The Sun.
London, England, 1844-07-08 00:00:00

LONDON, . MONDAY MOR I JULY :6, 1844.

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TIE SUNI,

MAGAZINES '(CONTINUED).
BRITISH MAGAZINE.

Y:-~'

In this -monthly register of religious and eccleiias-
tical inforthation, we find, 'among other original con-
tributions, an interesting account of the •" Labours of
the' Early Missionaries in America," together with a
series- of just • and - temperate critical notices on some
of the most recently published, works of the day.

THE STATE TRIALS.

(THIRD DAY.)

WRIT OF ERROR.
HOUSE OF LORDS, July 6.

TILE QUEEN AGAINST O'CONNELL AND OTHER&

Their Lordships o'clock this morn-
ing, to bear the further arguments of Counsel in this
case. Counsel having been called in,
. The LORD CHANCELLOR (addressing .Sir Thomas
Wilde) said he boped he bore in mind that the Judges
would have to go on circuit on Wednesday, and if the
-case was' not 'concluded so as to enable them to give
judpent`before then, the case could not be-determined
until next session.

Sir TimmAs WILDE said that he fully bore in mind
the importance of having the opinion of the Learned
Judges, and with that' view he had compressed his ar-
gument as much as possible. But it would .be impos-
sible for them to omit anything which they considered
material to the interests of their clients.

The Lour) CITANCELLOR said he only mentioned it
that Counsel might be aware of the circumstances. lb
was oily anxious to bring the case to a conclusion, in
order that whatever the judgment might be, the parties
might have the benefit of it ; but they could• not do that
which was imposiible--they could not hear or determine
this case in the absence of the Judges, and'if the argu-
ments were not concluded before Wednesday they must
be suspended, in order that the Learned Judges might
hvar them.'

Sir THOMAS WILDE said they were there to present
the defendants' case to their Lordships with all that pro.
perly belonged to it, and if they omitted- anything that
was:materiel, they would not being doing justice to the
parties or to their Lordships,
,for the decision would not
be regarded • with confidence: They had as much as
-possible 'Shortened their argubents, but they could not
omit anything which they considered -material. He
'hopod their Lordships would devise someexpedient.
The LORD CHANCELLOR said they could not possibly
put off the circuits, because the effect of that would be
that a number of prisoners now in gaol would -be
set at liberty at the commencement of the circuits. He
thought it his duty to state this for his (Sir T. Wilde's)
consideration, and having done so he bad stated all that
was necessary.
_ _

Mr. HILL then resumed his argument, and said, he
felt that he laboured under a great disadvantage in ad-
dressing their Lordships, because he knew how difficult
it' was to argue an important case with .an impres-
-sion ou one's mind -that necessary matter, must be
omitted in endeavouring to compress arguments which
would perhaps be prejudicial to the interests of his
clients. Their Lordships would recollect that when he
was interrupted yesterday he cited the case of the King
v. Burridge, in 2d Lord Raymond's Reports, p. 1,364,
and`also in the Bth vol. of the Modern Reports," p.
245. This. and other cases showed that a party had an
undoubted right. of challenging the array. They esta-
blished the-principle that tbe Courts would not prevent
the defendant from exercising his right of challenging
the array. He. did net anticipate that. the
.right to
challenge the array in cases of special juries would be
denied. In Ireland thert was a case which was a great
authority on that point which had been argued in the
Exchequer Chamber before a writ of error, And which
admitted clearly the right to challenge the array in
cases of special juries. It was the case of Nowland v.
King, 1 Hudson and Brooke's Reports. p. 164. In that
case the challenge was on account of the unindifferenoy,
of -the sheriffs ; but the case of the King v. 'Edmunds
• was in that case brought prominently before the Court,
and the doctrine laid down in the King v. Edmunds was
limited to this point, that there could be no challenge of
the array on the ground of tbe unincliffereney of the
Master of the Crown-office. The right to challenge the
array was the rule. This was the exception. Now he
would ask what ground was there here Why the
challenge of the array should not have a useful effect
when such objection was made to the array itself? In
the case of the " Queen v. Fitzpatrick," which had been
tried in-one of the Irish • circuits in the year 1838, and
which was to be found in 1 Crawford and Dicks, p.
there was a challenge of the array, on the ground of
vices in making up the sheriff's book. The Chief Jus-
tice in that ease expressed an opinion against the validity
Of the challenge, but reserved the point. As, however,
the defendant was acquitted, the point was not raised.
In 1839, in the case of the " Queen v. Conradine," 1.
Crawford and Dix, p. 56,-there was also a challenge of
the array on the same ground. The presiding judge ex-
pressed an opinion against the validity of the challenge.
But' in, both cases the opinion was grounded upon a
reason, the force of which he confessed he could not see,
viz., that the provisions_ of the Jury Act, 3d and 4th
William IV., were directory and not imperative. Before
the statute of the 3d and 4th William IY., the sheriff in
Ireland was as unshackled •as he had been in England
before-the Revolutititr.' There was 'no interposition be-
tween him and the jury until they eameinto -the box.
The sheriff had an unlimited discretion to arrange the
panel from any of the inhabitants of the county he.
pleased, subject onl,y„to the challenge of the array. After
the Act came into operation it became his duty to ar-
range, the panel from the jury book, and to confine him-
self to the names found there. He submitted that these '
directions were imperative. But admitting, for the sake
of argument, that they- were merely directory—
:The
.Lone CHANCELLOR—Whatever is directory is:
imperative. The question is,.if it is essential.
Mr. HALL—Exactly so, Any Lord. I was merely
adopting,the language which has been used in discussing
this question.
The Loan. CHANCELLOR—Whatever is.directed to be
done by an Act of rarliamencis imperative. Whether
it is essential to the, validity of the act is another'
question.
• Mi. HILL would adopt his Lordship's term, that the
provisions were essential, and use the term in the
strictest sense. But he was now arguing the point as if
they were not essential. The question was . simply this
—had the sheriff, in making the array, acted as a statutable
officer, under the Act of Parliament, or according to his
common law rights and duties. If he acted as a sta-
tutable officer; he was bound to obey the provisions of
the Act. It could not be said that this part was merely
directory, and not to be obeyed. It was the duty of a
public officer, above all others, to attend to every part"of
the /let of Parliament ; and when the sheriff arrayed
the panel, under the provisions of William IV., the jury
book must' be the foundation of that panel. lie there-
fore Submitted 'that he was limited in the selection of
the panel by the statute. If the book ,used was not the-
book provided by the statute a fortiori—if it was: tainted
by fraud—how could it be considered that he had exer-
cised the powers confided in him by -the common law ?
It was charged in the challenge that those names had
been omitted by fraud, and the charge was admitted, by
the demurrer. They had a right to presume
that nine-tenths of the names had been omitted
from the book ; and although they might con-
sider the sheriff was acting as a common-law officer, was
it not a crime in the sheriff to take a book from, it. might
be, some stranger, in which. the greater portion of the
names qualified were-omitted, and to limit his list by the
list in the book_a list prepared with the fraudulent
intent to injure the parties. He would suppose the case
to have occurred hefore the 3d and 4tir of William IV.
Supposing that a party had represented himself as act-
ing under a statute,:and by colour 'of law, and by that
had prevailed.upon the sheriff to act upon a list made up
by fraud, the 'sheriff might have acted bona fide, but still
he had acted in such a manner as to taint the panel with
a vice, and the panel was therefore bad. Now be, sub-
mitted that the statute was not merely directory, but
that its provisions, as regarded' the present matter, were
essential, and all must be observed, or the whole was bad.
If their Lordships looked to the 11th section of the Act'
they would find that it enacted that -the sheriff should
not, in answer to a 'Writ of venire facies, return the
names of any persons not in the book of jurors for the
then current year,. All parties, the sheriff, the coroner,
the heritor, and the clerk of the peace, must refer to that
book,; in - a subsequent statute, however, it was passed,
as it had been found that owing to the provisions not
•being understood, in many counties there was not a
good jury-book ; and that statute gave power' to act
on the jury-book of the 'previous year, and -that if there
was no good jury-book then resort might be' had to the
state of things as they existed before the- 3d and 4th of
William IV. If -it was necessary' for his ease, which it
waa not, the presumption would be that theofficers had
done their duty, but it was immaterial to consider that
view of the case. • - -

- .
The LORI? CusticEmon--What was the last Act to
Which you reTerreil, Hill/ • '

Mr. HILL-The 4th and sth of Will. IV., chap. 48,
`which was an Act to amend the electing of jurers.in Ire-
land. Now his argument was this, if it was necessary
to prove the provisions of the Act, or if it was essential,
he had proved it ; but he might have added the proof
he
had already given. This very section ptovided thatif
the names of persons, whose names were not on .the
jury }gook, found their way into the panel, and no objec-
tion was taken till alter the trial, the trial should not be
set aside on that ground. It was
,impossible that the
Legislature shouldhave expressed thenr will to confine
the jury-book ;
the sheriff to-11 stronger terms., It was
evidently intended, by those who framed this challenge,
that where the name was not on the jury-book, the trial
should. be considered as bad.
_ :The -LoRD CHANCELLOR observed that there could be -
no doubt that the names were to be taken out of the
jury-book. •
Mr. HILL consulered such to be the case, hitt that was.
not the opinion of the Judges , in Ireland. As the list
was to betaken from the book, it was necessary, to con
shier what the, book was. They said that, owing to the
circumstances he had stated to the House, the present
was not the, book. Now the jury-book. was the mere
copy of a, list.. given by the clerk of the peace to the
sheriff; .and the recorder was to make up the book from,
the Collector of .cess••
The Lent CiLtilciii.olV--Won't it go to this length,
Mr; Hill - The willies are to be
returned by the clerk
of the peace from the collector of cess and then they are
hinded to the recorder. Now . supposing that the cess
Collector had fraudulently omitted a name, or that one
less was liand4l 'over to the recorder, 3 ou must. .go the
length of saying.that would vitiate,the book and aupport
a challengeto the aday.
Mr. WILL apprehended that it would.
_He thought
that, the great portion of the miscarriage had .ariseir
the pmsent, case from. raising the wrong issue. The
question here was simply this,—Was there a document,.
Which was a valid, honest document, furnishing the source
from which the I pane_ was drawn ?
The LORD CHANCELLOR—there are two questions
which yOu ha,ve raised ; you are abandoning.one. You
contend that if by accident one name is omitted, that will
*Witte the list ; but you allege upon the second that the
names were omitted fraudulently, and with a-view to
prejudice your client..
' Air. `ling, said he ..supposed he was not z fortunate
enough to express himself clearly. Yesterday he intended
Hmostexpressiy to state that% neither the record; nor he
individuallyi,raised that questiOn at all. -1-. W-was 12-or

called upon -to speculate as to how much of disobedience'l
to an-Act of Parliament would beendured ; but he con-
hiriiself to the allegations 'upon the record, which
were that -the Party was prejudiced by it, and that the
• Hit was tainted' with fraud.; It was here made .a part of ,-
the challene,. that it was'l6. the dainage of Mr. Steele. '
It was stated that the'effect was to injure Mr. Steele,
and it was stated that,the means were a fraudulent ordis-
sion of certain names from the panel.
The LORD CHANCELLOR—You have a right to pia
extreme cases'onhoth sides. . •
Mr, HILL 'ay-ailed himself of • that right in inquiring
into the nature, extent, and: operation of 4 challenge to
an array. Suppose all the names were omitted but one,
there would he. something then which called for redress;,
and, the remedy;' be apprehended, was the challenge to
the array. Even. if the limitation of the panel were-
honest, it was unsupported by law ; if it were dishonest,
he did not see how any question could arise. He would
suppose that in this case the challenge would produce
the greatest inconvenience. Was that a g,:oodreasori for
denying to the 'Stibjeet" this' ancient and most beneficial
remedy ? Was it not a far better reason for amending.
the Act of Parliament, and preventing it fiorn producing
consequences ',Which -were, never contemplated by -the.
Legislature:?,.. Let the. Act be amended. As a predeces-
,sor of. one ofthe learned,Judges had said, " Parliament
was always at hand to rectify mistakes." ' But incon-
venience' as applied to this particular case, there Was
absolutely none. Be made no other imputation upon the
Recorder except that' a great default had been coin-
mitted through his. not carefully stiperintending the list,
and the only question before their Lordships Was, what:
had been the -effecref that default ? • •
The'Lonn CHANCELLOR—You can say-nothing as to
'the eflect or the default, .Ixcense we have not the facts
upon the record.
Mr. HILL said he.. was in the region of actualities..
The effect.was that there had been a miscarriage; it was
the. effect in which be was interested, and not-the cause.
He would now. call their Lordships' attention to the
judgment delivered by. the Lord Chief Justice of the
Court of Queen's Bench -in Ireland.on the important
point of the challenge to the array, as set forth ip the
Appendix, p. 19. The Lord Chief Justice commenced,
his judgment by, stating -the. array as it was set forth,
and considering the provisions of the Act of. Parliament.
.He says that the Recorder is a judicial officer, and that..
some other officers. connected with the subject are mi-
nisterial. But the. Chief Justice .did not distinguish as
to whether the Recorder was acting judicially in the
particular point that was under consideration, or whe-
ther he was not. For he could not consider that some
ambiguous expressions which fell from the Chief. Justice,
that he would consider the record, after he had adju-
dicated on each name, and when that portion of his
duty had arrived which he is to cause to be
done by others, as acting judicially. He could not be
acting .
.judicially in causing persons to assemble
these names together, to put them into a list, put
them into a proper form, and have them written out'
in a clerkly hand, and deliver them to the Clerk of the
Peace. There was nothing very. judicial in this part of
his duty, and it was this very part of the duty of, the
Recorder. to Which this challenge applied.. The Chief
Justice pies on to say, that in the statute no farther
proceeding appears in any part of it to limit or control
the powers therein mentioned to have been provided, ex-
cept as specified in the Act, and then desCribes the mode
of proceeding. " A party may oppose the claim of a
person desiring. to be admitted as a juror, and it is for
the Recorder, exclusively and finally, to make an adjudi.7'
cation whether he is to be admitted or rejected." ; Ad-
mitted or rejected to what ? Not. to the jury-box, hnt
to the jury. list. . What Was the course of proceeding in
the case of votes for aldermen for the city of London ?
Was the wardmote at which the votes were adjudicated
.conclusive of the matter. Might not the question have
to come before the Queen's Bench ? One. Learned
Judge present must recollect a.case in which a long and
. expensive litigatioii was carried on for the purpose of
ascertaining the validity of certain votes, some of which
had been allowed and some had been disallowed by the
Recorder, acting as assessor to the Lord Mayor ofLon-
don at a wardmote in the City. In 999 cases out of a .
thousand_ the wardmote might do .all that was requisite,
but the thousandth case.. might arise. The Chief Jus-
tice then .went on to. say: that the Recorder is elected by
the Legislature to decide Cases of this description : " It
is a high and . important privilege. with which he is so
invested,'and with it is in a great measure connected
.the flow and fountain of justice, and the purity of the
administration of justice." Then the more important
the duty, the. more important it became that they should
not shut out any means .of examining whether it was
correctly. Or incorrectly performed ; and when the par-
tieschiefly interested in the matter, namely, the parties
in the suit, wore not present, how could this 'be done ?
After stating that . the Recorder's decision' is final and
beyond appeal, the Chief Justice states that " another
duty is imposed on him, that is, that he shall make or
cause to. be made a new list, arranging the persons
according to rapk and property.; and the Act directs,
that,in the newlyarranged lists, be shall include all per-
sons who, on a previous revision, have substantiated
their claims before him." ,But he would ask was there
anything very judicial in this duty ? The Chief Jus-
tice then proceeds as follows—" There is no imputation
inthis challenge, that the omission which was said to
have taken place on the part of the Recorder, was the'
consequence of improper conduct malversation, or car
ruption—none was nnputed to him. But it was said the
Act required he should make out the new lists according
to rank and property, classing the persons according to .
•
Such Order required by the Act, and that he should do so •
. with respect to all. whose claims should be allowed., I do
not know how far this is to be carried, but if I understand
the argument right, they push it to that extent. Here
were two dutiei iinp.osed ou the Recorder. First, he is
d to revise the lisiselivered to him by the collector, and
he-then is to make a new list according to rank and pro-
perty ; and he was equally bound to have made no
omission, but to have included in . the classification of
-rank and property, every individual, just as much as
he was bound by the Act ,to have allowed or disallowed
his claim generally to be received as a juror.
Nom; hoW far is that to be carried ? Suppose the Re-
corder had included every person whose claim bad been
alloWed,
.suppose be had omitted to class
them according. to rank and property, are all
subsequent' proceedings to . be' avoided, and to
'be the subject of a challenge to the array, because he has
omitted; 'to follow the directions of the statute in
, this one instance? Suppose he did make a classification
'aci.oraing to rank and property, and suppose he admitted
,all those-persons entitlettwill it. be contended that he
has made a wrong classification, because,
_ by the judg-
ment he has come tp, he has put men worth 2,000/, at the
bottom of the list, and.put at the top men not worth so
many hundreds. Unquestionably he would have de-
viated from the directions of the statute, but is that a
reason why all those proceedings should be null and
void, and why, if a trial took place, it should be in the
power of either of the parties to show that part of the
Act 'had been deviated from, and that, therefore, the
jury panel in that particular case was good.for nothing?
If the argument be correct, the consequences must go
that length, and I cannot elp thinking that such a decision
would be most injurious and dangerous to the community."
One of their Lordships had said, that one extreme may
certainly be lOoked at ; but they had alSo hid the kind-
.riess to say, that the other_ extreme may be looked at
also: Surely, it was not the mode to arrive at a pat.
conclusion—to take* an extreme case on either side ; but'

fidence. The Learned Chief Justice remarked that that
°fir was not accepted. This fact appears in
the , judgment of, the court below, that such
an Offer was made, and refused on the part of the
-CrOwn. Far be it rom him to presume for one moment
that this offer was rejected for any improper purpose ; he
merely used it in order to show the bona fides with
which the challenge was made. It also appeared from
the judgment that this was brought before the Court in
a summary manner. The parties did not wait till the
proper time arose for making the challenge, which could
only be done- when the jury appeared in the box. The
Court were of opinion that they had no power of inter-
fering, that they could not interfere in' that way, whether
they could so interfere was not now' the question, but the
less power they had of interfering summarily, the more
reason there was why they should have allowed the chal-
lenge. It was said as a reason why the challenge should
be overruled, that this was a general list not applicable
to this particular case, but to all cases occurring in the
current year. Be that so. If it were a list made up
with fraud against all the suitors of the case, or a class of
the suitors of the Court, whose. suits might come -in
during the year, instead, of being a weak reason; he should
have thoueht it a strong reason for allowing the chal-
lenge to the array,. for, be it recollected, the mode in
which the party might avail himself of the defect in the
panel must be by challenge. -But it did not at
all follow from there being a challenge to the' array in this
case, that there., would be a challenge in any other.
But, with the greatest possible humility to their Lord-
ships,be must be permitted to protest against the sup-
position that their Lordships would entertain such a
question. Their Lordships would not entertain such a
motive as inconvenience for one moment. • If incon-
vefiience arose to the course of public justice from their
having their challenge allowed, let the Legislature find
the remedy, but let it not, on any account, be done at the
expense of justice. He (Mr. Bill) did not think himself
justified in detaining the Right Hon. Route by com-
menting on the. judgments of'the two pnispe judges, who
agreed in opinion with,the Chief Justice, but lie would
call attention to the judgment of the fourth judge.
namely that of Mr. - Justice Perrin, , who was of
opinion • that this challenge ought to have been
allowed. The' judgment of that learned and emi-
nent person appeared to him (Mr. Hill) to ad-
vance arguments Which were well worth the
serious consideratioa of that Right Hon. House. That
Learned Judge seemed to consider that the words which
he (Mr. Hill) in a former part or his. argument had cited
of the Lord Chief Justice, might either bear a different
construction, or the, reporter might be wrong. Mr.
Justice Perrin then called the attention of the Court to
the nature of the allegation made. He said the Re-
corder knew no more of the error committed than he
himself did, and therefore there was not a shadow of
ground to suppose but that he had been imposed upon.
Yes; he was unfortunate enough to allow somebody to
impose upon him, and what was the result of that? It
appeared in the judgment of Mr. Justice Perrin, who
appeared to him (Mr. Hill) to 'address himself very
closely and ,logically, to the real question. What was
the result of the matter? That the general list of the
Recorder was, by some means or another, an inaccurate
list. The Recorder, then, was a merely ministerial
officer on 'that occasion, and was no more answerable for
that error than the Learned Judge himself. Then he
went on to declare what the nature of the allegation was
to which he (Mr. Hill) had already called the attention
of their Lordships. An error . had been made in that
part of the proceedings, which was of the most important
character to the interests of the parties accused. Why
should it not be corrected ? What possible reason could
exist that the error should not be corrected ? What a
monstrous Act of Parliament must that be which de-
prived an officer of the power of correcting his own
Ministerial error? But it was said the challenge was a
novel one, and founded on an Act of Parliament of a
very recent date. He (Mr. Hill) could not suppose for
gne moment that because au ,Act of. Parliament had been
in existence onlyten years, it was to be set aside because
of some point of form. The real question was, not what
was involved or not involved in form, but what was the
principle of the Act, and had that principle bedn re-
spected and complied with? Mr. Justice Perrin had
strongly and eloquently laid it down that he could not
see any objection to this ministerial error in the jury
list being corrected ; and he (Mr. Hill) had every con-
fidence that that Right Honourable House would take
precisely the same view of the .question. But he (Mr.
Hill) would not weaken the effect which he was sure
Mr. Justice Perrin's judgment must have made upoa
the minds of . their Lordships, by adding anything
to what had fallen from that, eminent person on the sub-
ject of challenge, but proceed very briefly . to notice
another point which struck himas being most important.
Their Lordships had heard much argument upon the
effect which would be produced if only one count in au
indictment was good, or, rather if there was an indict-
ment with one good count in it,' containing also counts
which were held to be bad. He would not urge that
point ; but, would implore that Right Hon. House not to
decide as to any supposed practice,. Practice, it should
'be recollected, was at all times a mode of administering
the law to be watched with the greatest care and anxiety.
'What, was the memorable answer of Chief Justice Pratt
in the great case respecting the use of gelittral warrants?
The practice, from the time -of the Revolution down to
the period of the action, was vouched to show the right
of the Secretary of Slate to the use of general warrants.
The submission of all parties who had been made the
subject of those general warrants was strongly argued in
Court. Their Lordships would recollect what was the
answer of Lord Camden. He said, "It is the submis-
sion of poverty to power." And that observation em-
phatically applied to the present case. He (Mr. Hill)
had made inquiry as to what was the cost to the parties
in this cage of the volume which lay upon their Lord-
ships' table. He spoke of no other expenses' such as
procuring copies of various documents, paying fees, &c.;
but he merely alluded to the printing of this volume, and
the expense of that alone was 4001. Was that an answer
to the observation that 'difficulties arose in the way of
writs. of error in criminal cases? Their. Lordships knew
that that item, heavy .as it was, sunk into insignificance,
compared with the many other items that would be
found in the billof costs to be brought against these de-
fendants. It was a question of poverty, and not a ques-
tion of the parties being convinced by their law advisers
that they had no remedy,. In many cases parties were
punished, and the punishment was at an end before it
was possible to ascertain whether they had been rightly
or wrongly convicted. How frecjuently did cases arise
in which points of law were submitted to' the considera-
tion of the twelve judges, and this proved that there was
no real remedy upon writs of error in ,such cases.
Lord CAMPBELL—We will suppose that an indictment
for murder contains several counts, which is frequently
the case. How is the verdict entered ? Is the verdict
of guilty entered on all counts ? lam supposing that
the judgment, for some purpose or -another, is formally
drawn up. I remember on the Oxford Circuit a case of
this kind, Miss Blandy's case, but I do not recollect
whether on the several counts in the indictment verdicts
were entered. Strictly speaking, if there is only one
felony upon which evidence is given, a verdict of guilty
can only be entered upon one count.
Mr. HlLL—That a verdict of guilty should be entered
on only one count is our argument.
Lord CAMPBELL—The judgments were always
extremely shoat, there being no fee to be paid for them
according to their length.
Mr. Hu.L—He was arguing to their Lordships that

. .
this, remark must be made, that the state of facts upon where there was a large question of property involved,
Which the Learned Judge hypothetically argued had no the case was a.difficult one. Persons engaged in such
relation to the state of facts in the present case. It cases had generally-property -to !carry them on. But,
might be an interesting legal speculation, but which how did this apply to criminal cases? He trusted their
might as well be made in the next case that carne before Lordships would pause before they gave effect to the
him as in the present. The Learned Chief Justice said,- doctrine that indictments might be drawn with a degree
that this was a judicial act which could as well be per- of looseness in the use of terms which had been adopted
forthed by an inexperienced clerk 'as by the most in the present case. This was a matter Which had been
learned Judge. The . Learned .Judge did not brought for the first time under the consideration of
'say what waa to be the consequence, there their Lordships, and he trusted that this system would
was no. list, or a mutilated list, or a list receive a final check by the judgment which it awaited at
tainted with fraud from beginning to end. The the Lordships' hands. When he looked at the record,
Learned Chief Justice went on to say—" I do not mean he found great difficulty in addressing his mind to- the
le qUestiOn -Whether the 'special jury panel may not be -subject, owing to the immense quantity of words contained
challenged : several cases were cited, in which it was 'Bo in'the various counts of the indictment. The first count
decided :—I do not mean to controvert that, the more so occupied 50 pages of a large and closely printed book.
'tis it "aeeing. not to have been pressed on the Other side. He could not liken it to the three grains of wheat in the
But I observe that in those eases a proteit was made, up- bushel of chaff, not that the illustration would fail in
helding their right, and nothing was done to remove it. consequence of the deficiency of chaff, but of the ab-
It is n6t.berause the challenge was to the array of the sence of the three grains of wheat. His Learned Friend
special jury. but becausethe Recorder has not followed had addressed their Lordships upon the sixth count. In a
out the directions of the Act of Parliament, and that late case which had occurred in the Court of Queen's
some person unknown has had the opportunity Bench, the Court had directed that vituperative adverbs
Of making• an alteration in the' lists so returned, should be disregaided. And,prohably, the.Learned,Ttidges
the sixty persons vi,hose. names had been allowed In that Court would place vituperative adjectives on the
by the Recorder 'de. not now 'stand upon the list." same footing. What was there in this count which da-
He seemed to allow by that, that there did exist a right signaled an offence ? Looking to the whole of. this;
of challenge ; but Mr. Justice Crampton, in his judg- transaction,-Without having the mind disturbed 'by what
meet, gave'it as his opinion that no such. right existed.
.Bentham called " dislogestic words," the whole count
Thus there seemed to. be some eloobt about the matter was deficient. It was merely an assertion, that certain
in Ireland ; he trusted there would •be none in their persona assembled large meetings, which they musttup-
Lordships' minds. The Chief Justice went on to say pose to be peaceabie, because, bad there been ground for
that " the Recorder was not answerable for that no a charge of a breach of the peace against them, the op-
blame was imputed to hini' in the way of anything cor- portunity of still further extendingthat immense indict-
rupt or fraudulent," • But were' there no cases of mis • merit would not have 'been lost Sight of. He found
Chief arising, except what arose from fraud ? Might it thrbughokrt the'whole of this indictment a Frenchilied
not be produced from want of care or caution ? The fertil- of 'expresaion.- It was impossible to read this in-
eonsequenees 'Of such want of care or caution might be dictment without being struck with the wonderful ana-
worse than where there was corruption or fraud, though loky_ between 'the language in these indictments, and
.the parties might' 'not be so much to `blame. Then. the that.used during the time of the French Revolution, in
Chief Justice went on to- say, Theft is no averment In the indictments, if they might be so called, of those dap.
•the 'challenge that Re did not, make out the lists accord- He could almost suppose that those who•had drawn up
ing to. the Act end' he says that "the Recorder is not this indictment had- placed the Moniteur Of those days
an officer of 'the Court.' He had to deal with this :before them: The defendanta were charged 'with a de-
point before' by anticipation, when be called monstration'of physical force. • 'Was that English or was
their Lordships' attention to the great legal fact it French? This reminded him of a person who wita in.
that a challenge-to the array was a remedy before those gieied in France before the tribunal'constituted by the
Acts were passed ; whether the Recorder was or was not • National COnvetitiOn;for having usetleertallt manceuvres.
an Officer of the court, was of no consequence, because 'Another person was charged tor attempting to denatu-•
it was not a contest in personam, butin rem, a mere en, ralise, by sowing lucerne instead of wheat. In early times
quiry • into • a 'document over which the Recorder had there was a disposition to use figurative language And
control for a certain time ; whether the Recorder was an expressions in drawing up oases of indictment, Black-
officer of the court or not was immaterial,-because the stone stated:that colistruelqe treason illelllded a charge
court bralloling the challenge had the power to get-rid, of attempting to accroncli on the govereip power.
of the evil done, whether by the Recorder or by any aeeroueh on tbe'foTereigo power, translated 111
other person. • The Learned Judge then asked the •was a usurpation of the' prerogative of the croNte. The
question," who is to trybis' (the Recorder's) indi
fferefleY. tree .0 f treawil, however, was ultimately pruned to rea-
Ile is not •here or represented by counsel., ' quo tiOttable dimensions. . They were aPetlitto fined to appeal
tion arose froin an entire mistake as to the issue. .T4ere, to the custom of their ancestors ; but he wished the
the challenge to the array
.Ntias'for indiffereecy-7-wasthe would always appeal to proper occasions_ He 9,414.'
sheriff represented ? who ever heard of counsel for a
.bavci wi,bedthat In all eases of past statutes apelljuStice
sheriff in a chafienge: to the array?
up. • and wisdenv had been shown bild 'been exhi-
pealed to their Lordships' experience. . The shell/ .bited in :the statute of tve4sea of Henry the
was no party to the issue, and a'challenge to the array that Statute .it ' enacted that
rose,on- issue, in hiW or in fact,'between the parties. He eu Overt Ft; be proved sto: constitute treason.
did not 'wonder therefore that the mind of the CWef
What had been the consequence whenever in bad ti
Justice came to an erroneous conclusion, because theme aaempts NIA been made to enlarge the egnitruetion of
was no surer meant of arriving at a wrong oonelusjou ;,the statute of tieas.olra Althoghthose attempts might in
then a inistaii4 Of:::tha issae. heLearned Chief Justice those times have been legalised -by statute, yet as soon
then conitnee'ted! on a proposition made by.oounsel.,fer as those bad tunes had passed away those statutes had
the defendant, to put.back the names for the purposes of been swept away, rind that venerable statute had rei''
that trial to. avoid all question, and that the array should mained the Corpusjuris 01' the law of treason, lit trusted
be as it would have been if those names had formed part their Lordships would ly for the law of conspiracy what
Of the list; It was imposSible for the defendants to give their aTIVO§ViTa dole. the kw of treason. He
a clearer proof that they did not resort this challenge 'trusted Aim 4044 ,
Would so construe the law of
for the object Of 'delay, but that they were c4irp,4§ pt peaSpieticy that no man should be subjected to suffering-I
pirr.iti *bleb the laW*4lif tt€ol) jilit 411- penalties itifigtedV the of I
/ 9AW cons Nyl cut

knowing against what it was he was called to defend
himself and in what his guilt consisted. In no other
construction of the law could there be any safety. He
wished to save all parties who mighthereafter beaccused
from the dangers arising from the abuse of the law of
conspiracy. He would conclude in the eloquent words
which had been used by an eminent- person in another
place—" I wish the law not to'he a two-edged sword of
fraud and oppression, but the staff of honesty and the
shield of innocence." - •

Mr. KELLY appeared for Mr. John O'Connell, Mr. T.
M. Ray, and Dr. John Gray, and as his Learned Friends
who had preceded him had adsdkeased their Lordships
more or less en all the pointe which had arisen in the
case, he should be beskAtaharging his duty by advert •
ing principally toAkee points which he thought df vast
importance, not' seily affecting the interests of those
e. hom he retiresented but as electing the right, knit, and
satisfacyie -administration of the criminal law of this
country. He would, therefore, proceed at once to state
bis first objection, which, if his statement should be sus-
tained in their Lordships' opinion, would at once appear
manifestly fatal to the whole judgment, and that was,
that all these defendants had been convicted, and were
suffering the sentence of the Court, for a greater number
of offences than had been found or presented by the
grand jury—for a greater number of offences than they
had ever pleaded to, or been heard on, and above all for
a greater number of offences than the petty jury were
sworn or had any authority to try. He ventured to
submit to their Lordships this objection, in the first
instance, because if it were admitted, it would
be fatal to the whole judgment, and he could
not believe that their Lordships would assent to the ex-
traordinary proposition'which was contended for on the
part of the Crown—that if there were one goocteount in
an indictment for conspiracy it was sufficient to sustain
the judgment, although all the other counts might be
bad in law. But even if that proposition were admitted,
it would be no answer to the objection which he was
about to make, which stood out clear, alone, prominent
and unconnected with any other. He could satisfy their
Lordships, from a comparison of the counts of the in-
dictment and the finding of the jury, that these several
defendants had been indicted for one conspiracy, neces-
sarily laid at one time and place, and on one occa-
sion, and that they had been convicted of three con-
spiracies, each separate, and were now suffer-
ing the sentence of the Court on three' con-
spiracies, each in the indictment bring charged
with only one conspiracy. To disencumber this part
of the subject from all irrelevant matter, he would limit
his observations to the first count, which, for this pur-
pose, and this purpose only, he would suppose a good
and valid count in law. He would make no reference to
the defendant who was dead, and they would find"that
the count charged eight different persons with one con-
spiracy to do five different acts, and effect five different
purposes, each of which he would assume to be unlaw-
ful. Their Lordships would find, when the count and
the finding were referred to, and he would refer to
nothing else throughout the whole record, that the count
,charged eight persons with one conspiracy, and under
that count several persons were found guilty, and had
judgment passed upon them for three conspiracies. He
would not go into the first count at any great length,
but he would briefly state the effect of it.
That count charged eight persons, on a day and place
named, with having been guilty of an unlawful conspi-
racy to do the following five different unlawful acts :
First, to create disaffection and discontent against the
Queen's Government. Secondly, to create ill-will be-
tween one class of the people and another. Thirdly, to
effect changes in the Constitution by demonstrations of
physical force, for the purpose of intimidation. Fourthly,
for endeavouring to bring the tribunals into contempt ;
and, fifthly, for creating discontent and disaffection in
the army. ' Here the count charged eight persons with
one conspiracy to effect five unlawful acts. But the
finding of the jury was wholly different ; that found that
the eight defendants were guilty of conspiring to do two
unlawful acts—to create disaffection to the Government
and ill-will and jealousy between one class of her Ma-
jesty's subjects and another. He would class those
two findings together, and call it number one.
Seven and eight were found guilty of another conspiracy,
a conspiracy of altogether a different character, and
other and different purposes—namely, a conspiracy to
effect changes in the Constitution by physical force and
by intimidation, and also to bring the tribunals" of the
country into disrepute and contempt.
The LORD CHANCELLOR—Are the seven found guilty
of the conspiracy to do 1,2, 3, and 4 ?
Mr. KELLY-0 yes ; three are found guilty of con-
spiracy to do No. 5 ; that was creating disaffection in
the army, and therefore those three were found guilty
of all the conspiracies; 1,2, 3,4, and 5.
The LORD CHANCELLOR—That iS to do all ?

Mr. KELLY— Yes.
The LORD CHANCELLOR—I think, Mr. Kelly, the
natural way for you to have proceeded would have been
to say three were found guilty of'doing all ; seven were
found guilty of doing 1,2, 3, and 4 ; and eight were
found guilty of doing 1 and 2.
Mr. KELLY admitted that that, perhaps, would have
been the better course to have adopted. He would treat
such matter separately, to avoid confusion. The Learned
Gentleman then read the finding of the jury on all
the counts, which has already been given several times
at length. Now from those findings it would be found
to be apparent that eight persons were charged with one
conspiracy only at one time and place to effect those
five objects. The whole question then at once arose
looking to the terms of this finding, was it a finding,
was it' a verdict of guilty of three conspiracies, or of
one only ?
Lord CAMPBELL—Of one conspiracy and part of
another ?

Mr. KELLY would rather say one conspiracy, be-
cause it was necessary to bear in mind the dif-
ference between the conspiracy and the object of it.
When one conspiracy was found, when one unlawful
agreement, amounting to x conspiracy, was made, it
constituted an indictable offence. The question was,
whether it was possible, looking at this finding, to put
any other Constru,:tion upon it, than that it was a find,
ing of three conspiracies, where conspiracy only was
charged in the indictment. He had already reminded
their Lordships that every conspiracy must be laid with
time and place. In the first count they would find that
there was a charge of but one conspiracy, at one time
and on one occasion. The first finding was that the
eight were guilty of one conspiracy to do two unlawful
acts. Was that, or was it not, in itself a verdict of one
complete offence—a crime upon which, if the record
stopped there, those eight prisoners might have
judgment' passed upon them ? He began, theil,
with
this :—There was, in the count, a charV.:: against to
eight persons of one conspiracy. One conspiracy wad
charged, and the defendants were found guilty of one,
and there was nothing to prevent the sentence of the
Court from being passed upon thioaa for that offence,
Now what followed? There was then the verdict of the
jury, that seven of those eight persons were guilty of
a totally different and distinct conspiracy—a conspiracy
as distinct from the first as a conspiracy to murder
would be from a conspiracy to rob a garden. The re-
cord stated a perfect and complete offence, punishable
by law, and within the language of the charge contained
in the indictment.
The Loan CHANCELLOR—Tho real mode of trying
this question would by to turn the finding of the. jury
into a count, and then see what the count would be_
Mr. KELLY would be quite willing to accept that
test, subject only to this observation, that the count
would be open to this defect, that it would be one count
for three different offences. He undertook to satisfy
their Lordships that a count so framed, supposing it not
to be open to the objection that it contained a charge of
three distinct offences, would be a good count
for three several conspiracies. What would such
a count be ? It would be that Daniel O'Con-
nell and seven others unlawfully attempted to,
create disaffection, and did unlawfully and soforthe
on the Ist of January, 1844, at Dublin, and in the.
parish of St. Mark's, unlawfully, maliciously, and so on
combine, conspire, and confederate, to and with each
other, and to and with divers persons unknown, to bring*
the Government and constitution of this realm into con:
tempt, and to raise jealousies, hatred, and WI-.
will between different classes of her Majesty's
subjects ; and also that the said Daniel O'Con-
nell on the same day, and (naming the six
others) at Dublin, &e., did unlawfully combine, &c..
to change, by violence and intimidation, the laws and;
constitution of this realm, and to bring the tribunals ot:'
this country into disrepute and contempt ; and that the.
said Daniel O'Connell did, on the same day (or it might.
be a year afterwards) conspire, &c., to spread disaffec-
tion and jealousies in her Majesty's army. That wouldi
be a perfect count, or, to speak in the language of cr
minal pleadings, that would be three good counts in any
indictment for three several and distinct conspiracies
by three several persons. It was an inconceivahle 10%.
surdity that five persons should be declared to be guilty
and not guilty of one and the same conspiracy.
imx—You say that the three who )11.0
Lord Cam-,
found guilty of Nos. 1,2, 3,4, and 5, are found gr;iity
and 2 more than once.
Mr. KELLY said that, according to his dew, those.
of three cons
who had beepiracies. n found guilty in each findi„g were 'guilty
Lord CAMPUF,LL--Then it w(:.ald be the answer---and
that more favourable to the rApplicants—that those three
were three times found guilty of counts 1 and 2.
Mr. KELLY-7ThP.A Is not so ; for eight were found
guilty of cons'i;iracy to do certain acts—seven of conspi-
racy to ~1.0 certain other acts—and three of conspiracy to
(14 one other separate and distinct act.
Lord CAMPBELL—Do you say that they are found
guilty of three conspiracies to do 1 and 2 ?
Mr. KELLY replied that they
.were not found guilty.
three times on those two counts. They were once found
guilty on those two counts, then found guilty on the fol-
lowing two, and, lastly, found guilty on the fifth count.
There were three separate findings of three separate con-
spiracies. Suppose there were an Act of Parliament
that persons guilty of certain conspiracies should t
liable to a penalty of 1001., and if; under thdt statute,
certain persons were indicted for conspiring to do severe
acts—if some of the persons indicted were found guilty of
.some of the acts, others of the same acts, and also of cer-.
tai other acts charged—and the remainder were furtheie
found guilty of the other acts charged. Now, the /40
being liable to 1001. penalty, would nut the second be
liable to 200/., and the third to 3001. ? If it were under
such a statute the plaintiffs in this appeal were indicted,
would eight of them be liable to the penalty of 100/. each,.
seven to 2001. each, and three to 3001 each ?

The LORD CELANCELLOR—WOUId not this be the roost
simple way of putting it 2 Suppose A, B, and C, being
intlicteil together, ee in this case, were found guilty
conspiring with others to do certain of the acts ehar-6ed, B
was found guilty ofeonspiring, with others,
tto certain
place, and C was found ; 'and in e same
; other of the acts, in the same 01"
ggiitY "4: conspiring, conspiring, with the
others, to do one other 0..044 *indictable acts.
Lord CA,mi•DELte—Although the acts might be as dif-
ferent !ii their nature RI to storm the Tower, and violato
the chastity of a wetnan,
The Lonn ettANOXLLOR—You maintain that these
findings would bo.of three conspiracies.