The Sun.
London, England, 1844-07-05 00:00:00

illegal for grand juries to find bills upon the testimony of
witnesses not sworn, and the effect of that bill was
to provide that they should be sworn in open
court. That was a declaratory law as well as an
enacting one, and it was conclusive that the common law
course was that the witnesses should be sworn in open court.
There were' somel safeguards, to the administration of justice
arising from that regulation. There were some advantages
to the defendants in their early notice of what witnesses
might be called against them ; it enabled them by quickly
and promptly collecting information either to cross-examine
those witnesses effectively or to contradict their testimony.
It was thought right however by the Legislature to change
that proceeding; doubtless for good reasons. But it gave
a very 'exact and admirable mode of distinguishing between
the names endorsed on the back of the indictment where the
witnesses had been sworn, and where they had not been
sworn, and the mode, therefore, of pointing out and returning
a true bill. The evidence upon which the Court was to be
satisfied that the bill brought into Court, and stated
to be found by the grand jury was a bill
found according to the course of the law, was
'that the certificate should be attached to the bill.
It was worthy of remark, that not only was this the mode
prescribed by the statute, but it was the only mode in which
the Court could ascertain the facts, but it had not provided
any other, and scarcely could provide any other.
The LORD CHaNcELLon—Point out the page in which the
defect is stated.

Mr. HILL—It would be found at page 83 of the defendant's
appendix, where it was stated that, " neither the foreman nor
any other member of the said grand jury did authenticate by
his signature or initials, as is required by the said re-
cited statute, that the said witnesses or any of them
had been sworn or has made such affirmation or de-
claration as aforesaid, nor did the said foreman or any
other member of the said grand jury authenticate in manner
aforesaid that no other witness or witnesses save the said
hereinbefore mentioned witnesses were so sworn and affirmed
or examined by and before them, pursuant to the provisions
of the said recited statute ; and, therefore, in this there is ma-
nifest error ; and this the said Thomas Steele is ready to
verify, to wit, at Dublin, in the county of the city of
Dublin aforesaid." Would it be said that this part of the
statute was merely directory ? He apprehended it was not
for the reasons he had pointed out. It was:a new power con-
ferred upon the grand jury—one not known to the common
law—one that must be used as it was given, and used strictly
as it was given. It was given by the Legislature, with cer-
tain safeguards attached to it—certain means by which the
Court was enabled readily to know whether the prescribed
law had been followed when the jury were sittiag in
their secret chamber. Let him put the case of
an indictment for perjury. If the witnesses gave
their evidence before the grand jury, in the absence of
the certificates prescribed by the statute, how was the evi-
dence to be given. How was it to show that the jury were
sworn, the grand jury themselves being sworn to secrecy.
This was the prescribed form established by law, and must,
therefore, be evidence. Was it not the statutory law that
bills should be returned in a certain manner. But
here was a new mode pointed out on account of
the jury having new duties to perform—that of swearing the
witnesses. Their Lordships were slow to construe any act
as a directing one when it had reference to criminal proceed-
ings. But their Lordships had never construed any words
as directing where those words made a change in the:course
of the common law. His Learned Friend (Mr. Kelly) had
directed his attention more fully to this part of the case, and
would 'address their Lordships more fully upon it. He (Mr.
Hill) should therefore proceed to the next point.
Lord CAMPBELL said it would aid them very much if he
would state how the question was to be raised, on the writ
of error or on a writ coram nobis.

Mr. HILL said that question applied to the portion of the
pleadings which would devolve more upon Mr. Kelly, but it
appeared, to him that if the plea of abatement was good i❑
form, then it might be argued as a plea of abatement. If the
objection to it was made that it did not set forth a sufficient
number of facts, then the question might be raised.
Lord Camenzu—Then you think it cempetent to take the
question both on the assignment of error and the writ coram
nobis.

Mr. HlLL—There could not be a doubt about it. He
now proposed to lay before their Lordships a very im-
portant point in the argument of this case. He would
endeavour to show that the court below had come to
an erroneous judgment when it disallowed the challenge
to the array, or rather when it allowed the demurrer
of the Crown to that challenge of the array, assigning, as
they did, that that challenge was not valid. Their Lord-
ships, by the argument of his Learned Friend, Sir Thomas
Wilde, had been put in possession of the general terms of the
challenge, as it stood upon the record. He did not, there-
fore, think it necessary to go over with particularity the
form of that challenge. He would advert to it by call-
ing their attention to the provisions of the Act, which at
present was in force in Ireland for the purpose of regulating
juries. There were two acts for this purpose : one of the 3d
and 4th William IV., and the other the 4th and sth William
IV., being an act to amend the former one. On these the
question mainly rested. In the 4th section of the first act,
chap. 78, they would find that it was made the duty of the
sheriffs to issue precepts for the collection of the grand jury cess
in the month of July, there to be returned with the names
of persons duly qualified to act as jurymen. The 7th section
states that the collector is to make out alphabetical lists of
the persons liable to serve on juries—to deliver those
lists to the clerk of the peace without fee or reward.
The Learned Gentleman then read the 9th section of the Act
of Parliament, which prescribed the mode in which the jury-
list was to be made out. The averment of the challenge in
the case of Mr. Steele would be found in page 66 of the ease
of the plaintiffs in error. It was stated that the general list,
which was the duty of the Recorder, who had caused it to be
made oat, to deliver to the clerk of the peace, was not
so delivered, and it stated that a certain paper writing,
purporting to be a general list, was illegally and fraudulently
made out, and that it omitted several names which ought to
be inserted, which was to his wrong and damage. The first
question which he proposed to argue before their Lordships
was one which at first sight their Lordships might sup-
pose it was scarcely necessary to argue, namely, that
there was a great disobedience of the statute, and that after
all the labour which had been gone through in the
making out of the list ; the fruits of it were lost to the
public in general, and to this challenger in particular, by the
fraudulent act of some one who interfered during that
part of the proceedings pointed out by the Act, which
said that the Recorder, or Justices, shall cause this
general list to be laid before the Clerk of the
Peace, and that by such intervention a document became the
foundation of the jury list, which was not in obedience to the
Act of Parliament, or in conformity with it. The
challenge stated that this was to his prejudice, and
that it was so intended by whosoever concocted the
fraudulent document. If this was not a wrong
and matter of great public concernmenefsa it was not a
matter which demanded a remedy in the loudest possible
voice, he knew not: what did. He was not speaking here of
the number, more or less, which was omitted from the list.
That was not the thing material. He stood upon this allega-
tion, that a real and substantial injury had been committed,
which gave this gentleman ground of challenge. The ques-
tion was, could there be a doubt that this was wrong, and
that some remedy was requisite? The labour of the Re-
corder, and of so many officers who were engaged
upon the list was thrown away, and the value of
the document was destroyed, as regarded the challenge.
He could hardly have a doubt of this if he had not read the
jndgment of the Court below. The course of argument
which the Learned Judges pursued was this :—That they
thought themselves justified in examining this question by
putting some extreme case, and they asked by that process
of sophistry, if he might venture to say so with regard to
those learned persons, for whom he felt all respect, which was
so frequently practised by those who did not wish to
arrive at the truth—" Would you say that the list
is void, because one name is omitted, or because there
is a reversion in the order of a single name ?"
He was not called upon to argue how much this was in
disobedience to the :Act of Parliament, because the ques-
tion here was not the question if more or less fraud was im-
parted :: and the question was far superior to the number of
names omitted, namely, that it was of damage, and the injury
averred was as precise as possible, because, as their Lordships
saw, the damage was prospective, because the damage was
not arrived which it was the object of the challenge should
not arrive, but which impended over the party. He was
surprised it had not occurred to those learned persons
who put this extreme case to put the other
extreme, whether if all the names had been omitted but one
it would be good. Supposing a rat had gnawed out one of
the names, would that,not render the list invalid? Supposing
amore hungry rat had gnawed out all the names, would not
that render it invalid? But if a rat of discretion—a
rat that knew what he was about—gnawed out cer-
tain of the names, would not that render it invalid ?
Suppose it true that the names which had been emitted had
each a mark on the side. Suppose it to be impossible to
imagine that the loss of any number of sheets could account
for the names omitted from the jury list. Suppose the names
ought to have been spread all over the books Suppose it
appeared from the record, and he would not travel out of
the record, that this was a great cause arising out of a
great political and religious contest, and that there were
indications to show the religious and political feelings of the
persons whose names had been omitted, and that those
names had been omitted in consequence. Now, in a case
like this, in which fraud was distinctly, alleged, he was at a
loss to understand why inquiry should be refused, even if it
was demandable as a strict right. Inquiry ought to have
been courted if each party had been equally desirous to have
the jurylistAwhich they ought:to have had, fair and impartial.
If the will of the Legislature had been complied with in every
particular there would have been difficulty enough in the then
social state of Dublin in procuring a fair and imparital jury
This great question was the agitating the country. It would
be no aspersion on the great body of men from whom the jurors
were sworn, to say that there was not among them any one
to be found who• did not entertain strong feelings on this
great question on one side or on the other. Indeed, he should
feel little respect for any one man living in Ireland who had
not strong feelings on one side or on the other on this vital
question. This case had been brought to trial under the able
direction of his Learned Friend, the Attorney-General for
Ireland. Every fact was to be subjected to the
investigation of , the jury, and every member of
that jury was almost certain to be biased on
one side or the other. without any fault of his
own. Now if a case could be imagined which beyond all
others required a strict—he might almost say a superstitious
compliance with every portion of the Jury Act—it was the
case before the House. It was expected that the trial would
operate on public opinion—it was intended that it should be
held up as an example to the people of Ireland; could that
be done in any, way except by convincing the people that all
was done, not from vengeance, but from justice, and to vindi-
cate the law ? If that were the object in view, he could only
say that the means taken to effect it were most unfortunate.
Above all things it was necessary that no suspicion should
rest on the impartiality of the jury. On that point, he would
quote the language in which, on one occasion which might
be considered an epoch in law, one of their own Lordships
had expressed his deliberate opinion :—" I should be guilty
of no exaggeration—l should be led by fancy into no error if I
said that all the vast establishments of this great empire—
that King and Lords and Commons were all instituted for
the simple object of putting twelve good men into a box."
If that were so, surely it was of infinite importance that the
intentions of the Legislature to secure these twelve " good
men" should be attended to. What was the meaning of" good
men?" It was meant that they should be impartial and intelli-
gent. But as no general words introduced into an Act of Parlia-
ment could produce that particular effect, the Legislature
had laid down certain qualifications which ought to be com-
plied with before the jury entered the box. Now, what was
the remedy if these provisions were departed from ? The
challenge of the array. It was admitted, he believed, that
that right was not taken away by statute. But
that omission was coupled with an exception the ob •
jest of which was to show that the right could not be used
in the present case, and for the purpose disclosed in thiachal-
lenge. Now he proposed to chow that the challenge of this
array constituted the great right from which this great
wrong was to receive an effectual remedy. In England until
the Revelatien, and in Ireland until the Act of the 3d and 4th
William IV., the Sheriff was the only officer, who, by him-
self or his subordinates, could refuse the ehallen.ge to
ssray. In Coke upon 'Lyttleion, section 136, it was
a tho .--, would lie for nonindifferency
said that chaneng., s. - -.•.-,.- .... seebt Lord
or default of the sheriff. Thera could be ue ss -
Coke, in laying down the right of challenge to the array in
these rew end general Fermat and in reference to the autho-