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

• of juries, must be examined by the judges with cri-
tical care. It must be admitted that the Recorder sent
no general list to the sheriff, but that some spuri-
ous 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 being
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 hare 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 suspieion 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. 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 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 fist 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 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
sh-ould 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
Com.mon 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 'lust 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 p
prived of his right of challenge, on being de
onaccou_
in;
of the omission of individuals from the list, and it.
was replied that there were good namess
enoughte court
re-
turned by the sheriff ; but it was held by h
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 affidavits 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. He knew nothing further of the pro-
ceedings than what he had seen in the papers. He under-
stoed 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. He was by no means clear that there was

anything illegal involved in the expression of opinion
against courts of law for the purpose of having other
counts submitted that would be more satisfactory; but
however it was quite enough for his argument espe-
cially as all the learned judges had given an unani-
mous opinion that they were bad counts—that two
counts in the indictment were bad. The question was,
whether the judgment that had been pronounced, and
the sentence which had been passed, could be good
' under the circumstances I' The question was A
and B are counts, C was a bad
count, and good
court pronounced -sentence
' upon the defendants in respect to A, B, and C. Here
were three counts, on all of which evidence had bees
taken, and a verdict was taken upon each of these
three counts. A conviction was obtained, and the
court proceeded to pass sentence, and the punishment
was awarded according to the discretion of the judge.
Now it was possible that the court had taken into
account the bad counts as well as the good ones.
They had been told that they must assume that judg-
ment had been pronounced on the good counts only.
Now in the first place, he had a serious objection to
that. The presumption was in direct contradiction to
a notorious fact. If they were to assume this, future
students at law in Dublin would, on a reference to the
reports of the Queen's Bench in Ireland, find that the
fact was contrary to that which their Lordships had
assumed. The law judges had stated that two of the
counts were bad, while the Court of Queen's Bench
had declared that they were perfectly good and un-
exceptionable. This put the question entirely out of
court. He had felt with his learned brethren great
surpriie when he heard the ingenious argument which
had been addressed to the court on this subject, and
he confessed that he never felt any doubt on the sub-
ject until that argument was submitted to his mind.
Now, the question was, whether in point of fact
there was legal ground for doubt to be entertained.
It was not the first time that a court of justice had
taken that view. He remembered at the time that
his Noble and Learned Friend, now on the Woolsack,
presided over the Court of Exchequer, a case was
brought before that court, in which it was proposed
to overrule not the mere dicta of judges, not merely
an opinion which had been received with favour in
Westminster-hall, but a series of decided cases run-
ning through a period of fifty years. His Noble
and Learned Friend, now on the Woolsack, had
examined those cues, and in giving judgment
had stated that inasmuch as the decisions in those
cases were clearly founded in error, they were not
binding. That was the case of Hutton r. Vann,
which had afterwards come before there Lordships'
House, and their Lordships were of opinion that they
were bound by the authorities, but that had not pre-
vented his Noble and Learned Friend who presided
over the Exchequer from entering into the con.
sideration of those cases, and of deciding that
they were not good in law, as they all originated
in a mistake which had crept in in the time of Lord
Mansfield. He had heard his Noble and Learned
Friend, with that admiration with which he had al-
ways heard him, lay down the rule on this subject. But
their Lordships were not to be satisfied merely with the
opinions of the judges, they had a duty of their own to
perform. They must satisfy their own consciences.
The opinions of the judges were merely the materials
for making up their minds, and they must be satisfied
before their minds were made up. What had
haPpened in that House not twelve months
ago ?: There was an universal opinion of the
bar founded on three distinct judgments of. different
judges of former times, as to the law of marriage.
Lord Mansfield, Lord Kenyon, and Lord Ellen-
borough had all taken the same view as to the nature of
the marriage contract, and Lord Stowell, who had
had half e century of experience, and who had de-
voted the greater part of his time to the considera-
tion of this subject, agreed with them in opinion.
Their Lordships had entered on the consideration
of the case, and had requested the attendance and
opinion of the judges. The judges had given their
opinion, which was contrary to the opinion of their
predecessors ; but their Lordships, convinced by the
arguments which had been laid before them, differed,
toto ceelo, from the opinion of the judges, and felt
bound to say, according to their own convictions, that
the judges had not taken a correct view. On that
question their Lordships were equally divided, and the
consequence was that the judgment of the court below
was affirmed contrary to the opinion given by the
learned judges. He admitted that when he had first
heard the argument on that point at the bar, he had
heard it with surprise, but his surprise had afterwards
changed its object, and he was surprised, not so much
that the objection should have been taken, as that
such a rule should ever have been considered law. He
was convinced that it never had been law, and the
slightest attention would show that such was the case.
It had arisen from a dictum of Lord Mansfield's, not
in a case relating to the criminal law, but in a
case relating to the civil law, when he was not called
upon to inquire into the state of the criminal law on
the subject, and when he went out of his way to
make a grievance against the law, as he thought, he
found it by making an antithesis between the civil
and criminal law. He said that in a civil action in
which there were several counts in the declaration,
and in which a jury gave general damages,
such a verdict would be laid aside if one of
the counts of the declaration were bad, and
he commented upon the inconvenience of such
a rule. He regretted that it had not occurred
to Lord Mansfield that' there was a plain remedy for
this inconvenience, and that he had nothing to do
while sitting at Nisi Prius, but to tell the jury t:!,
assess the damages upon each count, and then the
verdict could be set aside upon those counts Which
were bad, while it would stand upon those which
were good. Why it should be necessary to say that
the rule was different in criminal cases he (Lord
Denman) was at a loss to know. No doubt since
that time the opinion had been universal in Westmin-
ster Hall. The Bar had all expressed the same opi.
nion, and why? Because they had taken the law
for granted. And here he would say that they
looked at the law in columns, as it were,
to consider on what it rested. They would find that a
certain portion of it rested upon Acts of Parliament,
a certain other portion upon decisions,' a certain other
portien upon dicta, and a considerable portion of it
would be found to be taken for granted. There was
a rest deal which was taken for granted as law
which, when examined, turned out to be no law at all,
being founded on no reason, and resting on no deci-
sion—and such, he thought, was the case in the pre-
sent instance. He thought that his Learned Brethren,
on Monday, must have forgetter certain facts con.
nected with the administration of the criminal
law. They had stated that in an indictment
for felony, consisting of several counts, it
was usual to take a general verdict, and if
there wak one good count that was sufficient. He
denied that that was the universal practice. Whenever
he tried criminal cases in which there were several
counts, he always put it to the jury in this manner—
"Do you think there is anything on such a point ?
if not, you will acquit him on that point." For in-
stance, in case of an indictment for attempt to murder,
to maim, and disable, to do some grievous bodily harm,
he would say, with regard to the attempt to murder,
"If you consider he did not intend to murder, you
will strike that out at once. It is clear that he never
intended to disable, therefore you will acquit him on
that point. There is no evidence to support
the intention to maim ; and with regard to
the count alleging.
some grievous bodily harm,
you will consider it. Now, in that case a jury would
most probably bring in a verdict of not guilty on the
three first counts, and convict on the last
alone. That was the proper course for a
judge to pursue, and one which would
remove all difficulty. It was said that the
adoption of such a course would 'give rise to the in-
convenience of the judges being called on to form an
opinion upon the goodness of the counts before the
delivery of a verdict. No inconvenience could arise;
on the contrary, he thought great good would be pro-
duced from their adoption of the practice. In his
opinion there could not be a greater grievance
and oppression than these endless, unintelligible,
unwieldly, voluminous indictments. An indictment
extending over fifty-seven pages was itself a grievance ;
many prisoners could not afford to pay the clerk of
and, when they got
the peace for a copy,
it, the most learned persons could not
_ find out with
what the
bipgriuosouncrs
thatwere charged
g.bt
be
s
The words were
o am
that the
pleader who drew it up might mean one thing, the
jury another, the judge a third,and
error a fourth, if they did not overthrow the whole
judgment. There was also a mistake as to the prac-
tice of the Court of Queen's Bench in this country.
It was said that when an arrest of judgment was
moved on one count, the court was in
the habit of refusing if there was an-
other count which would support the verdict.
Had that been so in the case of Feargus O'Connor ?
He had been convicted on two counts. The Court
had heard the argument on one count in arrest of
judgment, and had granted it, and then had proceeded
which was so full
to hear arguments on another count,
-
expressions, that the of verboaity and ambiguous
At-
torney-General discovering the great doubt which
court entertained, had never pressed
for judgment.
No inconvenience could arise from adopting the cor.
which he had
rect practice. In a case ofconspiracy
tried at Guildhall, objection had been made to a count.
He said it was immaterial, as he was not going to pass
judgment then, but had he been going to do so, he
should have considered the goodness of the count, also
where there were several counts on each, saying, we
apportion such and such a punishment to such a count,
and such and such a punishment to others:*
And thus it would be reserved for the after-considers.
tion of the ceurt how far the objections affected that
judgment. Such was the practice of the Court of
Queen's Bench, and the proper mode, as it seemed to
him, of proceeding. But his Noble and Learned
Friends said that the objections were merely technics),
and that no injustice could arise from the course that