The Sun.
London, England, 1844-07-09 00:00:00

said Daniel O'Connell saith, that the said several per-
sons whose names were so emitted from the said frau
dulent paper writing purporting to be such general list,
were also omitted from the said book purporting to
be the said jurors' book, and from said list pur-
porting to be the said special jurors' list." Here
again, there was no aliegation that the names were
not omitted from the jurors' book ; it was only alleged
that they were omitted from another paper which was
not a document within the Act of Parliament. The
challenge again proceeded to say :—" And the said
Daniel O'Connell further saith, that the said several
persons so omitted as aforesaid had been duly ad-
judged and allowed by the said Recorder at said special
sessions to be the persons having the qualification
qualifying and entitling them and each of them respec-
tively to be upon the jurors' book, and also to be upon
the special jurors' list, for the current year, to wit, the
year one thousand eight hundred and forty-four." Now,
he contended, that there was no power in the Recerder
to allow any such thing. Heiread the 26th section of the
Act to bear him out in thil-assertion, that the Recorder
bad nothing to do with
.j.ndgiug whether these • persons
were qualified to be on. the jury-list at all. The next
allegation was, that the'said Daniel O'Connell further
saith, that the panel made to try the issue in this case
Was arrayed and constructed from the special jurors'
list, for 1844, " to the manifest wrong and injury of the
said Daniel O'Connell." Again, in this allegation
it was not denied that the special jury-list was re-
gularly made up by the Sheriff, and though it was stated
it was to the manifest wrong and injury of the chal-
lenger, yet there was no affirmation that * was made
Without his privity and knowledge, or that he was not
the party by whom it was done. These were the
grounds on Which the challenge was to be set aside and
quashed. This was the whole Of the challenge ;it was
quite unnecessary to enter here on a discussion upon the
Act of Parliament, because there did not arise any point
on the challenge which could vitiate the array. But
with regard to the course taken by the Crown, of demur-
ring to the challenge instead of joining issue upon it, he
contended that the Attorney-General for Ireland had no
Other course open to him, and would have committed a
gross violation of duty if he had not done so. He had
Pursued the same course himself in a challenge made
on the special commission. He should now pro-
ceed to the enactments of the Act of Parliament.
The omission of a name could not render the whole array
illegal. There was a penalty upon the collectors if they
did not make out the list right, or inserted any names
improperly; Names might be omitted by the collectors
of the grand jury cess ; the book might be made up and
The jurors impanelled with that omission; but then there
was a provision in the Act by which a party might get
his name inserted. An omission could not have the
effect of invalidating the jury list. This point had been
wice brought before the judges in Ireland. The first
case was that of " The Queen v. 'Fitzpatrick, in Craw-
turd and Dick's Reports, vol. 3, p. 513. The second case
was that of " The Queen v. Conroy?' A prisoner was
indicted for murder upon four counts. There was a
challenge to the array, and '.Jr. Justice Holywell, in
giving judgment, said that the effect of allowing one de-
fect to vitiate the whole indictment, would
be that the whole fabric of the adminis-
tration of justice would fall to the ground.
The coroner was a general and not a particular officer.
The array in the case of the coroner might be challenged,
but it could not be in the case of a particular
officer. If there were any fault in the Crown-office,
application should be made to the Court. He trusted
that from the authorities which he had cited he had
shown to their Lordships that there was no ground for
Challenging the array on the ground of the
omission of names. He would not trouble their Lord-
ships further on that point. He would next come to the
plea in abatement, that the traversers ought not to have
been called on to answer the indictment, because the
witnesses examined before the grand jury had not been
sworn in court. It was impossible to contend that such
plea could have been allowed by the court. The Act
does not say that the jurors should be "sworn," but that
they should be "sworn or affirmed" in court. But there
was another ground on which the plea was bad. It does
not state the names of those witnesses, nor that they
Were unknown to the defendants. He held it an essen-
tial point in pleading that these things should be stated.
theut the fact that four witnesses were examined before
grand jury was not a ground of objection
. tw the indi • •
ctment ; for it was a non-constat
%al
other
witnesses were trot examined.
Lord BnocouAm—The grand jury might find from
Their own knowledge.
h_The AVTORNEY-GENERAL—Or they might examine
71.4 of their own body, upon his oath as a juror. (The
44a,1t rued Attorney-General then cited cases in support
, that view, from Carrington and Marshall, and also
Lewin's report ; but it was impossible in the gal-
tilifs guess even their purport.) There was now an
';tent matter to which he wished to call their Lord-
,ll-ttention. It was the assignment of errors in fact
" appeal to the House of Lords. That was the first
linale he had heard of errors in fact assigned in that
xouse.
He submitted that their Lordships' House, as
'Louse of appeal, could not deal with errors in fact. He
would first read the plea. (The Hon. and Learned Gentle-
A f%then read he leas from pages 80 and 82 of the appeal.)
the rticli thet defendants had pleaded an abatement in
course of
the suit, and the authorities upon that sub-
ject were to
that their be found in " Comyn's Digest." He trusted
Lordships would hold that the judgment of
The Court of Queen's
'Bench on this subject was correct.
In " Comyn's Digest," in page 597, there was the case
of "1110 e v, Sir John Moore, and the point there de-
cided tots that error in fact was not assignable in the
xchequer Chamber_ That case was brought before
the Court of Queen's Bench in the case of " Castledyne
v. Munday," in 4th Barnewall and Adolphus, p. 97, and
the point
was also raised in the " Meg v. Wood," in
Chitty's Reports." In that case the ground of error
Was the separation of the jury before they had given
their verdict. There was an application for a new trial,
and afterwards a writ of error was brought into the
Court of Queen's Bench, and that court gave judgment
against the parties who brought the writ of error.
`,There was then a .writ of error to the House of Lerds,
anal one error assigned was the fact, and the qbes-
tion put to the judges was, whether the error
Was such as to enable' • the House to take
into consideration the error of fact ; and the
)udgeS• gave it as their opinion that it was not. The
judges ii tided that Parliament could not decide the
question.
Lord CAMe.BELL—ViraS it decided that in a case of
coram nobis theaLwas no remedy by writ of error ?
The ATTORNEY -GENERAL said that it was.
Lord CAMPBELL &might it monstrous that the subject
Should have uo remedy if the Court of Appeal decided
against
of
irist him by writ of error. If there was an assign-
Aierror eoram nobis it was upon the record.
Lord 13notronasr—Was not what was assigned for
. error more ministerial than anything else ?
p, The ATTORNEY-GENERAL was Lot aware of any other
these cases
upon the subject, and he merely mentioned
Ittese cases for the purpose of calling the attention of
"eir Lordships to them. Now with regard to thelcon-
alruction to be placed upon the Act of Parliament, he
would, in the first place call their Lordship's attention to
the.i Act 56, Geo. 111. cap. 87. The enactments of that
being
et were intended to apply to all indictments; its Object
to prevent grand juries in Ireland from returning
dills without examining witnesses. 'Then came tho Act
`of the Ist and_ 2d Victoria, cap. 37, and he wished tb di-
-leet their Lordships' attention, to the preamble of this
ct, more particularly after wh had fallen froorn? the
Lord Chief Justice of the Commoat n Bette that morning
111 giving judgment, before their Lordships. There could
be no doubt but that the proper way to construe an Act
• of Parliament was to look at the preamble and enact-
rents, and collect from them the intentions of the Legis-
ture. Now the preamble said that after the passing of
that Act was, no bill should be returned to a grand jury
unless the witnesses had been sworn; and it went on to
away, " Whereas the viva voce examination of witnesses
very salutary, and whereas great delay had crisen
ern swearing them in court, for the re-
medy' thereof, this Act had been made."
And it then went on to enact that in all eases of bills of
indictment sent up to grand juries in Ireland, before such
hill should be sent up the clerk of the Crown at assizes
or the clerk of the peace at quarter sessions, shall be en-
dorse upon the back of the indictment the names of wit-
tresses, and the grand jury were esithorised to examine
such persons upon oath, to be administered by the fore-
-44111 or one of the jury.. The enactiuy, part went on,
after reciting that the oath so administered was to be in
lieu of the oath required by the Act of Geo. HI., to
,I.* het " that no foreman or juryman shouldexamine any
the
whose name was not so entered. The clerk of
e Crown had in this case endorsed on the back of the
Ledietment the names of the witnesses, and the question
"Is if when the clerk of the Crown of the Court of
Qu'een's Bench in Dublin had endorsed the names of the
Witnesses on the back of the indictment, and those wit-
lasses had been sworn and examined before the grand
jury,ry, if' the provisions of the law had not been complied
With?. 17e would refer their Lordships to the case of
Doe and Brandy," 7 Barnewall and Cresswell, p. 643,
as to the manner in which Acts of Parliaments were to be
sulastrues. It was there laid down that to construe
'i
sn Act of Parliament, it was necessary to take the con-
Zeti°o, not only of the preamble, but of the whole
; and when a clause was more extensive than the
tinroeEumb le, they would put the more extended interprets-
upon it, if necessary, to give the Act effect. Now
.:',ere they found that the object was the substitution of
;Ts 13ill for the Acts of the 56th Geor 111. The prof
also at the end said nothing about the clerk of the Crown
at the assizes, or the clerk of the peace at quarter ses-
-81"o ; b •
ut simply said, "the clerk of the peace or the
clerk of the C; own." The object of the Legislature was
rsubstitute ones mode of swearing for another, and it
Was intended to t,pply to all indictments. There was
another view to be ts:ken of the case, which was, that,
liltieeordin to strict legal :weaning, the Clerk of the Crown
thethe Queen's Bench Duislin, was in fact the clerk of
_„.._a..ssize. In the case of tbe " King and the Justices
e' Ale Ale iddlesex," 3d Barnewall anst Adolphus, p. 300, in a
in which the Sheriffs of Midd.'esex applied for com-
raraiisation for the loss of gaol fees, under an Act of Par-
ent which stated that such compensation should be assessed by the justices at quarter sessions, subject to
tale
toa ward of the judges of the assize, the justices refused
award compensation. on the ground that there were
'l3 ...lodges of assize in Middlesex, and no judges of as-
pr,
whether Pc'threY Court of
The question then arose,
the assizes for Queen's Bench was not
ofs the county of Middlesex, and whether the
Judges
that Court were not the judges of assize.
Tenterden,Judaea of
in giving judgment, said that the
Ju, the Court of Queen's Bench and of the Court
Cesium)
co. n Pleas were the judges of assize for the
of Middlesex within the meaning of the Act of
Tiotiti";lnuteYen's
Then, if that were disk case, and the Court
Bench was the proper Court of Assize, then
provisions of the Act had been literally complied
Le-
gislature, coi
with.
,They found,, therefore, the intention of the Le-
neidin„ with the strict legal meaning
de and he thought their Lordships wouldof dthee-
e that the assizes mere, in legal parlance, in