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

the record of those witnesses whose names sip&
peared on the back of the bill, having been
sworn by the grand jury according to the provisions of
the statute, because neither the foreman of the grand
jury nor any member of the grand jury had affixed his
signature or initials to that list. He submitted to their
Lordships that the non-compliance with that statute
entirely vitiated these proceedings. It was quite unneces-
sary to remind their Lordships upon what very slight
grounds in criminal proceedings judgment had been re-
versed in writs of error. If in any part of the process
error had been committed either by the sheriff or any

other officer connected with the court, the judgment was
reversed. (The Learned Counsel then referred to
Comyn's Digest in support of this proposition.)
Among other causes of error it was alleged that if
the swearing were not well performed, as for
instance, if the words " to speak" were omitted, it was
error. If, then, it were clearly required by law that the
witnesses before the grand jury should be sworn in a
particular way, and that the swearing of the witnesses
should be certified to the court in the manner pointed
out by the statute, why should not the non-swearing of
witnesses be considered as error ? The authenti-

cation of the swearing, of the witnesses before
the grand jury was now rendered as important a part
of the proceedings as the impanelling of the petty jury;
also in the case of the "King v. Carlisle," 2 Barnewall and

Adolphus, p. 97. He could not go through all the facts
of this case, but he would merely state that the nature of

the objection was not to any part of the proceedings
themselves, but to an extrinsic part unnecessary to the

validity of the proceedings. It appeared that only one of
the justices named in the Commission to try the prisoners
was present when the verdict was returned. That was
assigned as an error of 'fact. But when it came
before the court of error, in the first instance it was
held to be a statement contradictory to the record, and
could not be assigned for error on that record. But, it
was not contended that, if it had agreed with the record,
the objection would have been sufficient to set aside the
judgment. The matter of fact itself was a good objec-
tion. When the matter came before the Court again, on
an amended record, the Court held that it had no power
to reverse its own judgment in another town. He (Mr.
Kelly) maintained that the matter alleged was error in
fact, and, no matter who ought to be present, the

absence of any such person when the, verdiCt was given
vitiated' the judgment ; that was not an error fatal in

the premises, but was an extrinsic fact ; yet the court
field that it would be good ground of reversal if it were
not contradicted by the record. In the ease of " Rogers
v. Simpson," 1 Adolphus and Ellis, p. 772 ; with that
case a great variety of authorities were connected,
but he would not trouble their Lordships by
going through them. The error assigned was that
the distringas was not returned by the sheriff of
Yorkshire or any other sheriff, nor was there any
return of the panel annexed to the writ. The
jury had been summoned, convened, and sworn to try
the case, but it appeared that when the record was made
up there was no return by the Sheriff ; that is, he had
not signed the return upon the record. He called the
attention of their Lordships to this case because he
could see no difference between an erroneous return of

witnesses and an erroneous return of jurors on the panel,
for both were equally necessary for the validity of the
proceedings ; and Lord Denman, giving. judgment in
this " case, stated that every such omission must be
considered fatal, and he reversed the judgment. In
the " King v. Bittals," where the defendant was found
guilty of stealing a heifer, the objection was that the
witnesses were sworn before the jury without, coming
into court. The judge held that the objection came too
late, as it was 'after conviction, but would recommend
him to a free pardon. This case was brought before a
court of error. He quoted the opinions of Lord Den-
man, Mr. Jestice Coleridge, and Mr. Justice Patteson on
this case, all concurring that the indictment ought not
to be quashed. In the present proceedings there were
no means of the prisoner knowing that the witnesses
had not been sworn ; but that law was imperative, and
said that no man shall b• put on his trial except on, evi-
dence of witnesses to whom an oath has been duly ad-
ministered ; nor shall" he be punished 'without a due
finding on oath. He conceived that the proper
mode of taking advantage of this non-compliance
with the Act of Parlisnient as to the non-swear-

ing of the witnesses, was by the assignment
of error in fact, this was the only way in which the pri-
soner could have an opportunity of making the objec-
tion. He read the . section of the Act of 1 and 2 of
Victoria, and stated, the _course of proceeding under it
'to be; that assuming the. swearing to. take-place before
the grand jury, and they only, they are to endorse the
names of the witnesses on the back of the indictment, to
sign . the endorsement and -send it thus authenticated
before the court. Could it be contended that this was a
mere form, or that it was an unnecessary one? He had
heard with great satisfaction something th at had fallen from
one of their Lordships, which relieved him in some sort from
the habitual necessity in which they were placed of con-
sidering what was directory and what was imperative in
it statute. He was glad to adopt the term essential, and
he would ask was it essential that the provisions of the
Act should be complied with ?. What security had, the
court in putting' men on trial, it might be for a capital
offence, that the witnesses bad been sworn, except the
certificate ofthe foreman ? It showed that this part of the
Act could not be what was called directory';. they were
provisions, the complying rp.vith which was absolutely
necessary... The Act consisted not: so much of provisions
by which the general oklect of swearing Witnesses Was
to be attained, as of a series -of provisiond forming 'the
machinery by which that swearing was to be accom-
plished. He i
_citedted the case of'"HOldsworth v. Procter,"
in Crook, James, in which the sheriff not having signed
his name to the venire. facias, the judgment was reversed.
' Tt was urged that the name of the sheriff was not neces-
`aiy; but all the court held that it, 'was bad, and, .set it
aside. This was not a proceeding at common law, but
by statute, and the omission signed by the foreman • of
the' grand; • jury was matter of importance, 'because,.
' unless he signed it, . the court would not know
whether the, party had been' put properly on his
trial or not. There was another case—Crook, Elizabeth,
" Staner v. James."' The 'Learned Gentleman having
alluded to this, case, observed:that there were other
reasons why .:it, was essential that, the court should
have the means- of knonting who were the witnesses
sworn. In the case of anindictment forperjury, sup-
pose Bill ,caine. ' down with.. the • names ,of
four or five witnesses but without the signature
of the. foreman 'attesting that they had- 'been
sworn, how.was the court to know whether the bill bad,
been found upon the evidence o£ witnesses who had been
properly sworn unless their foieman had put his initiala
to the bill'? There was another casein Crook, Elizabeth,
of ." Blood ward and Edwards,". where . error , was as-
signed, that the sheriff's 'name was not attached to
the :writ of :habeas., corpus. Where the statute
for the first time, . created, . a new system of
procedure in a matter so • iinportant as giving, evidence
upon oath before a grand jury, he conceived it was neces-
sary that they should be well• satisfied that the provi-
sions of the statute had been carried out before any pro-
ceedings could be properly taken. The question here
was, whether this Act extended to the Queen's Bench
in Ireland, whether the witnesses should be sworn be-
fore' the grand jury, or ,in open court ; .and he sub-
mitted that the Act could not be considered as
applying to the Queens , Bench in 'lrelan4 that
court not being mentioned in any of its provision& If it
had been intended that the Act should apply to the Court
of Queen's Bench, that court would have been expressly
mentioned in the.Aet. But, instead of that, the Court
of Queen's Bench, the principal criminal 'court in Ire-
land, was nowhere mentioned in the Act ; and accord-
ing to the ordinary rules for construing Acts of Parlia-
ment, it could not be. contended.. that the Act was in-
tended to apply to the Court of Queen's Bench. Courts
of assize and quarter sessions were expressly mentioned,
and doubtless the, Court of Queen's Bench would also
have been mentioned, - had it been intended that the Act
should apply to that court. •
The LORD CHANCELLOR—Mr. Kelly, whom do you re-
present with respect to this part of the argument ?
Mr. KELLY—Mr. John O'Connell, and the three whom
I have named. •
The Loan CHANCELiQR--The point I believe was not
raised for Mr. Steele.
'Mr. KELLY—Yes, my Lord.' They all raised the ob-
jection that the witnesses were not sworn in open court,
but Mr. Steele raises the additional point that the notice
was not signed by the foreman. •
The LORD CHANCELLOR—Is it so stated ?
Mr. KELLY—Mr. Steele raised that point on the plea
of abatement. - - . '
• The LORD CHANCELLOR--It does not matter, because
if the 'point is good for one, it is good Pak all. only
Wished to inquire who you represented.
Mr. KELLY then proceeded with his' argument, and
contended that •if the provisions of the Act had been
intended to' apply to the' Court of Queen's Bench
that court would hate 'been expressly named, ind,quoted
the case, of the " King- v. Richards," Bth Barnewall and
Cresswell, p. 420, in supPort,of this branch-of hid srgu-
inent. Now what were the' words of the Act, " Tliat in
all cases of indictment the clerk of the Crown at the as-
sizes, and the clerk of the peace at the quarter sessions,
shall endoise on the back of the indictment the 'names of
the witnesses, and send them to the, grand jurY." To
what grand jury ? Why,'of cotirse to the grandjury at'
the assizes; or to the grand jury at the sessions ; and the
'foreman or other member of the grand jury soempanelled
shall swear such witnesses. Now it was contended that
the words " grand jury so empanelled." meant any grand
jury in' Ireland. How could that be so ? What grand
jury could be meant but. the grand jury at sessions or
assizes ? •It was true there were general words in the
introductory 'portion, but those words were limited by
the words Of the 56th section,' in, which" there, was no
mention made of the Court of Queen's Bench. There
was a proviso that no foreman of any grand jury should
examine a witness whose name was not indorsed on the
back of the indictment by the clerk of the Crown, or the
clerk of the peace, respectively. And, however general
the words might be in the introductory portion of the Act,
here was a new and entire provision, pointingout the mode
and the object to be attained in a clear and spetific manner.
He would advert to an'answer which had been given by
the court below. In order to extend 'the provisions of
the words " clerk of the Crown' at the assizes," and
"clerk of the peace at the quarter sessions," to all
officers of that character, it seemed to have been thought
by some of the judges that' beeause such a construction
was given to ancient -statutiii, such a constrUctionshould
also be given to modern statutes, and they referred to the
statute circumspicite nods, but that statute was set
aside in the case of Wilson v. Nadley, 7th East, p. 127.
The Loan CHANCELLOR said he did not think the
judges below had relied on the ancient Meaning of the
• statutes: Mr.' Justice Perrin distinctly, and in words,
• threw such a doetrine Overboard.
Mr. KELLY said he was glad, to be relieved from ar-
guino that; but it wee-' ill his. recollection. that Chief
Justice Pennefather referred to it. If it were . the in-
tention of the Legislature that in all eases of indictment
throughout Ireland the grand jury should administer the
oath' instead of• the Court of Queens Bench; it
would have been very easy for' the --Ant-OPParlia-