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

INCOME.

Customs.—Consolidated Duties
Sugar applicable to the
Consolidated Fund

Total Customs
Excise
Stamps
Taxes
Prope ty Tax
Post Office'
Crown Lands
Miscellaneous
Produce of Silver from China
Imprest and other Monies
Relmyment of Advance.

To Cash brought to this Account to
be applied to pay off Deficiency Bills

13,551,810

13,377,883

THE STATE TRIALS.
(SECOND DAY.)

WRIT.OF ERROR.
HOUSE OF LORDS, July 5.
THE QUREN AGAINST O'CONNELL AND OTHERS.
Mr. PEACOCK (in :continuation from our Afternoon
Edition of yesterday) said—Now this was one of the
objections in the King v. Walker, that there would be
two judgments on the record, for if the court of error added
to the judgment of the court below, that would make it a
new.judgment.
The LORD CHANCELLOR said that the court below could
cure the defect in the same term.

Mr. PEAcocK—They could do so if it were a mere mis-
prision of the clerk.
The LORD CIIANCELLOR—I take it that this was a mis-
prision.

Mr. PEACOCK submitted that it was an erroneous judg-
ment of the court, and not a misprision of the clerk. it was

laid down in several authoritie;„ among;CoThJ;, Bacon's
Abridgment (Error No. 2), that when the defendant brings a
writ of error, he comes for a reversal of the judgment, and
the Court cannot amend, but must reverse the judgment.
When the plaintiff brought a writ of error, he applied for that
judgment from the Court above, which the Court below
should have given. In this case, therefore, he submitted that
the judgment of their Lordship's must be to reverse that of
the Court below. He apologised for occupying their Lord-
ships so long, and thanked them for their indulgence.

Mr. HILL, who appeared for Messrs Steele and Barrett,
said that in the division of the labour made amongst them-
selves by the counsel on the part of the plaintiffs in this
writ of error, it had been assigned as his portion to address
their Lordships on the objection to the witnesses being sworn
before the grand jury and not in open Court, and, secondly, on
the objections to the arraigns, it was made imperative by the
Act of Parliament, that after the witnesses had been sworn
and their names placed on the back of the indictment, the
swearing should be certified by the initials of the foreman
placed opposite each name. Before the year 1816 a practice
prevailed with some grand juries in Ireland to find bills with-
out examining witnesses, but on written statements. The
Act 56th George 111., was passed to correct this practice, and
enacted that no bill of indictment should be returned
as found unless the witnesses were sworn in open
Court; so that their Lordships would see that if there
had been any doubt at common law, it was put an
end to by that statute. From the passing of the Act it was
clear that witnesses should be sworn in open Court, as
was the case in England. But on the part of the Crown,
another statute, the Ist and 2d Victoria, c. 37, was relied
upon, and from it it was contended that in all proceedings
before grand juries in Ireland, as well in the Court of
Queen's Bench as in Courts of Session and Assizes, the wit-
nesses should be sworn by the grand jury. Now, he would
call the attention of their Lordships to the Act itself, which
was but short, and he would read the whole of it. It was entitled
an Act to enable the foreman of the grand jury or any other
grand juror to swear witnesses, and the preamble stated that
the Act was intended to remove the inconvenience and delay
occasioned by swearing witnesses in open court. He (Mr.
Hill) apprehended that the best way to interpret an Act of
Parliament was to read the body of the Act, and not to take
the preamble alone. There were many authorities for that
position, but he thought it was so well understood that
he need not trouble their Lordships by arguing it.
He would proceed, therefore, to the enacting part of this
Act, and the whole question would turn on the enacting
parts of the Ist section, which was to the effect," That in all
cases where indictments sball be laid before grand juries in
Ireland, the names of the witnesses shall be indorsed upon the
back of the indictment by the Clerk of the Crown at the
Assizes, or the Clerk of the-Peace at Sessions, and the twelve
grand jurors being present, it shall be lawful for the foreman,
or other juror, to administer to each witness the oath or
affirmation," &c.

Lord CAMPBELL asked was there any analogous Act in
England?
Mr. HILL said there was not. It was material to remark
that their Lordships had to ascertain what was the intention
of the Legislature, as shown by the means appointed, for
carrying out that intention. The Act did not give grand
juries an unconditional power to swear witnesses. They
were only empowered to do so when the names of
the witnesses were endorsed on the back of the bill,
and that could not be done by every one, but only by the Clerk
of the Crown at sessions, and the Clerk of the Peace at the '
assizes. He could not see any ground for saying that there '
was the slightest ambiguity in the Act, or that the duty laid
upon the clerks designated could be assumed by any other as
a duty to be performed or a privilege to be exercised. He
understood that much stress bad been laid by the Crown on
the introductory words of the enacting clause, which were,
"that in all cases that may come before grand juries
in Ireland ;" but he contended that those words were
not to be taken of themselves, but must have their meaning
defined by the remainder of the sentence; and if so much of
this clause as made a perfect sentence were examined, it
would be found to fix the meaning of the former part. If
they were to take a detached phrase in any Act of Parlia-
ment, or in any other writing, they might make the sense of
that appear the very opposite of that which was intended.
As Mr. Erskine once said, 3-on might prove from the
Bible that " there was no:God," by omitting the important
sentence which preceded—. The fool hath said in his heart."
Let their Lordships try that experiment—let them try that
mode of illustration upon the words before them, and the
sense would be exactly the same. Without changing a
single word it might be read by putting the latter part of the
clause first, and then there could be no possible cavil about the
meaning. Suppose it had been stated that the clerk of the
Crown at assizes, and the clerk of the peace at Quarter
Sessions shall enter on the back of the bill of indictment the
names of the witnessea, and send them before the grand jury,
in all cases where bills were laid before the grand juries in
Ireland. The construction that he put upon the
Act of Parliament was, that the word assizes
was used there in the popular sense. He did not
know whether it was intended to be urged that the word
assize included, propria vigore, the Court of Queen's Bench in
Ireland. The present use of the word assize, and perhaps the
only use, was the one now given to it; at all events, it was
a part of popular speech in the reign of Richard 11. ; and
Chaucer, in describing a sergeant, said
" He was full oft a justice of assize."
With respect to the word assize as connected with nisi prius,
that was as old as the statute of Westminster; but their
Lordships were aware even after that statute it was neces-
sary that a new statute should be had to enable trials to take
place in the Courts of Westminster at nisi prim; instead of at
bar. Now, the definition of assize given by Lord Coke, in.
his 2d Institute, page 422, was, that before Magna Charta
assizes were only to be taken in the Court of Common Pleas.
The LonD CDAricnuou—We all know, Mr. Hill, what the
meaning of the Clerk of the 'Crown at assizes is. We have
had much experience On tha, Wiest, and the Judges will
have practical experienced it again very shortly, if you only
allow them.—(Laughter.)
Mr. HILL would do all in his power to' enable the Judges
to do so, and after the observations' that had been thrown
out by their Lordships, he would proceed to another part of
the
that
te then,qcounesidtioenx,tendwas--Was
words and meaning of the
w--Was there upon this Act
Act to the Court of Queen's Bench ?' It was assumed in the
judgment below to be the clear and evident intention of the
Legislature that these enactments should include the Court
of Queen's Bench. New, how were their Lordships to col-
lect that such was the intention, and that that was the
true construction? It was supposed to be in the title
anythingcase.
and preamble. With regard to the title, lie need
not argue that it was no part of the bill,
any more than the word " assizes" included the Court of
Queen's Bench. But supposing it to be so, would it not be a
verrstrang e construction to take the general terms of a title
which ought to be short, and which in the present case was
short enough, and suppose that they defined the operation of
the Act? 'rake the case of the Statute of Frauds, the title of
which was, "An Act to prevent Frauds and Perjury." Was
that an Act to prevent all frauds and all perjuries? It
would, indeed, be an invaluable Act if it had such
an effect. This was an Act to empower grand juries in Ire-
land to administer oaths to witnesses upon bills of indict-
' ment. The title could not be expected to contain the limi-
tations of the Act substantially. Sitting in a court of error
on an indictment coming from Ireland, their Lord-
ships must be presumed to know the practice of the
Court of Queen's Bench in that country; and that
the number of criminal cases .in that Court, as in the
Court of Queen's Bench in England, was exceedingly
few. The only words which at all bore on the question in
the preamble, were the following That the administra-
tion of the Court has been productive of delay and other in-
conveniences." Did it necessarily follow that it was produc-
tive of delay and inconvenience in every case, and in every
court? Surely they bad seen that day proof that there were
some courts in which the swearing of witnesses in open court
was not considered such an inconvenience as called for the in-
terposition of the 'Legislature. He apprehended that the full
meaning of this Oreamble would be satisfied if, in the majority
of instances, it had been found productive of delay and incon-
venience. • When their Lordships saw that the limited mean-
ing which he ventured to put upon the Act would extend to
9,999 out of every 10,000 cases which were tried in Ireland,
surely they would be of opinion that there was sufficient left,
if they deducted the number of cases in the Queen's Bench,
to satisfy all that was averred.
Lord CAMPBELL-IS there not in Dublin a Court of Oyer
and Terminer, analogous to our Central Criminal Court?
Mr. Him—There may be, my Lord.
Lord CAsirDELL—Would you not allow that that Court is
an assize ?

Mr. HILL—As far as I am aware of the constitution of that
Court, it is not an assize. -It never was so called.