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

conscientiously that any institution deserved hatred and
contempt, and to hold it up in its true light to the
people ? He would quote to their Lordships the descrip-
tion given by an eloquent and learned writer, who had
been a Cabinet Minister (Mr. Macaulay), of the manner
in which justice was administered in England in the time
of Charles the Second and James the Second ; he sit) s-

" The next great blessing which we owe to the Revolu-
tion is the purification of the administration of justice in
political cases. Of the importance of this change no
person can judge who is not well acquainted with the
earlier volumes of the State trials. Those volumes are,

we do not hesitate to say, the most frightful record of
baseness and depravity that is extant in the world. Our
hatred is altogether turned away from the crime and the cri-
minals, and directed against the law and its ministers. We
_ _

see villainies, as black as ever were imputed to any person,
at any bar, daily committed on the bench, and in the
jury box. The worst of the bad acts which brought
discredit on the old Parliament of France—the con-

demnation of Lally, for instance, or even that of Calas,
may seem praiseworthy, when compared with the
atrocities which follow each other in endless succession as

we turn over that huge chronicle ofthe shame of England.
The Magistrates of Paris and Toulouse were blinded by
prejudice, passion, or bigotry. But the abandoned judges
of our own country committed murder with their eyes

open. The cause of this is plain. In France there was
no constitutional opposition. If a man held language
offensive to the Government he was at once sent to the

Bastile or to Vincennes. But in England, at least after
the days of the Long Parliament, the King could not,
by a mere act of his prerogative, rid himself of
a troublesome politician. He was forced to remove
those who thwarted him by means of perjured witnesses,
packed juries, and corrupt, hard-hearted, brew-beating
Judges. The Opposition naturally retaliated, whenever
they had the upper hand. Every time that the power
passed from one party to the other, there was a pro-
scription and a massacre, thinly disguised under the
forms of judicial procedure. The tribunals ought to be the
sacred places of refuge, where, in all the vicissitudes of
public affairs, the innocent of all parties may find shelter.
They were; before the Revolution, an unclean public
shambles, to which each party in its turn dragged its
opponents, and where each found the same venal
ferocious butchers waiting for its customer. Papist or
Protestant, Tory or Whig, Priest or Alderman, all was
one to those greedy and savage natures, provided only
there was money to save and blood to shed. Of course
those worthless judges soon created around them, as was
natural, a breed of informers more wicked, if possible, than
themselves. The trial by jury afforded little or no pro-
tection to the innocent. The, juries were nominated by_
the sheriffs. The sheriffs wore in most part of England
nominated by the Crown. In London, the great scene
of political contention, these officers were chosen by the
people. The fiercest parliamentary election of our time
will give but a faint notice of the storm which raged in
the• city 'on the day whert two infuriated parties
each bearing its badge, met to select the men in whose
hands were to be the issues ,of life and death for the
coming year. On that day nobles of the highest de-
scent did not think it beneath them to canvas and marshal
the livery, to head the procession, arid to watch the poll.
On that day the great chiefs of parties waited in an
agony of suspense for the messenger who was to bring
from the Guildhall the news whether their lives and es-
tates were, for the next twelve months, to be at the
mercy of a friend or foe. In 1681, Whig
sheriffs were chosen ; and Shaftesbury defied the
whole power of the Government. In' 1682, the sheriffs
were Tories. Shaftesbury iced to Holland.. The other
chiefs of the party,broke up their councils, and retired
in haste to their country seats, Sydney, on the scar-
f Old, told those sheriffs that his blood was on their
heads. Neither of them could deny, the charge, and
one of them wept with shame and remorse."
Such wai a true description of the tribunals of the coun-
try at the time to which this eminent writer refers.
Though, thank Heaven, they lived now in different
times, and . under different institutions, yet, he would
ask, if it would be criminal for any . number of men
to unite to write or speak down tribunals
in which there might' be many .vices of practice
and administration.. Was the charge of an indictment
of this kind necessarily a criminal charge-'—that of con-
spiring to bring the tribunals of the, country into con-
tempt? If the courts did not deserve ',contempt, they
would, not receive it ; that decency of language and
moderation should be used in the discussion, might be
necessary, but it was another and a very different ques-
tion, because parties believed that 'such were vices of the
system, that it deserved hatred and comtempt ; they be-
came criminal because they agreed to speak of that insti-
tution in what they believed to be just and becOnaing terms.
.Again, this was extremely. vague. " He would not say
how the administration of ~justice had been carried on ;
he weget net say anything of how the ecclesiastical
courffclideiheen spoken of in and out of Parliament. The
attacks that had been made upon these courts, was not
upon the judges, but upon the system ; look
at the criminal courts; in those courts many men
had been tried who were not guilty, and suffered death,
in consequence, perhaps, of the badness of the system ;
all *as it to be said, that those who had been their,
nearest and dearest relatives, suffer under a bad sys-
tem, that, if they decreed it, they would be guilty
of conspiracy ? It wai too much to say that
parties could not attack a bad system without being
guilty of conspiracy. 'There were many parts of
the system that might he assailed, , and with truth, a
not to be considered crimin 1.
d
il,
for doing so men ought
As to the latter part of the count, was it to' be said th t
it was a crime, to say that the administration of jus-
tice had become hateful and contemptible, and that parties
would refer their differences to another tribunal? He
submitted that there was nothing illegal or criminal in
attempting to bring any part of the system into contempt
in order to obtain an improvement ; there was nothing
he believed that it would be illegal to bring into con-
' tempt except the religion of the country, and that had
been even held not to be illegal. On these grounds the'
count being bad the whole wag vitiated, and_the whole
indictment must linieversed.
Lord CAMPBELL wished to advert to this difficulty.
You say, Mr. Kelly, that these bad counts charge no
offence, then. we find the record saying "'for the offences
aforesaid." Now, can that be supposed to include that
which you say is no offence.
Mr, KELLY submitted that
,that must be so, because
the word offence aforesaid must mean the offence the
jury had found. Offence could not mean offences ; it
must mean one offence well laid, and an offence ill laid.
The LORD CDANCIIILLOR—Every time, Mr. Kelly, you
adverted to this circumstance, you used a word that is
not in the indictment—several offences—whereas, it is
offences aforesaid. .
Mr. KELLY asserted that there was not a single offence,
legally charged ; the offences aforesaid must mean the
offences found by the jury. Suypose, for instance, in ail
action for slander he were to introduce a most absurd'
and ridiculous count—suppose in the first count the slan-
der was stated to be that the man had been' called a
felon, that in the second count it wits stated to consist
of something, equally actionable, and that is the third
count it was stated that he had called the plaintiff an
honest and en honourable man--ifen those three counts
a verdict was given' with general damages, the court
not being able to disOirninate hcisi much had been given
by the jury ,on - the.goodriourits,-. and'how much on the
bad ones, would reverse the judgment, and send the case
back again for trial: ' So in this base the eourt-did not
know how much of,the piiiiishmerittiad been apportioned
to the good counts and..how.-much to the bad ones, and he
apprehended thestattno choke, but must reverse the
judgment altogether. ' -
Their Lordships here' retired for it shc 00 tithe,; on
their return,
Mr. KELLY resumed, and said that in reference-to the
point he had just concluded with, the only consequence
which would arise from reversing the judgment, would
be that the liame degree of precision would be observed
in criminal cases which was now observed in civil cases ;
and it would be competent for the prosecutor to enter up
judgment upon one count which the court held to be good, as
was done in civil cases. He would now proceed to the ques-
tion which rose upon the writ of error, in fact relative
to the swearing of the witnesses before the grand jury ;
and it would
.appear, both in the plea in abatement
in the case, 'and on the assignment of the.
writ of error, in fact, that the witnesses in support of
of the indictment, if sworn at all, had been sworn, not
in open court, but before the grand jury only ; and he
would submit to their Lordships that, under the statute
regulating the swearing of witnesses upon indictments
in Ireland, there was no authority in the grand jury, to
swear the witnesses in this prosecution,• being in the
Queen's Bench, but that they. must be sworn in open
court ; and upon this, this further and more important
question arose, whether, supposing the statutes did ex-
tend to the Court of Queen's Bench, and therefore
the witnesses were properly sworn, whether they did
not authorise that the names of the witnesses
should not be indorsed on, the bill, and signed by the
name, of the foreman, or by his initials. He would refer
to this latter point first ; but, before doing so, he would
proceed with regard to the swearing or witnesses upon
trials on indictment in Ireland. This was regulated by
two Acts of Parliament, -the 56 Geo. 111., c. 87 and the
1 and 2 VictOria' c. 37. Before he called the atten-
tion of their Lordships -to the particular language
of these statements, 'he would state what he
considered -,
to be the effect of them. Before
the statute of 56th George 111. was passed, a practice
prevailed in Ireland of sending witnesses before the grand
jury without being sworn at all, and indictments were
found on, the testimony '
of those witnesses who were not
sworn ; and to regulate this 'evil' that statute was passed:.
That statute provided akpressly that in all cases where
witnesses were to give evidence before a grand jury, on any
. indictments ; they were first to be sworn in open Court,
so that from the time of passing the Act to the year,
1838 noo-Bill had been properly returned, and no person
was put . upon his trial upon ', ant indictment unless
the witnessess in' support. of it had been sworn
in open Court. It was found that the
.swear-
ing of witnesses in open court .wasproductive of
inconvenience,
-wasp at last
the
great an some remedy
necessary. Provision_ was made by the
. Act of
~t e Ist
and 2d of Victoria, c. 37, for the swearing of witnesses
before the grand jury: The question was, whether
that article applied. to the swearing or witnesses in the
Court of Queen's Bench
in Ireland, or whether it was.
'
limited to those courts which, were particularly men-
tioned—the Assizes and the Querter Sessions. He con-.
tended that it was necessarily limited' by the language to
the Assizes and the Quarter Sessions. It was provided
in the Act that upon !prosecutions being instituted, the-
clerk of the Crown at- the Assizes, and the clerk of ti\e'
peace at Quarter Sessions, should endorse upon the in`, ;
dictment the names of the witnesses to be sworn ; that
the grand jury should administer the oaths to those wit:,
nesses, and receive their evidence, and then that thtlt
foreman or other member of the grand jury, who
should ' administer the Oaths to the witnesses,
should endorse the names of the witnesses whom
he should have sworn upon the iudictment, and authen;
ticated the fact to the court by signing the list, either
with his name, or initials.. Now that had not been done.
It was assigned for error that there was no evidence on