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Note: This text has been automatically extracted via Optical Character Recognition (OCR) software. The text has not been manually corrected and should not be relied on to be an accurate representation of the item.
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( Contitmtd from mat ttHriptgt , ) ibe rtatate of William , for w * baa ] % took , poblished 1 b 1709 . by order of the Hoasfluof Lords , which 4 eUikdtiepra (* iee srHttlod by the authority oi « B tbe : twelve learned jadgM of that day—a book which waa " referred to im Brandreth ' fl case by Mr . Gwsiey , for the purpose of showing it watrthe eoaru settled that no juror could be challenged after he fed began to take the oath . 87 this book directions were giren respecting the arrangements of the several other stages of the proceedings , and it wu directed that a full copy of the indictment was to be delivered to the prisoner fire days before he wai called on to plead , and that a witness most attend the court at the time of the prisoner ' s pleading to prove the delivery of a copy of the indictment to the prisoner , if there should be occasion . Mr . Baron Alderson—What ia the date of th < publication of the book 1 Sir F . Pollock—It was published in 1719 . ' rdviUnmmJ fmm wir TiMiifimii 1
Chief Justice Tindal—The order of the House of Lords for its publication was made on the 20 th of April , 1709 , and the book must therefore h * Te been published shortly afterwards . Sir F . Pollock proceeded—In page JO of this book , published 4 > y order of the House of Lords , -with the signature of the judges , to settle-the praetiee under the 7 th of Anne , he found it stated that a copy of the indictment was to be delivered to the ¦ prisoner five dajB at least before the party should plead ; and then there was this important direction , ** and a witness must attend the court at the time of the prisoner ' s pleading to prore the delivery of the copy of the indictment to the prisoner , if their : ahxll be occasion . " The inference ae drew from
that passage was , that when the party was called on to plead to the indictment he might say I required a copy and did not receive it ; therefore it was necessary thai Bome person should attend to prove the delivery . Whether th . e practice of having a person ready to prove the delivery , of the indictment was to be considered obsolete or not it was not for him to determine ; but the occasion could only arise if there was a question of its having been delivered or not ; and under the statute of William the prosecutor "was sot bound to deliver a copy of the indictment , unless applied for and paid for by the prisoner ; whereas now the pro&ecator was bound to deliver it without application . The book , after directing how the clerk of arraigns was to proceed
in the arraignment , aud how the jury was to be charged , stated that the crown wa& bound to deliver a list of the jury to the prisoner two days before the trial ; and then came this important direction after the prisoner was put to the bar— " Ask the prisoner whether a copy of the panel has been deli-Tered to him two or more days since . If he say no , call your witnesses to prove it . " But if he Baid no with truth , what was to be done ! Tba proceedings must be adjourned in order to give the prisoner a fresh list of jurors . There was a case in Foster ' s book where the panel being exhausted , the proceedings were adjourned t » give the prosecutor time to erve the prisoner to a new jury ; What then was the meaning of all this \ The House of Lords , having called upon the jndges to execute this task , approved of a certain form , which was published under their sanction and authority . At
xhat time the prisoner was entitled to a list of the jnry , but not to a copy of the indictment , without asking ; and part of the form was 10 ask whether he had got a copy of the jury panel ; if he said no , the Grown was bound to prove it . Thns far under the old law the practice as to ihe indictment and jurylist was settled ; but what practice with respect to witnesses had ever been settled ? when , how , in what form , and at what time was the prisoner to make his objection ! Pursuing the spirit of this form of proceeding , as settled oy the twelve judges under the old law , how could they decido otherwise than that the objection was to be made to the indictment ¦ when the prisoner pleads , to the jury-list as the jury eameinto the box , aud to the witness-list when the
witnesses were called to be examined \ But his learned friends said " No , you ought to object at the time of pleading , when the party is put upon his tnal . " Let them see how this doctrine would apply to some other instances to which he would call their Lordships' attention . . Suppose & list of witnesses to be , in all respects , regularly delivered , bnt _ containing only the names of witnesses without their descriptions and additions , or containing their names and additions without their places of abode , would his learned friends deny that , in the face of such a list , not one single witness could be called ! and that the proper time to make the objection was when the first witness was proposed to be examined ! The objection that the witness-list has not been delivered with the copy of the indictment and jury-list
was fatal . Suppose the list of witnesses contained nothing but the names , was the prisoner to give ! notice to the solicitor of the Treasury , and * ay , "Sir , ' you hare made a mistake in practice ; you had better correct your list bv adding descriptions and additions ! " Suppose the list of witnesses to have been delivered in the presence of only one witness , cr in presence of no witness at all , would that stand ! ot must the party go to the solicitor , and say , " Come , jou m'ist serve the list over again , and begin de novoP How would they deal with cases like these ! According to the invariable practice in charges of treason an incorrect compliance with the statute was no compliance at all . What class of objections was the prisoner to make ! On what principle was he to proceed ?
Mr . Baron Aldereon would not suppose that the learned counsel would make any admission . He did not wish him to do so ; but suppose the admiEEion were made that it was too late to object to the copy of the indictment after the party had pleaded , because , under the present statute , the copy of the indictment should be delivered af the same time with the list of witnesses , could the omission of the list of witnesses be afterwards fixed upon as a ground for holding that the indictment had not been properly < iefivered ! Sir F . Pollock apprehended that would be a right or wrong mode of viewing it , according to the questifin to be decided . Mr . Baron Alderson—If you admit any point in a combined proposition , must you n » t admit the whole ! Mr . Baron Parke—By the act of pleading you ad-Btt the indictment .
Sir F . Pollock—There were three distinct things to be done , and for three totally different purposes . fee importance of each arising at totally different ti » es . Suppose a list of witnesses delivered with nethins but names , withont any additions or places « f abode ; suppose the prisoner called upon to plead , and pleaded guilty , could it be said , having admitted the validity of the indictment , the regular delivery of the other two lists was of no importance ! If the statute required the mimperatively . to be done , they ^ mght to be done ; and if at the verv last how it were discovered that the act had not ' been complied with , although he had not taken the objection mpon his trial , he would be entitled to the merciful interference of the Crown to prevent the law taking
effect in a c&ee where its own provisions had not been complied with . On what principle of law , he asked , could it be maintained , if a party admitted ihe indictment , he must also be taken to admit that the liais of jury and witnesses were" correctly delivered 4 . A list of witnesses being delivered , if one of the . principal witnesses were wrongly described , he must be excluded , and it was no answer to say that the . prisoner had pleaded to the indietaent , and that the intention of the law had keen so far fulfilled as to enable the prisoner by the deaoripiion afforded io discover that the party tobe called against him was improperly or insufficiently described . He would put another -caae . He oontended . be had a right to consider Qns as a case in which bo list of witnesses
iadbcen delivered at all ; for , if it were a bad deli-Tery because made fixe days after tbe indictment , if iiat objection were well founded it was precisely as af ftere had been Ho-deljvery . of witaesseeaialL In each acase ^ roxld a prisoner be boand to make the « bjectaon ? 3 £ « w could the prisoaer know whether ine Cro * n intended to call witnesses or not ? In anai yery place , at Monmouth , several persons were aeguitted , theto * eiug no witnesses broufikt against iaem . How did the prisoner know , if he was not served with a -fet of the jury , what course the Crown meant tojkic . pt 1 How did be know , if be < Ud not get a list a the jury or of the witnesses at toe tiaa and m the manner prescribed by the Actof Parliament , but tha * the Crown intended to « nto a noUepnuafuU It was far the Crown to adopt whatever course it pleased , the prisoner could sm
influence it many way ; he was entirely passive , he waswnder th « control and waiting the pleasure of those in whose qsetody he was . Surely it was not for him to say that tie Solicitor £ > r the Treasury was to deliver him alist of jritnesses—it was not for hinfto lell what must be done to mafce his trial nnimpeaehable IJH TOinotis-prevent the Crown from being mer-« uL The irr « p * lanty mifht occur in consequence « f a compact witt the prisoner that he might become -. green ' s evidence . If they were going ^ ongVwhy " $ ??* % ? ¥ ** > w tie P ^^ r to sit them iZSSl ;^ " *? ?«»»« , _ to be fired at to nnpiire if the guns are loaded with powder and ball ! - Tftose who conducted these solesin proceedings ttUst itzlE fl ^ ?? erwrwa s eonunrtted ; it was not 2 S 5 ?«^ llfi ' J ? 1 ^ * PPri ** hem of any £ TrEJJ V * ™**?^ - I * * t » happened that weu-own was proeeeaine insnek * casfl « . >?> , ;< .
ma » nt a 1 * t of witaeae . " * he prison w * 3 n 7 t &e E ^ LJTtLJS 8 b 0 luui to notice that fact . It if ^? TV ^ r ore ' to hi "» according to the view S ? {•* ** & * # "> that the Use was Identical with ihathi wiu * h . ttarehad been nolist atall . Iftherewaa no list could tt be * £ & the Crown aight c&ll all sorts J ^ S ^ . ' Wtere . then , wae the difference between no hit at all and this one I Lord Chief Justice Tindal-If no list had been delivered the Crowa oould not have called a single witnesf . °
&r F . Pollock coaU not help oongidering that an nouncement as ak »«» t patting an end to the question ror a list not in commune * with the act of Parlia seat was a © list at aH .
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Mr . Baron Alderaon—There might be one regularly delivered , and another only two days before the trial ; the latter would be no list atalL Sir F . Pollock—That was precisely the case in the present instance . There were three lists delivered . He haopened to have them with him in court . Sappose the list of witnesses delivered only three days , before the trial , what would that irregularity amoaut > to ! Suppose a list of witnesses given only the night ; before the trial , and that , upon the jury beingcalled over , the prisoner ' s counsel took an objection thet the prisoner ' s had not been served with a list of the witnesses against him , would it then be for tfee «« b ' citor for the Crown to say " I served him last ' ¦ Xfr 1 U * mi L \ A * ' *< i ~ n—Th * Y * . mi « ht tuiman .
¦ ight with a list of witnesses , and this morning he aas allowed himself to be pat on his trial ! " Upon what principle , he asked , was the Court to measure the quantum of irregularity which might prevail without vitiating the lists * How far was the life of the prisoner to be sported away by the blunders of the prosecutor ! Their Lordships would not now be sitting there if that Mosaonth had been able to show that the list of witnesses had been delivered less than ten days before t&e trial . He was confident their Lordship 3 would have decided that in soch a case it could not be used , and that the prisoner had a right to exclude ail the witnesses set forth inn ; what rule was there as to what non-compliance will admit , and what non-oompliance will not admit the
list ! He had now , he believed , stated enough to raise all the points which appeared to him to bo material ; and he feared be had already occupied more of their Lordships' time than he was justified in doing ; bnt he could not help saying that as this objection was known before they assembled at Monmouth , as consultations were held upon it in town , when it was determined to persevere in the errcr , if error it was , he thought it would have been better for the administration of justice to hare fairly stated to the judges at the commission thai such was the state of things , to have made them parties to the proceeding , and asked their advice as to what course sheuld be taken . Instead of proceeding in the hope that tfceir Lordships would
relax an act of Parliament to favour such a prosecution , or any prosecution , H would have been more becoming to have avowed the mistake , and corrected the proceeding , if correction could be administered to it ; and although ! it might have involved the judges in another journey to Monmouth at another time , although it mi ^ ht have occasioned to his Learned Friend , the Attorney-General , some little inconvenience , perhaps expense , and even additional mortification , such a course would have been infinitely better than that-all the judges of England should be now assembled , to the stoppage , in th middle of term , of the entire administration of justice . He had one more word to ray , and as counsel for the prisoner he had a right to say it , although
hia learned friend had imported that he had no right to state what involved merely an opinion o his own . Such an opinion he should not express , but he did say that hour after hour he watched and watched , eagerly and anxiously looking for the time when his objection should be taken . Ho had been for thirty years at the bar , and he declared in the face of their LoroBhips , before God and the country , he could fiad no authority , no principle or precedent , which could enable him to take it but at the time when the first witness wa 3 called to be sworn . If he had been wrong he was unconscious of error ; but was it a fair course for the Attorney-General to pursue , being aware of the objection , to play a sort of ntii prius game with him !
The Lord Chief Baron of the Exchequer . —We are not assembled to decide that point , but whether your objection be valid or not . Sir F . Pollock thanked his Lordship for setting him ri ^ ht . Mr . Baron Alderson . —I don ' t think yon need apprehend you have lost any advantage by the course which the objection has taken . - Sir F . Pollock satisfied himself with repeating that he had watched with the deepest and most mtenee anxiety to see that he should not lose for the prisoner the delay of ten days , and , having consulted every authority , bonk , and precept , he could find no other point , time , or occasion to mako his objection than upon the first witness being ealled into
the box ; and when their Lerdships considered the cases which had been put , and the principles involved in them , they would see that then only could the objection to call any witnesses bo urged , because the prisoner had not been served with a list of them in pursuance of the statute ; and if the list was not served in pursuance of the statute , be the deviation little or much , if served the night before trial , or ten days before it , in presence of witnesses , or without the presence of witnesses , with additions or without additions , with the copy of the indictment or without it , unless it had been served in strict pursuance of what the statute enjoined it was no list , and the prisoner was entitled to an acquittal . He submitted Mr . Frost was in that situation now , under the proceedings which had taken place .
The Attorney-General thought no one could doubt that his Learned Friend ( Sir F . Pollock ) did well in reserving this objection nntil the jury had been Bworn and charged with the indictment . He might have taken it most unquestionably when Mr . Frost was called on to plead ; if it were-a valid objection he might undoubtedly have taken it when the learned judges were moved that Frost should take his trial first ; No objection was taken either in the one stage or in the other , for this plain and simple reasonthat if the learned judges had held it to be a valid objection it would only have led to a postponement of the trial , and could not then have been brought forward as a means of defeating justice , and preventing a person , he would not say who was guilty , but who waacUarKed with guilt ,
frombeinficonvicted and punished . But the questions would be , whether the objection was weil founded ! and whether it could be taken after the jurv had been charged with the indictment ! He admitted , if those two questions were decided as his Learned Friend contended they should be—if it were a valid objection , and if it had been taken in time , the prisoner was fairly entitled to the benefit of it . Whatever might be the result of this solemn deliberation , it gave him heart-felt satisfaction that the alleged irregularity could have produced no prejudice to the prisoner ; he thereby enjoyed an advantage . Five days before he was entitled to them he had a list of the jury and a copy of the indictment , to enable him to prepare for trial . He had , de facto , a longer
opportunity and greater advantages in preparing for trial than by law he could command ; nor had his learned friend , in a longand impassioned address , ventured to suggest any disadvantage or hardship possible to be imagined which had been cast on the prisoner by the course which had been pursued . If there was an irregularity , i t was clearly intended to be a favour and indul gence to the prisoner . Two £ rave questions now presented themselves for their Lordships' adjudication—first , whether the objection was well-founded ; and , secondly , whether it was urged at a time when it could avail the prisoner ! He would allow that , in considering this and all other statutes , their Lordships were only to look what the intention of the Legislature was ; when
that was discovered they were bound by it . Whatever form the Legislature had clearly prescribed must be observed , and he allowed it is not for their Lordships , if that fornf has been clearly and distinctly prescribed , to consider whether it was or not advantageous to the prisoner . He allowed that the doctrine of equivalents and equipollents must be discharged . He never did and never could contend for such a doctrine . Whatever the prisoner was entitled to by Acti of Parliament , that specific thing he had a m ^ lit to demand ; and it would be vain to say that som » tkmg even more for his advantage had been conferred . But , in ascertaining the meaning of the Legislature , it might be most material to see what was the object , and how that object could best be
accomplished . Now , what was the object of the statute of 7 th William IIL , and the statute of Anne ! Was it to enable a person accused to lie by , and to ^ start objeotioas only when his trial had begun , . and finis " defeat the ends of justice ! The object of these statetes was to enable the . prisoner io prepare for his trial , to kn « w tte charge preferred agamsfhim , the jurors by whom it was to be t&ed , and by what witnesses tike Crown woold attempt to bring home the eharge Against him . He apprehended that the statuses , being in pan materia , wore to be consigned together , . and the preamble of the Jth William IIL eet forth . that " Wnereas nothing can be" more just and reasonable than that persons prosecuted for high trea son aod
mijpnsion of treason whereby the lireaof jpeisens might be destroyed , skill bejustlj and equally tried ; and that persons accused of such offence stall not -be debarred &em all just seans for th » defence of their nmooenee in each cases /* - TheU Lo / dships aaight be assisted in pairing a just construction upou acts of Parliament by eeing , the « tjects the Legislature had in view in pawing tham . i £ this statute , and the other referred io by his leawed friend , would bear bnt one construction , and rewired » simultaneous service of the copy of the irtdvament , the list of witnesses , aad the list of the j * . * ry , ie must allow , if the objections were taken in t . 'B » e , it must prevail ineir Lordships had no power io » Iax the statute .
ana ne snouid never call npon them io follow Buch a course . If this statute were like llw Scotch statute oflfc / 2 , which , he admitted , required jimultaneous * ern ( x , moBt nndonbtedly the objecvXtn would prevail . But this statute waa framed in a T « rr different manner . It admitted of two constn . 'ctMfis , and toeir Lordships would have to say which wag right He allowed that one constrnction which > 8 feht be put on it was that th « service of the three doc . wnts SSi , «* *?» $ *»»««» 5 bnt there was anoth « of SS 2 J ^ S ^ v * and if be "dd show " that the S 2 . J 1 * ' t J- gulMten would be much mo ^ e effectually gamed by the . latter construction than " by the former he presumed their Lordships , !? pmSC ™ ^ which the Legi slaturV ' had employed , would find no difficulty in ad d ling if XdSLdT * A word 3 ? " ^ "y vtmm £ * ^ iS ! ff £ ^ treas 0 I V or aiisnrision of treason , ihJ ^ w Wltoe 8 ? e 8 tn * t shall be produced on the tnal for proving the said indictment , and f toe jury , Beationinj their profession and
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place of abode , be also delivered at the same time with a copy of the said indictment to the party indicted . " His learned « nend toppedtfcere ; but he mast go to the end « f the sentence . ** And such copies « f all indietmeate for the offence aforesaid , with such lists , shall be delivered to the party indicted ten daya before the trial , in the . presence of two or more credible witnesses . " Here was the time within which the acts were tobe done , and the question was whether " 'the game time " there meant the same instant « r the same interval of time . If the same instant fee the construction , then , of course , the service met be . simultaueoua ; but if the same Interval of-tinebe meant , then all the legislature had required waa-thatthe Bametime before . .. . - . nlum nf ahodA . bA alma dali—nd tl the ,
trial Bhould begiven thecopyofindictmen ^ theliatof jury , and of the witnesses . The words "at the'same time" might mean either the « ame instant of . time or the same interval or distance of time ia relation to the trial . The words , thoit admitting of two interpretations , their Lordships , would give them that construction which woa Id beat / enwMrte . the purposes of the legislature . His learned friend said that there would be an advantage derived by ihe prisoner by a simultaneous service : ; but he had not stated what that was , and , if tier e was bat one indictment , of what advantage could it be ! If the prisoner received first the indictment , then the list of jurors , and then the list of witnesses , he went on receiving deliberate information , and had ample
opportunity to prepare for hie defence , this being borne in mind , that the last document must be served ten days at least before the triaL "The objection resolved itself into this—the two other ' documents were prematurely Berved , and the prisoner had too much time to prepare his defence . He did not see what prejudice could arise to the prisoner in this case from the consideration that lie was Well served on the 12 ch December with the copies of th © indictment and the list of the jury . It was not denied that when the list of witnesses was served on the 17 th of December he might hawe been served with a fresh copy of the indictment and the list of jurors , but of what advantage could this have been to the prisoner ^ ' Be having
received them fm days before ! It was Baid there may be two indictments ; it was unnecessary to consider what would have been the case if there had been two indictments , for here there had been but one . But the objection to non-simtiltaneoua service would arise under Peel ' s Act , wfircf 4 he case tried in the Court of Queen ' s Bench ; for fajte it was provided that there should be one s « rnoe >» f ^ ei ^ aHS $ - ment before the arraignment , and- aJtSfwaros service of the list of the jtfrv ; * and would tfaeirLordships suppose that the legislature meant to act unjustly , or to place any one of the crime to treason in predicament , as his learned friend , said so'deplorable , that if the documents were not served upon him semel et simul , he would be driven into a state of
extreme perplexity , and be twice or thrice dragged from his dungeon to be served with those copies ! But the Legislature , by the 6 th Geo . IV ., having clearly severed the service of the copy of the indictment and the list of the jury , it must be considered that this was not unjust . The doctrine contended for by his learned friend would necessarily operate in all cases against the accused . It was well known , and the thing spoke for itself , that the list of witnesses could not possibly be made out , with their professions and places of abode , until some lime after the indictment had been found . The making up of that list was a matter of great anxiety and difficulty ; and if there could not be a service of a copy of the iudictment and a list of the jury until
the list of witnesses were perfected , in order that all three might be served simultaneously , tho necessary consequence would be the prisoner would be debarred from that information winch would be extremely to his advantage , and Mr . Frost would , have lost five days for consulting with his coudctT " on . J , h § jralidity of the indictment , and inquiring , ; by means of his agents , into the history , principles , and character of the jurors who were summoned rto try htm . The constrnction , therefore , contended for by nis learned friend would operate most favourably for Mr . Frost , but must be highly unfavourable to all who should hereafter be accused of tho same crime . Let them see then whether the Legislature , in passing the statute of Anne , really used ihe words " at
tho same time" for the same interval of time . By the first section of the 7 th William . III ., a copy ot the indictment was to be served five days before the trial ; then came the seventh section , which said that the panel of jurors duly returned by the sheriff should be served two days at least before the party was to be tried . Here the same time was not used for the service of the copy of the indictment and the service of the list . A different system was adopted when the 7 th Anne passed . Instead of there being one interval from the trial for the service of the indictment , and another for the list of jurors , there was to be only one , and that ten days before the trial —the meaning clearly being that all should be served within the same interval of the trial , and not at the same moment of time . Some stress had been laid by his learned friend on the words that all
indictments for the offences aforesaid shall be delivered "with" such lists , &c . ; but this particle" with" bore two constructions also . It might mean " annexed to , " and it might also be used cumulatively , i . e . " as well . " Shall a copy of the indictment be served ten days before trial , of the list of the wry and witnesses ! The word " with" was often tosed ;< ih that Beht £ . ' ; He might say A and B , with C D , with other letters to follow , formed the alphabet . "With" was often used in opoosition to " without ; " thus he might say that A and B , without the township of C , formed the parish of D . The word " with , " therefore , in the act , merely meant cumulatively , ( hat this should be added to that which went before—not-only should the copy of the indictment be served ten days before the trial , but ten days likewise before tho trial should be served the lists of jury and witnesses .
The Chief Baron of the Exchequer—It has often the meaning of a simple conjunction . The Attorney General contended that great inconvenience must arise in the administration of the public justice of the country if another rule were adopted . There would be great difficulty in saying what should be " the same time . " It was to get rid of that difficulty that the Scotch act of ad journal was passed , requiring the names of the witnesses to be written on the back of the indictment . Where tho three papers to be united in one fascilus , and handed to the prisoners at the same instant ! If this strict and literal construction were contended for great difficulty must arise . But a much more , serious evil would necessaril y be occasioned—justice would bo entirely defeated m some eases which had occurred , and others likely to recur , Under the statute of William it happened several times that the jury
summoned were exhausted by challenges . peremptorily and for cause . What , then , was to be done ! The court ort tent /* , being a court of ' gaol delivery , awarded a new jury , and required the sheriff immediately to return more jurors . The court tnen adjouroed , so as to give time for serving the prisoner with the new jurymen so summoned . Several instances of that kind were mentioned in Foster ' s Crown Law , p . 63 , and also in 1 Eatf * Pleas of the Crown p . 113 . What would be done if the construction of his learned friend were adopted ? Suppose there had once been a regular service of the indictment and of the list of jury and witnesaos , the prisoner pleaded noe guilty , he was put on his trial . The jury , either through peremptory challenges or for cause , could not be made up . If tho court adjourned , and the doctrine of his learned friend was correct , that man never could be brought to justice . Baron Parke—Unlessupon afresh indictment .
The Attorney-General—There was . no means on that indictment of bringing him to justice . The diffieulty , of course , never before arose ; but if his learned friend ' s view was correct , the prisoner could not now be served with a copy of the list of the additional juryman . Now was it at all likely that , when the 7 th Anne was passed , such an emergency as he had noticed could have escaped the Legislature , or tb * t when they used , the words- " same time , " and then went on to speak of " ten day a / ' they mean that their Lordships and ta ^ jttfges , # h ? T > &ttid come after them Bhould pat such % construction on the laws as effectually to defeat the ends of justice But , according to liis position , there > oula bo rib difficulty at ali . The . prisoner having been served with
a « opy of the indictment , the jurv , and a list of the wetnesses , if the panel should be exhausted the . court would only have to adjourn for ten days , and the prisoner , being then served with a list of the new jurymen , would hate ample time to inquire into their character , so as to enable hiin to challenge them when obe proper time came , anil to derive all the ad vantage * which the statute meant to confer on him . There was a' statute which admitted of two constructions-Toae which protected the prisoner and promoted the « ods of justice ; the other which besiowed no advantage on the prisoner , and led to the tbe entire perversion of justice . He bowed to the opinion of one of tfeeir Lordships , already laid down inan early period of this discussion , that the plain
intention of the Legislature should bo alone regarded . Just let then see what would be the effect of givug this mere literal interpretation to the other word * of the act . -The statute said that , tea days before tbe trial , the laata of witnessed and jurors should ha given to tf » e prisoner , with their nameB , professibn , and place of abode . Jf theywe thai elaase a nwre literal int ^ pretatioa ; if tffere were * ny one witness , or 3 B 7 \» a # ioryniaa , introduced into the lists without hisjpr ^ towion and placo of abode , the omission would M fatal to ihe w&ole proceeding . It would no laager be a list
containing the professions and plaees bf abode of all tho jurymen , or iritopafefc What construction had been put . on tEkpart of theact ! A reasonable construction , by irincb the intention of the Legislature was carried into effect . It waa this-yonmay objeettoajurynuut or a witness for such an error ; and Chief Justice . JPindai , and the o < her learned judges who presided . \ tthoUie commuwra at Moumouth ; well kaew that many persons and witnesses were- rejected on account of not being woperly deseribeu . But this objieetfon was taken to the poll , and not to the arraign ; Again . the 7 th of'Anne Baid that the list of jurors should bS served ten 4 » ya before the triaL Here a very plau .
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sible argument might be brougtt H » rward , and , he wondered hia learned friend Bad n » t availed himself of it . The statute of William prescribed that the indictment should be served not 4 ess . than five days , and the list of jurors not less * han two days before the trial . Oa this statute Jt was clear that the service might have beeu boyonfiifivb days or two ; The statute of Anne said that rtheae lists should" be delivered ten days before tbe trial . If a literal construction were . given to that sentence , a party might be put . ort his trial the very day after he" re > ceived the indictment . But the Courts had applied to this . section not a literal , but a true construction , and decided over and over again , that the meaning of the word * should be "ten daya before arraign-,- - sible argument mieht b « Krnnorjfit Sibrw ^ rA . and he
ment . ' - ' In Sir R . Peel s Act arraignment and trial were opposed to each other ; and it had'been held in practice that the prisoner should not be called upon to plead for ten days after he was served with a copy ot the indictment , although the trial may not take place for weeks and months afterwards . All these instances shewed that the Judges had always acted on the principle of gathering the real meaning of the statute . Let them see what was baid by the Act as to the list of jurors . ' It was expressly enacted that the list returned by the Sheriff should be that served on the prisoner . If they looked to tho literal meaning the list must not b » served until after the return , but the Judges put a reasonable construction on the words . They looked to what
the intention of the Legislature ' was , aud , aoeing that it was to enable the prisoner to inquire into the character of the jurors ( his opportunity of doing which would be just as good before as after the return , ) they held it to be quite sufficient to have the prisoner served a certain number of days with the return that was to be made by the sheriff . It was also stated by the same act that certain formal objection a should be taken before evidence wasgiveu . What had been done on that ! Why , it has been construed to mean before the prisoner pleaded . These were the various instances in which the Courts , in order to carry into effect the intention of the Legislature , had put a construction on acts of Parliament different from the literal construction .
His learned friend had quoted the opiaion of a very learned person , then . Attorney-General , afterwards the . venerable Lord Eldon , as to the meaning of simultaneous service . He would not trouble their Lordships to the casual expression of an Attorney-General addressing a jury ; but all the other authorities ho quoted , Foster , Blackstone , tfjp ^ Sergeant Stephens , went Jo show that a simultaneous service Tneant within ten days , as directed by thoaot . There were perhaps authorities the other way ; but his learned friend did not quote them . Mr . Justice Blackstone , one of the greatest ornaments of English law , iu enumerating the guards thrown around the prisoner , never thought of enumerating simultaneous service as one . The learned counsel then
referred to the cases cited by Sir F . Pollock , without impugning the decisions or doctrines propounded in them , the provisions of tho statutes having dearly been violated in each , and all being , therefore , inadmissible . With respect to the introduction of the criminal law of England into Scotland , the two branches were so essentially different , not only in enactment , but in the manner in which they were administered , that it was exceedingly difficult to draw any general influence from them-To mention two of the main distinctive features , there was in Scotland a public prosecutor , and the practice of citation was also observed . It was quite true that in 1672 the treason law of England was carried into Scotland , but , so far from
the Scottish forma being transferred to the English Courts , the very usages of Scotland which he had just referred to were abolished in reference to this species of offence . Did the framera of that act suppose that they were depriving capriciously persons tried for high treason in the Queen ' s Bench of advantages they would have had if they were tried under a special conttaissiou at the assizes ! But there was an expression in this act worthy of attention , which waa this— " That when any person shall be indicted for high treason in the Queen ' s Bench , a copy of the indictment shall be delivered to him within the time and in manner aforesaid . "
What was the meaning of the words "in minner aforesaid ! " They could not mean at the same time with the list of the jury , because the latter might be dolivercd after arraignment ; all of which , ho thought , showed that identity of time never had been considered aa any pare of the enactments of either statute . By the statute of Anne the list was to be delivered teu days before trial ; but by Peel's Act tho list of jurors was to be delivered tei days before araignment , so that there was a difference netweeu the two in the terminus ad (/ uem , and it was in vain to say that in Peel ' s Act " trial" meant the same as " arraignment . "
Baron Alderson—In a case not in the QueenV Bench under Peel ' s Act there were two things to be done tan days before arraignment , namely , the delivery of the copy of the indictment , and of a list 01 the jurors : and if to that were added the statute of Anne , it would make it , instead of ten days before arraignment , ten davs before trial . Tho Attor , n . oy-Gener » l . —There , was a clear distinction here between arraignment and trial . Arraignmeut did not meau one thing in the Queen ' s Bench , and another in any other court . It meant , in fac ( , the plea that was pujt in to the question ' ! Guilty , or Not Guilty .. * Peel ' s Act had left the list of witnesses untouched , and it therefore
remained as it was under the statute of Anue ; . but the other two in cases not in the Queen ' s Bench were to be regulated by a different rule . How , then , could he be told tnat all should b ; delivered simul et semel 1 If the statute of Anne had contained any such enactments , he should say that by Peel ' s Act they were repealed . They had literally complied with the law as it now s ' . ood ; foron the 13 th of December , Mr . Maule hadsorved Frost with a copy of the indictment , and eo instanti with the list of the jurors , ten dayn before the arraignment Frost wan afterwards served with the list of the witnesses , and that was ten days before trial . That was ali he had to offer on the nrut head of his argument .
Barpu Alderson . —Suppose a case not in the Queen ' s Bench , ia which the trial was to follow arraignment within two days : in order to comply with the statute they must serve the list of jurors more than ten day * before the trial . Attorney-General . —Inevitably , my Lord . Lord Abinger observed that by Peel ' s Act , in cases of high treason in tho Queen ' s Bench , the copy of the indictment was to be delivered at the time and in the manner aforesaid "—tint meant ten days before arraignment ; but the use of the petty jury might be delivered within ten days after the arraignment , if it were ten days before ihe trial ; so th ^ t the contemporaneous delivery might in the Queen ' s Bench be destroyed , notwithstanding the statute of Anne .
The Attorney-General said he now came to the second branch of his argument , which Was , that at all events the objoction made came too late . His learned friend had said it was the same as if no list had been given . But alist had been given ; there had been a clear intention to comply with the statute , and 'here was nothing more in the matter than an irregularity . Wa 9 that a nullity ! Was it competent , according to the rules of law , for the accused to bring the objection at the time he had donef There was no doubt he could have mada it earlier , but he had not done so . If the objection were sound , it applied to the copy of the indictment and list of jurors , as well aa to the liat of witnesses . If one woro bad , all were bad . Why had he not objected when he was called on to plead ! Because that would not have served his purpose . In the case of Zephaniah Williams there had been an express conseot to proceed with the trial .
Sir F . Pollock said he was not engaged in that case , and must protest against its being now introduced . The Lord Chief Justice then put an hypothetical case . The Attorney-General—Well , thei , suppose Frost or any one else had , on being spked , consented to take his trial , shounl / he afterwards be allowed to make the objection ? Id Frost ' s ' case there was no express consent given , but still he had allowed his trial to proceed . If the objection had been taken then it would have given him more time to prepare for his trial , but would not have entitled him to His acquittal . It was a rule , both in criminal and civil proceedings , than an objection must be taken on the first opportunity , or otherwise be considered as waved .
Mr . Baron Alderson—There are certain things required to be done before trial . Can a person take an objection afterwards ! ' The Attorney-General said , that Foster , in his book on criminal law , had enumerated acte to be done both before and after trial , and that this waa one that ought to have been done before trial . , ' Mr . Baron Alderson—And if it were done after conviction , it waa a matter for the mercy of the Coown . The Attornov-General then referred to many cases in Foster ' s book on criminal law , in which objections had been . taken after pleading , but had been overruled . .
Mr . Baron Alderson—Is there in the present case anything more than an irregularity ? Tho Attorney-fieneral—There was a bonafidc intention to comply with the statute , and if tbe lists had been delivered only nine days before the trial , the probability was that . n » objection would have been taken . Mr . Baron Ald « fr 8 » a—But if no lists were delivered ! The Attorney-General—Then a © witnesses could hare been examined ; but if the objection were allowed to be taken after the trial begjvn , it might hare been taken at any Btage * when either ti ^ e first or tenth witness was called , and when a strong ease had been made out , and perhaps closed on the *) part of the Crown . The objection , too , might , he conceived , if good at all , be good against all the witnesses ^ Such an objection as that , however , would give tJw prieonsx au advantage greater than the Legislature nad
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intended . He would now just call the ttntmi of the r Lordahipa to the authorities of the So ** law on the 8 ubjeot . - '¦ : '• a ' ¦ ' ^¦ ¦ - " : ' W ¦ "¦ . ¦ ¦ -:, \ Lord Denman , After wmBulting with tbe other jadge ^^ - ^ toeg to suggest , Mr , Attorney , that the subject of the Scotch law may U confined within the narrowest limits . Its bearing ia very indirectso muck eo , indeed , that I doubt whether it can be made a matter of detailed discussion . I do not wish , at the same time , to deprive the prisoner of any benefit he may derive from discussing the subject .- . . ¦ . ' ¦ ¦ - ¦ , - ' ¦ ' ¦ : . ¦ ¦ ¦ ¦ ¦ - ¦" ' ¦ ¦ ¦ The Attorney-General—I will then , my Lords , treat this part of the subject with the utmost brevity . Before Hyatt ' s case , to which ray Honourable and intended . HA wnnMnn * nut » 11 « k « . MMtMi Af
Learned friend has referred , all tbe objections in the cases to which he has alluded were taken before the juries were sworn . In Hyatt ' s case , however the objection was taken after the jury was sworn , and . the list of witnesses was set aside . It is impossible to BaythiB is a nullity , as there was a regular service ten days before trial . The only objection is that it was not simultaneous service . Then , my Lords , if that be so , there seems to be no authority in Scotland , any more than in England , that such an objection can be taken when the proper time has passed for doing so . My Lords , I have how discharged my duty in the present proceedings . Mr . Baron Parke—There is one question I wish to ask you , Mr . Attorney-General . At what time
mthe proceedings do you allow that objection miuht betaken ? The Attorney-General—The Crown may be called on to prove it when the prisoner stands up at the bar for trial , that is , when he is arraixned . Mr . Baron Alderson—Does he admit anything more than that he has been served with a copy of the list \ How do you know that the copy which the prisoner objects to is the copy which you assert has been served on him 1 The Attorney General—He admits that he has been served with a copy of a list . Mr . Baron Alderson—The fact of there being but one list , you say , is sufficient to show the identity , and that copy we will say , for the purposes of this argument , was improperly served—was , at all events served on the prisoner .
The Attorney-General—Yes ; the plea , and permitting the trial to commence without any objection , were a conclusive admission that there had been a list served on the prisoner . - . Mr . Baron Parke—And the Crown , if required , must identify the witnesses cabled with the witnesses named in the list I - - ; T ^ Chief Justice TindaL— -Nobody doubts the identity . . The Attorney-General—When a witness was called , the Crown was bound to show , if objection were taken , that the witness was in the list delivered . I apprehend that if it were tobe laid down that such an objection as this may be reserved , when for all legitimate purposes it might be brought forward at
an early stage , and if it be known that an acquittal must be the consequence of the objection being decided * in his favour , the worst apprehensions of Justice Foster must be anticipated , and that . what was intended for the protection of the innocent , might be adopted as an instrument of screening the guilty . Sir F . Pollock , in reply , said tkeir Lordships were not to suppose , as the arguments of the Attorney-General would lead them to do , what were the intentions of the Legislature in framing the ant of Parliament which bore , upon the question before their Lordships ; their Lordships would only consider what the words of the statute enaoted . Where did their Lordships intend to draw the lino of irregularity in reference to the construction of the
act ! He would submit , most reapeetrully , that the best and most proper course would be to adhere , in considering the objection , to the strict letter of the act , which required simultaneous delivery of the documents ten days previous to triaL Was the Court to give its sanction to everything whish was stated to hayo been honestly done . His Learned Friend had said , that the prisoner ought to have made the objection when he was called on to plead , or when his Learned Friend moved that he should stand to take his trial . He would beg of their Lordships to observe that according to the act of 181 * the prisoner should be asked if he had received the , jury lists ; and if the Crown did not put that question to the prisoners in this case—nay , if the Crown was conscious that it could , or that it would , not put
the question , for reasons which were now obvious , what right had the Attorney-General to say that the prisoner should not have lain by , and hive come forward only when he knew that the point would act in his favour ! The Attorney-General had allowed these things calmly to Blip by , in order , if possible , to take advantage of it if it were not noticed . He ( SiJr F . Pollock ) was glad that he had had nothing to do with the other trials . He thanked God heartily for it ; His Learned Friend had there asked—but he would put the casehypothetically—the party whether he objected to be put on his tria ' , and' then , because there was no objeotura made , he had again-asked whether the prisoner would consent , aa if he thought it necessary to record the actual consent of-the party to be put on histriaL
-The Attorney-General—In defence of my character I really must appeal to the opinions of the three learned- judges ' who presided over the special commission at Monmouth , as to the way in which I acted on that occasion , and whether that conduct justified the observations of Sir Frederick Pollock 1 I merely inquired whether the objection would be taken before or after the trial . Mr . Baron Parke considered that Sir F . Pollock had decidedly mistaken the conduct of the Attorney-General . Lord Chief Justice TindaL—I think . you did what was quite right in not leaving the matter in doubt .
Sir F . Pollock said , he had certainly formed , an opinion that something like an advantage had been taken , but as ho had now been informed that the expression which he had used with regard to the conduct of the Attorney-General w « re ia error , he hoped that his learned friend would be satisfied with his expressing his regret that he had done so . The Attorney-General said ,. that he was perfectly satisfied , but he was indeed anxious that the matter should be set right , especially before that august tribunal . . .
bir 1 ? . Pollock continued . He had pointedfaWt three substantial matters , in which the . prisoners would have been benefit ted if there ha * been a simultaneous delivery . His'learned friend had contended that the contrary was the fact ; but the question , in the present instance , was not whether he should have any advantage from it , or whether he should not—the question was , if the prisoner had , for the purposes ot defending himself , that which the law directed he should have . He ( Sir F . Pollock ) submitted that the prisoner had take a the objection at the only period at which he was at liberty to do so according to the law of England ,
aud he would further contend that the " question ought to have been then put to him , had be received a list of the witnesses ! And if the solicitor of the Crown committed blunders in the management of the proceedings , ought ' such blunders to be passed over by the Court because they might operate in favour of the prisoner t He really thought that tho Crown solicitor , knowing such a blunder had been committed , ought in good faith to have asked the prisoner whether he had ' any objection to make . The Attorney-General hbped that the learned Judge would not allow a public functionary to be assailed , when he had no opportunity of defending himself . .
Lord Chief Justice Tindal—You should have stated thrae opinions before , aud . have given the Attorney-General an opportunity of remarking upon them .: . ; ; ¦ - . . Sir Frederick Pollock begged their Lordships ' pardon , but he had expressed the very same opinion when he had addressed the Court in . th&present instance . . . L or ^ Dennjan , —Then , j ^ o you think it necessary to xepealur ( Laughter , ) . -- ' ' ;^>^ ' ^^ 1 ; 6 kF . Pollock said bjs learned friend , the Attorney-Ueaeral , had taken no notice of this part of his statement ; and he did not understand why the prisoner should be charged with lying by to shelter Ms guilt , when , in fact ., the officers of the Crown had lam by . It had been Said that it was the prisoner ' s business to point out and to take the objection . He wouia
_ aeny this assertion . When it was charged upoa them that they wished to defraud the law of its delinquents , his answer was , that they ought not to stir m the matter more than the necessity of the case required ; and that it wasjaot , fcr the prisoaer , ? o the prisoner ' s counsel , to have made the objection in toe firjt instance . He had only one more remark ' to make in this case . It was not for him to . cite authorities where there were none , because the , statute had been regularly observed ever since the trial . Mr . Frost having been found guilty , their Lordships had now no judicial power to exercise with respect to him . If they decided in favour of
we oDjection , all they could do was to convey to the Crown a recommendation to mercy ; and he submitted , that even if they did not come to such a deoision , the very fopt of the assembly of the nfteen jud ge * being required to deliberate on the point showed it was one of da ^ culty and embarrassment , and on that account entii . led the party accused to a recommendation to merer . ' , - At theconelusion of Sir F . Pitflock ' s renrj , two or three indmduals in the court ola wed their hands ' but this manifestation of feeling firm inatantiT repressed . * ¦ *^»»<» " « j a , & ? De 5 m * n then , said , that the court Would tei ^ Sook 1 m ^ on Monday corning a *
The oourt adjourned » tkjjp tfcloek . M 0 NDAY ^ oin «» y 27 . i Ihe Jadf es took their seats this morning at a quarter ^ £ 1 ^ ^* * " * ^ CoS walS ^ y w « ld ne t begin by making anT ^ logy ^ e ^ iS
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wWeh hia duty might compel him to Uk&U * i >* Mibe ^^ J PZ veo ««^* SS 3 SoVfi feel tbat he bad Wwfcd the time wluWtS&riUtitattM owed to the public , bat . on the other nsttfi , tftWm any fastfdiovsneM or dread of doing so , newtfetoleSv anything tumid whJch might appear to bfitt favoWsW to taeprisoner , he might hereafter feel that wttch no words of his « tmld sxpnas—tetnlvht feelfhal -and foe ever , to which no man- wmM endeavour io fcotnpmr the argam ' enti hit duty compelled him to use'fa ia narrow a eorapasi as possible . Their Lordrfilpj werenow , for the fiiat time , to put a construction « poa -t he most important Act of Parliament in tbe 8 tat * te Sook , on » which had beien'in 6 per « tion f «» tte greatw pirt of a . century . Their Lordships weie called : np 6 » -W ih » . Wtrfsii Mm fat * ***** . » ii . » . t vt _ . x . tJcatS—u .
counsel for the crown to alter the ** % , —to row Vm * wia said by the legtBlatme ^ -to make the iwr « oa » T thing different from -what H was Before . Be » buld a * once lay before their Lordships the words of tbe act oT partiament Raving . done so , b ^ esM , if they mt + doubtful—if they were open to any uncertaiaH , their Lbradiipg would proceed in the usual and Ugal manner to put a proper teonstrucflon ttoon tbWey looking at the context , : 6 r at pndot * decirfonslii « 6 > rtB oC law , and so determine which 6 f two at man couBtrurtiops might or ought to be put bn tb » statute . But if they found that the words we » perfectly clear and unambiguous , « o that n » man could put more than one meaning upon tbeb , then he apprehended their Lordships would not fee ! them *
• elves at liberty to rescind or alter what the Legislatui * liad done , and substitute something different ; It was admitted by the Attorney-General , and ft coultf be denied by no man , that ' the plain a&d obvious meaning of the enactment was , that the list of wltnosswand th * list Of jurora should be delivered to the prisoner , alonr . with a copy of Uie indictment , ten days befoie the triaL That was the plain , ordinary , arid neeassBy * eonatrttotion to be put on the words of therAct ; a 9 | 4 ^ f their Lordship * wpuld venture to make the alteration which was called for by the Crown Counsel they must begin by striking out no less than sixteen words from tb » statute . By maVing that alteration , then , withont o * J tying the alterations further , no time wonld be specific * for the delivery of these list *; therefore the learned
Attorney-General proposed to add other words -for thai purpose ; and these alterations were to be made In a : statute acknowledgly passed as a safeguard . to . penon ^ indicted for one of the gravest offences known to on ^ laws . He did net believe that their TAnriahfowaddi so deal with the Jteitule ; but if theydM » , ;«»* must go farther . His Learned Friend also called upon th ^ to B »* ike ; out tbe wo ^ d " wi » , and to sabstitnte »* a * l . " « 80 that in tbea& ^ iwo % nportaiit enactment « , ^ ntade hf the LefialituTB f « the ^ proteBtion of pe « toi drOTn 5 ^ stanced as these wfere , whose fates weio now ^ -depeiuiingi on their Lordshipr decteion , the Attorney tGeneral called upon them to strike out from both clauses , whatever words he found it necessary to his aqcument t » j strike « ut , in order to read the statutebo w to suit hi i
, and insert in lieu of them words to gnlt tiiat argumenfc If his Learned Friend who had rep'ied at conkderabW length to the arguments of Sir F . Pollock on Saturday could cite any one ease on authority , to baftmnd in any book recognised in that or any / other Cotrt of Law in which , not in a case of life and death , not in » criminal case at atl , but in any civil cafto , in th * most unimportant , the most Insignificant case , to whiot any protection in any legal enactment waa to be fbuni in any class of prisoners—if hfa lmrned friend the Afe torney-General could find any authority to enable aw Court of Justice thua to deal with any actof the legfc . lature , he should say , at least , that bis researches h » j been more fortunate or unfortunate than his ( ftjta Kelly ' s ) , for he bad found nothing approachii »
to it in all his researches . There were none—rrione suo had been recited or relied on at Monmouth , and nw » could be brought beforo their Lordships in that Coui The meaning of the schedule was so clear and apparel that he could not conceive how it could be attempted i draw such a construction from it He would nbw pan > to see what was admitted by the Counsel for the Crowij He 1 hod noticed particularly the language n * d by m learned friend the Attorney-General , because he m watched anxiously to hear some argument thatte migl at once meet and grapple , and deal with , abeprding U the best of his understanding of the statute . Wm had his learned friend been compelled to admit , aimed at the ouset of his argument ? Why , that these word would bear the construction put upon them bytheCOM
sel for the prisoners—that their meaning was one w ] could fully and properly be given to the statute . Tl if the learned Attorney-General admitted " ; "that meaning for which the prisoner ' s counsel cbnten was one which might fairly be given , before the At ney-General could substitute the other different m ing , he must show two things—first , not only that meaning he called upon their Lordships to gWo it more consistent with * the plain words of tbe sta and its context than bis ( Mr . Kelly ' s ) , briali ^ as it been held that the present was a statute be construed liberally in favour of the prisonermust show that that construction ; was 1 favourable than that which the Counael * for the sbners called npon them- to adopt- His leai
friend had done neither , and therefore lie repeated t it was not . possible to put such a construction with striking out certain important words and " substitul others . He contended that the second meaning ' one much less iniavour of the prisoner , and / woald altogether prejudicial to his case . He would now their Lordships' attention to one view of the stab whioh > ttdless be deceived himielf , waa absolutely « clusivft of tbVquestioft ttkicu tWy had now tod « tartol He understood tbe counsel for . the Crowrf U ^ dmitthese Hats muBtte delivered ten days betoxe ; trial , 1 in the presence of two credible witnesses : Ho presm his learned - friend ¦ would not dispute that admial Now , then , if the statute did not require that the 1 should be delivered "at the same time with the 4
of the indictment , " he denied that there was any vision in the statute at all that these : list * shoulc delivered ten days before tbe trial , or at any : other ticulartime , or iu the presence of two witnesses . position he would undertake to convince tteir I ships of . Now , if their Lordships looked at the n of the statute , they would find that the provision not that those lists should be delivered ten days b trial , bat " at tho same time with the eopj ) of tin dictraent" His learned friend would contend these words were immaterial , and they were treats if they were not in the statute At all . Their Lord would , however , attentlvlly consider the worda of statute , and the meaning which ought to be fairly legitimately applied to them . If the word . s i conaid
immaterial by his learned friend on Oie , * otLer were struck out , the statute would ' be a . nulli regarded the identity of the . delivery , and ! there then no provision » t all concerning the ' delive tbe lists . Unless they took and included ; the 1 " at tbe same time , " with the copy of the bidicti there was absolutely no ; provision for the deliva the lists . It waa oniy by ' the force of theiwordi the same time , " in the early part of th ^ fajdicti and the word : " with , " in the latter part , "thatanj vision was made for the delivery of these 'juts , ai bis learned friend , the Mtprney-ijeneral , would ra or entirely . explain these words aw ^ y , " Be ( Mr . 1 could scarcely , without confusion and a waste d time of their Lordships , point out the numerom
minute alterations which should be made in the in order that it should be read as bis learned the Attorney-General would contend for . jn f order to do that it would be necessary forspme skilled , in , the buainess to sit down and jlr&vr entirely new clause , or to make such alteratio ! interlineationa aa would completely remodel ' tbe On the other hand , if their LorilsMps fouidth man who knew the English language , and had c < sense , could make no other meaning out ot the than he ( Mr . Kelly ) contended for , they woii trusted , be slow to construe it in any other Sense statu-e , did not lay-its framets ppeh to the ; iinp ' which a noble apd 1 learned lord' now present upon the Legislatures of former days . The atatt
drawn up w ) tb great care , accuracy , and aim which any person only to h ^ ar read wouRl dedm it There were tliree papers torM delivered to t sonar altogether ; aid at a ' certain period : bef ( triaL The learned Attomey-Goneral -wonldj , b < call upon their Lordahipa to destroy the , unity a plicity and acennoy of tha statute , and that 1 king out spmgjmd sabatituaog other wrt ^ riw a twgam ^ t&r That *«^ tji » k , to l ^ e 4 mw . Xo tt Ua | beeu cited , to ; -ioauce- thorn to iattoduce reading of an ' . £$ whjeh had been in . teheficial tioa for tbo greater , part pt a ^ century . It' ' wa » , mind , an attempt to deprive three prlBoners , d for their lives , of the benefit which the statute eo on them . He would now come to the precede
authorities that had been referred to . a ' ndhew relieved , by the argument of Sir ftederfck 1 from occupying more than a fewminutcsof thd ships time . - Ha would only remind tlieif L « that the flrat trial for high treason in which iJiia was brought into operation , « as that of Lot * Gordon , In 1781 , Beli * eenmti time and ^ e 3 there had been , he believed , some thirteen prtoar corded . t ^ twhi ^ fe ^ ictfoon rsem ^ re ^ eri been tried ) , and hja learned friend ( SirF . Pollod ferr ^ ng to tte hisAiwy of those casea , baisWi every one of aufficient pubUc interest toindu ^ e tl * doyjjaUtl ^ prooeeflii ^ Baceuratoly in anbrtJ * publisH t £ em in the State Trials—from the caw George . Gordoriiio 1 ? 81 , to that of Thlstlewood waa ^ happily iHe last ) in 1820—tbia statute irt npenin the rery way now contended for ; B
recorded fact that at the proper period before took place , theUata were-deUvered , and at « 1 time . Theh'lHi ^ ihlp « nad . fliflrefore , first t * of the 8 tatute , then all the practice that M place underti , l » ft ? wur of the casea now pies * tlwii : conaiderattpa . , He would only refer * those cases -liar a moiiaent , in consequence aervation of the Lord Chief J « utice oftlM . J Plea * , - when the caae' of pad George Qm adverted , to . Into having been the first to J waa necessary to provide tbe « tatu * e , inasma * was no power by l » w in the public prosecutor ^ tneaneriff , whp vra » not the officer of ti » K QenenJ , to give to him a list of the jurors ! the Court of King ' s B * nch wm appUed toW the aheriff for that purpose , and it mif biP ] important to obaerve , the role must having up by the learned mover , or perhaps by tb » * J with reference to that very provision , and tf -1 ( Continued in wr SevmUhfOg
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Citation
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Northern Star (1837-1852), Feb. 1, 1840, page 6, in the Nineteenth-Century Serials Edition (2008; 2018) ncse.ac.uk/periodicals/ns/issues/king-y1kbzq92ze2669/page/6/
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