The Sun.
London, England, 1844-07-06 00:00:00

THE STATE TRIALS.

(THIRD DAY.)

HOUSE OF LORDS..-(THIS DAY.)
WRIT OF ERROR.
THE QUEEN AGAINST O'CONNELL AND OTHERS.

Their Lordships met athalf-past ten o'clock this morn-
ing, to hear the further arguments of Counsel in this
case. Counsel having been called in,
The LORD CHANCELLOR (addressinW Sir Tho nas
Wilde) said he hoped he bore in mind that the Judges
would have to go on circuit on Wednesday, and if the
case was not concluded, so as to enable them to give
judgment before then, the case could not be determined
until next session.
Sir THOMAS WILDE said that he fully bore in mind
the importance of having the opinion of the Learned
Judges, and with that view he had compressed his al•
gument as much as possible. But it would be impos-
sible for them to omit anything which thoy considered
material to the interests of their clients.
The Loan CHANCELLOR said he only mentioned it
that Counsel might be aware of the circumstances. He
was only anxious to bring the case to a conclusion, in
order that whatever the judgment might be, the part is;
might have the benefit of it ; but they could not do that
which was impossible—they could not hear or deters ine
this case in the absence of the Judges, and if the argu-
ments were not concluded before Wednesday they must
be suspended, in order that the Learned Judges might
ar them.
Sir THOMAS WILD/11 said they were there to present
the defendants' case to their Lordships with all that pro-
perly belonged to it, and if they omitted anything that
was material, they would not being doing justice to the
parties or to their Lordships, -for the decision would not
be regarded with confidence.: They' bad as -much as
possible shortened their arguments, bid they could not
omit anything which they considered material. He
hoped their Lordships would devise some expedient.
The LORD CHANCELLOR said they could not possibly
put off the circuits, because the effect of that would be
that a number of prisoners now in gaol would be
set at liberty at the commencement of the circuits. He
thought it his duty to state this for his (Sir T. Wilde's)
consideration, and having dune so he' ad stated all that
was necessary.
Mr. HILL then resumed his argument, and said, he
felt that he laboured under a great disadvantage in ad-
dressing their Lordships, because he knew how difficult
it was to argue an important case with an impres-
sion on one's mind that necessary matter must be
omitted in endeavouring to compress arguments which
would perhaps be prejudicial to the interests of his
clients. Their Lordships would recollect that when he
was interrupted yesterday he cited the case of the King
v. 13urridge, in 2d Lord Raymond's Reports, p. 1,364,
and also in the Bth vol. of the " Modern Reports," p.
245. This and other cases showed that a party had an
undoubted right of challenging the array. They esta-
blished the principle that the Courts would not prevent
the defendant from exercising his right of challenging
the array. He did not anticipate that the right to
challenge the array in cases of special juries would be
denied. In Ireland there was a case which was a great
authority on that point which had been argued in the
Exchequer Chamber before a writ of error, and which
admitted clearly the right to challenge the array in
cases of special juries. It was the case of Nowland v.
King, 1 Hudson and Brooke's Reports. p. 164. In that
case the challenge was on account of the unindifferency
of the sheriffs ; but the case of the King v. Edmunds
was in that case brought prominently before the Court,
and the doctrine laid down in the King v. Edmunds was
limited to this point, that there could be no challenge of
the array on the ground of the unindifferency of the
Master of the Crown-office. The right to challenge the
array was the rule. This was the exception. Now he
would ask what ground was there here why the
challenge of the array should not have a useful effect
when such objection was made to the array itself? In
the case of the " Queen v. Fitzpatrick," which had been
tried in one of the Irish circuits in the year 1838, and
which was to be found in 1 Crawford and Dicks, p. 73,
there was a challenge of the array, on the ground of
vices in making up the sheriff's book. The Chief Jus-
tice in that case expressed an opinion against the validity
of the challenge, but reserved the point. As, however,
the defendant was acquitted, the point was not raised.
In 1839, in the case of the " Queen v. Conradine," 1
Crawford and Dix, p. 56, there was also a challenge of
the array on the same ground. The presiding judge ex-
pressed an opinion against the validity of the challenge.
But in both cases the opinion was grounded upon a
reason, the force of which he confessed he could not see,
viz., that the provisions of the Jury Act, 3d and 4th
William IV., were directory and not imperative. Before
the statute of the 3d and 4th William IV., the sberiff in
Ireland was as unshackled as he had been in England
before the Revolution. There was no interposition be-
tween him and the jury until they came into the box.
The sheriff had an unlimited discretion to arrange the
panel from any of the inhabitants of the county he
pleased, subject only to the challenge of the array. After
the Act came into operation it became his duty to ar-
range. the panel from the jury book, and to confine him-
self to the names found there. He submitted that these
directions were imperative. But admitting, for the sake
of argument, that they were merely directory—
The Loan CHANCELLOR—Whatever is directory is
imperative. The question is, if it is essential.
Mr. HlLL—Exactly so, my Lord. I was merely
adopting the language which has been used in discussing
this question.
The LORD CHANCELLOR-Whatever is directed to be
done by an Act of Parliament is imperative. Whether
it is essential to the validity of the act is another
question.
Mr. HILL would adopt his Lordship's term, that the
provisions were essential, and use the term in the
strictest sense. But he was now arguing the point as if
they were not essential. The question nas simply this
—had the sheriff, in making the array, acted as a statutable
officer, under the Act of Parliament, or according to his
common law rights and duties. If he acted as a sta-
tutable officer, he was bound to obey the provisions of
the Act. It could not be said that this part was merely
directory, and not to be obeyed. It was the duty of a
public officer, above all others, to attend to every part of
the Act of Parliament ; and when the sheriff arrayed
the panel, under the provisions of William IV., the jury
book must be the foundation of that panel. He there-
fore submitted that he was limited in the selection of
the panel by the statute. If the book used was not the
book provided by the statute a fortiori:—if it was' tainted
by fraud—how could it be considered that he hid exer-
cised the powers confided in him by the common law ?
It was charged in the challenge that those names had
been omitted by fraud, and the charge was admitted by
the demurrer. They had a right to presume
that nine-tenths of the names had been omitted
from the book ; and although they might con-
sider the sheriff was acting as a common-law officer, was
it not a crime in the sheriff to take a book from, it might
be some stranger, in which the greater portion of the
names qualified were omitted, and to limit his list by the
list in the book—a list prepared with the fraudulent
intent to injure the parties. He would suppose the case
to have occurred before the 3d and 4th of William IV.
Supposing that a party had represented himself as act-
ing under a statute,:and by colour of law, and by that
had prevailed upon the sheriff to act upon a list made up
by fraud, the sheriff might have acted bona fide, but still
he had acted in such a manner as to taint the panel with
a vice, and the panel was therefore bad. Now he sub-
mitted that the statute was not merely directory, but
that its provisions, as regarded the present matter, were
essential, and all must be observed, or the whole was bad.
If their Lordships looked to the 11th section of the Act
they would find that it enacted that the sheriff should
not, in answer to a writ of venire facias, return the
names of any persons not in the book of jurors for the
then current year. All parties, the sheriff, the coroner,
the heritor, and the clerk of the peace, must refer to that
book ' • in a subsequent statute, however, it was passed,
as it had been found that owing to the provisions not
being understood, in many counties there was not a
good jury-book ; and that statute gave power to act
on the jury-book of the previous year, and that if there
was no good jury-book then resort might be had to the
state of things as they existed before the 3d and 4th of

William IV: If it was necessary for his case, which it
was not, the presumption would be that the officers had
done their daty, but it was immaterial to consider that
view of the case.
The LORD CLIANcELLon—What was the last Act.to
which you referred, Mr. Hill ?
Mr. HILL—The 4th and sth of Will. IV., chap. 48,
which was an Act to amend the electing of jurors in Ire-
land. Now his argument was this, if it was necessary
to prove the provisions of the Act, or if it was essential,
he bad proved it ; but he might have added the proof he
had already given. This very section provided that if
the names of persons, whose names were not on the

jury book, found their way into the panel, and no objec-
tion was taken till after the trial, the trial should not be
set aside on that ground. It was impossible that the
Legislature should have expressed their will to confine
the sheriff to the jury-book in stronger terms. It was
evidently intended, by those who framed this challenge,
that where the name was not on the jury-book, the trial
should be considered as bad.

The LORD CHANCELLOR observed that there could be
no doubt that the names were to be taken out of the
jury-book.
Mr. BILL considered such to be the case, but that was
not the opinion of the Judges in Ireland. As the list
was to be taken from the book, it was necessary to con-
sider what the book was. They said that, owing to the
circumstances he had stated to the House, the present
aas not the book. Now the jury-book was the mere
copy of a list given by the clerk of the peace to the
sheriff, and the recorder was to make up the book from
the collector of cess.
The LORD CHANCELLOR—Won't it go to this length,
Mr. Hill ? The names are to be returned by the clerk
of the peace from the collector of cess, and then they are
handed to the recorder. Now supposing that the cess
collector had fraudulently omitted a name, or that one
less was handed over to the recorder, you must go the
length of saying that would vitiate the book and support
a challenge to the array.
Mr—HILL apprehended that it would. He thought
that the great 'onion of the miscarriage bad arisen in
the present case from raising tho wrong issue. The
question here was simply this—Was there a document,
hich was a valid, honest document, furnishing the source
from which the panel was drawn ?
The LORD CHANCELLOR—There are two questions
which you have raised ; you-are abandoning one. You
contend that if by accident one name is omitted, that will
vitiate the list ; but you allege upon the second that the
names were omitted fraudulntly, and with a view to
prejudice your client.
Mr. HILL said he supposed he was not fortunate
enough to express himself clearly. Yesterday he intended
most expressly to state that neither the record, nor he
individually, raised that question at all. He was not ,