The Sun.
London, England, 1844-07-06 00:00:00

Lord CAmrriELL—There are a .great many persons tried in
that Court, but I do not know that it will affect your
argument.
Mr. Hir.r.,--Lord Bacon mentions, as one of the incidents of
an assize, that it is under a commission.
The LORD CIIANCELLOR—This indictment was found there,
was it not?

Mr. HILL—No, in the Court of Queen's Bench, before what
was called in Ireland, " The Term Grand Jury." It was not
found at an assize in every sense of the word, and if that
Commission Court could be considered an assize, it would not
assist their Lordships. He would now call their Lordships'
attention to the second point which he maintained as arising
upon the construction of this Act. His client (Mr. Steele)
had assigned for error in fact, that the witnesses upon whose
evidence -the bill was found had not been certified in the
manner pointed out by the Act, as having been sworn before
the grand jury. The point would only be material, if their
Lordships should be of opinion that the construction he had
put upon the Act was erroneous. Then it resolved itself into
this question, supposing the foreman of the grand
jury to be the proper person to , swear these wit-
nesses, and not the officer of the Court in open Court,
then they could not- have been duly sworn ; and, at least,
the indictment had not been duly returned, because the
foreman of the grand jury had not put his initials so as to
authenticate the fact that they had been sworn at all. The
Legislature felt this difficulty, that if the authority to admi-
nister the oath was transferred from open court to the close
and secret room of the grand jury, there would be no means
by which the Court could be informed that any oath had been
administered, or that it had been administered to one witness
more than to another. The grand jury being sworn to secrecy,
the defendants could not themselves attend, nor could any part
of the public attend, to see what was done, and the only means
of removing this difficulty was a statutory regulation. The
cause was this. The officer of the court endorsed the names
of all such witnesses as were likely to be called before the
grand jury. But the grand jury were frequently satisfied
with a fewer number of witnesses than the prosecutor had
prepared. They found the bill, he supposed upon the evi-
dence of the first witness. How, unless the certificate was
made as pointed out by the Act, was the court to know
upon the evidence of what witness the bill had been found ?
It was an unusual proposition that where the course of pro-
ceeding in a court of justice, according to the common law,
was changed, where a new tribunal,, if he might be per-
mitted to use that French word, was chosen, then the power
by which that change was effected must be strictly pursued.
After the 56th of George 111., and probably before it, it was
illegal for grand juries to find bills upon the testimony of
witnesses not sworn, and the effect of that bill was
to provide that they should be sworn in open
court. That was a declaratory law as well as an
enacting one, and it was conclusive that the common law
course was that the witnesses should be sworn in open court.
There were some safeguards to the administration of justice
arising front that regulation. There were some advantages
to the defendants in their early notice of what witnesses
might be called against therri ; it enabled them by quickly
and promptly collecting information either to cross-examine
those witnesses effectively or to contradict their testimony.
It was thought right however by the Legislature to change
that proceeding; doubtless for good reasons. But it gave
a very exact and admirable mode of distinguishing between
the names endorsed on the back of the indictment where the
witnesses had been sworn, and where they had not been
sworn, and the mode, therefore, of pointing out and returning
a true bill. The evidence upon which the Court was to be
satisfied that the bill brought into Court, and stated
to be found by the grand jury was a bill
found according to the course of the law, was
that the certificate should be attached to the bill.
It was worthy of remark, that not only was this the mode
prescribed-by the statute, but it was the only mode in which
the Court could ascertain the facts; but it had not provided
any other, and scarcely could provide any other.
The LORD CHANCELLOR—Point out the page in which the
defect is stated.

Mr. HILL—It would be found at page 83 of the defendant's
appendix, where it was stated that, " neither the foreman nor
any other member of the said rand jury did authenticate by
his signature or initials, as is required by the said re-
cited statute, that the said witnesses or any of them
had been sworn or has made such affirmation or de-
claration as aforesaid, nor did the said foreman or any
other member of the said grand jury authenticate in manner
aforesaid that no other witness or witnesses save the said
hereinbefore mentioned witnesses were so sworn and affirmed
or examined by and before them, pursuant to the provisions
of the said recited statute ; and, therefore, in this there is ma-
nifest error ; and this the said Thomas Steele is ready to
verify, to wit, at Dublin, in the county of the city of
Dublin aforesaid." Would it be said that this part of the
statute was merely directory ? He apprehended it was not
for the reasons he had pointed out. It was a new power con-
ferred upon the grand jury—one not known to the common
law—one that must be used as it was given, and used strictly
as it was given. It was given by the Legislature, with cer-
tain safeguards attached to it—certain means by which the
Court was enabled readily to know whether the prescribed
law had been followed when the jury were sitting in
their secret chamber. Let him put the case of
an indictment for perjury. If the witnesses gave
their evidence before the grand jury, in the absence of
the certificates prescribed by the statute, how was the evi-
dence to be given? How was it to show that the jury were
sworn, the grand jury themselves being sworn to secrecy.
This was the prescribed form established by law, and must,
therefore, be evidence. Was it not the statutory law that
bills should be returned in a certain manner. But
here was a new mode pointed out on account of
the jury having new duties to perform—that of swearing the
witnesses. Their Lordships were slow to construe any Act
as a directing one when it had reference to criminal proceed-
ings. But their Lordships had never construed any words
as directing where those words made a change in the course
of the common law. His Learned Friend (Mr. Kelly) had
directed his attention more fully to thie.part of the case, and
would address their Lordships more fully upon it. He (Mr.
Hill) should therefore proceed to the next point.
Lord CAMPBELL said it would aid them very much if he
would state how the question was to be raised, on the writ
of error or on a writ coram nobis ?

Mr. Mu. said that question applied to the portion of the
pleadings which would devolve more upon Mr. Kelly, but it
appeared to him that if the plea of abatement was good in
form, then it might be argued as a plea of abatement. If the
objection to it was made that it did not set forth a sufficient
number of facts, then the question might be raised.
Lord CAmrnELL—Then you think it competent to take the
question both on the assignment of error and the writ coram
nobis.

Mr. HlLL—There could not be a doubt about it. lie
now proposed to lay before their Lordships a very im-
portant, point in the argument of this case. He would
endeavour to show that the court below had come to
an erroneous judgment when it disallowed the challenge
to the array, or rather when it allowed the demurrer
of the Crown to that challenge of the array, assigning, as
they did, that that challenge was not valid. Their Lord-
ships, by the argument of. his Learned Friend, Sir Thomas
Wilde, had been put in possession of the general terms of the
challenge, as it stood upon the record. He did not, there-
fore, think it necessary to go over with particularity the
form of that challenge. He would advert to it by call-
ing their attention to the provisions of the Act, which at
present was in force in Ireland for the purpose of regulating
Juries. There were two Acts for this purpose : one of the 3d
and 4th William IV., and the other the 4th and sth Miliaria
IV., being an Act to amend the former one. On these the
question mainly rested. In the 4th section of the first Act,
chap. 78, they would find that it was made the duty of the
sheriffs to issue precepts for the collection of the grand jury cess
in the month of July, there to be returned with the names
of persons duly qualified to act as jurymen. The 7th section
states that the collector is to make out alphabetical lists of
the persons liable to serve on juries—to deliver those
lists to the clerk of the peace without fee or reward.
The Learned Gentleman then read the 9th section of the Act
of Parliament, which prescribed the mode in which the jury-
: list was to be made out. The averment of the challenge in
the case of Mr. Steele would be found in page 66 of the ease
of the plaintiffs in error. It was stated that the general list,
which was the duty of the Recorder, who had caused it to be
made out, to deliver to the clerk of the peace, was not
so delivered, and it stated that a certain paper writing,
purporting to be a general list, was illegally and fraudulently
made out, and that it omitted several names which ought to
be inserted, which was to his Wrong and damage. The first
question which he proposed to argue before their Lordships
was one which at first sight their Lordships might sup-
pose it was scarcely necessary to argue, namely, that
there was a great disobedience of the statute, and that after
all the labour which had been gone irough in the
making out of the list ; the fruits of it were lost to the
public in general, and to this challenger in particular, by the
fraudulent act of some one who interfered during that
part of the proceedings pointed out by the Act, which
said that the Recorder, or Justices, shall cause this
general list to be laid before the Clerk of the
Peace, and that by such intervention a document became the
foundation of the jury list, which was not in obedience to the
Act of Parliament, or in conformity with it. The
challenge stated that this was to his prejudice, and
that it was so intended by whosoever concocted the
fraudulent document. If this was not a wrong
and matter of great public concernment—if it was not a
matter which demanded a remedy in the loudest possible
voice, he knew not what did. He was not speaking here of
the number, more or less, which was omitted from the list.
That was not the thing material. He stood upon this allega-
tion, that a real and substantial injury had been committed,
which gave this gentleman ground of challenge. The ques-
tion was, Could there be a doubt that this was wrong, and
that some remedy was requisite ? The labour of the Re-
corder, and of so many 'officers who- were engaged

4.700,398

• upon the list was thrown away, and the value of
the document was destroyed, as regarded the challenge.
He could hardly have a doubt of this if he had not read the
judgment of the Court below. The course of argument
which the Learned Judges pursued was this :—That they
thought themselves justified in examining this question by
putting some extreme case, and they asked by that process
of sophistry, if he might venture to say so with regard to
those learned persons, for whom lie felt all respect, which was
so frequently practised by those who did not wish to
arrive at the truth—" Would you say that the list
is void, because one name is omitted, or because there
is a reversion in the order of a single name ?"
He was not called upon to argue how much this was in
disobedience to the Act of Parliament, because the ques-
tion here was not the question if more or less fraud was im-
puted; and the question was far superior to the number of
names omitted, namely, that it was of damage, and the injury
averred was as precise as possible, because, as their Lordships
saw, the damage was prospective, because the damage was
not arrived which it was the object of the challenge should
not arrive, but which impended over the party. He was
surprised it had not occurred to those learned persons
who put this extreme case to put. the other
extreme, whether if all the names had been omitted but one
it would be good. Supposing a rat had gnawed out one of
the names, would that not render the list invalid ? Supposing
a more hungry rat had gnawed out all the names, would not
that render it invalid? But .if a rat of discretion—a
rat that knew what he was about—gnawed out cer-
tain of the names, would not that render it invalid ?
Suppose it true that the names which had been omitted had
each a mark on the side. Suppose it to be impossible to
imagine that the loss of any number of sheets could account
for the names omitted from the jury list. Suppose the names
ought to have been spread all over the book. Suppose it
appeared from the record, and he would not travel out of
the record, that this was a great cause arising out of a
great political and religious contest, and that there were
indications to show the religious and political feelings of the
persons whose names had been omitted, and that those
names had been omitted in consequence. Now, in a case
like this, in which fraud was distinctly alleged, he was at a
lots to understand why inquiry should be refused, even if it
was demandable as a strict right. Inquiry ought to have
been courted if each party had been equally desirous to have
.the jury list, which they ought to have had, fair and impartial.
If the will of the Legislature had been complied with in every
particular there would have been difficulty enough in the then
social state of Dublin in procuring a fair and imparital jury
This great question was the agitating the country. It would
be no aspersion on the great body of men from whom the jurors
were sworn, to say that there was not among them any one
to be found who did not entertain strong feelings on this
great question on one side or on the other. Indeed, he should
feel little respect for any one man living in Ireland who had
not strong feelings on one side or on the other on this vital
question. This case had been brought to trial under the able
direction of his Learned Friend, the Attorney-General for
Ireland. Every fact was to be subjected to the
investigation of the jury, and every member of
that jury was almost certain to be biased on
one side or the other, without any fault of his
own. Now if a case could• be imagined which beyond all
others required a strict—he might almost say a superstitious
compliance with every portion of the Jury Act—it was the
case before the House. It was expected that the trial would
operate on public opinionit was intended that it should be
held up as an example to the people of Ireland; could that
be done in any way except by convincing the people that all
was done, not from vengeance, but from justice, and to vindi-
cate the law? If that were the object in view, he could only
say that the means taken to effect it were most unfortunate.
Above all things it was necessary that no suspicion should
rest on the impartiality of the jury. On that point, he would
quote the language in which, on one occasion which might
be considered epoch in law, one of their own Lordships
had expressed his deliberate opinidn :—" I should be guilty
of no exaggeration—l should be led by fancy into no error if .I
said that all the vast establishments of this great empire—
that King. and Lords and Commons were all instituted for
the simple object of putting twelve good men into a box."
If that were so, surely it was of infinite importance that the
intentions of the Legislature to secure these twelve " good
men" should be attended to. What was the meaning of" good
men ?" It was meant that they should be impartial and intelli-
gent. But as no general words introduced into an Act,ofParlia-
ment could produce that particular effect, the Legislature
had laid down certain qualifications which ought to be com-
plied with before the jury entered the box. Now, what was
the remedy if these provisions were departed from ? The
challenge of the array. It was admitted, he believed, that
that right was not taken away by statute. But
that omission was coupled with an exception, the ob •
ject of which was to show that the right could not be used
in the present case, and for the purpose disclosed in this chal-
lenge. Now he proposed to show that the challenge of this
array constituted the great right from which this great
wrong was to receive an effectual remedy. In England until
the Revolution, and in Ireland until the Act of the 3d and 4th
William IV., ie sheriff was the- only officer, who, by him-
self or his subordinates, could refuse the challenge to
the array. In Coke upon Lyttleton, section 136, it was
said that a challenge of the array would lie for noniridifferency
or default: of the sheriff. There could be no doubt Lord
Coke, in laying down the right of challenge to the array in
these raw and general terms, and in reference to the autho-
rities, it appeared that this right to challenge the
array existed in all cases in which the sheriff was, or
in the contemplation .of the law might be, a partiakperson,
or where, in contemplation of law, he stood in-such a relation
to one of the parties as that he lost his impartiality. So
suspicious was the common law upon the subject, that it was
thought right to set aside the sheriffs, and direct a venire to
the coroner, when he stood in any relation, even that of god-
father to a child, of any of the opposing parties. He had
found cases in the old books replete on the subject of chal-
lenging the array, though in modern times those cases were not
so numerous. there was a case in the lith of Edward 111.,
in which the Sheriff who empannelled the jury was related
to some of the parties, and un the array
being challenged, the panel was dpoivashed: in an-
other case, where the under-sheriff empannelled the
the jury, and where he was found to have seine connexion
with the parties, the appointment of the jury was quashed
upon the array being challenged. Would it not then, he
would ask, be a most monstrous thing, to put a con-
struction upon the Act that would put an end
to that important remedy of challenging the
array ? Could. there be anything more important than
such a right ? It had been a subject of eulogium by Sir W.
Blackstone, and even so far back as the time of Cicero, the
appointment of jurors was matter of consent between the par-
ties ; and Blackstcne says that the system in this country was
very much upon a par to that which existed in ancient Rome.
Ile would put this upon the same footing as the writ of
certiorari by which the inferior courts were prevented from
running into licentiousness and from departing from law and
justice. Then came the question whether the right of chal-
lenge was taken away by Acts of Parliament that were
supposed to take it away. He considered that the subject
was not to be deprived of this great remedy except by
express words. He urged the right could not be
taken away, or its efficacy injured, • except by
express words in an Act of Parliament. It appeared
to him that the circumstance (.1 the Act taking away
this right in express terms was no unimportant part of
his argument. It showed that the Legislature had in view
this right of challenging the array, and that unless a change
of society should render the right valueless, the Legislature
was unwilling to abridge the force and efficacy of this great
remedy. The proposition which he meant to submit, as con-
sequent upon the observations which lie had made, was that
wherever officers were appointed for the purpose of executing
any portion of those duties which anciently fell upon the
sheriff, and where, in consequence of such interposition, the
array had some vice in it which, in ancient times, would have
been met by the remedy in question, there that remedy
still existed, for the same purpose as it existed in
ancient times, The principle of the remedy was that
there should be power to destroy every panel which had a
vice in it. Applying that principle he thought their Lord-
ships would have no difficulty in saying, that the right of
challenge was still preserved in all its integrity, and it was
peculiarly applicable to the case then before the House. This
was denied in the courts below. It would be said
that there was no power of interfering with reference
to the various offences. The question had been treated
as though theitobject was to ascertain whether the offences
were deserving of punishment or not. If that question aisise
at all, it was only :.s a secondary or collateral one. main
question was this, was that document which was the r,
of all these collections of names and inquiries with qualifica-
tions, a sound or an unsound document ; was it a do-
cument which gave aid to the sheriffs? It was said
that a judicial power was given here to the justices, repre-
sented by the recorder, which must not be interfered with
by the challenge of the array. In the present case there was
no complaint of any adjudicatiqn made by the recorder,
• either of an omission or the retaining of names which ought
to have been excluded. The complaint began after that ad-
judication was made—after the exercise of judicial power, if
it were properly so called, which he very much doubted, was
at an end. The office was then merely a ministerial one for
the purpose of " causing"—to use the words of the Act—
the adjudications to be collected into a general list to be
taken to the clerk of the peace." There was no semblance
of a judicial power, it was simply the work of an intelligent
clerk. Up to the point of the adjudication no complaint ex-
isted, but after that adjudication some power intruded itself
upon the scene, took this list, and dealt with it in a frau-
dulent manner. One of the Learned Judges was of opinion
that the challenge was good. He asked this pertinent ques-
tion, " What was the difficulty when the eror was discovered
of rectifying it? How was the paper lost ?" This was a
question Which he thought it would be very difficult to
answer on the plat of the Crown. If the list for the former