The Sun.
London, England, 1844-07-08 00:00:00

ebtrb Xbitton

SUN OFFICE, Seven 0 Clock.

THE STATE TRIALS.

(FOURTH DAY.)

WRIT OF ERROR.

HOUSE OF LORDS.--(TIIIS DAY.)

THE QUEEN AGAINST O'CONNELL AND OTHERS.
Mr. KELLY (in continuation from our After-
noon Edition) said—lt _ was found that the swear-
ing of witnesses in open court was productive of
great inconvenience, and some remedy was at last found
necessary. Provision was made by the Act of the Ist
and 2d of Victoria, c. 37, for the swearing of witnesses
before the grand jury. The question was, whether
that article applied to the swearing of witnesses in the
Court of Queen's Bench in Ireland, or whether it' was
limited to those courts which were particularly men-
tioned—the Assizes and the Quarter Sessions. He con-
tended that it was necessarily limited by the language to
the Asizes and the Quarter Sessions. It was provided
in the Act that upon [prosecutions being instituted, the
clerk of the Crown at the Essizes, and the clerk of the
peace at Quarter Sessions, should endorse upon the in-
dictment the names of the witnesses to be sworn ; that
the grand jury should administer the oaths to those wit-
nesses, and receive their evidence, and then that the
foreman or other member of the grand jury, who
should administer the oaths to the witnesses,
should endorse the names of the witnesses whom
be should have sworn upon the indictment, and authen-
ticated the fact to the court by signing the list either
with his name or initials. Now that had not been done.
It was assigned for error that there was no evidence on
the record of those witnesses whose names ap-
peared on the back of the bill, having been
sworn by the grand jury according to the provisions of
the statute, because neither the foreman of the grand
jury nor any member of the grand jury had affixed his
signature or initials to that list. He submitted to their
Lordships that the non-compliance with that statute
entirely vitiated these proceedings. It was quite unneces-
sary to remind their Lordships upon what very slight
grounds in criminal proceedings judgment had, been re-
versed in writs of error. .If in any part of the process
error had been committed either by the sheriff or any
other officer connected with the court, the judgment was
reversed.. (The Learned Counsel then referred to
Comyn's Digest in support of this proposition.)
Ainong other causes of error it was alleged that if
the swearing were not well performed, as for
instance, if the words " to speak" were omitted, it was
error. If, then, it were clearly required by law that the
witnesses before the grand jury should be sworn in a
particular way, and that the swearing of the witnesses
should be certified to the court in the manner pointed
,out by the statute, why should not the non-swearing of
witnesses be considered as error ? The authenti-
cation of the swearing of the witnesses before
the grand jury was now rendered as important a part
of the proceedings as the impanelling of the petty jury ;
also in the case of the "King v. Carlisle," 2 Barnewall and
Adolphus, p. v 7. He could not go through all the facts
of this,case, but he would merely state that the nature of
the objection was not to any part of the proceedings
themselves, but to an extrinsic part unnecessary to the
validity of the proceedings. It appeared that only one of
the justices named in the Commission to try the prisoners
was present when the verdict was returned. That was
•assigned as an error of fact. But when it came
before the court of error, in the first instance it was
held to be a statement contradictory to the record, and-
could not be assigned for error on that record. But, it
was not contended that, if it had agreed with the record,
the objection would have been sufficient to set aside the
judgment. The matter of fact itself was a good objec-
tion. When the matter came before the Court again, on
an amended record, the Court held that it had no power
to reverse its own judgment in another town. He (Mr.
Kelly) maintained -that the matter alleged was error in
fact, and, -no matter who ought to be present, the
absence of any such person when the verdict was given
vitiated the judgment ; that was not an error fatal in
the premises, but was an extrinsic fact ; yet the court
held that it would be good- ground of reversal if it were
not contradicted by the record. IR the case of " Rogers
v. Simpson," 1 Adolphus and Ellis, p. 772 ; with that
case a great variety of authorities were connected,
but he would not trouble their Lordships by
going through them. The error assigned was that
the . distringas was not returned by the sheriff of
'Yorkshire or any other sheriff, nor was there any
return of the panel annexed to the writ. The
jury had been summoned, convened, and sworn to try
the case, but it appeared that when the record was made
up there was no return by the Sheriff ; that is, he had
not signed the return upon the record. He called the
attention of their Lordships to this case because be
could see no difference between an erroneous return of
witnesses and an erroneous return of jurors on the panel,
for both were equally necessary for the validity of the
proceedings ; and Lord Denman, giving judgment in
this case, stated that every such omission must be
considered fatal, and he reversed the judgment. In
the " King v. Bittals," where the defendant was found
guilty of stealing a heifer, the objection was that the
witnesses were sworn before the jury without coming
into court. The judge held that the objection came too
late, as it was after conviction, but would recommend
him to a free pardon. This case was brought before a
' court of error, He quoted the opinions of Lord Den-
man, Mr. Justice Coleridge, and Mr. Justice Patteson on
this case, all concurring that the indictment ought not
to be quashed. In the present proceedings there were
no means of the prisoner knowing that the witnesses
had not been sworn ; but that law was imperative, and
said that no man shall be put on his trial except on evi-
dence of witnesses to whom an oath has been duly ad-
ministered ; nor shall he be punished without a due
finding on oath. He conceived that the proper
mode of taking advantage of this non-compliance
with the Act of Parliament as to the non-swear-
ing of the witnesses, was by the assignment
of error in fact, this was the only way in which the pri-
soner could have an opportunity of making the objec-
tion: He read the section of the Act of 1 and 2of
Victoria, and stated the course of proceeding under it
to be, that assuming the swearing to take place before
the . grand jury, and they only, they are to endorse the.
names of the witnesses on the back of the indictment, to
sign the endorsement and send it thus authenticated
before the court. Could it be contended that this was a
mere form, or that it was an unnecessary one? He bad
heard with great satisfaction something that hadfallen from
one of their Lordships, which relieved him in some sort from
the habitual -necessity iu which they were placed of con-
sidering what was directory and what was imperative in
a statute. He was glad to adopt the term essential, and
' he would- ask was it essential that the provisions of the
Act should be complied with ? What security had the
court in putting men on trial, it might be for a capital
offence, that the witnesses had been sworn, except the
certificate of the foreman ? It showed that this part of the
Act could not be what was called directory ; they were
provisions, the complying with which was absolutely
necessary. The Act consisted not so much of provisions
by which the general object of swearing witnesses was
• ita be attained, as of a series of provisions forming the
-machinery by which that swearing was to be accom-
plished. Ile cited the case of " Holdsworth v. Procter,"
in Crook, James, in which the sheriff not having signed
his name to the venire facies, the judgment was reversed.
It was urged that the name of the sheriff was not neces-
sary; but all the court held that it was bad, and set it
- aside. This was not a proceeding at common law, but
by statute, and the omission signed by the foreman of
the grand, jury was matter of importance, because,
. unless' he signed it, the court would not know
whether the party had been . put properly on his
trial or not. There was another case—Crook, Elizabeth,
0 Staner v. James." The Learned Gentleman having
alluded to this case, observed that there were other
reasons why it was essential that the court should
have the means of knowing who were the witnesses
sworn. In the case of an indictment for perjury, sup-
pose a Bill came down with the names of
four or five wituesses—lsot_ without the signature
of the foreman, attesting that they had been
sworn, how was the court to know whether the bill had
been found upon the evidence of witnesses who had been
properly sworn unless their foreman had put his initials
to the bill. There was another case in Crook, Elizabeth,
of " Biloodward and Edwards," where error was as-
. -signed, that the sheriff's name was not attached to
the writ of habeas corpus. Where the statute
fix - the first time created a new system of
!procedure in a mattersso important as giving evidence
'upon oath before a grand jury, he conceived it was neces-
sary that they should be well satisfied that the provi-
sions of the statute had been carried out before any pro-
ceedings could be properly taken. The question here
. was, whether this Act extended to the Queen's Bench
in Ireland, whether the witnesses should be sworn be-
lore ti e grand jury, or in open court ; and I,e sub-
mitted that the Act could not be considered as
applying to the Queen's Bench in Ireland, that
mart not being mentioned in any of its provisions. If it
• . 'lat been intended that the Act should apply to the Court
cf Queen's Bench, that court would have been expressly
-mentioned in the Act. But, instead of that, the Court
of Queen's Bench, the principal criminal court in Ire-
. land, was nowhere mentioned in the Act ; and accord-
ing to the ordinary rules for construing Acts of Parlia-
ment, it could not be contended that the Act was in-
. tended to apply to the Court of Queen's Bench. Courts
of assize and quarter sessions were expressly mentioned,
and doubtless the Court of Queen's Bench would also
have been mentioned, had it been intended that the Act
should apply to that court.
The LORD CHANCELLOR—Mr. Kelly, who do you re-
present with respect to this part of the argument ?
Mr. KELLY—Mr. John O'Connell, and the three whom
.1 Lave named.
The LORD CHANCELLOR—The point I believe was not
raised for Mr. Steele.
Mr. Eeeee—Yea my Lord. They all raised the ob-
jection that the witnesses were not sworn in open court,
but Mr. Steele raises the additional point that the notice
• was not signed by the foreman.
• The LORD CHANCELLOR—IS it so stated ?
Mr. KELLY—Mr. Steele raised that point on the plea
• - of abatement.
The LORD CHANCELLOR—It does not matter, because
' if the point is good for one, it is good for all. I only
wished to inquire who you represented.
Mr. KELLY then proceeded with his argument, and
contended that if the provisions of the Act had been
intended to apply to the Court of Queen's Bench
4t., Alma quit would have been expressly named, and quoted
Viseldial istellit " King v. Richards," Bth Barnawcll and
-ssl'es'avyntifiss-420, in support of this branch of his argu-
/.2- - merit.- Now what were the words of the Act, " That in
r
. .„, ,„ all cases of isitlO,Enent the clerk of the Crown at the a5;,4(,,s
;,4(,,s -4,:, siz" eta the tkirk of the peace at the quarter sessions,•
k t.,..,: '; , shall endabe eh!the back tithe indictment the names of
1...0.