The Sun.
London, England, 1844-07-09 00:00:00

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'lltd Daniel O'Connell saith, that the said several per- that instance' sitting in the Court of Queen's Bench.
10nis whose names were so omitted from the said frau Thera Were a great number of other cases, which showed
W°siletit paper writing purporting to be such general lie' that the Court of Queen's Bench wes a court of assize.
ere also omitted the said book purporting to He would only make a few observations upon
.what had te said jurors' book, and from staid list per- been said with teteated to the counts of the indictment,
Porting to be the said special jurors list." Here ita hat Learned Friend, the Attorney-General for Ire-
4gain, there was no allegation that the names Avert land, would deal more at large upon that point. He
not omitted from tbe jurors' book ; it was only alleged would contend that it was immaterial even if there wereto
:that they were omitted from another paper which was bad counts in the indictment ; but he was prepared
leit„a document within the Act of Parliament. The argue -that all the counts in this indictment were good
134",enge again proceeded to say :—" And the said and valid counts. He would contend that the offence
, ardel O'Connell further saith, that the said several was but one, though it was laid in different ways. He
eers,`lis so omitted as aforesaid had been duly ad- , would first call the attention of their Lordships to that
Judged and allowed by the said Recorder at said special count which charged the defendants with con-
lsessions to be the persons having the qualification spiring to bring into contempt the tribunals esta-
ualifying and entitling them and each of them respec. bushed for the administration of the law in lre-
v jurors' Ma-
eto be upon the book, and also to be upon ' land, and to diminish the confidence of her sPecial jurors' list, for the current year, to wit, the ' jesty's liege subjects in them. The Hon. Gentleman
rear one thousand eight hundred and forty-four." Now, ' then referred to a case in page 678 of the 6th volumett of
contended, that there waa`no power in the Recorder . Term Reports, and to other cases, to show tha here
_
''' allow. any such thing. He read the 26th section of the was a distinction between an indictment for a conspi
LAkel to bear him out
inthis assertion, that the Recorder racy, and an indictment against an individual. He
-eu nothing to do with judging whether these persons i asked, was, or was
.not, the charge laid in the eighthcount,
w
sie,re qualified to be on the jury-list at all. The next 1 namely, the conspiracy to. bring. into contempt the tri-
"'Legation waa, that the said Daniel O'Connell further bunals of the country, an indictable offence? His Hon.
iv:saith, that t-he panel made to try the issue in this case Friend said, that reform might be made in the law, that
s carra.s' ed and constructed from the speeial jurors' I persons might league together to make those
sae'ar 1844 " the manifest wron and injury of the , forms—to reform the Ecclesia-tical Courts for instance.
l , to _ g
it" Daniel O'Connell." Again, in this allegation He (the Attorney-General) did not dispute that, but he
' 'vas not denied that the special jury-list ,was re- said it was an indictable offence for parties to conspire
atilt ally made up by the Sheriff, and though it was stated ' and confederate to bring into contempt the tribunals of
le was to the manifest wrong and injury of the chal- the country as by law established. He begged on this
tiger, yet there was no affirmation that A was made point to refer their Lordships to the observations. made
-with.thouthis privity and-knowledge, or that he was not by Mr. Justice Buller, in the case of the King v. IVat-
e Reports, p. 196. party by whom it was done. These were the son, 3d Term His Learned Friend,
grounds on which the challenge was to be set aside and ; put the case of a number of persons meeting
'quashed. This was the whole of the challenge ;it was I together, and agreeing to write down the Court
quite unnecessary to enter here on a discussion upon the of Star Chamber, and he then put the case of the
Aet of Parliament because there did not arise any point abuses which prevailed in the Court of Queen's Benchwellit,the challenge' which could vitiate the array. But and the Court of Common Pleas, amongst the judges of
e, a regard to the course taken by the Crown, of demur- the land, in the time of the
.Stuarts, and he read a pas-
co to the challenge instead of joining issue upon it, he sage from ae work of the Right Hon. Gentleman. in the
`etttended that theAttorney-General for Ireland had no other House, in which he, in strong terms of vituperae-
ether course open to him, and would have committed a tion, attacked the courts of justice of that time. But h
gross violation of duty if had not done so. He had (the Attorney-General) would contend that, with. re-
'ursued the same course himself in a challenge made Bard to the Court of Star Chamber, and with re-
ee
cp. the Special commission. He should now pro- gard to those bad times, it was
dncint a mode of
j,cl to the enactments of •the Act of Parliament. trying what persons wore justified in o g at iesent.
e omission of a name could not render the whole. array His Learned Friend. might just as wellhave saidP that
etgal- There was a penalty upon the collectors if they they were now indebted for the libertiesdtthoeyheenlonlypeldoto.
, isot make out th list right, or inserted any names the ay of the Prince of ange,
nter„ an
land- 'nst le
fa;:PertY• Names might be omitted by the collectors went of that army by the gentry of Enai h
t°ll grand jur cess ; the book might be made up and King. If the abuses that prevailed were put down_
nysi Was imparielled with that omission; but then there force of arms, yet it was a means bteyeonndtheaw it
his a provision in the Act by which a party might get though we may feel tharetsmsienn wtieierelawh justified in re-
t_nanae inserted. An omission coal not have the sorting to them, traonfs going beyond
I,ect of invalidating the jury list. This point had been it, for the purpose gredreging their grievances tit
;parties
caste brought before 'tile judges in Ireland. The first did not follow that at - the „present day f
F'e was that.of • " The Queen v. Fitzpatrick," in Craw- were at liberty to
etake the same means o
.„es
es" and Dick's Reports, vol. 3 p. 513. The second case bringing the constitut d authorities of
.the coun-
ses that of "The Queen- v. Conro" A prisoner' was try into contempt. Suppose a conspiracy was.
Indese .. _
ehtt'ii,! et for murder upon four counts. There was a formed, of which the overt acts were publications of
Reiff liege to the array, and Mr. Justice Holywell, in a nature that would bring the Constitution into con-
feetnß judgment, said that the effect of allowing one de- tempt, would not that be an offence. This count of the
be to vitiate the 'whole indictment, would indictment charged a conspiracy to bring into hatred and
t that the whole fabric of the admirns- contempt the administration of- justice. That count
Tattien of justice would fall- to the ground. could be proved if it should be established that the
The coroner was a general and not a particular officer. parties had poured fourth a succession of libels having
bute.arraY in the case of the coroner might be challenged, that intention; beyond all doubt this would be an indis-
fha!oald not be challenged in the. case of a particular putable offence. But his Learned Friend sid if persons
ses7ea .If there were any fault in the Crown-office, did honestly believe that the Court of Queen's Bench now
that tion should be made to the Court. He trusted was in. the samei bad state as in the time which had been
showrorti the authorities which he had cited he, had mentioned,
.t they were entitled to meet together, and
thsien_to their Lordships that there was no ground for combine, in
denied,
to write it down. This
ottessinclin! the array on the ground of the he wholly and when. his Learned
the
lips furthef names He would not trouble their Lord- said that if they honestly believed such to be case
. come to the they had a right to meet for that purpose, let them ob-
tee, in
tihatermoenn
month
hattH
the traversersought not to have serve what it would lead to. :Where was the distinction
e,itn called on to answer the indictment, because the to be rawn ? In the same way, parties might honestly
ties,
sworn !es examined before the grand jury had not been believe that it would be for the benefit of the public to
delta in court. It was impossible to contend that such conspire in the same manner against the Houses of Lords'
could have been allowed by the court. The Act and Commons; for the same reasons they would be jus-
oes s
the not say
In the attem t to reform
that theurors should be " sworn," but that tified in writin them down. p . _
eslit'uOUld be "sworn or 'affirmed" in court. But there the institutions.. of the country, persons were not jus
'lot "ther ground on which the plea was bad. It does tified in meeting together to conspire to bring into
:ertteLthe names of those witnesses, nor that they hatred. and contempt,. above all with respect to an
tale snanown to the defendants. He held it an essen- authority which could not be brought into disrepute
Bat rant i .
tat
e,,, n pleading that these things should be stated. v%ithout sapping the foundations of the Constitution.
tat factss" that four witnesses were examined before Were their Lordships prepared to say that this was no
to tyand jury was not a ground of objection crime, or that any number
.of. persons might meet to-
thee nle indictment ; for it was a non-constat gether for the purpose of writing down the tribunals of
„Lop-,Tsser Witnesses were not examined. the country, and bringing them into contempt and dis-
wair-a lattoticHAm—The grand jury might find from repute ?
The's% knowledge. Lord CAMPBELL—YOU should take the whole of the
One 4AthrTesaßNEy-GENERAL—Or they might examine count which lays the charge of bringing the tribunals
tares, ir own body, upon his o.ath as a jur.or. (The of the country into disrepute, for the purpose of having
of th'''o Attorney-General then cited cases in support others substituted for them: That is certainly much
til'elejt,,e 'yevv, from Carrington and Marshall, and also like what we call law reform. .
ieq ,„w'n's report ; but it was impossible in the gal- The ATTORNEY-GENERAL said the count did not state
„4eslaitroter,ess even their purport,) There was now an certain of the tribunals of the country, but the tribunals.
ishaies' Zlnatter to which he wished to call their Lord- Lord CAMPBELL—That others may be constituted ;it
-an atNicti It the assignment of errors in fact may be that those others are to be constituted by Act
Ttitne 41itiPeall to.theHwoaause of Lords. That was the first of Parliament. .
'`cause "4 heard of errors in fact assigned in that The ATTORNEY-GENERAL said that the statement in
`a house eke submitted that their Lordships' House, as the count was that parties unlawfullyconspired, for the
,:;°llld firstpaPPeal, could not deal with errors in fact. He purpose of inducing her Majesty's subjects to withdraw
-Anthe ead the plea. (The Hon. and Learned Gentle- their business from the tribunals ofthe country. It was
A fors n read 0,
the e oori fb ate pleas from pages 80 and 82 of the appeal.) not that these tribunals were to. e swep.tn way and others
A. o ~, "", e defendants had Pleaded an abatement in substituted. The existing trwibausntaolssh alreland are to
lake their founds-.
',et Were et the suit, and the authorities upon that sub- remain ; but the conspiracy
disrepute,
'4ltt et° he found'in and withdrawing
I;pourt of quee' ,
th,, ,their Lordships" Com'a's Digest." He trusted lions, by bringing them into
.
would hold that the judgment of their business from them.
of
,‘,Conlyn,B 13:,rinrho,str
,Benchnioofaroet; on this subject was correct. Lord CAMPBELL—The. courts are to remain ; but
' Ito s• jgest, 'in e," and
there was the case a concurrent jurisdiction is to be gtven to new ones, an ,
'the point there de- there is an incitement to the people to leave the old ones
klaeotts' W:su.thaitr
trL, ivelloaucirat 1 Queen's was not assignable in the and come to the new.
the Aequer Chamber That case was brought before The ATTORNEY-GENERAL said it was not. for him to
•Bench in the case of " C tled ne argue with his Lordship ; but he supposed, if the exist-
,, ree Yi in 4th Barnewall and Adolphus, p.aS 97,
,?.37nd ing. tribunals were to continue, they were, -at the same
Chre:nt was also raised in the .. King v. Wood, in time, to be brought into.
.disrepute and contempt.
hs 1,1118 Reports." In that case the ground of error Lord BRouonAm said it would' have made the count
their verrnaration of the jury before
.they had given quite clear, if it had said these new tribunals were to
4nd afte-lete There was an application for a new trial, have been constituted by other means than by Act of
Court of rA'ards a writ of error was brought into the Parliament.
47,ghaeirtleStiv trleueen's Bench, and that court gave judgment The ATTORNEY-GENERAL continued. There was only
trued
noerr,oPirirties who brought the writ of error.. othercount to which he wished to call their attention.
4'4 one tnen a writ of error to the House of Lord., It was the. sixth, which charged the meeting in large '
Wes Put tc, assigned was the fact, and the ques- numbers, and, by demonstrations of great physi-
,,b the judges was, whether the error cal force, to m ake changes in the law-. It
illte 811-` as to ab the House to take was objected that the count did not distinctly state
jod consideration
Judges
vel, it the arror
thatof
.fact ; and the who was to be intimidated, or how the intimidation was
Vs gave as their opinion it was not.. The to be effected. He submitted that that was. not nee. esd-
clitetio eelded that Parliament could not decide the sary. The allegation was that the parties conspire
Loran'
to, s CA.,,
`414 nos,aenELL—Was it decided that in a case of tnthgere,thweirthtnac:ineaew procuring a change in the law.
aeflargenumber of persons. to meet tolghee-
et, A els there was no remedy by writ of error ? Learned Counsel then referred. to the case of The Queen
stlesr PIaaNEY-GENERAL said that it was. v. Eccles: In that case certain persons conspired toge-
s"ttldde-atrnELL thought it monstrous that the subject ther by divers indirect means to prevent a certain person
bsittie t`t,ve no remedy if the Court of Appeal decided from carrying on the business of a tailor. The Court was
'litoBi "nn by writ of error. If there was an assign-- of opinion that it was not necessary that the means
es error Comma nobis it was upon the record. should be set out. In the case of the King v. Gill, Ist
e -mll4
4'r tte,"'..4°11,011-est—Was not
.what was assigned for Barnewa!l and Alderson,. the parties were charged with
The 're ministerial than anything else ? combining and conspiring together, by divers means,
toitts ATTORNEY-GENERAL was not aware of any other
ti, era, unlawfully to obtain possession of large sums of
mese 4 upon the subject, and he merely mentioned
el - s f
.money. Lord Tenterdea said that the indictment was
, ea Lon., or the purpose of calling the attention of
,sufficient, as the gist of the offence was the conspiracy.
et'netioZr hips to them. Now with regard to the con- fhe
.Learned Counsel
.mentioned another case, in which
tseuld„e, °, be placed upon the Act of Parliament, he
_certain persons were indicted fora. conspiracy to de-
"e Aet tae first place call their Lordship's attention to •fraud divers of her Majesty's subjects. The Court of
Act wess6e Geo. 111. cap. 87. The enactments of that Queen's Bench were of opinion that the count was good
e .e intended without stating who the persons to be
.de.frauded were.
`g to to apply to all indictments; its object
'n
vils witP,revent grand juries in Ireland from returnAt g So with regertorndsptioratehye persons to be intimidated. Here
to collect together great
.r %e 1.," Alt examining witnesses. Then came the at
masses of the people, with a view to pro-
`eet th:t and 2d Victoria, cap. 37, and he wished to ch-
tt, lu'oirr Lordships' attention to the preamble of this cure a change in the law ; and the Inte-
1, td Chip after what had fallen from the midation was used against all persons and all bodies who
t-' givieen!' Justice of the Common Pleas` that morning might oppose-and resist a change in the law. It was not
re tie de Judgment, before their Lordships. There could necessary that the count should state against whom the,
intimidation waa to be directed.
l'arbettuht but that the proper way to construe an Act
Lord CAMPBELL—It is said, on the other side, that
sots a re_,ellt was to look at the preamble and lattice,entiot-
I and collect from them the intentions of the Legis- the intimidation might be that of a highwaynaan, or of
11% Act Now the preamble said that after the passing. of persons_. seeking to intimidate the Legislature.
The ATTORNEY-GENERAL said that would not apply
gilletls theW4s, Ito bill should be returned to a grand jury
ae, el.„, witnesses had been sworn; and it went on to to a count which referred to an attempt to change the law.
teroesNveritynsaecuetaasrthe viva voce examination of witnesses Lord BROUGHAM—Mr. Kelly argued in this way.
toed swea . y, and whereas great delay had arisen There is a body of people coming down to prevent the
A Y ring them in court, for the re- Legislature from doing what it is minded to do. Then
etiti it thereof, this Act had been made." would very loyal people take part with the Legislature, and
itt!tlit then Wentenact that in all cases of
e _aueta s__on to . bills of preserve to them free liberty of action, by intimidating
oilshouir, `ant up to grand juries in
_lreland, before such the intimidators.
4,,.!,1e ele",_ee sent up the clerk of the Crown at assizes The ATTORNEY-GENERAL said he did not suppose. for
se r't of the peace at quarter sessions, shall be en- a moment that their
.Lordships would adopt that view.
ilesse 4D°4 the
seeits, an a
,back of the indictment the names of wit- He would now leave thts. case after referring to the form
iesu Persouswihe grand jury -administered authexamine of the recognisances. His Learned Friend said. th tif a
aft or oile Pon oath, to be nrs
by the fore- person remained six years in prison, he might then
lis t retietury. The enacttng part went o.n, come out of prison without entering into recognisances.
41 ot
"them
that the oath so administered was to be in The object of recognisance was, that the person so
Zliktilet,`` them oath required by the Act of Geo. lIL, to imprisoned, should not be let out of prison until he
tle, ~,e's wee uo foreman or juryman shouldexamine any had entered into recognisance to keep the peace—no
iediaerowe had
name was not so entered. The clerk of matter what length of time he had been imprisoned.
etesluaent ffea in this case endorsed on the back of the He would not trouble the House by further reference to
0" if h ""° Nunes of the witnesses, and the question precedents. He submitted that he had shown that this
'Aleetelv-en the clerk of the Crown of the Court of appeal' in error must be rejected.
we aße
P:'ess sne" in Dublin had endorsed the names of the Mr. Justice
.G GURNEY suggested that the Attorney-
e Zd-tithe back of the indictment, and those wit-_ General had said nothing about the indorsement.
ly.t3'h, if the seen sworn and examined before the grand The ATTORNEY-GENERAL. said that there were other
li)'o? I wPr_oe.iions of the law had not been complied points upon which his Learned Friend, the Attorney-
ta to et and truutil4 refer their
sLoradsndhigestsowethe,
p.ea case of General for Ireland, would presently address their L0rd-
11643, ships. With respect to the indorsement, he would only
cott,he eumnaer(ll,
171.Bharnew ll
Acts of Parliaments were to be say that there was only one error assigned on that point,
1144 Aet4ecifs It la
park wasvv there laid down that to construe and that was be Mr. Steele. The indictment could not
-Net. (:)- atnent, •44 lon, not anent,
it was necessary to take the con- be affected by that, for the indictment was found before
lae ; aud wis Yof the preamble, but of the whole the endorsement could be made. .
tie ittobe,
thoen
s a clause was More extensive than- the The LORD CHANCELLOR—There is no time fixed at
he° 404 • '3' would put the more extended interprets= all for the endorsement.
,la is It, if
tiliN hueY foundny, to give the Act effect. Now The ATTORNEY-GENERAL—Certainly not. The error
'itie'ill for that the object was the substitution of in fact admitted that the witnesses were altlhe sworn
4tt-be t th4ei4eenst:deor.Acts of the 56th George 111. The pro- properly before the grand jury, and that. Bill
Boost' as... - said nothing about. the clerk of the Crown was founded upon that evidence. In conclusion, he sub-
the clerk of the peace at quarter ses- mitted that he had shown to their Lordships that the.
to st'ief thelosimPlY said, " tbe clerk of the peace or the verdict was not at variance with the indictment—that it
:1:,-ula;st'llitili:t-e.t-r.°wn- The object
of the Legislature was did not find the defendants guilty of more offences than
itoot:nteeduale mode of swearing for another, and it they were charged with—that there were no grounds for
'tee -er vie ° apply to all indictments. There was the challenge of the array—and that there was no ground
414 t°lll.:9.inug t;etrlebt elegtaakl enof
meaning,the case, which was, that, for impeaching the judgment of the court below;becsause.
the Clerk of the Crown the witnesses were sworn by the grand jury. He ub
qmaL,ssi "ale Bench Dublin vas in fact the clerk of mitted that their Lordships must decide that there were
egdasl2e:e.s.'s,?sth,e ease of the w" as
and the Justices no grounds whatever for reversing the judgment of the
Dertsatteti whieeri t
h. 3
ea
Sheriffsßar! e r aolfl
mani.d Adolphus, p. 300, in a court below. The Hon. and Learned Gentleman, who
'al cin for the loss ddlesaex applied for core- was heard for the last few minutes with great difficulty,
aloe tilt which of gaol fees, under an Act of Par- then withdrew, apparently much exhausted.
tat
sed 4LI liti stated that such compensation should be The Lord Chancellor and the Judges then retired for
to _ aged by the justices at quarter sessions, subject to a short time.
ti, 'X'Lbsa " the judges of the assize, the justices refused On the return of their Lordships,
1 size j:l cig- iespeeo°rfini ass inzseatinon, on the grou'nd that there were Mr T. R. C. SMITH (the Attorney.-General for Ire-
Middlesex, and no judges of as- land) then proceeded to address their Lordships. He
liteether tij so called. The cluestion then arose, appeared also on the part of the Crown, and he thought.
4,4tessizes for
Court of Queen s Bench was not it would not be consistent with his duty to occupy their
Lmges Zoe "ay the county of Middlesex, and whether the Lordships at any great leugtb, as the case had been so
441(1 Tentt tat Court were not the judges of assize. fully argued by his Learned Friend theAttorney-.Gene.ral.
oeles of tl!ra", in giving judgment, said that the He would endeavour to compress his-observations into
t=loises_ue Court of Queen's Bench and of the Court as narrow a compass as possible. Now he would first
athutr4utillteyettni3ellilehhaesn,were the judges of assize for the apply himself to the challenge of the array, and he
qnlia,,u:t Middlesex within the meaning of the Act of thought that when their Lordships came to consider the
if that were the case, and the Court challenge it would be found to be unsupported either by
aidiProsesiutis e
of was the proper Court of Assize, then substance or form. There was no default or misconductte
kis' ' The p the Act had been literally complied attributed to the sheriff. The challenge was only o the
eo_etere,
sar_. 'salad, therefore, the intention of the Le- array empannelled by that officer. Now by the
09
_ll-
-
secenstelding with the strict legal meaning of the section of the Jury Act, to which their Lrd
'" tir4,Lhe thought their Lordships would de- ships had been referred, the clerk of the peace
Kt USlzeJt 119tesl,i1,1
.1414 - Parlance, in ' having made out the -jurors' hobk, Was to "de-
-