The Express.
London, England, 1857-05-02 00:00:00

COURT OF QUEEN'S BENCH.

(Sitt'lgs i• &MM.— Before Lard Campbell sad Justices
Wightmaa, Erie, and Cramptun.)
MANCELL V. TSB QCLE.Y IY IMIIOII.

According to the srmsgement of the court, Thomas
Mansell, the convict under sentence of death for the murder
of Lance-Corporal Burney, of the 49th Regiment, was
brought up this morning from Rewrite by habeas
corp., fur the purpose of being present during the
arguments of counsel upon the points of law which bed been
raised to the manner in which the jury who tried him had
been challenged on the part of the crown.
The prisoner set in the centre of the first row of the outer
bar, end was in the charge of Mr. Weatherheed, one of the
gaolers of Newleste. There was nothing in hie appearance
or manner to indicate that he was folly sensible of the serious
position which ho occupied, but he conducted himself with
gravity and &Tome, and listened with attention to the argu-
ments of counsel.

Mr. We'shy and Mr. Ribton appeared far the crown; and
Mr. F. Rumell and lion. IL Denman for the prieoner.
There was a large attendance of the bar, and the coast
woo emwded with speetistors.
Mr. F. Russell mid this was a proceeding by way of writ
of error to reverse the judgment of death which had been
passed upon Thomas Mansell, the plaintiff in error, now me,
sent at their lordships bar. Themes Mansell wise tried at
the last winter arises at Maidstone, before Mr.
Baron liminwell, for the murder of Alemnder Berney.
He was tried on an indictment and also on the coroner's
and the records, with regard to both, were in
subetanee almost identically the mine. The learned coun-
sel then read tho record of the indictment, which set out
that at tho trial a certain number of jurors, whom names
appaired on the panel, wee called ; that sumo presented them-
selves and others did not ; that of the former some were ordered
to stand by, and the rest were elected to form the jury, and
were duly sworn for that purpme. Among those who were
ordered to stand by was William ironmonger. When he
came up, the counsel for the crown prayed that he be
dineted to stand by ; the prisoner'• remnant objected, but
the court ordered him to stand by, and be accordingly did so.
The entire panel was gone through, with the exception of
twelve jurymen whose names were omitted, they Loring been
engaged in trying • case of felony and being abeent at this
time from the court considering their verdict, and only nine
jurymen had been elected to form the jury for the trial
of the prisoner. It then became necessary to go
through the panel • second time, end the name of
William Ironmonger wee again called. He also
presented himself on this occasion, and the crown
again registered him to stand by, the prisoner's counsel as
before, objecting, and before any decision was come to by
the court open the point, the 12 jurymen, who bad been
out, came into min, and were discharged from the custody
of the sheriff. The counsel for the crown then requested
that the jurors to whom he bad objected should stand by
inn.' the nmiles of them twelve had bees called over.

Lewd tlempheU—The 12 jurymen who were in tba panel
but had not been railed ?
Mr. Kmacll—Yee ; and the pfieellee• mewl objected to
that courier. The court, havieg over-ruled his objection,
Williamm Ironmonger wee direr ted to eland by a wend time,
and theme 12 jurors were called and cleated to form the jury.
The record also mated that one of those who had
been thud elected, said he had conscientious enures against
capital punishment. The counsel for the crown rayed the
court to order him to Mend by. The prisoner's counsel ob-
jected, and the judge mid that if the jdiFest hit he could
not do his duty, he was quite right in ea so, and that he
had better withdlaw. He thenspre withdraw from the
bee, and was mimed to stand by.
Ihe prisoner's mused iv:Wended that when he hod been
once elected he ought not to have been allowed to withdraw,
but his objection was overruled, and When other jurors
were' on the application of the crown, ordered to Wad by.
The essignastest of errors ma the pert of the resew stated
in subetance, first, that the record did not slow say enflicieut
grounds why the liftmen juries who were ordered to Sand by
were not sworn; seomsdizthat the evert had no power to
order • juror to Wand —that the wise to Mood by woo
a term not Wows to the w but wee Warts sad weer-
tab', sad that at any ratethil court bed as an* power until
a challenge had been made; third, thermal Wag ones gone
through and there being • deficiency of jaws and the
crown having began to go threeth the well again,
William Ironmonger, when be was nailed a second time,
ought not to have been again sedated to stand aside
but should have been ewers, wr the mum of chalkitge
alleged at onee sexiest him; booth, that the jurors ought
not to have been called out of the eider of the panel ut the
nomination of the commie' far the prosecution; fifth, that
towientious scruples. of Dark' Philpot, the juror who
objected to capital punishment, was no ground for ordering
' hint to stand by or withdraw; Math, that the jury were nut
sworn in due course of law ; and lastly—the more general
ground—that the matter elated in the record did not warrant
the judgment, end that judgment ought to have been for
Thomas Mansell, end not for our lady the Queen. The re-
joinder on the part of the crown, to these ameignmente
was that there was no error in the record. With regard to
the record of the coroner's inquisition, the learned counsel
said it did not appeal., from it that the prisoner had been tried
on tiny legal inquisition, as it did not state that the
inquisition was held on the body of the deceased lying
within the district over which the mower had jurisdiction.
Their lordships would have gathered from the of the
records that the principle grievance complained of y the
primmer, was that a certain number of jurymen who were
celled and appeared, and whom ho was willing to have upon
tbejury, had been, as alleged, improperly met aside, and pre-
vented being sworn; and if he (Mr. linemen) made out this
team satisfaction of the Court there would clearly be an
error in the record, In the ems of King e. Edward.
4, Barn. and Md, rags 431, It wee laid down
byJ Lord Tenterien that the improper granting or refusing a
chaltmge was, alike, a foundation for a writ of error, and
in his elabonste judgment he referred to two or three cues in
which that wen held to be law. In the ease
of Grey a. the Queen, the Irish judges held that
the crown had a peremptory right of challenge,
without alleging the cause of challenge ; but upon a writ of
error being brought, it was decided by the Home of Lords
that they were wrong, and the whole proceedings at
the trial were void by reason of the course which was
taken in that care with regard to the constitution of the jury.
There was error in the record, if all, or or any, of the jurors
had been improperly prevented serving on the jury.
Lord Campbell—l suppose you do not say there was any
irregularity until William Ironmonger was caned • second
time.

Russell—l do not feel myastr, at present, in a situation I
to admit that there wee no Irregularity on the first °marquis. '
Lord Campbell—We find in sll the hooka that there i e
power in the crown either to challenge without seat
cause until the panel is gone through, or, in other yr
order the juryman to stand aside until the panel i‘tu b'eee
called over. That has been acted upon again an 'J neje, awd
unifieruly held to he the regular roans, and r,r,teettewt with
the statutes of the 33rd of Edward 1. bp A the 6th of
Geo. IV.

Mr. Russell wu not aware that the gittir,e had been deeded
by a court of error.
Lord Campbell—lt mom b•lme.C.,:tef Justice Tindal, Mr.
Baron Parke, and Mr. Justice and was solemnly
arfraed and _
_ e
ked to without the counsel for the
crown minim= mat ',he court, and therefore it must
be calmalmatal not a point open to arguutent
Mr. Kamm •Mdt aaao• the circumstances, bo would not
argue that muter itrt'
om., dbe only preyed that the pri •
caner might ban tb► knelt of it blew it should tell in his
favour. The
.ed counsel then referred to the 33rd of
of
Edward r.th Geo. IV., and various athoritise, with the
.am`rafT'aer that the crown could sot challenge Tramp-
vimr.itt unwise the mum
Loa r..nnipbell-71e question in which we are &MSG-
died,' concerned is, when should the mown show cause.
tlr 14".. o,ough. f the books say when the panel is Tea or gone
Mr. Russell—The question then is, whet is the meaning of
tbe panel being read P I contiud that it mesas
I when tie pied hr boa nal Ike* cum sad