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

Sir CoLmAx O'LouGuLIN rose, and on the part of peace, and that the Recorder neglected to do so. The
Mr. Daniel O'Connell put in a challenge of the array Learned Gentletnan then wanton to read from thechal-
of the whole panel. He did not make any address, but lenge to show that the averments had been made as dis-
at once proceeded to read the challenge, which was , tinctly as possible, and in fact in the very words of
of considerable length, and in the usual legal form. ; the statute. He did not think the Crown ought to
It set forth that the defendant, Mr. Daniel O'Con- press the trial under such circumstances. It was no

nell, put in this challenge of the array of the jury,
on his own behalf, because that a list of the persons
qualified to serve as jurors was prepared and presented
to the Recorder at the special sessions for the county and

city of Dublin, and duly signed by him; but that
the itecorder did not, according to the enactment in
that case made and provided, deliver in a general
list of such jurors, in the order the statute directs,
but that on the contrary, he omitted so to do ; and

that the said Daniel O'Connell asserts that the paper
puporting to contain the names of such jurors was
illegally and fraudulently made by some person or
persons unknown ; and that the said paper did not

contain the names of ALL the persons quali-
fied to serve on the jury, and whose qualification
had been allowed by the Recorder, but from it had
been omitted the names of fifty-nine persons whose
qualifications had been so allowed. (The names were
given : twenty-seven of them are understood to be
Catholics.) The challenge also stated, that at the
time the fraudulent writing was returned the persons
so omitted were, and still are, resident in the city of
t)ablin, and duly qualified to be placed on the
; it also asserted that from the said writing,
purporting to he a list of the jurors, a
bo, It was prepared, and from the said book
was made up the list of the special jury for the year
1844, and that the persons so omitted in the writing
were also passed over in the jury book. Thechallenge
then stated Mr. O'Connell's protest against and chal-
lenge of the legality of the jury panel, for these rea-
sons—it being falsified by the omissions above stated.
Sir COLMAN O'LotronLlN said that similar chal-
lenges were being prepared for each of the other tra-
versers, but that they were not yet ready.

The document was handed to the Attorney-Gene-
ral, who for some time appeared to scrutinise it very
earnestly.

Sir C. O'LOUGHLIN said the other challenges would
be identically the same in form, and stated that they
might all be considered then, pro forma, though they
were not yet completely drawn up.
The ATTORNEY-GENERAL said that he had not seen
the challenge till then—he had not heard of it, and
was not aware that it was about to be made. He
therefore asked the Court to allow the Counsel for
the Crown a short time to consider it. He should
expect, if all the challenges were to be considered to-
gether, that they should also all be disposed of at the
same time.

The CHIEF JUSTICE—Have you a copy of the Act
of Parliament, Sir Colman ?

Sir COLMAN O'LouGRLIN replied in the affirma-
tive.

The Crown lawyers then quitted the Court
for the purpose of consulting together, and
the proceedings of the Court were for a considerable
time suspended.
The Counsel for the Crown and traversers having
returned to the Court, after an absence of two hours,
The ATTORNEY-GENERAL said—l wish the other

challenges to be handed in.
Mr. MooRE, on the part of the traversers, put it to
the Court whether the other traversers were hound to
put in their challenges at the present moment.

The traversers were there perfectly separate and
distinct, appearing by separate and distinct solicitors,
separate and distinct counsel. The counsel for one
of the traversers, Sir C. O'Loughlin, had put in a
challenge to the array on the part of his client, and
he (Mr. Moore) submitted that the Attorney-General
had no right to ask that other challenges should be
put in before that already put in was disposed of by
the Court.

CHIEF JUSTICE—That would be shifting your
ground considerably, Mr. Moore. It was mentioned
for the other traversers that they only wanted time
tc, prepare similar challenges.
Mr. MoottE—lf that was done I do not think that
I ought to proceed any further in the matter.
CHIEF JUSTICE—That was done in open Court.
The ATTORNEY-GENERAL-It may be proper to
enter a suggestion on the record respecting the death

of the Rev. Mr. Tyrrell. His name having been
included in the indictment, the'proper course would
be to enter a suggestion on the record, to say that he
is dead.

CHIEF JUSTICE—That has been stated by the
gentleman ..vho was his solicitor. -
A pause of considerable length having here talten
place in the proceedings, in consequence of several
challenges not being yet ready.
The CHIEF JUSTICE observed that there was much
time consumed in the preparation of them.
Sir C. O'LOUGuLIN—They are all engrossed, my
Lord, and will be ready in a few minutes. They are
now being compared.

objection to ' say that the guilty person could be
punished for omitting the names ; for what satis-
faction was that to a person found guilty, it may be,
of a capital offence ?

Mr. FITZGIBBON argued on the same side with Sir
Colman O'Loughlin. He said, the real question in
the case was, whether the list was a good one, and
he would undertake to show it was not. The Legis-
lature was most precise in the language it

used with regard to there being a proper list.
But for this list what had been substituted? The
traversers had not shrunk from placing on their
challenge an averment that they were no parties

to the frau4 which had occasioned the
omission. The whole argument of the At-
torney-General amounted to this—that some in-
dividual had been dexterous enough to filch from the
desk of the Recorder the list of the jurors, and to
decimate the whole of them, for the omission of 59
names amounted to about a tithe of the number ; and
that if any person had done this he ought to be punished,
and that he (the Attorney-General) would assist in
doing so. He would assume that it was the Recor-
der's footman who had done this; but did that make
the Recorder's conduct more legal or proper ? The
law said that the Recorder should make out, or caus-
to be made out, a list comprehending all the names qual-
lied to be placed upon it. Had he caused this to be
done ? The answer was plain and evident that he
had not. The traversers, therefore, objected to be
tried by a jury so fraudulently constructed. If he
could suppose—what, perhaps, it was difficult to sup-
pose—a Crown prosecutor desirous of doing justice,
and justice only, he would have been careful
that not one of his steps towards hunting a fellow-

subject into a prison should be tainted by illegality
and fraud ? Would he not gladly have embraced
the opportunity now offered of correcting

CHIEF JUSTICE—You ought to have come into
Court prepared with them all.
The ATTORNEY-GENERAL—I cannot understand
the course adopted. In all those cases there might as
well have been joint challenges as separate ones.

this error ? It was not too late ; it might
be easily accomplished. They had only to
have adjourned the Court till to-morrow,
and in the mean time to have made inquiries of the
Recorder if the .59 persons were duly qualified; and
if they were shown to be so, they might have said let
the 59 names be put into the box again, and the jury
drawn with them. The omission would thus have been
supplied. He knew that every public officer must be
presumed to have done his duty till the contrary was
proved. AV as the contrary proved in this instance ?
He contended that the grossest negligence had been

proved against him, and yet they were asked to presume
that he had done his duty ? It was one of the first prin-

ciples of law, that fraud vitiated everything. It
would vitiate a judgment of their Lordships---it

Mr. PIERCE MAIIONY, one of the traversers' solici-
:ors, observed, they Ns ould be ready and in Court in

would vitiate a judgment of the House of Lords.
But in nothing ought fraud to be more guarded against
than in the preparation of the list of those who
were to pronounce on the guilt or innocence of a
fellow-man. They had heard a great deal of the
mischief of delaying justice. He agreed as to the
mischief of delaying justice but there was a

very great advantage in delaying injustice. He
denied what had been asserted, that the list of
jurors for 1844 was to be taken from
the previous list. The Attorney-General had not

ess than five minutes.—(Laughter.)

pointed out one defect or failure in the averments of
the challenge. He asserted that there was no aver-
ment that the Recorder did not hand in a list; cer-
tainly there was not; but there was an averment
that he handed in an illegal list. Had the chal-
lenge denied that a list was handed in at all,
they would have immediately been met by a question
of fact, and full proof would have been given that a
list was furnished. He contended also that the

Legislature gave full powers to rectify the list if any
errors had been committed in drawing it up. And
were they to have no remedy ? Why, then, were
they given the power to challenge the array
at all ? He did not cast one single imputation on the
integrity of any one of the twenty-four gentlemen
who had been selected. He was against the whole
principle on which the panel had been constructed,
and the legality of it as constructed.

The SOLICITOR-GENERAL then rose. In com-
mencing his address, he regretted that his Learned
young Friend had, from inadvertence, used the ex-
pression of a " packed jury." Such expressions went

abroad, and produced an imputation most injurious,
although they were groundless and unwarrantable. He
then proceeded to the question of the challenge, the
legality of which he supported, on the ground that
there was a difference between the challenge of a
jury on the ground of a want of impartiality on the
part of the Sheriff, and the challenge of a jury where
no such partiality was alleged against him. He quoted
several cases and reports, to prove the inconveniences of

The different challenges on the part of the other
.raversers were th>rf handed in after some time.

allowing the challenge in such cases. He also strongly

condemned the harsh terms w hich had been applied
to the conduct of the Recorder, who was not before
the Court, was unrepresented by counsel, and could not
reply to the aspersions. He then proceeded to notice
the legal consequences of that alleged misconduct,

Mr. O'Connell—They are signed by counsel, I
suppose.

and restated the argument of the Attorney-General,
that certain averments which ought to have been

made in the challenge, in orier to support it, were

not inserted. He argued also that, even allowing that
the Recorder had been guilty of negligence,

Mr. Ford, solicitor for the traversers—They are.
The ATTORNEY-GENERAL—I wish to see them.
The challenges were then handed to the Learned
Gentleman.

he consequences of that negligence amounted only to
:his, that the list was not so perfect as it might have

been. But it wis not denied that some list was made.
With regard to the observations made by his Learned
Friend, Mr. Fitzgibbon, that the fifty-n►ne persons
whose names were left out ought to be inserted, he
begged to remark that it would not be competent for
them to do so. They could not make any alteration
in the jury list after it had been once struck, but
persons seemed to imagine that things could be done
in this case which could not be done in any other.
The Learned Gentleman proceeded at great length to
controvert the arguments of the counsel for the
traversers, and concluded a very able argument by
calling on the Court to allow the demurrer of the
Crown.
Mr. MOORE said, on the part of Mr. O'Connell,
and after the able statement of the Solicitor-General,
that he would propose the matter should now be re-
ferred back to the Recorder, and that a new list
should be struck.
The ATTORNEY-GENERAL objected altogether to
such a proposition, and he was astonished that such
a one could have been made by Mr. Moore, who, as
a lawyer, must know it would be perfectly illegal ;
and he, holding the office of Attorney-General, would
be unworthy to hold that situation for a single moment
if he assented to such a proposition.
Mr. MOORE said the Attorney-General had grossly
misconceived the nature of his proposition. He (Mr.
Moore) made it only with respect to this single case.
The Attorney-General seemed to attribute to him an
improper motive, and monstrous ignorance in making
it. lie would not reply to the observations of the At-
torney-General. The proposition he made in good
faith, and in consequence of instructions he had re-
ceived from his clients. He did not think he could
he charged with having exhibited any improper feel-
ing,
or could be charg►ed with monstrous ignorance as
to his duties as a lawyer in making it.—(Applause
throughout the Court.)
The ATTORNEY• GENERAL said that if such feel-
ings were manifested in Court, he should be obliged
to take measures to have no persons admitted to the
gallery. He thought that his Learned Friend had
meant his proposition generally, and he must have
known, if he did so, it could not be legally done.
The Learned Judges having consulted for a short
time,
The CHIEF JUSTICE said the majority of the Court
were of opinion in this case that the demurrer should
be allowed, and, consequently, that the challenge
should be overruled. The subject-matter was not
now under the consideration of the Court, inasmuch
as the arguments used on both sides had embraced, in
substance, the greater part of what the Court had
been occupied with on Friday last. The Court had
then given judgment, and upon every consideration
he had been able to give the subject since, he found
no reason to alter the decision the Court had then
pronounced, through him. On the contrary, during
the progress of the argument, and applying his best
judgment to the matter, the opinion he entertained
then was confirmed. The- application then under the
consideration of the Court was, that, for certain rea-
sons alleged, the panel should he quashed, and he con-
fessed he could not see the principles upon which he could
now be called upon to give a different judgment from
that which be had given on a former occasion; and
in which all his brethren concurred. The present
application came before the Court in the shape of a
challenge to the array. The objection was that a
number of names which should have been upon the
jury list were not there, and that the Recorder of
I Dublin had neglected, cr omitted, to make a proper
, list. In considering. this subject, it would be neces-
-1 sary to look to the Jury Law to see what its object
was. The Learned Judge then proceeded to point

The ATTORNEY-GENERAL then rose to support the
demurrer which had been put in on behalf of the
Crown. The argument adopted by the Learned
Gentleman was that the challenges put in contained
no averment. There was no averment that the Recorder
had not made out a list from the general list accord-
ing to the respective qualifications of the parties, and
there was no allegation that the Recorder, or any
persons connected with him, had been guilty of fraud
with regard to the omission of the names from the
list. There was no averment that he did not hand
over the list so made out to the Clerk of the Peace-
There was no averment that the Clerk of the Peace
did not make out a proper list from the general list.
There was no averment that the High Sheriff did not
receive the jury list, and that he did not make out
the special jury list from the 717 names. There was no
averment that the jury was not properly struck and
balloted !lir from the special jury list. There was no
allegation of fraud, contrivance, or design on the part
of the Crown, or the Sheriff, or the Recorder, or the
Clerk or the Peace, or with regard to any person con-
nected with them. Under those circumstances, he
trusted the Court would not allow the challenges put
in on the part of the traversers. It was
to be presumed prima facie that the public officers
had performed their duty, and as there was no dis-
tinct averment in them, the Court, he hoped, would
not allow them to retard this cause, which was now
ripe for trial. It was absurd to suppose that the entire
proceedings should be rendered null because a name
might be omitted fro:n the list by some person who
was not known. The Crown was as anxious as the
traver!,.ers possibly could be to make out the
guilty person. He contended on the authority of
a case in 4th Barnes.. all and Alderson, that a
challenge to the array would not lie in such a case.
Under these circumstances he trusted the Court would
be of opinion that the demurrer they took to the
several challenges ought to be allowed, and that the
trial ought he permitted to proceed.
Sir C. O'LOUGHLIN replied on the part of the
traversers, and quoted Hayes and Dickenson's Text-
book, Bacon's Abridgment, the case of the King v.
Johnson, and the case of the King and Nolan
in Hudson at.d Brooke, 164, to show that a challenge
to the array would lie in a special jury case. With
regard to what the Learned Attorney-General prin-
cipally relied on, namely, that there was no aver-
ment, the fact was, that there was as distinct an
averment, as it was possible to make. They dis-
tinctly attributed fraud with regard to the jury list,
and the omission of certain names from it to
some person, hut who was the precise person on
whom to fix that fraud, it was impossible for them to
say. This fraud must have been committed before
the list came into the hands of the Sheriff. Tl:e
Attorney-General did not dare to deny that tLel
special list was illegally and fraudulently made ou t.
They distinctly avowed that no general list was made
Lout ; that no general list was handed to theglerk ofthe