The Express.
London, England, 1848-09-30 00:00:00

THE EXPRESS, SATURDAY EVENING, SEPTEMBER 30, 1848.

SCOTL

COMMISSION SIONID BY THE LOED•LIEDYENANY OF
MID-Losims.N.—J. M. Mowbray, peat, to be cornet to
the Royal liid•Lothiao Yeoaunty Cavalry.

IRELAND.

Dumas!. Barr. 29. '
The government, it is said, have not only refused
to grant stamps for the National, the new journal
which had been established as sacoeseor to the Nation,
but have also issued a warrant for the apprehension
of a person named Fullam, the printer of the prospeo-
tus, who has taken the precaution of absenting him-
self. Fullam formerly held the post of cashier in the
Nation office. A warrant also is in the hands of the
police for the arrest of a man named Delany, the ex-
foreman of Mr. Gavan Duffy's paper, but the nature
of the charge against him has not transpired. He had
been, along with all the printers of the Nation, ar-
rested on the night of the seizure of that journal, but
was subsequently set at large upon giving bail for his
good behaviour.
The proceedings before the Commission Court yes-
terday will have very little interest for the greater
class of readers of the journals. They are not, how-
ever, withdat possessing much interest for the lawyers
and the politicians. It is to be regretted that the law
in both countries in a matter the gravest with which
law can be called upon to deal should present such
variame in positive enactment and construction. In
Inland the prisoner has, it has been decided, no right
to a list of witnesses and jurors previous to his trial.
It is not so either in England or Scotland. This is the
mnep in he .-nrreted. Nweitee such a grievance pre-
sents salient points on which to harangue an excited
people,snd will probably prevent that wholesome err-
rection in which, above all things, it would be desirable
that such proceedings as the present should not be
wanting.
That the points decided by the court were well de-
cided, no man who knows anything of rules of law
will doubt. Mr. O'Btien had so right in law to a
list of the witnesses—and perhaps it were well for'
the witnesses he had not. And as for the challenge to
the array, while it is true that Roman catholics are
considerable possessors of property in both divisions
of Tipperary, especially the southern, yet whoever
knows the state of interconnexion between families,
and the sympathy which many of the junior branches
of certain parties have manifested with the ultra
, politics of our time—whoever knows this will say
with the triers that the high sheriff exercised a wise,
sound, loyal, and just discretion.

THE SPECIAL COMMISSION.
ARRAIGNMENT OF MR. O'BRIEN.
CLONMEL, Tntautuar, Barr. 25.—This being the day
appointed fur the comma .cement of the state trials, a very
large number of persons &Tumbled at an early hour in the
neighbourhood of the Court-house, anxiona to be present at
the proceedings.
The Attorney-General applied that Mr. Smith O'Brien
and the other four prisoner. imitated in the same general
indictment should be brought into court and called on to
plead —Mr. Potter, upon tr part of Mr. O'Brien, applied
for • few minutes' delay. James Orchard, Denis Tyne,
and Patrick O'Donnell, and afterwards Mr. Smith O'Brien
were :placed at the bar. He looked in excellent health, and
appeared in much better spirits than on the occasion of hie
last appearance in the same situation. When he had taken
his place at the fr ant of the dock, the Clerk of the Crown
was about to indict him in the usual terms, when
Mr. Whireeide, (le., roes. The application he hut to
make was that the prisoner ahonld not be called on to plead,
and that his trial should be postpred until such time as the
court might deem right and sufficient to enable him to pre-
pare his defence in a complete and satisfactory manner. The
short question to be discussed was, whether Mr. O'Brien was
entitled, under the acres of parliament now applied to Ireland
in cases of high treason, toe copy of the juror' panel, and •
list of the witnesses to be examined on the part of the
crown. It was very extraordinary that living, r they (the
people of Ireland, were said to live, under laws equal and
similar to thee* of England, a prisoner tried in this coun-
try should be embed the advantage of a privilege which
every Englishman enjoyed, and which went to the very
root of the offence. In England parties tried for high trea-
son were allowed to have a cloy of the panel, and a list of
the crown witnesses ten clear dayebefore the day appointed
for the trial to take place ; and it was for the court to de-
cide whether Mr. 8. O'Brien should not enjoy the same ad-
vantages (being tried in lamed) which he would obtain as a
matter of right had he been tried in England. The learned
counsel drew attention to several acts of parliament—espe-
cially that of 17 Geo. lll.—and to authorities bearing on
the point. If their lordships entertained • doubt on the
subject he would respectfully call their attention to the Awls
of law now generally adopted in all eases of doubt arising in
courts of criminal judicature, viz., "that it should be re-
jected were it made sgsinst the prisoner, and be received
if likely to prove favourable to his defence."
The Attorney-Genera. submitted that the prisoner was not
entitled to be famished with • copy of the list of jurors
and witnesses before he was arraigned. It wee con-
ceded that at common law no such right existed.
The only question was, whether there was a statute in
force in Ireland entitling • prisoner to • list of witnesses or a
jury panel ? The present indictment was altogether
framed under the *'state of Edward. The section of Geo.
HI. merely applied to a new treason, and not to the old
class of treasons under the statute of Edward, and inasmuch
as the present prosecution was under that statute, he con-
tended that the application should not be greeted.
The Solicitor-General having addressed the court on the
PAM,
Mr. Fitzgerald replied on behalf of the prisoner. It could
not be contended that Ireland was directly excepted from
the statute of the 67th Geo. 111. ; it therefore devolved upon
the Attorney General to prove an endure of the country by
implication; and he contended that the 11th of Victoria
plainly extended to Ireland the privilege required.
The Lord Chieflusties said, the applleation is to poetrne
the trial on the ground that the prisoner has not been
furnished either with the names of the wireless, or with •
copy of the panel et the jury. And it is extended that
under the indictment, and receding to the statute law,
the prisoner is entitled to have lists both of the wirers
and the jury. The indictment contains various sonata, five,
I believe, for levying war, and a sixth for compassing the
death of the queen, and the overt acts of compassing the
death of the queen are not one of them directed against
the person or personal safety of the sovereign. The
question is, what is the law of Ireland apyiltable to that
ram ? The charge appears by the . nt to be
manifestly founded upon the swats of Edward 111. Both
worms are such as that Wants deserfbes and defines. In
England, in the reign of William 111., there was • statute
by which the party charged was entitled to have counsel
reigned to him, to have Ave days to plead, and to have a
copy of the indictment ; and by an set of parliament in Ire-
land in all mess of inthetneents under the statute of 26th
Edward 111. the pasty was entitled to have a copy of the
indictment, and five days to plead. An English act of Par-
liament, the 7th of Anne, enlarged those privileges to the
party so charged, and gave ten days to plead, a list of the
witnesses, and a copy of the pastel at the jury ; and the
statute law of England has, in addition to that, entitled
the party to have the overt acts charged against him esta-
blished by the wirers. That k generally the
state of the law in both countries at this day. An sot
was pissed (the 36th George III.), by whisk a variety of
treasons was either created or &dared, 11/1, ilt the
bodily hum or actual personal assassination of the them
king. That set was not the statute of Ireland. same
the oat ef the 67th Gomm 111., by which all the provisiens
of
the llth 111. which was only • temporary act,
were toads —that is, it made perpetual the statute
of the mallameat Then ease the set al the 11th
✓ whisk rooks' that doable were entestimed whether
the so made perpetual were by tke Let montbsed
am extended to Ireland' andit bseames broallerial to in-
quire whether those doubts were well howled es, not, fa the
statute proceeds thus :—" Whereas k h to Mold
all such of the provisions male ~sal by as last re-
cited act as do not relate to offerers vim* is person of
the sovereign ;" and accordingly every spathe of treason
described in the 343 r George 111. or in the 57th George
111. is abolished by that act, save such se VMS 10 offences
against the person of the sovereign; and the plata meaning
of offences mainst the person of the sovereliMis ask against
the hie or liberty of the monarch, sbalm directly to
sleet his personamenrity or safety. Thies, eml them only,
are perpetuated by this act of parliament; sad it is in rela-
Ur se them, and those only, that all the subsidiary provi-
sire of the 354 Gene 111. ean be now said le exist : and
this being not a thaw of Melfeleillf the death of the sem-
reign by mesas of reempls wen her life W avesedirethm.
by weemding or wand ebbs that ft
doss net come within the ef the ask and that the
prisoner is not entitled to Vida myksalka pasted.
The Clerk of the Crown Om tadisild the primer in the
usual terms, and called ems Yen te plead. Mr. O'Brien
was ahead to do so, when
Mr. Whiteside aria sem awl pet Is a plea of abatement.
The plea set forth the seruffiffie of the arguments
advanced by Mr. Whiled& ea the subject of the jury=
the. It stated that by tee statute of enactment,
O'Brien) was entitled to receive a copy of the
ten days before the day of trial—that the bill under width
he was in,iicted having been ford en Thursday, the got of
September (seven days only before the period clads% he me
having received his copy of the indirment until Oat
week, he submitted that his trial skeet set mewed unto
the full period of ten days had elapsed from the delivery ut
the indictment.
The Chief Justice stated that the court would not twelve
the plea-
Yr. Whiteside considered that every reasonable plea for
a prisoner who wee pot upoa trial for his life ought to
be rewired by the court. He never heard of • court of

Justice having in eny mamma refusal such an application ;
and it wee net, be mrsethally contended, for the court to
decide that a esmaia pea, before it had been fully
mimed, could not be rthei
A discussion then took plea between the counsel for the
crown and counsel for the prisoner upon the right claimed
for the prisoner by his coussel ; at the conclusion of which,
their lordships having *inferred upon the matter the
Chief Justice stated that the mart bad decided on receiving
the plea, leaving it open to the Attorney-General to demur
to it or not, as-he thould think proper. The Attorney-
General then demurred to the plea; and the court refusing
to allow the validity of the *IN denkt•d that the prisoner
should forthwith pd to the indictment.
Mr. O'Brien than plairelNat Guilty in • clear end audible
voice.

L. Inbulls gra abed, es • mar el favour, that lir.
ezollerals anon sherd be bribed win • copy of the
pang di a int home Were the esernessesmt of the
Lit_solor that they might have em
se ever it. To justify the ressen of
his rpaeM the learned name sited gene Begliab trials
foe hies buses whose the. peel sees had bets allowed a
=the panel der bites the Vial we appointed to
Flew These mem eseurrod, ke said, Mike the act of
the It Will. 111. was pored, and, therefore, showed that
ems to anima it wee the custom at that period to allow
• yehaser a espy of the panel at least one day before trial.
He, titerehn, submitted that the same favour should be ex-
tended by an Irish court of judos to prisoners tried for the
Nine crime in Ireland, although they might not be entitled
le it sea matter of right.
The Attorney-General opposed the application. He said
Mead not perceive any line of distinction between the pre-
sent ear and the ordinary cues in which men were tried for
is til offences.
The Chief Justice observed that whilst the Attorney-Ge-
neral withheld his consent, it was out of the power of the
siert to accede to the application.
The Clerk of the Crowe then called over the jury panel.
The jurors upon it were, for the most part, per ons of pro-
perty, and were taken, some from the town of Clonmel and
lee remainder from the county at large. The attendance
mem* numerous-201 jurors haring answered to their
singe out of a panel of 288.
Mr. Fitsgersa pat in a challenge to the array, which was
to the effect that the act of parliament required the clerk of
the peace, within a week after the commencement of the
Iletelim learner sessions, to deliver a precept to the high
'commbtas ne collectors of grand jury Nee, requiring then to
make oat withi• • 1...0h • sin.. 4,6 or 1•1•••••••• ep.a1311.44 •••
serve an juries; the list es made oat to be retrain
bp nest to the clerk of the penes to be laid base
the justices at quarter mono= for their sigeonmess
god from the list so signed the jurors' bosh vets
to be made out and delivered by the clerk of the peer tie
the high-sheriff. The prisoner challenged the array apes
the ground that the clerk of the pease for the county of
Tipperary had norwithin the proper time, or at any time,
delivered the precept to the high constable or collectors of
grand jury and other ceei, nor was any jurors' book made at
present pursuant to the statutable provisions, nor had the
high sheriff returned the names of the jurors fromi the books
of the preceding year, nor from any of the books of the
county for any year. The next ground of challenge INN
that the panel was returned with reference to the religion of
thejurors, to his (W. S. O'Brien's) prejudice. The several
panels which for three years had been, from time to time, re-
tained by respective sheriffs to serve upon juries had lir
"Med of 380 persons duly quilled to serve as jurors, sad
M said panel not less than ono-third consisted of persons pre-
test** the Roman catholic nligion, two-thirds of the pro-
tease% and of the jurors returned, not more than one-
eighteenth were of the Roman catholic religion, and the
residue (17-18 the) were professors of the protestant religion.
The prisoner further stated that the panel had been par-
tially and unindifferently arrayed to injure and prejudice
him upon his trial.
The crown counsel then (half-past 1 o'clock) retired to
their room to consider the replication to the challenge, and
did not return into court until a quarter after 3, when
The Attorney-General handed in a replication to the chal-
lenge, in which he set birth that the panel ought not to be
quashed, because there had been a jurors' book prepared for
tie current year for the county Tipperary, and Mame said
jurors' book was still in existence, being their. in fact in the
town of Clannish Oa them grounds he submitted that the
challenge to the array of acid panel should not be enter-
tained, and that the array el said panel should be considered
as having been well, equally_, and impartially made in said
jury book, by the high shonff, wording to the duties of his
office.
The counsel for the prisoner then received permission
from the court to retire for a short time, in order to consider
what roinder they would make to the foregoing replica-
tion. On their return into mart, Sir Colman O'Loghlen
stated that the prisoner's enamel had decided upon joining
issue with the crown, and requested their lordships to nomi-
nate triers to hem the evidence and Sad a verdict on the
issue.
Mr. Whi,eslde suggested that the court should not nemi-
nate the triers from the grand jury mach—The court mold
use as urn whatever for adopting the suggestion, and re-
commended that the two first reuse on the grand jury
sholid be selected for the regebred purpose, vie.: the
Len BetZend the lienCerneliue
Len thei sere ether grand (jsmCer4VM
be selested in !treated, OR the grand that h ass g ern in
the capacity of high sheriff during the previous year, it was
not at all improbable but that he might be examined touch-
ing some of hie own official acts.
Sir Colman O'Loghlen suggested that the second and
third MOM on the grand jurors' par el should be taken in
lies of the first and third, which course was accordingly
aiegted, sad the name of the third juror in the list, die
Hen. P. A. Prittisons substituted for that of Lord Suirdale.
Mr. Whiteside then briefly stated the vacations which the
niers had been appointed to decide. The first question was
"Maker the jurors' book had been made for the current
yen, pursuant to the act of parliament The second was
whether the panel had been fairly and impartially arrayed
between the crows and the prisoner. The learned counsel
having recited the provisions of the 3 & 4 Wm. IV., chap.
91 (the substance of which is contained in the challenge
made to the array above given), proceeded to contend that
the October sessions mentioned in the act of 3 & 4 Wm. IV.,
c. 91, s. 9, were the same sessions which were mentioned in
the 4th sec. of said act. If this construction was the true
one he was of opinion that their lordships would decide that
the Clark of the Peace should have honed his precept within
one weak alter the commencement of the October sessions.
This coarse the Clark of the Peace had not taken, having in
fact Wood his preempt in the month of July, a course that
woe altogether contrary to the act of parliament. Toe
learned gentleman then contended that the jurors' book was
issued in July and not in October, as the act of parliament
repaired.l. P. Pietas. F•q., Clerk of the Peace, examined. Had
bees served with a sublimes that day to produce the precepts
and lists ; could not produce the precepts, as the high con-
stable did not return them to him, but could produce the
jurors' lists as revised by the magistrates; the lists were
generally affixed to the precepts; the former were returned
to him, the latter wen not; produced the lisp of two hero •
nim, one the 12th August, 1847, the other for 1848, but it
bore no date ; produced lists for other baronies, all of which
were received before October ; did not issue any other
septa.—To the Attorney-General : The lists were revised by
W magistrates at a special session last December.
The Attorney• General drew the attention of the court to
the points at Mine between the crown and the prisoner's
counsel which are set forth in the challenge and replication.
The crown had not taken issue upon the allegation that no
precept had been issued a week after the October Quarter
but tthheeyy had raised an ham upon the existence of
a properly .otitted jams' book, and were prepared to
produce it. The learned gentleman contended that the
proper time for issuing the precept was In July, and not la
October.
The Solicitor-Genera followed on the some side. If the
sheriff get a legal juren` book, from that he should take his
list. He was not to be held answerable for what high cow
stables or delimiters might do.
Sanwa M. Going, theok otb-shariff, was then ntardmil.--
Produen the Peen' bo which he got from the Meek of
the peer is Desember last.
air, Moen' the argued in support of the challenge.
He entenol tin there wan not &Jaren' book according to
the acts in that ore aide and provided, inasmuch as the
jury lists were Mead peke to October.
, The Chief Julies dm addressed the Wen. The panel
was taken hag the mem hod ea the jure book, whisk
wee proved to hem bees delivered by the Clerk of the Pane
to the Shang of the surty begin October, 1847, that it
was msda has lime redeed at the quarter ernsiona, and
that the UM sere Mimed prior to October, pursuant to
the I=orhisisd Wise Alllmst The question there raised
woo er sat tire preempt hosed before the October
&WOOS was hewn prommi to the on in "that ear "
made sad provided. Is wee Asps% _es behalf of the pri-
soner, that the mem* should have limed after the Octo-
sa ber Sestioas, d not at ea sateseileat period. It was his
ditty to toll the jury that it was set agersay that the pre-
eon 11111111111 have based after the Weber tkieions, and that
the sot et melisamt did set goner a syllable Justifying
the esertrastios shish bad bees pat apes it. The objec-
Ma to the mad wee thershee minable, and he would
direct the jug to fled spied the diallease apes the first
cut.—T Injury towed assordlegly.
Mr. Whiteside than addereed the jury of triers upon the
111111111 i question—namely, whether the pearl had been fairly
sod ispertielly arrayedhoimai the grown and the prisoner.
Mb Mint, Mr. Smith O'Brien, wee that on his life, and, to
speak very shortly and simply Ids glace is the matter, he
believedj thatam if he near tried by a lady sad impartially
geketod it wend rine lan dlibionge whether th•
"MS Med bra with walk a key sr Inn bin eat of court
god net kir Sees* the heed apes the MA reed. The
mot would mil thsea that there asset be se memeemeat or
goariegooe with reaper to the egeggetion of the jury panel ;
en
that Udine was, it would beet unfair, partial, and un-
emstitatiosel pad. And if the triers wen of opinion that
pramilag aerial et Met eausty had fairly discharged
theft sintiesbetweia the remand the prisoners " to be tried,"
daring the bet three years it was impossible for there to say
on their cads that the present panel was an im-
partial one. Oa all former panels arrayed during
the Yet three years, there was a certain pro-
portion observed by the High Sheriff who retuned
the peon (whisk properties me 'gradated to be a !de ern
—nerdy, hee-ftletle—brl bra ignsriably tetsmod &eke
the Ist three yews of the pre seat pommies, esd also
third of the Herm isnelle persuasion. However ronsei
that pr=rigt appear to be it gave salisfeetisa=ri
when, p reed, the
had dem that IS•• rbrirap ae him. But whet
we. the eat with the pmesat peel) He (Mr. Whitman)
woo then in a prides to peen bored all dispute that em-
eighteesth pen et the preen penal cossisted of Roman
catholie jurors or of IMO pares. Thus a large number of
the very men who had bees eulogised by the Lord Chief
Justice for the manner la wink they had discharged their
duties as jurors at the last nodal commission were wrack off

the present panel, as if incapable of acting as properly in this
commission as they had in the ioniser one. In this instance
so ler than 100-Roman catholic" had been struck off the
panel. and so very few had been retained upon it that Mr.
O'Brien's right of challenge was little better than a farce.
The following witnesses were then called :
Henry Pedder sworn ud examined by Mr. Whiteside:
1. am the clerk of the crown for the county Tipperary. I
was served with a notice to produce the jornrs' panel for the
present oommissiou, but have it not in my custody. It is in
the possession of the clerk of the crown for the South Rid-
There are 288 jurors on the present panel.
hutch Kirwan sworn and examined by Mr. Whiteside:
I am an attorney, and have practised in this county for many
years as such. I am perfectly acquainted with the jurors
who attend here to meat in the administration of justice.
I heard the jurors' panel read by Mr. Pedder to-day, and
watched it closely, in order to discover the numberof Roman
Wathelies upon it. As well as I could determine there were
M more than 17 or 18 Roman catholic' upon it.
Rudy Spain examined by Mr. Whiteside: I am a juror
of this county, and have attended at. several assizes and
one special commission. I have not been summoned to this
special commission. I served at the last assizes, but did not
serve at the two assizes which preceded them. lem a
Roman catholic. The witness then deposed that the follow-
ing persons were Roman catholic*, and had acted as jurors
at former assizes in that county:—Gregory Fitzpatrick,
Jesus Hanlon, Edward Flynn. Jeremiah Trey, John
Tooey, and George Thorn.—Mr. Whiteside to witness : Are
you a member of any confederate club f—Chief Justice:
Don't answer that question.—Witness: I am not —The
Attorney-General cram examined this witness, with a view
to elicit from him the rank in life and place of abode of him-
self and the other Roman catholic jurors he had named.
William Max examined—Wu a juror of the county, re-
siding at Maxford. Had been in the habit of serving upon
juries. Was not summoned at the last commission; but was
summoned at the previous commission. Had been 30 years
Nerving uponjuries. Wu not summoned for that commis-
sion. Wu a Roman catholic. Knew Thomas Hennessy of
Merles; had seen him serve upon juries. Knew Henry
Welply ; knew him to be summoned, but had not met him
on juries. Knew Michael Manning; had not known him
to serve upon juries. Had seen Martin Quinlan uponjuries.
Heard his name called upon the panel at Nenagh ; he was a
Roman catholic. Had heard Nicholas Burke and Thomas
Cahill called on juries; they were Ronan catholic". Knew I
Joseph Hanley ; had seen him serve as a juror ; he was a
Roman catholic. Knew John Ryan; had no recollection of
us
'using win summoned. Anew s* mum Ryan to have
eseired. He was a Roman catholic. Knew Mr. Byree and
Mr. Manning. They had been called as jurors. They were
Roman catholic*. Was not himself a member of any club.—
Cross-examined by the Solicitor-General: Had acted him-
self a as grand juror, and never as a petty juror.
Bdinond Murphy examined. Was a juror of the
county. Had served at the assizes end special commission.
Had served as a juror far 20 years. Was a Roman catholic.
Was not on the present panel. Knew Daniel Murphy, of
Ballymors House. He had served as a juror. He was a
Roman catholic. Knew Mr. Scully, and had seen him act
as a juror. He was a Roman catholic. Knew two brothers
named Nicholas and John Doherty; they had acted as jurors
for ten years ; they were Roman catholic*. Was not a mem-
her of any club.—Cross-examined : Not one of the protestant*
in his neighbourhood who were usually summoned as jurors
was omitted from the panel. Could not say whether the
persons whose names had been called out to him were or
were not upon the panel.
Edmund Wm. Murphy examined.—Was a juror of the
county. Had been in the habit of serving for five years as
such. Served as a juror at the last commission. Was a '
Roman catholic. Mr. Wm. Murphy was his brother.—Mr.
Fitzgerald said he was misinformed as to Mr. Wm. Murphy,
m his name was on the panel. The witness was not cross-
examined.
K. L. Campbell examined. Had acted as sub-sheriff
for the county for six years. Had heard the names of per.
son in that court called, a great many of whom bad been
pat upon the panel by him. Some were petty,jurors, some
mere jurors at quarter sessions, some were jurors at the
assizes, some served in the record court, many of them were
7a able men with a stake in the county, and who ought
ILtectm the jury.
Mr. Whiteside, Q C., then asked the witness whether it
was a fair return to put only 15 Roman catholic' on the
panel out of a list of 288 persons qualified to serve as
The Lord Chief Justice said, that the question could
not be answered ; it was a mere matter of opinion; and the
learned gentleman could not lay a matter of opinion before
the triers, who were sworn to examine facts.
Several attempts were made by Mr. Whiteside to put
the same question in different firms, but they were over-
ruled by the court, or resisted by the attorney and solicitor-
generals.
Mr. Whiteside contended that he had a right to ask a
question having reference to a matter of fact which con-
stituted the ground of the challenge to the array.
Chief Justice Doherty said that the question was really
incomprehensible to him. He had never heard it laid down
that a jury should be selected in any proportion. An
honest and conscientious juryman would never investigate
the
him.
religion of the person who was placed on his trial be-
for
Mr. Whiteside, Q C., said he subscribed entirely to the
doctrine enunciated by his lordship, that the jury should not
be saluted in any " proportion." He, too, held that no
man in particular should be selected, but a fair panel re-
turned.

Justice Moore observed that the learned counsel was
requiring the witness to give an opinion, not to prove •
Let.
Mr. Whiteside, Q.C. (to witness).—What was the smallest
number of Roman catholic. upon any panel which you re-
turned ?—The Solicitor-Oenenl objected to the question.—
Mr. Whiteside : Have you ever returned so small a number
as twenty Roman catholic. ?—Witness: I cannot state it as
a matter of pontive fact. If I were to see the panel I would
be able to tell you.—The panel was handed to witness, and
he proceeded to investigate it.
John Lacy, Rm., ezunined.—Hid acted u a juror of
that county for twenty years. Had not been summoned on
the present panel. Was • Roman catholic. Knew Ned
Murphy ; had heard his name called. Knew Patrick Quin.
He had served as • juror. He was a Roman catholic. Knew
Ned Murphy. He had served. Was a Roman catholic.
Knew Mr. King and Mr. Clancy. Had sea them serve.
They were Roman catholic.. The witness, in reply
to questions of a similar nature, stated that he had seen
gentlemen, who were not on the panel, serve on juries.—
Cross-examined by the AGeneral : Was an alderman
of the corporation. An applttorney-ication was made to Mr. Howley,
the aseistant-barrister, on the part of the aldermen and town
council, to be »Herd from the necessity of serviette upon ses-
sions juries. Could not tell what Mr. Howley told the she-
riff in reference to the matter, for he summoned him and
other members of the town council after that application.
Had heard the present panel called over. They were re-
spectable men, of station and property.—To Mr. Fitzgerald :
Might have heard the names of persons called on the present
panel which were new to him.
Mr. Campbell was then re-examined by Mr. Whiteside—
There were 331 jurors summoned on the last special commis.
eion, and upon tut panel there were 34 Roman catholic*. It
would take a long time to ascertain how many of these Roman
catholies were on that oungsinion who were not upon the
panel of the present commission,
David Clancy examined : I am • juror of this county, and
have been summoned to serve on juries for the last 12 years ;
I was summoned to the last special commission, but not in
the present ens. lam a Roman catholic —To the Attorney.
General : I was fined for sca-attendanes at the last special
cominiseion, but I now swear that I was present at it, and
ready to serve when called en. I pleaded my being • town
councillor of the Cloamel corporation, to escape from
the fine.
The Chief Justice.—Have you say evidence to connect
the sheriff with any corrupt practice with respect to the con-
atitwion of the panel? It ss • very serious charge, and
should not be lightly made.
Mr. Whiteside.—My; Lord, I should be sorry to charge
any gentleman bearing his name with such an offence, but
I must act in camping°e with my instructions, and as I

think right.
Mr. Kirwan was then recalled and examined by Mr
Whiteside : I have just perused the jury panel of the 18th
July, 1848. Upon that panel there wen 122 names, of
which 61 were Boman catholke. I also examined the Clon.
mel panel of the 10th Muth, 18413, there were 194 names
upon it, of which 47 were Roman catholic.. On the present
panel there were but 17 or 18 Roman catholic* for the entire
county.—Creasordrailled : I speak these matters from my
own knowledge. I am acquainted with the religious
persuasion of almost every one of these jurors.
The Attorney-General submitted there was no evidence to
go before the triers, and called upon the court to adjudicate
summarily upon the queothaa.
The Chief Judaea Mad that the court was not prepared
to deal summarily with the question, bat felt themselves
bound to allow the evihmes to go before the jury.
Mr. Kirwan was here real4d, at the JoAnne of the Hon.
Mr. O'Callaghan' one of the triers, who asked him whether
it had been the preettee is that county for the high sheriff to
make a difference in the panel he summoned for a special
commission, as compared with those aade out for the ordi-
nary assizes T—Witnees: I have observed that it has been
his habit to make a Marines between the two.
Richard Penneiletbur, Dm, High Sheriff, county Tippe-
rary, was then ewers, ash examined by the Attorney.
General : I made as alteration in the present panel after I
received it from the rub-sheriff; I did so because I believed
there were persons upon it who could, ill afford the expense
tof coming to Claman and living there at their own coat
during the commission. I did not strike of any persons on
account of their religious persuasions. I was not influenced
by any considerations whatever to return a panel that was
calculated to prejadiee the prisoner; had no consultation
whatever with any pen= connected with the crown directly
or indirectly, relative to the arrangement of this panel.—
Crowexamined by Mr. linitetide I did not prepare this
panel myself. It wee the sub-sheriff Mr. Going, who
made it, end I am responsible for it. When he drew
it out he brought it to me. I gave him directions as
to how, he should prepare it. I cannot my how many
Roman catholic' are upon it. The suboberiff brought
him a rough copy of the panel which had been drawn
out by the clerk. Did not know that there were only
18 Roman catholic. upon the panel. Was surprised to hear
it —Mr. Whiteside: How many hundred Roman catholic*
and men of substance are in the county ? Witness. 1 cannot
tell.—Mr. Whiteside : Do you know Mr. Doherty and Mr.
Murphy'? Witness . Yee, by character. I have summoned
one Mr. Murphy.—Mr. Whiteside: Areithew gentlemen men
of snthtsnce ? Witness: I would rather 'twosomes. the question.
8, W. Going, Seq., sub-sheriff, examised : After
the receipt of the precept he prepared a draft of the names of
persons to set as jurors, which he submitted to Kr. Penne-
trther, who struck off the names of several of the lower
climes, but he did not leave out the name of a single
iadivl-
dad whom he considered respectable. In the formation of
that panel he had no communication with the °Seen of the

crown, nor had he received directions, i'irectly or indirectly,
from any ol the law officers. Prepared the draft of • juror's
book to the best .if ha skill and judgment. —Cross-
e:stained : Had not the draft of the panel with
him. Got the submits that morning to produce the draft
when he wss six miler away from his bowie. Was an attor-
ney : his office was at Littleton, about 17 or 18 miles away.
Was ass:sted by a Mr. (Jason, who heed with his, and
checked the names to ascertain that the panel corresponded
with the jurors' books. Could no: tell how many names were
on the jurors' book. There were several names on it of perrms
who could not write their own names. There were several
names which had been omitted at the instance of the persons
themselves. DA not leave off any one because he was a
Homan catholic. Did make a difference in the cocstruction
of the panel. He always did so at special nomad .ions. At
the matzes he summoned only one-hell of the riding, while
he summoned the whole county at special commissions,
which enabled him to leave off • great number of names,
which he put upon the panel when he summoned only half
of the riding. There might be the omi.sion of Emma cl-
thOHC nerves. but on his oath they were not left off for their
religion; three Elman catholic gentlemen of respeciahilicy
had sent apologies and were left off the jury ; could not tell
how many Roman catholies were on the panel.
The Lord Chief Justice then adarmed the jury of triers
at considerable length, but swing to the lateness of the hour
(seven o'clock) at which the charge was delivered, we are
unable to furnish a report of his observations. He reviewed
and commented upon the whole of the evidence adduced,
and in doing so stated his opinion that there was nothing
in any part of it which in the &lighten respect proved that
corruption or partiality had been evinced either by the
High Sheriff or the Sub.sheriff in the discharge of their
several duties, in relation to the preparation of the panel.
The jury found against the challenge upon the second
question, as they lad already done upon the firs'. The
court was then adjourned to ten o'clock on the following
morning.