The Sun.
London, England, 1844-01-17 00:00:00

IRELAND.

THE STATE TRIALS.

(PI10:41 OUR OWN REPORTERS.)
DUBLIN, MONDAY, JAN. 15.
It was evident, at an early hour this morning, that
something of importance was to be enacted in
Dublin. Few persons awoke whose first thought
was not " the State Trials commence to-day." Long
before the hour appointed for their commencement,
namely, 10 o'clock, groups of persons were to be
seen standing along the line from Mr. O'Con-
nell s house in Merrion-square, to the Four
Courts, those places being the two centres
of attraction. It was reported that Mr. O'Con-
nell would proceed " in state," to the Four
Courts, in the Corporation carriage ; but if such
an idea was ever entertained, it was, we think, wisely
abandoned. The Hon. Gentleman was, however, ac-
companied by the Lord Mayor (Mr. O'Brien), dressed
in his official robes, and by several other members of
the Corporation. Mr. O'Connell rode in the Lord
Mayor's private earriage. The moment the Hon.
Gentleman made his appearance outside his own door,
there was a general and hearty outburst of
popular feeling manifested in his favour by the
multitudes assembled, which was kept up, with-
out any intermission, till he arrived in the
Four Courts. The enthusiasm of the people was
most ardent and warm, and good wishes and
prayers for his triumph were expressed from many a
devoted heart. When the Hon. Gentleman arrived
at the place of trial the cheering was very great in-
deed. He seemed in excellent health and spirits, and
passed with a lighter and more hurried step than
WU through the hall of the Court.
COURT OF QUEEN'S BENCH.
MONDAY, JAN. 15.
T 731 QUEEN v. D. O'CONNELL AND OTHERS.
Had this Court been of ten times the size it is, it
would have been filled to overflowing. When its very
limited dimensions are considered, and the important
trial which was about to commence in it, the anxiety
to obtain a place to witness the opening of the case
against the traversers may be imagined. The
number of barristers in attendance was extra.
ordinary ; they alone occupied the body of
the Court. The gallery fronting the Bench was
filled with spectators admitted by tickets. There
were some, but not many, ladies among them. The
entrance of the jury some time before the Judges
took their seats, excited some attention, and the mem-
bers of it appeared to be regarded with considerable
curiosity, in Which possibly some speculations as to
the probable duration of their labour largely mingled.
Their box was to the right of the Bench. The box
immediately opposite, that of the County Grand Jury,
was appropriated to the reporters of the London and
Dublin journals; the large number of these gentle-
men requiring accommodation in the very limited
space available, might have caused consi-
derable difficulty and embarrassment, but for
the admirable arrangements made by the High
Sheriff, Latouche, Esq., to whom the whole of the
press are deeply indebted.
The Judges took their seat at 10 o'clock, and the
crier was ordered to call the traversers. On the
name of the Rev. Mr. Tyrell being called,
Mr. CANTWELL, his solicitor, rose, and with a
♦oice of considerable emotion, said,—" My Lords,
the; reverend defendant has been summoned before
another judgment seat, and his soul and body are
now alike beyond the power of this Court."
The Counsel for the Crown took their seats first;
they were the Attorney-General, the Solicitor-
General, Mr. Brewster, Q. C., Mr. Martley, Q. C.,
Mr. Freeman, Q. C., Sir Thomas Staples, Q. C., Mr.
Bennett, Q. C., Sergeant Warren, Mr. Tombe, Q. C.,
Mr. Holmes, Mr. Smyley, and Mr. Napier. The
briefs of these gentlemen were printed ones, and of
immense bulk.
The Counsel for the traversers were Mr. Moore, Q.C.,
Mr. Fitzgibbon, Q.C., Mr. Whiteside, Q.C., Mr.
Monaghan, Q.C., Mr. Macdonough, Q.C., Mr.
Hatchell, Q.C., Mr. Henn, Q.C., Mr. Sheil, M.P.
and QC., Mr. Pigott, Q.C., Mr. Close, Sir Colman
O'Loughlin, Mr. Perrin, and Mr. O'Hea.
In the interval before calling the jury, some little
laughter was excited by Mr. Ford, the solicitor for
the traversers, causing the chair for the witnesses,
which had been fixed on the table on a revolving
pedestal, to be removed. He said the counsel for the
defendants must see the faces of the witnesses, and the
further off they stood the louder they would speak.
Tho CHIEF JUSTICE asked if the chair had not been
placed as a kind of fixture ?—(Laughter.)
His Lordship was assured by the officer of the Court
that it could be easily removed.
The LORD CHIEF JUSTICE—Oh, no motion need
be made about it yet.—(Laughter.)
One of the jurors, Mr. Ben. Eaton, then applied to
the Court to be excused from attendance, on the
ground of ill-health ; he said he had not strength to
sustain him through the abtendance, should the trial
be a long one, in consequence of an injury he had re-
ceived from a fall from a scaffolding in front of his
own house.
The CIIIEF JUSTICE told him he had better wait till
the traversers came into Court.
An interval of time passed, during which there was
no business, the traversers not having appeared.
The CHIEF JUSTICE at last reminded Mr. Ford
that the public time was being consumed.
The traversers were again called, and Mr. Steele,
Mr. Tierney, and Mr. Duffy, answered to their
names.

PROCLAMATION OF THE JURY.
Proclamation of the Jury was then made, which
proved the commencement of a series of appli-
cations for exemption. A Mr. James Pap-
worth, stated that he was misdescribed,
his name not being James. A Mr. James Hamilton
made the same plea, his name being Joseph, not
James.—(Laughter.) For several names sick certi-
cates were put in from their medical attendants.
The ATTORNEY-GENERAL applied to have Mr.
Hamilton and Mr. Papworth called to answer to their
names, under a penalty of 501., if such persons existed
of course if there were any misdirection that could be
dealt with hereafter.
They were called, and answered, but still stated
that their names were wrongly given. Mr. Pap-
worth said that his name was Collins Papworth, not
James.
Affidavits and certificates, put in on behalf of those
totally unable to attend, were put in and read, and the
several exemptions granted.
The traversers were called a third time, and all
answered. They sat at the side bar immediately
beneath the Reporters' box, with the exception of Mr.
O'Connell, who wore his wig and gown, and sat with
his counsel in the Queen's counsel seat.
The clerk of the Crown then informed the tra-
versers that the jury were about to be sworn on the '
.. issue, and directed the book to be handed to Mr. J.
Hamilton.
i !Mr. Mown, rose, and on behalf of the traversers
applied to have proof of the service of the summonses
on those whose names had been called, but who had
not appeared.
Tile LORD CHIEF JUSTICE said—Mr. Attorney-
General, you hear the application of Mr. Moore ?
The ATTORNEY.GENERAL—I have no objection,
my Lord.
- David Ireland was then called and sworn. He
. served the summonses on the gentlemen on the list of
:' the jury. He served the summons on Mr. Papworth
.7.,
on the sth of January, at an office, 106, Marlborough-
street.
.
. ..
.1 l', Mr. Moottz—Did you know his person ? Witness
''-' —I did not.
. . By the direction of the Court the witness looked at
the gentlemen in the jury-box, and identified Mr.
Papworth, as the gentleman standing " with his back
-• . to the door."—(Laughter.) He also stated that he
only knew his residence from the summons itself.
When he signed it the gentleman told him he was
not Mr. James Papworth. That was the only ser-
vice he made. He also proved serving a summons on
Mr. Hamilton, at 15, Chamber-street; he did not
know his person. In both cases he served the sum-
mons at the residence of the parties.
'IV 1.4,-* No • • estions were put to the witness by the Coun-
-46149pci, rown.
-'- k.,,..0t? --*:37llrs ALLENGE OF THE ARRAY.
''' -W. Kof the Crown then called Mr. J. Hamil-
°; '...'ir*vt;c' ~ r , but before the book could
......-A-.... i, ~.,!,: • le, . . Is a juror;
D - •
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b•-• 44----;-,- ' ‘("-it-, '
NT f s

Sir COLMAN O'LOUGHLIN rose, and on the part of
Mr. D iniel O'Connell put in a challenge of the array
of the whole panel. He did not make any address, but
at once proceeded to read the challenge, which was
of considerable length, and in the usual legal form.
It set forth that the defendant, Mr. Daniel O'Con-
nell, pat in this challenge of the array of the jury,
on his own behalf, because that a list of the persons
qualified to serve as jurors was prepared and presented
to the Recorder at the special sessions for the county and
city of Dublin, and duly signed by him ; but that
the Recorder did not, according to the enactment in
that case made and provided, deliver in a rgeneral
list of such jurors, in the order the statute directs,
but that on the contrary, he omitted so to do ; and
that the said Daniel O'Connell asserts that the paper
puporting to contain the names of such jurors was
illegally and fraudulently made by some person or
persons unknown ; and that the said paper did not
contain the names of ALL the persons quali-
fied to serve on the jury, and whose qualification
had been allowed by the Recorder, but from it had
been omitted the names of fifty-nine persons whose
qualifications had been so allowed. (The names were
given : twenty-seven of them are understood to be
Catholics.) The challenge also stated, that at the
time the fraudulent writing was returned the persons
so omitted were, and still are, resident in the city of
Dublin, and duly qualified to be placed on the
list ; it also asserted that from the said writing,
purporting to be a list of the jurors, a
book was prepared, and from the said book
was made up the list of the special jury for the year
1844, and that the persons so omitted in the writing
were also passed over in the jury book. The challenge
then stated Mr. O'Connell's protest against and chal-
lenge of the legality of the jury panel, for these rea-
sons—it being falsified by the omissions above stated.
Sir COLMAN O'LOUGHLIN said that similar chal-
lenges were being prepared for each of the other tra-
versers, but that they were not yet ready.
The document was handed to the Attorney-Gene-
ral, who for some time appeared to scrutinise it very
earnestly.
Sir C. O'Louoturs said the other challenges would
be identically the same in form, and stated that they
might all be considered then, pro forma, though they
were not yet completely drawn up.
The ATTORNEY- GENERAL said that he had not seen
the challenge till then—he had not heard of it, and
was not aware that it was about to be made. He
therefore asked the Court to allow the Counsel for
the Crown a short time to consider it. He should
expect, if all the challenges were to be considered to-
gether, that they should also all be disposed of at the
same time.
The CHIEF JUSTICE—Have you a copy of the Act
of Parliament, Sir Colman ?
Sir Col.:sta.'s O'LOUGHLIN replied in the affirma-
tive.

The Crown lawyers then quitted the Court
for the purpose of consulting together, and
the proceedings of the Court were for a considerable
time suspended.
The Counsel for the Crown and traversers having
returned to the Court, after an absence of two hours,
The ATTORNEY-GENERAL said—l wish the other
challenges to be handed in.
Mr. MOORE, on the part of the traversers, put it to
the Court whether the other traversers were bound to
put in their challenges at the present moment.
The traversers were there perfectly separate and
distinct, appearing by separate and distinct solicitors,
separate and distinct counsel. The counsel for one
of the traversers, Sir C. O'Loughlin, had put in a
challenge to the array on the part of his client, and
he (Mr. Moore) submitted that the Attorney-General
had no right to ask that other challenges should be
put in before that already put in was disposed of by
the Court.
CHIEF JUSTICE—That would be shifting your
ground considerably, Mr. Moore. It was mentioned
for the other traversers that they only wanted time
to prepare similar challenges.
Mr. MOORE—If that was done I do not think that
I ought to proceed any further in the matter.
CHIEF JUSTICE—That was done in open Court.
The ATTORNEY-GENERAL—It may be proper to
enter a suggestion on the record respecting the death
of the Rev. Mr. Tyrrell. His name having been
included in the indictment, the proper course would
be to enter a suggestion on the record, to say that he
is dead.
CHIEF JUSTICE—That has been stated by the
gentleman who was his solicitor.
_ A pause of considerable length having here taken
place in the proceedings, in consequence of several
challenges not being yet ready.

The CHIEF JUSTICE observed that there was much
time consumed in the preparation of them.
Sir C. 01OUGHLIN—They are all engrossed, my
Lord, and will be ready in a few minutes. They are
now being compared.
CHIEF JUSTICE—You ought to have come into
Court prepared with them all.

The ATTORNEY-GENERAL---I cannot understand
the course adopted. In all those cases there might as
well have been joint challenges as separate ones.
Mr. PIERCE MAIIONY, one of the traversers' 'solici-
tors, observed, they would be ready and in Court in
less than five minutes.—(Laughter.)
The different challenges on the part of the other
traversers were then handed in after some time.

Mr. O'Connell—They are signed by counsel, I
suppose.

Mr. Ford, solicitor for the traversers—They are.
The ATTORNEY-GENERAL--I wish to see them.
The challenges were then handed to the Learned
Gentleman.

The ATTORNEY-GENERAL then rose to support the
demurrer which had been put in on behalf of the
Crown. The argument adopted by the Learned

Gentleman was that the challenges put in contained

no averment. There was no averment that the Recorder

had not made out a list from the general list accord,

ing to the respective qualifications of the parties, and
there was no allegation that the Recorder, or any

persons connected with him, had been guilty of fraud
with regard to the omission of the names from the
list. There was no averment that he did not hand

over the list so made out to the Clerk of the Peace•

There was no averment that the Clerk of the Peace

did not make out a proper list from the general list.

There was no averment that the High Sheriff did not
receive the jury list, and that he did not make out
the special jury list from the 717 names. There was no

averment that the jury was net properly struck and

balloted for from the special jury list. There was no

allegation of fraud, contrivance, or design on the part

of the Crown, or the Sheriff, or the Recorder, or the

Clerk of the Peace, or with regard to any person con-

nected with them. Under those circumstances, he

trusted the Court would not allow the challenges put
in on the part of the traversers. It was
to be presumed prima facie that the public officers
had performed their duty, and as there was no dis-

tinct averment in them, the Court, he hoped, would
not allow them to retard this cause, which was now

ripe for trial. It was absurd to suppose that the entire
proceedings should be rendered null because a name
might be omitted from the list by some person who

was not known. The Crown was as anxious as the

:raversers possibly could be to make out the

guilty person. He contended on the authority of
a ease in 4th Barnewall and Alderson, that a

challenge to the array would not lie in such a case.
Under these circumstances he trusted the Court would

be of opinion that the demurrer they took to the
. __

several challenges ought to be allowed, and that the
trial ought be permitted to proceed.
Sir C. OlotraHuN replied on the part of the
traversers, and quoted Hayes and Dickenson's Text-

book, Bacon's Abridgment, the case of the King v.

Johnson, and the case of the King and Nolan
in Hudson and Brooke, 164, to show that a challenge

to the array would lie in a special jury case. With
regard to what the Learned Attorney-General prin-
cipally relied on, namely, that there was no aver-
ment, the fact was, that there was as distinct an
averment, as it was possible to make. They dis-
tinctly attributed fraud with regard to the jury list,
and the omission of certain names from it to
some person, but who was the precise person on
whom to fix that fraud, it was impossible for them to
say. This fraud must have been committed before
the list came into the hands of the Sheriff. The
Attorney-General did not dare to deny that the
special list was illegally and fraudulently made ou
They distinctly avowed that no general list was made

out - that no general list was handed to the clerk ofth;

peace, and that the Recorder neglected to do so. The
Learned Gentleman then went on to read from the chal-
lenge to show that the averments had been made as dis-
tinctly as possible, and in fact in the very words of
the statute. He did not think the Crown ought to
press the trial under such circumstances. It was no
objection to say that the guilty person could be
punished for omitting the names ; for what satis-
faction was that to a person found guilty, it may be,
of a capital offence ?
Mr. FITZGIBBON argued on the same side with Sir
Colman O'Loughlin. He said, the real question in
the case was, whether the list
.was a good one, and
he would undertake to show it was not. The Legis-
lature was most precise in the language .it
used with regard to there being a proper list.
But for this list what had been substituted ? The
traversers had not shrunk from placing on their
challenge an averment that they were no parties
to the fraud which had occasioned the
omission. The whole argument of the At-
torney-General amounted to this—that some in-
dividual had been dexterous enough to filch from the
desk of the Recorder the list of the jurors, and to
decimate the whole of them, for the omission of 59
names amounted to about a tithe of the number ; and
that if any person had done this he ought to be punished,
and that he (the Attorney-General) would assist in
doing so. He would assume that it was the Recor-
der's footman who had done this; but did that make
the Recorder's conduct more legal or proper ? The
law said that the Recorder should make out, or caus-
to be made out, a list comprehending al/the names qual-
fied to be placed upon it. Had he caused this to be
done ? The answer was plain and evident that he
had not. The traversers, therefore, objected to be
tried by a jury so fraudulently constructed. If he
could suppose—what, perhaps, it was difficult to sup-
pose—a Crown prosecutor desirous of doing justice,
and justice only, he would have been careful
that not one of his steps towards hunting a fellow-
subject into a prison should be tainted by illegality
and fraud ? Would he not gladly have embraced
the opportunity now offered of correcting
this error ? It was not too late ; it might
be easily accomplished. They had only to
have adjourned the Court till to-morrow,
and in the mean time to have made inquiries of the
Recorder if the 59 persons were duly qualified; and
if they were shown to be so, they might have said let
the 59 names be put into the box again, and the jury
drawn with them. The omission would thus have been
supplied. He knew that every public officer must be
presumed to have done his duty till the contrary was
proved. Was the contrary proved in this instance ?
He contended that the grossest negligence had been
proved against him,' and yet they were asked to presume
that he had done his duty ? It was one of the first prin-
ciples of lavi, that fraud vitiated everything. It
would vitiate a judgment of their Lordships—it
would vitiate a judgment of the House of Lords.
But in nothing ought fraud to be more guarded against
than in the preparation of the list of those who
were to pronounce on the guilt or innocence of a
fellow-man. They had heard a great deal of the
mischief of delaying justice. He agreed as to the
mischief of delaying justice but there was a
very great advantage in delaying injustice. He
denied what had been asserted, that the list of
jurors for 1844 was to be taken from
the previous list. The Attorney-General had not
pointed out one defect or failure in the averments of
the challenge. He asserted that there was no aver-
ment that the Recorder did not hand in a list; cer-
tainly there was not; but there was an averment
that he handed in an illegal list. Had the chal-
lenge denied that a list was banded in at all,
they would have immediately been met by a question
of fact, and full proof would have been given that a
list was furnished. He contended also that the
Legislature gave full powers to rectify the list if any
errors had been committed in drawing it up. And
were they to have no remedy ? Why, then, were
they given the power to challenge the array
at all ? He did not cast one single imputation on the
integrity of any one of the twenty-four gentlemen
who had been selected. He was against the whole
principle on which the panel had been constructed,
and the legality of it as constructed.
The SOLICITOR-GENERAL then rose. In com-
mencing his address, he regretted that his Learned
young Friend had, from inadvertence, used the ex-
pression of a " packed jury." Such expressions went
abroad, and produced an imputation most injurious,
although they were groundless and unwarrantable. He
then 'proceeded to the question of the challenge, the

legality of which he supported, on the ground that
there was a difference between the challenge of a
jury on the ground of a want of impartiality on the
part of the Sheriff, and the challenge of a jury where
no such partiality was alleged against him. He quoted
several cases and reports, to prove the inconveniences of
allowing the challenge in such cases. He also strongly
condemned the harsh terms which had been applied
to the conduct of the Recorder, who was not before
the Court, was unrepresented by counsel, and could not
reply to the aspersions. lie then proceeded to notice
the legal consequences of that alleged misconduct,
and restated the argument of the Attorney-General,
that certain averments which ought to have been
made in the challenge, in order to support it, were
not inserted. He argued also that, even allowing that
the Recorder had been guilty of negligence,
the consequences of that negligence amounted only to
this, that the list was not so perfect as it might have
been. But it was not denied that some list was made.

With regard to the observations made by his Learned
Friend, Mr. Fitzgibbon, that the fifty-nine persons
whose names were left out ought to be inserted, he
begged to remark that it would not be competent for
them to do so. They could not make any alteration
in the jury list after it had been once struck, but
persons seemed to imagine that things could be done
in this case which could not be done in any other.
The Learned Gentleman proceeded at great length to
controvert the arguments of the counsel for the
traversers, and concluded a very able argument by
calling on the Court to allow tie demurrer of the
Crown.

Mr. MOORE said, on the part of Mr. O'Connell,
and after the able statement of the Solicitor-General,
that he would propose the matter should now be re-
ferred back to the Recorder, and that a new list

should be struck.

The ATTORNEY-GENERAL objected altogether to
such a proposition, and he was astonished that such

a one cotild have been made by Mr. Moore, who, as
a lawyer, must know it would be perfectly illegal;
and he, holding the office of Attorney-General, would
be unworthy to hold that situation for a single moment
if he assented to such a proposition.
Mr. MOORE said the Attorney-General had grossly
misconceived the nature of his proposition. He (Mr.
Moore) made it only with respect to this single case.
The Attorney-General seemed to attribute to him an
improper motive, and monstrous ignorance in making
it. He would not reply to the observations of the At-
torney-General. The proposition he made in good
faith, and in consequence of instructions he had re-
ceived from his clients. He did not think he could

be charged with having exhibited any improper feel-
ing, or could be charged with monstrous ignorance as
to his duties as a lawyer in making it.—(Applause
throughout the Court.)
The ATTORNEY-GENERAL said that if such feel-
ings were manifested in Court, he should be obliged
to take measures to have no persons admitted to the
gallery. He thought that his Learned Friend had

-meant his proposition generally, and he must have
known, if he did so, it could not be legally done.
The Learned Judges having consulted for a short
time,

The CIIIEF JUSTICE said the majority of the Court
were of opinion in this case that the demurrer should
be allowed, and, consequently, that the challenge
should be overruled. The subject-matter was not
now under the consideration of the Court, inasmuch

as the arguments used on both sides had embraced, in
substance, the greater part of what the Court had
been occupied with on Friday last. The Court had

then given judgment, and up-on every consideration
he had been able to give the subject since, he found

no reason to alter the decision the Court ' had then

pronounced, through him. On the contrary, during
the progress of the argument, and applying his best
judgment to the matter, the opinion he entertained
then was confirmed. The application then under the
consideration of the Court was, that, for certain rea-
sons alleged, the panel should be quashed, and he con-
fessed he could not see the principles upon which he could
now be called upon to give a different judgment from
that which he had given on a former occasion, and
in which all his brethren concurred. The present
application came before the Court in the shape of a
challenge to the array. The objection was that a
number of names which should have been upon the
jury list were not there, and that the Recorder of
Dublin had neglected, or omitted, to make a proper
list. In considering this subject, it would be neces-
sary to look to the Jury Law to see what its object
was. The Leaxned Judge then proceeded to point

out at considerable length how the provisions of the
Act applied to the present case, and how no violation
of them had been committed so as to invalidate the
proceedings of the Recorder or the Clerk of the Peace
in the matter. The Clerk of the Peace, with a view
to his preparing the jury list for the ensuing year,
was directed by the Act to issue his precepts to the
several collectors of taxes, whence might be dated the
origin of the persons who were to be called on to be
placed on the jury lists or not. The Act defined who
were the persons that were to be admitted upon the
jury list, and precautions were taken by those officers
that none were admitted but those qualified to dis-
charge the duties of a juror. Those lists having been
returned to the Clerk of the Peace, were to be subse-
quently laid by him before the Recorder of the City
of Dublin for his revision and adjudication. The
Recorder was the last who had any control on the
subject, and there must have been very good reasons
why his decision was made final and not open to col-
lateral investigation. In the present case, the provi-
sions of the Act had been complied with—the precepts
made—the lists returned from the parish officer—
the investigation and the Recorder's decision made,
which decision none but the Recorder himself could
review for the purpose of disputing it. All that was
required by the Act had been complied with, and if
the course contended for by Counsel for the traversers
had been pursued, it would be unsettling rather than
settling the duties of the officers—a thing that cer-
tainly could never have been intended by the Act.
Where fraud had not been proved it was out of the
power of the Queen's Bench to investigate the deci-
sion of the Recorder, even if he had come to a wrong
conclusion. The Learned Judge detailed at consider-
able length various reasons in support of his view of
the case, and concluded by saying that he was of
opinion the demurrer must be allowed.
Mr. Justice BURTON next stated his reasons for
concurring with the Lord Chief Justice in the opinion
that the demurrer should be allowed. If the demurrer
were not allowed, it would form a precedent which,
in future cases, would cause delay, that might, per-
haps, ruin parties engaged in law proceedings ; and
it would, besides, render the present proceedings a
nullity. It was his opinion the demurrer must be
allowed. He had considerable doubt whether any
challenge at all existed to the panel of a special jury.
Supposing it did apply here, no imputation whatever
rests upon the Sheriff; again, there was no imputa-
tion on the Clerk of the Crown. The Sheriff's duty
was indeed a mere formal matter; as to making any
judicial decision on the list, it was quite out of his
function, which was merely to strike a panel. What
was the challenge here founded on ? On the supposed
want of impartiality of some unknown person who had
access to the Recorder's-office, before the list was
arranged. That was an unheard of challenge. It
was not founded on the want of impartiality on the
part of any public officer ; it gave a new range en-
tirely to the right of challenge, and impugned the
whole list because there was some fraud or mis-
management on the part of some unknown person,
during the process of preparing the list. Admitting
that the Recorder had not been as diligent and atten-
tive as he might have been under the circumstances,
still there was no fraud alleged against him. The
Learned Judge then read extracts from the statute
defining the duties of the Recorder, which he con-
tended were judicial, and against his decision there
was no appeal to any Court. The other officers had
merely a plain, defined duty to perform. As to the
omission of the sixty names from the list, what was
the duty of the Sheriff with regard to them ? The
list must be taken from the jurors' book, and could
be taken from no other source; if the jurors' book
for 1844 were a nullity, then they were directly
driven to the jury book of 1843. The admission of
the challenge would cause many difficulties. Suppos-
ing that a knave or an idiot obtained access to the
papers while in course of preparation, and were to
purloin part of the papers ; or even if a rat were to
eat them, the whole community was to be deprived of
a special jury list. Even the omission of one name
might on this principle be considered sufficient. It
was always necessary that a private injury must give
way to a general inconvenience. No par-
ticular injury had been stated here ; but was
there ever a case in which a more monstrous
general inconvenience had been pointed out ?
They could not go behind the jurors' book,
and there was no imputation upon that ; the imputa-
tion was on the general list. They could not enter here
into any considerations as to the mode of preparing
the jurors' book, through the medium of a challenge.
If they had been right in refusing the motion made 1
on this subject, they should be right, ex superabun-
dante, in refusing the challenge. He was, therefore,
of opinion, that it must be refused.
Mr. Justice PERRIN, in giving his opinion, said he
had given careful consideration to the Act of Parlia-
ment, and applying its provisions to the matters as
they appeared on the challenge, he was under the dis-
advantage of not coming to the same conclusion as
that to which the Chief Justice and his brethren had
arrived. He thought, subject to considerable doubt,
that the challenge ought to be allowed. By the Act
of Parliament, the collectors of taxes were to make
out two lists of all qualified persons to act on the
jury within their districts, and to give them to the
Clerk of the Peace. These lists were afterwards re-
vised by the Recorder, and, with respect to that
officer, he fully concurred in the distinction which
had been drawn between his ministerial and judicial
functions. With the revision of the list he considered
that the Recorder's judicial duty ended. This ap-
peared to be the case, from the mode in which the
jury lists were prepared in the counties. There they
were revised by the Justices, and delivered to the
Sheriff. In the present case, the Recorder should
not have written out a general list with his own
hand ; he ought to have caused a general list to be
made out from the list he had revised ; but
it did not appear that the least degree
of fraud had been imputed to the Recorder ; he had
never heard it imputed, nor could it be believed.
imposed upon by the
o make out the list.
ButN ow person it seemed
every
ehroym thatdohnee
hadh
muste hadm
been t
employede
pemploy
yclerks,
and If con-
trivances of that kind, on the part of persons so em-
ployed, were not inquired into, and were not to
vitiate the acts which purported to be the acts of their
superior officers, he was really at a loss to understand
what was the security of the public for the purity of
the jurors' book. In such a case one list might be muti-
lated, and another list substituted. He had heard
some difficulties stated, as to whether the Recorder
could amend his list, having discovered any mutilation
or omission, afterso havingarneniddnegliivte.redltibtatdo
btheeenShsteartieffd.
But it seemed to him that he could do so, and would
adlosohtilis at dutyin
there was li▪ kely to be some in-convenience
experienced should the challenge be allowed. It ap-
peared to him that the inconvenience had been appre-
hended to be much more extensive than it would
really be found to be. It appeared to him that there
was a power of at once
correcting the errors which
might exist in the list of jurors.
He could not see
any objection to amending the book according to the
true and real general li▪
st, vouched and supported by
comparison with the authentic. parochial lists. On
these grounds he had felt him self compelled to come to
that conclusion. Ile certainly did entertain an im-
pression that the challenge ought to be allowed,
though certainly not. without considerable doubt as
to the correctness of his opinion.
The Court wasthen
adjourned till ten o'clock the
following morning.