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

liver it to the sheriff, and by the 24th section of the
same Act, the sheriff, within ten days after the
jurors' book had been delivered to him, was to make out
a special jury list, arranging the persons according to
their rank, property, and so on; and that the jury list
so made nut by the sheriff was to be the special jury list
for that year; and there was a special rule in the 11th
section, by which the sheriff was not to return the names
of any persons not contained in the jurors' book
for the then. current year, and by the 25th
section, where an order was made for a special jury,
there was a provision that the officer of the court, who
was to strike the special jury, was to appoint a time and
place for that purpose ; and the statute then provided
that the sheriff and under-sheriff should be required to
bring on that day their special jury-list. Now there
was no pretence whatever that the provisions he had
mentioned had not boon properly complied with, and
there was nothing to show that the twenty-four jurors
had not been properly selected. In this case there was
no default, partiality, or misconduct attributed to the
sheriff, and he could not believe that their
Lordships would uphold the novel doctrine, that
a challenge to the array was to be considered
as good when there was no default, partiality, or mis-
conduct attributed to the sheriff. The law, as laid down
in Coke upon Lyttleton, 156 B, is clear and precise upon
this subject, and in the same work, 158 A, it was stated that
if the array was quashed process should be awarded
to the coroners, and if the coroners were indifferent then
to persons appointed by the court. This proved clearly
that the cause of challenging the array must be so'ne
fault in the sheriff, and he would ask the Learned
Counsel on the other side what would be the nature of
the award which he would have entered upon the record
if the panel were quashed without; fault of the sheriff,
and to whom under those circumstances they would have
it directed ? Thia was. not an unfair test, fir if they set
aside the panel returned by the sheriff; the law pointed
out the officer to whom they were to app7y. But in this case
everything that had been done by the sheriff had been
right and correct throughout; and h' would ask what
award was to be entered on the record? Were they to
call on the coroners to re turn a new panel? Why, they
would return the same, and there would be the challenge
to the array again. The statute expressly stated that
the sheriff was to return no name except he found. it in
the jurors' book. How was the sheriff then to take
upon himself to say, of his own mere motion, that al-
though he. had a jurors' book in his possession,
returned to him by the proper officer, ho
would cancel the juroi!s' list of 1844, without any
order of the court? Way they were calling upon the
sheriff to violate the Act of Parliament. He must be
justified, when he had no jurors' book for
1844, to go to the one for 1843. But how
could he take upon himself to decide that the
jurors' book de facto for 1844, was not the jurors' book
de jury in the case of the Queen v. O'Connell, although
it might be in other ea ses? In a ease of this kind, if
there were any fraud in the jurors' book for 1844, or any
ground for saying so, it was a nullity in point of law.
The defendants should make application to the Queen's
Bench, founded on a' proper case, and supported by
proper affidavits, and nto doubt the court would inter-
fere. He could not admit that the court would inter-
fere in every case ; but, where it saw a proper case, it
would interfere. $e submitted that the chal-
lenge was bad ; but if it were capable of being
entertained, and they 'Wished to establish the invalidity
of the jurors' book, thfay were bound to raise distinct
issues, so as to raise the question of validity or inva-
lidity. He. submitted„ as in the present case, there

,
was no pretext for saying -there had been
any fault on the part of the sheriff; there was
no ground for challenging the array. The Right
Honourable and Learned Gentleman then re-

ferred to the provisions of the Jurors' Act, and the
mode in which the Act prescribed that the general list
was to be made out. The challenge of Mr. O'Connell
had admitted that the provisions of this Act had been
complied with, except, in one particular, namely, that
the names were not arranged according to rank and pro-
perty, and that a list containing all the names arranged
according to rank and property
.was net de:ivered to
the clerk of the peace. Would their Lordships bold that
such an averment could be supported if even
there was a single name placed out of its proper order?
lie did not believe their Lordships would hold any such
thing. The challenger went on to state that " a paper
writing, purporting to be a general list, had been
illegally and fraudulently made out by some person or
persons unknown." ',Chat was the averment in the chal-
lenge of Mr. O'Connell, but there was a slight variation
ii the challenges of the other traversers which had been
alluded to by his Learned Friend the Attorney-General.
The challenger stated that fifty-nine names were omitted
which ought to have been returned ; and he then went
on to state that from /he said paper writing a certain
book, purporting to be the jurors' book for the year 1844
was made up, from which the special jury list was made
out. It was not denied in the challenge that a general
list was made up by the Recorder—that it was delivered
by him to the clerk of the peace—that the clerk of the
peace made up, in pursuance of the Act of Parliament,
a book from the general list, which he delivered to the
sheriff, and that the sheriff from that made up the spacial
jury list; yet it was now contended that this omission
invalidated the jurors' *hook, though the omission might
have either occurred through mistake on the part of the
Recorder's registrar, or at the dictation of one 'of the
defendants, or any other person unconnected with the
Crown. He certainly thought their Lordships would
come to the conclusion that it would ba impossible for
him, on the part of the Crown, to take issue on an aver-
ment of that kind, and that he should be guilty
.of a
breach of his duty to the Crown if he had joined issue
upon it, and. notwithstanding all the obloquy which he
had been suffering in consequence of it in Ireland, he
was the more strengthened in the opinion that he had
acted properly, becausehis Learned Friend the Attorney
General was of opinion that he ought not to have done
so. He begged to call their Lordships' attention to sec-
tions 35 and of the Act of Parliament, which would
show in what cases names which were omitted might be
inserted. In the 35th section of the Act there was a
specific provision to meet the particular case of fraud,
and penalties were provided if it was proved that the
collectors had fraudulently omitted any names, and in
that particular case the book was to be corrected, if there
was either a wilful insertion or omission of names, which
ought not to have been inserted or omitted. The 36th
section stated the penalties which should be suffered by
persons who were found guilty in this respect, and it
gave power to the justices before whom such conviction
took place, to certify to the clerk of the peace that such
wrong omission or insertion had occurred, and the clerk
of the peace was to make a list in which such wrong
insertion or omission was to be cured. Thus their Lord-
ships would see that the Act of Parliament had specifi-
cally provided for those cases where there was a wilful
insertion or omission of the names, and the means of
amending.. such insertion or omission was pointed out ;
yet it was said that he should have made the amendment
in the list in defiance of the Act of Parliament, which
specified those particular cases in which the Act of Par-
liament provided that amendments were to be made.
Lord Cameneme--Ilarl you consented, with the con-
sent and privity of the traversers, that such a course
should be adopted, could the traversers have assigned for
error that the Act of Parliament had not been properly
complied with?
The ATTORNEY-GENERAL (for Ireland) apprehended
that in that case the jurors' book would not be a good
jurors' book, and if the parties challeeged that they were
tried by names not in thejurors' book, his consent would
not be a good plea to the challenge. He submitted that
it was really the object of the Legislature to take
awayt
e sheriff
ethrieffefhraolm lenge
tothe array, and to preclude
hexercising any control' over the list.
The next point to which he should call the attention of
their Lordships was that of the pleas in abatement.
Their Lordships would understand, from the manner in
which the record was made up, that all these pleas in
abatement exactly corresponded with each other, without
the slightest difference. They all sought to raise this
question, that the witnesses before the grand jury ought
to have been sworn under the provisions of the 58th of
George 111., that is to say, they ought to have been
swore in open court, and that, not having been so sworn,
the proceedings were altogether illegal. Now, he con-
tended that all these pleas were both insufficient
and informal. Both in England and in Ireland it was
necessary that pleas in abatement should be verified.
Now there was no allegation that the names of the wit-
nesses who were sworn were unknown to the plaintiffs in
error. He then cited from Comyn an opinion of Lord
Holt on this point, where that learned authority stated
that a matter could never be assigned as error which the
party might have pleaded in abatement, as it must be
taken for his own folly that he had omitted to do so.
The whole object of the assignment of errors in fact was
to amend the plea in abatement. For this purpose only
one error in fact could be assigned though as many
errors in law "might be assigned as a
.party
pleased. As only one error in fact could be assigned,
they could, net allow that to be assigned as an error in
fact at two periods of the same proceedings, which they
would not allow to be assigned as error twice over. He
submitted that on the principle laid down in the authori-
ties already cited, they could not assign an error in fact
and use it as a plea of abatement also. It could be
proved by the Journals of the House of Lords, that their
Lordships, on a writ of error, would not investigate
matters of fact in error, and would not, therefore, re-
verse a judgment on a matter of fact ascertained.
Lord CAMPBELL—I believe if you look at the books
you will find that in nullo est erratum admits the fact,
and if you wish to traverse it, you must deny the fact.
The ATTORNEY-GENERAL (for Ireland)—He would
apply himself to that point. Upon an assignment of
error, the Court of Queen's Bench could not have denied
any of the facts in dispute.
Lord CAMPBELL—Do you say that if the record were
brought by writ of error to the superior court, that court
could not review the judgment of the court below, and
overrule the error assigned in fact ?
The ATTORNEY-GENERAL(for Ireland)—lrespectfully
submit that to your Lordships.
The LORD CrteeteeeLon—lt comes here as a question
of law.
The ATTORNEY-GENERAL (for Ireland) thought he
was justified in asserting, that if this matter came on
upon a writ of error in England, it could not stand
for one moment. It was stated in Teesdale's
case that at Durham it had been the uniform practice
for the foreman of the grand jury to swear the witnesses.
The practice was so stated by Sir Gregory Lewin; and
if it were not justified by the common law, it never
could have passed without objection. Before the 56th
of George 111. c. 87, a practice had prevailed in many
of the grand juries in Ireland of their finding a bill of in-
dictment without examining witnesses for the crown.
The object of that Bill was to make it compulsory
to swear witnesses in open court previous to the finding
of the bill of indictment. Their Lordships would ob-
serve that all the pleas in abatement admitted that the
witnesses should have been sworn under the Act of 1816
—the Act to empower the foreman of any grand jury in
Ireland to administer oaths to witnesses in Ireland.
The Act of 1816 was admitted to extend to every grand