is the proper time to take the objection, and that there has ,een no opportunity for taking this objection before. (here is no practice, my Lords, in the Judges' chambers upon the subject of high treason. You could not take out a summons at Sergeants'-inn for a re-delivery of a list, or to set aside the delivery of an indictment, in order that it may be re-delivered with a copy of the witnesses. Nor, my Lords, does any doctrine of laches apply to Sergeants'. inn. Here it is that the objection is to be made—here, where the Crown and the prisoner are on equal terms ['he law intended, in many respects, to place the Crown, nd the prisoner upon equal terms, and it has carried its tridulgetice farther; for, as Judge Foster remarks, in the ,lelivery of the list of the witnesses, it places the prisoner in a better condition than the Crown. There cannot be a doubt of it. But is not laches to be imputed here to the Crown, and this in a case of importance not only touching the life of the prisoner, but also in connection with the grave offence of high treason ? There have been no lashes on the part of the prisoner to prevent your Lord ships from doing him justice the moment the truth of the facts be made to appear to you. I say, then as I said at the outset, that ne witnesses can be called, for we have not had a list of witnesses, in accordance with the provi sions of the statute. Here the prisoner has bad no oppor tunity before now of making the objection. The Honour able and Learned Gentleman then proceeded to comment upon the evidence of Mr. Maule, and after stating that though he felt it to be his duty to make the objection that he had preferred on the preceding day, he did not hope to succeed in it. Such he said was not the case at present ; for there were in favour of the prisoner the clear and un doubted words of the statute. The prisoner bad lost the benefit of the objection yesterday , because ~ the practice that had prevailed was against it ; but to-day, sa id h e, my Lords, the statute is not to be fritted away by construction. I know that you are incapable of that, especially where the practice is entirely with you. I do, then, submit that the prisoner is entitled to the benefit of the objection— that the witnesses cannot be called—for the Act of Par liament has not been complied with, and the jury will, under your Lordship's directions, pronounce a verdict of " Not Guilty." Mr. Kelly followed on the same side, and contended that it was imperatively necessary by the statute of Ann, enacted on the death of the Pretender, and never since deviated from, that the list of witnesses be delivered to the party indicted at the same time with a copy of the indictment. It was impossible that two constructions could be placed upon the provisions of a statute which enacted that copies of the two lists should be delivered at the same time as a copy of the indictment was de. livered to the party indicted, " on payment of certain fees." This was the provision of the statute, and it de clared that the lists should be delivered not in so many days, or under such and such circumstances, but " at the same time when a copy of the indictment was delivered to the party indicted." Then came another provision, en acting that the copy of the indictment, " with the lists," should be delivered ten days before the trial, and it was only by inference that the interval of ten days applied to the lists at all. Was it possible to at tach any but one meaning to the provision of the sta tute ? Did it mean that a list of witnesses was to be delivered at the same time as a copy of the indictment or not ? If it did not, where was the provision for the delivery of the lists? That to which he referred was the only provision foi the , uhjee.t ; and then, if it were in quired bow long before the trial the lists were to be de livered, it was found that by their being coupled with the copy of the indictment they could be delivered ten days before the trial. This statute first came into operation on the trial of Lord George Gordon, in 1781, and although we have not such full reports of those proceedings as of subsequent trials for high treason, it was manifest from the records which existed of them, that the Courts of Law, having its attention directed to the statute, decided that these documents must be delivered at the same time with a `copy of the indictment, aad a rule of Court was drawn up to that effect. Next in order came the trials of Hardy and Horne Tooke, in 1794, and it was expressly stated in the very accurate report of the late Mr. Gurney, that ten days before the trial the solicitor for the Crown delivered a copy of the indictment with a list of the jurors and witnesses to the party indicted. The same line of proceeding was ob served in the cases of O'Quiglev and others in 1798. There was then a long interval without the occurrence of any similar case, with the exception of Despard, of whim' case there was no part bearing upon this point ; but in 1817 the course for which be contended was pursued in Wat son's case. Again, in Brandreth's case, in the same year, the same proceeding was adopted, and likewise on the trial of Thistlewood and others in 1820 ; and this, he be lieved, closed the catalogue of trials for high treason in this country until we come down to the present time. Thus, their Lordships had before them one regular un broken series of precedents, beginning in 1786, when the Statute first came into operation, and ending in 18'20 with the last case to which it was applicable. In all these cases the Court, of course, had acted, as he submitted, in deference, as a Court was bound to act, upon the plain in telligible letter of the Statute, and copies of the indict ment and lists of the jurors and witnesses were de livered together to the persons indicted ten days be fore the trial. The Counsel for the Crown now called upon their Lordships for the first time to disregard the words of the Statute, and to decide upon what it might be convenient to them to call the moaning of it. In referring to recent decisions, a beautiful and a glorious contrast was to be found between the decisions of those venerable persons who sat upon the Bench at that period, and those of the Judges before the revolution in 161111, which, he grieved to say, had raised a monument of shasne to the judicial institutions of this country. The Judges of the land were ever ready, before the Revolution , to pervert the rational mean i ng o f statutes in favour of the Crown. The 7th Ed ward 111. c . 3. sec. 1, gave to persons indicted for high treason a true co py of the indictment, not a list of witnesses--that was not yet included—full five days before their trial. The first decision under this sta tute was Gregg's case in 1707, when there was holden a meeting of the twel ve J u d g es, and they all laid it down that it would be safer to deliver a copy of the caption as well as of the body of the indictment. It was not easy to see how a prisoner could be prejudiced by the want of a copy of the caption, but this decision of the twelve Judges was in a case where no prejudice could easily arise; all the de cisions upon this statute also showed that it was looked upon as a safeguard and a shield against the power of the Crown, and that it was uniformly construed liberally, and to the greatest extent of which it was capeble in favour of prisoners. Supposing that there had been two indictments against the prisoner, whi c h might have been the case, the most serious prejudice might have arisen to him from the non-compliance with the words of the statute ; for the provision, was not merely to give time to the prisoner to inquire into the character of the witnesses, or the preju dices or opinions of the jurors, but also to enable him to inquire as to the particular facts witnesses were to prove, and that could only b e e ff e cted by the delivery of all the documents at the same t i me , The Learned Jud ges h e re so that he might know that they all referred t o t h e sam e transaction. signified their wish to retire for a short time, and, upon the application of Sir F. Pol lock, permission was granted to the Jury also to retire to take some refreshments. Advantage was taken of their absence to throw open the windows and admit a stream of fresh air, which was an agreeable relief to all present, the heat o: the Court up to that moment having been most intense awl distressing, Orr the return of the Judges, Mr. Kelly resumed his address. He submitted that if their Lordships adh ere d to the words of the statute, their duty was simple, easy o f performance, and clear beyond doubt. They had only to inquire whether a copy of the indictment, with a list of the witnesses, and a list of the jurors, had been delivered to the prisoners at the same time, and if so, whether that time was ten days before the trial. But the moment they departed from the strict provision of the statute, a door was opened for a series of collateral inquiries, which would be • rectal ineonveuie , it, r.d hich the law hzd 11 , 1 maeliinory to c•kly on 0 etpate from some o, ;0, Ail 1•. - . -,- neral. It was, that it was too late ; t 'tat this was not the proper time to make the objection. He hoped to convince their Lordships, not only by reason, but also by authorny, that this was the time, and the only time. He would ad mit, for the sake of argument, that a party was not entitled to the copy of an indictment after he bad pleaded; but now the question was, was the time past for making the ob jection ? In order to spare himself the necessity of argu ing the point, he would at once refer their Lordships to an authority that the time for objecting was when a witness came into the box to be examined. On the trial of Wat- son, a witness, o: the name of John Crisp, was objected to by Mr. Wetherall and Mr. Copley, because his descrip tion in the list was, lately abiding at Tyler's-court, War dour-street, in the county Of Middlesex, grocer ;" and a it turned out that he had not resided there for about three months, the objection was allowed by Lord Ellenborough who decided that the witness could not be examined. Mr. Justice Williams—The same objection was taken on Brandreth's trial, and the answer was not " You are to* Ws, but the description is enough." Chief Justice Tindal—Those were objections to single witnesses, and did not apply to the list of witnesses. Mr. Kelly submitted that there was no difference in principle between an objection to a single juryman, and an objection to the whole list. The Grand Jury here came into Court, and returned true bills against Benjamin Richards, for conspiracy and riot ; Isaac Pillinger, for burglar, ; Isaac Pillinger, for larceny ; and Thomas Llewellyn, for conspiracy and riot. Lord Granville Somerset—Those aro all the bills we have before us. Mr. Phelps, the Crown solicitor, said there were other bills being prepared, and they should be sent up as soon as possible. Mr. Kelly, in resuming his address, said he would call upon the Court, and upon the Attorney-General in this most important case, where the life and death of the pri soner were in the scales, to show him any provision which compelled the prisoner at any time, until he was confronted with the witnesses, to make any complaint that the statute had not been complied with. On these grounds he sub mitted to their Lordships that it was not too late to make the objection; but that, on the contrary, the proper and only time was when a witness came into the box to be examined. The Attorney-General then rose and said, I have no right to complain of the length of time which has been occupied by the arguments advanced by the Counsel on the part of the prisoner. At the same time it gives me satisfaction to feel, that in answering those arguments I shall occupy by no means so large a portion of your Lordships' time. It seems to me, with great respect for my Learned Friends, that some of their observa tions could hardly be expected to make any impression upon your Lordships, and that there would have been ample opportunity nei rafter for them to have dilated upon the nature of the offence with which their client is charged, the consequences of that offence, the power of the Crown, and the functions of the Attorney-General. I think likewise that my Learned Friend (Sir F. Pollack) might have abstained from stating with so much confidence his own private opinion, because the private opinions ot Counsel at the bar, whether on the one side or the other, ought not to have, and in fact have not, any weight with the Court. Y ,ur Lordships will also recollect that my Learned Friend argued with the same coo fidence, and in pr;-e;seTy the same tone, the objection which he made yesterday—the objection that no chal lenge was allowed to the Crown without cause being immediately assigned—an objection which has been frequently made, and when made always overruled, with. out an answer being required from the opposite party. I think, too, my Learned Friend Mr. Kelly might have spared your Lordships those observations as to your being called upon by the Attorney-General to fritter away an Act of Pariiameiat to the prejudice of the prisoner. Goe forbid that I should ever make such a very unworthy at tempt. But if I were to make such an attempt. my Lords, it would recoil upon myself and cover me with disgleice What I call upon your Lordships to do is to see what the meaning of the Legislature is, and to see that the prisoner shall have the full benefit which the Legislatur, intended he should enjoy. I ask for nothing like an equi valent, unless he shall have the specific advantage which the Legislature intended for him, and if this objection be now brought forward at a time when it can be lawfully made, the objection must prevail. But when your Lordships come to look at the Act of Parliament, and see what was the meaning of the Legislature, you will see that its in tention has been fully and amply complied with, and that the prisoner has had all the advantage which the Legislature intended. My Lords, I do not rely upon acquiescence ; I do not rely upon quibble ; but at the same time, I think it material that your Lord ships should see, and that the country should see, the exact circumstances in which this proceeding has taken place. Can there be the smallest doubt about the fact, that Mr. Maule, acting for the Treasury, believed, and had every reason to believe, that Mr. Owen was the soli citor for Mr. Frost, and all the other prisoners ? Mr Owen was exceedingly desirous that a copy of the indict ment should be served as soon as possible, that the service should not be delayed until the list of witnesses should be completed ; and Mr. Menlo, to give Mr. Frost and all the prisoners an additional advantage beyond what the Act required, served a copy of the indictment on the 12th, although the list of witnesses was not prepared at the same time. The complaint now is, that the copy of the indictment was served too soon, If the service of the indictment had been delayed until the 17th, when the list of witnesses was furnished, there could have been no com plaint. It is not disputed that if the copy of the indict ment had been served at the same time with the list of witnesses, it would have been in ample time, and there fore the complaint really is, that the copy of the indict ment was served five days before the list of witnesses, and that five days sooner than was required by law the prisoner was put in possession of the particulars of the charge against him. -It is not disputed, or at least I have a right to assume, that this list of witnesses was served under such circumstances, as that if the copy of the indictment had been served at the same time, no objection could possibly have been made to the list of witnesses. Then an objec tion has been hinted at with respect to the description of Samuel Simmonds. I fully allow that that was the time to make any objection of that nature. I will not say that it is too late to take an objection to that which is to be found as:any part of the contents of this document ; but the ques tion is, there having been a service on the 17th of De cember of the list of witnesses, is this trial now to be stop ped by an objection to a particular juryman on a ground which would have entitled the prisoner to have challenged the array, or to have refused to plead if this objection be good. If the objection be well founded tie prisoner on his arraignment might have refused to plead, or on being placed at the bar after having pleaded hr might have said, " I am not to be put upon my trial, be cause the requisitions of the Statutes have not been com plied with." This is challenging on grounds which, it the objection be well founded. would be challenging the array sf the Jury. The old law, which was familiar to their Lordships, drawing the distinction between objecting to the array and objecting to an individual Juror will be e good guide to your Lordships, and enable you to come to a sound and satisfactory decision on the occasion. My Lords, there arc two grounds upon which I sub mit that we are now entitled to exassine as a witness Samuel Simmonds. Samuel Simmonds is given in the list of witnesses which was served on the 17th of December last, 50 that the prisoner had not only ten but fourteen days' notice, that Samuel S)niriionds would be called against him as a witness. Therefore, there is no pretence of any kind for saying that there has been a want of suffi cient notice. My Learned Friend can only say this, that there has not been a literal compliance with the Statute I think I shall show your Lordships that the Statute ha been strictly complied with, according to the intentions ot the Legislature. As to any ground for departing from it there has not been the slightest. On the 12th of Decem ber a copy of the indictment was served, and on the 17th. fourteen days before the trial, a list of the witnesses was delivered and there was ample time to investigate the character of the witnesses. I say, then, that un. der the circumstances, Mr. Frost and the other pri soners have had the full benefit which they were en titled to claim under the Act. I say, my Lords, that for two reasons, we are now entitled to call Samuel Simmonds as a witnese. The first is, that after plea has been pleaded, and after the jury have been charged with a prisoner, an objection cannot be made to the manner in which the list of witnesses may have been de- Frered in pursuanoe of the Act of Parliament, and no intrinsic objection could be made to the list. I admit that it might be made ; but any intrinsic objection as to the manner in which the document has been served is not admissible. It would go infinitely beyond what Sir Mi chael Foster anticipated, in his observations on the law of treason, if a prisoner could lie by, could plead, could allow a jury to be sworn, and the case opened against him, and when a witness came up to be sworn, say, " There has been some irregularity in the mode in which I have been served with the copy of the indictment, or the list of jurors, or the list of witnesses." That has been the argu ment used by the Counsel on behalf of the prisoners ; and my friend Sir F. Pollock said several times that the lists of jurors and of witnesses rested on the same principle as the copy of the indictment, and that what was true as to one was true as to the other. Now, my Lords, see what would be the consequence of all this. Sir F. Pol lock requres that all these documents should be served in the same manner, before the trial, under the statute of Anne. Sir Robert Peel's Act, the 6th of George IV., requires that two of the documents shall be delivered ten days before the arrignment. It leaves the third, the list of witnesses, as before ; but with regard to the indictment and the list of the Jury, it requires that they shall be de livered ten days before the arraignment. Mr. Baron Parke—The list of witnesses it leaves as it stood under the statute of Anne. The Attorney-General—lt leaves the list of witnesses as it stood under the statute of Anne, but it requires that the copy of the indictment and the list of the Jury shall be served ten days before the arraignment. The statute ot Anne required that all three documents should be served ten days before the trial. The list of witnesses is left by Sir R Peel's Act on the same tooting, but the indictment and the list of the Jury are to be delivered ten days before the arraignment. Here is evidence of the simultaneous manner in which the three docu ments are to be served. Why, in that very Act of Parlia ment there is a distinction between arraignment and trial. The copy of the indictment and the list of the Jury must be served before arraignment. The list of witnesses may be served after arraignment, if it be ten days before trial. " Trial" in the 6th of George IV., has the same meaning as " trial" in the statute or Anne. Here is an actual severance by the Act of Parliament of the simultaneous see. vice, if simultaneous service of the three documents prier to the trial was ever before required. What I have been endeavouring to enforce upon your Lordships is, that by the statute of Anne the three documents were placed upon the same footing, and they were all to be served ten days before trial. If it be necessary that they should all be served on the same day, then the service of the in dictment is bad if it be not on the same day with the list of the Jury, and the service of the list of the Jury is void if riot on the same day with the list of witnesses, just as Inneh ' " 'oe iouoe auer ph - sa plead , d; and that after a prisoner has allowed him. golf to be placed upon his trial without objection, he hes a right to say, ‘• I ought not to be placed in jeopardy, becAusa I have not been served with a copy of the indict ment sr with a list of the Jury," ka much w , h. has a right to say, " I ought not to be pl.,eeo in jeopardy hecau,e I have nut been ►erved with a list of tbp witnesses.'' Now it has been frequently decided as your Lordship,: are aware, that after a prisoner has pleaded. or after ne has taken his trial, he cannot object to the copy of the indict ment; and in Foster's work, p. 230, c. 3, it is laid down thus : " If the prisoner has pleaded without having the copy of the caption, it, is too late to Mike that objection, or any other dependent on that deficiency ; for. by pleading he admitted that he had received copies sufficient for the purposas referred to in the Act." It is clear, therefore, that no objection can be made as to the service of the copies of the indictment after the prisoner has pleaded, and it is equally clear that, if the argument of my Learned Friend prevails as to the service of the witnesses, that the service of the copy of the indictment is, per se, a nullity. My Learned Friend has said that if he had been present when the list of witnesses was so served, he would have advised that it should be put into the fire ; but if so, he should, under similar circumstances, have advised that the indictment, if served by itself, should be put in the fire. But could he object to the indictment because the copy served was not accompanied by the list of the witnesses and the panel, after the prisoner bad pleaded ? Certainly not. Can he object to the panel after the Jury has been charged with the indictment, and the prisoner put upon his trial ? and can he at this time, after the Jury have been charged with the indictment, object that the trial shall not proceed, as the prisoner has not the safeguard which has been referred to, by which his innocence might be proved ? My Learned Friends say, " Will you proceed with this trial if this sta tute has not been complied with ?" And, according to them, even after a verdict has been given, it would be open to objection on these grounds; and that English Judges, knowing the statute, will not permit the course of justice to proceed, if it has not been literally complied with. Mr. Kelly—l said no such thing. I said that the time to take objection to the list of witnesses is when the wit nesses arc called to be examined. The Attorney-General—l say that my Learned Friend, Sir F. Pollock, put the list of witnesses and the list of the Jury on the same footing ; and I say that the statute places all the documents on the same footing ; and my ar gument is, that if the objection to she list of witnesses can avail now, an objection to the indictment, or to the panel, would avail equally at this time ' • and, my Lords, it is l a id down by Foster, that " alth ou gh the Act is so worded, still the construction of it is, that exceptions must be made before the plea of the prisoner ; and in the ease of Sulli van at the Old Bailey, in 1715 and it, La:rd's case, the Court refused to allow exceptions to be taken after the plea. It is true that in Braedreth's and Runk wood's cases, they did allow exceptions to be taken after the Jury was sworn ; but this was an indulgenCe in consequence of' a new Act the practice of which had not been settled." Now, my Lords, the practice which the law has laid down is. that such exceptions shall made before the trial begins ; sod it is quite clear that the intention of the Legislature was, that they should be :nade before trial, for the Legislature hes plevided oefore trial the prisoner steel know who are the Jury arid who are the witnesses by whom the charge against him is he estNbiished ; and did the Legislature ever think that :he Act was to be used for the purpose of defeating justice, and its provisions used as traps by means of which the guilty might escape? No, my Lords, it was meant as a ,afeguard to be thrown round the person of the accused; :et; he cannot convert it to a shield for his „wilt, or a sword ay which the law oaf the land might be assailed. MI, Learned Friend has cited an old book of practice, which aas afforded me the means of aesweritee the question which has been addressed to me by my - Learned Friend Mr. Kelly, ahe said, Let the ktorney-Generel tell ue when the objection could be preporly made with re pea to the list of witnes-es? ' I 'nav, - - no objection to thswer this question. In fact, my Lords, there would have been no occasion for en attorney to draw np ei affidavit—no business which would have required the outlay of a fee—there would have been so occasion for any application to postpone the trial ; but if Mr. Frost, when called on to plead, had said, " I have not received a copy of the indictment, I have not received a copy of the panel. or of the list of witnesses, according to the form provided in the Act of Parliament"—he had only to say these words, and on the Crown would have been thrown the onus of proving that the provisions of the Act had been complied with ; and unless we clearly proved to the satisfaction of their Lordships that the provisions of the Act had been complied with, his Lordship would have said to Mr. Frost that he was not bound to plead. Before he was arraigned, the prisoner was bound to sad: that he had not received the benefit of the statute, and if it were not then proved that he had, the Court would be bound to deliver its solemn judgment, that he was not bound to say Guilty or Not Guilty. But I will:give Mr. Kelly another opportunity when the exception might have been taken. After the prisoners had pleaded not guilty, and we had gone through the list of 317 jurors, and the prisoners had stated that they would be severe in their challenges, I applied to the Court that Mr. Frost should be placed upon his trial; and the Chief Justice, the organ of the Court, said in acquiescence, . " Bo it so." On my application, that Mr. Frost should be put upon his trial he might have objected, through his Counsel, that he had not received a copy of the indictment, or of the list of witnesses, or of the panel, and before an order had been made that he should be put upon his trial. In that stage of the proeecdings the burden would have been thrown upon the Crown to prove that the statute had been com plied with, and unless we proved by evidence that it had been, the Chief Justice would not have pronounced an order that Frost's trial should proceed. But his Counsel were well aware that if the objection had then been made and supported, the effect would be only to postpone the trial for ten days. That, in fact, is all that was in. tended by the Legislature—that ten days before trial the prisoner should have such information as he might require for his defence. But still my Learned Friends made no objection to my motion, and Mr. Frost was placed at the bar to take his trial. Still there was no objection. We proceeded to the ballot for the Jury, in which proceeding many hours were occupied, and no objection was made. After that the Chief Justice said that it was the opinion of the Court, that, although the Attorney-General should not open the case last night, still the Jury ought to be charged with the indictment. The Jury was sworn and charged with the indictment accordingly • and this morn ing, for the first time, we hav e h ear d o f this objection. Ample opportunity had existed to have brought it forward .n various occasions; but it did not suit the convenience of the prisoner to do so ; for before now the exception, it made out, would only nivt, posponed the trial ; but now tt is sought to stop the proceedings, and to defeat the course of justice. A true bill was at this time brought in against John Partridge for conspiracy and riot. The Attorney-General proceeded-1 ask, my Lords. what right my Learned Friend, who represents the pi sorter, had to join in the selection of the jury, to.exhaust his thirty-five challenges, to allow the jury to be sworn. and to be charged with the indictment, when he knew of this objection, and meditated making it when the giving effect to it would stop, the course of public justice ? !- that, I ask, the intention of the Legislature? My Lords, after the jury had been charged with the indi tment, wriuld it have been competent fur my Learned Friend to have said " I admit that all the documents were served at the same time, and, prima facie, the Act of Anne has been complied with ; but I mean to show that one of the witnesses in ,shose presence they were delivered, in accordance; with that Act, was infamous; and I will produce the re cord of his conviction for felony or fraud." Now, your Lordships will bear in mind that the proceeding must :eke place in the presence of two credible witnesses, and -f such an objection was made before the prisoner was placed on his trial it would not be unreasonable that he rhould show that one of these witnesses was infamous, and to prove it by the record of his conviction ; but after he had pleaded, and the Jury had been charged with the indictment, could my Learned Friend say that we could not call Samuel Simmonds, because one of the witnesses who was present when the three documents were served was convicted of felony ? All the objections are to the whole list of witnesses, showing that there had been no service of the list according to the statute, which says that it shall be served ten days before the prisoner is arraigned, that is, before he is on his trial, and the Jury charged with the indictment ; but my Learned Friends have cited no authority to show that after the Jury have been so charged any objection can be made which would go to the whole list. And why not ? because there is no such authority ; and from the trial of Lord George Gordon up to the present time no such attempt as this, to go to the validity of the whole list of witnesses has been made. My Learned Friend has relied on Crisp's case, and as to his being admitted on the trial of Watson in 1817, but such cases could be largely multiplied, and their Lordships' experience in cases of treason must have furnished them with repeated in stances in which objections to particular witnesses were made on account of misdescription, and the proper time for this is when the witness is placed in the box. I ad mit, that if in the list of witnesses served upon the pri. goner there had been any misdescription, that those wit nesses whose habitations or their professions had been im properly described, could not be produced. The objection as to the list of the witnesses, and as to the list of the Jury, rests upon the same clause in the Act of Parlia ment which requires that they should be given ten days before the trial. I have now to consider how this objec tion ought to have been made, if it had been made, before arraignment. I think, if it had been so made, I can show your Lordships that it must have been overruled. I say, then, that if the objection had been made at the proper time, your Lordships must have decided that the Act of Parliament had been complied with, and the intentions of the Legislature fulfilled. I allow that you are no: to sub stitute yourselves for the Legislature, orto give something to the prisoner as good as that which he claims. 't hat which he is entitled to claim is that undoubtedly which he ought to enjoy. These three documents, it is said, it is necessary should be served at the same time. I find great difficulty in discovering what is meant by the same time. My Learned Friends will not say that they are all to be pasted to the same piece of paper, or that it is at all ne li cessary to have them tacked together. I suppose that first a copy of the indictment may be served. and I suppose that after a few minutes, and the party remaining in the same room, that then a copy of the Jury list may bo served, and then the party may be served with a list of the witnesses. If all that might be done at an in terval of five minutes, I suppose it might else be done after the interval of a quarter of an hour, or of an hour, or of a day. What is the rule, I have frequently been asked? and I have no difficulty in saying it—that there shall be ten clear days before the party is put upon his trial; and when he shall have all the self-same advan tages which the Legislature intended he should have He is to be served with a copy of each document in sufficient time. Looking, then, at the whole of the clause , and to the whole of the S tatute—the 7th o f William 111., an d the 7th of Queen Anne, which are pari maieria. we come then to the consideration and the prosier construction of EVEN IN' UDJ 'MON "*- IT . by• - the statute thaet each document should be given tere days before the :i. trial, at the least. It was, he said, allowet 1, that under the statute of William, the panel might be extended. But here, what might be the case—if, instet td of 347 name s en t h e se e r if returned but forty Diliue3, and thery-tive bviiig struck off by the pricomer......would Mr. Frost then say that. he was entitled to era acquittal ? Would lea - the Court. oii Ole contrary, order a new pre- I cept .. li d, if so, a nee' panel abouk be made out, tied copy of the list of the Jury should be served: upon th e pri soner. In that case, should he be also at the same time served w-th a eepy of the indictment, undi r which he had been arraigned and a new list of the witntssea to be eaa. mined against him ? The doing shy such thiog—and it was that which was conteidlA for on the otiaer side—would be a mockery upon legislation. Sir F. Pollock refurned to the case of H ar dy, showing ' that according to the dates when the panel was amended, the prisoners were a second time served with copies of the ' indictment, and of the list` of witnesses, and that was done on the same day. Baron Parke said there could be no doubt but that there had bean a second delivery. The Attorney-General remarked that if that were so, he could not avail himself of the point. The Learned Counsel then proceeded to advert to the authorities quoted by Sir Frederick Pollock, and to contend that the balance of authorities, and the evident meaning of the Act, was to secure to the prisoner that each list, as well as a copy of the indictment, should be delivered ten days before trial or arraignment, and not that all three should be served at the same time, and that the proper time to have raised any objection was before the Jury were charged with the indictment ; when, after some consultation between the Judges, 'ne was stopped by— Chief Justice Tindal—lt seems to be that the prisoner's • Counsel have raised a very great doubt, and the point is one which requires serious consideration. The Court is. prepared to say, that the objection made by the prisoner's Counsel on behalf of the prisoner involves a question ein which no direct decision has taken place, and calls for ye ry serious consideration. It is the more important, as the same objection may apply itself, under existing circum stances, to several other cases. We propose, therefore., to take a course, in the present case, to prevent the possibi lity of any hasty decision operating to the disadvantage or prejudice of the prisoner on the one hand, or to the pre judice of public justice en the other. We shall, therefore, allow the trial to proceed, and take the opinion of her Majesty's Learned Judges on the subject, in the event of the result of the trial on the present occasion making such a reference necessary. The Attorney-General—l am perfectly satisfied, my Lord. C6ief Justice Tindal—Then to-morrow we will pro ceed with the evidence. The Court rose at a quarter past sir o'clock. CORN AVERAGES 6r:NER A I. AVERAGE PRICES OF BRITISR CoitN, For the Week ended Dec. 27, 1t.13V, made up from the ReturnS at the inspectors ii the different Cities and Towns in Et labs anti wal,s. per Imperial Quarter. Wheat 66s. hi. 1 Oats II rley CU. I . sd. Rye .., . 3ik. dcf. I Pew 441. 7d. DIPEICLAL AGGICZQATE .AVEi.P.GR:s OP ;CHIC fIII wrty.zl PRECEDING. Wheat 66x.1 d. ► Oats ~, Barley 403. Ild, I Rye 25! , . M. ( Beans.... .... .445. sd. 183. 3:i., Pease.... ..... 5d DUTIES ON FOREIGN cfricw. Wheat 2l.'s. Fir'. I Oats Barley ls 10.1. Rye ..... 6d. I Peaae ss. Pd THE MARKETS. OAL A K ET. 5, ( 1 ' . Bell, Robson k Co. Hartley Pt r Carr's }tura y 2O C l'ontop Windsor Walls ind Heaton Wall, End Hilda ;lent Main ..... . y l 5i VS ails Endliraddyll'sHetton 23 9. Walls End Haswell 24 t Walls End Hetton Wzl l s End Lainliton 44 ti Walls End l'embertrini Walls End Russell's Hetton 24 31 Walls ERG 51M:411.'9 ...Li i! ' , hips arrived sinec d Walla End Whitwell '23 ails End Hartlepool '24 9 W.. 115 End Mel. , ide ...... 14 9 Walls End Barrington Tees Walk End Barrett _ _ _ Walls End Clarence Te. a $ I Wall. 'End Seymour Tose Walis - End South Durhauk 23 E Walls End Teec l2B Valle End Tees Hetton 9 , 1 3 Blythe El scar ikt Walls End Devonshire !1 ti lot market-A ty 175. COUNTRY CORN MARKETS. Wheat. f Barley. 1 Oats. Beans. Pease. -- ---' — Per Quarter. s. to s, s. to ~ s . t o s . a. to s. s ;,,, s. Boston Braintree 63 73 36 41 28 34 33 44 40 44 B ighton 64 76 44 47 26 '29 44 46 4$ Cambridge — 66 45 26 35 46 Chichester 65 72 38 44 28 29 43 44 41 42 Dunmow 6O 70 38 51 26 33 36 44 42 48 Grantham - Grimsby 5B 70 35 39 22 26 42 44 Hailsham Hitchin 64 70 34 46 24 32 25 30 Ipswich 62 70 36 32 24 28 38 4$ 38 42 Lewes 65 70 43 22 29 34 40 Lynn 6O 68 35 46 25 31 38 44 —•-• Maidstone B9 76 36 39 26 32 40 50 Norwich Petworth Rom ford 56 74 38 46 24 32 34 49 68 4b sandwich 5B 76 28 32 17 28 40 42 Thetford 67 68 39 42 24 30 44 42 $3 44 Wisbech . 54 72 36 42 28 no 44 45 Witham 63 73 34 47 26 $4 38 46 44 $ Yarmouth 62 70 33 35 26 32 38 40 40 44 LIVERPOOL CORN MARKET.—Dee 30. WHEAT, English, White, per 701 b. Red Scotch, Welch, and Manx . 1 9 10 • Irish, White 1 p II 0 ---- Red 7 9 0 Foreign ...... OATS, English, Welsh, and Scotch, per 451 b 3 4 1 lrish Foreign BARLEY, English, Malting, per Imp. quarter 4l 48 0 Scotch and Irish, per 60th.. - Feeding 4 4 6 BEANS, English, per Imperial quarter 4B 52 • Irish, &c. Foreign 46 40 8 PEASE, English, per Imperial quarter 44 49 I Foreign FLOUR, English, per 2801 b. Irish ---- 51 OATMEAL, English and Irish, per 2401bs 44 36 9 INDIAN Coax, per 4801 b. -". 42 44 8 RYE, per Imperial quarter MALT, per Imperial quarter HULL CORN MARKET. Wheat, White (per Quarter) 62.. 5Ps. 725. Red Foreign ......... ... 110 e. N's. 645. .. 545. 64e. 74.. Barley, Mating Grinding s. Ms. Oats, Britiqh Foreign (in bond) —l —5 —4B Beans .. ... .. Pease, Grey Blue and White s. —5. — 4 . Linseed ... . Flour o>er 5ac k. . ......... —«. ."-.os. 555, Rapeseed (per 10 quarters) 221. 247. 951, ---... ..... ..- ._ ... CHELTENHAM MARKETS. Per Bushel a. d. to s. d.,1 P.: Cr, 1 ~..: c, Wheat darley 4 U 7 • Mutton Oat.. 36 56 t V et4l dear, Poase 5 0 90 I Lamb • ( flay st . IN. to 5/ .4, :Id. per ton. CAN'rERBURI MARKET. 70s. to 7 3c 5'35. to t.t4 • ......... 03e. Kirley, 11alting --. 355. to 415..,,... Grinding.. - -s. Oats Beans — s to --a Ifs. Pease 435. to 455. Grey........... 40e. CHELMSFORD MARKET. Wheat, White 7O to 73 Oats Red Barley Chevalier 41 41 Beans, Tick Grinding tO to. -I to •--4. to —.ll_ tO to 495. TEETOTALISM AND SUICIDE.— On Tuesday afternoon an inquest was held before Mr. Payne, at the Dun Horse, High -street, Borough, on the body of Witham Caton, aged 26. a ehairwaker, who destroyed on Sunday morning, by taking laudanum. It appeahed from the evidence of seven witnesses that de teasedkhad been an inveterate dram-drinker until within the last six weeks, when he became all of a sudden a strict " tee-totaller:' From that time he was observed always buried in deep thought and mentally and bodily enfeebled. Fear had succeeded his former elasticity of spirits. In consequence he neglected his work, pawned his tools,, and in his destitution even the clothes off his landlady's bed. He often expressed his dread of trans portation for having pawned the property of others. It was proved that on Saturday evening he bought lauda num, and at three o'clock next morning Mr. Wood, surgeon, of Union -street, found him labouring under the effect of that narcotic. The surgeon said that the sudden abstinence from stimulants produced extreme dejection of mind until the system became inured to the change. It was very dangerous to leave thorn off too suddenly, and drunkards should wean themselves by de grees. Deceased expired at eleven o'clock on Sunday forenoon. Verdict, " Temporary Insanity." A Correspondent complains of the want of police in Chelsea, and states that his servant ,, irl was a3saulted about ten o'clo c k on th e l ast n i g h t of year, by a well-dressed man, and though she roared out " Murder!' for nearly ten minutes, no policeman came to her assist ance. The gentlemen, however, it appears, was no formidable assailant, for she at last tossed hirn'into the kennel. GOLD WATCHES, £7. 7s. each. Highly finished Horizontal Gold Watches, jewelled in four holes, with enamel dial, hand to mark the seconds, &c. Seven Guineas each. These elegant little Watches will be found excel!** time-keepers, and a printed warranty is given with fixed term on which they will always receive any attention required. T. COX SAVORY, Watchmaker, Jeweller, and Silversmith, 47, Cornhill (Seven dodrs from Gra cechurch-street), London. N.B. Second-hansl Watches purchased in exchange. IRTHS- On the Ist u lt ., at Mes si na, Airs William G. Beek, of a son. On the 28th ult., at Barnsbury-park, Islington, Mrs. S. R. Toms, of a son. On the 31st ult., at John-street, Bedford-row, the lady of Richard Lambert, Esq., of a son. On the Ist inst., the wife of John James Wilson, Esq., Bur g son, of Northampton-square, of a son. ALARRIED. On the 31st ult., at Came. Dorsetshire, the Rev. Charles George Newcomb, son of J. Newcomb, Esq., of Upton, Bucks, to Emily Georgiana Elizabeth, youngest daughter of the Right Hon. and Rev. Lord William Somerset, and grat.d-daughter of Henry, fifth Duke of Beaufort. On the Ist inst., at leer, Lumisden Strange, Esq., of the Madras Civil Service, eldest som of Sir Thomas Strange, to Mary Rosa, widow of the late Lieutenant W. Hodgson, Bengal Horse Artillery, and daughter of the late Captain Samuel Tickell, of the Bengal Army. 1!? On the 18th ult., Mrs. Louiza Pittar, widow of Mr. Parke Pittar, late of John-street, Adelphi. On the 24th ult., at Plymouth, Eleanor, wif e of William Courtis, Esq., of Atheneum-terrace, aged 65. On the 27th ult., at Twyford, Hants, Elizabeth, widow of the lrie William Short, D.D., Prebendary of Westminster, and Rector of King's-worthy, aged 79. London . Printed and Pnboshed by WIRD° YOUNG, e f No. 112, Strand, at 7/1p Office, No. 112, Strand, in the minty of Mickilesex.—Thur- 4.. January 2, 15.40.