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

THE STATE TRIALS.

(FIFTH DAY.)

WRIT 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 the table, around which the Judges were seated,
instead of their usual seats upon 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
tune, and leaning over the bar.
Pra) era 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 Ifeland
but the points he was stow 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 Lordsbips' attention to the challenge Of
the array, but perhaps it would be better before doing se
to advert to the challenge itself, because be was satisfied
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 be
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 fait
one—and there was no allegation that any of the jail
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 a
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 returned
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 0'
battery or debt against the sheriff, or the sheriff had a°
action against them ; or if the sheriff were under distress
at the suit of either party, or for cause of an indigo-
ency ; or, lastly, if he did not return hundreders when
hundreders ought to be returned. In a challenge by
r
favour, the challenge must show all the circumstances o
the ease. If the plaintiff or defendant's daughter wet°,
of affinity to the sheriff's son, that would be a goot
ground of challenge for favour. The consequence of
quashing an array would be that a new process woofd.
issue to another officer, different to the one whose fain'
had caused the array to be quashed, who would return °
fresh panel. Their Lordships would find that the do s
trine of challenges to the array laid down in chitty::
" Criminal Law," page 526 ; Viner's " Abridgment:
article " Trials ;" and Bacon's "Abridgment," title'
"Juries." The Learned Genth man then proceeded to
quote a case in which a sheriff had delivered in an array
for the grand jury, and had sent it by a messenger. Th__ s
plaintiff got hold of the messenger, and had induced biFl_
to alter the panel, by inserting certain names. At thi
time the old sheriff was removed, and a new one er;
pointed. The array was challenged, and the fornut
sheriff came into Court and disavowed the panel. Thr.
bench decided that it might be a good ground of elle
lenge of the persons whose names were inserted, but Iva;
not agood ground of challenge in the array. •He would ne9
read the challenge in this instance, but their LordshT,
would perceive that there was no statement of any r
fault, partiality, or misconduct on the part of the Sheri
who returned the array. Although the allegations,W
the challenge were not made out, yet he understood ill,
it proceeded upon this principle—that if, in making ere
the juror's book, under the statute:of 1 William it
'should happen to be any omission of any newel: of
mattered not whether the omission was one name, the
twenty, but if there happened to be the omission ° that
name of any person entitled to serve on juries' fie
would be a good ground of Challenge to the err* the
contended that there was no ground of challenge t:°_ ,a
array in the case of this jury only ; but it
go to any other jury. In fact, the allegation
towen
saheoth agt ht
ed a t nwoi t h jurye a
ffi ee could;r butbe inreftauertneitd
wentlhad
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 jurors' book they could take
the book of the year before. But surely they would not
ft).`
contend that there was not a regular jurors' book
1844, because some of the names were omitted. IVhii
the same was most likely the case with the book
1843. It was exceedingly improbable that all the Tunnel
were in that book. The fact was that the challenge
the array was not the proper remedy for the iriiVo
which the defendants alleged they had suffered. P,ch
Learned Friend Mr. Hill alluded to a proposition
had been made on the part of the defendants to show till:
bona fides of the challenge, but his Learned Friend t,
,
Attorney-General for Ireland, would be guilty of a n:
lect of his duty if he consented to anything of the 101,,,,
for if he. had done so, it would prevent the jury o'9-0
being a good jury. (The Hon. and Learned Gentlenlet
then referred to the provisions of the Act of Parliatae°
under which the general list of jurors was made 'tont
The challenge began by stating that the collectors r
grand jury cess delivered twenty lists to the Recorded;
and it went, on to state that the Recorder had duly 10%0
out a list, but had not caused to be made out from 'of
several lists one general list containing the names r-.
all the persons whose qualifications had been so
ranged according to rank and property, nor ba,
the Recorder caused such to be fairly copied in the sal°,,t
order. Nobody had said that the Recorder bad
made out a general list—that it was not delivered to t4".i
clerks of` the peace, and to the sheriff by the clerks ut
the peace. Nor was it denied that the sheriff had '3red
made out the jury-list from it. But what was deni e,
was, that a list was made out with all the nar°o4
arranged according to rank and property. There t.
no denial that the Recorder had made out a general liSe;
though not a general list cont :fining all the ne°2o
arranged according to rank and property. This " 0
what he would call a negative pregnant. The challett
went on: " And the said Daniel O'Connell ssys °to
said paper writing, purporting to be such general list _0
aforesaid, did not contain the names of all the persit
whOse qualifications had been- allowed upon the' correTi„
ing.. allowing, and signing of said list as aforesaid
the Recorder, but omitted the names of divers, to wiia
fifty-nine persons, whose qualifications to be on the ,
lists respectively had been so, allowed as dolt
said by the said Recorder, which said severfl's
persons whose names were so omitted are as folio
That was the challenge of Mr. Daniel O'Connell, but
begged to call the attention of their Lordships to the fled,
that the challenges of all the other defendants were "t-be
ferent, for it was added, " for the purpose, and with wile
intent of prejudicing the said so and so." What wasja
meaning of the allegation that " a certain paper wt't' ?"
was made out by some person, or persons unknow°o
What was the effect of it ? What was its bearing 0° ire
case ? There was no allegation in the challenge that ,a 4
Recorder had not made out a general list—that it ``‘,ot
not delive:ed to the clerks of the peace—that it was h" at
delivered to the sheriff. There was no allegation 'die
in that list so made up, and so returned, there was two
omission of a single name. But there was an allegs' et
that there was an omission of names from a certain pls.
writing, Made up by some person, or persons, unk°°oos
It was easy to see why the challenge was made up i°, 00t
way. _ They had not referred to the general list inaocihei
by the Recorder and the other officers, because i,„%,-01
found it would be hard to do so without alleging ",:t of
' against some one of the officers. In a subsequent P¢ Dot
the challenge, it was said that the challenger w'a's the
aware of or privy to the omission of the names fromwo
paper writing ; but there was no allegation that /tetra;
not aware of or privy to the omission of the names ''oy!
the general list. The challenge then went on t°
" The said D. O'Connell further says, that the -the
several persons whose names were so omitted from e•
said fraudulent paper writing, purporting to be thee'
neral list as aforesaid, were, at the time of the se,.' tee
turn of the collector's lists and at the time of eat
said special sessions, and still are, severally rest pod
within the county of the said city of Dubli°'
were at the said several times and now are duly gated
fled to be, and should and ought to have been. P',4-Jleci
upon the said general list." On this allegation he et op'
their Lordships' attention to this fact, that it
pear that the names so omitted from the
were qualified to be placed on the special Jur°rsi list'
They were qualified to be placed on the geneiiod 111,
but there was no allegation that they were qua' so"
be on the special jurors' list. The challenge then says'
on to say, " and the said Daniel O'Connell furtherrog
that from the said fraudulent paper writing, PurP°bool‘'i
to be such general list as aforesaid, a certain ty
lis
purporting to be the jurors' book of the said cettnr, 0
genera,di d ri°l tt:
the city of Dublin for the current calendar Ytiortl,,'
wit, for the year one thousand eight hundred anddi as';
four, was made up and framed." He "sv°°' Died „'
by whom was it made up, by whom was it fill de UP
There was no averment that the book was not 03%,h011i
by the challenger himself ; it was not stated bY• was
it was made up, or under what circumstances ; 'ivy to
not averred that the challenger himself was not Viso Yee
and a consenting party to the framing it. He a mad
minded them that the jurors' book could not beofth°
up by the Recorder, as it was made up by the & the
ire
peace. The challenger then went on to say, "fro
said book so purporting to be the jurors' boOlc; yea,
said county of the city for the said curtePore°,l
was made up the special Jurors' list for the sailleodre ?
year, to wit, for the year one thousand eight whoa" ?
and forty-four." Again, he would ask bY
llegethe
Was that done with the consent of the c And t-
There was not a word to say that it was not.