The Sun.
London, England, 1844-09-05 00:00:00

THE SUN, LONDON, THURSDAY EVENING, SEPTEMBER 5 1844,

THE WRIT OF ERROR.
(From the Times.)
The House of Lords has given its decision in the
case of Mr. O'Connell, and that decision is a reversal
of the judgment of the court below, in opposition to
the opinions of the majority of the judges, delivered
on Monday. The majority in the House of Lords
consisted of Lords Denman, Campbell, and Cotten-
ham, against the Chancellor and Lord Brougham.
With respect to the legal points at issue, the law is in
such a state that it was, of course, a toss up which
way judgment would be given. It is unusual to go
against the opinion of the judges, and therefore it was
naturally expected that the House would agree with
that opinion. As it is, they have disagreed with it.
The matter appears to stand thus :—On the great
merits and substance of the case there was no doubt
and no difference of opinion amongst our judges.
It is quite clear that under one count or another in
the indictment, a true legal offence was described, and
that on the proof of that offence judgment was given
against Mr. O'Connell. This is the common sense
view. On the other hand comes in the legal diffi-
culty. The indictment contained bad and unsound
matter, as well as good and sound. The judgment
was given upon the indictment; the judgment was
given, therefore, upon bad counts as well as upon good
ones. Here is the point. The bad invalidate the
good, say Mr. Baron Parke and the minority of the
bench ; the good turn the bad out of the field, say Chief
Justice Tindal and the majority. Judgment is given
upon a mixture, says one side; judgment supposes
only the sound ingredients of the mixture, says an-
other. This is one of the main questions; the other
relates to the appointment of the jury, and the vicious
list out of which they were selected. There is legal
remedy in this case, says one side of the judicial
bench ; there is not, says the other. Who shall de-
cide when doctors disagree ? A majority of judges
on one side, and a minority on another, was still a
division of opinion ; and the Lords had a right to de-
cide between the two. So thought Lords Denman,
Cottenham, and Campbell. They conceived also that
they had a perfect right to entertain a coincidence of
opinion on the matter with Mr. Baron Parke, and un-
doubtedly they have. Mr. Baron Parke, as we have
acknowledged already, is a luminary of the law. No
one can dispute the right of the 'Whig law Lords to
entertain his view; and they have, as we see, not
failed to entertain it. A curious mixture and per-
plexity of justice ensues upon this decision. Going
upon the substantial merits of the case, Mr. O'Con-
nell has confessedly been' condemned justly going
upon the legal question, the majority of the law Lords
say he has been condemned unjustly; and he has al-
ready actually suffered part of his sentence. He can
proclaim the injustice of a now so decided illegal
sentence of imprisonment. On the other hand, an
opponent may tell him that what was prospectively
illegal was not prevented by that circumstance from
being actually at the time legal. The law put Mr.
O'Connell in prison, and the law has taken him out.
The law is his enemy and his friend ; but it is law
in either case. A legal interpretation acts subse-
quently to its promulgation, but cannot antedate
itself. What was done before was done then, and not
now ; and Mr. O'Connell's imprisonment is present
illegality but retrospective law. However Mr.
O'Connell is now out, and at large, or will be in the
course of a few hours. It remains with him to select
the character that he will play on so important and
triumphant an occasion as the present. Will he be
serene and majestic, or indignant and threatening ?
Will he pity, or will he storm? 'Will he smile, or
shake his fist ? Will he astound all Ireland with
quiet magnanimity, or immediately commence retali-
ation ? We have no doubt he will duly revolve and
debate the part he will play. It is a critical moment;
much may be made of it by good management;
much may be lost, and much gained; he must take
some line that will be striking and impressive. What
a crowd of political moves in posse will cross and
jostle one another in his brain as soon as the triumph-
ant intelligence is communicated. And the choice
must be made immediately; the prison doors are
opening, and the excited mob are waiting outside. Mr.
O'Connell should really have time for deliberation, and
be allowed, as a favour, to stay one week longer ingaol.
Meantime, without undertaking to prophesy what
the immediate effects of the decision of the House of
Lords will be, and fully aware, as we are, of the un-
favourable turn which such successes generally have
taken in Ireland, we must yet suggest one aspect in
which the present one ought to be viewed, and which
should tell anything but unfavourably upon Irish
feelings to England. The Irish cannot at any rate
now complain of the injustice of England : we do not
decide ourselves whether this judgment of the Lords
is a good or a bad one, just or unjust: but the Irish
certainly cannot complain of it. English law cannot
be impugned and accused of Irish antipathies
at any rate in this instance. English law has set
Mr. O'Connell free. Ungrateful it would be to an
excess in them to go to any other source than the
unpolluted purity of English law for the favour-
able sentence, or even to whisper the remotest con-
jecture of an obligation to the political partialities
of Lords Denman, Cottenham, and Campbell, for
the issue of this appeal. The Noble and Learned
Lords would disown it with indignation ; and there-
fore, they must acknowledge that it is law, and law
only—English law and justice—which has done this.
Or even supposing a shade of party—a mere touch of
the politician corning in, in the business—we men-
tion it as the barest hypothesis—still the learned
Lords are not the House of Lords. The House is
Conservative, and this is the decision of the House.
And though it may be said that custom prevents any
but law Lords voting, and that therefore this is prac-
tically only the decision of certain law Lords, this
only removes the conclusion one step further. The
fact still remains that the House has committed itself
to this decision, and that the supreme tribunal of
England has given a most gratifying judgment for
Ireland. 'Whether that judgment is right or wrong,
we do not say; it must at any rate be a pleasing one
to the Irish ; and they are not, therefore, the persons
now to complain of English injustice and partiality.
(From the Morning Herald.)
" The glorious uncertainty of the law" has had a
new triumph. The judgment of the Irish Court of
Queen's Bench, in the case of O'Connell and others,
though approved of by seven out of the nine judges
free to offer an opinion upon the subject, and by the
Chancellor and Lord Brougham, has been reversed
by the votes of only three Noble and Learned Lords
—two of them ex-Chancellors of Whig promotion,
and the third a nobleman whom we dislike to find in
such company—though fourteen years ago he was a
Whig—Lord Denman. Let us marshal the autho-
rities on each side :
FOR THE JUDGMENT. AGAINST IT.

side fraught with immense evil. There is not one of we are in the habit of lauding to the skies, does not
the miserable creatures, for example, now suffering provide the means of reparation for individuals who
under sentences imposed at the late special commis- have suffered three months' false imprisonment at
sions in South Wales and elsewhere, who, seeing the the hands of a vindictive Government. The prosecu-
escape of Mr. O'Connell and the rest by dint of petti- ; tion of Mr. O'Connell has been a most unfortunate
fogging and of party ityluence, must not feel that if he step from the first. As it began, so it has con=
had the means of paying for the necessary amount of I tinued, and so it has ended. Blunder succeeded
pettifogging, he might as confidently bid defiance to law 1 blunder on the part of the Attorney-General, and
and justice. We deeply regret to find Lord Denman I even on the seat of justice, until all law and justice
mixed up in this discreditable decision, and regret it have been made ridiculous. It is impossible for any
scarcely the less because we believe thathis Lordship has man, after what he has witnessed in our courts of
been acting upon a misconception unworthy of him. law, and on the bench of justice for the last six
The noble Chief Justice of England founded his months, to entertain in future any respect either for
decision to reverse the judgment of his Irish brethren
chiefly upon the alleged fraud in the construction of the proceedings of lawyers, or the dicta of judges.
We wish that our observations were applicable only
the jury list—in this taking a view different from all
of the four Irish judges. Now, that there was fraud
the English judges withouCexception, and from three to the Bench and the Bar on the other side of the
Channel. Unhappily they also apply nearer home.
Mon-
that fraud committed ? Not by the officers of the
in the matter we firmly believe, but by whom was day, in the House of Lords. Ask any hundred
What a melancholy exhibition was made on Mon-
jury lists; not by the officers of the court, for they
men you meet in the public streets of any
Crown, for not one of them ever had access to the town in Great Britain, what they conceived to
had little interest in the affair, and have, besides be the crowning offence which Mr. O'Connell com-
, mitted in the eye of the law, and for which he and his
completely purged themselves by affidavits; but there
were some who had access to the lists who have never fellow-patriots were incarcerated in Richmond
Bridewell ? Ask them this question, and ninety-nine
purged themselves by any affidavit ; and who had a out of the hundred, if not the entire hundred,
a deep interest in stealing the lists, because the
stolen lists contained a majority of Protestants ; and will answer that the gravamen of the charge
against the prisoners was the circumstance of
thus, in the first place, improved the chances of the
their holding the monster meetings, by which they
traversers, and because, secondly, an exposure of the
intimidated her Majesty's subjects, and endangered
fact that lists were stolen might upset the judgment
the public peace. How will such persons be sur-
if the traversers did not get a Jury to their mind, as prised when they are informed, that though the counts
in fact it has done—for these—the only persons who
which the English judges found to have been ille-
had access to the lists, and an interest in stealing the gully framed, or on which the jury returned defective
lists, and who purged themselves by no affidavits—
findings, are those very counts which charged Mr.
were the servants of the traversers' attorneys. O'Connell with intimidating her Majesty's subjects,
The country will learn with astonishment the re-
(From the Morning Post.) and endangering the public peace, yet that a large
majority of these judges came to the decision that the
suit of the proceedings, yesterday, in the House of
Lords. The
Bench has been reversed, and Mr. O'Connell is, once
judgment of the Irish Court of Queen's sentence passed on the prisoners ought not to be re-
versed ? Judicial minds may be able to reconcile
again, virtually a free man. By its course of action, such extraordinary anomalies, but we suspect very
few else will. To the public the decision of the Eng-
yesterday, the House of Lords has, voluntarily, re-
nounced some of its most important functions ; while fish judges, and the affirmation of the sentence of the
the amiable Lord Wharncliffe and his colleagues have Irish court, will for ever appear at irreconeileable vari-
betrayed the interests of the Queen's loyal subjects in mice. An outrage, as we have already said, has been
offered to the sacredness of justice, from the initiatory
England as well as in Ireland. Lord Lyndhurst and
step taken in these prosecutions, 'down to the closing
Lord Brougham, it will be perceived, concurred in
opinion with the judges of England, as well as with of thejudicial drama. The law, too, as far as
act
the Irish Court of Queen's Bench; while Lords Den- unprofessional persons like ourselves can compre-
hend it, has suffered violence in various stages of the
man, Campbell, and Cottenham argued in favour of
a State trials; but we are sure we only speak the una-
reversal of the sentence which has been passed on
nimous conviction of men of all parties, when we say
O'Connell and his fellow conspirators. The opinions that this last exhibition of judicial inconsistency, legal
of these three Learned Whigs would, however, have absurdity, and injustice, will do more to bring the
availed little with the House, had not Lord ham- English bench of justice into disrepute than any-
clifl'e entreated the lay Peers not to vote on a ques- thing which has occurred for many years past. For-
tion which Lords learned in the law ought to decide.
The doctrine of Lord Wharncliffe in this matter tunately, the more enlightened, more rational, more
constitutional view o the question en by Lords
is not the doctrine of the constitution. Even Lord
Denman, Cottenham,f and Campbell, taken
has interposed
Campbell disclaimed, for his order, any such ex-
between Mr. O'Connell and the effects of the extra-
elusive privileges as Lord Wharncliffe thrust
upon it. The ex-Chancellor of Ireland denied, ordinary law laid down on Monday by the seven
judges, who affirmed the sentence of the court below.
in short, that in the House of Lords, sitting as a
But see how accidental this was. Had one of the
court of appeal, the constitution recognises any dis-
three law Lords whose names we have men-
tinction between the law Lords and those who have
not received their education in Inns of Court. The tinned only happened to take the same view of the
case as the Lord
" conciliatory" doctrine of Lord Wharncliffe was, in ad not the LorChancellor and Lord Brougham, or
ds, " not learned in the law, " ab-
fact, treated with infinite contempt by a Noble and
stained from voting, the law of the seven judicial
Learned Member of that political party which the Solons alluded to would have continued Mr. O'Con-
in his life doctrine in question New designed to serve. For once
nell in prison fur nine months longer, and subjected
great truth.,Lord Campbell has given utterance to a
The constitution recognises no distinc • him to the intolerable annoyance of being on, what
tion between lay Peers and law Lords when the in legal phraseology is called, his " good behaviour"
Upper House sits as a court of appeal. Lord Wharn- for seven years more. We hope that the progress and
conclusion of these trials will prove a salutary lesson
cliffe has, in fact, betrayed his brother Peers into an
to Sir Robert Peel. We are much mistaken if he
abandonment of some of their most important con- has not by this time had enough of them. Out of
stitutional functions. If his Lordship's doctrines be
sound, the country no longer possesses a court of ap- evil cometh good. Mr. O'Connell and his fellow
peal in the House of Lords. No ; our highest court prisoners have been sufferers, but the public and the
of appeal is composed, exclusively, of the lawyers in great principles of constitutional liberty will be incal-
the House. Let this fact be known to the country ; culable gainers by the Irish trials. The result is not
and let the name of the House of Lords be no of a nature to inspire future Governments, any more
than the present Administration, with any undue pas-
longer mixed up with the movements of the
lawyers who belong to that assembly. The
(From the Morning Chronicle).
sion for State prosecutions.
House of Lords has agreed, we repeat, to throw
The great case of the Queen against O'Connell,
away some of its most important constitu-
tional privileges; while, almost contemporaneously,
which has interested and agitated the British empire
the House of Commons has tried to usurp the func- for several months back, and which has excited so
many hopes, fears, and conjectures,
Lions which the constitution has denied to it. The has been brought
House of Lords, assembled as a court of appeal, does
to a final termination at last. The House of Lords,
not presume to controvert the opinions of the three after a discussion of surpassing interest, have decided
Whig law Lords. The house of Commons, with-
that the judgment which
out possessing any right to reverse the proceedings of O'Connell should be reversed, annulled, and holden
for nought,
to and that the said Daniel O'Connell should
any court of law, has attempted, on the other hand,
within these few years, to exercise as large a mea- be restored
all things which he had lost by the
sure of control over the judges of the land, as it
said judgment. The debate—if such it may be called
might over the door-keepers of St. Stephen's. The —was commenced by Lord Lyndhurst, whose speech
lay members of the House of Lords were, as we have
stated, assured by Lord Wharncliffe that they ought facts or authorities, entering not at all into
was clever, but general ;
.not entering minutely into
eitherthe
to leave the matter at issue to be determined by those the principles. of a larger kind which ought to regulate
of their number who were learned in the law. The such a decision, but contenting himself with appealing to
a general usage, and with criticising the judgment of
law Lords of the House were never let it be ob-
served, designed to be other than advisers of the Baron Parke. Warmly insisting upon the propriety
House, in its character as a court of appeal ; of acting upon the opinions of the majority of the
and it may not be forgotten that the House has, judges, who thought that the judgment ought to be
in this case of O'Connell, sought advice at the affirmed, he moved that it be affirmed accordingly. Lord
hands, not merely of the lawyers whom it. Brougham, of course, followed on the same side, and
contains, but of all the judges of England. in very much the same strain. Lord Cottenham, Lord
Nearly all these judges are, it so happens, op- Campbell, and Lord Denman, voted for the reversal
posed to the opinion expressed by Lords Denman, of the judgment. The first of these Noble Lords con-
Campbell, and Cottenham. It is, indeed, a remark- fined himself entirely to the subject upon which the
able coincidence that all the noble lawyers who voted difference of opinion existed between the judges, but
for the emancipation of O'Connell happen to belong went most elaborately over the limited space which
to O'Connell's political party. When, therefore, Lord he occupied. Lord Campbell addressed the House
Wharncliffe counselled the House to leave the matter at greater length, and expressed his opinions
to the decision of those learned in the law, he ought upon every part of the case. With regard to Lord
to have qualified his advice, and urged the lay Peers Denman, we want language_ to express the feelings
to leave the matter to the decision—not of all the of admiration with which he was listened to by
judges, nor of those judges who, by position, must ourselves, as well as the whole of the assembled
be comparatively free from political bias, but of the audience. The large and elevated expansion of his
few judges who are involved in all the heats of party views beyond the.eart-warm sincerity with which he
technical boundaries of his mere
strife. The effect on the country of this renuncia-
n profession, the
tion of their privileges by the lay Peers of England vindicated the right of every subject of the realm to a
will be most disastrous. The power of O'Connell fair and impartial trial, the noble indignation with
will be incalculably strengthened. Last year he
which he denounced the fraudulent and illegal prac-
openly defied the law and Government. This year tires which, if sanctioned by authority, would convert
her Majesty's " Conservative" Ministers have enabled
trial y jury into a "delusion, a mockery, and a
him to trample onsnare"—the general purity and elevation of his senti-
Ireland. Lord Wharncliffe
ments, expressed with an eloquence which was
in melancholy truth, offered the highest con- heightened by the graceful dignity of his presence
ceivable premium thernc
ii administrators
and
his
colleaguesof justice
have, in
on disaffection of the most deep and demeanour, and receiving utterance in a voice of
and dangerous kind. By disregarding the opinion of extraordinary beauty—all this presented in our j udg-
the great majority of the judges of England—by re- ment one of the noblest exhibitions that ever adorned
ferring, in fact, the decision of this great question to a legislature or a tribunal. And thus the monster
three law Lordi, whose political sentiments do not sentence of the monster trial is reversed. The league-
differ widely from O'Connell's —Lord Wharncliffe long indictment, the more interminable pleadings,
has contrived to play O'Connell's game better than the insinuation of treason under a mere accusation of
he and his colleagues could have done by the ma- misdemeanour, the plainest objections and claims
chinery of a Royal visit to Ireland. To pardon of right over-ruled, the straining of law and the
O'Connell would have been, to a certain extent, to perversion of justice—all have come to nought.
degrade O'Connell. Now O'Connell has no need of What use will he make of the new and tremendous
pardon. Compensation is, in fact, due to him. We power which this unhappy prosecution has bestowed
trust, therefore, that Lord Wharncliffe will move in upon Mr. O'Connell ? This question, which now
Parliament that compensation shall be tendered to the flies from mouth to mouth, is the best comment upon
loyal gentlemen who have for some months past been the policy recently pursued. After all our vigorous
compelled to share in the gaieties which have distin- government of Ireland, are we to hang on Mr.
guished the Richmond Penitentiary. Lord Wham- O'Connell's lips to learn the fate of that country ?
cliffe's movement is the most effective that any man has Is this the triumph of a Government too firm to
yet attempted in the direction of repeal. Whatever truckle to agitation ? We must confess we see little
increase of force the the reparation, necessarily tardy
require, repeal agitation may hereafter reason to hope that
require, must assuredly be placed to the credit of her and imperfect, which the law now makes to Mr.
Majesty's Ministers. It isimpossible t forget withwhat O'Connell for the wrong done to him, will check the
owi
reluctance Ministers proceeded last year to enforce the activity of the repeal movement. On the contrary,
law against OConnell, " Monster meeting" after the agitation is likely to go on with increased force
" monster meeting" was allowed to be held with im- under the stimulus of events, which will add to the
punity. For months Ministers resolutely refused to pungency of every popular exhortation. The difficul-
take any step to vindicate the law, or to protect the ties in the way of governing Ireland, will be found
Queen's loyal Irish subjects from the effects of a sys- :is formindable as ever, and to remove them
ten of intimidation more frightful than any attempted some new scheme must be tried. In the pre-
since the days of the French
revolution. That sys- sent state of Ireland, Ministers cannot stand
tem of intimidation Ministers, we repeat, approved still. Conciliation or coercion they must try, on
themselves unwilling to check. That system of inti- some new and great scale. They have paltered 1
midation Ministers have now virtually re-established. too long with the integrity of the empire. The
It is time that those who desire to prevent the dis evil was felt vividly ten days ago, and no one can
memberment of the empire should think seriously of say how soon or how long it may be before the cloud
the present aspect of affairs. The Repeal agitation now disappearing darkens the horizon again. A
will speedily be renewed with tenfold fervour. How heavy responsibility lies upon that Minister who ex-
long will that agitation be opposed by Sir Robert poses the country to a concurrence so menacing as
Peel? To how many of his professed principles has that of foreign war with intestine dissension. Every
that Right Honourable Gentleman adhered in defiance consideration of prudence, as well as of justice, now
of long• continued clamour ? In early life he was the urges us to consolidate the union with Ireland. Is
champion of Protestantism, In 1829 he betrayed the the session really to close without contributing any-
Protestant cause. He was, in a sense, the founder of thing to this end? That it will so close is but too
Orange lodges. In 1836, he lent himself to their sup- probable. The commission to prorogue has been ap-
pression without attempting to defend them. In pointed for one o'clock this day, almost the very hour
1839, he was the champion of British agriculture. In at which the House of Commons is to meet, as if for
1842 he openly adopted the principles of the Anti- the purpose of preventing even the slightest expres-
Corn-law League. Will he always oppose the clamour sion of opinion on the seriousness of the present exi-
for a repeal of the union ?
gency. Ministers, we fear, know not what to do,
(From the Morning Advertiser.) and will do nothing more than let events take their
We conesnatulate the State prisoners—we congra- course. They have neither the courage nor the com-
tulate people of Ireland—we
congratulate the prehension requisite to grapple with the difficulties of
lovers of justice throughout . the world on the event Irish government, and they are equal to nothing
which yesterday took place in
the House of Lords. better than looking.idly .
on while the connexion be-
Contrary to all expectation,_ after what had occurred tween the. two. countries is exposed to the shock of a
'n the same place on Monday, the
judgment of the agitation.
Irish ag .
Irish court has been reversed, and this evening O'Con-
nell and his fellow-prisoners will be walking the
streets of Dublin as free as any of her Majesty's sub-
jects. The reversal _ of the sentence which doomed
the Irish patriots to twelve months' incarceration, has
excited an extraordinary sensation in London. What
will be the excitement it will cause in Ireland, we
leave to be guessed by those who know the state
of public feeling in that country. In the ex-
cess of the people's joy, in their boundless exul-
tation, we trust that nothing will occur to afford
a handle to the enemies of their country. The
question will now suggest itself to every mind,
what reparation will be made to O'Connell and
his fellow-prisoners for the three months' in-
carceration they have suffered ?
Another question
will occur—what adequate reparation can be made
them ? None. The injury which has been inflicted
on them is too deep, the injustice done them too great
to admit of a measure of reparation which could meet
the merits of the case. That, however, is no reason
why some atonement should not be made. In cases
of false imprisonment—even for a few hours—at the
instance of private individuals, the party suffering
the injury can obtain ready redress. It will be very
extraordinary if the constitution, whose excellences

IN IRELAND.
Chief Justice Pennefather.

Mr. Justice Burton.

SIIOCKING MURDER.—A man named Pont, who
had been Deputy-Mayor of Epinay-sour-Senart (in the
Seine-et-Oise), was tried on Saturday at Versailles on
a charge of having poisoned his wife, and afterwards
murdered a young woman named Louise Montcneau. It
appeared from the evidence that the wife of the prisoner
was much older than himself, but he was induced to
marry her because she was much richer, and that in
order to come into the sole enjoyment of her property,
ht', in January, 1843, administered arsenic to her, and
deprived her of her life. A short time after her death
he took a fancy to Louise Monteneau, then only twenty
years old, and purchased her of her mother as his mis-
tress, by settling an annuity upon her. She became
pregnant, and, to relieve himself of the embarrassment
the child might cause him, he induced her to take means
for procuring an abortion. These failing he determined
to get rid of his mistress and child at one blow. To
effect this purpose, he, in April last, led her into the
forest of Senart, and there first shot her witk a pistol,
and then set her clothes on fire, in the hope of destroy-
ing all traces of his crime. Her body was found half-
calcined. The evidence against him was circumstantial,
but convincing. Pont, however, who is a small, mean-
looking man, appeared throughout to be confident of
escape. The jury declared him guilty, and the presi-
dent pronounced upon him 'sentence of death.

THE STATE TRIALS.

WRIT OF ERROR.

HOUSE OF LORDS.-(THIS DAY.)
JUDGIIIgYr IN TIIE CASE OF O'CONNELL
AND OTHER 3.

, (Continued from our Afternoon Edition of yesterday.)
Lord DENMAN then proceeded to deliver his opi-
nion. He would first advert to the judgment given
in the court below allowing the demurrer to the
challenge of the array. If such practices as had
taken place in the present instance in Ireland should
continue, the trial by jury would become a mockery,
a ddusion, and a snare. To the traversers' challenge
of the array, on account of sixty jurors being
omitted, the Attorney-General for Ireland had de-
murred, and by so doing had admitted that such a
fact had taken place. One of the learned judges was
of opinion that the challenge should have been allowed,
and with that opinion he entirely concurred. He felt
bound to disagree, therefore, with the opinion given by
the Learned Chief Justice of the Common Pleas. He
thought the principles he had laid down in his judg-
ment were erroneous. The question was whether the
party had had a lawful jury to try him, and on
that point he regretted, but at the same time he felt
bound to differ from his learned brethren. Ile had
no doubt that their Lordships were aware that when
the judges were consulted, it was competent for any
judge, who was a member of that House,
to attend that consultation, but he had
been so struck with the proceedings
that had taken place in Dublin that he had written to
Mr. Justice Coleridge, who had been prevented from
illness from attending their Lordships, or even
leaving his room. Now there were many
circumstances in the present case, to which
it was necessary to advert. He would, how-
ever, first call their Lordships' atten-
tion to the letter he had received from Mr. Justice
Coleridge. He said, speaking of the question of the
challenge of the array, I answer this question with
much doubt, being unable to look to the authorities
on the subject. All questions touching the formation
of jaries, must be examined by the judges with cri-
' eal care. It must be admitted that the Recorder sent
o general list to the sheriff, but that some spuri-
(US list had been made out by some person.
Tact this has been done fraudulently, and with in-
ten to prejudice him on his trial ; that from that
spu -hills list the jurors' book and special jury list
ha l been made, and the present array selected, and
taut the traverser himself was wholly unpartieipant
in this fraud, and protested against the array being
constituted from the list so framed." Here, lie 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 an 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 himself justified 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. His
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 ha 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
li-t." 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
porformed, 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 con-
sideration. His Noble and Learned Friend had
truly stated that that objection was to the con-
duct 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 net the list which the law
required, and which the Recorder himself had
declared should not be the list. He had written a
great deal n-lore than he 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 advantage 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 onthsion.
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 app roved Of ? "
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 but that there was a remedy, unless the well-
known constitutional principle of challenging the