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FUOST , ^? ILLmiS , ANI ) JOJfES . COURT OF EX ! CHE < iUER .-5 ^ Urrfay , Jan . 15 . . This morning tbe above ewe came on to be argned «™» 4 e twelve Judges , upon the point © flaw **»« was saved by So * Frederick Pollock in favour t the above prisoners . The interest excited Beemed to to very great , as the Court was very much crowded . Coder toe seats occnpied , by the leading Counsel we bserved Mr , -Feargas O'Connor , who frequently a&nverjjed with Sir F . Pollock before the proceedings commenced . - ; At fifteen minutes past ten o ' cl oek , the Judges entered the Court , and took their seats npon the Beoeh . ^ 1 ^ i * _ ¦ - " ' - ¦
The Attorney-General then rose and said—My lords , may 1 bog your Lordships will intimate in what order the argument in these eases should be endacted . There were three convictions had , and I should wish to know how many Counsel may he iaffd , and in-what order with respect to the whole firooeedings . & ? E . Pollock—My Lords , I appear in this case « b behalf of the prisoner Frost ; the other two cases ~ we somewhat different as regards the statement—Mr .. Kellv aT > Dft 3 i-R here : on Deri&if of Z « n > mni » Vi
Williams , aud Sir William Follett on behalf of Jones . 1 am wholly anxious to consult the con-Tenience of vour Lordships , but at the same time not to lose the benefit of making a claim of hiring . this point argued in the same " manner before this Court as had taken > place in the Court at Monmouth . It hat beea held that there were two Counsel assigned to each prisoner charged with the crime of kigh treason , but I shall be willing to agree to any ceorse of proceeding wherein the ends of juBtice will he more speedily accomplished .
Chief Justice Denman—I understood the Counsel on each side had arranged the mode of proceeding . " Sir F . Pollock—We had arranged , my Lords , that « ce Counsel should be allowed to Bpeak for one of the prisoners—that I Bhould address the Court on fcehalf « f Frost—that Mr . Kelly should then proceed on behalf of Zephaniah Williams , aad that Sr William FoUett should call their attention to the wee of Jones . . . Mr . Kelly—I was instructed to appear fur each of the three pnsoaeO f bat Itbiakit better fjr one Counsel *• - «* iy to be heard for „«« & ,, but I wish" to observe that if I abacdon now that course which 1 conceive to be right , it may not be considered hereafter as a , srecedent to be followed in any future cases of a and should
smilir nature , I - pray your Lordships sot to come to any decision in the matter . Chief Justice Denman—I think the course pointed * at by Sir F . Pollock will be the fairest and best that « enld be pursued . The Attorney-General—I wonld not venture to interfere further than to know what is your LordahipV pleasure , a ? I was not aware of this arrangement , until I came into Court this morning , and I protest as yet I don't , know precisely what that arxaBgementis . Chief Justice Denman—Sir F . Pollock called upon me oa Saturday last , and stated the point which he Jaad raised in mis case , and he then expressed a wish that each case should be heard separately and distinctly , and that one of the party concerned should not be bound by the decision come to in the i , ease of another . -I
Sir Frederick Pollock ^ shall first state the arguments I shall Tnake in favour of the first prisoner Frost , and . the Counsel on the other side can reply . The Attorney-General—The Counsel for each o "the prisoners should address the Court consecutively ; and my Learned Friend , the Solicitor-General , should have a right to be heard after I had addressed the Court . The Court—Yes ; proTided they don't use the same arguments . Sir F . Pollock—With repect , my Lords , to a general reply , inasmuch as the cases certainly resemble eaeh other , I beg to say that I have not in any degree eonsioered those points that will arise in the other cases . I don ' t mean to reply'in another
case in which I am nst retained , and to which I will frankly say I have not given any attention . There Hiay be separate replies in the two cases , although £ bese cases may be precisely similar . In the case of Frost , I apprehend you will allow me te reply for Urn : and the course I would suggest is , that you would permit me to answer jthe Attorney-General . Mr . Kelly—My Lords , I wish the eourse to be pursued would be exactly determined . I would , ¦ with submission , suggest that in the first jcase of Frost , Sir F . Pollock would address the Court , and that the Attorney-General would reply . And that I should be entitled to speak on behalf of Williams , and that I Bhould then be replied to by s counsel on
the opposite side ; then that Sir Wm . Follett should argue the case in favour of Jones and be replied to in due course . Sir F . Pollock—The course I wished to hare adopted wasin consequence of a communication I had with yoor Lordships . I am not instructed to act as « oansel Tor any person but Frost . . . Mr . Kelly—I am desirous of epnsslting the wishes and couTenieaee of your Lordships . If the other course be adopted , the two last prisoners win lose the benefit of a reply from their counsel . Let eaeh ease be argued distinctly ; such was the course that we understood would be taken . Chief Justice Denman—Well , let each ease be distinctly and separately heard .
Sir F . POLLOCK—My Lords , I can assure you ¦ lost sincerely that there will be no disposition on my part to prolong this discussion longer than the exigency of the case requires . My learned friends who have been engaged here for the other prisoners-, will attend to the arguments which I shall haTe the ¦ h onour of staking , and shall take a note of them , with a -new of abstaining from a repetition of them , or dwelling unnecessarily on any argument that had already beea laid before the Court . I shall trouble your Lordships b y reading the particulars of the case as it stands , before I proceed farther . " The - prisoner , Joka Frost , was indicted for high treason ; there were two counts in the indictment , aa he was
charged with levying war against the Qneen in her realm ; and ob the 31 st of December , 1839 , he was indicted upon that charge ; the prisoner pleaded cot guilty , and all the other prisoners severally pleaded separately . Mr . Frost was then pot upon his trial , and the jury were sworn . On the first witness being called , and before he was sworn , the counsel oa his behalf made aa objection to the entire proceedings , grounded upon the feet that the list of the witnesses aad the jury tkat were to try him were not served upon the prisoner , at least ten days before he was put upon hiB trial . By the statute of Anne , sec . 7 , it is clearly laid down that the names and professions -of the witnesses tabe examined in cases of high
treason should be delivered to the prisoaer ten days iefore his trial , is < he presence of two © r more wit-Besses . In the 7 th « f Wm . III ., chap . 3 , it was also laid down that ail persons accused of high treason should have a true « epy of the indictmeat , but not the names of witnesses , five days , at least , before the JJrisoner * trial weeld < come on , for the purpose , as it steiea , of advising with , his counsel upon the matter , tie or their agent or agents requiring the saxse , and Bfirgall reasonable fees that might be demanded . £ th George J . Y ., c = 6 ft , sec . 21 , it is ted dosra that a list of the Jury should be given at the same time wiik a copy of the indictment , at least tea days bef < ase the prisoner ' s triaL and in the presence « £ two
« r store witnesses . In i&e ease of Frost , the bill of iadfetsient ' was found ou tke 11 th of December , iSSfl , sfcd a copy was served open prisoner ; and oil tke J 7 th * f December , a list of tfae witnesses , which woe to hare been produced , was served on each of the prisoneri . In the opinion of the counsel for tke Crown this was considered a good service . With regard to the cases of Zephairiah Williams and Jones , I hare nothing to do with ibenu I hare to call your attention to the arguments I intend to make use of , bat before I begin , I wise to state that I consider myseTTfliru to-day { and t * hare a , right « o to do , especially after what has been said ) , as arguing this objection in the same manner as if I was before
the Court at Monmonth , and that the subsequent proceedings whieh then took place , are not in any manner to prejudice the case of the prisoner whom , you must consider , as if he stood before your Lordships not convicted , but standing for his trial , and supposing the objection to the witness ** Simmonds " being examined to hsre been just made by the prisoner's Counsel . Your Lordships will then be pleased to riewme as if I were making use of the same arguments as I werein the Court at Monmonth . I shall sow endeavour to hasten over that part of the case which has already been presented te the Court at Monmouth , and shall occupy as small a portion of your time as possible in calling your attention to the
main points then discussed . It will be-then my duty to enter more at length in calling your attention to anything new , which I may deem necessary to enter upon , xwo questions seem to arise upon the point reserred , the first is , as to the correctness of the proceeding itself , in not delivering a list of the witnesses to the prisoners ten days before the trial , but fire days after the indictment was delivered to them . Tb& second question which ariBes is , whether it was competent for the prisoners to take the objection at that moment when the case was called on . I shall iheni > roceed to £ all your attention to the authorities
which I mean to rely on , first as to the construction f the statute of Anne , and the other statntes whieh ware in force before that statute passed . Secondly , M to the authoriti ' ss which exist in England , either with reference to th * t Btatute , or any other case that could throw any li * 5 rt opo ° * he law as regarded high treason ; Thirdly ^ * & retewaw to the Scotch law npon tiw subject ; t ^ nd this I consider to be very important . The statute ' of Anne communicated to Scotland the law of high treason in England , but borrowed from Scotlandcer . ^ ain matters of proceeding , which it will be necessary lot them to consider . It borrowed from the law of S «> ti » nd the necessity of deliTerinK a list of witnessed tojjether with a eopy of th «» djctBient at the same toe , u > the pn-
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M-cn ow ***! a « reaeon ; oat A beliereit did norborrow the period of ten days before his tnaL ThefecU ofthe c ** * re already laid before your Lordships . The bdl wssfeiadoi the 11 th of Drteaibflp last , aad on the 12 th a copy of the indictment and a list of the jury were delivered in the presence of two witnesses , and in fire daya afterwards a list of the witnesses was also delivered in the preaeaee of two witnesses—whether that is a compliance with the proTisionn of the statute of Anne , and whether delirenng a copy of the indictment and a list ortaejury five days before thelist of the witnesses was deliTered was in compliance whh the statnte requiring thatall the . three should be delivered at the same ^^ ... Tbe statute , of William , I mean 7 th and 8 th * * . * aF « *?* bigh teeason ; bnt I believe it
of William the Third , chap . 3 , had proTHed that the focused party Bhould have a trne copy ofthe whole indictment , bnt nst the names of the witnesses mentioned in the statute of Anne , but those witnesses whose names were on the back of the indictment , loon tknow whetheritwas by ancient usuge , or by a direet . and positive enactment of the statute that the names of the witnesses shall be endorsed on the back of the indictment , that all Buch should be produced at tht trial ; but it is very clear that the witnesses mentioned under the statute of William are not the witnesses mentioned under that of Anne . This copy was to be delivered fire dayB before the prisoner ^ trial , but subject * o the condition of his or their attorney requiring the sameand inthe officer
, payg his fees . In the same statute a direction is positive with respect to the delivering a list of the jury two days before the trial of the prisoners ; that part of it iB absolute , without any condition whatever , and free of expense . Then comes the statute of Anne , which identifies the law and the practioesof England and Scotland with regard to high treason , enacting that whatever is treason in England shall be treason in Scotland , and , having made a provision for the introduction of a grand jury into Scotland , it then proceeds to enact , apparently borrowing from the Scotch law , that the list of witnesses and jury , and copie 3 of the indictment , shall be delivered together . That was a distinct and positive enactment , standing wholly by itself , and wholly irrespective of the
time when the proceedings were to take place . It was a distinct substantive provision , declaring emphatically that the two lists should be delivered at the same time , with a copy of the indictment , to the party indioted ; and if no other provision had been made , the statute of William would have been still in operation as to the indictment , and would have nad to have been delivered five daya before the trial . The statute ef Anne substaotively and distinctly said that the two lists must be delivered ., ** the sane tiae , with the oopy of the indictment , > U > the * party indicted . The question was , had these words " at the same time" a clear and undoubted meaning , independently of the following section , which enacted that the lists Bhall be delivered ten dayB before the
trial took place . He would contend that they had . There were here two distinct things ordered to be done—tw » distinct and positive enactments , one directing absolutely that the two lists shonld be delivered at the same time that the copy of the indictment was delivered ; and the second enactment directing the period at which Euch delivery should take place . It enacted that a copy of the indictment , with such lists , should be delivered ten days before the trial , so that in this last section the enactment of the preceding section with regard to the simultaneous delivery of the lists , * and the copy of the indictment—that such was th » plain construction of that Act of Parliament it was scarcely possible to imagine that any doubt could exist in the mind of
any lawyer . -Tne second statute to which he would direct their Lordships' attention was the Act 6 th George IV ., cap . 50 , commonly called Peel ' s Act . He wiuhed to draw the attention ef their Lordships to the 21 st section of that Act . They would find that that Act was passed with a view of collecting into one statute all the different provisions which w « ra to be found in various Acts and decisions thai might be considered applicable to any matters relating to juries , and of those consolidating into one Act the whole of the Jury law . Therefore , at its conclusion , having taken great care to collect all these laws together , it repeals every one of them . But many of them had been in that very statute reenacted in precissly the same terms which were to
be founa in the former statutes . Among others the statute of Edward III ., relating to the chalenging of juries in case of treason , had been in thi 9 Act repeated word for word . By the 21 st section of this Act it was enacted that whenever any person should be indicted for high treason , in any Cour t other than the Court of Queen ' s Bench , a list of the Jury should be delivered to the party indicted , at the Bame time with a copy of the indictment , and that this should be delivered ten days before the arraignment . At Monmouth , his Learned Friend , the Attorney-General , had urgued that the words same time" meant , within the Bame time , and had asked whether an interval of five minutes , or often minutes , or half a day occurring in the delivery of the lists , would be smfficient to viu&te the whole proceeding . Now , although he could imagine that in retirod parts of the country , in consequence of the want of easy intercommunication alffir . nlti ^ s TnwTit nrvnv -txrtiioli ir /\ ii 1 f { « m « . * 1 a _ __ i ~ rvvfc
"""¦ O «*» ** . II . UIVU "I VUJU iCUUCl All 1 U * terval of a few minutes , or even of half a day , in the delivery of the lists and the copy ofthe indictment unavoidable , yet he could imagine no process of argument by which the interval of five minutes could be extended gradually so as to mean five days . In this case tKe copy of Ihe indictment , with toe-list of jurors , had been delivered on the 12 th of December , and the list of witnesses on the 17 th . His Learned Friend , the Attorney-General , had contended that Peel ' s Act altered the law in this respect by making use of words enacting that the list of the jurors shall be delivered at the same time , with a copy of the indictment , which shall be delivered ten days before the arraignment to the person indicted . In reply to this , he contended that the statute of George IV . had left the question as to the list of witnesses entirely untouched . He oonld find no pretence for Eaying that it in any way repealed the Act of the 7 th Anne as to the list of witnesses . It did
not pretend to touch that point at all . He wonld call their Lordships' attention to one alteration which it made—it enacted that copies of the indictment and Hits of the jury shonld be delivered ten days before the arraignment—the statute of Anne enacted that they should be delivered ten days before the trial . Their Lordships could not but suppose but that Sir Robert Peel would embody into his Act the repeated and solemn decisions of the Courts of Justice ; and it , had been frequently declared by the Courts , and laid down by all the text writers , that the words before trial , must be construed to mean before arraignment , because in point of fact then it ib that the
trial begins . Foster ' s book laid down this doctrine . In his first discourse on High Treason , chapter 3 , page 220 , he said that the sUtuteof William directed that a copy of the indictment should be delivered to the prisoners or his attorney five days before trial , bnt according to the construction of lawyers , these should be delivered five daya before arraignment . Their Lordships would find the same doctrine laid down in the fourth volume of Blackstone , page 357 , of the edition published in 1787 , when Blackstone cites the authorities of Foster and adopts it . The statute of Anne did not come into force until 1766 , on the death of the Pretender , but it did not come
into actual operation until 1 / 81 , on the trial of Lord George Gordon . He would now called their Lordships' attention t » the practice which had obtained , under the statute of Anne , since it came into operation . He was afraid that at Monmouth , where the point was quite new , and where they came to the discussion prepared with only such Blight materials as were available on the spot , he occupied too mnch time on that point by going minutely into the facts of every case which he could find recorded . He should now abstain from going through all these cases , and reading them case by case . He should only give one , aud content himself with referring to the rest . The case he should give was that of Lord Georjje Gordon , which was to be
found / n the 21 st vol . of Howell ' s State Trials , p . 648 , and : ilso in Douglas' Reports . This was the first that had occurred since the statute of Anne had come-into operation , and the Attorney-General applied to- the Court of King * * Bench , for a rale , calling on the Sheriffs of Middlesex to show cause why he sho old not deliver to the attorney for the prosecution , a list of the jury , in order that the prosecutor migh t cause sach list to be delivered to the person indict * d , or to aU attorney or agent , at the same time with the list of witnesses , and a copy of indictment ten days before arraignment . He made this application . V the eo&rt , on the ground that there was no other met hod of complying with the meaning of the statnte . T , He list of the jury could not strictly
speaking be deli \ cred to the person indicted ten days before the an "Mgnmeat , because as there was no issue joined be fore arraignment there could strictly speaking be l * o j&r 7 before that period—but a list of the persons w . ^ w ere U > compose the jary was to be given to the y erson indicted , together with a list of the witnesses ai > d a copf of the indictment ten dajs before arraignm . v ^ - Ppop this application the court ordered the Shei ° i& * of Middlesex to deliver Xo Mr ; Chamberlain , the so . Hcitor for the prosecution , a list of the jury summoned * to attend that trial , in order that the same might be delivered to the person indicted , his agent or attorneTt at * & * B * * * i . me with the list of witnesses and tL * « opy of the indictment . In this case this question had arisen—that as it
until after arraignment no issue s- Vmld be joined , seemed doubtful how it could be j . X » mi > le to comply with a'l the provisionB of the act , unless the trial was stopped immediately after the ar . *» ignment , and the cour t adjourned for ten dayB , in jprder that a jury might be inpannelled after issue was joined , and the list of the jury , together with a Jw * of the witnesses , and a copy of the indictment delivered at the Bame time to the person indicted s « to hiB attorney or agent in the presence of two cr editable witnesses—the Attorney-General feeling this di . ^ Bculty applied to the court , and obtained an order by \ Vhicii he got , not strictly speaking a list of the jury , . but a list of those who were hereafter to compose sitcb jury . This was important , as showing the trne occasion of the difficulty under which the Attorney-General laboured , and which had induced him to
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apply to the court . It was then settled by the ooun , that the lists ought to be delmred at the same time , and that such delivery onght to take place ten days before the actual trial . The court'directed the ¦ heriffi to give the solicitor for the prosecution a list pt the jury before the actual return of the jury , so thai the statnte might be complied with , by the list being given at the same time with the copy of the indictment . He considered , therefore , that thiB being the first occasion , had settled the practice . The Attorney-General had felt the necessity of laying down som « rule-to get at a list of the jury , so as to comply with the meaning of the statute . He had brought the subject before the court . The Court had agreed with him the rule was then laid down , and had been adhered to ever since . Lord Chief Justice Tindal—There is no mention made of the list of witnesses . : aoDlv to the eonrt . It wm thM Wtliwt hr « Ii
Sir Frederiok Pollock said , that the Attorney-General had seen no reason to ask the Court to interfere about the list of witnesses ; his only ' difficulty had been about the Jury . The Attorney-General could make out the list of witnesses himself , and deliver it along with the copy « f the indictment . ; The point he ( Sir F . Pollock ) was making was this . The statute expressly said they should be delivered at the same time ; his Learned Friend Raid that thole words meant within the same interval of time ^ fc ) ( Sir F . P . ) said they did not . The three must be ^ delivered together at the same moment . It was not suffipient that the list of the witnesses , the list of the jury , and the copy of the indictment , should be delivered within ten days before the arraignment .
but they must be delivered simul et tetnel . The ruie obtained on that occasion expressly said , in order that such list might be delivered to the prisoner at the same time that the copy of the indictment is delivered . Thai could not bo done without difficulty ; but the Court , to obviate thiB , interposed and made a rule upon the Sheriff , calling upon him to return the lists of the jury prematurely . If the . argument of his Learned Friend the Attorney-General were right , there was no occasion for any rule at all ; but , in order to comply with the statute , it was held necessary to call upon the sheriff to make a return of the persons to serve on the jury prematurely , ia order that the Ii 6 t might be delivered at the Bame
time with the copy of the indictment . There could be could be no difficulty of the same nature about the list of witnesses ; but his Learned Friend contended that the law on this point was altered by Peel ' s Act . Now the provisions of that Act were confined exclusively to jurors , and , in order to showthat the words " same time" coiild not mean same interval of time , he would call their Lordships ' attention-to the latter part of theclause to which W had referred , which showed plainly that tkw ^ oim " same time" meant not tho same interval of time , ' but at the same moment . A copy of the indictment must , therefore , be delivered at the esme time with those two lists .
Baron Alderson observed , the Act of Parliament did not affect the Queen ' s Bench . Sir Frederick Pollock resumed—Jast so , and it appeared to him that tho reason for adopting the practice in the Queen ' s Bench did not lessen the force of the argument . What , he asked , was the meaning of " the same time ! " not the same interval , but the same moment—on the same instant—and further , leaving the construction of this Btatute , let him call the attention of their . Lordships to one other point in the statute of Anne itself . The provision was this , that a copy of the indictment waB to be delivered , with a list of the witnesses and jurors ; and that the copy of the indictment with such list should be delivered to the party accused teu days
before trial , in the presence of two or more , credible witnesses . See how that stood—if " with such lists " did not mean the lists were to be delivered with the indictment , he did not see how they were bound to deliver them in the presence of two or more credible witnesses ; for , except by the use of tke word " with , ' ' two witnesses were not necessary . Having shown the course taken when first that Act came into operation , he begged shortly to state the < raiform , unvaried , unbroken practice which had obtained ever since . In the trials in 1794 of Hardy and Home Tooko , in the 24 th vol . " State Trials , * ' p . 219 , tti ; -lr Lordships would find it stated that on Monday , Oct . 14 , Mr . White , the solicitor for the Treasury , delivered to the prisoners copies of their indictments .
lists of the jurors empanelled by the sheriff , aud Of the witnesses subpoenaed by the crown for the purpose of proving the indictment—and the same course of proceeding was specifically stated in the case of Crosefiold , in the 26 th vol . page 2 , which he mentioned for a moment onlv Decaiwe the Attorney-General of that day , in addressing the jury , ooserved ( page 14 ) " it is likewise required that at the same time when a copy of the indictment wai given to him , a list of tho jurors should be givfitl to him , and that a list of the witnesses who are to be produced to establish the charge shall be put into his hand . " That was the observation of the Attorney-General of 17 SU , who afterwards , because Lord Eld ^ n there stated , that the trial of Lord George Gordon the firsc in
was history in which the legislature had adopted the application of the statute of Anne on the point , aud was addressing the c . urt , for the legislature had not ventured te apply the act , and its application did not revive until about twenty years ago . Now , that exposition by . the . Attorney-General must clearly support what he ( Sir F . Pollock ) was cpntending for , namely , that the lists must be delivered at the earno time , because the Attorney-eeneral said , at the saeW time" a . bJt'M the witnesses must be put into his hand . " H « tSGr F . Pollock ; would merely state the instances in which this occurred , without reading what was doubtless familiar to their Lordships . In the case of M'Laine , which was tried at Quebec in 1797 in
, the 722 nd page in the same voL of State Trials , a simultaneous delivery occurred . So also at page 798 , in the case of trQuigley ; and he did not know whether he need trouble their Lordships to take down the reference , or do more than give the name , of Watson , tried in 1817 ; of Braad eth , in tho autumn of tho game year ; of Thistlewood in 1820 ; aud Despard in ( he though- ) 1803;—in every one of which cases a simultaneous delivery had occurred ; and he could not find that on any occasion any other practice had pr « yailed . His learned friend , somewhat triumphantly , when he came to answer the objection , had ? aid that he ( Sir F . Pollock ) could prodHce no authority to prove that delivering the lists at different times was bad . The reason
of that was , that no one had ever before thought that at the same time meant at a different time , and the statute having ordained that the aots should be done at the same time , they had been so done , and because on every one of those occasions it haq been understood that u at the same time" did not mean a different time , his learned friend asked their Lordships to-day to decide that it did mean a , different time , because no court of justice had ever decided to the contrary—that waB the whole of his argument ; but if he ( Sir F . Polloek } « how £ d . thai fat every case where they had the means of inquiry tho statute had been complied with , it was no answer to say , that because the blunder had not occurred before , the e was no authority on the subject
and the court should say that the words " at the same time" meant a different time . He would here say a few words more , because it was probable his learned friend would enlargeon thispart of the case , in protesting that their Lordships had nothing to do whatever with the object of this , or the utility of in to the prisoner . The enquiry on a solemn occasion like the present was not , what did the legislature mean , but what had the legislature said—not has the prisoner substantially had the same benefit it was supposed or suggested he should enjoy , but had he had that which the law said he whonld have—by protesting th * t he was not bound to show any benefit to the prisoner—but ho would point out one or two important matters in which the prisoner mkht
experience much inconvenience if a laxity of practice were permitted in this case . In the first place , he said , that if it did make , in auy way , the smallest difference whatever to the prisoner—if it produced the anxiety for a moment—if it created the trouble of once more pacing across his cell than He otherwise would have oone , their Luruships could not say it did not deprive him of auy possible benefit , or throw upon him the least possible ; inconvenience . No . In the first place , tho deliveTyxtoge $ «» - " ^ ra 8 necessary to connect the documents ; Ho happened to have in his hand the very document that was produced in Court , and presumed their Lordships would not think him irregular for referring to it . It was headed— " A List of the Witnesses to be produced
on the Trial of John Frost , upon an indictment found against him and other persons for High Treson , for proving the said Iadictment . " There might have been two indictments—there wa& no evidence on the trial that there was not two , it was not then proved that Mr . Frost could not have made aay mistake ; it was not for Mr . Frost to prove it , but it was for the Crown to prove that no mistake was made . Indictments ' against him there certainl y were for other offences , and he would ask how it was pou-Bible for . Mr . Frost , when he received his list , to know that he must connect it with an indictment received five days before t How could the prisoner tell but that as they had omitted the 1 at of witnesses when they delivered the copy of the indictment , at the last indictment they had omitted this copy of the indictment and the list of witnesses 1
How was he to connect the delivery of the 17 th with the delivery of the 12 th , and know that they made the complete and perfect delivery within the same time , but not at the same time . He wo \ dd not deviate further from that . The great experience of their Lordships—so mnch superior to his own—would immedWy saggest to them its great imWrteheerand when he came to the question of the Sc » fch authority , for the vert reason pointed out , the practice prevailed there ; but this he Bhould introaMce at the proper p lace . And this was not the only matter if the list of witnesses might be delivered ofr a different day , so might the Bat of the jurors / because nothing was more striagent even in Sir / RL Reel ' s Act . Indeed , rather less so , because thai admitted an explanation a little more lax , or rather not quite so strict . Were they to take it , then , that all this was dene at the same time , when the indictment might be delivered en th « 12 tb , the list of witnesses
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?¦ . the 17 th . and the lw » of j ' nrow live days after ; j aml tnatif a party under two indictments might n » T 6 delivered in any order the list of witnesses , inen the copy of tho indictment , and then the list of * U » esses relating to the other matter , and so on , ad so not only prevent the prisoner from being able *• oowneoythem together ^ but giving him the tronble © t frequently communicating with his attorney , and * enaing t& bis advisers to call npon him , and thus Jncurrin | expense ; for in this matter it was impossible euttrely to exclude the question of expense , alwough undoubtedly , in a matter so grave and a £ - feoung the prisoners in such a manner , it might seem arjt&er beneath the dignity of the occasion to Bpeak mm ;_ and if additional expense was thereby in-* atred ,, U was not right to forget that it was oocai-ffiAnBfl bV ilflT AAnotiniAii ' AH iL . l . I ] t- _• . ^ m .. 1 i . ... ¦* -. ^ « -7 . . _ ¦ ... -. .
Sictal tnh wouia oe preju-^ Mr . BarW Alderson—Can the Act of Parliament * e construed with more or les 8 convenience for a party ! , Sir K Pollock— No , my Lord ; I protest against it . Mr . Baron Alderson—Is not the rule of construction that you . a-e to take the literal grammatical meaning , unless it leadB to an absurdity 1 !? JfcJP * Pblloak had cases to refer to , ia which he i wonht call their attention to that point more partifculSjrlyy ' and also in : . his reply to the Attorney-General s ease , when he trusted that he should occupy their Lordships' attention for a few mi « utes . He stated that , not because he thought himself bound to U 8 e suoh an argument , but that he might give his learned friend the Attorney-General every benefit
of answering hia ( Sir F . Pollock ' s ) objection , and he ( Sir F . Pollock ) had the benefit of hearing the answer , such as it was . There was , however , another objection . He would at present merelyglance at it . He ( Sir F . Pollock ) said that they had no right , with regard to the construction of statutes , to enatch from an individual one advantage and profess 4 o give him another . It was of the utmost importance , when a prisoner received a copy ofthe indictment , that it should tell him who were the witnesses to appear against him . For from that alone could the prisoner get information of the crime imputed to him , and he ( Sir F . Pollock ) said that they had no right on tho 12 th of December to deliver a copy of the indictment , leaving the prixoner two days in gaol ,
uncertain as to the case intended to be made against him . They were bound to give the witnesses at the same time , that the prisoner might see what the charge was , aud what it related to . He ( the prisoner ; t was in an anxiety of doubt and uncertainty atnokkuowing what part of his conduct the indictment levelled at . He was entitled by law to have ; thrlutof witnesses . From that he might have objWhed-the benefit of knowing the transaction to whicn , the matter related—he was deprived of that , and left five days in a complete state of uncertainty aB to what part of his conduct the Crown aimed at by that particular indictment for high treason . Two witnesses were required to form a complete and satisfactory testimony aa to the delivery . One
witness swore that he found tho Hat on the prisoner with the indictment that he had received on that day , leaving no doubt that the lists were delivered teu days before the time , and , therefore , the statute was satisfied . Now he ( Sir F . Pollock ) submitted that it was not satisfied , and he would , therefore , pass on to the authorities , going only so far as the meaning of the statute was clear and incapable of doubt . The course of practice was unbroken and unquestioned . He would then proceed to cite a few cases that had occurred on the subject of the construction of the statutes . Their Lordships were familiar with many of them . He addressed his argument aB a professional argument , and he had no desire to make a single remark or address a solitary observation which ought uot to be addressed to their Lordships as Judges sittiug there to expound the law . He would beg to refer to the case of Lovelace t > . Curry , in the 7 th Term Reports ; page § 21 It
was an action of trespass and false imprisonment that the defendant had committed , as Justice of the Peace , at Northampton . It appeared that the notice required to be delivered by the 24 th George II . c . 44 , was not conformable to the Statute in some respects , iu not stating what particular writ was intended to be commenced . And the case of Strickland v . Ward was cited . The objection was overruled—the case proceeded , and the Court desired the formal objection to be argued before the full € purt . Their Lordbhips would find a full note of btnckland and Ward in the note-book of Mr . Justice Yeates . Lord Kenyon said they were bound to decide according to law , aud find out , without considering whether the Legislature decided when the notice was given , which was required to b © given by the Btatute . Mr . Justice Laurence said that the statute prescribed a form-that form was to be implicitly followed , and admitted of no eauivonation
He ( bir * . Pollock ) refused to Ko into the circumstances of that case . Ho believed he had omitted nothing that macie the other way . The next case was Taylor » . Fenwick , aud Bosanquet v . Fuller , page 553 . Lord Mansfield in that case said the Legislature had thought fit to prescribecertainforms , whether right or wrong it was of no consequence , lhe notice did not teli the place of abode , aud the words of the statute were , « must tell his place oi abode . " He ( Sir Frederick Pollock ) might say , once for all , that the situation of the prisoner , charged with High Treason , entitled him to ' tto
strictest interpretation of the law ; and their Lordships were aware that , instead of . there being areifxatioB , when they came to a question of criminal law the rulp prevailed j bas there should be a greater strictness of construction , and no permission of relaxation ; but their Lordships would find that the tendency of modern decisions had been to iuclude relaxed constructions of any Act . He ( Sir F . Pollock ) had taken the liberty of stating ' before Lord Tenterden that he dialiked the whole of the expression of a limited construction of any Act of Parliament . Enquire the true construction of the rule , and that construction would not be theimaeinatiom of what the Legislature intended , but what it lsfound they had said . Iu first Neville and Manning , page 307 , thore was the case of Ross v . Bollaud
also found m Barnewall v . Adolphus , 525 . Incase of an action for penalty against a clergyman for rionresidence , the Act required that notice should not be served on the clergyma ^ personally , but on the Bishop , at the Registry ORce . Now the notice was served on the Registrar personally , not at hia office . The Court of Queeu ' s B < mch held that it was no proper service ; and said , " We ought to put a strict construction , as far aB possible , to give effect to all the words ofthe Act ; " and Air . Justice Taunton emphatically observed , " If we construe the statute differently , a new case will arise farther still from the exact words of the Act , theu another , aud so on . So that the omy safe course is to adhere to the exact words of the Act . " The Act / said the Court .
requires expressly that the notice should be left at Registry . It would be no atiswer to that to say that the notice afterwards found its way to the Registry- It might or might not—if it did , it would be pue accident . SoaldO in Rex » . Harvey , in 1 st Wilson , 194 , it was held upon the Act 19 Geo . II ., in an indictment against a man for not surrendering him-Belf , the Act required proclamation at two market towns , near the place where the offence had been committed . And there were proclamations at Hadleigh , forty-two miles distant ; Ipswich , 36 ; and Lowestoffe , < i—but aB there were three otner market towns at the distance of six , eight , and fourteen miles , it was held the Act had not been complied with . It was no answer in that caseas the
Attor-, ney-General had attempted to mako it at Monmouth , to a&y " Vou have something , in fact , better than what the Act required ^ you have acquired an advantage by tho error . ' ffhi the case cited the proclamation had been made ,: in the very parish whore the party resided , still it would not avail . Again , in a case , Steer p . Smith , S Eepinasse , 135 , where ah attorney described himself as of New Inn , London the description was held to be bad , because New Inn was not in London , but Westminster . Yet stronger was the case of Ikey v . Nokes , where an attorney ' s bill ha ^ been delivered , not at at the party ' s place ? u a ^ e L ? lhe 6 ' * V" « required ; but . it wasclear the bill had . reached , the party—it was held a bad
delivery . Aud to cast light on tue subject of Bhowing docninente . it would ^ be well to quote the case of Ward v . Marshall , 3 Perrotr , 228 , whereit was rer ported to be tha practice that the original iJrrit should pe shown when the copy was delivered , atfd thaHhe cases whore the copy was allowed to be served without tho original were only exceptions ; and in another case the Court expressly held that the rule required the showing « f the original with the « opy : and that the strict practice ought to be adhered to . Further , the courts had held that if the copy were served in the morning , and the original showed at a Bubseqnent period , it would uot be a valid service , unless the copy was re-procured ana re-delivered to the party at the same time . i
ilr . Baron Alderson—No doubt that would be law , otherwise the party would not compare the copy with the original . , . Vi Sir * r * derick—Well , my Lords , then your Lordships have * Btnot judicial decision as to the meaning ofthe worif * t the " same time . " . Mr . Baron * Alderson—O therwise it would rest with his recollection . ^ Sir Frederic * Pollock— In the case of Akett v . btocka , 1 Moore ' , and Payne , 346 , which was an aetioa against a magistrate , Mr . Justice Parke eaid he always felt disused to go ev « y possible length in favour of the pliVntifTs case . In the case before him the question was whether the notice contained a
sufficient notice of th « plaintiff ' s cause of action , and it was decided in i . Yb negative , and the plaintiff was nonsuited , notwithstanding it was stated that th » condmtof the defendant was disgracefd , and that the objection was tai'fin merely to defeat that one course of law . He wo . Hld now come to another exposition of the words " at ' tfhe samo time . " Their Lordships were aware , tha ^ by the Statute of frauds , a will of lands was ^ "e oxeouted in the presence of three witnesses . It had been held , howeve ^ that the three witnesses t xight be present at three different times , and that an \ acknowledgment of the execution , or running a di * y pen over the name , and the three witnesses seeing that ceremony gone through at three different time * , ' , was a goed
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execution . In the ease of Jones « I * ta . M Atb ; n » 176 VMdxjted ^ o iu ; c £$ IB ££ & Lord Gb& Justice observed . « ihe three witnesses were to attest the s » gnature of the testator , bnt they were not required to do * at the same time-tie Act was silent m that particular ; it would , therefore , be making a new reqwaite . if they required it to be done at the same time .. If the testator reiterated the act in the presence of each of the three witnesses , declaring it to be his last will and testament , that was sufficient . " If there was any doubt upon the point it was renewed by the late Act , 1 st and Sad Victoria , chap . 7 « , in the case of Fobs v . Jackson , 3 rd Spence , 198 , where a form of conviction was given by the statute for an offeaceandprovided that the . .... _ . ' !' - - : ¦
, , conviction should be in that form , it was contended in behalf of the defendant , a magistrate , that it was optional with the justices to draw it np as they pleased ; the statute having created au offence , it might be nursned at common law . Lord Kenyon Baid , "No ,, the conviction must , be drawn up according to the form prescribed . " The « onviction was , therefore , decided to be a aallity , and the plaintiff , who was thus illegally convicted , received damages . In the « ase of King v . Richards > th Adolphus and Ellis , which must be iu tho recollection of several of their Lordships , it was held that the _ court could not follow the substance of tho statute , but only the very words that were used . By the 57 th of Geo . III . o . 147 , the object of which was
to substitute certain acts in lieu of very expensive proceedings in the Ecclesiastical Cour t , which had become a sort of opprobium in the eyes of the law , it was provided that a significavit should be under the hand or hands of the judge or judges , whose commands were disobeyed . In a cas » where three judges gave the command and two signed the significavit , the court held that that was not sufficient and the proceedings were held to be vicious . In Innea v . Sparke , 1 st Term Reports , 44 , where a question arose about a qualification to kill game , Mr . Justice Ashurst said , the game laws are rather to be considered as positive rules than founded upon reason . It is safer , therefore , to adopt what they say , than to suppose what they meant to
say . According to such a construction , we must suppose that it was intended to exclude the father when it gave a qualification to the son . In ReX v the inhabitants of Barham , Lord Tenterden said"Our decision may , perhaps , defeat the 67 thGeo III ., but it is better to abide by this course than to put another construction upon the words in order to give effect to what we may suppose to be the intention of the legislature / ' A * d in another case the same learned judge observed , it rests with the legislature to make what alteration it pleases , but the duty of , the court ismerel y to give effect to the provisions of the statute . " , In the case of Brandling v . Barrington , which was in the € th Barnewell am ^^ L !?^?***™* !> i ? Wff goods by
virtue of a writ , in the county of Durham ; and the question was , whether the writ was in the nature of an execution , in order to allow the landlord to get his rent under the . statute of Anne . In that case , Lord Tenterden said the plaintiff had no right of action » because the words of tho action had not been complied with , and it was always s afer to abide by the plain words of the statute . Again , in the case « f Vaux v . Hansard , 1 st Bosanquet and Pullar 224 , the court held that there was a broad distinction to be drawn between a thing done on the same day and at the same time , and in Bates v . Billing 4 Follett 231 , the question was , whether the defendant had , in fact , been arrested—the writ was sued out , of which fact the defendant was aware .
and he went and put in bail—there was no actual arrest , and the court held that the act had not been complied with , and the rule was refused In Watchet v . Shaw , 3 rd Campbell ; it was held that an application for the cost of a special jury would not do if made the day after a trial—the act saying that it was to be made after the trial , and the court held that that meant immediately after the trial . Again , in Richard * . Stuart , lOch Bingham , 320 , Ld . Chief JusticeTindal laid it down that the special wor s of the Act of Parliament must be strictly complied with , otherwise it would be opening a door to conjecture as to the meaning of the legislature , and that judgment was coincided in by Justices Bosanquet and Alderson . Again , in Smith « . Crump , 1 st Dtfwling ' s Practise , Mr . Baron Parke said the writ YPIta TinmuQ inAamnstri oti t . lta vVivrn loiri A .-nmr * . V ... xi . _ 11 tUllH tv
** ww * awav » w « UWVUMVU tan * VUU AMUVI UU U \ jy tilt ? Act of Parliament had not been complied with . In 3 Barnewell and Adolphus , 25 * and 887 , tho courts set aside prdceedings for a misdescription , and iu . 4 Barnewell and Adolphus , in the matter of Flounders the court set aside the proceedings in conscquonceof an irregularity , which was the non-compliance with the Act of Parliament . Lord Denman doubted , indeed , but waB over-ruledby the rest of the court , and the rule was therefore discharged . The ground of this decision was , that the delivery was in such a way that if the opposite party had moved as they ought to have done , on the first day notice wottld have been sufficient . So that the bare possibility of any injury occurring was held to make the notice bad , though in paint of factand at the
, time when the motion was made , the notice was good . He would now proceed to cases connected with Scotch law . He might say with regard to authorities on this head , that the point regarding the time for taking the objection was bo blended with the ppint ' ef * he objection itaelf , that it would be impossible in citing these authorities to separate the one from the other . Now ho would first . refer to the second volume of Mr . Baron Hume ' s Commentaries on the Law of Scotland respecting Crimes , published ¦ ur"l 829 rthe cTiapter on the execution of the libel , page 262 . The law of Scotland upon the subject of giving to the accused the cop i es of the indictment or charge—* he "diet , " as it wm called , and the list of
witnesses , was very ancient , bo far back as 1672 , 16 th Charles II , which contained many directions as to crimical proceedings and civil . After stating it lo of the highest importance that ail matters relating to criminal proceeding * should bo determined in the most solemn , exact , and regular manner . The Learned Baron proceeded to give various directions , and he stated the 11 th provision to be—** When a * y criminal libels or summons of execution are given against any party , at the same time lists ofthe witnesses to be summoned for proving the * aid libel , and the persons to pass upon the inquest , shall be given to him . " Now this , Sir Frederick observed , could admit of no doubt . Nothing was said about ten days , or any other period , but " at the § ame time . "
Mr . Justice Coltman—What do you understand , Sir Frederick , by the word " execntien V Sir Frederick— " Serving , " my Lord . The Attorney-General—No ; citation . Sir Frederick--My Lords , execution moans « ervintf . The Attorney-General ( referring to the Lord Advocate who sat behind him)—Yes ; but the service is the citation . Sir Frederick- ^ That is of no moment . Themera point was , that there was no ambiguity at all in the statement . None . He could conceive of parties desirous of getting over the consequences of some oversight or blunder—he could conceive—indee d it had been so argued in his hearing , or he could not
have imagined it . It might be said that the statute of Anne , which positively said , tho service of all shall be at the same time , —and that one thing shall be done ten days before trial . It mi > £ ht be argned , that " at the same time" meant" at different times . " ' But the statute -he waa now considering , would admit of no excuse for such an argument . lc was distinctly and positively enacted , that the things shall be all done " at the same time . " These were the statutes of Mary and James , which did not bear on this particular question—and the onl y one that did affect this particular point was tho Act of Charles , whicn positively directed , that it shall be " at the same time . " And those words had been copied in tho statute of Anne . There was in that
statute an additional enactment , that the oopy or indictment , with the list of witnesses , shouhj bo delivered ten days before the trial—but the former part of the statute of Anne directing that the indictment and lists " were to be delivered " at the same time , " was copied from the Act of Charles 11 ., and must , therefore , mean the the same thing . Now he found , , that , the practice of the Scotch Criminal CourtS depended ori what were called "Actsot Adjournment , " framed by the Judges , as " Acts of Sederunt" were by the Civil Courts , and aa rules were by the English Judges invested ftAse the passing of the late Act with th « authority of law in certain cases . But these "Acts of Adjournment " could not contravene the Act of Parliament . They
might , as they had done , further the Act by settling how the notices should be delivered together , but they could not so alter the law as to provide that they Bhould be delivered separately . Now the Act , common ly called Sir W . Rao ' s , which did away with some obj ections formerly utterly fatal , did not apply but to Scotland ; there was no sueh provision in the English law , which stood in this respect upon the statute of Anne . He did not mean to say , in proceeding to state the judgments of the Scotch courts , that they were quite conclusive with their Lordships ; but stilt he would respectfully urge that in a case ofthe highest charge which could affect a subject , their Lordships would not depart , against the prisoner , from those decisions . Now the learned baron ( Hume ) proceeded to lay it down thus : — " The substance of the citation is the servine
the Panel with a copy ofthe libel , or diet , to which issubjpined a copy of the citation , nnderthehand of the officer , wherein the panel is charged to appear at such a time and place to undergo the law for the offence set forth in the diet ; aud tho panel is to be at the same time served with a list of witnesses , that he may be prepared to make competent objections . The Judges have not been used severally to hold the copy to the original , except in substantial particulars . On this , as on other occasions , they nave been in the habit of considering chiefly the object aud the spirit of the regulation , which is plainly this , and nothing more—to inform the panel of the nature of the crime alleged against him , and also of tho evidence which is to be addueed against him ; and a variation from the record is not held fatal , unless' it leads the panel into Borne error . Now he ( Sir F . ) wonld observe to their Lordship * that ia the law of
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—^ w ^———^^^^¦^ M ^ W ^^ M^—¦ BMBSSMW ^^^ aM^—¦—^^^^^^^^^^^^^^—j———_ vI ~ J Scotland the original list of tbe witnesiw , aodtht J * ry formed part of the record . JftftrTwai notMai anaiogoni to that m England . Henee , in ScoSC when _ there were variations in the copy froaTtiS Record , the panel might refer to the &eord . In S ^ 'h *"? """ * ° keep in mind , the indict ment was the only pne of the things a copy of whiek JwiSS ^ J ? **• Pri wner , wldeh forms plrtof tnhJ&Ll ^ j" * P ^ elcoidd scarcely fcesaS to belong to the Record . There was no UstoT wS refer . Inwauoh that , according to the law of England , if Ae prisoner refusedto wkenotice of the charge , the Judge had no meWof checkin * syrar i ? # , 33 BL 3 S « ^ J SM ^ jsiftsftaS several oases cited—and regarding the li «* nf ^ f * ============= ss === « b « == :==== == -
^—sS-nesseB the doctrine would be found analogous to that respecting ttie libel-that if the nan * of any witness was omitted in the list delivered to the prisoner —<> r if there was an error in the name , the blunder would not be pleaded to the extent of "dismissing the UbeL * but only to exclude the witness ( or the juror ) from serving or appearing . But in the English law an objection , for instance , to the delivery of the lists five days after the copy of indictment—it was an objection that pointed to this—that there bad been no service at all . Now let their Lordships see what the Scotch Judges had decide ! as to the serving of ; theli 8 t 8 . , In 1672 , March 1 , in the case of a Wai . Clifford , of Forfar , the Lords "deserted the diet , * an expression Sir F . considered equivalent in ovnntr
up the prosecution—or rather , to giving up that prosecution , —for the desertion simplicifcr would be absolutely and for ever , but there might be desertion pro loco et tempore , for that time merely but in this case he was citing , tho Lords deserted th « diet , because the lists were not delivered to theparish at the same time with the citation . Ia another case they desened the diet , because th ^ re was no distinct evidence of the delivery of the lists with the original of the libel , —then by consent th * " prosecution was continued to another period . : Those were the proceedings , he believed , not in cases of * high treason and felony , but in the crimi / al nro .
ceedings in Scotland . On the 2 € th Jul y , 1675 , tor some reason the diet was deserted . His Learned Friend the Attorney-General said the objection must be made before the trial commences—he ( Sir F . Pollock ) said that such was the case . He now came to tho case of David Stowell . Stowell objected that he-had been served with a list of witnesses not sub > joined to the copy of the indictment . Their Lordships found that his objection was valid . Mr . Baron Alderson—Was not > hat process in Scotland eqivalent to what they call quashing th » indictment } ' " Sir Frederick- —Not equivalent .
The AttorneyMJeneral—Where the diet ia desorted , " pro loco et tempore , " fhe prisoner may bs proceeded against . Again , if it was simpliciter , h » could not be prooeeded against a second time . Sir F . Pollock—Their Lordships would find that the Court would only desert a diet , " pro loco et tempore , " with the consent of the party . Tho Attorney-General had the authority of th * Lord-Advocate for aaying that it could be done without the consent of the party . Sir Frederick Pollock—Nobody could doubt that the wording of the Scotch statute was adopted in the statute of Anne , with this alteration , that th « copies were to be delivered not only at the time , but that time should be tea days before the trial . He ( Sir F . Pollock ) thought their Lordships would , therefore , in some measure be influenced by tha Scotch statute . Lord Denman thought they were not bound by the Scotch Btatute , for it was no authority .
Sir F . * Pollock then said the cases had been stated correctly . There was a case of a party aocused of killing deer ; the objection was taken before tho Sheriff , but the jprisouer had ikTj been servod with a copy of the list of witnesses , and the Sheriff postponed the trial for three weeks . Mr . Baron Hume said of that ease , that the process nad fallen altogether . Certain other forms belonging to the Seotiish law were introduced by their Acts . He should merely observe , that on all those occasions it appeared that the law should receive the most strict construction . Nothing had ever been taken as an equivalent or . as a Bubsitute , or , according to the expression of Scottish lawyers , as an equipollent for the observance of these forms . He had read a passage in which the writer had expressed an opinion
somewhat unfavourable to his present argument , but he calls at the same time various authorities , every one of which is at variance with his viewB . H » believed that the passage was not to be found in any ofthe old editions of the work ; and if it could hav ©' any weight against the prisoner , it would be that of a comment made after the action had gone by , and giving that comment a value above law . The passage was in page 258—it was but the comment of a bygone law , and it did not appear to be the proper mode of explaining the question . The learned writer gave an opinion unfavourable to him , buths acknowledged that practice did not sanction hit views . In the case of Mackfchaie in 1816 , ' the objection to a misnomer of witnesses was held to be
in due time at the trial , and was accordingly sustained . A like course was taken with respect to the witnesses in a case before Lord Gilliea . Theobjection was allowed in that case after the jury had been sworn . In the present case the prisoner get a copy of tne indictment on the 12 th , and on the 17 th got a copy of the-witnesses ; and he had certainly a right to Bay tlfet that was ; an illegal practice / and ha was not bound to take any care of hig defence . ( The learned counsel here entered at tome length into tho practice of the Scottish Courts , 'and adduced some cases to prove his interpretation of it . ) Hfi thought the law in England was to the sams effect , and that the statute of Anne was framed on the Statute of Charles II . The true construction of
tho provisions of the Act appeared to him , and their Lordships would find in looking into the authorities , that the prisoner was to have a copy of the indictment , a list of jurors , and % list of the witnesset . When was he to object to the indictment ? That was settled by the old statute , but he believed never by the new , and he was very far from saying that even if the delivery of the copy of the indictment whs irregular , and not in the presence of two witnesses—he was far from saying that in such case ha would bo too late to take an objection at' the trial . Ho by no means admitted that if at th * close of the trial , by calling the solicitor of tha Treasury into the bos , - it . Bhould turn oat that tha
prisoner never had a capy of the indictment or a list of tho jurors , he by no means admitted that a man could be found guilty and executed upon- a proceeding bo entirely adverse to the Act of Parliament . But he protested against being called upon to admit that it would be a good proceeding ; for if their Lordships discovered that so important an omission had taken place , they must decide in favout >\> f the prisoner . A magistrate must have notice , and if it were not proved that he had- proper notice , tha action could not be maintained . In the case of a constable the action could not be maintained without demanding a copy of therwarrant . Lord Abinger—The statute saya the action can still oe maintained . ::
Sir F . Pollock had not the Act , but he was pretty certain that the aatioa-oould not ba maiutained unieBs the party previously did so and so . Even the good sense of thething would shew that" the time to object to the indiotmsmt warf when the party was called on to plead , to the jurors was wheef they wer » called on to answer , to their names , and to t h * witness was assembled ; at Monmouth , fcis learned friend should not have persevered in bis error if orror it was . He thought it would have been better if it had been stated to the Judge at the Commission * and if they were made parties to the proceedings , and had been asked their advice . He tthonght it would better become the administration of justice if the mistake had been avowed : and tha nroiwdinwa
corrected , rf correction could have bee ) i administered . Though this might have involved a second visit on the part of his learned friend toMonmoulh ^ and might have caused him some mortification and inconvenience , rt would have been better if all tho Jud ge * of England had been consulted , lie thought ihati as counsel-fer the prisoner , be had a right to say—though hia learned friend might say he bad no right to form an opfiWdn . on the subjeot- ^ -he woakk howeve / , at least sar » Aat hour after hour he had waited for the moment when , he should have to taks tho objections . He would be glad to know bow Uw objectioa tonld be taken at any other , time . Observe * the prisoner was not an actor in . any of those proceedings . He was tailed from hia dtfngteon to b * told that at indictment bad been found . against him —that wasthe beginning of the case . He was visited then by a person who brouzht him a eonv of th *
indiotmonfc , with or without a h ' st , as their Lordships might decide , and he was then called upon to plead whether he was guilty or not . That was th * only question put to him . What coutsb waa he to take t Was he to decide aye or no in ; a matter ia whieh their Lordsbipa thonght of suffleient importance to adjourn from Monmoath to . London , that all the Judge * might inquire into it ! Was be to b * deprived « r the benefit cf an objeetioe , which every Justice of the Peace was entitled to make ? He wat aware that since the reservation of the point , th * prisoner had been found gailty , bat tkat war not to be urged against him . He stood there clothtd . with the jHrBusaion of hia hon . and learned friend , in tw sane defence as if the trial bad nevtr taken place . Lord Chief Baron Abinger—No doubt of it . Mr . Baron Alderson—Yon urte it now pn * i » jly aj if the prisoner had iust pleaded ;
Sir F . Pollock—He was not tallinf . their Lorishipt' attention to that fact . from any appraBsnsioai that what had subseqaenlly take * place would at aB inflHgnoe their Lordships' judgment , but to enfon the point that the prisoner could not possibly know at what period or other the objection was to b * urged . B y what law or practice wu he to haveb * am guided f None . Bat they were not without som guide as to what were the law and practU * undsjt ( Continued in our Sixth p * f 4 . )
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Citation
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Northern Star (1837-1852), Feb. 1, 1840, page 3, in the Nineteenth-Century Serials Edition (2008; 2018) ncse.ac.uk/periodicals/ns/issues/king-y1kbzq92ze2669/page/3/
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