The Sun.
London, England, 1840-01-29 00:00:00

EVEN [NC EDITION.

LAW INTELLIGENCE.

EXCHEQUER CHAMBER, JAY. 28.
CASES OF FROST, JONES, AND WILLIAMS.
(Continued from our Paper of yesterday.)
the ATTORNEY-GENERAL said he never could suppose
a .The
so ignorant of the law, but that would be no mis-
within Lrial. The laws presumes that Judges acting on matters
their jurisdicton, would act according to law.
Mould it not be a perversion of justice for a prisoner, after
t},rovving himself upon his Jury, to bring forward as a
'substantive defence that the writs had not been properly
delivered from some slight technical irregularity. If the
objection were urged before pleading, no such public in-
eenven,ence would arise, as to the result of his being per-
'flitted thus to turn a shield into a sword. How could it
he said that any dangerous consequence would result from
the Crown postponing trials unjustly, when on the habeas
Corpus the prisoner might be discharged after the first and
second assizes had past. And in the meantime the
Attorney-General, who should have so misconducted
himself, might justly be dismissed upon irapeschmeut.
The Learned Attorne General referred to Rix v. Ward,
Sixth, Modern Reports,Y and Goddard and Smith, same
Noluete. He argued that the inference was, that things to
he done before trial, must be demanded before trial, and
the objection must not be kept till after the trial has corn-
trieueed. If any burden of proof regarding the lists were cast
()tithe Crown, it could only be that to wh':eh he had already
alluded; namely, that of merely identifying the list in
which the names of the witnesses appeared with that
sery ed on the parties. It would be enough to show that
the. list in which the witnesses 'had appeared had been
served on the prisoners; and the necessity would
'then be thrown of the prisoners to prove that
there was some other list. He wished the
Court would observe the consequences which would other.
wise follow. If the Crown, at so late a stage, could be
called on to prove the lists, the prisoners, by thus lying
by, would entitle themselves to an acquittal, so that they
could never again be tried by any of the forms directed by
the Act of Parliament. If the prisoner in the case might
object to the service not being simultaneous, he might
equally object to one of tkie witnesses not being
creciable. He might further make an objection
thrown out by the Lord Chief Justice he might
eemtend that though the three documents had been served
simultaneously in the presence of two witnesses, the copy
of the indictment was not a true copy, or that the list of
the Jury was not a true list, and that it differed from the
panel returned. These objections might have been
made after the prisoners had seen what sort of a
bashad been made out against them. Could that,
ever, be consistent with the due administration
of the law could a course be allowed which would
inevitably lead to a perveteion of justice without any ad.
vantage to the prisoner, if he were an innocent man ? If
ile were so, sufficient opportunities of defence would be af-
forded him without having recourse to such objections.
If his Learned Friends had been right, it would follow
that the service which had taken place would be a nullity.
He would ask if that should be so, and if the proceedings
should be in the same state as if no list had ever been served ?
At this very Special Commission, after some little irre-
gularity at the commencerneot, the Court ruled that any
objection to the witness must be taken before the witness
was examined in chief; or it came too late. Now he was
merely contending for applying that principle to the whole
list; therefore, aecerding to all the principles and analogies
of English lave, he contended that this objection
could riot be taken after the trial had commenced.
He would wew briefly allude to the Scotch law ; and with
the excepe.on of Hyatt 's case, all the precedents were in
Ins favour, as all the objections had, with that exception,
been wade before the pleading had commenced. (The
arreed Gentleman then read several cases from Scottish
repo, is in support of his araument.) Besides, in Scotland
Doti' the list of witnesses and the list of Jurors were part of
the Record ; and it was from the Record that the panel was
bfr•rnished with them. He had now performed his duty. by
onging forward those authorities to show that the objec-
n was invalid, and that it was brought forward ton late.
The Learned Counsel for the prisoner was right in not
bringing it forward earlier, because it could not have been
done with the remotest chance of success. If it were al-
lowed it would have this consequence, that all sorts of
frivolous objections might be brought forward after the
itrial had begun, thus defeating the intentions of the Legis-
attn.% whien were that the innocent should be protected,
acrid not that the guilty should escape. Sure he was, how_
eer, that whatever decision their Lordships might come
o, would be universally acquiesced in.
Mr. KELLY next rose, and said he understood his
Learned Friend, the Attorney-General, did not insist, as a
point in favour of the Crown, upon any difference that
existed between the cases of Frost and Williams before the
Juey was.sworn, and the same observation applied to the
Conversation which took place between Mr. Owen
and the Solicitor for the prosecution after the
Jury had been eworn. The question to be considered was
not whether the departure from the forms laid down had
been a mattee of prejudice or advantage to the prisoners,
but whether the conditions pointed out by the Statute
were obseeved and complied with. He recollected a case
having been ruled by some of the Judges before him, in
which a deviation from the forms of a contract had taken
place at the request of one of the parties, nevertheless
the Court held that though that deviation had taken place
at the request of the party, it was no matter, as it was
their business to learn whether this statute had been lite-
rally complied with, and they adjudicated accordingly.
His Learned Friend had also said, that he did not seek for
the striking out of one single word of the statute ; but the
Attorney-General, by his argument, clearly endeavoured
t 0 strike out the word " with," and to have inserted
'n its ;teed the word " had." His Learned Friend
then adverted to Lord George Gotdon'a case, but he
(Ma's Kelly) could not see for what purpose as the
court
had at that time pronounced those words " at the
same time with the copy of the indictment," therefore,
those words seem of much importance, which his Learned
Friend had net thought proper to explain. In the case
of Douglas and Storry" it was held that if the enact-
ment were not literally complied with, there should be a
nonsuit in the case. It had been alleged that under the Poor-
laws the Court were not called upon to pronounce opinions
upon the statutes, but endeavour to act according to their
view of what the Legislature intended ;: but he recollected
Many of the Judges before him expressly declared in the
judgement they gave, that they were well aware
that. the Legislature had no idea of putting the con-
struction upon the statutes that they were obliged
to do from the literal wording of the statute.
His Learned Friend had again referred to Sir Robert
Peel's Act. Their Lordships, however, would sec that
that statute left entirely untouched the Act of Anne.
That last Act required that the list of witnesses should be
delivered at the same time as the indictment. According to
Sir It. Peel's Act, also, the list of witnesses must, he deli-
vered at the same time, no matter whether it might be ten
or twenty days before the trial. Whatever effect Peel's Act
could have in the question would be entirely in favour of
the prisoner; because it repealed the plain and emphatic
words of the statute of Anne—" that the list of witnesses
should be delivered at the same time with a copy of the
indictment. This was all he had to say on the first point
discussed by his Learned Friend the Attorney-General.
His Learned Friend had proceeded to the second point,
and he had said that the Counsel for the pri-
soners had felt that they were surrounded with difficulties,
which they were unable to contend with. He ( Mr. Kelly)
denied the assertion. The Counsel for the prisoners had
called the attention of their Lordships to a statute—to a
plaiu intelligible Act of Parliament, to the benefit of which
their client were entitled. They threw on the Crown the
burthen of showing that they had no claim to those
benefits. It was the business of the Crown to prove,
either by citing some high authority, or some strong
eases of precedent, that the prisoners had in sonic
way deprived themselves of the right they were
entitled to. His Learned Friend had said that the
Counsel for the prisoners had gone so far as to say that,
by reason of the non-delivery of the lists according to
the necessary forms, the defect was incurable, and that
the whole proceedings were invalid. He also stated that
they could have taken their objection at once. He ( Mr.
5a
Kelly, begged leave to say in reply, that they did not
37 it was a mis-trial—they did not say that by reason of
certain forms not having been complied with, the pro-
ceedings were useless. That was not their argument—
it was net necessary for them to contend for that position.
What they contended for was a fair and true construction
of the Act of Parliament, which said that no witnesses
should be produced at the trial, of whose names, profes-
sions, and places of abode the prisoners had not had notice
in the list delivered to them, according to the forms re-
quired by the statute. That being the ease, they said that
the objection should be made whenever the Counsel for the
Crown wished to produce a single witness, as refusing to
plead admitted that he was guilty, he would give a right
to the Crown to hold an indictment over him all his life.
He said that such was the inevitable consequence. His
Learned Friend must contend, that on the discovery of the
non-delivery of the lists, the Court either orders the trial
to proceed, or postpones it to the next assizes. In the
first case, the Court deprives the prisoner of all the benefit
intended for hint by the Act ; or the Court, of
its own authority, without any application, puts
cfr the trial, and keeps the prisoner in prison,
and this might happen in a case where the Crown wilfully
Omitted to deliver the lists for the purpose of taking undue
advantage of the prisoner. The question, therefore, was,
whether their Lordships could put a construction upon this
Act of Parliament which would confer such a tremendous
Power upon the'Crown.
Mr. Baron PARSE-The same thing would happen from
the non-delivery of the copy of the indictment.
Mr. KELL? respectfully differed from his Lordship ;
he had never contended any such thing.
Mr. Baron PARKA-But the authorities quoted went to
that. There was Rookwood's case which seemed to go
on all fours with the present.
Mr. KELLY said Rookwood's ease was under the statute
of William. Now the statute of Anne was intended to
confer an additional benefit on the prisoner, and therefore
Must be construed liberally. Besides, that was only look-
ing to the consequences of decision : what he contended
for was, that the construction of the Attorney-General
gave the Crown the powct of keeping a man in prison an
indefinite time, with au indictment hanging over his head,
and of forcing the Court to postpone the trial not only
without cause, but by its own default. The only answer
given to this argument was, that if an Attorney-General
were to do this he would be impeached. What consolation
was that to the prisoner ? and there was nothing
in the statute to show that there was nothing lot
the Prisoner to depend on but the chance cf a
impeachment of the Attorney-General. The Court
would make an order, it was said, on the public prosecu-
tion to deliver these lists. On whose application ? or on
"hrwn was such an order made in a case in which the
Sovereign is prosecutor? Ile would say, therefore, that
the' statute showed that it was to the Crown the subject
hada right to look for the protection the statute intended.
He, therefore, denied the power of any Court to make
such an order. It was remarkable that according to his
Learned Friend's argument this objection must be made at
a time whin a prisoner had no counsel, and this was the
case with regard to Williams and Jones, who had not had
counsel assigned to them until long after they had
Pleaded. He contended the objection was properly
made when a witness was put into the box

of whom they had not had due notice according
to the statute, and in this he was borne out not only
by argument and common sense, but by precedent also
The case of the King and Ward was decisive of this point.
The fair way of construing the statute was in the same
way as a Judge's order to admit certain particulars of set-
off in evidence, which was that nothing shoull he admitted
that was not in the order ; and the c ffeet of the non- com-
pliance with the order, or a defective delivery would be, that
not one of the particulars would be permitted to be given in
evidence, and could they give a less strict construction to an
Act of Parliament in a case of high treason than to a
Judge's order in a civil suit ? With regard to the refe-
rences to Scotch Law, every case went. to show that at
acme period or other the objections might be made ; the
cases quoted by the Attorney-General merely went to
show that the objection might be made before the jury
were sworn, and no more, while Ilyatt's ease was a case in
point. Under these circumstances, considering their Lm d-
sbips were called on to lay down a rule which would be
binding in all times to come, they could not home to a
decision which would give the Crown great powers of
oppression, but would extend to the prisoners the full be-
nefit of the statute, and recommend them to the mercy of
the Crown

Sir WILLIAM FOLLETT would not take up the time of
the Court at any great length with his reply. With regard
to the first point, he should make no further observation
on it. With regard to the second, his Learned Friend
had not met this argument boldly. Instead of stating the
precise time when the objection should be made, he had
contented himself with simply saying that it was not the
time. Who was to decide, suppose it bad been denied
that the list had been delivered by the one side, and con-
tended that it had been by the other? He would contend,
then, the party could not be called upon before pleading
to put the Crown to prove that such lists had been
delivered. How was a Jury to be iinpanelled to
try that fact; and that was his argument to show
that that was not the time for making this objection.
Alt hough a party, by pleading, might waive an objection
to the copy of the indictment, the same rule did not apply
to the list of witnesses. The Attorney-General had not
met the objection that this weuld place that power in the
hands of the Crown, which was intended for the benefit of
the prisoner. Besides, how could the Court make an or-
der on the Attorney. General ?
Lord ABINGEIt said that there had been a rule in
the King's Bench, calling on the Attorney-General to
show cause why there should not be a trial at bar,
and so he.could be called on here, and Hite did not show
Cause, the prisoner would be put upon his trial, and acquitted
before a common panel. _ _ _

Sir W. Fot.t.F.TTL—That was exactly what he contended for.
The result would be the compelling the party to plead, re-
fusing to hear the witnesses, and the prisoner would be
acquitted,which was exactlywhat he was now contending for.
The Act of Parliament was passed for the purpose of com-
pelling the Attorney-General to bring on prosecutions
within a certain time. Under that Act the party would
be right in case the trial was delayed to serve a rule on the
Attorney-General. lie would say one word with respect
to the omission which had taken place in bringing forward
the objection at an earlier period. There was, he thought,
no other time at which it could be made, but the
one that:had been chosen. (The Learned Gentleman then
proceeded to read a passage from a judgment of Lord
Tenterden in support of his argument. One thing was
clear, that any objection of this sort ought to be known to
the Crown, and the Crown ought to apply to the Court
to postpone the trial. If the Crown did not do so, but at-
tempted to justify, they ought to abide by the conse-
quences. He submitted to their Lordships that this was
the right construction of the Act, and the only way of en-
forcing the Crown to a compliance with the provisions of
the Act of Parliament. It was upon this bread principle
that he contended. If it were a substantial enactment it
must be complied with ; and, if it were not complied
with: the prisoner was entitled to the benefit of it.

The ATTORNEY-GENERAL, always understood that when
a Jury was once sworn the prisoner stood upon his deli-
very, and must be pronounced guilty or no: guilty, and
therefore, he apprehended that the Jury could not be dis—
charged and another impanelled.
This concluded the arguments in this case, and their
Lordships retired at four o'clock.

SPIRIT of the PUBLIC JOURNALS.

FROM THE DAILY PAPERS OF YESTERDAY.
(From the Globe.)
The economy-loving part of the public will see
from last night's vote the advantage of keeping
the Tories where they are —in the Opposition.
Was that " great national party" ever known, when
in power, to vote, in temporary union with Libe-
rals, for reduction of Royal incomes ? Would that
" great national party," had it got into power last
May, have proposed less than 50,0001. for the Royal
Consort? The arithmetical advantage derived to
public economy from their present position must be
clear to every eye, without consulting Cocker. They
arc the largest body in Parliament arrayed distinctly
under one banner. If they all at once adopt
as their watchword Mr. Hood's chorus, in his " Up the
Rhine.—" Take care of your pockets, take care of your
pockets,"—the effect of Tory-reformed action upon pub-
lic expenditure will be new indeed. It will be not
amongst the least of the speciosa nuracula of Reform
in Parliament.

(Prom the Standard.)
We have reason to believe that up to yesterday
evening Ministers had resolved that upon the occa-
sion of her Majesty's marriage no new Peers should be
created, and that the usual promotions in the
army and navy consequent upon such a❑ event
should not take place. The reasons assigned
for this extraordinary course of proceeding are,
-first, that the vacancies which must arise in the
House of Comons, in consequence of several Members
being raised to the Peerage, would, in all probabitty,
prevent Ministers from continuing office, without dissolv-
ing Parliament ; and secondly, that in the present state
of the revenue the country cannot afford the expense
which must be incurred by a large brevet promotion.
Whether the vote of last night may alter the intentions
of Government we know not ; but it is really intolera-
ble that Ministers should have the audacity to propose
a grant of money for the Queen's husband which is un-
necessary and extravagant, and yet attempt to deprive
the army and navy of their just rights, upon the plea
that the country is too poor to reward its hard-worked
and ill-paid servants.