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

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 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 CAMrnELL asked was there any analogous Act in
England ?
Mr. Mu. 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 enaeting 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 hath said in his heart."
Let their Lordships try that experiment—let them try that
mode of illustration upon ' the words before then, and the
sense would be exactly the saiiie. 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 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
Lerdships 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 Loan CHANCELLOR—We all know, Mr. Hill, what the
meaning of the Clerk of the Crown at assizes is. We have
had much experience on that subject, and the Judges will
have practical experience of it again very shortly, Wyatt only
allow them.—(Laughter.)
Mr. HILL would dealt 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. Nov, 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, be 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-
terpositibn of the Legislature. He apprehended that the full
meaning of this preamble 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 CAMPBEI.LIS there not in Dublin a Court of Oyer
and Terminer? analogous to our Central Criminal Court ?
Mr. HlLL—There may be, my Lord.
'Lord CAmrnELL—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. . . .

Loid CA3lPBEtt.—There are a great many persons tried in
that Court, but I do not know that it will affect your
argument.
Mr. Hitt—Lord &icon mentions, as one of the incidents of
an assize, that it is under a commission.

The Lcinn CHANCELLOR—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 from that regulation. There were some advantages
to 'the defendants in their early notice of what witnesses
might be called against them; 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 Loeb 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 grand 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,