The Sun.
London, England, 1844-10-29 00:00:00

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etir

LORD DENMAN'S SPEECH.

THE JUDGMENT OF LORD DENMAN IN
THE CASE OF °CONNELL AND OTHERS
AGAINST THE QUEEN. as delivered in the
House of Lords, Sept. 4, 1844 ; with Notes, a Preface,
and Additional Observations. Edited by David Leahy,
Esq., one of the Counsel in the Cause. London,
H. Butterworth.
This is a most acceptable and important contri-
bution to the political literature and constitutional
history of the present times. The " preface" does
great credit to the style and legal acumen of its
editor; and inasmuch as it embodies in a terse and
concentrated form a review of some important facts in
the history of the case hitherto overlooked, or not
sufficiently noted by a large body of the English
public, we make no apology for here repeating it.
" Considering the excitement with which the recent
state prosecution was accompanied from the beginning,
and the importance which was attributed to the ultimate
result, it was naturally to be expected that the final judg-
ment of the House of Lords, upon whichever side it
might happen to be delivered, would excite the censure
of that party which had been unsuccessful in the litiga-
tion; and such, although to a very small extent, has been
the actual consequence. It is not intended here to re-
argue the questions which have been set at rest, or
again expose the reasonings, which have been repro-
duced is other quarters, after having failed at the bar:
still less is it deemed necessary to defend the motives of
those by whom the judgment was pronounced, or by
whose opinion it was supported. But as an array of all
the judicial persons, both here and in Ireland, who have
taken part in the proceedings, has been put forward, to
show that the great majority was in favour of the judg-
ment of the Court of Queen's Bench in Dublin, 1 shall
take leave to make one or two remarks upon that part of
the subject.
" And, first, as to the great question upon which the
reversal has turned,—namely. the validity of the sixth
and seventh counts,—all the Law Lords and Judges of
England, with the single exception of Lord Brougham,
differ from the unanimous opinion of the four Irish
Judges. The majority in mere numbers is twelve to
" On the question, whether a general judgment is
good, where some of the counts on which it proceeded
are invalid, as the Irish Judges gave no opinion, the
majority is less than it has been represented, consisting
of two Law Lords and six Judges, against three Law
Lords and two Judges, eight to five.t
" Perhaps; however, the only notice that ought to be
taken of such statements, is by referring to the nature
and office of a court of error, and the duty imposed upon
it by its own essential constitution. That the authority
of the Judges, whose decision is impugned, ought not to
prevent the freest examination of the grounds on which
it rests, is not only proved by numberless precedents,
and by the character of the proceeding itself; but is ex-
emplified in a striking manner in this very case, in
which four out of five of the Lords, who voted in accord-
ance with the reported opinion of all the English Judges,
overturned the unanimous judgment which the Court
below had given in favour of the goodness of the two
bad counts. That the House of Lords ought to listen
with deference to the Judges, but ought not to adopt
their opinions against its own conviction, is a truth
beyond controversy.l
" The following judgment is published in its present
form, on account of the vast importance of the principles
discussed.
" The question whether the true import of the expres-
sion for his said offences,' in the judgment of the Court
below, be that the punishment was awarded in respect of
all the facts indicted as offences, may be styled a tech-
nical, or possibly a grammatical question. But if it be
answered affirmatively (as the deliberative lodgment of
the Court below almost forces us to conclude), surely
nothing can be more alarming than the doctrine by which
alone the general judgment can be upheld,—viz., that a.
defendant may be punished for conduct which is not for-
bidden by the law. For, first, the proceeding is in itself
unjust ; and, secondly, the openness to abuse that besets
such a practice in any case, but especially in prosecutions
for libel, and for political offences in general, is too ob-
vious to require exposure.
" The other subject of this judgment is of a still more
interesting character.
" The Jury Act, passed by Sir Robert Peel for
England, in 1824, was welt adapted to secure a fair
jury ; in this country it has worked well, has stood the
test of experience, and no distrust or suspicion has at-
tached to its operation. There is no reason for believing
that it has not been strictly complied with in every single
instance.
"In 1833 a similar Act was passed for Ireland. It has
given rise to much dissatisfaction, and has been more than
once brought under judicial cognizance.
" In a case before Lord Chief Justice Doherty (R. e.
Fitzpatrick)§, the array was challenged upon the allega-
tion that the Recorder had improperly decided upon cer-
tain claims and objections. His Lordship thought that
these judicial acts could not be so questioned; an opinion
by no means at variance with Lord Denman's argument,
which, on the contrary, assumes its correctness. But the
Chief Justice of the Common Pleas in Ireland expressed
his intention to have reserved even this point for consi-
deration, if the party had been convicted; from a just
sense, undoubtedly, of the vital importance of preserving
the selection of juries not only from abuse, but even from
suspicion.

"In R. v. Conrail).ji the challenge to the array was
held radically bad, because the excluded names were not
specified. Mr. Justice Torrens at the same time took
the opportunity of extrajudicially pronouncing the ob-
ection insufficient, upon the ground that all the enact-
ments of the Jury Act were (as he thought) merely
directory. This epithet is well understood by lawyers as
describing such directions as, though enjoined by statute,
nobody is bound to obey.
" From this extrajudicial dictum it appears to follow,
that any book whatever, placed in the sheriff's hands, if
entitled the jury book, must be received and acted upon
as authentic and complete. Full license would be pro-
claimed, not only to every officer, hut to every other
person who could by force or fraud possess himself of the
lists, to do with them whatever he chose. If sixty names
had been objected to before the Recorder, but expressly
adjudged by him to be entitled to be retained, the ob-
jector would only have to purloin the list which con-
tained theta: or if hundreds or thousands had been, after
judicial inquiry, struck off by the Recorder, still, if they
could be fraudulently re-inserted, theyjmust remain upon
the list, as the material from which, perhaps exclusively,
the juries must be composed.
" Such a license, according to general report, has in
Ireland been freely assumed—to an extent, indeed,
which would seem to warrant a statement that the Jury
Act of 1833 has never been practically in operation in
that country. If a rigid enforcement of the Act should
be likely to produce public inconvenience, the extreme
laxity which is said to have prevailed is fraught with in-
numerable evils of a much worse description. When
public attention has been effectually called to the sub-
ject, the Legislature will probably devise some effectual
means of avoiding the inconvenience, and preventing the
injustice.
As Lord Denman observed, in the course of his
judgment, that he had committed to writing some state.
ments which he did not propose to address to the House,
I took the liberty of requesting to be favoured with the
inspection of the papers to which he alluded, with a view
to their insertion in the present publication. His Lord-
ship was pleased in the most obliging manner to comply
with this request, and to place the whole of the memo-
randa in question at my disposal, to be used according► to
my own discretion. As they were composed at various
periods during the short interval between the close of the
circuit and the day appointed for the re-assembling of the
House, they necessarily included some actual repetitions
as well as some brief expressions of opinions which are
more fully developed in the judgment as delivered. But the
unprecedented interest and admiration excited among all
parties by the delivery of this noble address—in every
respect so worthy of the transcendent importance of the
subject—induce me to believe that the public will be
happy to hear that I have exercised to the smallest pos-
sible extent the power of retrenchment with which I was
invested in so confiding and condescending a manner,
and that the papers in question, which are almost all
printed at the end of the present publication, contain a
full exposition of tho whole of his Lordship's opinions
upon every part of the case."

* The Lord Chancellor, Lords Denman, Cottenham,
and Campbell, and Lord Chief Justice Tindal, Barons
Parke, Alderson, Gurney, Justices Patteson, Williams,
Coltman, Maule, against Lord Rronghatn, and the four
Irish Judges. _

t The Lord Chancellor, Lord Brougham, and Lord
Chief Justice Tindal, Barons Alderson and Gurney,
Justices Patteson, Williams and Maule, against Lords
Denman, Cottenham and Campbell, Baron Parke, and
Justice Coltman.

$ Lord Brougham expressly stated in his judgment,
that the business of the Judges, upon such occasions,
was to give the House of Lords—not " advice"—but
only " information."

1 Crawf. and Dix., 513.
1 Crawf. and Dix., 513
(TO BE CONTINUED.)

A case was brought before Mr. Sheriff Campbell,
in the Small Debt Court of Paisley, last Thursday, in
every respect worthy of the glimmering enlightenment
of the middle ages. The parties lodged in one house,
and one of them having had some article or other pur-
loined from him, forthwith had recourse to the series
scriptorum to detect the supposed thief. Selecting a
mode of revelation which would not have disparaged
Joe Smith, the Mormon prophet himself to have in-
vented, a particular chapter of the Old Testament, in
which there occurs a vast number of proper names, was
spread open, and a key placed upon the page being spun
round for a few seconds by a jerk of the finger and
thumb, the name at which it stopped was thereupon
corl
st, tied to apply to the delinquent in the matt the
D a
pursuer in the action. He, however, on the e
that the key had been unfairly twirled,_ denied that the.
theft had been brought home to him but the other par-
ties, the defenders, having persisted in their accusation,
the pursuer thought proper to sue them for a
defamation of character. More in sorrow t"han ainivagQS for
the Learned Judge dismissed the CRS anger,
the. 19th century i i
boast of whilst benighted
has much to bo e.
Nl‘r
question Ignorance like thialingers in the land, yFAßtztEis.!:
EFFECT a or RAILROADS ON Posmilicte The Paris papers of Wednesday state that on Tuesday
lastst M. Dailly, the President of the Committee appointer',
by the postmasters of France,zt4ose.ther with M. Joni:and,
their delegate, waited on the
ex-
plain to him the state of their eisntiatelrishoViultuP-°' to Q
very day more deplorable. Some et,
t,.*el''s, becoming
ruined by the establishment at . ..em were totally
*railroads, and others
were unable to maintain the "-Limber of horses necessary
for the publip SQ,l*Viet, '-.:1 consequently the communica-
tion lAetwova gev,-, -'
~,,,...,. ;_,.._ •al principal points were in danger of
I r::::ti l'aupted. The Minister replied that he was
1u" -emined to bring the subject under the consideration
' of the Chambers in the ensuing session.

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