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

THE STATE TRIALS.

(FIFTH DAY.)

)VRIT OF ERROR.

HOUSE OF LORDS.--(THIS DAY)

THE QUEEN AGAINST O'CONNELL AND OTHERS.
The House presented an unusual appearance. The
woolsacks were deserted, and the clerks' table was re-
moved from the upper part of the House down to the
bar. The Lord Chancellor's chair was placed at the
head of tfie table, around which the Judges were seated,
instead of their usual seats upsn the lower woolsacks.
All the Peers in the House took their seats close to the
bar. This arrangement was made to relieve the Attor-
ney-General from the necessity of so much exertion as
he had yesterday to make. The Right Hon. Gentleman
was accommodated with a seat, and spoke in a feeble
tone, and leaning over the bar.
Praters having been read, this case was called on, when
The ATTORNEY-GENERAL resumed his arguments on
behalf of the Crown. He last night called the attention
of their Lordships to the objections taken to the record ;
he would now proceed to the other part of the objections,
and first, with regard to the challenge ; their Lordships
were aware that the technical points argued before them
were points of form with respect to the making-up of the,
record in that House, and not involving anything that
took place in the Court of Queen's Bench in lfeland
but the points he was now going to argue were argued
in the Court of Queen's Bench in Ireland, and judgment.
given on them in favour of the Crown. Now he would
first call their Lordships' attention to the challenge or
the array, but perhaps it would be better before doing sn,
to advert to the challenge itself, because he was satisfies,
when it was read all their Lordships would come to the
conclusion that it was.impossible for the Crown to take
any issue upon it, and that the only course left open to
them was to demur to the judgment. Their Lordships
were aware that, according to the challenge, it was an
array of special jurors, and the forms and terms in
which the special jury was to be struck was pro-
vided by the statute, the panel must h°
struck by the Sheriffs. Upon this challenge
Their Lordships would find, in the first place, no allega-
tion that any person was returned that was not dull
qualified to serve as a juror—there was no allegation
that the panel returned by the sheriff was not a fair
one—and there was no allegation that any of the jury
did not stand indifferent between the parties—and there
was no charge that the parties making the challenge
were prejudiced by the array, and certainly there was
no averment that any act of impropriety had been done
by the sheriff, or that the Crown had interfered with the
return to the indictment. In Coke upon Lyttleton, 156
B, the doctrine of challenge to the array was laid down;
and it was there stated, that the challenge might be
either for a principal cause of challenge of the array, or
a challenge by favour. The principal cause of challenge
respected partiality in the officer returning the array,
and if it were established, the array was quashed as n'
matter of course. In a challenge by favour, the array
was not quashed as a matter of course, but the matter
was tried. The grounds of the principal challenge
were, that the sheriff or other officer returning the
array were of kindred or affinity to the plaintiff or de;
fendant. Secondly, one of the jurymen were returnee
at the nomination of the plaintiff or defendant ; or if he
returned any one more favourable to the one than to the,
other, or if the plaintiff or defendant had an action 01
battery or debt against the sheriff, or the sheriff had an
action against them ; or if the sheriff were under distress
at the suit of either party, or for cause of an indiffer'
ency ; or, lastly, if he did not return hundreders when
hundreders ought to be returned. In a challenge bic,
favour, the challenge must show all the circumstances or
the case. If the plaintiff or defendant's daughter were,
of affinity to the sheriff's son, that would be a goo
ground of challenge for favour. The consequence $,
quashing an array would be that a new process swill?.
issue to another officer, different to the one whose fault
had caused the array to be quashed, who would return a
fresh panel. Their Lordships would find that the d°'o
trine of challenges to the array laid down in Chia,' a
" Criminal Law," page 526 ; Viner's " Abridgment,
article " Trials ;" and Bacon's " Abridgment;' title,
"Juries." The Learned Gelid, man then proceeded to
quote a case in which a sheriff had delivered in an arrai_
for the grand jury, and had sent it by a messenger. Pa!
plaintiff got hold of the messenger, and had induced hin'is
to alter the panel, by inserting certain names. At 61
time the old sheriff was removed, and a new one sP:
pointed. The array was challenged, and the for
sheriff came into Court and disavowed the panel. DI,
bench decided that it might be a good ground of chin,
lenge of the persons whose names were inserted, but we's
not a good ground of challenge in the array. He would i)!
read the challenge in this instance, but their Lordshir
would perceive that there was no statement of any dimfault, partiality, or misconduct on the part of the shell
who returned the array. Although the allegations
at
the challenge were not made out, yet he understood tup.
it proceeded upon this principle—that if, in makinghosa
the juror's book, under the statute:of 1 William IV., it
should happen to be any omission of any name' of
mattered not whether the omission was one names the
twenty, but if there happened to be the omission ° that,
name of any person entitled to serve on juries' xe
would be a good ground of challenge to the array the
contended that there was no ground of challenge to__.ia
array in the case of this jury only ; but
it
go to any other jury. In fact, the allegation wen
to show that no jury could be returned.
jt
had nothing to do with the officer ; but in fact it wens
to this, that no trial, civil or criminal, could take
place in the year during which the mistake took place'
It was said if there were no jarors' book they could take
the book of the year before. But surely they would not
contend that there was not a regular jurors' book I°'
1844, because some of the names were omitted. ,
the same was most likely the case with the book
1843. It was exceedingly improbable that all the nano
were in that book. The fact was that the challenge
the array was not the proper remedy for the
which the defendants alleged they had suffered. 0, b
Learned Friend Mr. Hill alluded to a proposition whlio
had been made on the part of the defendants to show t
bona fides of the challenge, but his Learned Friend th
Attorney-General for Ireland, would be guilty of a neg;
lect of his duty if he consented to anything of the Isi°,l
for if he had done so, it would prevent the jury fr°-,s
being a good jury. (The Hon. and Learned Gentlersta;
then referred to the provisions of the Act of Parliaine°,
under which the general list of jurors was made °lel
The challenge began by stating that the collectors °
grand jury cess delivered twenty lists to the Recorde;;
and it went on to state that the Recorder had duly Oahe
out a list, but had not caused to be made out from
several lists one general list containing the names °
f
all the persons whose qualifications had been so tira
ranged according to rank and property, nor line
the Recorder caused such to be fairly copied in the sum
order. Nobody had said that the Recorder had as%
made out a general list—:hat it was not delivered to the
clerks of the peace, and to the sheriff by the clerks e't
the peace. Nor was it denied that the sheriff had ned
made out the jury-list from it. But what was dente,
was, that a list was made out with all the nalneos
arranged according to rank and property. There "t_
no denial that the Recorder had made out a general 153
though not a general list cant :ining all the name
arranged according to rank and property. This lc
what he would call a negative pregnant. The challeug
went on:—" And the said Daniel O'Connell soys tboa
said paper writing, purporting to be such general list
aforesaid, did not contain the names of all the pers°-t,
whose qualifications had been allowed upon the corree
ing. allowing, and signing of said list us aforesaid blt,
the Recorder, but omitted the names of divers, to
fifty-nine persons, whose qualifications to be on the said
lists respectively had been so allowed, as af°frej,
,
said by the said Recorder, which said sey"
persons whose names were so omitted are as folloaco
That was the challenge of Mr. Daniel O'Connell, but br,
begged to call the attention of their Lordships to the fa,;,,
that the challenges of all the other defendants were al o
ferent, for it was added, " for the purpose, and with 00
intent of prejudicing the said so and so." What was !ha
meaning of the allegation that " a certain paper vvrit'l9
was made out by same person, or persons unknown"
What was the effect of it ? What was its bearing on t-1,0
case ? There was no allegation in the challenge that t'"s
Recorder had not made out a general list—that it cr
-t
not delivered to the clerks of the peace—that it was silst
delivered to the sheriff. There was no allegation tylie
in that list so made up, and so returned, there was la
omission of a single name. But there was an allega"-ea
that there was an omission of names from a certain Pc
writing,made up by some person, or persons, unkno'hos
It was easy to see why the challenge was made up in t't
way. _ They had not referred to the general list made ,/
by the Recorder and the other officers, because thie,a
found it would be hard to do so without alleging frr f
against some one of the officers. In a subsequent part of
the challenge, it was said that the challenger was the
aware of or privy to the omission of the names from
paper writing ; but there was no allegation that lie,wea
pfnttoio,uket:r.p,
not aware of or privy to the omission of the names tract
slt
the general list. The challenge then went on to yard
ieas'il.derliaerlapsuadeirudsiremnDst.er O'Connellwnarrt furtherensg p t
werer p os
ors says, that
to
otheadbt
eft:lto:7,7;
whosepa ge'
neral list as aforesaid, were, at the time of the sat`' ,110
said special sessions,
turn of the collector's lists and at the time of nt
wfieedretoatbteh,eansdaidshoseutl, and still are, severally resiued
within the county of the said city of Dublin'
deraalndtimoeusghatmtlonhowavearebedeunl.y
pqiu,„ieelsia
upon the said general list." On this allegation he cusp,
pear that
quai
qualified
fit the
cetil a names
joafil ;el s
their Lordships' attention to this fact, that it did n°l"ii;t,
tposloa
cbeomitted
tdh fromthenspteiel
ia Iggejentni
ereorraras;
llisist,
but there was no allegation that they were qmaline est
be on the special jurors' list. The challenge then ''saS,
on to say, " and the said Daniel O'Connell further ties
becof
oirltrtNysi, uantc:ohhfet:Dgy)
aeetbdnathetr: ri
epei
ol
tirhsat
on tud ahs jurors'sea
that from the said fraudulent paper writing, purPt,ola,
fnbarccaoif
uoomerrki
reegesdi
on: aforesaid, f
t calendar
de
srnceaeedi
drdawtraaconi nolutd:edirti,;:dt
t
by whom was it made up, by whom was it frat
There was no averment that the book was not inn'''h-stin
by the challenger himself ;it was not stated by aras
it was made up, or under what circumstances ; '" to
not averred that the challenger himself was not Pri'elae'
and a consenting party to the framing it. He aitad°
minded them that the jurors' book could not be fthe
up by the Recorder, as it was made up by the clerk °
peace. The challenger then went on to say, " fr`l7 the
said book so purporting to be the jurors book ° .elsr
said county of the city for the said Current
aged
was made up the special jurors' list for the said enosed
year, to wit, for the year one thousand eight hnora
end forty-four." Again, he would ask by wii
Was that done with the consent of the challenj the
There was not a word to say that it was not. "