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

called upon to speculate as to how much of disobedience
to an Act of Parliament would be endured ; but he eon- I
tined himself to the allegations upon the record, which
were that the party was prejudiced by it, and that the
list was tainted with fraud. It was here made a part of
the challenge, that it was to the damage of Mr. Steele.
It was stated that the ef&et was to injure Mr. Steele,
and it was stated that the means were a fraudulent omis-
sion of certain names from the panel.
The LORD CHANCELLOR—You have a right to put
extreme cases on both sides.
Mr. HILL availed himself of that right in inquiring
into the nature, extent, and operation of a challenge to
an array. Suppose all the names were omitted but ore,
there would be something then which called for redress;
and the remedy, he apprehended, was the challenge to
the array. Even if the limitation of the panel were
honest, it was unsupported by law ; if it were dishonest,
he did not see how any question could arise. He would
suppose that in this case the challenge would produce
the greatest inconvenience. Was that a good reason for
denying to the subject this ancient and most beneficial
remedy ? Was it not a far better reason for amendine;
the Act of Parliament, and preventing it from producing
consequences which were never contemplated by the
Legislature ? Let the Act be amended. As a predeces-
sor of one of the Learned Judges had said, " Parliament
was always at hand to rectify mistakes." But incon-
venience, as applied to this particular case, there was
absolutely none. He made no other imputation upon the
Recorder except that a great default bad been com-
mitted through his not carefully superintending the list,
and the only queetion before their Lordships was, what
had been the effect of that default ?
The LORD CHANCELLOR—You can say nothing as to
the effect of the default, because we have not the facts
upon the record.
Mr. HILL said he was in the region of actualities.
The effect was that there had been a miscarriage; it ass
the effect in which he was interested, and not the cause.
He would now call their Lordships' attention to the
judgment delivered by the Lord Chief Justice of the
Court of Queen's Bench in Ireland on the important
point of the challenge to the array, as set forth in the
Appendix, p. 119. The Lord Chief Justice commenced
his judgment by stating the array as it was set forth,
and considering the provisions of the Act of Parliament.
Ile says that the Recorder is a judicial officer, and that
some other officers connected with the subject are mi-
nisterial. But the Chief Justice did not distinguish as
to whether the Recorder was acting judicially in the
particular point that was under consideration, or a he-
ther he was not. For he could not consider that some
ambiguous expressions which fell from the Chief Justice,
that he would consider the record, after he had adju •
dicated on mete name, and when that portion of his
duty had arrived which he is to cause to be
done by others, as acting judicially. He could not be
acting judicially in causing persons to assemble
these names together, to put them into a list, put
them into a proper form, and have them written out
in a clerkly hand, and deliver them to the Clerk of the
Peace. There was nothing very judicial in this part of
his duty, and it was this very part of the duty of the
Recorder to which this challenge applied. The Chief
Justice goes on to say,,that in the statute no farther
proceeding appears in any part of it to limit or control
the powers therein mentioned to have been provided, ex-
cept as specified in the Act, and then describes the mode
of proceeding. " A party may oppose the claim of a
person desiring to be admitted as a juror, and it is for
the Recorder, exclusively and finally, to make an adjudi-
cation whether he is to be admitted or rejected." Ad-
' mitted or rejected to what Not to the jury-box, but
to the jury list. What was the course of proceeding in
the case of votes for aldermen for the city of London ?
Was the wardmote at which the votes were adjudicated
conclusive of the matter. Might not the question have
to come before the Queen's Bench ? Une Learned
Judge present must recollect a case in which a long and
expensive litigation was carried on for the purpose of
ascertaining the validity of certain votes, some of which
had been allowed and some had been disallowed by the
Recorder, acting as assessor to the Lord Mayor of Lon-
don at a wardmote in the City. In 999 cases out of a
thousand the wardmote might do all that was requisite,
but the thousandth case might arise. The Chief Jus-
tice then went on to say that the Recorder is elected by
the Legislature to decide cases of this description : " It
is a high and important privilege with which he is so
invested, and with it is in a great measure connected
the flow and fountain of justice, and the purity of the
administration of justice." 'Then the more important
the duty, the more important it became that they should
not shut out any means of examining whether it was
correctly or incorrectly performed ; and when the par-
ties chiefly interested in the matter, namely, the parties
in the suit, were not present, how could this be done ?
After stating that the Recorder's decision is final and
beyond appeal, the Chief Justice states that "'another
duty is imposed on him, that is, that he shall make or
cause to be made a new list, arranging the persons
according to rank and property ; and the Act directs,
that in the newly-arranged lists, he shall include all per-
sons who, on a previous revision, have substantiated
their claims before him." But he would ask was there
anything very judicial in this duty ? The Chief Jus-
tice then proceeds as follows—" 'rhete is no imputation
in this challenge, that the omission which was said to
have taken place on the part of the Recorder, was the
consequence of improper conduct malversation, or cor
ruption—none was imputed to him. But it was said the
Act required he should make out the new lists according
to rank and property, classing the persons according to
such order required by the Act, and that he should do so
with respect to all whose claims should be allowed. I do
not know how far this is to be carried, but if I understand
the argument right, they push it to that extent. Here
were two duties imposed on the Recorder. First, he is
to revise the lists delivered to him by the collector, and
he then is to make a new list according to rank and pro-
perty ; and he was equally bound to have made no
omission, but to have included in the classification of
rank and property, every individual, just as much as
he was bound by the-Act to have allowed or disallowed
his claim generally to be received as a juror.
Now bow far is that to be carried ? Suppose the Re-
corder had included every person whose claim had been
allowed, • but suppose lie had omitted to class
them according to rank and property, are all
subsequent proceedings to be avoided, and to
be the subject of a challenge to the array, because he has
omitted to follow the directions of the statute

this one instance? uppose he did make a classification
according to rank and property, and suppose he admitted
all those persons entitled, will it be contended' that lie
has made a wrong classification, became, by the judg-
ment he has come to, he has put men worth 2,0001. at the
bottom of the list, and put at the top men not worth so
many hundreds. Unquestionably he would have de-
viated from the directions of the statute, but is that a
reason why all those proceedings should be null and
void, and why, if a trial took place, it shouldbe in the
power of either of the parties to show that part of the
Act had been deviated from, and that, therefore, the
jury panel in that particular case was good for nothing?
If the argument be correct, the consequences must go
that length, and I cannot help thinking that such a decision
would be most iniurious and dangerous to the community."

One of their Loidships had said, that one extreme may
certainly be looked at ; but they had also had the kind-
ness to say, that the other extreme may be looked at
also. Surely, it was not the mode to arrive at a just
conclusion—to take an extreme case on either side ; but
this remark must be made, that the state of facts upon
which the Learned Judge hypothetically argued had no
relation to the state of facts iu the present case. It
might be an interesting legal speculation, but which
might as well be made in the next case that came before
him as in the present. The Learned Chief Justice said,
that this was a judicial act which could as well be per-
formed by an inexperienced clerk as by the most
learned judge. The Learned Judge did not
say what was to be the consequence, if there
was no list, or a ' mutilated list, or a list
tainted with fraud from beginning to end. The
Learned Chief Justice went on to say—" I do not mean
to question whether the special jury panel may not be
challenged : several cases were cited, in which it was so
decided do not mean to controvert that, the more so
as it seems not to have been pressed on the other side.
But I observe that in those cases a protest was made, up
° -
holdino• their right, and nothing was done to remove it.
It is not because the challenge was to the array of the
special jury, but because the Recorder has not followed
out the directions of the Act of Parliament, and that

some person unknown has had the opportunity;
of making an alteration
,in,_the.. li:its so. returned,
the sixty persons whose names had been allowed
by the Recorder do not now stand upon the list."
Be seemed to allow by that, that there did exist a right
of challenge ; but Mr. Justice Crampton, in his judg-
ment, gave it as his opinion that no such right existed.
Thus. there seemed to be some doubt about the matter
in Ireland ; he trusted there would be = none in their

Lordships' minds. The Chief Justice went on to say
that " the Recorder was not answerable for that ; no

blame was imputed to him in the way of anything cor
rupt or fraudulent.° But were there no cams of mis

chief arising, except what arose from fraud ? Might it
not be produced trom want of care or caution ? The
consequences of such want of care or caution might he
worse than where there was corruption or fraud, though

the parties might not be so inuell to blame. Then ate
Chief Justice went on to say, " There is no averment in
the challenge that he did not make out the lists accord-
ing to the Act ;" and he says that " the Recorder is not
an officer of the Court." life had to deal with this
point before by anticipation, when he called
their Lordships'. attention to the great- legal fact
that a challenge to the array was a remedy before those
Acts'were passed ; whether the Recorder was or was not
an officer. of the court,. was of no consequence, because

it was not a contest in personam, but in rem, a mere en-
quiry into a docunfent over which the Recorder had
control fur a certain time ; whether the Recorder was an
officer of the court or not was immaterial, because the

court by allowing the challenge had the power to get rid
of the evil done, whether by the Recorder or by any
other person. The Learned Judge then asked the
question," who is to try his (the Recorder's) inditf,remy
lie is not here or represented by counsel." Ihis ques-
tion arose from an entire mistake as to the issue. 'There

the challenge to the array was ler indifferency—was the
sheriff represented ? who ever heard of counsel for a
sheriff in a challenge to the array ? He ap-
pealed to their Lordships' experience. The sheriff
was no party to the issue, and a challenge to the array
rose on issue, in law or in fact, between the parties. Ile
did not wonder therefore that the mind of the Chief

Justice came to an erroneous conclusion, because there
was no surer means of arriving at a wrong conclusion
than a mistake of the issue. 'I he Learned Chief Justice
then commented on a proposition made by counsel for
the defendant, to put back the names for the purposes of
that trial to avoid all question, and that the array should
be as it would have been if those names bad formed part
of the list. It was impossible for the defendants to give
a clearer proof that they did not resort to this challenge
for the object of delay, but that they were desirous of
obtaining a jury in which the law would have just con-

fidence. The Learned Chief Justice remarked that that
offer was not accepted. This fact appears
the judgment of the court below, that such
an offer was made, and refused on the part of the
Crown. Far be it from him to presume for one moment
that this offer was rejected for any improper purpose ;
merely used it in order to show the bona fides with
which the challenge was made. It also appeared from
the judgment that this was brought before the Court in
a summary manner. The parties did not wait till the
proper time arose for making the challenge, which could
only be done when the jury appeared in the box. the
Court were of opinion that they had no pow, r of iuter-
fering, that they could not interfere in that way, whether
they could so interfere was not now the question, but the
less power they had of interfering summarily, the more
reason there was why they should have allowed the civil-
lenge. It was said as a reason why the challenge should
be overruled, that this was a general list not applicable
to this particular case, but to all cases occurring in the
carrejlt year. Be that so. If it were a list made.OP,
with fraud egainst all the suitors of the case, or a elasscs
the suitors of the Court, whose suits might conic
during the year, instead of being a wealereason, he should
have thought it a strong reason for allowing the chill'
lenge to the array, for, Le it recollected, the mode-ill
which the party might avail himself of the defect in the
panel must be by challenge. But it did not id
possible all follow from :here being achallenge to the array in this
wouldp sb
case,Bu that
greatestethere challengehomiltty to their
e oLtotirder:
ships, he must be permitted to proteee against the or
position that their Lordships would' entertain such $
question. Their Lordships would not entertain such $
motive as inconvenience for one moment. If incon'
venience arose to the course of public justice-from their
having their challenge allowed, let the Legislature fie••
the remedy, but let it not, on any account, be done at the
expense of justice. He (Mr. Hill) did not think himself
justified in detaining the Right Hon. House by corn'
meriting on the judgments of the two puisne judges, wilt°,
agreed in opinion with the Chief Justice, but he would
call attention to the judgment of the fourth judge!,
namely that of Mr. Justice Perrin, who was °'
opinion that this challenge ought to have bee°
allowed. The judgment of that learned and eel'
nent person appeared to him (Mr. Hill) to ad'
vance argumerts which were well worth the
serious consideration of that Right Hon. House. That
Learned .Judge seemed to consider that the words which
h( (Mr. Hill) in a former part of his argument had cited
of the Lord Chief Justice, might either bear a different
construction, or the reporter might be wrong. Arr.
Justice Perrin then called the attention of the Court t°
the nature of the allegation made. He said the
corder knew no more of the error committed than he
himself did, and therefore there was not a shadow 43'
groufid to suppose but that lie had been imposed upon!
Yes; he was unfortunate enough to allow somebody tl).•
impose upon hen, and what was the result of that? P
appeared in the judgment of Mr. Justice Perrin, who
appeared to him (Mr. Hill) to address himself e'er/
closely and logically to the real question. What was
the result of the matter? That the general list of the
Recorder was, by some means or another, an inaccurate,
list. The Recorder, then, was a merely ministerial
officer on that-occasion, and was no more answerable fcC
that error than the Learned Judge himself. Then he
went on to declare what the nature of the allegation OS
to which he (Mr. Hill) had already called the attentitl
of their Lordships. An error had been made in they
part of the proceedings, which was of the most important
character to the interests of the parties accused. 117114
should it not be corrected ? What possible reason COm
exist that the error should not be corrected ? What °
monstrous Act of Parliament must that be which de:
prised an officer of the power of correcting his oteU
ministerial error? But it was said the challenge was et
novel one, and founded on an Act of Parliament O.!,
very recent date. He (Mr, Hill) could not suppose 10'
one moment that because au Act of Parliament -had been
in existence only ten years, it was to be set aside because
of some point of form. The real question was, not "lily
was, involved or not involved in form, but what was the
principle of the. Act, and had that principle been rt_r„
spected and complied with? Mr. Justice Perrin had
strongly and eloquently laid it down that he could n°l,
see any objection to this ministerial error in the jury
list being corrected ; and he (Mr. Bill) had every con'
fidence that that Right Honourable House viould take
precisely the same view of the question. But he (W'
Hill) would not weaken the effect which be was sure
Mr. Justice Perrin's judgment must have made up°
the minds of their Lordships, by adding anythlt
to what had fallen from that eminent person on tLe Si! e
ject of challenge, but proceed very briefly toow
n
another point which struck him as being most importat°'
Their Lordships had heard much argument upon thee
effect which would be produced if only one count in °-
indictment was good, or rather if there. was an indict-
ment with one good count in it, containing also counts
which were held to be bad. He would not urge that
point ; but would implore that Right Hon. House not
decide as to any suppost d practice. Practice, it shell'
be recollected, was at all times a mode of administering
the law to be watched with the greatest care and anxil
What was the memorable answer of Chief Justice Pre?
in the great case respecting the use of general warraniin
The practice, from the time of the Revolution door°, b;
the period of the action, was vouched to show the rtfte,
of the Secretary of State to the use of general warmth
The submission of all parties who had been Made in
subject of those general warrants was strongly argue the
Court. Their Lordships would recollect what we° is,
answer of Lord Camden. He said, "It is the sohino..
sion of povertye to power." And that observationneo
phatically applied to the present case. He (gr•
had made inquiry as to what was-the cost to the pantie,
in this ease of the volume which lay upon their LoreA,
ships' table. He spoke of no other expenses, such 0
procuring copies of various documents, paying fees, el
but he merely alluded to the printing of this volume, and
the expense of that alone was 4001. Was that an answerf
to the observation that difficulties arose in the way 0
writs of error in criminal cases? Their Lordships knee
e
that that item, heavy us it was, sunk into insignificancj
compared with the many other items that would
found in the bill of costs to be brought against these au
•
fondants. It was a question of poverty, and not a tilless
tion of the parties being convinced by their law advisers
that they had no remedy. In. many cases parties were
punished, and the punishment was at an end before
)';
was possible to ascertain whether they had been rightly
or wrongly convicted. flow frequently did cases arise
in which points of law were submitted to the considere;
tion of the twelve judges, and this proved that there el°
no real remedy upon writs of error in such cases.
Lord CAMPBELL—We will suppose that an indictment
for murder contains several counts, which is frequent)i
the case. How is the verdict entered ? Is the verdict
,
of guilty entered on all counts ? I am supposing al:,
the judgment, for some purpose or another, is fornea"f
drawn up. I remember on the Oxford Circuit a case()
this kind, Miss Blandy's case, but I do not recollect
k
whether on the several counts in the indictment verdicts
were entered. Strictly speaking, if there is only one
e
felony upon which evidence is given, a verdict of guilty
can only be entered upon one count.
Mr. HILL---That a verdict of guilty should be entered
on only One count is our argument.
Lord CAMPBELL—Tile judgments were always
extremely sheet, there being no fee to be paid for thee"
according to their length.
Mr. HILL—He was arguing to their Lordships that
where there was a large question of property involved.
the case was a difficult one. Persons engaged in such
cases had generally property to carry them on. 13°te
how did this apply to criminal cases? He trusted olei
Lordships would pause before they gave effect to thec •
doctrine that indictments might be drawn with a deer ci
of looseness in the use of terms which had been 'adopt%
in the present case. This was a matter which had be j
brought for the first time under the consideration 4."
le
their Lordships, and he trusted that this system wooly
receive receive a final check by the judgment which it awaited
the Lordships' hands. When he looked at the record'.
lie found great difficulty' in addressing his mind to tee
subject, owing to the immense quantity of words contained
.in the various counts of the indictment. The first coul/ic.
occupied fi te pages of a large and closely printed bolo
Be could not liken it to the three grains of wheat tin
bushel et' chaff, not that the illustration would fail.
consequence. of the deficiency of chaff, but of the ° a
sence of the three grains of wheat. His Learned Frierse
had addressed their-Lordships upon the sixth count. 1111;
late case, which had occurred in the Court of (Pee-,15
Bench, the Court had directed that vituperative adverbs
should be disregarded. And, probably, the Learned Jag:o
in that Court would place vituperative adjectives on 11e,
same footing. What was there in this count which
signaled an offence ? . Looking to the whole of T;
transaction, without baying the mind disturbed by What'
Bentham called " dislogestic words," the whole cone. •
was deficient. It was merely an assertion that certain
persons assembled large meetings, which they must le
pose to be peaceable, because, had there been growl('
a charge or a breach of the peace against them, the
,°P;:
portunity of still further extending that immense intbeee
ment would not have been lost sight of. He fo,ti4--pa
throughout the whole of this indictment a French..e
form of expression. It was impossible to read this In ,
dictm with the wonderful al:a
logy between the language in these indictments, ° 0
that used during the time of the French Revolution,
.16.
the indictments, if they might be so called, of those
Ile could almost suppose that those who had drawl 3 us
this indictment had placed the Ai oniteur of those &L
before them. The defendants were charged with a %es
monstration of physical force. Was that English or "
it French? This reminded him of a person who w9°Elee
dieted in France before the tribunal constituted by ree,
National Convention, for having used certain maraejf-ea-
Another person was charged for attempting to e-eeee
ralise, by sowing lucerne instead of wheat. In early Pond
there was a disposition to use figurative langtiaane-
expressions in drawing up cases of indictment. %-rge
stone stated that censtructive treason included a e"- to
of attempting to accrouch on the Sovereign power. b.
accrouch. on the Sovereign power, translated in EllgTsee
was a usurpation of the prenigative ef the Crown.
tree of treason, however, was ultimately pruned to real
sonable dimensions. 'They were accustomed to BPPetee
to the custom of their ancestors ; but he wished teula
would always appeal to propur, occasions. He Cecece
have wished that in all cases of past statutes such juebi,
and wisdom had been shown as had been "the
bited in
,the statute of treason of Henry that
Third: By that statute it was enacted n,
an overt act must be proved to constitute trieagee
What had been the consequence whenever iu had nof
attempts had been made to enlarge the construcrht in
the statute of treason? Although those attempts 1n.g5000
those times have Leon legalised by statute, yet as, ho
as those had times had passed away those statutes, re,
been swept away, and that venerable statute hru"sted
enabled the corpus juris of the law of treason. He t weat
their Lordships would do for the law of conspiracy oc
their ancestors had done for the lair of treaeon(s_ ne
trusted their Lordships would so construe the l;ring
conspiracy that no man should be subjected to sul!,hene
the penalties inflicted by the law of conspiraq "