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

h5a.........••••• .0........

said Daniel O'Connell saith, that the said several per-
doilous 'whose names were so omitted from the said frau
lnt paper writing purporting to be such generale also omitted from the said book purporting to
12a the said jurors' book, and from stud list pur-
l'urting to be the said special jurors' list." Here
again, there was no allegation that the names were
lhnot omitted front the jurors' book ; it was only alleged
at they were omitted from another paper which was
'-‘,°t a document within the Act of Parliament. The
t'allenge again proceeded to say :—" And the said
persons O'Connell further saith, that the said several
so omitted as aforesaid had been duly ad-
Jadeed and allowed by the said Recorder at said special
aesaions. to be the persons having the qualification
'qualifying. and entitling them and each of them respec-
ttivel to be upon the jurors' book, and also to be upon
he special jurors' list, for the current year, to wit, the
ear one thousand eight hundred and forty-four." Now,
.4e contended, that there was-'no power in the Recorder
‘0 allow any such thing. He read the 26th section of the
Act to bear him out in tills assertion, that the Recorder
1_ Ita nothing to do with judging whether these persons
nwere qualified to be on the jury-list at all. The next
.!egation was, that the said Daniel O'Connell further
`th, that the panel made to try the issue in this case
Fag arra.yed and constructed from the special jurors'
81,8;t:, fqr 1844, " to the manifest wrong and injury of the
it Daniel O'Connell." Again, in this allegation
plwas not denied that the special jury-list was re-
arly made up by the Sheriff, And though it was stated
It was to the manifest wrong and injury of the chal-
enger, yet there was no affirmation that it was made
/uvlithout. his privity and' knowledge, or that he was not
e party by whom it was done. These were the
qrounds on which the challenge was to be set aside and
u.ashed, This was the whole of the challenge ;it was
Atte unnecessary to enter here on a discussion upon the
°et of Parliament, because there did not arise any point
..1! the challenge which could vitiate the array. But
o"tth regard to the course taken by the Crown, of demur-
g to the challenge instead of joining issue upon it, he
o.lttended that the Attorney-General for Ireland had no
pruter course open to him, and would have committed a
em violation of duty if had not done so. He had
ursun
134 A the same course himself in a challenge made
7the special commission. He should now pro-
-lelcl to the enactments of the Act of Parliament.
a emission of a name could not render the whole array
thtt.lgal. There was a penalty upon the collectors if they
I.‘, not make out the list right, or inserted any names
°r the •
LittiroeerlY Naroes might be omitted by the collectors
wathesjurgraorsnia jury cess ; the book might be made up and
tnpanelled with that omission; but then there
his provision in the Act by which a party might get
a b._
see `e inserted. An omission could not have the
at of invalidating the jury list. This point had been
t 4, ee brought before the judges .in Ireland. The first
t,,,,a was that. of • " The Queen v. Fitzpatrick," in Craw-
„:4 and Dick's RepoTts, vol. 3, p. 513. The second case
I":that of " The Queen v. Conroy." A prisoner was
ehu;cted for murder upon four counts. There was a
gh,ttitn.ge to the array, and Mr. Justice Holywell, in
feet e Judgment, said that the effect of allowing one de-
b, to vitiate the whole indictment, would
ttat; that the whole fabric of the adminis-
Th:on of justice would fall to the ground.
coroner was a general and not a particular officer.
eit in the case of the coroner might be challenged,
off it could not be challenged in the case of a particular
"t r• If there were any fault in the Crown-office,
thilication should be made to the Court. He trusted
that from the authorities which he had cited he had
eili:T4l to their Lordships that there was no ground for
Ittle •
Dubs ?aging the array on the ground of the
thi ion of names. He would not trouble their Lord-
bi.l2s.further on that point. He would next come to the
k' In abatement, that the traversers ought not to have
Ivietnu called on to answer the indictment, because the
te,oreues examined before the grand jury had not been
ttpi in court. It was impossible to contend that such
tio.ea could have been allowed by the court. The Act
„
eet say that the jurors should be "sworn," but that
vial should be "sworn or affirmed" in court. But there
hot :nether ground on which the plea was bad. It does
kerptate the names of those witnesses, nor that they
tll-t„,ll;aknoven to the defendants. He held it an essen-
'stl t-ti";11t in pleading that these things should be stated.
fact that four witnesses were examined before
to
a; and jury was not a ground of objection
'utt mother indictment for it was a non-constat
4,1401,, er witnesses were not examined.
'utir 'l3aouomist—The grand jury might find from
Th:)w4 knowledge.
111.11 I.A'r'roewEe-GENERAL—Or they might examine
'e,aLtheir own body, upon his oath as a juror. (The
‘;' tl),'", Attorney-General then cited cases in support
view" from Carrington and Marshall, and also

te:fia'S report ; but it was impossible in the gal-
-I,ll.(irtstess e en their urpo'rt. There was now an
matter to which. he wished. to call their Lord-
t. ‘ll% stition. It was the assignment of errors in fact
11)e lt,l to the House of Lo. rds. assigned was the first
1,-tise. IN heard of errors in fact that
:„°// submitted that their Lordships' House, as
"141(117e,,-' 4ppeal, could not deal with errors in fact. He
„On tl),.„.st "cal theplea. (The Hon. and Learned Gentle-
fo read the pleas from pages 80 and 82 of the appeal.)
e„l.°?i the defendants had pleaded an abatement in
6et were of the suit, and the authorities upon that sub-
tlllh_atjaL.tcLob:cifanhuipnad in " goinyn's Digest." He trusted
1a I:,t,•%ourt of Queews would hold that the judgment
o Bench on this subject. was correct.
"!°11:1Y11'.8 nigest,'.' in page 597, there was the case
tEk ick:Pae v. Sir John Moore," and the point there de -
was that error in fact was not assignable in the
th,equer Chamber. That case was brought before
i„
b, .tid tirt of Queen's Bench in the case of " Castledyne
in 4th Barnewall and Adolphus,
_p._97,
ehtint and also raised in the " King v. Wood," in
4
4.4 Y ' S Reports." In that case the ground of error
their `Qe separation of the jury before they had given
lthe verdict. There was an application fo- a new trial,
(o afterwards a writ of error was brought into the
4Ra° r Queen's Bench, and that court gave judgment
4 the es who the writ of error.
ese
kld Was then aarti writ of errorbroug toht the House of Lords,
tioll °no error assigned was the fact, and the ques-
,NB P" to to the judges was, whether the error
Ito 811 ab as to enable the House to take
Kb, "'tlaideration the error of fact ; and the
hees Rare it as their opinion that it was not. The
111t€‘11 deckled that Parliament could not decide the
toir'
0431PI3ELL—Was it decided that in a case of
tobis there was no remedy by writ of error ?
I,l4,sedltrronsmit-GENERAL said that it was.
‘ll"ol4PC,C4,strnei.r. thought it monstrons.thapteethledseueibjdeecdt
its n-, 'ate no remedy if the Court of Appeal
41'4'0111h/1 by writ of error. If there was an assign-
tor error coram nobis it was upon the record.
I'or 01311°VGliAst—Was not what was assigned for
The -re Ministerial than anything else ?
44tlin ATToutiEv-GENERAL was not aware of any other
th -rity • he merely mentioned
steel"
LosesP the subject, an
for the purpose of caclling the attention of
k~etis to thenrf. Now with regard to the con-
? to brdshie placed upon the Act of Parliament, he
Actile first place call their Lordship's attention to
Act
G 111. 87. The enactments of that
eo. cap.
toet Intended to apply to all indictments; its object
„"„Illi'v,;,?revent grand juries in Ireland from returningA
;' the .;'out examining witnesses. Then came the Act
A hit and 241 Victoria, cap. 37, and he wished to di.
q,trneo'r Lordships' attention to the preamble of this
rd chile Particularly after what had fallen from the
*;,-1!f Justice of the Common Pleas.. that morning
o 11011ta 01g, JUdgment, before their Lordships. There could
fit;tibt but that the proper, way to construe an Act
ots :43,ent was to look at the preamble and enact-
'"axi.tl collect from them the intentions of the Le gisi
114.3 t A,e'et'_'aw the preamble said that after the passing o
giNs thwas, no bill should be returned to
.a grand jury
4,-"e witnesses had been sworn; and it went on to
f p."llereas the viva voce examination of witnesses
I,l‘°lll 43' salutary and whereas great delay had arisen
'"clt 'wearing- them in court, for the re;-
i4ll`l2it tbth_areoy, this Act had been made. '
LiiiTstlengteo Went on to enact that in all cases of bills of
6 ..110,L, tup to grand juries in Ireland, before such
(jorthe cl b sent up the clerk of the Crown at assizes
4 4r, tkt of the peace at quarter sessions, shall be en-
it,%vat the back of the indictment the names of W.it-
('lll‘ ierastio...cl the jurygrandthtwere authorised to examine
be administered by the fore-
rt:toe 04:80pohn
to be
enacting part went on,
oteltit thatethuroa.th so administered was to be in
wit goath reqenired by the Act of Geo. lIL, to
th'ttleF: ‘elt no foreman or juryman shouldexamine an(?,
it;, e *nose name was nut so entered. The clerk
the
'ietlspa-Wa had in this case endorsed on the back of
ottt ett the names of the witnesses, and the question
hen the clerk of the Crown of the Court of
Ivt,4l:lBe,:jeteh in Dublin had endorsed the names of the
jti:tissB4ltt,(4l the back of the indictment, and those wit-
Ivi?' if +0 been sworn and examined before the grand
' .41? 'a pro • of the law had not been complied
vinous
k% n Would refer their Lordships to the case of
-to -nu
11 and eresswell, p. 643,
t% the randy, 7 Barnewa
kiltreedillEtruier in which Acts. of Parliaments ere to bee
44174 It was there laid down that to construe
4„'etions -rarliament it was necessary to take the con
pt`,,t ; totonly of the preamble,
.but of the whole
tiit,;llllll);e'twi, hell a clause was More extensive than- the.
-,11p04' i',..LeYWould put the more extended interpreta-
th" L.`", if necessary-, to give the Act effect. Now
i°llxid that the object was the substitution of
act at then the Acts of the 56th George 111. The pro-
'l%‘4' 114, end said nothing about the clerk of the Crown
; it's4r the clerk of the peace at quarter ses-
-41
tukt toPly said, " tbe clerk of Legislature ace orssthnes
0 44hatitge Crown." The object of the
l)lnc'ute one mode of swearing for another, and it
th,r-atded to apply to all indictments. There was
ip„tclinview to be taken of the case, which was, that,
qg to strict legal meaning, the Clerk of the Crown
41,144. iZen's Bench Dublin, was in fact the clerk of
Vitlie In the case of the " King and the Justices.
ti:rt vi,t.se;" 3d Barn 11 and Adolphus, p. 300, in a
'sklti,-"ieh the Sheriffseaof Middles'ex _applied for com-
k,Ashi4l for the loss of gaol fees, under an Act of Par-
14:NedWilalich stated that such compensation should be
tti 8I and
justices at quarter sessions, subject to
t)tt the judges of the assize, the justices refused
tites-"Vensation. on the ground that there were
pro cif assize in Middlesex
, and no judges of as-
th:thes Pe„PIY so called. The question then arose,
t4l4sises" for Court of Queens Bench was not
‘d t, keg e the county of Middlesex, and whether the
that Court were not the judges of assize.
teks4
operdEia, in giving judgment, said that the
the Court of Queen's Bench and of the Court
t'-4tltv"" ?leas were the judges of assize for the
Vtittliavtilecf, 'Middlesex within the meaning of the Act of
t4e4, Then, if that were the case, and the Court
li4l)ovi-ueneh was the proper Court of Assize, then
AGlatll They of the Act had been literally complied
eY found, therefore, the intention of the Le-
Nttift, 4,?.?illeiding with the strict legal meaning of the
thitr„he
would their Lordships ould d!-
ILSSize Pallance,