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

have been drawn forward as a means of defeating justice. The
question now was, whether the objection was well founded, and
whether it could be taken after the jury had been charged with the
indictment ? If it were a valid objection, and if it
had been taken at the proper time, Frost was certainly
entitled to be discharged. But whatever might be the
result of this deliberation it would give him heartfelt satisfaction
to know that the alleged illegality could not have produced any in-
jury to the accused party; on the contrary, he thereby de facto
enjoyed an advantage—he had a greater opportunity of preparing
for the trial than he was by law entitled to. His Learned Friend
himself had not suggested any ease of hardship towards the prisoner
which could result from the course pursued. There were two con-
siderations, however, the first was whether the objection was well
founded; and the second, whether it had been urged at the
proper time. Whatever the forms of the law might be,
he allowed that they should be observed, and that the
question for their Lordships was, not whether these forms were
advantageous to the prisoner—whatever this prisoner was entitled
to by the Act of Parliament that specific advantage he had a right
to demand—but then in endeavouring to ascertain what was the
meaning of the Legislature it was most material to see what was its
object, and how that object could be best accomplished. What was
the object of the 2d Wm. 111. ? Was it to enable the parties ac-
cused to elude the law by starting objections after the trial
had begun ? The object of it was to enable him to prepare
for his trial—to know the charges against him—the jurors
by whom he was to be tried, and the witnesses through
whom the Crown was to try to bring home the charges
against him. The object of the statute of William 111., and of
Mary, was to give persons accused of treason, and of misprision of
treason, all just and legal means of defence. If the 11th section of
the 7th of Anne, like the various acts referred to by his Learned
Friend, would bear only one construction, and merely required
simultaneous service of the copy of the indictment, with the
lists of jurors and witnesses, he allowed, that the objection, If taken
in time, must prevail, their Lordships had no power to relax, and
he (the Attorney-General) would never call npon a Judge to do so.
If that statute was like the Scotch Act of 1672, to which reference
was made, and which he admitted required simultaneous service,
undoubtedly the objection would prevail, but the other statute un.
doubtedly admitted of two constructions. He admitted that one
construction might be that the service should be simultaneous, but
there was another which it admitted of, and if he showed
their Lordships that the object of the Legislature
,could be
much more efficiently carried out by the latter, then they
could find no difficulty in giving the words that interpre-
tation. Now, what were the words " that the list of
witnesses, and the copy of the indictment should be delivered
at the same time." His Learned Friend would stop there, but
he (the Attorney-General) contended that he was not at li-
berty to do so. He must go to the end of the sentence—" And that
copies of all indictments with such lists shall be delivered to the
party ten days before the trial, and in the presence of two or
more credible witnesses." That gave the time within which
the act was to be done, but the question was whether " the
same time" meant the same instant of time, or the same in-
terval of time ? If it meant the same instant, the service should
be simultaneous ; but if meant the same interval, it
showed that the Legislature only required that ten
days before the trial copies of all these documents should
be served on the party. He contended that according to
the construction of the sentence that was the proper
meaning to be applied to it. In fact the whole objection of
hie Learned Friend resolved itself into the point—admitting
that the sentence would bear two interpretations or construc-
tions—that the prisoner had been served prematurely, that he
had had too much time to prepare for his defence. He could not
see what inconvenience could arise to the prisoner from its being
admitted that he had been well served on the 12th of December.
It was not denied that on the 17th when he was served
with a list of the witnesses, he might have been served
with a fresh copy of the indictment and list of jurors. What
advantage would that confer on him when it was admitted
that he had been served with a copy nine days before ? The objec-
tion most undoubtedly would arise under Peel's Act for high treason,
because there, before arraignment, there was to be a copy of the
indictment,and after arraignment the list of the jurors was to be served.
Did their Lordships suppose that persons placed in such a situation
would be allowed to stand on what his Learned Friend painted as
most deplorable ? The Legislature having done that in one
instance, as in the case to which he referred, the Act
6th George IV., i bowed clearly that they did not consider the
separation of the lists any hardship or injustice. In many cases, the
list of witnesses, with their professions and places of abode, could
not be made out until some time after the indictment was found.
The making up of the 1 st was a matter of great anxiety and difficulty.
If the doctrine of his Learned Friend were held to be good, then sll
who were placed in Mr. Frost's situation wore to be deprived of the
advantage which he had enjoyed, of having five days extra for con-
sulting his Counsel as to the validity of the indictment, and several
days for inquiring into the character of the witnesses to be pro-
duced against him. If the objection were held to be a valid one it
might benefit Mr. Frost, but it must prove very detrimental to
the cases of any one who might hereafter be placed in his unfortu.
nate situation. According to the statute of William there were
three distinct times for the service of the indictment and lists.
By that of Anne all were to be delivered at least ten days before
the trial of the prisoner. Was it any forced construction to put
upon these words to say that "at the same time" means " within
the same interval of time," and not at the same point of time
The words of the statute admitted of a double construction. His
Learned Friend had contended strongly that the delivery of the
iists and indictment was to be but one act, and in proof of that
he cited the fact of the act requiring the presence of two wit-
nesses, but the two witnesses might be in attendance
upon each of the several services. There would be no real
inconvenience to the prisoner in being served with the
copies of indictment, and lists of jurors and witnesses
before the time fixed by law, but if the objection prevailed much in-
convenience must arise in the administration of justice. In the
first place there would be a difficulty in saying what was the same
time. Would his Learned Friend contend that all the three
papers should be stitched together, in order to snake a good simul-
taneous service ? Would it not be a good service if a copy
of the indictment were given to the prisoner, which he
might read, then he might be served with a list of the Jury, and
afterwards with the list of witnesses—the party serving being in
the room all the time? He would contend that the service was
good, even if the party serving had gone out of the room, and re-
turned each time. If the literal construction were put upon the
Act that was contended for by his Learned Friend, much injus-
tice must arise in the present ease, as well as in others that might
follow. Under the statute of William, it had happened several
times that the jurymen summoned had been exhausted by chal-
lenges. The course then taken was to require the Sheriff' to sum-
soon more jurymen ; and the Court then adjourned to give time for
a list of the jurymen so summoned to be served upon the prisoner.
Several instances were mentioned in Foster on Criminal Law, p. 63.
Their Lorships would find in I East's Pleas of the Crown, p. 113, a
case in which so many jurymen were challenged that not enough
were left to try the prisoner. The Court awarded a new panel, and
adjourned .o give the prisoner time to view the copies and panels.
According to the doctrine of his Learned Friend, Sir Frederick
Pollock, in such a case as that the prisoner could not be brought
to justice.

Mr. Baron PARSE—On a fresh indictment he could.
The ATTORNEY-GENERAL—Not by any possibility on the firs,.
Mr. Baron PARSE—Unless the plea be struck out he could not be
tried on tho first indictment.

The ArTORNEY-GENERLL—He could not. He (the Attorney-Ge-
neral) said that if his Learned Friend's doctrine was to prevail
there, it would be the most awful perversion of justice. He would
then ask their Lordships whether, when there was a double con-
struction, their Lordships were to take the words without looking
at the intention of the Legislature. He contended that if their
Lordships were to hold that one error as to the profession of a wit-
ness, were to vitiate the whole of the proceedings in the case, he
contended that such would be against the intention of the Legisla-
ture. And Lord Chief Justice Tindal might recollect that many Jury-
men were rejected because they were not properly described, but
that only went to the poll, and not to the array.
Again, the statute of Anne said that there should be ten days be
fore trial, whereas it bad been held that this was ten days
before arraignment—yet trial and arraignment were very dif-
ferent things. So the statute of William directed the pri-
soner to be served with the lists returned by the Sheriff
of the Jury. But the Judges saw that the object of
the Legislature was, in this enactment, to secure to the accused
a knowledge of those by whom he was to be tried ; and they held
that it would be a sufficient conformity with the Act, if the
prisoner received the lists before they were returned by the
Sheriffs, yet the departure from the exact words of the statute
was considerable. Again, it had been enacted of certain objections,
that they must be taken " before evidence given;" but the Judges
had held—and it was laid down in East's Pleas of the Crown, that
these objections must be urged before pleading. Here were,
therefore, many strong cases in which the Judges had departed
from the ►iteral words of the Act—considering that thereby they
more conformed to its real meaning. Now, as to the dictum
of Lord Eldon, when, as Attorney-General, he was ad-
dressing a Jury—their Lordships would surely not attach much
weight to it. Nor indeed had his Learned Friend quoted authori.
ties to show that the service of the three documents were to be
simultaneous. Whereas Blackstone, Foster, Stevens, and
others, held that within ten days was sufficient. And
Blackstone, when enumerating those guards and defences
which the law threw around a person charged with high
treason, never alluded to this simultaneous service. Now he would
briefly dispose of the cases cited by his Learned Friend, which,
without disputing their authority, had no applicability to the pre-
sent. As to Lovelace's case, the Act required the notice
to state process, and no process was stated ; why,
that was a clear violation of the Act. So in the case
requiring service at the registry—where there was not. So in
the case wherein, instead of proclamation at the " near" market
towns, it was done in market towns not so near as others. So in the
case of the notice stating a residence at New Inn, London, whereas
it was in Westminster. All these were clear violations of the Acts.
It was quite unnecessary for his Learned Friend to quote cases in
which parties were accused of contempt for not obeying a subpmna,
when the original was not shown at the same time, because he
allowed that in such cases a different time could not be inter.
preted as the same time. Then, as to the Statute of Frauds,
as to the execution of wills, it was not the same time required,
but the time at which the witnesses signed it might be different
times. The Attorney. General then cited a variety of cases to
illustrate his point, and proceeded His Learned Friend had
said Lord Tenterden had protested against the equity of the
statute ; but be (the Attorney-General) did not rely upon its
equity. It was to receive an equitable construction. He thought
it was not necessary to occupy more time In commenting on the
cases quoted—he neither disputed the point decided, nor the doe.
trines laid down by the Judges in pronouncing the decision of the
Conrt. Before became to Peel's Act, he must shortly advert to what
had been said on the Scotch Act of 1672, but he would reserve for the
second branch of his argument the main body of the observations
he should deem it his duty to •ffer on that decision, as he was
now upon the statute of Anne, which was to be construed according
to the statute of Charles 11. But in the commencement of his
observations on the Scotch law, he said that their criminal law was
so essentia:ly different from ours in enactment, and still
more In the manner of administration, that there
was the greatest difficulty in drawing any inference from
the one to the other—there were great admissions made—a public
prosecutor who prepared the indictment—there were upon that,
as his friend had most correctly stated, by way of record, a list of
the witnesses to be examined, and of the jurors, and unless all those
things were rightly done no witness could be examined and no
juryman sit upon the Assize. Then there was a peculiarity in
Scotch law, of which the law of England knew nothing, namely
a citation ; if the party accused were in custody he was brought to
trial, and a citation was not necessary; but if he was at large he must
be cited, and what was termed inducite of fifteen days must inter-
vene between citation and trial. Now a citation was serving the
party accused with a copy of the libel; but there was no such
form in the English law, : nd therefore with these essential points
of difference it was extremely difficult to trace any analogy be_
tween the laws of the two countries. Nov it was said as the
Scotch statute of 1672 required simultaneous service, the statute
of Anne must necessarily require it also—that the 37th Anne,
introduced the treason law of England into Scotland, was
undoubted, but it was the treason law of England into Scot-
land, not that of Scotland into England, and not only so, but all
the machinery by which that law was administered was introduced
from England into Scotland, and after that on trials for high
treason—there was no citation—the Act required no alteration of the
law of high treason as administered in England, it simply intro-
duced it into Scotland, and they had a Grand Jury ; the bills
of indictment were found exactly in the same manner as in
England,—a commission under the Great Seal of Great Britain,
for which reason it was suppc stl to be an Imperial Court, in which.
the Bar of both countries might practice. Now the 7th Will. lII_
certainly abjured simultaneous service, and it was im.
Possible to say that any one thought of simultaneous ser.
vice until the death of the Pretender, when the 7th
Anne came into operation, If his Learned Friend
were allowed to take one clause, or one number rather of a sen.
tence in that section of the 7th Anne, he might say there was
some analogy between them. But when the English statute
gave them the way in which this service must be done, but no
time in which it must' be done ; the Scotch statute must
not be continued as the 'simultaneous service, but the service
must be the same as the English service, which admitted clearly of