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

way to take it away. The Attorney-General had read
the challenge in a curious way. He had read cert.'s-Ili
parts, and then commented upon them so long that their.
o
Lordships had lost the connexion between the Pasr,r,
which he had read and the parts which followed. "
W. Follett had said that the Recorder could not adjudi•
cats upon the jury list, but he had altogether omitted to
state that the Recorder had to adjudicate upon the Vet
fications of the persons who are to be placed upon til,a;
list; so that he had, in fact, to adjudicate upon the lis"'
Having made the list, that list was delivered over to
form the jurors' book, and from that jurors' bee'
the panel was arranged, so that the Recorder
did, in fact, select those persons who were egt°t
serve on the special jury. The Recorders
was the foundation of the jury book—the jury bee'
was the foundation of the jury list. Now the challenge
averred that the Recorder (lid not make out and dale
his list according to the terms of the statute, and he sir
prehended that the challengers had done their duty ill
so stating. 'The Attorney-General complained that th,
challenger did not go on to aver that he had delivered
another list furnished him by some person unknown. ,
averred, however, that the list had been fraudulently
made to the prejudice of the defendants. his Learns
Friends on the other side had endeavoured to keep thel
important fact out of their Lordships' sight. They" i
over the matter, indulging in minute criticisms, but $;
together kept out of sieht the important averment tll5,
the list had been fraudulently made. Now, this wss,
great political trial ; the defendant alleged that tiu e
"
jury book had been fraudulently made up. l't.
returning officer was their well known political osponl,
The LORD CHANCELLOR—It does not ,appear on t'e
record.
Lord CAMPBELL—Let us confine ourselves to the re,
cord, for God's sake.
The LORD CHANCELLOR—More particularly t''Llb:
reply. You may suppose a case of a list made by
political opponent.
Sir T. WILDE would beseech their Lordships to
member that this was a case of political prosecuti°:
which many would be inclined to cell persecuties
The indictment was for acts extending over
large space of time and place, so as to g. 1,8
the prosecutors • the• power of laying' the syse
almost where they p'eased. In such a prosecution, an° Si
all others, it was necessary to the pure administration Se
justice, that there should be no taint of fraud upon for
composition of the jury. The Attorney-General e
Ireland asked what the defendants would propose to llac,
done. He should be inclined to think that it-evae tb
business of the Officers of the Crown to find a reined}'
They were bound to drop the prosecution if they A
not try the men fairly. Hi., Learned Friend the ,
torney-General said they could only have the cballeegi
when the fault was in the sheriff. Formerly the shell
was the only person who had to do with the jury.
the
Lord CAMPBELL—The common law assumes that
sheriff himself summoned the jury. re•
Sir THOMAS WILDE—Such was the case, and the 1,
fore the sheriff was the only person who could be c,llss
lenged for an indifferency. But now the law dio,"es
those duties, and were all the amendments of the 1%,
to end in the destruction of those means which the si,ucci
ject formerly had of protecting him against pasts'(
juries ? The question was, whether, now that the di
had divided the duty amongst other persons, the reate,o
did not follow the altered means by which the evill'e
produced ? The sheriff might be morally free ese
blame, but he was legally to blame for having ale
his list from a book imperfectly made up. It was, se
duty to make up his list from a proper book, or, hap,
had used an improper and fraudulent book for P.n;
then he should go to the book of 1843. That
went to the root of the administration of justice. o:
Counsel for the Crown were under a mistake in OPP
ing that because the list was not good in this case'e,
might not be good in others. There was fraud e 5
garded them, but others might not be injured. T"0e1
defendants averred iu their challenge that this liTts•
had been perpetrated to their prejudice, and this ohJlO
tion was good in their mouths, though it might o°' oti
good in the mouths of others. He would not touch noel
the points which had been so ably argued by his fr,'.„,
Mr. Peacock ; and he trusted that, by their Lordsiltlis
decision on ths point of the challenge of the arraY,
law would be secured for the future against aniessie
abuse as had occurred—that the administration 01 Leo,
Lice would be freed from this stain—and he, therels.
prayed their Lordships that this judgment be I.o'o'l the
Mr. HILL would limit his reply to the validity 010,4
challenge, and he would proceed at once, without the
preliminary observations. His Learned Friend, of
Attorney-General for England, had passed over on;ses
two points which were of the very deepest imports ere
It had been said by the Attorney-General that nee
was nothing to show that the list had been made floe
Recorder. Now, it appeared that a fraudulent y lyt,
writing had been made the basis of the Recorder s ch
which had been made the basis of the jury book, wiilso
had been made the basis of the special jury list's the
that there was a distinct allegation, showing th3fsera
special jury list had been made up
,riling'
a book made up from that fraudulent ;nape+
The only material question in the case was wasiecfed
namely, the fact whether the special jury , a
netlY
from the list the Recorder sent in. It was oolitic
averred upon the challenge that a fraud was e° cisetedi
in putting in the book from which the jury waS 2 lye the
The LORD CHANCELLOR—But did not that g
right to challenge the array?
Mr. HILL submitted it did.
rig 1/1
Lord CAMPBELL doubted whether they had any 4
to challenge at all, and whether their proper c()I;10
would not have been to have moved the Court of (Pee
Bench to quash the panel.
but'th°
Mr. HILL said they objected to the .pan.'l, 0e
Court of Queen's Bench decided they had no jurl
_,164
lion. The challenge to the array and the poll correctly
any misfeasance in putting the jury into the box. I_ll „tsi,
Jury Act was subject to the construction of his Le_4,e'os
Friends, it would operate as a curse instead of a P' the
ing to Ireland. He should say, in the present case,
best course to have adopted would have been to
the award to the coroner.

to

The LORD CHANCELLOR—Why should it go
coroner? Was there any default in the coroner .
red
Mr. HILL observed that the duties of the sheriff' es
been subdivided by the Act. The Learned Counsel, fat
proceeded, at some length, to contend that the pane
one
bad. The Recorder had been commanded to d° eti
thing, and he had done another. Until he had perfo.red,
the duty cast upon him of making out the list, and;cig
ing it to the clerk of the peace, how was he functus ° fr°o
It 'appeared to him that no inconvenience arising „et
the mistake or fraud in making out the list was to free 3
in comparison with the evils which would arise, re,
having a jury formed from an improper list. tioe_oe
corder had not done his duty, or if the clerk of the rove
had not done his duty, they were in the same 81.41,41014
as if they had not time to make out a good hs,"bolt
there was no reason why it should not be referreu*
to them to make a gocd list. It had been said thaouroc
object of this Act of Parliament was to take away in iti not
degree the right of challenge to the array. fie did
od
see how that could be contended for, when his 10,deil
Friends argued that the 35th and 36th sections Pr°,loll
for the insertion of those names which were fraudnie be
omitted. But those related to the juror himself' same
felt himself aggrieved by not having his n
inserted in the list, but it did not apPll.O
persons in the situation of the defends
to
He would conclude the observations he was abellst be
make by observing that the ground of remedy nilltipou
separated from a particular case, and he called ethe
their Lordships not to decide this point upon an etrnatee
case, and not to look upon it as if only one single -,.11e3
had been omitted or misarranged, as their Lea ',lO
Friends upon the other side called upon them too!
but if they were to decide it upon an extreme case avid
ought, he contended, to take the opposite extrenie'rod;
to decide it as if a multitude of names had been 't
~,b0
out. He begged of their Lordships to consider 00
dangers might accrue if they pronounced that thernevgb;
no remedy by challenge which might be 131.otea
before that august tribunal ; and if he W"cao
an illustration of that it would best be found in the f the
now before their Lordships, for here was a case,°o
iD
utmost importance, which divided the whole enVirolee
which it was impossible to obtain a jury with°°
degree of bias, and in which it was therefore TlLeerj be
that every safeguard which the law provided she,," ti et
put in-requisition. Their Lordships would recollectLd 111
this book was made up after this case had origins
,I'4as
the finding of the jury. He trusted their IPr','")/e5
would find the means of accommodating great ponalt, ~
to the machinery by which they were to be wroueaele
rather to accommodate the machinery to those :04"
principles which set it in motion. With those obs
tions he would leave the case in their Lordships' 113 i ht
Their Lordships having called on Mr. Kelly, wool'
Mr. KELLY rose and asked if their Lordships
insist on his going on at that late hour of the nig",.'tllo
The LORD CHANCELLOR having stated that
"gf
would hear him till eleven e'clock,
Mr. KELLY said he should feel it his duty to ech",'
into the shortest space the observations he had
He would first advert to the important public cl",„er7r.
now before their Lordships, whether upon one g-urt'
indictment, where different counts were bad, the ee„ber
error must not reverse the judgment aito,,e'
and he must say he heard no sound reason in an of ea
.
tending to support the opposite case. In the easedshirt,
indictment for several misdemeanours, if their Lei,i,ttee
decided that some of the counts containing were
charges, upon which one judgment was pronounce Such
bad, and that a court of error could not reverse taw&
judgment, they would decide that which he anb.ustiee,:
was clearly opposed to all principles of law and 3, no
And he begged to remark that there 'easel 43;
fear of that taking place which the Learned C°l—i,
the other side contended would take place, naniWilereci
great offenders would escape with impunity. oate
judgment was reversed on the grounds he ha" be/
there was nothing to prevent the accused &Stole
tried over again, so that he was surprised his .
Friends put forward this as a ,crrounti why their roan
ships should not reverse the judgrnent on this
.Ftwe
to
He submitted, that there was not even a SO;
support the proposition of his Learned Friend' 010.5
of the dicta cited referred to a court of error ;.i tint
of error was not even named. The mode in Whievfl
eree
case had been met was, by saying, that a court on,
could not revise a judgment in misdemeanor willor
count was good. He had looked in vain dos if
thorities to support that view. Upon ran o 51191. s
arrest of judgment all the cases went eoo4
that if there was one good count the en vie"
would not arrest the judgment. But the eon' tbereo.,
that they were in the position of a jury, and cownta.. ocy
fore apportion the damages. The question 4,5 01.'3
referred to in a court of error. Lord Mansilof the b?i
" We can lessen the punishment on accounti.
autherlo
counts," and this was the whole extent 0
_I ca',o
to be found either in civil or crunT„'Le grti,
upon motips in arrest of judgment.
and important proposition then before tr`i ilbOoto
ships with regard to a writ of error
behalf
t
been argued. In opening this case
that the r
id
for whom he appeared, he had admitted