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

whico lam now staling, by Sir M. Foster, and by him and I
by several of the authorit,es quoted by my Learned Friend
mentioned merely as an act requiring dim lists et wit-
nesses to be delivered ten days before trial; and this omis-
sion on the part of such authorities may in a great measure
account for what has occurred on the present occasion,.
thoughit can in no manner change the meaning of
an Act of Parliament, nor affect the unceasing usage which,
in conformity with the terms of the statute, has occurred
on every occasion since this statute came into operation.
The book from which I quote this statute is" A Collection
of Statutes," published in 1709, and we find it stated, I be.
lieve by Sir Michael Foster himself, that this book was
published by order and under the authority of the House
of Lords; and I remember on the trial of Brandreth,
in October, 1817, Mr. Gurney (now Baron Gur-
ney) mentioned that this book was published by autho-
rity of the Judges, and, therefore, that the forms
of the proceedings therein mentioned were of great
authority, and your Lordships see that the book bears the
name of Mr. Justice Powell, and all the other Learned
Judges of the law, as authority
.for its publication. The
index of the statutes contained in this book gives the ac•
count of it :—" After the Pretender's death, and three
years after the succession to the Crown, shall take effect
as limited, then a list of witnesses and jurors, and a copy
of indictment to be delivered to the indicted ten days be-
fore trial;" and the index has omitted to draw any one's
attention to the extremely important part of the clause,
that the lists should be delivered at the same time as the

indictment.
The Attorney-General— cannot find the index.
Sir F. Pollock—lt is not an index; it is called a
" Table of the foregoing Acts," under the head " Trials.'
With your Lordships' permission, I will refer you also
to the notice which Mr. Justice Blackstone takes of
the matter in his " Commentaries," in his 4th volume,
page 351, 10th edition. After mentioning that by the
statute of William it was provided that the prisoner
should have a copy of the panel of the jurors two
days before the trial, and that he should have a
copy of the indictment, which includes the cap-
tion, but not the names of the witnesses, Ave days at
least before the trial (which has been held to mean the
period of arraignment), for then is the time for the pri-
soner to take exceptions thereto, and to plead or demui
to the indictment, the Learned Jndge (Blackstone) pro-
ceeds to state that by the Statute of Anne, all persons in-
dicted for high treason shall not only have a copy of the
indictment, but shall have a list of all the witnesses who
are to be called to prove it, ten days before the trial, in
the presence of two witnesses, not omitting also to state
that the list of witnesses must be delivered at the same

time as, and with, the copy of the indictment. But it
eh() appears that this last Act of Anne, so far as regards
some of the inferior cases of treason or misprision
of treason has been repealed by the 6th George 111., cap.
53, most probably in consequence of a passage from
Mr. Justice Foster's prospective view of the Act,
which I shall read to your Lordship's presently. The
work of Mr. Justice Foster leads me to allude to this
historical fact, which is stated in several books, that the
trial of Lord George Gordon, in 1781, for high treason,
was the first occasion on which the Statute of Anne be-
came practically the law of the land. It is true that it
was the law before, but the law had been in abeyance ; it
was to come in force only upon contingency which depended
on two events—the first was the establishment of the suc-
cession of the house of Brunswick, and the second was
the death of the old Pretender. The old Pretender was
alive in 1715 and 1748, and died at a very advanced ago.

I do not know the exact period of his death, but there is no
doubt that the Act came into practical operation, for tlie
first time, at the trial of Lord George Gordon for the
riots which took place in 1781.
The Attorney-General There can be no doubt of
that fact. _ _

Sir F. Pollock—Well, then, Mr. Justice Foster, in
speaking of this Act, devotes a section to it, and his ob-
servations will be found in the 12th section of his dis-
course on high treason, page 249, where he says be should
then proceed to consider .the clamed of the statute of
Anne before pointed out, and he then alludes particularly
to the 11th section. The book of Mr. Justice Foster,
which the Attorney-General has quoted as a high autho-
rity, was written in 1762.
The Attorney-General—lt was written, I believe, many
years before, but not published till then.
Sir F. Pollack—You are quite correct, I believe, but
the book is dated 1762, from Sergeant's Inn, and there-
fore I mentioned that date. However, the author remarks
that the statute, as it thea stood, would take place on the
death of the Pretender ; but whether it might not be
proper to postpone it to a still further period, or repeal that
part of the enactment altogether, must be left to better
judgment than his. And he goes on to remark that the
words " treason and misprisions of treason," were large
Foster, might leadt
ht
ios badAot
willc o n sbeeq uo eo nn cs
considered
enough to take in many offences wherein such a provision
says
of
Justice
re"dfoasr,o"nseaof those which
merit a liberal construction." Now, my Lords, I take it
prisoner;that tliis
in
and I t mean
ecaann
scarcely
clai
rb:er
la
yl constructionimaginemy
Lineafarvnoeudr
Friend
fietnhde
will ask your Lordships to deprive the
prisoner of the
benefit the statute conferred upon him by asking for a
li-
beral construction in favour of the Crown and against
the prisoner ; and permit me, although a humble
member of the profession to which I have the honour
to belong, to say that I shall ever, with all my
might, deprecate for all purposes a liberal construction
of any statute. I know the use that can be made of such
a construction—not, indeed, that it has been made in
modern times, or will be sought to be made now ; but I
know the use that has been made, and may again be made,
if what is called a liberal construction of the statutes is to
prevail ; and I believe I may say that with the perfect ap.
probation of the late Lord Tenterden. I adduced before
him the same argument which I have now the honour to
address to yonr Lordships, that we ought never to hear of
either a liberal construction or a strict construction ; but
that the question is what is the true construction, and by
that let us abide, be it what it may. But to return to Mr.
Justice Foster, he points out certain evils which might
arise in cases of inferior descriptions of treason, from fur-
nishing to the prisoners the names of the witnesses, which
might be made use of for bad purposes ; and which evils,
thus anticipated by him, had been since remedied by the
Act 6th George 3d, which takes away certain of these
protections, is cases of coining and other matters. Still I
must say, that Mr. Justice Foster does not speak of this
Act with any very great degree of favour ; nor in a manner
quite in accordance with the high constitutional character
given of him by my Learned Friend, the A ttorney- General.
I trust, therefore, having thus called your Lordship's atten-
tion to the state of the law on this subject, that you will
fee! it your duty to expound it as laid down by the express
and positive words of the Act, and as it has been acted
upon in all instances since it has coma into operation. I
now proceed to lay before your Lordships one other Act—
and only one, before I call your attention to the cases in
point—l mean Peel's Act ; and whether this Act has in
aey degree contributed to the mistake made, bad what.
ever apparent excuses may be offered for a supposed in-
dulgence on the part of the Crown towards the prisoners,
in prematurely giving copies of the indictment—for your
Lordships will remember that it was done for all, though
ask, d fur only in respect to one, and that only at the
request of a person not entitled to it, and clothed with
no authority —I cannot help thinking that the objec-
tion I now make is founded on a mistake made
either from a perusal of this Act, or probably from a
perusal of a very valuable work in which the same
mistake is made as occurs in Blackstone's Commentaries.
By the 6th of Geo. IV., cap. 50, sec. 21, commonly called
Peel's Act, new regulations were made for the empannei-
ling of jurors, and the extreme care with which that Act
was drawn is admitted in all quarters. I had yesterday
occasion to quota the 29th section relating to peremptory
challenges, and I observed that in that, and in all other in.
stances where the statute of the 6th Geo. IV. reenacts
the ancient law, it does not repeal the; old law. I pre-
sume this was in order to guard against any omissions, in.
asmuch as the Act was a re-modelment of the whole pro-
cess of summoning jurors, giving different qualifications,
and consolidating and amending the various laws on the
subject. I then observed that the Act of Edward was not
repealed by that Act.
Lord Chief Justice Tindal—lf you look at the end of
the Act you will find that the 33d Edward 1., statute 4,
so much of it as relates to giving a list of jurors' is repealed.
Sir F. Pollock—l had not a copy of the Act in Court,
but was indebted to the officer for a loan of his copy.
Lord Chief Justice Tindal—lf you had not a full copy,
you would not find it. I observe it repeals it at the end.
The more modern practice is to repeal it at the beginning.
Sir F. Pollock—The object for which I now particu-
larly call your Lordship's attention to Peel's Act, is, be-
cause it makes the true construction as clear as possible. It
might be said that if you deliver the list more than ten
days before the trial you satisfy the spirit of the Act ; hut
in an important case like this, let us look to the letter._
what are the enactments ? I object to the doctrine of
liberal construction of satisfying the spirit of the Act.
Let us abide by the terms of the Act, and rely upon it;
the best mode of enforcing justice by example and obe-
dience to the law is, to take care to obey its enactments in
the seat of justice itself. Sec. 21, which re-enacts that a list
of juror; shall be given, with a copy of the indictment,
contains one exception with respect to a certain instance,
and the v*iffa t of that y fact instance being mentioned as an
exceptive case, where you may deliver a list of jurors
not with a copy of the indictment, but at a subsequent
time, provided not more than ten days before the trial,
emphatically proves that in all other instances the deli-
very of this copy of the list of jurors not with the in-
dictment would be bad, and therefore with the list of
witnesses, which is as expressly ordered by the statute to
be delivered with the indictment as the list of jurors, and
respecting which there is no exception made, the delivery
of that list at a different time from the indictment must
be bad also. Peel's Act says that " a list of petit jurors,
mentioning name, profession, and place of abode, shall be
delivered at the same time as a copy of the indictment,
which shall bc ten days before the arraignment. I notice
the word arraignment, because, by the use
of
that word,
the Act seems to adopt the construction put by Mr. Jus.
tice Blackstone, and Mr. Justice Foster, and all the text
writers, that ten days before trial means ten days before
arraignment, for if the party is to have the copy of the in-
dictment for any useful purpose, he must have it ten days
before he is arraigned and called upon to plead to it. 1n„
quit this part of the subject by stating with the greatest
confidence, that on the plain obvious construction of the
Acts of Parliament, the accused is to have, at the Same
time with the copy of the indictment, a list given him
of the Jurors, and of the witnesses, and Peel's Act -only
allows of an exception in that respect in reference to the
list of Jurors only. With reference to proceedings in the
Court of King's Bench itself, the section provides that in
cases of high trcasoa tried in the Court of King's Bench,
" b copy of the indictment shall be delivered as aforesaid;
but the list of the Petit Jury may be delivered at any tune
afterwards, so as delivered ten days before trial." But
this does not touch the statute of Anne in respect to
the list of witnesses ;
and therefore a delivery of a list
of witnesses after a delivery of a copy of the indict-
ment, though ten days prior to arraignment, is not a come
pliance with the proeisioes of that Act. I have
stated already an instance where the text hooks are
certainly calculated to mislead upon this point, and
though I am not bound to find any excuses for those who
acted under the advice of the ofjic.ll2/ the Crowd as.