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

there has been an attempt mad, to show that this tool,
place out of inclu!gtoce to the priione:s, I think v ma'
lot be miAt to 3nol! there a more probability that It
took place out of an error cawed by tie omission in the
text books. For even in the excellent work of that ablt

and Industrious man, Mr. Sergeant Stephen, the saint
omission is to be found ; and at the bottom of p. 279.
speaking of Peel's Act, it urges the necessity of delivering
the list of jurors with the copy of the indictment, but say.;
nothing about the list of witnesses. I now come to thr.
point of practice. The practice is to deliver both listt-
with the indictment. This practice seems to have pre-
vailed in all instances. On the trial of Hardy, Horne
Tooke, and others, as reported in the 24th volume of
State Trials, p. 19, after stating the proceedings, " in-
dictment found," surrender of one of the prisoners, as-
signed counsel and attorney, at their request, I find that
on October 13th, Mr. White, Solicitor for the Treasury.

delivered a copy of indictment to each of the prisoners, a
list of jurors empanelled, and a list of the witnesses to prove
the said indictment. Here your Lordships see that the
Act was complied with, and you will find it complied with,
I believe, on all subsequent instances, though I cannot
pledge myself to that fact, as I Lave not beside
me a full collection of State Trials. I brought
down with me some of the most _ important.

As your Lordships might see that I did not
come prepared to make this objection, it was not
until we examined the original papers down here that w•
had seen that this irregularity existed a priori. But I
will show your Lordships the course of every case that I
have down here. On the occasiofis'of Crossfield's trial, it,

1796, which your Lordships will find in 20th vol. Stits
Trials, page 1, there you will find the trial of Robert
Thomas Crossfield at the Sessions in the Old Bailey.
Here also the apprehension of the prisoner is stated as
before. It is stated that on the 18th February Mr. White
handed to each of the prisoners a copy of the indictment, a
list of the Jurors empannelled, and of the witnesses to
prove the indictment, and I have ascertained that in every
one of the cases here cited tho same course was adopted.
I find that the Attorney-General of that day, Sir John
Scott, in opening the proceedings, mentioned this fact in
particular to the Jury, which your Lordships will find in
page 14. " Gentlemen, the individual accused meets the
accusation lin the face of his country, and under circum-
stances which form a great protection to men when in
such a situation as the present, which I cannot de-
scribe better than in the words of the Learned Judge
whom I have already referred to The law in the case
of high treason now provides that the prisoner should have
the copy of the indictment for a certain number of days
before he be called upon to plead to it, and it also requires
that, at the same time, when the indictment is given
to him, a list of the jurors shall be given to him, and
that a list of the witnesses to be examined in proof
of the indictment shall be put into bis hands." The
prisoner, therefore, finds himself in a situation new to
the law of England. Lord George Gordon was tht.
first person on whose trial the Act first (same into ope-
ration, for the Legislature did not venture to apply this Act
to the country in those times, but postponed the operation
to a period which did not arrive till twenty years
ago." My Lords, there is a trial which every one
recollects connected with the rublic history of the
country, and which is to be found in the same volume
the trial of David MiLeanseep. 752 in the year 1797.
In that report it is stated that the prisoner wss
brought to he bar, &c., and that on Saturday, 17th
June, a copy of the indictment, a list of the jurors
to be impanelled, and a list of the witnesses, were
delivered to the prisoner in the manner directed by
the statute of Anne, sec. 11. Then, at the trial Of
O'Quigly, 11 vol. 798, I find that on the 17th April, Mr.
White, Solicitor to the Treasury, caused to be delivered
to each of the prisoners copies of the caption and indict-
ment and lists of the petit jurors and witnesses. From the
year 1791 to 1817, lam not aware—l don't recollect any
important trial, except about 1803, that of Despard, which
took place when I was at college, and though I have not
a printed copy of the report here, I am sure my Learned
Friends opposite would derive no benefit from it. Then,
in a case reported in the 32d volume of Late Trials ( I
have not the volume here, but am reading from the autho-
rised version taken in short-hand), it appears 1 Vol., p. 26,
that on the 25th May, Mr. Litchfield, Solicitor to the
Treasury, allowed to each prisoner a copy of the indict-
ment, together with a list of jurors and witnesses. The
same circumstance is mentioned on occasion of the trial of
Brandson, in the autumn of the same year. The case is re-
ported in the same volume of State Trials. This leads us
up to the year 1120, to the trial of Thistlewood, and other
State Trials, Vol. 33, where also I find, quoting from the
short-hand version, Vol. 1, p. 22, that on the 3d April Mr.
Maule, Solicitor to the Treasury, delivered to each of the
prisoners a copy of the indictment, a list of jurors, and of
witnesses. I might here close this part of the argument.
I becauseel your
it L
showsordsh i p
thee' attentioniudioini tiohnas
which
But as I find the matter laid down in Lord G. Gordon's
place,cueconstruction
was then put upon the Act. There the Officer of the
Crown applied to the Court, from the conviction that he
was bound to take a particular course, namely, to deliver
a list of the jury, with a copy of the indictment. That
it should be done at the same time the officer felt, and I
need not remind your Lordships that that which is true
of the list of the jury must be equally true as to the list
of the witnesses. This was an application to the Court
to make an order on the Sheriff, and this, that the prose-
cutor might deliver such list to the prisoner, according to
the provisions of the statute, to give to him a copy of the
list of the jury at the same time with a copy of the
indictment. The then Attorney-General said, that this
seemed to be the only method of complying with the sta-
tute. The words aro that a list of the witnesses who
should be produces on the trial should be delivered
to the party indicted ten days before he was ar-
raigned. This, it was to be remarked, was be-
fore the party was arraigned—for there was no
issue until the party was arraigned, and there could
be strictly no jury until issue was joined. As to the other
list, there was no necessity for an application for it to the
Court, because the Attorney-General has himself the
means of furnishing it. In a note to the case of Lord
George Gordon, the copy of the original rule is pre-
served. It is set out in the note, and it is this. The rule
is drawn up in the following manner Middlesex, the
King against G. Gordon, Esq., commonly called Lord
George Gordon (this is to be found in 648). It is ordered
that the Sheriff of Middlesex do forthwith deliver to the
prosecutor a list of the jury for the trial of the prisoner,
mentioning their names and places of abode, in order that
sch list may be delivered to the prisoner at the same time
with a copy of the indictment."
The Grand Jury here came into the Court with indict-
ments, by which it appeared that true bills had been
found against John Aust, for a conspiracy ; true
bills against Thomas Edwards, William John Llewellen,
Evan Harris. and John Coles, for a oonspiraey ;
true bills against John Gil:by, fur a conspiracy; true bias
against Evan Edwards, for a conspiracy ; true bills against
Frederick Turner, and Thomas Bolton, for a conspiracy
and riot; true bills against John Bolton and Thomas Davis
—no true bill upon the first count; true bills upon the
third count ; and upon all the counts, against John Charles
for a conspiracy and a riot.
Lord G. Somerset remarked that the Grand Jury had
no more bills before them.
Mr. Bellamy said that those who were concerned for the
prosecution ought not to keep the Grand Jury waiting.
Sir F. Pollock resumed.—ln the case, then, of Lord
George Gordon—l call your Lordship's attention to it, as
most important, for there I find the form adopted by the
Court itself, the Attorney-General then having been called
upon to consider
the way in which he had to comply with
the statute—the Attorney-General then mentioned the only
way, as it appeared to him, in which it could be done. The
Court embodied that in their rule, and ordered that the list
should be returned at the same time with the indictment.
I consider that there is a recognition on the part
of the Court of tbat which ought to be the practice.
no
There is other practice ; and if that is the practice
with the list of the Jury, it ought to be so with the list of
the witnesses. There is no distinction. I deny that the
most subtle ingenuity can take any such to exist in the
legislative enactment, as regards the one or the other.
Not only is the provision of the statute clear and free
from all doubt, but there is the practice invariable and un-
broken. It appears to be settled in the first instance,
after very grave deliberation, that the law officers of the
Crown in 1781, sanctioned by the Court, made a rule,
calling upon the Sheriff to do that, which enables him to
do that which the Act called upon him to
do.
I do not
know whether it is my Learned Friend's intention, on the
other side, to say that your Lordships are to look to the
grounds of the provision, or to the object of the statute, or
to the spirit
in which it was framed, and that if you find
that the Act has been substantially complied with, that,
you will then proceed to try the prisoner for his life.
say here that the Act has not been literally complied with.
With the object of the Act your Lordships have nothing to
do here in public more than Mr. Justice Foster bad when
he wrote about it in private. You are restricted by the
necessity and the wisdom of the law; and here, on the
part of the prisoner, I say that the law must be obeyed.
Suppose it should turn out that Mr. Maule would be
obliged to admit that he delivered a copy of the indict-
' ment, and • list of the panel, and a list of the witnesses
to the prisoner, but that he delivered them in the presence
of one witness only. I put that case. What it might be
said, would be then the prejudice done to the prisoner—
what could he suffer—for he would get just as much in-
formation if he had the list of witnesses and the other do-
cuments—what more information could they give to him,
by being delivered in the presence of one witness instead
of two, and yet the law declared that they should be given
in the presence of two, and not one witness ? I say, then,
that they ought to come together to the prisoner, and
if it be in the presence of fonts witness only, I
have a right to say that there has been no delivery,
in pursuance of the statute, as there ought to he. I
say don't talk to me of the object of the statute, I
claim the privilege of the law. I say, that if there were
but one witness present, the law declares the delivery to be
vicious. It is vain, and you can call no witness who is
on the list, as there has been an imperfect delivery. But
then if your Lordship; look to the reasons, against which
however I still protest, there are very grave and very im-
portant reasons which may be found for every part of
these provisions in that Act of Parliament. It was in-
tended as against the Crown, and against the great influ-
ence and prerogative of the Crown ; it was thought that
it was much better to have two witnesses rather than oue.
So, my Lords, it was thought right, that the prisoner
should have all those documents together, and not to be
delivered to him by dribblets. The law required that the
indictment should not be given at one time, a list of the
i Jury at another time, and at another time perhaps, to
I have one knocking at the dungeon. and after the doors
had been closed, calling upon him at a late hour of the
night, in order that he might receive from the Crown
that which, within the rules of the prison, no sub-
ject could deliver to him. It is important that the de-
livery of the documents should be delivered together, be-
cause they are connected together. If there is not some-
thing to cr,nnect them together, how is the prisoner to
know to what indictment the list of witnesses applies? I
have here, my Lords, a list of witnesses, not, certainly,
that given to Mr. Frost, but to some other prisoner; but
they are all the carne.._they are all alike. They are
printed, they aro the same; this, I suppose will not he denied.