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

ineonveuie,it, r.d hich the law hzd 11,1 maeliinory
to c•kly on 0

etpate from some o, ;0, Ail 1•. - .-,-
neral. It was, that it was too late ; t 'tat this was not the
proper time to make the objection. He hoped to convince
their Lordships, not only by reason, but also by authorny,
that this was the time, and the only time. He would ad-
mit, for the sake of argument, that a party was not entitled
to the copy of an indictment after he bad pleaded; but
now the question was, was the time past for making the ob-
jection ? In order to spare himself the necessity of argu-
ing the point, he would at once refer their Lordships to an
authority that the time for objecting was when a witness
came into the box to be examined. On the trial of Wat-

son, a witness, o: the name of John Crisp, was objected to
by Mr. Wetherall and Mr. Copley, because his descrip-
tion in the list was, lately abiding at Tyler's-court, War-
dour-street, in the county Of Middlesex, grocer ;" and a
it turned out that he had not resided there for about three
months, the objection was allowed by Lord Ellenborough
who decided that the witness could not be examined.
Mr. Justice Williams—The same objection was taken
on Brandreth's trial, and the answer was not " You are

to* Ws, but the description is enough."
Chief Justice Tindal—Those were objections to single

witnesses, and did not apply to the list of witnesses.
Mr. Kelly submitted that there was no difference in
principle between an objection to a single juryman, and an
objection to the whole list.

The Grand Jury here came into Court, and returned
true bills against Benjamin Richards, for conspiracy and
riot ; Isaac Pillinger, for burglar, ; Isaac Pillinger, for
larceny ; and Thomas Llewellyn, for conspiracy and riot.
Lord Granville Somerset—Those aro all the bills we
have before us.

Mr. Phelps, the Crown solicitor, said there were other
bills being prepared, and they should be sent up as soon
as possible.
Mr. Kelly, in resuming his address, said he would call
upon the Court, and upon the Attorney-General in this
most important case, where the life and death of the pri-
soner were in the scales, to show him any provision which
compelled the prisoner at any time, until he was confronted
with the witnesses, to make any complaint that the statute
had not been complied with. On these grounds he sub-
mitted to their Lordships that it was not too late to make
the objection; but that, on the contrary, the proper and
only time was when a witness came into the box to be
examined.

The Attorney-General then rose and said, I have no
right to complain of the length of time which has been
occupied by the arguments advanced by the Counsel on
the part of the prisoner. At the same time it gives me
satisfaction to feel, that in answering those arguments I
shall occupy by no means so large a portion of your
Lordships' time. It seems to me, with great respect
for my Learned Friends, that some of their observa-
tions could hardly be expected to make any impression
upon your Lordships, and that there would have been
ample opportunity nei rafter for them to have dilated upon
the nature of the offence with which their client is charged,
the consequences of that offence, the power of the Crown,
and the functions of the Attorney-General. I think
likewise that my Learned Friend (Sir F. Pollack) might
have abstained from stating with so much confidence his
own private opinion, because the private opinions ot
Counsel at the bar, whether on the one side or the other,
ought not to have, and in fact have not, any weight
with the Court. Y ,ur Lordships will also recollect
that my Learned Friend argued with the same coo-
fidence, and in pr;-e;seTy the same tone, the objection
which he made yesterday—the objection that no chal-
lenge was allowed to the Crown without cause being
immediately assigned—an objection which has been
frequently made, and when made always overruled, with.
out an answer being required from the opposite party.
I think, too, my Learned Friend Mr. Kelly might have
spared your Lordships those observations as to your being
called upon by the Attorney-General to fritter away an
Act of Pariiameiat to the prejudice of the prisoner. Goe
forbid that I should ever make such a very unworthy at-
tempt. But if I were to make such an attempt. my Lords,
it would recoil upon myself and cover me with disgleice
What I call upon your Lordships to do is to see what
the meaning of the Legislature is, and to see that the
prisoner shall have the full benefit which the Legislatur,
intended he should enjoy. I ask for nothing like an equi
valent, unless he shall have the specific advantage which
the Legislature intended for him, and if this objection be
now brought forward at a time when it can be lawfully made,
the objection must prevail. But when your Lordships
come to look at the Act of Parliament, and see what was
the meaning of the Legislature, you will see that its in
tention has been fully and amply complied with, and that
the prisoner has had all the advantage which the
Legislature intended. My Lords, I do not rely
upon acquiescence ; I do not rely upon quibble ;
but at the same time, I think it material that your Lord-
ships should see, and that the country should see, the
exact circumstances in which this proceeding has taken
place. Can there be the smallest doubt about the fact,
that Mr. Maule, acting for the Treasury, believed, and
had every reason to believe, that Mr. Owen was the soli-
citor for Mr. Frost, and all the other prisoners ? Mr
Owen was exceedingly desirous that a copy of the indict-
ment should be served as soon as possible, that the service
should not be delayed until the list of witnesses should be
completed ; and Mr. Menlo, to give Mr. Frost and all
the prisoners an additional advantage beyond what the Act
required, served a copy of the indictment on the 12th,
although the list of witnesses was not prepared at the
same time. The complaint now is, that the copy of the
indictment was served too soon, If the service of the
indictment had been delayed until the 17th, when the list
of witnesses was furnished, there could have been no com-
plaint. It is not disputed that if the copy of the indict-
ment had been served at the same time with the list of
witnesses, it would have been in ample time, and there-
fore the complaint really is, that the copy of the indict-
ment was served five days before the list of witnesses, and
that five days sooner than was required by law the prisoner
was put in possession of the particulars of the charge
against him. -It is not disputed, or at least I have a right
to assume, that this list of witnesses was served under such
circumstances, as that if the copy of the indictment had
been served at the same time, no objection could possibly
have been made to the list of witnesses. Then an objec-
tion has been hinted at with respect to the description
of Samuel Simmonds. I fully allow that that was the
time to make any objection of that nature. I will not say that
it is too late to take an objection to that which is to be found
as:any part of the contents of this document ; but the ques-
tion is, there having been a service on the 17th of De-
cember of the list of witnesses, is this trial now to be stop-
ped by an objection to a particular juryman on a
ground which would have entitled the prisoner to have
challenged the array, or to have refused to plead if this
objection be good. If the objection be well founded tie
prisoner on his arraignment might have refused to plead,
or on being placed at the bar after having pleaded hr
might have said, " I am not to be put upon my trial, be-
cause the requisitions of the Statutes have not been com-
plied with." This is challenging on grounds which, it
the objection be well founded. would be challenging the
array sf the Jury. The old law, which was familiar to
their Lordships, drawing the distinction between objecting
to the array and objecting to an individual Juror will be e
good guide to your Lordships, and enable you to come
to a sound and satisfactory decision on the occasion.
My Lords, there arc two grounds upon which I sub-
mit that we are now entitled to exassine as a witness
Samuel Simmonds. Samuel Simmonds is given in the list
of witnesses which was served on the 17th of December
last, 50 that the prisoner had not only ten but fourteen
days' notice, that Samuel S)niriionds would be called
against him as a witness. Therefore, there is no pretence
of any kind for saying that there has been a want of suffi-
cient notice. My Learned Friend can only say this, that
there has not been a literal compliance with the Statute
I think I shall show your Lordships that the Statute ha
been strictly complied with, according to the intentions ot
the Legislature. As to any ground for departing from it
there has not been the slightest. On the 12th of Decem-
ber a copy of the indictment was served, and on the 17th.
fourteen days before the trial, a list of the witnesses was
delivered and there was ample time to investigate
the character of the witnesses. I say, then, that un.
der the circumstances, Mr. Frost and the other pri-
soners have had the full benefit which they were en-
titled to claim under the Act. I say, my Lords, that for
two reasons, we are now entitled to call Samuel
Simmonds as a witnese. The first is, that after plea has
been pleaded, and after the jury have been charged
with a prisoner, an objection cannot be made to the
manner in which the list of witnesses may have been de-
Frered in pursuanoe of the Act of Parliament, and no
intrinsic objection could be made to the list. I admit
that it might be made ; but any intrinsic objection as to
the manner in which the document has been served is not
admissible. It would go infinitely beyond what Sir Mi-
chael Foster anticipated, in his observations on the law of
treason, if a prisoner could lie by, could plead, could
allow a jury to be sworn, and the case opened against him,
and when a witness came up to be sworn, say, " There
has been some irregularity in the mode in which I have
been served with the copy of the indictment, or the list of
jurors, or the list of witnesses." That has been the argu-
ment used by the Counsel on behalf of the prisoners ;
and my friend Sir F. Pollock said several times that the
lists of jurors and of witnesses rested on the same principle
as the copy of the indictment, and that what was true
as to one was true as to the other. Now, my Lords, see
what would be the consequence of all this. Sir F. Pol-
lock requres that all these documents should be served in
the same manner, before the trial, under the statute of
Anne. Sir Robert Peel's Act, the 6th of George IV.,
requires that two of the documents shall be delivered ten
days before the arrignment. It leaves the third, the list
of witnesses, as before ; but with regard to the indictment
and the list of the Jury, it requires that they shall be de-
livered ten days before the arraignment.
Mr. Baron Parke—The list of witnesses it leaves as it
stood under the statute of Anne.
The Attorney-General—lt leaves the list of witnesses
as it stood under the statute of Anne, but it requires
that the copy of the indictment and the list of the
Jury shall be served ten days before the arraignment. The
statute ot Anne required that all three documents should
be served ten days before the trial. The list of witnesses
is left by Sir R Peel's Act on the same tooting, but the
indictment and the list of the Jury are to be delivered
ten days before the arraignment. Here is evidence
of the simultaneous manner in which the three docu-
ments are to be served. Why, in that very Act of Parlia-
ment there is a distinction between arraignment and trial.
The copy of the indictment and the list of the Jury must
be served before arraignment. The list of witnesses may
be served after arraignment, if it be ten days before trial.
" Trial" in the 6th of George IV., has the same meaning
as " trial" in the statute or Anne. Here is an actual
severance by the Act of Parliament of the simultaneous see.
vice, if simultaneous service of the three documents prier
to the trial was ever before required. What I have been
endeavouring to enforce upon your Lordships is, that by
the statute of Anne the three documents were placed
upon the same footing, and they were all to be served
ten days before trial. If it be necessary that they should
all be served on the same day, then the service of the in-
dictment is bad if it be not on the same day with the list
of the Jury, and the service of the list of the Jury is void
if riot on the same day with the list of witnesses, just as

Inneh '

" 'oe iouoe auer
ph-sa plead,d; and that after a prisoner has allowed him.
golf to be placed upon his trial without objection, he hes
a right to say, ‘• I ought not to be placed in jeopardy,
becAusa I have not been served with a copy of the indict-
ment sr with a list of the Jury," ka much w, h. has

a right to say, " I ought not to be pl.,eeo in jeopardy
hecau,e I have nut been ►erved with a list of tbp witnesses.''

Now it has been frequently decided as your Lordship,: are
aware, that after a prisoner has pleaded. or after ne has
taken his trial, he cannot object to the copy of the indict-
ment; and in Foster's work, p. 230, c. 3, it is laid down
thus : " If the prisoner has pleaded without having the
copy of the caption, it, is too late to Mike that objection, or
any other dependent on that deficiency ; for. by pleading
he admitted that he had received copies sufficient for the
purposas referred to in the Act." It is clear, therefore,
that no objection can be made as to the service of the copies
of the indictment after the prisoner has pleaded, and it is
equally clear that, if the argument of my Learned Friend
prevails as to the service of the witnesses, that the service of

the copy of the indictment is, per se, a nullity. My Learned
Friend has said that if he had been present when the list
of witnesses was so served, he would have advised that it
should be put into the fire ; but if so, he should, under
similar circumstances, have advised that the indictment, if
served by itself, should be put in the fire. But could he
object to the indictment because the copy served was not
accompanied by the list of the witnesses and the panel,
after the prisoner bad pleaded ? Certainly not. Can he
object to the panel after the Jury has been charged with
the indictment, and the prisoner put upon his trial ? and
can he at this time, after the Jury have been charged with
the indictment, object that the trial shall not proceed, as
the prisoner has not the safeguard which has been referred
to, by which his innocence might be proved ? My Learned
Friends say, " Will you proceed with this trial if this sta-
tute has not been complied with ?" And, according to
them, even after a verdict has been given, it would be
open to objection on these grounds; and that English
Judges, knowing the statute, will not permit the course of
justice to proceed, if it has not been literally complied with.
Mr. Kelly—l said no such thing. I said that the time
to take objection to the list of witnesses is when the wit-
nesses arc called to be examined.

The Attorney-General—l say that my Learned Friend,
Sir F. Pollock, put the list of witnesses and the list of
the Jury on the same footing ; and I say that the statute
places all the documents on the same footing ; and my ar-
gument is, that if the objection to she list of witnesses can
avail now, an objection to the indictment, or to the panel,
would avail equally at this time ' • and, my Lords, it is laid
down by Foster, that " although the Act is so worded, still
the construction of it is, that exceptions must be made
before the plea of the prisoner ; and in the ease of Sulli-
van at the Old Bailey, in 1715 and it, La:rd's case, the
Court refused to allow exceptions to be taken after
the plea. It is true that in Braedreth's and Runk-
wood's cases, they did allow exceptions to be taken
after the Jury was sworn ; but this was an indulgenCe
in consequence of' a new Act the practice of which
had not been settled." Now, my Lords, the practice
which the law has laid down is. that such exceptions shall
made before the trial begins ; sod it is quite clear that
the intention of the Legislature was, that they should be
:nade before trial, for the Legislature hes plevided
oefore trial the prisoner steel know who are the Jury arid
who are the witnesses by whom the charge against him is
he estNbiished ; and did the Legislature ever think that
:he Act was to be used for the purpose of defeating justice,
and its provisions used as traps by means of which the
guilty might escape? No, my Lords, it was meant as a
,afeguard to be thrown round the person of the accused;
:et; he cannot convert it to a shield for his „wilt, or a sword
ay which the law oaf the land might be assailed. MI,
Learned Friend has cited an old book of practice, which
aas afforded me the means of aesweritee the question
which has been addressed to me by my -Learned Friend
Mr. Kelly, ahe said, Let the ktorney-Generel tell
ue when the objection could be preporly made with re-
pea to the list of witnes-es? ' I 'nav,-- no objection to
thswer this question. In fact, my Lords, there would
have been no occasion for en attorney to draw np
ei affidavit—no business which would have required the
outlay of a fee—there would have been so occasion for
any application to postpone the trial ; but if Mr. Frost,
when called on to plead, had said, " I have not received a
copy of the indictment, I have not received a copy of the
panel. or of the list of witnesses, according to the form
provided in the Act of Parliament"—he had only to say
these words, and on the Crown would have been thrown
the onus of proving that the provisions of the Act had
been complied with ; and unless we clearly proved to the
satisfaction of their Lordships that the provisions of the
Act had been complied with, his Lordship would have
said to Mr. Frost that he was not bound to plead.
Before he was arraigned, the prisoner was bound to
sad: that he had not received the benefit of the statute,
and if it were not then proved that he had, the Court
would be bound to deliver its solemn judgment, that
he was not bound to say Guilty or Not Guilty. But I
will:give Mr. Kelly another opportunity when the exception
might have been taken. After the prisoners had pleaded
not guilty, and we had gone through the list of 317 jurors,
and the prisoners had stated that they would be severe in
their challenges, I applied to the Court that Mr. Frost
should be placed upon his trial; and the Chief Justice,
the organ of the Court, said in acquiescence,." Bo it so."
On my application, that Mr. Frost should be put upon his
trial he might have objected, through his Counsel, that he
had not received a copy of the indictment, or of the list of
witnesses, or of the panel, and before an order had been
made that he should be put upon his trial. In that stage
of the proeecdings the burden would have been thrown
upon the Crown to prove that the statute had been com-
plied with, and unless we proved by evidence that it had
been, the Chief Justice would not have pronounced an
order that Frost's trial should proceed. But his Counsel
were well aware that if the objection had then been
made and supported, the effect would be only to postpone
the trial for ten days. That, in fact, is all that was in.
tended by the Legislature—that ten days before trial the
prisoner should have such information as he might require
for his defence. But still my Learned Friends made no
objection to my motion, and Mr. Frost was placed at the
bar to take his trial. Still there was no objection. We
proceeded to the ballot for the Jury, in which proceeding
many hours were occupied, and no objection was made.
After that the Chief Justice said that it was the opinion
of the Court, that, although the Attorney-General should
not open the case last night, still the Jury ought to be
charged with the indictment. The Jury was sworn and
charged with the indictment accordingly • and this morn-
ing, for the first time, we have heard of this objection.
Ample opportunity had existed to have brought it forward
.n various occasions; but it did not suit the convenience
of the prisoner to do so ; for before now the exception, it
made out, would only nivt, posponed the trial ; but now
tt is sought to stop the proceedings, and to defeat the
course of justice.
A true bill was at this time brought in against John
Partridge for conspiracy and riot.
The Attorney-General proceeded-1 ask, my Lords.
what right my Learned Friend, who represents the pi
sorter, had to join in the selection of the jury, to.exhaust
his thirty-five challenges, to allow the jury to be sworn.
and to be charged with the indictment, when he knew of
this objection, and meditated making it when the giving
effect to it would stop, the course of public justice ? !-
that, I ask, the intention of the Legislature? My Lords,
after the jury had been charged with the indi tment, wriuld
it have been competent fur my Learned Friend to have said
" I admit that all the documents were served at the same
time, and, prima facie, the Act of Anne has been complied
with ; but I mean to show that one of the witnesses in
,shose presence they were delivered, in accordance;
with that Act, was infamous; and I will produce the re-
cord of his conviction for felony or fraud." Now, your
Lordships will bear in mind that the proceeding must
:eke place in the presence of two credible witnesses, and
-f such an objection was made before the prisoner was
placed on his trial it would not be unreasonable that he
rhould show that one of these witnesses was infamous,
and to prove it by the record of his conviction ; but after
he had pleaded, and the Jury had been charged
with the indictment, could my Learned Friend say
that we could not call Samuel Simmonds, because
one of the witnesses who was present when the three
documents were served was convicted of felony ? All the
objections are to the whole list of witnesses, showing
that there had been no service of the list according to
the statute, which says that it shall be served ten
days before the prisoner is arraigned, that is, before he
is on his trial, and the Jury charged with the indictment ;
but my Learned Friends have cited no authority to show
that after the Jury have been so charged any objection can
be made which would go to the whole list. And why not ?
because there is no such authority ; and from the trial of
Lord George Gordon up to the present time no such
attempt as this, to go to the validity of the whole list of
witnesses has been made. My Learned Friend has relied
on Crisp's case, and as to his being admitted on the trial
of Watson in 1817, but such cases could be largely
multiplied, and their Lordships' experience in cases of
treason must have furnished them with repeated in-
stances in which objections to particular witnesses were
made on account of misdescription, and the proper time
for this is when the witness is placed in the box. I ad-
mit, that if in the list of witnesses served upon the pri.
goner there had been any misdescription, that those wit-
nesses whose habitations or their professions had been im-
properly described, could not be produced. The objection
as to the list of the witnesses, and as to the list of the
Jury, rests upon the same clause in the Act of Parlia-
ment which requires that they should be given ten days
before the trial. I have now to consider how this objec-
tion ought to have been made, if it had been made, before
arraignment. I think, if it had been so made, I can show
your Lordships that it must have been overruled. I say,
then, that if the objection had been made at the proper
time, your Lordships must have decided that the Act of
Parliament had been complied with, and the intentions of
the Legislature fulfilled. I allow that you are no: to sub-
stitute yourselves for the Legislature, orto give something
to the prisoner as good as that which he claims. 't hat which
he is entitled to claim is that undoubtedly which he
ought to enjoy. These three documents, it is said, it is
necessary should be served at the same time. I find great
difficulty in discovering what is meant by the same time.
My Learned Friends will not say that they are all to be
pasted to the same piece of paper, or that it is at all ne-
li
cessary to have them tacked together. I suppose that first
a copy of the indictment may be served. and I suppose
that after a few minutes, and the party remaining in the
same room, that then a copy of the Jury list may bo
served, and then the party may be served with a list
of the witnesses. If all that might be done at an in-
terval of five minutes, I suppose it might else be done after
the interval of a quarter of an hour, or of an hour, or
of a day. What is the rule, I have frequently been
asked? and I have no difficulty in saying it—that there
shall be ten clear days before the party is put upon his
trial; and when he shall have all the self-same advan-
tages which the Legislature intended he should have He
is to be served with a copy of each document in sufficient
time. Looking, then,
at the whole of the clause, and to
the whole of the Statute—the 7th of William 111., and
the 7th of Queen Anne, which are pari maieria. we come
then to the consideration and the prosier construction of