The Sun.
London, England, 1844-09-04 00:00:00

SEPTEMBER 4., 1844.

of juries, must be examined by the judges AN ith cri-
, teal care. It must be admitted that the Recorder sent
no general list to the sheriff, but that some spuri-
aus list had been made out by some person.
" That this has been done fraudulently, and with in-
tent to prejudice him on his trial ; that from that
spurious list the jurors' book and special jury list
had been made, and the present array selected, and
that the traverser himself was wholly unparticipant
in this fraud, and protested against the array behig
constituted from the list so framed." Here, be said,
is a confessed and serious wrong, and the only ques-
tion is, whether a challenge to the array be the proper
remedy. It is said, first, that the sheriff is not in default,
and secondly, that if the challenge be allowed, there
is no book from which any other jury can be. selected.
With great deference, I submit that neither of these
is an answer. He then put a' particular case, in
which the sheriff might have made en imperfect array,
and there might be no default, and yet the challenge
must prevail. He then said, in answer to the second
objection, that the only consequence was that
the trial might remain untaken, and he ex-
pressed in strong language his own opinion
that it were far better that no trial should be taken
under those circumstances, than that it should be
taken subject to the heavy suspicion which these facts
must bring upon it. Now, on Monday, when the
Lord Chief Justice stated to the House the entire
agreement of all the judges upon this point, he did not
feel himselfjustified in alluding to that letter, because
he had concluded that the Lord Chief Justice had
had some subsequent communication with his brother
Coleridge, in consequence of which he might pos-
sibly have seen ground for altering his opinion.
But when he left their Lordships' House, he found
on his table another letter from his brother Cole-
ridge, written the day before. He had before said,
that he thought the argument in favour of the over-
ruling of the demurrer was too technical for the
decision of a great constitutional question ;
and stating, upon the view which he took
of the balance of inconveniences, in his note
of Monday, he was much struck by what
he (Lord Denman) had written on the question of
challenge, and at present, like himself, awaited the
better arguments that were to be adduced on the
other side. He did not, therefore, stand alone in
thinking that the jury should not be selected out of
any list, and that there should be a remedy for
any injury which might be done. He would briefly
state what opinion appeared to prevail in the court
below on this subject. There was originally, perhaps,
some notion that that the challenge to the array was
taken away altogether; but that was clearly not the
case, because there was a particular provision which
preserved the right. It was also questioned whether a
challenge laid to the array where a special jury had
been struck out. That difficulty having been got
over in the Queen's Bench in England, he
did not think that there could be any diffi-
culty in settling it in the same manner. llis
Noble and Learned Friend said that the prin-
ciple of challenge to the array rested solely on
unindifferency in this conduct on the part of the
sheriff. The judgment which he had formed on that
point was like that of his brother Coleridge, who, in
the letter which he had written to him, stated what he
considered to be the state of the law at present. The
substantial duties of the sheriff in former times were to
collect the names of those who were fit to he on the
jury, and enter them in a panel, and these duties
belonged to the sheriff alone ; but, by the late Act of
Parliament, those duties were divided between the tax
collectors in the first place, the Recorder of Dublin in
the second place, and the sheriff in the third place.
The tax collectors performed a duty merely ministe-
rial ; the Recorder, in the first instance, performed a
duty which was judicial—decided upon claims and
objections. It was then his duty to sign and settle
the list which was to be the jury list for the year.
The complaint in this case was, that after the Re-
corder had exercised his functions • after he
had determined what should be the list for the
ensuing year, somebody else said " It shall not be the
list." The handing over of a perfect list to the
Recorder by the sheriff was a ministerial act, and
that act had been incorrectly performed. The chal-
lengers said, " the judicial act has been improperly
performed, but you have deprived your own judicial
act of the weight and authority to which it is entitled?'
He could not help believing that, if that view of the
case, which his brother Coleridge had stated much
more clearly than he had done, had been presented to
the learned judges at their consultation, they
would have thought it worthy at least of
consideration. His Noble and Learned Friend
had truly stated that that objection was to the
conduct of the returning officer. Who was the re-
turning officer? Why the Recorder was the return-
ing officer for the purpose of this trial, and in his
opinion the Recorder—though without the slightest
imputation on his motives, which was disclaimed' by
all—had been guilty of a default,' when he had
handed over to the sheriff, as a list of the jurors, that
book which was not the list which the law
required, and which the Recorder himself had
declared s' should not be the list. He had
written a great deal more than "he . was
desirous of troubling their lordships by reading. Not
only did he differ from his Learned Brother the Chief
Justice of the Common Pleas, as to the principle on
which the challenge to the array was to be allowed,
but also as to the consequences which were likely to
ensue. The Lord Chief Justice said no object or advan-

tage could here be gained if the challenge had been
allowed, for if the challenge had been allowed the
jury process would have been directed to some
other officer. Now, there, he ventured to
think, there was a mistake. The default was
not that of the sheriff, but of the Recorder, or
clerk of the peace, who made out an incorrect list.
The Act of Parliament expressly provided for the
want of the jurors' book being returned. His Noble
and Learned Friend said "Here is a book returned."
But what book ? The Act required that that book
should be returned whiCh was correctly made up from
the list; but this book was incorrectly made up. It
was asked whether a single defect would vitiate
the whole list. The Lord Chief Justice of the
Common Pleas said that, according to the
argument used, if the cess collectors omitted
a single name, the list would be altogether
vitiated. He begged to differ on that point from the
learned judge. All that had been done previous to
the decision of the Court of Sessions would not be
affected. This reductio ad absurdam was met at the
bar by an opposite case of much greater extent. It
was asked what would be the effect of omitting 60 or
600 names? He thought the inconvenience would be
very great if the party were not tried out of the
book ; but it should be remembered, that the decision
in the case of the " Queen v. O'Connell" was
not a decision in any other case. The Lord Chief
Justice said there must be some mode of relief from
the inconvenience occasioned by such an omission.
So said all the learned judges—so said his Learned
Friend on the Woolsack, and also his learned friend
who had just addressed their Lordships. His Noble
and Learned Friend on the Woolsack had raised his
expectation indeed-in-one part of his argument. His
Noble and Learned Friend said, " is the party without
remedy ? No, he is not." He (Lord Denman) had
waited to hear what that remedy was. Where was
that redress ? What was there to prevent any one of
the Queen's subjects accused from being tried by
such a jury as the law never approved of ? " Oh,'
said his Noble and Learned Friend, "excuse me ;
I will tell you what the remedy is on a
future occasion." Now, if the Learned Lord
Chief Justice of England and the judges of
Ireland could not point out any remedy, what secu-
rity was there to the Queen's subjects ? He would go
a step further, and he would say that he would never
believe that there was no remedy, until the well-
known constitutional principle of challenging the
array—unless that ancient practice were repealed
by a direct Act of Parliament, he would not
believe that there did not still exist a remedy in such
cases as these. The objection having been well taken,
it ought to have been allowed; and not having been
allowed, the trial had erroneously proceeded. In the
20th of Edward 111., it was argued that a
case was vitiated by the party being de-
prived of his right of challenge, on account
of the omission of individuals from the list, and it
was replied that there were good names enough re-
turned by the sheriff ; but it was held by the court
that the document was one and indivisible, and the
consequence of that would be that one error would.
vitiate the whole, and the whole- was accordingly
set aside. What made this case the more remarkable
Was, that a charge of indifference was brought
against the sheriff, and he was tried and acquitted on
that charge, but it was held that he was to blame
for' the difficulty that had arisen. He (Lord
Denman) could not leave this subject with-
out adverting again to• the want of remedy.
It had been thrown out by some learned persons that
application to the court should have been made.
Were the Queen's subjects to apply to the discretion
of the court in order to have a lawful jury to try them
for their lives, for their liberties, or for their most
important interests ? Was it a thing for a motion,
on affidm its and written depositions, when the party
accused was always the party swearing last, and "after
all the matter was referred to the discretion of the
court ?' But on this case such a motion was made
and was refused, but on what ground it was refused
he did not know. lie knew nothing further of the pro-
ceedings than what he had seen in the papers. He under-
stood that the whole jury list of Dublin consisted
of 717 names. Now, the special jury list of course
would be a very inconsiderable portion of this num-
ber. Sixty names out of this proportion was enough
to affect of course the panel. It was not improbable
that if those sixty names had been on the panel, that
the jury might have been drawn from that number.
He would now proceed to the other points of the case.
He did not entirely agree with the learned judges in
thinking that there were only two objectionable
counts. Be. wad by no weans clear that there was