The Sun.
London, England, 1844-07-05 00:00:00

fourtbNbition
SUN OFFICE, Seven o' Clock.

THE STATE TRIALS.

WRIT OF ERROR.

HOUSE OF LORDS.-(THIS DAY.)

(SECOND DAY.)
THE QUEEN AGAINST O'CONNELL AND OTHERS.

Mr. PEACOCK (in continuation from our Afternoon
Edition) 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 Loßn 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 CHANCELLOR—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 authorities, amongst others, 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. Him, 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 bad 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 toty 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 shall 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. Hui. 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 had 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, you might prove from the
Bible that " there was no God," by omitting the important
sentence which preceded—" The fool bath 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_witnesses, 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 ;he 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 prius 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 LORD CNANem-eon—We all know, Mr. Hill, what the
meaning of the Clerk of the Crown at assizes is. We have
had so much experience on that subject, and the Judges will
have practical experience of 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 case. The question, then, was—Was there upon this Act
anything that could extend the words and meaning of the
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. Now,
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
and preamble. With regard to the title, he 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
very strange 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 ? Take 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 had 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-
t&position of the Legislature. He apprehended that the full
meaning of this preamble could 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 Claarnme—ls there not in Dublin a Court of Oyer
' and Terminer, analogous to our Central Criminal Court?
Mr. HlLL—There may be, my Lord.
Lord CastrnEu—Would you not allow that that Court is
an assize ?
Mr. Hree—As far as I am aware of the constitution of that
Court, it is not an assize. It never was so called.
Lord Gestraxer.—There are a great many persons tried in
that Court, but I do not know that it will affect your
argument.
Hier.--Lord Bacon mentions, as one of the incidents of
an assize, that it is under a commission.
The LORD CHANceeeorc—This indictment was found there,
was it not?
Mr. Hree—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 asigned for error in fact, that the witnesses upon whose
evidence ths 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
gppposing the foreman of the grand
prow person to swear these
jtur hisy question,tehe the
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 feet 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 seem),
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
gizAd jury, But the grand jury were frequently satisfied
with a tent;
number of witnesses than the prosecutor had
dente of the first witnese.
•ed the bill, he supposed upon the evi-
prepared. They
the court to know
made as pointed out by the Act,
How, unless the certificate was
upon the evidence of what witness the bill ,-44.1 been found.
It was an unusual proposition that where the course ti
ceeding in a court of justice, according to the commoit
was changed, where a new tribunal, if he might be per-
mitted. to use that French word, was chosen, tact] the power
by whieh that change was effected must be sy pursued.
Mpg 6601 PfUltOrge MI and probably before it, it wee