The Sun.
London, England, 1844-01-17 00:00:00

out at considerable length how the provisions of the
Act applied to the present case, and how no violation
of them had been committed so as to invalidate the
proceedings of the Recorder or the Clerk of the Peace
in the matter. The Clerk of the Peace, with a view
to his preparing the jury list for the ensuing year,
was directed by the Act to issue his precepts to the
several collectors of taxes, whence might be dated the
origin of the persons who were to be called on to be
placed on the jury lists or not. The Act defined who
were the persons that were to be admitted upon the
jury list, and precautions were taken by those officers
that none were admitted but those qualified to dis-
charge the duties of a juror. Those lists having been
returned to the Clerk of the Peace, were to be subse-
quently laid by him before the Recorder of the City
of Dublin for his revision and adjudication. The
Recorder was the last who had any control on the
subject, and there must have been very good reasons
why his decision was made final and not open to col-
lateral investigation. In the present case, the provi-
sions of the Act had been complied with—the precepts
made—the lists returned from the parish officer—
the investigation and the Recorder's decision made,
which decision none but the Recorder himself could
review for the purpose of disputing it. All that was
required by the Act had been complied with, and if
the course contended for by Counsel for the traversers
had been pursued, it would be unsettling rather than
settling the duties-of the officers—a thing that cer•
tainly could never have been intended by the Act.
Where fraud had not been proved it was out of the
power of the Queen's Bench to investigate the deci-
sion of the Recorder, even if he had come to a wrong
conclusion. The Learned Judge detailed at consider-
able length various reasons in support of his view of
the case, and concluded by saying that he was of
opinion the demurrer must be allowed.
Mr. Justice BURTON next stated his reasons for
concurring with the Lord Chief Justice in the opinion
that the demurrer should be allowed. If the demurrer
were not allowed, it would form a precedent which,
in future cases, would cause delay, that might, per-
haps, ruin parties engaged in law proceedings; and
it would, besides, render the present proceedings a
nullity. It was his opinion the demurrer must be
allowed. He had considerable doubt whether any
challenge at all existed to the panel of a special jury.
Supposing it did apply here, no imputation whatever
rests upon the Sheriff; again, there was no linputa•
tion on the Clerk of the Crown. The Sheriff's duty
was indeed a mere formal matter; as to making any
judicial decision on the list, it was quite out of his
function, which was merely to strike a panel. What
was the challenge here founded on ? On the supposed
want of impartiality of some unknown person who had
access to the Recorder's-office, before the list was
arranged. That was an unheard of challenge. It
was not founded on the want of impartiality on the
part of any public officer ; it gave a new range en-
tirely to the right of challenge, and impugned the
whole list because there was some fraud or mis-
management on the part of some unknown person,
during the process of preparing the list. Admitting
that the Recorder had not been as diligent and atten-
tive as he might have been under the circumstances,
still there was no fraud alleged against him. The
Learned Judge then read extracts from the statute
defining the duties of the Recorder, which he con-
tended were judicial, and against his decision there
was no appeal to any Court. The other officers had
merely a plain, defined duty to perform. As to the
omission of the sixty names from the list, what was
the duty of the Sheriff with regard to them ? The
list must be taken from the jurors' book, and could
be taken from no other source; if the jurors' book
for 1844 were as nullity, then they were directly
driven to the jury book of 1843. The admission of
the challenge would cause many difficulties. Suppos-
ing that a knave or an idiot obtained access to the
papers while in course of preparation, and were to
purloin part of the papers ; or even if a rat were to
eat them, the whole community was to be deprived of
a special jury list. Even the omission of one name
might on this principle be considered sufficient. It
was always necessary that a private injury must give
way to a general inconvenience. No par-
ticular injury had been stated here ; but was
there ever a case in which a more monstrous
general inconvenience had been pointed out ?
They could not go behind the jurors' book,
and there was no imputation upon that; the imputa-
tion was on the general list. They could not enter here
into any considerations as to the mode of preparing
the jurors' book, through the medium of a challenge.
If they had been right in refusing the motion made
on this subject, they should be right, ex superabun-
dante, in refusing the challenge. He was, therefore,
of opinion, that it must be refused.
Mr. Justice PERRIN, in giving his opinion, said he
had given careful consideration to the Act of Parlia-
ment, and applying its provisions to the matters as
they appeared on the challenge, he was under the dis-
advantage of not coming to the same conclusion as
that to which the Chief Justice and his brethren had
arrived. He thought, subject to considerable doubt,
that the challenge ought to be allowed. By the Act
of Parliament, the collectors of taxes were to make
out two lists of all qualified persons to act on the
jury within their districts, and to give them to the
Clerk of the Peace. These lists were afterwards re-
vised by the Recorder, and, with respect to that
officer, he fully concurred in the distinction which
had been drawn between his ministerial and judicial
functions. With the revision cf the list he considered
that the • Recorder's judicial duty ended. This ap-
peared to be the case, from the mode in which the
jury lists were prepared in the counties. There they
were revised by the Justices, and delivered to the
Sheriff. In the present case, the Recorder should
not have written out a general list with his own
hand ; he ought to have caused a general list to be
made out from the list he had revised ; but
it did not appear that the least degree
of fraud had been imputed to the Recorder ; he had
never heard it imputed, nor could it be believed.
But it seemed that he had been imposed upon by the
person whom he had employed to make out the list.
Now every one must employ clerks, and if con-
trivances of that kind, on the part of persons so em-
ployed, ed, were not inquired into, and were not to
vitiate the acts which purported to be the acts of their
superior officers, he was really at a loss to understand
what was the security of the public for the purity of
the jurors' book. In such a case one list might be muti-
lated, and another list substituted. He had heard
some difficulties stated, as to whether the Recorder
could amend his list, having discovered any mutilation
or omission, after having delivered it to the Sheriff.
But it seemed to him that he could do so, and would
do his duty in so amending it. It had been stated
also that there was likely to be some inconvenience
experienced should the challenge be allowed. It ap-
peared to him that the inconvenience had been appre-
hended to be much more extensive than it would
really be found to be. It appeared to him that there
was a power of at once correcting the errors which
might exist in the list of jurors. He could not see
any objection to amending the book according to the
true and real general list, vouched and supported by
comparison with the authentic parochial lists. On
these grounds he had felt himself compelled to come to
that conclusion. He certainly did entertain an im-
pression that the challenge ought to be allowed,
though certainly not without considerable doubt as
to the correctness of his opinion.
The Court was then adjourned till ten o'clock the
following morning.