The Sun.
London, England, 1840-01-27 00:00:00

EVEN 1N G EDITION

: EQUER =...1-IAr*IBE
IS LAY.

respect, and irrelevant to

Adverted to the t

witnesses, iv. their Lcrdsiiips would observe that the list
of jurors. to procure which was the object of the application
to the Court, was ordered to be given, that it might be
served at the same time with the copy of the indictment.
The enactment that a list of witnesses should be delivered
also provided with respect to tha list of witnesses
under consideration, and was that a list of the
witnesses, which should be produced at the trial,
and of the jurors, mentioning their names, pro-
fessions, and places of abode, should be also given at the same
time with the copy of the indictment and, therefore, there
was precisely the same obligation on the public prosecutor to
give a copy of the list of witnesses as of the list of jurors. If
the Court, therefore, when it drew up that rule, thought that
the list of jurors must be delivered at the same time with the
copy of the indictment, they must allow that the list of witnesses
must be delivered at precisely the same time, because the
words of the Act were precisely the same. Now, Sir Frede-
rick Pollock had called their Lordships' attention to a great
number of cases, in all of which the Court had held, that; the
words of a statute providing for the security of the prisoner,
should be binding and imperative, and that all the statute re-
quired should be given to the party. It would be quite inexcusable
for him to refer to any of those cases, but he should not feel
that he had discharged his duty, if he did not make some ob-
servation on the mode in which these references were met by
the Attorney-General, who had said they were merely cases in
which the law required something to be done which had not
been done. Why, what was the case before their Lordships,
on which the fate of those three men depended, but that the
provisions of a statute had not been complied with ? There
was one statute not cited, bearing directly on the present case,
namely, the 7th Will. IV. and Ist Vic. c. 26, by which it was
enacted that no will should be valid, unless in writing, and
signed by the testator, or some other person in his presence
and by his direction, in the presence of two or more credible
witnesses present at the same time. Here was a provision
like the present case—au act to be done in the presence of two
witnesses present at the same time. Suppose a case in whicha
will had been executed, and it had been attested by two wit-
nesses, but by one at twelve o'clock, and by the other
at a different time, what argument could his Learned
Friend urge to induce their Lordships to dispense with
the provision respecting " the same time." It might
be said the witnesses swore each of them that the
testator duly executed the will, and what did it signify that they
did not see it at the same time ? It might be urged, (as in the
present case,) that the real intention of the testator, credibly
witnessed, was the substance, that the simultaneous witnessing
was only matter of form, and that no injury could possibly re-
sult. Now, if their Lordships could, in the present case, strike
out of the statute of Anne the plain words, "and at the same
time a copy of the indictment," what was to prevent them from
also striking out the parallel words of the statute of wills?
—particularly as it would be difficult for a person unacquainted
with the previous history of the law of wills, to divine what
could be the reason for such a provision. Yet it had its origin
evidently in the statute of frauds, which enacted that no will
should he valid unless signed by three persons, as witnesses,
but which did not require simultaneous witnessing. Now, not
merely in cases of actions against magistrates or clergymen, or
particular classes of individuals, had the Courts held them-
selves bound rigidly to adhere to the exact words of the
statute, but there was a long series of cases occurring
in the Court of Queen's Bench, in which the Judges
had, over and over again, while expressing their regret
that they were bound to do so, given a ce:•tain effect
to all the express words of a statute, even when they admitted
that they were construing the Act contrary to the intention of
the Legislature. There were many cases relative to gaining
a settlement under the Poor-law, by renting and occupying
tenements. There was the case, for instance, of the King v.
North Cottingham, 1. Barnewell and Cresswell, p. 579, when
the question was whether the settlement had been gained by
the occupation, not for the whole time by the party himself—
but by an under tenant. Chief Justice Best had said, that he
was bound to decide in opposition to what was probably the in-
tention of the Legislature, in accordance with the express words
of the statute. 'Then, in Rex v. Ramsgate, 6 Barnewell and
Cresswell, p. 712, a question arose on the 6th George IV., 57,
whether the settlement had been gained where the rent had
not been all paid, the words being, that it should not he
general unless the whole rent had been paid. Mr. Justice
Bailey said, " It is desirable, in all cases, to adhere to
the words of au Act of Parliament, giving them the
sense which they nature ly import—in the order in
which they were placed. It is material to attend
to the collocation of the words, and they should be con
strued according to the plain import which they bear, in
the order in which they are placed in the Act." And Mr.
Justice Holroyd held the same; yet in this case the Attorney-
General wished at least a transposition of the words in the Act

CASE OF FROST, WILLIAMS, AND JONES.
The Judges took their seats this morning at a quarter
past ten o'clock, at which hour the Court was densely
crowded in every part.
Mr. KELLY rose and said he appeared before their
Lordships
on the part of Zephantah Williams and he
would
inot begin by making any epo'ogy for the course
which sus duty might compel hint to take—' et it would
tee with teat regret and concern that he should feel that
dwasted the time which their Lordships owed to
the public, but, on the other hand, if from any
fastidiousness ,or dread of doing so, be were to leave any-
thing unsaid which might appear to him favourable to the
prisoner, oner, he might hereafter feel that which no words of
h which could express—he might feel that, and for ever, to
stillbi no man would be expected to expose himself, but
he would endeavour to compress the arguments his
duty compelled him to use in as narrow a compass as .
I mine. Their Lordships for
were now, the first time, to
put a construction upon the most important Act of Parlia-
ment in the Statute Book, one winch had been in opera-
tion for the greater part of a century. Their Lordships
..were called upon by the Countrl for the Crown to alter
the Act—to unsay what had been said by the Legislature
7--to make the.law something dtfferent from what it was
before. He would at once proceed and lay before their
Lordships the words of the Act of Parliament. Having
done sos be said, if they were doubtful—if they were open
to any.uncertainty, their Lordships would proceed in
the usual and .legal manner to put
.. ,a proper
construction upon them by looking at the con-
tsxt, or at prior decisions in Courts of Law, and so
determine which of two or more constructions might or
ought ;to be put on the statute. But if they found that the
words were perfectly clear and unambiguous, so that no
man could put more than one meaning upon them, then he
apprehended their Lordships would not feel themselves at
liberty to rescind or alter what the Legislature had done,
and substitute something different. It was admitted by the
a
tumleS-General, and it could be denied by no man, th at
the plain and obvious meaning of the enactment was' that
the list of witnesses and the list of 'jurors should bede-
nt tired to the prisoner, along with a copy of the indict-
rennoten days before the trial. That was the plain, or-
doi
hntary, and necessary construction to be put on the words
of o Act, and if their Lordships would venture to make
the alteration which was called for by the Crown Counsel,
they must begin by striking out no less than sixteen words
from the statute. B 3 making that alteration, then, with
outcarrying the alterations further, no t me would be spe-
cified fur tire delivery of these lists ; therefore the Learned
Attorney-General proposed to add other words for that
perpese ; and these alterations were to be madeln a sta-
tute aeknowledgedly passed as a safeguard to • persons in-
dicted for one of the gran est offences known to our laws.
He did not believe that their Lordships would so deal with
the statute ; but if they did so, they must go further.
His Learned Friend also called upon them to strike out
the word " witl," and to substitute " and." . So that in
these two important enactments, made by the Legislature
for the protection of persons circumstanced as these were,
whose fates were now depending on their Lordships de-
cision the Attorney General called upon them to strike
out from both clauses, whatever worts he found it neces-
sary.° his argument to strike out, in order to read the
statute, so as to suit it, and insert in lieu of them words to
suit that argument. If his Learned Friend who had re-
plied at considerable length to the arguments of Sir F.
Pollock on Saturday could cite any one case on authority,
to be found in any book recognised in that or any other
Court of Law, in which, not in a case of life and death,
not in a criminal case at all, but in any civil case, in the
*most unimportant, the most insignificant case, in which
at,,v protection in any legal enactment was to be found in
any class of prisoners—it his Learned Friend the Attorney.
tient, ral could find any authority to enable any Court of
Justice thus to deal with any aro of the Legislature, be
should a,ay, at least, that his researches hae been mote
fortunate or unfortunate than his ( Mr. Kelly's), for
he • had fo,und nothing approaching to it in all his
researches. There were none—none such had been re-
cited or relied on at Monmouth, and none could
bo brought before their Lordships in that Court.
Tele meaning of the schedule was so clear and apparent,
that he could not conceive bow it could be attempted to
draw such a construction from it. He would now pause to
see what was admitted by the Counsel for the Crown. He
had voticed particularly the language used by his Learned
Friersd the Attorney-General, because he bad watched
anxiously to hear some argument that he might at once
meet and grapple, and deal with, according to the best of
his understanding of the statute. What had his Learned
Friend been compelled to admit, almost at the outset
of his argument? Why, that these words would bear
L. he construction put upon them by the Counsel for
th'e prisoners—that their meaning was one which could
fuVan, and properly be given to the Statute. Then,
if the Learned Attorney-General admitted that the
meaning for which the prisoner's counsel contended was
one avbich might fairly be given, before the Attorney-
Geneosl could substitute the other different meaning, he
must show two things,—first, not only that the meaning he
called upon their Lordships to give it was more consistent
with the plain words of the statute .and its context than
bis (Mie Kelly's), but also, as it had been held that the
present was a statute to be construed liberally in favour of
,lse prisoner he must show that that construction was
more favourable than that which the Counsel for the
prisoners called upon them to adopt. His Learned
Frienet had done neither, and therefore he repeated that
it was not possible to put such a construction without
striking out certain important words and substituting
others. tie contended that' the second meaning was
one much less in favour of the prisoner, and would be al.
together prejudicial to his case. He would now call their
Lordships' attention to one view of the statute, which, un-
less he deceived himself, was absolutely conclusive of the
question which they had now to determine. Ho under-
stood the Counsel for the Croon to admit that these lists
must be delivered ten days before trial, and in the pre-
sence of two credible witnesses. He presumed his
Learned Friend would not dispute that admission. Now,
then, if the statute did not require that the lists should be
delivered " at the same time with the cope of the indict..
sant," he denied that there was any provision in the statute
et all• that these lists should be delivered ten days
ne,;:ere the trial, or at any other particular time, or in the
presseoce of two witnesses. That position he would un-
dertak eto convince their Lordships of. Now, if their
Lordsin;ne looked at the words of the statute, they would
find that Ow provision was not that these lists should be
delivered tent days before trial, bat " at the same time with
the copy of the' indictment." His Learned Friend would
contend that these words were immaterial, and they were
treated as if they were not in the statute at all. Their
Lordships would, however, attentively consider the words
of the statute, and the meaning which ought to be fairly
acid legitimately applied to them. If the words considered
immaterial by his Learned Friend on the other side were
strock out, the statute would be a nullity as regarded'. the
ideneity of the delivery, and there was then no provision at
'all concerning the delivery of the lists. Unless they took
and incleded the words " at the same time" with the copy
of the indictment, there was absolutely no provision for
the delivery of the lists. It was only by the force of the
words" at the same time," in the early part of the indict-
ment, and the word " with," in the latter part, that any
provision was made for the delivery of these lists, and yet
his Learned Friend, the Attorney-General, would restrict
or entirely explain these words away. He (Mr. Kelly)
could scarcely, without confusion and a waste of the time
lime of their Lordships, cokt out the numerous and minute
alterations which should he made in the clause in order
that it should be reed as his Learned Friend the
Attorney-General would contend :or. In fact, in order to
.
do that it would be necessary for some oerson skilled in the
business to sit down and draw up an en;irelY new clause,
or to make such alterations and interlinea:.ions as would
completely remodel the clause: On the othe'r hand, if
their Lordships found that any man who knew the English
language, and had common sense, could 'make no other
meaning out of the clause than he (Mr. Kelly) contentl.ld
for, they would, be trusted, be slow to construe it in any
other sense. The statute did nut lay its framers open to
the imputation which a Noble and Learned Lord now pre-
sent threw upon the Legislatures of former days. The
statute was drawn up with great care, accuracy, and sim-
Isticky* which' any person only to hear read would deduce
from it. There were three papers to be delivered to the
prise; %ler altogether and at a certain period before the trial.
The fee rind Attorney-General would, however, call upon
their Leesiships to destroy the unity and simplicity and
accuracy of the statute, and that by striking out some and
substituting other words to meet his arguments. That
lought not to be done. No authority bad been cited to in-
' duce them to introduce a new reading of an Act which had
been in beneficial operation for the greater part of a cen-
tury. It was in his mind an attempt to deprive three pri-
soners on a trial for their lives of the benefit which the sta-
tute conferred on them. He would now come to the prece-
dents and authorities that had been referred to, and
here he was relieved by the arguments of Sir Frederick
Pollock, from occupying more than a few minutes of their
Lordship's time. He would only remind their Lordships
that the first trial for high treason in which this Statute
\
was brought into operation, was that of Lord George Gor-
don in 1781. Between that time and the present there
had been, he believed, some thirteen or fourteen recorded
trials for high treason (of course more persons had been
tried), and his Learned Friend ( Sir F. Pollock) by re-
ferring to the history of those cases, had shown that in
every one of sufficient public interest to induce the taking
i down all the proceedings accurately in short-band and pub-
% fish them in the State Trials—from tire case of Lord Geo.
Gordon, in 1711, to that of Thistlewood (which was hap-
', ify the last) in IS2o—this Statute was acted upon in the
vecy way now contended for ; it was a recorded fact that
at the proper period before the trial took place, the
lists were delivered and at the same time, Their
iLordships bad, therefore, first the words of the Statute,
then aft the practice that had taken place under it, in fa-
vour of the cases now presented for their consideration.
He would only refer to one of those cases for a moment, in
consequence of an observation of the Lord Chief Justice
of the Common Pl,-as, when the eases'o.f Lord George
, Gordon was adverted to. This having been the first in
1 which it was necessary to provide the Statute, inasmuch
11 as there was no ower' by levy in the public prosecutor t-,
the Sheriff, who was •
\ compel rot the officer of the At-
torney-General, to give to him a list of the Jurors re-
turned ; •the Court of King's Bench was applied to for a
rule on the Sheriff for that purpose, and it might not be
unimportant to observe, the rule must have been drawn up
by the Learned mover, or perhapslby the Court itself, with
I re Terence to that very provision, and by that rale the
if,'riff was required to de'ver the list to the At-
t o.
-neo-General or the Solicitor o the. Treasury, in order
that
Ji. copy of the same might be delivered
those Wetre the .'cry words of the rule in Douglas) at the
lame tit,'e w;!.h the copy of the indictment. It was Oa-
st nod by e'tte of their ;.ordships that this did not refer fe
he list of Nvl,'neases, e ;nch was not mentioned in the rule;
t
i on that he itad tyre remarks to Znake—first, thai the Crown
` did not need the aici of the Court to obtain a list • CI; the
Crown witnesses, which was within the knowledge of the
Solicitor of t.,..:0 Croy n, but nut within the knowledge or
control of the Solicitor of the prisoner, It would have
een, therefore, absurd to hove applied to tie) Court ie

—a different collocation of them. There was also a case Rex
v. Hitchins (9 Barnewell and Cresswell, 176) on a question
under the same Act, in which Mr. Justice Parke (now Baron
Parke) said—." It is a very safe rulP of construction to adhere
to the words of an Act of Parliament, giving to them their
grammatical and natural sense, unless when they plainly appear
from the context to be used in some ether sense." And these
words were more important from their having been accidentally
employed on Saturday by Mr. Baron Alderson.
Mr. Baron ALDERSON—It may not be improper here to
read the judgment which was affirmed by the Judges
in a case I have here—" It is a rule, in the construction of
statutes, that in the first instance the grammatical sense of the
words is to be adhered to, and if that is contrary to, or incon-
sistent with, the expressed intention of the Legislature in other
parts of the Act, or if it lead to any absurdity, the grammatiul
sense may be modified, extended, or abridged, so far as to re-
move that inconvenience, but no further."
Mr. KELLY—And in the present case the Attorney-General
admitted that the words in the statute of Anne might, in their
fair, ordinary, grammatical sense, be construed in the sense
argued for by the prisoner's counsel. And he defied the At-
torney-General to show in. the Act any words tending
to vary that sense. There were in the Act no word's
of context, or connection, which would in any way alter
that sense. And he (111 r. Kelly) woul,l, therefore, content
to be bound, for the life or death of these prisoners, by
the words which the Learned Baron (Alderson) had been so
kind as to read. Now, in 3 Neville and Manning 21, there
was another case under the New Poor-law, in which Lord
Denman " doubted if the Legislature contemplated--but still
had used words implying—that in such a case, the settlement
should not be gained ; ' and his Lordship decided on the express
words of the Act, with the concurrence of Mr. Justice Little-
dale and Mr. Justice Patteson, with Air. Justice Taunton, who
used these expressions—" the Judges are bound to adhere to

the at rict words of the statute, without resorting to any con-
jectures of their own." Now, in Rex v. St. Nicholas, Col-
chester, 4 Neville and Manning 422, Lord Denman said (hav-
ing referred to the last cited case), .‘ that he had been, with
the other Judges, startled at the consequences of their decision,
but the words were too strong to be deviated from, and he
was resolved to follow the express direction of the Legislature,
regardless of the apprehended difficulty in particular cases."
Again, in the King v. Ashworth, and the King v. Bushwell,
all the Judges of the Queen's Bench had decided, that they felt
themselves bound to adhere to the plain and obvious words of
Acts of Parliament, especially of recent Acts. Now, although
the Act in question was of an old date, still, for his purpose, it
was a recent one, for that was the first time any Judge had
been called upon to put a construction upon it. Here were a
number of cases decided, not for the protection of men's lives,
but simply in disputes between different parishes where Judges
had held that they were bound by the words of Acts of Parlia-
ment—all the Judges concurred in that sound constitutional
doctrine, that, where the words of an Act were clear, plain, and
simile,they wield not feel themselves at liberty to speculate as
to the intentions of the Legislature, nor look at even the spirit
of the Act, nor would they look at what consequences
might follow they felt themselves bound to look
at the words of the Statute. That having been decided in
actions against a magistrate, or in penal acts against 'a clergy-
man, or in disputes between parishes respecting settlements in
all cases of a civil nature, he would ask whether it were possi-
ble for them to depart from those rules and disregard all those
principles in a case involving the question of life and death,
and upon the construction of a most penal Act of Parliament
which was passed, admittedly on all hands, as a safeguard for
the prisoner. A reference had been made to what was called
Peels .Act ; he contended that that Act left the law positively
untouched. By the law under the Statute of Anne, the list of
jurors and the list of witnesses were to be delivered along with,
and at the same time as a copy of the indictment. Now, it
had been decided by all the Judges that the true meaning of
the word trial" in that and in the Statute of William was
arraignment, and that the Act required them to be delivered
ten days before arraignment.
Lord ABINGER—In the statute of Wm. the reason was given
—it was for the purpose of the prisoner consulting his Counsel
preparatory to his defence. 'These words were not to be
found in Anne.
Mr, KELLY was aware they were not, but he was not con-
tending as to the meaning of the word, he was endeavouring to
state the probable meaning of Peel's Act, and he thought it
was not material whether the word meant trial or arraignment.
All the commentators had laid it down that the word meant
arraignment, and he thought that had been the impression on
the minds of the framers of Peel's Act, that arraignment and
trial meant the same thing. If the arraignment meant the same
thing, eat was what was required by the statute of Anne, that
the Jury lisle should be delivered ten days before the trial. If
trial meant arraignment then Peel's Act provided that the copy
of the indictment and the list of the Jurors should be delivered
at the same time, and that time must be ten days before the
trial. If arraignment and trial recent the same thing then no
alteration had been made in the law ley Ppel's Act. But it
might be contended that. it means something different
from trial as meant by the statute of Anne. That that
statute did not mean the same thing as arraignment in
the statute of George IV. Be ie so. By once provision of
the statute of Anne, it was provided that the list of jurors and
the list of witnesses be delivered at the dame time with the
copy of the indictment ; by another provision that time was
fixed at. 10 days before the trial. What said the statute of
George IV. ?—it said that a copy of the indictment should be
delivered, not -ten days before trial, but ten days before ar-
raignment. It was now delivered at an earlier period—what
difference could that make with regard to the list of witnesses ?
The enactment respecting them stood untouched. The sta-
tute of Anne said, not ten nays before the trial, but at the same
time with the copy of the indictment. If the alteration had
said that the copy of the indictment should he delivered not ten
but twenty days before the trial, the statute of Anne provided
not that these lists should be delivered a certain definite numb
ber of days, but at the sage time with the copy of the indict-
ment. 'This was a necessary eopeequence, supposing the word
arraignment to mean something different from trial; and under
Peel's Act it was enacted, that a copy of the indictment and
the list of jurors should be delivered ten days before arraign-
ment. He had found various enactments stating that different
documents should be delivered at the same time, and what was
the construction that the practice of the Courts had uniformly
put upon such enactments ? He would cite one case, which
would exemplify what he meant, and in which the enactment
had always been construed in the manner ho had contended for,
until the practice had been recently altered by the new rules of
Court, Under the statute of George 11. it was enacted that
notice, if eat off, must always be delivered at the same time as
the plea. Did that say any specific time ? No. If the plea Vi ore
ente:ed four days after the declaration, the notice, if set off, must
be given four days after the declaration. At whatever time the
plea was pleaded, at the same time must the notice of set off be
served. 'f he Act mentioned no specific time for giving the
notice of set off, but enacted that it should be served at the
same time the plea was entered. By the statute of Anne the
lists were to be delivered at the same time with the copy of the
indictment. It' i
was also enacted that the copy of the ndict-
ment should be delivered ten days befere trial ; by Peel s Act the
copy of the indictment was to be dcliveredeen days before arraign-
ment, but this did not effeet the statute of Aline, which enacted
that the copy of the indictment end the list of witnesses should
be delivered at the same time. There was one remarkable
point in this ease to which he wished to draw their Lordships'
attention. His Learned Friend had said that dee prisoner
could receive no prehdiee if the lists were delivered to him
ten days before the trial. r, y t if hereafter an Act of Parlia-
ment should pass enacting eteet the copy of the indictment
should be delivered twenty days before the trial, the prisoner
would not hatee the benefit of having the lists ia; witnesses and
of the Jurors delivered to him twenty days beforelhe trial elso.
He eeeceived that, according ere Peel's Act, it signified nothing
ee„, keel the ,coely ed. e ipdiptment ten days before
it
.r" A... geea.ignment, And klti,s he considered
trial, or ten • 9,r, o eke A epreeecutor
lei 4s,li'.. • a
strong reason for calling
down to the strict letter of the • Axt
Lord A BINGEK—Then you contend that if an e„neut
ment were to pass, enacting that a copy of the inn..
should be delivered p
twenty days before trial, the ro-vi •
would equally apply to the lists of jurors and the listsofwsliotn 1

I,,sses, and if it were enacted that the list of jurors should bet -, le- st - T''' therefore, trusted that they would
.pause
. e see:
so delivered, it would app o . s three men toly to the copy of the indictmen
Mr. KELLY said there was this difficulty under the statute • must, wii iiout meaning any disrespect, be upon it.
permitted to sayiie
of Anne, it was enacted, not that the list of witnesses should be that he felt that if their Lordships Should find the point doubtful,
delivered at the same time with the list of jurors, but with the and the practice had in fact never been settled, they would not
copy of the indictment; therefore he did not know what would now suffer the execution of these individuals as a point of
be the case if an Act were passed altering the time of the de- practice which up to this time had remained doubtful and
livery of the list of jurors. It had also been said that Peel's unsettled.
Act created a severance of the delivery of the lists. He ad-mitted Mr. Baron PA RICE—It is a question of law that is to be
the severance with regard to the two documents. The Act said settled here, and we have nothing to do but to settle that
that in trials for treason in the Court of King's Bench a list of question.
the Jurors should be delivered ten days before trial; but when Mr. KELLY was aware of it, but if the practice had never 1
an Act of Parliament directed these documents to be delivered been settled, but if no case exactly similar had ever been cited,
at the same time, and another Act said that in a trial in a par- and if the nearest case cited one under the statute of William ,
titular Court one of those lists should be delivered at a diffe- 111., had determined this point of practice, against what had
rent time ; that, therefore, the law generally was altered. been contended for by the Counsel for the prosecution, he
He would now refer back to the statute of Anne, in order to would say their Lordships would not determine this case for
see if that affected the delivery of the lists of witnesses. the first time against the prisoners in three capital cases. He
That, statute provided, in clear language, that the list of wit- would say that their Lordships would not determine this case as
nesses should be given at the same time with the copy of the a point not sealed against the case under the statute of Wit-
indictment. Now, if there was anything in Peel's Act Liam 111., in order to let in the arguments, assertions, and aria-
that rendered that impossible, he quite agreed with the logies of the Attorney-General. lie would consider for one mo- I
Learned Attorney-General that it must, pro tanto, ment the proposition of his Learned Friend as to the construction 1
repeal that part of the Act. Now, Peel's Act stated that the of the statute—in which there was no express enactment
copy of the indictment was "to be delivered as heretofore." stating the time when these objections ought to be made. He
Thus far the Act of George did not alter the delivery in the would urge the point in favour of the prisoner—that no wit-
the slightest manner—the only effect being to render the de- ness should be examined against the prisoner concern.ng
livery of all the documents necessary at an earlier period. whom he had not received notice by means of a list
Chief Justice TINDAL—You connect the list of witnesses specifying his name and place of abode, delivered to him
inseparably from the copy of the indictment? according to the provisions of the statute—that was his
Mr. KELLY—Most certainly, and he could not too often re- proposition. The Counsel of the Crown contended that.
fer to the words of the statute. That there was no provision the statute should be read thus. The prisoner was j
for the delivery of the list of witnesses, but then " that they entitled to a list of the names and places of abode of
shall be delivered at the same time with the copy of the indict- the witnesses which should be delivered to the prisoner, ac-
ment." That was the only enactment to the time and mode col ding to the terms of the statute, provided he did not plead
of delivery. He, therefore, inseparably connected them, and without requiring the production of that list. He would ask
whatever alteration might be made as to enlarging or shorten- what was the time when, according to reason and common
ing the time of delivery of the copy of the indictment, the list sense, a party should make his objection as to the non• delivery
of the witnesses must accompany that alteration, just as it did of either of these documents? He would say, inasmuch as a
in Scotland. There was some inconsistency in the arguments prisoner was furnished with a copy of the indictment to enable
adduced on the part of the Crown with respect to the construe- him to consult with his counsel, thereupon the proper time to
tion of the statute as to convenience. The Learned Attorney- object to the non 'production of that would be when he was
General, both at Monmouth and there, had declared that called upon to plead to that indictment ; the proper time to object
convenience or benefit had nothing to do with it— on account of the non-delivery of the list of jurors would be
that no equivalent or equipollent was to be supplied, and yet he when the first juryman should enter the box, because he would
(Mr. Kelly) found• him over and over again, at Monmouth say he could not challenge him, having received no list to ena-
and there, contending that the prisoner was in no wise preju- ble him to make inquiries. So the proper time to object on-
diced, but in truth benefited by what had been done—that it account of the non-delivery of the list of witnesses would be
was an act of kindness to him, and that he had a copy of the when the first witness should be called into the hex to be ex-
verdict fifteen instead of ten days before the trial. But why, amined, because he could say no list had been delivered to him
when he had received the admonition of the Court as to the containing the name and place of abode of the witness who was
length of time they should occupy it—why was their attention about to be examined. He would, in reply to the arguments
to be drawn, while he (Mr. Kelly) and his Learned Friend of the Attorney-General, ask how it was possible for an ignorant
were under the constant apprehension of saying something that man to know that the time for him to object to the non-delivery
might be an undue occupation of their time—why should the of the list of witnesses was at the time he was asked whether
Attorney-General bring forward and compel them to re- he was guilty or not guilty. The act suggested no time at
ply to arguments that the prisoner was not injured which the objection was to be made ; and how was a prisoner.
but rather benefited by, what had been done? reading that statute, to know, that if he did not object at the
He confidently denied that argument had any room or locus time of his arraignment, he lost all right of objecting at all ? ,
standi in that Court—that it should not be used or adverted to, It also frequently happened that at the time a person was called
because it was a violation of every principle of law in the con- on to plead to the indictment, his counsel were not in Court, or
struction of a Statute to consider that there was something he might not have had counsel assigned to him, and he thought
clear and plain to the most ordinary understanding, and in order their Lordships would pause before laying down a rule exposing
to construe it they must inquire whether the prisoner might or uninformed persons to the obligation of making a grave legal •
mightnot be injured. If that was to be taken into considera- objection, at a time they have no counsel to assist them ; there-
tion at all, pray how was the prisoner to prove at the bar that fore they ought not to be compelled to make their objet- i
he had been injured or prejudiced? Suppose a case arose in Con at that time. He would ask further, with what '
,which he had sustained some real grievance or injury, what regularity could a person make an objection at that time ?
process or machinery of the law was then provided for the pri- W hat was there, when a party was called on to plead,
toner to prove it ? No subpoena could be issued to a or 'when a juror was about to enter the box, relevant to an
witness to prove it---or if the witness was present, was objection grounded on thenon-delivery of the list of witnesses? ,
there time at the Special Commission sitting at The Court would in all probability say in such a case you have
Monmouth, to enter upon those collateral inquiries? no right to interfere in the proceedings at this stage with an
Suppose there had been two indictments against John Frost— okection irrelevent to it i. the proper time to make an objection
one for high treason, with 100 men, at Newport, on the Ist of is when the first witness is introduced into the box, and such,
July—another for high treason, with 100 other men, at Mon- he would contend, was the proper time for raising this objection.
mouth, on the 10th January, it would be impossible to deny 'the force of practice of the Judges in 1709 was decisive to
that it he had then received the copy of the indictments and show that the time for making the objection to the non-delivery
list of witnesses at different times, he would have been mate- of the list of Jurors was not before pleading but after pleading,
rially prejudiced. If he had had only one list of witnesses mad and when the first juryman came to be sworn. The Learned
copies of two indictments delivered, might he not urge that he Gentleman here read an extract from the resolution of the
could not tell to which indictment the list referred, or that he Judges in 1709 to that effect. The question was then to be
could prove, by some of the witnesses on the list, that he was asked him if he had had a eopy of the indictment.
100 miles distant from the place laid in the indictment at the That appeared to him to be the recognized law and practice.
time? How could that statement be admitted ?—it would Nor was the making of the objection thrown upon the prisoner,
go for nothing. He submitted, therefore, that there for the Court asked him if be had been furnished with these
was ale power in that Court to enter into speculative documents.
inquries as to whether the prisoner was. prejudiced or not for Mr. Baron ALDERSON—AIthough that is so, the omission
non-compliance with the Act of Parliament. Still less could could not be an objection afterwards. It is a matter of favour
they consider how far he was aggrieved or benefited by it. which has been always observed, but if omitted it goes for nothing.
Their Lordships were bound to look at the plain and distinct Mr. KELLY agreed in that, but in merely observing as to
meaning of the conditions of the Act, and if what the Legisla- the time of making the objection. It was urged by the Counsel
ture required was not done, the prisoner was entitled to the for the Crown that they (prisoner's Counsel) should ehave
benefit of whatever legal consequences might necessarily follow. moved to put off the trial ; but he contended that it was their
It had been contended that the intention of the Legislature duty to have done so. When the Learned Judge (Baron Parke)
could not be that all the lists should be delivered at the on Saturday asked the Attorney-General when, in his opinion,
same time, because if the panel was exhausted it would the Crown was bound to prove that the list of witnesses had
be impossible to try the prisoners from the lists so de- been delivered, he observed his Learned Friend somewhat hesi-
livered. In that case the proceeding must be adjourned. mated, and at length answered, although not in direct terms—
If any such inconvenience arose, the Legislature was " The, Crown may be called ueon to prove that the requi-
responsible for it. If that had occurred at Monmouth he (Mr. sites of the statute have Been complied with before
Kelly) contended that the indictment must be quashed, and the party pleads." Suppose he (Mr. Kelly) was
the proceedings adjourned until a fresh Jury had been sum- right in the main ,point, he thought he could show their
moned, and a fresh indictment sent up to the Grand Jury. It Lordships, tHhat the timede: for taking the. objection was after
whom no list at all
could not be argued that that was a consequence never con-n tuntil
thepl eiadi ng
party.
served)e
—he
gnenhoarld. thatnatright,p ehresoh naidhueapmorniogmhten(in a t:.eitne evsesntwasof
tentplated by the Legislature, but it must be submitted to u
a remedy was provided. Thera was nothing to prevent the had
He thenentitledcall Court, in case of the Jury panel being exhausted, on its own put ineteonthe box, to say that no list of witnesses had been de-
authority to order the whole proceedings to be quashed, the livered. was.to upon the Counsel for
indictment to be again prepared, and the whole proceedings to the Crown to show that such list had been delivered. The At-
be gone over again, because the statute was not complied with. torney-General's answer was, that he was not bound to prove the
It was carrying the argument too far for his:Learned Friend to delivery, because by his having pleaded—because he denied
allow that when the statute of Anne was
,not in operation in that he was guilty of high treason, he admitted that he had re-
-1746, and there was no question about a simultaneous ceived a list of the witnesses. Nothing could be more pre-
delivery, the Court adjourned the proceedings several days, posterous and absurd than such a position. What was there,
that the prisoner might have a list of the new Jurors ; in the reason or understanding of man, to warrant them
which proved how zealous they, were to give the prisoner in admitting a principle so absurd and preposterous?
the benefit of whatever statute existed for his protection in this Lord ABlNGER—Suppose the Attorney-General complies
case, the delivery should be deemed sufficient, and the mischance with your requisitions, and calls a witness to prove that a list
waived. On that branch of the argument he had concluded, of the Jurors and witnesses had been delivered, according to
He had submitted the preciqe worsis of the statute, and had the statute, and you produced the lists delivered to the priso.
shown that the construction for which he contended had been nor, and showed some variation between the copy and the on-
invariably adopted in practice. He had laid before their Lord- ginal,—l ask, whether you say the prisoner should be acquitted,
ships a great variety of cases in addition to those of or that it would be merely an objection to the particular
Sir Frederick Pollock, in which it was decided that witness?
what a statute required should be done must be con- Mr. KELLY resumed.—Then not a single witness could be
strued literally and strictly, and had endeavoured to examined, because the statute had not been complied with.
prevail on their Lordships to dismiss at once all questions that Baron ALDEasoN—But would it apply to the panel?
might arise, whether or not the prisoner might be thereby pre. Mr. KELLY—Just sormy Lord. To say the prisoner should
judiced. And he would venture to suggest that it would be be acquitted on account of non-compliance with the statute was
rash, and if he dared to use the expression, he would say, not his proposition—but that that no witness could be examined
presumptuous—in any Judge to attempt to assign a limit to against him.
the benevolent intention of the Legislature for the benefit of Baron ALDERSON—Does it follow that if the panel were ex-
the prisoner. He had submitted views in which the statute hausted the prisoner could not be tried on that indictment at all?
was literally construed, and this doctrine held, and he had Mr. KELLY—Yes, my Lord.
only on this branch of the case to express the hope Baron Aenowsoei—That star ties one—let me 'suggest that
that their Lordships would not be prevailed upon to establish the law requires three things to be done before the prisoner were
by their authority any other ihansthe.strictand liberal construe- arraigned. Isnot thatequivalent to saying that the prisoner shall
tion of the Statute. With these observations be passed on to' not be arraigned before these three things are done. If so, when lie
the next point, namely, the supposed waiver of the objection. has been arraigned. He has lost the protection the Statute has
Now the question would naturally arise when he heard the given him. I wish to discuss the point, that 1 may have your
Counsel for the Crown contending that an admitted benefit, a assistance on it.
great privilege and advantage given to aprisoner by an Act of Par- Mr. KELLY resumed—lf the Statute were imperative,
liament had been waived, when did he find a provision in the it must not be deviated from on account of incon-
Statute that under anycircumstances the right should be forfeited venience or even injustice. In the case of proceedings
He found, on looking at the statute, that theprovision was un- having .to commence de novo there , would be only one
conditional, and he contended that where the Legislature had degree of inconvenience greater than in the case in 1746, and
passed an Act which, in direct terms, gave a benefit to an in- yet there was nothing to induce the Court to doubt that if this
dividual on trial for his life, there ought to be some words statute had been then in operation the Court would have
equally plain and direct, showing that right might be forfeited, quashed the proceedings, adjourned for a certain number of
before the Counsel for the Crown could allege that it had days, and commenced the proceedings again, in order to
been. The Attorney-General had stated that, by pleading, the give the prisoner all the benefit he was entitled
prisoner admitted he had received the list according to the sta- to. So much for the argument ad inconvenientem.
tute. What was his authority for saying so? Considerthe situation To meet the difficulty, that where the statute provided some-
in which the prisoner stood. There might be a prisoner hereafter thing to be done before arraignment—that the whole question
without the benefit of counsel,—how was such a one to sup- was equivalent to this, that arraignment could not be had till
pose that, when called on to plead, if he pleaded not guilty, he it was complied with.
admitted he had received the list. He hoped the Attorney- Mr. Baron ALDERSON—My question is, whether that is not
General would not, by his own assertion,. state so, but the whole benefit to the party from the statute—to enable the
refer them to some legal authority, binding upon their party to say he - would not be tried till these things had bean
Lordships' to show this privilege might be lost. Let done, and, of course, if he could not be arraigned he could not
him for a moment suppose his Learned Friend supplied the be convicted.
Court with all authority on that point that could be urged, with Mr. KELLY said emphatically, if that were to held, he
Rookwood's case, and Crooks, the only authorities directly should think it ten thousand times better that the Act
bearing on the question—the decisions amounted to this : that should be totally repealed. The whole benefit ! Why,
when the prisoner had omitted to ask for a copy of the indict- what had arraignment to do with cross-examination? And was
ment until after indictment it was held to be too late. The not the " benefit" of serving the prisoner with lists of wit-
objection was not, as had been erroneously stated, too late. nesses and jurors, to enable him to cross-examine the former as
By the statute of William the prisoner was bound to do the to character and credibility, and to object to the latter.
first thing—he was bound to ask for a copy of the indictment 7Alr. Baron ALDERSON—The words in thestatute of William
within a certain time, or he was not entitled to it. In the are the same in the two sections, but in different senses; first,
statute of Anne such provision was made—no such obligation " before arraignment ; secondly, " before trial." Therefore
was imposed upon the prisoner, he was perfectly passive from the statute points to the same thing, that the prisoner may say
beginning to end—the whole obligation of acting in conformity he will not be arraigned till the three things stated have been
with the statute was absolutely, unconditionally, cast upon the complied with.
Crown. Now, in the case in which the objection was urged by Mr. KELLY—But' in this statute the word is " trial." It
the prisoner under the statute of William, the facts were these— must be " before trial." The proposition against which he
The prisoner under the statute had a clear right to ask for a strenuously contended was this, that supposing three things are
copy of the indictment before he pleaded, that he might be provided to be done before trial, or, if trial did commence, that
enabled to plead thereto. He had omitted to do so ; and, after therefore the objection could not be urged. It was admitted
pleading, he objected that he had no copy of the indictment, that if no list had been delivered the trial could not proceed.
To which the answer was—" That, as he had not asked for it, Was not the objection as valid if no list had properly been de-
he could not now claim it." The Court went en to say— livered? The Court of Exchequer had lately decided on the
" That, as the prisoner had not asked for it, he must be pre- statute of frauds, that where a contract written had been
sumed, therefore, to have waived the asking for it ; and slightly varied by oral communication, it was thereby vitiated
that he had admitted either having received a copy, entirely. Yet that Act was not so stringent as the present.
or that he did not need it." Now he (Slr. Kelly) The Learned Counsel said he would very briefly advert to a
would venture to say, that this remark was incorrect and un- Scotch law. The intent of the statute of Charles 1., in re-
called for ; and that it could not be argued that the prisoner quiring delivery "at the same time" of indictment—list of
had in that case admitted his having received the copy, or that witnesses, and list of Jurv—w as, that he might learn how to
he did not require it. And if it should be attempted, on the prove competent objections—thatpersonsnot in the list shouldnot
pait of the Crown, to use this remark against the prisoner in be admitted wonessesiWkat had that to do with arraignment ?
the present case, he (Mr. Kelly) would say, that as the statute Ihe evident intention of the statute was that the prisoner
of William referred to the indictment and jurors, and the statute should have the right of objection, not before arraig. moot
of Anne related to the witnesses, it would be absurd to refer their on trial, but when the witnesses were called--that had
Lordships for the intent of the last statute to the former ; arid that b en heslhdietho be lawr dinin Hyatt'sl case, and of other two
r eAttornesteleGenCeeral courts
ntended
enSdceodtltaLdt.
rtinisis,
supposing it should be argued that the " intent" of the first
statute was that the prisoner should be enabled to plead—that
ought to have made his 'Objection when he was called.
cases which
Friend the
could not be argued of the case under the later statute. Now,
the proposition of the Crown Counsel was, that the prisoner, if upon to take his trial —h e
make
ee(
n 1 %wet
eor
u.
would
Kelly)asubstantiallydva advantage
t a deniedg eb
et him.r e that
proposition, for, o. n the . contrary, he had only to remain pas-
en theHe
dniiftaal called upon the counsel for the
he did nut make the objection prior to the swearing of the
Jury,thad waived it. sivo, and let the Attorney-Generalnp rtohcee ed
caseas foafr asw Williams
lei
am pleaseds
was
Lord Chief Justice TINDAL—Mr. Kelly, in the case you are
arguing, the- Jury had not been sworn.
Mr. KELLY was obliged to his Lordship for the hint—but unfit the
othtethoinbjkectthieornehweoasnhaeardas.yto
prisoner to say whether he objected to go on with the trial or
he did not desire to encumber the main argument with
the particular' variations in this particular case, to which he not,
and he . ted to go on.
not,
would advert hereafter. He would now notice the cases
Lord DENMAN did not suppose that the Attorney-General
causes of
n
which had been cited by the. Crown Counsel, as analogous to intended to contend that there was substantially any difference
the present upon this point. His Learned Friend the Atter-
between the cases of the prisoners.
the,
t h e two
Attorney-Gonerpris
ney-General had cited only other two cases, the Kin, v. Stone
The VrTORNOT-GENEOAL—Certainly not; for Frost, not
and Hill v. Yates. He (Mr. K.) would not take up the
j was sufficieet.
time of the Court in arguing them, for they were not any way having objected,,_ .
as one point which ' li mig tbe attempted
analogous to the case under their Lordships' notice. He had a Alf. KELLY —There
a difference in the cases_a Mr. Owen
case to which he begged the serious attention of their Lord- to be made as
an attorney, and he waite Aiwas
uon le 11 aule,
as-
ships, as it appeared to him to be clearly and perfectly analogous signed to Jones as
Treasury, and an admission was attempted.
to the case in question—not only in its facts and character, but the Solicitor for the. .
but he would noi
it was also most important as showing that the objection had to be proved of a weia-ert,he
point, for hewaste the time of
been taken at the proper time—it was the King v. Warde, the Court in arguing er imsel, eould contended that no
and was reported in 12th Modern Reports, 516. The de- agent, nor even the
Y Pnlie Act, except in Court any waiverof any
fondant was indicted for Barratry, in which case claim given Inn
Istt,rcations he had felt it his
the Judges.
he was entitled, not by an Act of Parliament, but by very old These were the
observations
that their Lordships w duty to make in
practice of all the Courts, to a copy of the articles to be insisted this case, and he were now called upon
upon at the trial, in order that he might prepare for his defence. for the first time to determine as to the construction of the
Now, in that case, the copy was served upon the servant of the statute, and lay down a rule that would be binding on future
eprisoners, and he did not doubt but that
defendant, but that service was adjudged ill. That was not a Judges and on futureurbe
such that all should
case of no notice at all—there was a service upon the servant, their decision would
.di be able to say that
strictly, and
but it was held a bad service. A trial without due notice was the Judges had rigi y,
t. literally obeyed the letter
no trial at all; and it was held that, when there was a rule to of the Act of Parliamen,
give a copy of the articles, and that was not dope, then the Lord DENMAN would
suggest,
as the Attorney-General had
length on
prosecutor ought not to be entitled to give any evidence at the been heard so much at Saturday, that Sir William
trial, and the defendant would therefore be acquitted. That Follett should be heard now for
__.the other prisoner, and that
was a case in 'point, and he would watch to see if the At- the Attorney-General should reply to the arguments of both
tornev-General was able to give any satisfactory answer to the Learned Counsel,
it. Probably he might contend that it was a ease of mere After some little discussion, this course was agreed to.
irregularity. Sir W. FOLLETT then commenced his argument on behalf of
Mr, Baron PARSE—Vi is the nature of the service of the the prisoner William Jones. lie stated that he felt great
•
articles ? difficulty Lordships in addressing their dships on amount of the
air. lee:eels believed that it was to be before plea pleaded, great importance of the cave. If it had not been on account of
but his Learned Friend, Sir W. Follett, would answer the its great importance be should not have detained their Lord
question, he not being then able to state the rule ships by addressing any arguments as to the construction of the
positively. The statute of Anne did not point out statute of Anne with regard to the list of witnesses, as it was
any time for the objection to be taken, nor any impossible not to see from what had fallen from some of their
time when the objection was forfeited. He was prepares{ Lordships, that the difficulty they felt was as to the time of
to contend, that even after the Jury were sworn the prisoner making the objection. With respect to the construction of the
had 'b. 'right to ;•:I',lt an objection to the non-delivery of a copy Act o: Parliament it was impossible he would say for any lawyer
of theindictinetit, It was a 3uestion of great doubt, and their ito look at that Act and say that the intention of the Legis-
Lordships would pausejsefore they sent three men to execution 1 la'ure was not that the lists should be delivered at
upon a point so doubtful oven to `tee seost eminent ' the same time with the copy of the indictment. It said so in
Couneel at the bar ; nay, _he would ' saythathid the plain and intelligible terms ; there was nothing impossible,
priiiie:t. Consented" any of those whoin he had 'Pie 'honour : nothing "absurd fn this requitement, end therefore he would
•e eedreseing wi all ebeir pre-eminent ability, but would have contend that all'' Carts Were to TollOW tbe strict and literal
-• sae ~,eint 'ea one atigiitang q very greye tioiAt oiie6tiops-of it. Whey had no right to inquire if it would

considered i....