The Sun.
London, England, 1844-07-10 00:00:00

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important fact out of their Lordships might
- /They went
over the matter, indulging in minute criticisms, but al-
together kept out of sight the important averment that
the list had been fraudulently made. Now, this was a
great political trial ; the defendant alleged that the
jury book had been fraudulently made up. The
returning officer was their well known political opponent.
The LORD CHANCELLOR—It does not appear on the
record.

`,...._,-..0.

Lord CAMPBELL—Let us confine ourselves to the re-
cord, for God's sake.
The LORD CHANCELLOR—More particularly in the -
reply. You may suppose a case of a list made by a
political opponent.
Sir T. WILDE would beseech their Lordships to re-
member that this was a case of political prosecution,
which many would be inclined to call persecution.
The indictment was for acts extending over 0,
large space of time and place, so as to giro
the prosecutors the: power of laying the venue
almost where they pleased. In such a prosecution, above
all others, it was necessary to the pure administration of
justice, that there should be no taint of fraud upon the
composition of the jury. The Attorney-General for
Ireland asked what the defendants would propose to have
done. He should be inclined to think that it was the
business of the Officers of the Crown to find 4 remedy.
They were bound to.drop the prosecution if they could
not try the men fairly. His Learned Friend the At-
torney-General said they could only have the challenge
when the fault was in the sheriff. Formerly the sheriff
was the only person who had to do with the jury.
Lord CAMPBELL—The common law assumes that the
*sheriff himself summoned the jury.
Sir THOMAS WILDE—Such was the case, and there-
fore the sheriff was the only person who could be chal-
lenged for an indifference. But now the law divided
those duties, and were all the amendments of the law
to end in the destruction of those means which the sub-
ject formerly had of protecting him against paeksd
juries ? The question was, whether, now that the law
had divided the duty amongst other persons, the remedy
did not follow the altered means by which the evil was
produced ? The sheriff might be morally free from
blame, but he was legally to blame for having made
his list from a book imperfectly made up. It was his
duty to make up his list from a proper book, or, if he
had used an improper and fraudulent book for 1844,
then he should go to ,the book of 1843. That point
went to the root of the administration of justice. The
Counsel for the Crown were under a mistake in suppos-
ing that because the list was not good in this case, it
might not be good in others. There was fraud as re-
garded them, but others might not be injured. These
defendants averred in their challenge that this fraud
had been perpetrated to their prejudice, and this objec-
tion was good in their mouths, though it might not be
good in the mouths of others. He would not touch upon
the points which had been so ably argued by his friend
Mr. Peacock ; and he trusted that, by their Lordships'
decision on ths point of the challenge of the array, the
law would be secured for the future against any such
abuse as had occurred—that the administration of jus-
tice would be freed from this stain—and he, therefore,
prayed their Lordships that this judgment be reversed.
Mr. HILL would limit his reply to the validity of the
challenge, and he would proceed at once, without any
preliminary observations. His Learned Friend, the
Attorney-General for England, had passed over one or
two points which were of the very deepest importance.
It had been said by the Attorney-General that there
was nothing to show that the list had been made by the
Recorder. Now, it appeared that a fraudulent paper
writing had been made the basis of the Recorder's list,
which had been made the basis of the jury book, which
had been made the basis of the special jury list. So
that there was a distinct allegation, showing that the
special jury list had been made up from
a book made up from that fraudulent writing.
The only material question in the case was wanting,
namely, the fact whether the special jury was selected
from the list the Recorder sent in. It was distinctly
averred upon the challenge that a fraud was committed
in putting in the book from which the jury was selected.
The LORD CHANCELLOR—But did not that give the
right to challenge the array?
Mr. HILL submitted it did.
Lord CAMPBELL doubted whether they had any right
to challenge at all, and whether their proper course
would not have been to have moved the Court of Queen's
Benet' to quash the panel.
Mr. HILL said they objected to the panel, but the
Court of Queen's Bench decided they had no jurisdic-
tion. The challenge to the array and the poll corrected
any misfeasance in putting the jury into the box. If the
Jury Act was subject to the construction of his Learned
Friends, it would operate as a curse instead of a
,bless-
ing to Ireland. He should say. in the present case, the
best 'course to have adopted would have been to direct
the award to the coroner.
The LORD CHANCELLOR—Why should it go to the
coroner? Was there any default in the coroner ?
Mr. HILL observed that the duties of the sheriffs had
been subdivided by the Act. The Learned Counsel then
proceeded, at some length, to contend that the panel was
bad.' The Recorder had been commanded to do one
thing, and lie had done another. Until he had performed
the duty cast upon him of making out the list, and send-
ing it to the clerk of the peace, how was he fanctus officio?
It appeared to him that no inconvenience arising from
the mistake or fraud in making out the list was to be put
in comparison with the evils which would arise from
having a jury formed from an improper list. If the re-
corder had not done his duty, or if the clerk of the peace
had not done his duty, they were in the same situation
as if they had not time to make out a good list, and
there was no reason why it should not be referred back
to them to make a good list. It had been said that the
object of this Act of Parliament was to take away in a great
deg see the right of challenge to the array. Ile did not
see how that could be contended for, when his Learned
Friends argued that the 35th and 36th sections provided
for the insertion of those names which were fraudulently
omitted. But those related to the juror himself, as lie
felt himself aggrieved by not having his name
inserted in the la but it did not apply to
persbns in the situation of the defendants.
He would conclude the observations he was about to
make by observing that the ground of remedy must be
separated from a particular case, and he called upon
their Lordships not to decide this point upon an extreme
case, and not to look upon it as if only one single name
had, been omitted or misarranged, as their Learned
Friends upon the other side called upon them to do ;
but if they were to decide it upon an extreme case they
ought, he contended, to take the opposite extreme, and
to decide it as if a multitude of names had been struck
out. He begged of their Lordships to consider what
dangers might accrue if they pronounced that there was
no remedy by challenge which might be brought
before that august tribunal ; and if he wanted
an illustration of that it would best be found in the case
now before their Lordships, for here was a case of the
utmost importance, which divided the whole empire, in
which it was impossible to obtain a jury without some
degree of bias, and in which it was therefore necessary
that every safeguard which the law provided should be
put in requisition. Their Lordships would recollect that
this book was made up after this case had originated by
the finding of the jury. He trusted their Lordships
would find the means of accommodating great principles
to the machinery by which they were to be,wrought, or
rather to accommodate the machinery to those great
principles which set it in motion. With those obserVa-
tions he would leave the case in their Lordships' hands.
Their Lordships having called on Mr. Kelly,
Mr. KELLY rose and asked if their Lordships would
insist on his going on at that late hour of the night,
The LORD CHANCELLOR having ' stated that they
would hear him till eleven o'clock,
Mr. KELLY said he should feel it his duty to compress
into the shortest space the observations he had to make.
He would first advert to the important public question
now before their Lordships, whether upon one general
indictment, where different counts were bad, the court of
error must not reverse the judgment altogether ;
and he must say he heard no sound reason in any war
tending to support the opposite case. In the case of an
indictment for seveeal misdemeanours, if their Lordships
decided that some of the counts containing distinct
charges, upon which one judgment was pronounced, were
bad, and that a court of error could not reverse such a
judgment, they would decide that which he submitted
was clearly opposed to•all principles of law and justice.
And he begged to remark that there was no
fear of that taking place which the Learned Counsel on
the other side contended would take place, namely, that
great offenders would escape with impunity. Where a
judgment was reversed on the grounds he had stated,
there was nothing to prevent the accused from being •
tried over again, so that he was surprised his Learned
Friends put forward this as a ground why their Lord-
ships should not reverse the judgment on this ground.
He submitted, that there was not even a dictum to
support the proposition of his Learned Friend. None
of the dicta cited referred to a court of error ; a court
of error was not even named. The mode in which this
case had been met was, by saying, that a court of error
could not revise a judgment in misdemeanor where one
count was good. He had looked in vain for au-
thorities to support that view. Upon motions in .
arrest of judgment all the cases went to show
that if there was one good count the court .
would not arrest the judgment. But the reason was,
that they were in the position of a jury, and could there-
fore apportion the damages. The question was never -
referred to in a court of error. Lord Mansfield said,
" We can lessen the punishment on accopnt of the bad
counts," and this was the whole extent of authority
to be found either in civil or criminal cases
upon motions in arrest of judgment. The peat
and important proposition then before their Lord-
ships with regard to a writ of error had never
been argued. In opening this case on behalf of those
for whom he appeared, he had admitted that the rule in
civil cases was different from that in criminal cases; but
the question was, not whether such might or might not
have been the impression of any man, but what was the
law of England, founded on principle and consistent
with authority, on this point ? In the course of the
argument, by both his Learned Friends approached the
only question which was before their Lordships; in-
' stead of meeting the arguments of his Learned Friends,
they went oil to argue as to the effect of such appeal in
cases of larceny or common misdemeanour or murder.
But it was vain to place this case upon the same
ground. He and his friends on the same side hadsbeen
accused of putting hypotheticallsy extreme cases. They
had not, however, gone so far in hypothetioal cases as his.
Learned Friends on the other side had gone. There
could be no doubt that, in all criminal cases, it was
admitted that no man could be accused of two distinct
crimes in one indictment. The Learned Gentleman was
proceeding to cite some more cases, when
The LORD CHANCELLOR said—Have you nearly
finished this head, Mr. Kelly ?
Mr. KELLY said he had still a few observations to
make.
The LORD CHANCELLOR—Then we will hear them to-
morrow, at ten o'clock.:
Their Lordships then adjourned.