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I { ConihHt ** fl * tm emr&irihpageJ I ae sheriff to required U deliver the li * t to tbe I Attorney-General or the Solicitor of the Treasury , in I <» der that 5 copy of the same might be delivered 'those yrere the very word * in Douglas ) at the ame time \ rith the copy of the indictment . It "was obserred by one of I tbelr Lordships that thia did not refer to the list of I tritnessea , Trfeicb . -was not mentioned in the rule ; on I Hot he had two remark » to make—first , that the Crown I £ d not seed the aid of the court to obtain a list of the I lio"iro T < ittiMB « , which wa » within the knowledge of the I iililUMWi—ffciBi lnii mil 1 ~ 111 T tittkBOwledre oz ^ fttnth * H 4 fl * m mr & * th page . )
I teen , therefore , absurd to lam' ^ iEHHWlt I -with respect , and irrelevant to hare adverted to the I Est of witnesses , bat their Lordships woufd observe I that ths liitrof Jifcora , to pcroojre which Stm the object I of the application to the C&art > . was ordered . to fea given , I that k might be seared at the ssme time with the copy of the indictment Tbe eaaetment that a U » t 0 / witne * [ ses should b « aetiveredateopnvid ^ with respect to the Bst of witnesses under consideration , and was that a lirf of the witoeaKa , which should be produced at the trial , and of the jurors , mentioning their names , professions , aod places of abode , should be also given at < he Etms tine ¦ with the copy of the indictment ; and , therefore , there was precisely the same obligation on the jmblic proBecttWr to giTe a copy of the list of witne *
sas as of the list of jurors . If tbe court , therefore , « bs& it drew vp that rule , thought that the list of jarors most be deliTered at the same time with the jopt of the indictment , they must allow that tbe list of ¦ witnesses must be deliTered at precisely the same lime , because the words of the Art were precisely the same . Kow , Sir Frederick Pollock had called their Lordships ' attention to a great number of cases , in all of which the court had held , that the words of a statute providing for the security of Jiie prisoner , should be binding aod imperative , and that all the statute required should be given to the party . It would be quite inexcusable for bim to refer to any of those case * , bat ha should ot feerthat be bad discharged his duty , if he did not icake some ^ obsarration on the mode in' which these
references were met by the Attorney-General , "who had told they were merely cases in which the law required something to be done which badnttjieea done . Why , _ what was the case before their LordAJp *] on which the ^ MBste of those three mea depeaded ^ Bai -that tbe proTv sions of a statute had not-Seen complied witih ? There was one statute not cited , bearing directly on the present ¦« we , Tia , ti » 7 th Wa . 1 ¥ . asd let Tin . e . > 6 , by which i t was enacted that bo yGl should be Talid , unless in writing , and signed by ttfe testator , otsome other person in his presence and by his direction , in the presence of two or more credible witnesses present at the same time- Suppose a case in which . A will had been executed , and it hod been attested by two witnesses , but by one at twelve ateloek , -ami "b y . tfe » other at a different time , what argument could hi * learned friend urge to induce their Lordships to dispense with the proTisios inspecting
" the same timer It mijht be said the witnesses tTroreaaeh of tbem that the testator duly executed the wiiUxnd what did it signify that they did not see it at the same time ? It might be urged ( u in the present MSB , ) tiaf the real intentioa of the testator , credibly witnessed ; was the substance , thai tho simultaneous witnessing was only matter of form , and that bo injury odd possibly result . Kow , if their Lordships could , 1 b tbe present case , strike out of the statute of Anne the plain words , " -and at the same time a copy of the indictment , " what was to prevent them from also steiiisg oat "the parallel word » -of the stetote of will . ' —j particulsriy a * it woold be difficult for a person Tinacquainted with tbe pKTioos history of the law of willi , to ditine'what coukl be the reason of such a pro * ir >« L YU flbailtrorigin efidently i » tfce statute « f frswJ * , * t&tkmutm \ tYii « no via ifeoattbb Talid « afa » sigiMg by Ifcii » . jfffrum , m wt |—¦ 1 , hat which 3 id w * . require hjmWis—M ¦ . tHiiaiiijt ' . rlow .-not
' * er * y la a * . rotacgona s * si nst , j-tM » fn « clergymen , - ** gartfanlftrcbtsaes ona&TidsaU , had tbe aonrts held ttKsnseJrra "bow *? 1 % fiB ) to adhere to the exact words of the statute , but there was a long series of ¦ eases occurring in the Court of Queen ' s Bench , in which he judges had , over and over again , while expressing their regret that they were bound to do so , given a - certain effect to aH the express words ot a statute , -even when they admitted that they were constrain * the act contrary to the intention of the . legislature . There' were many cases relative to gaining a settlement - « nder the Poor Law , byrenting and occupying tenement * . ¦ There was the case , for instance , of the King r Xorth C « t-¦ tin gham , 1 Barnewell and Creaswell , pa ^ e 57 S , when the question ni whether the settlement bad been gained
by the occupation , not for the whole time by the party iimself—but by an under tenant , Chief Justice Bert hsA said , ifcat he was bound to decide in opposition to what was probably tbe intention of tbe Legislature , ia accordance with the express words of the statute . Then , in Bex c . Bamsgate , 6 Bamewell and Cresewell , p . 712 , a question arose on the 6 th George IV ., 37 , whether the settlement had been gained where the rent had been all paid , the words being , that it should not be gefcfcral unless the whole rent had been paid . Mr . Justice Bsiley said , " It is desirable in all cases , to adhere to the "words of an act of Parliament , giring them ¦ ^ *~ tbesenae wMcb tbey aaSojsUy impartr-in- the order jn ¦ to
% which ttiey were placed . It is material to ^ fttend the ¦ -eoDooctioa of the wante , * ad they should \ m constrned according to the plain import which they bear , in the order in which they are placed in the Act . " And If r . Justice Holroyd held thfc same ; yet in this case the Attorney-General wished at least a transposition of the words in the Act—a different collocation of them . There was also a case Bex » . HitcMus u Bame-well tad Cresswell , ir » i on a question under the same act , in which Mr . Justice Parke ( now Baron Parke * said"It is a Tery safe rule of construction to adhere to die words of an act of Parliament , giring to them their grammatical and natural sense , unless whan they plainly appear from the context to be used in some other
• ense . " And these "words were more important from th-iir haTing been accidentally employed on Saturda 7 -by ilr . Baron Alderson . Mr . Earon Alderson—It may not be improper here to read the judgment which was affirmed by the Judges in a ciss I hare here— " ] t is a rale , in the construction of itauiuso , that in the first instanc * the grammatical senstr uf tbe words is to be adhered to , and if that is eontrirj to , or incormstent "with , the exp-essed intention uf the Legislature in other parts of the act , or if ife lead to sjij absurdity , the grammatical sense may be Modified , fcitesded , or abridged , so far as to remoTe that inconvenience , bui 2 u further .
Mr . K * -Uy—Ard in the present case the Attorney-General admitted that the woTds in the statute of Anne might , in their fair , ordinary , grammatical sense , be construed in the sense argued for by the prisoner ' s counsel . And he defied the A Homey-General to show mi the Ac ; any -words tending to Tary that sense . And be Mr . Kelly , would , therefore , consent to be bound , for the life or death of these prisoners , by the wordi ¦ which the Learned Baron ( Alderson , had been so kind as to read . Now , in 3 h ' erflle and Manning 21 . there was another case under the >" ew P » or Law , in which Lord D ^ man - doubted if the Legislature contemplated-t , ut still had used words implying—tha » in » uch a case , the settlement ihould aot be gained ; " and to Lora * hip decided un the express words of the Act with tiB concurrence of Mr . Justice Littledale and Mr ' JHstiee
Patteson , with Mr . Justice T&unton , who E » ed thtse expressions— " the Judges are bound to adhere to the stnet words of the statute , vrithout resorting to wy oenjeerara of their own . - Now , in Rex *? Si Nicholas , C-olchester , 4 KeTiUe and ilanning 422 Lord Denman Mid having referred to the last cited ' ease , , tbat he had been , with the other Judges , startled at the consequences of their decisien , but the words were too saong to be deviated from , and he was resolved to loJow the express direction of the Legislature re- ' g = rclas 5 of the apprehended difficulty in parti cular casei - Again , in the King c . Ashworth , and tbe King ¦ ? "h eii , au the Jud ges of the Queen ' i Bench had decidbd . that they felt tLemselves bound to adhere to ttw plain and obviuua words of Acts of Parliament esf pecally of recent Acts . Kow , although ibe Act in question was of an old date , still for his parrwee tt « . »
remit one , for that was the first time any Judge had ; been called upon to put a construction upon it . Hire , -H-ere a number of eases decided , not for the protection of men ' s lives , but simply in disputes between different parishes where Jud ges had held tfcit they were bound by the words of A ct * dt Pariiame **—all the judges t concurred in that sound constiiutional doctrine that where the words of an Act were elear , plain , and simple , they would not teel then-selves at liberty to specnlate as to the intentions of the Legislature , nor look at even the spirit of the Act , nor would they look at what oonsequfcBccs mi ght follow—they fclt themselves bound to look at the words of the Statute- That having been decided m actions a ^ ainal 3 magistrate , or in penal aeta -against a clergyman ; or is dispstes bftween parishes settlements
respecting in all casw of a civil nature , he would ask whether it were possible for * hem to depart fronuhwe rules aad disregard all those principles iTa ease involving the question of life and death , and upon Re construction of a most penal Act of Parliament : Tiuch was passed , admittedly on all hands , as a safeguard for the prisoner . A reference had been made to what was ealled Peel ' s Act ; he contended that that Act left the law positively untouched . By the law under we Statute of Acne , the list of jurors and the list of ; witnesses were to be delivered alony with , and at the . same time as a copy of the indictment * ow it had : i » en decided by all judges that the true meaning of the r word •• trial "is that and in the 8 tatuie of William was arraignment , -sad that the Act required them to b « dek ilTert d ien days before arraignment .
f Lord Abinger—In the statute of ¦ William the L reascn "vras given—it . was for the purpose of the pri-- _ soner censotting his Counsel preparatory to his defeoee 1 ¦ Thfcie "words were not to be found in Anne . I Mr . Keily was aware they were sot , bat as was not I eoc tendingaatothenManimgof ttieword , b » wa « eade * - | . Touring to state the probable meaning ot Peel ' s Act , I tod he thoaght it was not Material whether th « word 1 T ^ ^^ OT Brrai ff nment ' ¦ && ^ coBiKientators had 1 5 iiui it down that the "wetd . sieani arraignment , and '< \ te thought that bad be *» the impression on the mindi vj « th- aamers of Peel ' s Act , that arraignment and trial ¦ i Taaoat the sair . e thing . If the arraifinment meant tht ® Eie thing , \ bat was what was required by the statute - - ' rf Ia * > ^' - ' t the jury lists should be delivered ten days ; " p ^ ^ triaL lf tria 1 meant arraignment , ther » i ^ ** ' provided that the copy of the indictment ant ^ o of ^ J 11101 * sh ould be delivered at die sain < : » and that time must be tea days befvre tlw kiaj
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If arraignment and trial meant the same thins , then no alteration had been made in the law by Peel ' s Act But it might be contended that it means something different from trial as meant by the statute of Anne . That that statute did not mean the same thing as arraignment in the statute » f George IV . Be it so . By QDe provision of the Btatute of Anne , it was proTidedthat the list of jurors and the list of witnesses be deliTered at the came time with the copy of the indictment ; by another provision that time was fixed al ten days before the trial . What said the statute « f George IV ? It said that a copy of the indictment should be delivered not ten days before trial , but ten days before arraien-| S ^ tiM ^| ttm * i ^ u ea ^ per iod-wnat touched . The statute of Anne said " , hot feJrlb « 5 iaB f the trial , but at the same time with the copy of the laBetaent . If the alteration had said that the copy of the kfc 3 ictn » ent . should be delivered not ten but twenty days before the trial , the statute of Anne proiided not that these lists should be delivered a certain fieftnite number of days , but at the same time with the copy of the indictment . This was a necessary consequence , supposing the word arraignment to mean something different from trial ; and under Peel ' s Act it was enacted , that a copy of the indictment and the list of jnrow should be delivered ten days before arraignment lie had" * ound various enactments stating that different documents should be delivered at the same time , and what was the construction that the practice of the Courts had « arraignment and trial meant tbe — rn liilna 11
uniformly put upon such ecactmeuts ? He would cite one case , which wouldexemplify wfcathe meant , and in which the enactment had always been construed in the manner he had contended for , until the practice had been recently altered by the new rules of court Under tbe statute of Ueorge 11 ., it was enacted that netice , if set off , must always be delivered at the same time ' as the plea . Did that Bay any speclEe time ? No . If tho plea were entered four days after the declaration , the notice , if set off , must be given four days after the declaration . At whatever time the plea was pleaded , at the same time must the , notice of set off be served . The act mentioned do specific time for giving the notice of set off , but enacted that it should be served at the same time the plea was entered , ^ y the statute of . Anne the lists were to be delivered at the same time with the copy of the indictments JV ws * . also , enacted th * fc the copy of the indictment should be delivered ten d » y * before trial ; by Paid * AAi tike copy of the
mmctinent was to be delivered tea- da / s before arraignment , but this did not affect the statute of Aane , which enacted that tho copy of the indictment and the UtUif witnesses should be delivered at the same time . There was one remarkable . point in this case to which he wished to draw their Lordships' attention . His Learned Friend had said that the prisoner could receive no prejudice if the lists were delivered to him ten days before the trial . But if hereafter an Act of Parliament should pass enacting that the copy of the indictment shoild be delivered twenty days before the trial , the prisoner would not have the benefit of having the lists of witnesses and of the jurors delivered to him twenty days before tbe trial also . He conceived that , according to Peel ' s Act , i t signified nothing if tbe person had the copy of the indictment ten days before trial , or ten days before arraignment , and this he considered a strong reason for calling on their Lordships 1 to tie the prosecutor down to the strict letter of ths ! statnta .
Lord Abinger—Then you contend that if as Aet of Parliament were to pass , enacting that a copy of the indictment Bhould be delivered twenty days before trial , tb « provision wosld equally apply to the lists of jurors aad the lists of witnesses , and if it were enacted that tbe list of janrs should be so delivered , itwould apply to the-copy of tbe indictment . - Jit . Kelly said there wz * this difficulty under tbe statute of Aszte : ¦ it was eoacfecL , not ihafc the list of witnesses should bedclivereLftt tte Mine tine wlU ^ tbe list of jama , bat wiifctln oof * nf tha tnriiot ^ rmt . therefore he did not know wb » t would be the ease if j « Act were passed alteririg the time of the delivery of the list of jurors . It had also been said that Peel ' s Act created a severance of the delivery of the lists . He admitted the severance with repard to the two documents . The Act said that in trials for treason in the Court of King * B Bench a list of the Jurors should be
delivered ten days before the trial ; but when an Act of Parliament directed these documents to be delivered at the same time , and another Act said that in a trial in a particular Court one of those lists should be delevered at a different time ; that , therefore , the law generally was altered . He would now refer back to tbe statute of Anne , in order to see if that affected the delivery of tfafr-lists of witnesses . That statute provided in clear language , that the list of witnesses should be givsn at tbe sams time with the copy of the indictment . Now , if there was anything in Peel ' s Aot that rendered that impossible , he quite agreed with tbe Learned Attorney-General that it must , pro tanto , repeal that part of the Act . Now , Peel ' s Act stated that the copy of the indictment was " to be delivered as heretofore . " Thus fir the Act of George did not alter the delivery ij the slightest manner—the only effect being t « render tbe delivery of all the documents necetsary at an earlier period .
Chief Jsafciee Tindal—Ton connect th « list of witnesses inseparably from tbe copy of the indictment ? Mr . Kelly—Most certainly , and he could not too often refer to the words of the statute . That there was no provision for the delivery of the list of witnesses , but then " that they shall b « delivered at the same time with the copy of the indictment' That was the only enactment to the time and mode of delivery . He , therefore , inseparably connected them , and whatever alteration might be made as to enlarging or shortening the tima ^* delivery of the copy of the indictment , the list ° f *» "witnesses must accompany that alteration , just aa > did in Scotland . There "was some inconsistency in the arguments adduced on the part of the Crown with raspect to the construction of tbe statute as to
convenience . The learned Attorney-General , both at Monmouth and there , had declared that convenience or benefit had nothing to do with it—that no equivalent or equipollent was to be supplied , and yet ho Mr . Kelly found him over and over again , at Monmouth and there , contending that the prisoner was in no wise prejudiced , but in truth benelitted by what had been done—that it vras an act of kindness to him , and that he had a copy of the verdict fUteen initead often days before the trial . But ¦ why , when he had received tbe admonition of the Court as to the length of timt ) they should o » cupy it why \ ras their attention to be drawn , while he ( Mr . Kellyj and his learned friend were under the conttant apprehension of saying souietfung that might , be an undue occupation of their time—yrnj should the
Attorney-General bring forward and compel them > o reply to arguments that the prisoner -was not injured but rather btmeStted by , what had been done ? He confidently denied that argument had any room or loeu $ slandi in that Court—that ; t should not be med or adverted to . because it was a violation of every principle of law in the construction of a Statute to consider that there was something dear and plain to the most ordinary understanding , and in order to construe It they must inquire whether the prisoner might er might not be injured . If that was to be taken into consideration at all , pray how was the prisoner to prove at the bar that he had been injured or prejudiced ? Suppose a case arose in which he had sustained some real grievance or injury , what process or machinery of the law was then provided
for the prisoner to prove it ? >' o subpoena could i > e issued to a witntss to prove it—or if the "witness was present , was there time at the Special Commission sitting at Monmouth , to enter upon those sollateral inquiriei ? Suppose there had been two iudiotmente against John Frost—one for high treason , with 100 men , at Newport , on the 1 st of July—another for hiih treason , with 10 i » other men , at ilonmoutb , on tho loth January , it -would be impossible to deny that if he had then received the copy of the indictments and list of witnesses at different times , he would have been materially , prejudiced . If he had had only one list of witnesses and copies of two indictments delivered , might he not . urge that he could not tell to which indictment the list referred , or that he could prove , by some of the
witnesses on the list , that he was 100 miles distant from the place laid in the indictment at the time ? How co « . ld that statement be admitted ?—it would go for nothing . He submitted , therefore , thai there was no power in that Court to enter into speculative inquiries as to whether the prisoner was prejudiced or no » for non-compliance with the act of Parliament Still less could they consider how far he was aggrieved or benefited by it . Their Lordships wers bound to look at the plain and distinct meaning of the conditions of the Act , and if what the Legislature required was not done , the prisoner was entitled to the benefit of whatever le ^ al consequences might necessarily follow . Jt had been contended that the intention of the Legislature could not be that all the lists should be delivered at the same
Vine , because if the panel was exhausted i » would be imposiible to try the prisoners from the lists so delivered . In that case the ] . roceedinjf must be adjourned . H any such inconvenience arose , the Legislature was responsible for it If that had o « curred at Monmouth he ( Mr . Kelly ) contended that the indictment must be quashed , and the proceedings adjourned until a fresh J * ry had been summoned , and » fresh indictmeat t * ot up to the Grand Jury . It could not be argued that that was a consequence never contemplated by the Legislature , but it must be submitted to until a remedy waa provided . There was nothing to prevent the Court , in case of the jury panel being exhausted , on Its own authority to order the whole proceedings to be quashed , tb * indictment to be again prepared , and the whole proceedings to be gone over again , because the statute was not complied with . It was carrying the arsuaient tuo far for his learned friend
to allow that whea the statute of Anne was not in operation in 1746 , and there was no question about a simultaneous delivery , the Coart adjourned the proceedings several days that the prisoner might have a list of the new jursrs ; which proved how zealous they were to give the prisoner the lseaefii of whatever statute existed for his protection in this case , the delivery should be deemed saffidemt , and the mischance waived . On that branch of the argument he had concluded . He had subttiUed the precise words of the statute , and had shown that the construction for which he contended had b&ea invariably adopted in practice . He had laid before their Lordships a great variety of cases in addition to those of Sir Frederick Pollock , in which it was decided that what a statute required wiuuld be done must be- construed literally and strictly , and had endeavoured to prevail oa their Lordships to dismiss at on . ee all question that mi ^ ht . axis * , wb ^ -ttcr or Bot the
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prisoner might be thereby prejudicsd . And he would venture to suggest that it would berrash , and if be dared to use the expression , he would say , presump tuous—in any judge to attempt to assign a limit to the benevolent intention of the Legislature' for the benefit of the prisoner . He had submitted views In which tbe statute was literally construed , and this doctrine held , and he had only on this branch of the case to express the hope that their Lordships would not be prevailed upon to establish by their authority any other than the strict and liberal construction of the Statute . With these observations he passed on to the next point , namely , the supposed waiver of the ejection . Now , the question would naturally arise when he heard & 6 counsel for Mm crown contending that an admitted ¦ ¦ , , , , ,
SSSS ^ Sg ^^^ T ^ did he find a provision in the statute that / ander any circumstances the right should be forfeited . He found , on looking at the statute , that the provision was unconditional , and he contended that . where the legislsftbrehad passed ah act which , in direct term * , gave a benefit to an individual on trial for his . life , there ought to be some words equally plain and direct , showing that right might be forfeited , before the counsel for the c / owb could allege that it had been . The Attorney-General had stated that , by pleading , the prisoner admitted he hod received the list according to tbe sta'ute . What was his authority for saying so ? Consider the si < uation in which the prisoner stood . There might
be a prisoner hereafter without the benefit of counsel —how was such a one to suppose that , when called on to plead , if he pleaded not guilty , he admitted he had received the list He hoped the Attorney-General would not , by his own assertion , state so , but refer them to some legal authority , binding upon their Lordahipa to show this privilege might be lost Let him for a moment suppose his learned friend supplied the court with » all authority on that point that could beurged , with Rookwood ' s case , and Crooks , the only au horities directly bearing on the question—the decisions amounted to this : that when the prisoner bad omitted to ask for a copy of the indictment until after indictment it was heid to be too late . The objection was not , as had been erroneously stated , too late . By the statute of
William , the prisoner was bound to do the first thins *—he was bound to ask for a copy of the indictment within » certain time , or he was not entitled to it . In the statute of Anne such provision was made—no such obli gation was imposed upon the prisoner , he was perfectly passive from beginning te end—the whole obligation of acting in conformity with the state was absolutely , unconditionally , cast upon the crown . Kow , in the case in which the objection was urged by the prisoner under the Btatute of William , the facts were these—The prisoner under the statute bad a clear right to ask for a copy of the indictment before he p l eaded , that he mi ^ ht be enabled to plead thereto . He had omitted to do so ; and , after pleading , he objected that he had no copy of the indictment To which the answer was — " That , as he bad not asked for it , he could not now claim it" The court went oa to say— " That , as tbe
prisoner had not asked for it , he must be presumed , therefore , to have waived the asking for it ; and that he had admitted either having received a copy , or that he did not need it" Now he ( Mr . Kelly ) would venture to say , that thU remark was incorrect and uncalled ! or j and that it could not be argued that the prisoner bad in that case admitted his having received the copy , or that he did not require it . And if it should be attempted , on tbe part of the Crown , to use this remark against the prisoner in the present case , he ( Mr . Kelly ) would say , that as tbe statute of William referred to the indictment and jurors , and the statute of Anne , related to the witnesses , it would be absurd to refer their Lordships for tbe intent of the last statute to the former ; and that supposing it should be argued that the " intent" of the first statute was that the prisoner should be enabled to plead—that could net be argued of tba case under the latter statute . Now » th « prop © -
siUonof tt » Cww » = Corasel was , t % * ttygttm * , « he did not make the objection prior wfflrfw 8 a 18 hg of the jury , had vaivedit Lord Chief Justice Tindal—Mr . Kelly , in the case you are arguing , the jury had not been sworn . Mr . Kelly was obliged to his Lordship fer the hint , but he did not desire to encumber the main argument with the particular variations in this particular case , to which he would advert hereafter . He would nownotice the cases which had been cited by the Crown counsel , as analogous to the present upon this point . His learned friend the Attorney-General , had cited only other two cases , the King v . Stone and Hill v . Yates . He ( Mr . K . ) would not take up the time of the Court in arguing them , for they were not any way analogous
to the case under their Lordships' notice . He had a caBe to which he begged the serious attention of their Lordships , as it appeared to him t « be clearly and perfectly analagous to tbe case in question—not only in its facts and character , bat it was also most important as shewing that the objection had been taken at the proper time—it was the King v . Warde , and was reported in 12 th Modern Keports , 616 . The defendant was indicted for Barratry , in which case he was entitled , not by an Act of Parliament , but by very old practice of all the courts , to a copy of the articles to be insisted upon at the trial , in order that he might prepare for his defence
Now , in that case , the copy was served upon the servant of the defendant , but that service was adjudged -fit ' That was not a case of no notice at all—there was * service upon the servant , but it was htld a bad service A trial without due notice was no trial at ail ; and it wss held that , when there was a rule to jive a copy of the articles , and that was not done , then the prosecutor ought not to be entitled to give any evidence at the trial , and the defendant would therefore be acquitted . That was a case in point , and he "would watch to see if the Attorney-General was able to give any satisfactory answer to it Probably he might contend that it was a case of mere irregularity .
Mr . Baron Parke—What is tho nature of the service of the articles ? Mr . Kelly believed that it was to be before plea pleaded , but his learned friend , Sir W . Follett , would answer the question , he not being then able to state the rule positively . Tbe statute of Anne did not point out any time for the objection to be taken , nor any time when the objection was forfeited . He was prepared to contend , that even after the jury were sworn the prisoner had a right to take an objection to the non-delivery of a copy of the indictment . It ivaa a question of great doubt , and their Lordships would pause before they sent three men
to execution upon a point so doubtful even to the most eminent Counsel at the bar ; nay , he would say that had the prisoner consulted any of those whom he had the houour of addressing with all their preeminent ability , but would hare considered the point as one admitting of very grave doubt at least ; he therefore , trusted that ihoy would pause before they sent three men to death upon it . He must , without meaning any disrespect , be permitted to say that he felt that if their Lordships Bhould find tho point doubtful , and the practice had in fact nofer been settled , they would not now suffer the execution of these indiriduals aa a point of practice which up to this time had remained doubtful and unsettled .
Mr . Baron Parke—It is a question of law that is to be settled here , and we have nothing to do but to settle that question . Mr . Kelly was aware of it , but if the practice had never been settled—but if no case exactly similar had ever been cited , and if the nearest case cited one under the statute of William III ., had determined this point of practice , against what had been contended for by the counsel for the prosecution , he would say their Lordships would not determine this case for the first time against the prisoners in three capital eases . He would say that their Lordships would not determine this case aa a point not settled against the case under the statute of William 111 ., in order to let in the argmnent 9 , assertions
and analogies of the Attorney-General . He would consider for one moment the proposition of his learned friend as to the construction of the statutein which there was no express enaetment stating the time when these objections ought to be made . He would urge the point in favour of the prisoner—that no witness should bo exambed against the prisoner concerning whom he had not received notice by miaus of a list specifying his name and place of abode , delivered to him according to the provisions of the statute—that was his proposition . The counsel of tbe Crown contended that the statute should be read thui . The prisoner was entitled to a list of the namee and places of abode of the witnesses , which should be delivered to the prisoner , according
to the terms of the statute , provided he did not plead without requiring the production of that liBt . He would vik what was the time when , according to reason and common sense , a party should make his objection as to the non-delirery of either of these documents i He would say , inasmuch as a prisoner waa furniehed with a oopy of the indictment to enable him to consult with his counsel , thereupon the proper time to object to the non-production of that would be when he was called upon to plead to that indictment ; the proper time to object on account of the non-delivery of the list of the jurors would be when the first juryman should enter the box , because he would say he could not challenge him , having received no list to enable him to make enquiries . So the proper time
to object on account of the non-delivery of the list of witnesses would be when the first witness should be called into the box to be examined , because he could Fay no list had been delivered to him containing tha name and place of abode of the witness who was about to bo examined . He would , in reply tothe arguments of the Attorney-General , ask how itwaa possible for an ignorant man to know that tie time for him to object to the non-delivery of the list of witnesses was at the time ke was ask ^ d wtath « r he was guilty or not guilty . The act suggested uo time at which the objection was to be vuade ; and how
was a priBonar , reading that statute , to know , that if he did not object at tke time of his arraignment , he lost all right of objecting 'at all ' . It also frequently happened that at the tin ? e a person was called on to . plead to the indictment , bis counsel were not i n Court , or he might not hay e had counsel assigned to him , and he thought theb Lordahipa would pause before laying down . & rule e ^ posing uninformed persons to the obli ^ ftiioa of r jaking a grave legal objection , at a time , they , have no counsel to assist them therefore the ^ oughkaot i 0 De compelled to make their objection atcthaWirae . He would ask further , with what reguldDti . gum 4 a p , rwn mate an objection at
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SL ! ^ 5 * " w * M « ere , when a party was SS * k ° P < ld » or when *> was about to enter the box , relerant to aa objection grounded onr £ , ~ * ? i ? 7 * V 18 li 8 t <* witnesses ! The Urart would in all probability say in such a case yow have no right to interfere in the proceedings at this stage wuh an objection irrelevant to it ; the proper time to make an Ajeetion is when the first witness 19 introduced into the box , and such , he would contend , was the proper time for miaiiig this objecti » n . lhe force of practice of the Judges in 1700 was decisive to show that lhe timt fdr makm * thn ohi ™ . n V , , ¦¦
S wejtfeadthx . but after pleading , and when the rl ! tj n * & IS * 1 8 t 0 •* "worn . The Learned uenuemaa heriread an extract from the resolution isteifftf-V ^ ?* 1 ** effect - Tho question J -SE&Snlif ^ T 1 him if he h * h * » C ° W of tbe in « ctiH » k-m | t appeared to him to be the recognitediaw atuKifaQtice . Nor was the making of the objection Olfrowu upon tbe prisoner , for the Uurt asked Khrilf he had been furnished with these documents . / Mr . Baron Ajderson—Although that is so , the omission could not be an objection afterwards . It is a matter of favour which has been always observed , but if omitted it goes for nothing . Mr . Kelly a / rtcedin that , but in merely observing
aa to the time of making the objection . It was urged by the counsel for the Crown that they ( prisoner ' s counsel ) Bhould have moved to put off the trial ; but hecontended it Wis their duty to have done so . w » the learned Judge ( Baron Parke ) on Saturday asked the Attorney-General when , in his opinion , the Crown was bound to prove that the list of witnesses had been delivered , he observed his learned triend somewhat hesitated , and at length answered , although not in direct terms— " The Crown may be called upon < o prove that the requisites of the statute have been complied with before the party pleads . " Suppose he ( Mr . Kelly ) was right in the uiaiu point , he thought he could show their Lordships , that the time for
taking the objection was after pleading . He contended thit he had a right ( in the event of the party beiogan ignorant person , upon whom no list atall hi < fc been served )—he had a right , the momen |^ 'm # es 3 was put into the box , to say that - ° ^ T-S OP * a ? * had been delivered . He was th ^ a e > ffliB « Lurcall upon the counsel for the Crown to shoyittEiafsaoh list had been delivered . The At torney * reT » ral ' s answer was , that he was not bound to prov \ th $ delivery , because by his having pleaded —beeausa ^ he . denied that he was guilty of high treason , bpfdmittod that he had received a list of the witnesses . Nothing could be more preposterous and absurdj . liah . such a position . What waa there , in the r $ as « i or understanding of maa , to warrant them lHvadmitting a principle so absurd and preposterous !
Lorp Abinger—Suppose the Attorney-General compljes wjth your requisitions , and calls a witness to prove tn » t a list of the jurors and witnesses had been delivered , according to the statute , and you produced lhe Jists delivered to the prisoner , and showed some variation between the copy and ihe original , —I ask , whether you say tho prisoner should be acquitted , or thai it would be merely an objection to the particular witness ! Air . Kjsfly resumed . —Then not a single witness could pa . examiuod , because the statute had not been complied-vfith . Mr , Baton Aiderson— But would it apply to the panel ! . d Mxi J ^ fly— Just so , my Lord . To say the prisoner shoQul be acquitted on account of nof-compliauce ^ fttft the statute was hot his proposition —but tut AO witness could be examined against him . /' . : ' it if
Barofa j A ^ lerson—Does follow that tho panel were ^ aaagjteted the prisoner could not be tried on tMindfenieat at all ' . m . t . Kelly—Yes , my Lord . Baron Aldersoa—That startles one—let me suggest that the lifcw requires three things to be done beiore the prisoner were arraigned . Is not tnat equivalent to saying that tho prisoner shall not be arraigned before these three things -re done . If so , when he has beea arraignod . He has lost the protection the statute ! has given him . I wish to discuss the point , that I may have your assistance on it .
Mr . Kelly resumed—If tho statute were imperative , it must cot be deviated from on account of inconvenience or even injustice . In the case of proceedings having to commence de no » o there would be only one degree of inconvenience greater tl an in the case of 1746 , any yet thera was nothing to induce the court to doubt that if this statute had boen then in operation the court would have quashed the proceedings , adjourned for a certain number of dayB , and commenced the proceedings aijain . in order to
give the prisoner ail the benefit he was entitled to . So much for the argument ad inconvenienlem . To meet the difficulty , that where the statute provided something to be done before arraignment—that the whole question was equivalent to this , that arraignment could not be had till it was complied with . . - ^ M&MPP , Alderson—My questio . is , whether 'flfSi is not the w-hole benefit to the party from the -statuter-to enable $ ho party to s * y ho would not be iried till these things had been done , and , of course , if he could not be arraigned ho could uot be
convicted . Mr . Kelly said emphatically , if that were to hold , he should Uiink it ten thousand times better that tho act should be totally repealed . Tho whole benefit Why , what had arraignment to do with cross-examination 1 And was not the "benefit" of serving the prisoner with lists of witnesses and jurors , to enable him to cross-examine the former as to character and credibility , and to objttct to the latter . Mr . Baron Aldenson—Tho words in the statute of William are tho same in the two sections , but in different senses ; first , "before arraignment ;" secondly , "before trial . " Therefore the statute points to the same thing , that the prisoner may Bay ho will not be arraigned till the three things stated have been complied with .
Mr . Kelly—But in this statute the word 13 " trial . " It must be " before trial . " Tho proposition against which he strenuously contended was this , that supposing three things are provided to be done before trial , or , if trial did commence , that therefore the objection could not be urged . It was admitted that if no list had been delivered the trial could not proceed . Was not the objection as valid if no list had properly been delivered ! The Court of Exchequer had lately decided on the statute of frauds , that where a contract written had been slightly varied by oral communication , it waa thereby vitiated entirely . Yet that act was not so stringent as the present . The Learned Counsel said he would
very briefly advert to a Scotch law . The intent of the statute of Charles I ., in requiring delivery *' at the same time" of indictment—list of witnesses , and list of jury—was , that he might learn how to prove competent objections—that persona not in the list should not be admitted witnesses . What had that to do with arraignment ! The evident intention of the statute was that the prisoner tshould have the right of objection , not before arraignment on trial , but when the witnesses were calledthat had been held to kav « been in Hyatt ' s case , and of other two cases which occurred in the Courts in Scotland . His Learned Friend
the Attorney-General , contended that Frost ought to have made his objection when he was called upon to take his trial—he ( Mr . Kelly ) denied that proposition , for , on the contrary , he had only to remain passive , and let the Attorney-General proceed as far as he pleased until the objection he had made would advantage him . He did not think there was any difference substantially between the case of the two prisoners . When the case of Williams was called called on , the Attorney-General called upon the counsel for the prisoner to Bay whether he objeoted to go on with the trial or not , and be consented to go on .
Lord Denman did not suppose that the Attorney-General intended to eoatend that there was substantially any difference between the cases » f the prisoners . The Attorney-General— Certainly not ; fo » Frost not having objected , waa sufficient . Mt . Kelly—There was one point whieb might be attempted to be made a » a difference in the case—a Mr . Owen was assigned to Jones as an attorney , and he waited upon Mr . Maulo , the Solicitor for the Treasury , and an admission was attempted to be proved of a waiver ; bai he would no 4 waste tbe time of the Court in arguing the point ,, for hecontended that no agent , nor even the prisoner himself , could make any waiver of any clai m gireu him by
the Act , except in Court before the judges . These were the observations he had felt it nia duty to make in this ease , and he felt that their Lordships were now called upon for the first time to determine as to the construction , of the statute , and lay dowm a rule that would be binding on futura judges and oa future prisoners , and he did not doubt but that their decisions would be such that all should be able to- say that the judges had rigidly , strictly , and literally obeyed the letter o £ the Act of Parliament . Lord Denman would suggest , as the Attorney-General had beea beard so much ax length on Saturday , that Sir Wiiliam Follett should be heard now for the other prisoner , and that ihe Attornej-Gene ral should re pi j to the arguments of both tha learned Counsel .
Aftet some little discussion , this course was agreed to . ~ Sir W . Follett then commenced his argument on behalf of tbe prisoner William Jones . He stated that he felt great difficulty in addressing their Lordshipsonacoountofthe great importanceof the case . If it had not been on account of its importance he should not have detained their Lordships by addressing any arguments as to the construction of the statute of Anne "with regard to the list of witnesses , as it wae impossible not to see from what had fallen from some of their Lordships , that the difficulty they felt was as to the time of making the objection . With respect to the construction of the Act of Parliament it was impossihlo ho would say for any lawyer to look at that Act and say that the intention of the Legislature was not that the lists should be delivered at the same time with the copy of the indictment . It eaid bo in plain » ad intelligible t « rm& » there waa
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nothing impossible , nothing absurd in this-requirement , and therefore he would contend that att Courts were to follow the strict aud literal directions of it They had no right to inquire if itwould giwa prisoner an advantage or not ; they were bounds to « onistrue it literally . The copy of the indictment was ifurnished the prisoner , in order that he might know ; how to plead . The lists of the Jury in order Skat he might exercise his right of challenge ; and the list of witnesses that he might cross-examine then * . All these objects might be attained if the documents were served at different times , but the Act said it , » uat be delivered at the same time , and they were ; b * und to object . If in the list of witnesses there should be any luudescription of tho person or place of residence
of one of the witnesses , although the n « rijon might know well who the witness was , there could be no doubt he would , in consequence , bo entitled to make his objection . There were many cases in which great injustice might result from the enactment—take the case in which a witness on the part of the prisoner stated some iact which a person in Court oould cou ; radict—he could not be examined . Many suttilar cases might be put , in which justice might be defeated , but while it was the law of the land , the Court was bound to construe it literally , and had no right to ask wnother the prisoner derived greater benefit by non-complying with it than by its exact observance . So far from Sir Robert Peel ' s Act raiswg any doubt on the questionI must confess
, he thought it settled it beyond all doubt . The Legislature must have supposed the list of the jurors and witnesses , with the copy of the indictment under the statute of Anne , must be delivered at the same time . It was unnecessary he should reaorfe again to th « distinction between the statute of Anna and that of William ; he quite agreed with what fell from one of their Lordships , that although the wi . rd trial occurred in the summons , it might mean arraignment in the one aqd not in the other . 'Sh& Act must be construed in its grammatical sense , and surely if language had any meaning at all , there could be no doubt of that . If the word with were altered to u at" as had been suggested , and " before the time " to " before trial "—if the words were alteredtheir
, Lordships might , no doubt , give it a different meaning , but they oould not do that , but were bound to take the Act as it stood . If , when Sir K . Peel ' s Act was framed , there had been any doubt as to the construction of the statute of Anno , nothing would have been more easy than to have removed it for the future . And why , then , did it say , " With the copy of tho indictment ? The 7 " 2 nd section of that Act repealed so much of the statute of Anne as related to delivering the list of jurors , but the onactments relating to witnesses remained as before . 1 f , then , there were auy doubt about the list of witnesses , why , in 1825 , were the words again repeated—that the lists should be delivered at the same time , which should bo ten days before trial ?
That such had been the law there was no direct decision , because it had never been questioned . He thought it unnecessary to refer to cases on the point , but a 9 his friend had referred to the recent statute respecting Wills , he would mention the case which had led to the alteration ; the enactment now being that the witnesses should bo present at the same time . ( Tho learned gentleman then referred to a case in 2 Atkins , page 176 . ) Sir Win . Follett then adverted to many well known cases , in which it would not be allowed to supply the strict requisitions of an act by an equivalent , even though it might be thought more favourable . Tho object of the cases which had been cited by his learned friend ( Sir F . Pollock ) had been to show this ; and they showed it to be so clear , that further reference was unnecessary .
They proved that tho act having been substantially complied with was no answer to its not having beea literally complied with . And , surely , if this had been held in civil cases it was still more binding in cases affecting life and death . Now as to pleading waiving tho question—nobody would contend that a statutory protection could be lost to a prisoner by j his oversight or omission—and certainly their Lordehips could not hold it to be law . Suppose an objection to tho list of witnesses—could it bo urged before pleading ! Certainly not . For the plea might be guilty , and in that case what would he have to do with the witnesses ! Three o ' clock having struck , Lord Denman rose , and the moment Sir William had closed the sentence he v > as uttering , bowed , and intimated that the Court must adjourn till ten tomorrow . TUESDAY , January 28 . The arguments in this case were continued . Sir W . FOLLETT resumed his observations , and applied himself especially to the point respecting the time when the objection should be made . There was no distinct provision in the act , and it became a question how it should be construed , so that tho crown should be compelled to comply with it . Their Lordships would observe that everything undeT the statute of Anne waa thrown upon the crown . It had been auggaeted , that as the orown was-directed to do certain things before arraignment , it meant
only that arraignment might be objected to before those things were done . He did not think that waB the correct reading , and considered it more just to read it thus—that no prisoner could be convicted and executed , unless those things had been done ; that no witness could bo examinod until thoy had be « n done . The object of the act was to guard against oppressive crown prosecutions , and though there might be no danger of this now , the original intent of the legis ^ ture should be borne in mind . The act extended only to crown prosecutions—it had no reference to private suits .
Lord Abinger—Would it not extend to an appeal for high treason by a private individual ? Mr . Baron Alderson—Could it be said that iho object of the statute of Anne was as you state , seeing it was postponed till the death of tho Pretender , and thu * many improper prosecutions allowed ! Sir W . Follett thought the Act could possibly have no other object , though it might fur a time , from an apprehension of public danger , have been waived . Now , if the objection could not be urged till after pleading , see what a power of injustice and oppression might be placed in the hands of the Crown . The Crown might have a wish to put off the trial till witnesses who would acquit the prisoner were unable to attend . They might avoid the delivery of the lists , and thus postpone the trial from one assize to the other , for an indefinite period . This might easily be « one , if the prisoner would not object But before pleading .
Mr . Justice Coltman—You forget the Habeas Corpua Act , under which the prisoner may be discharged at the second assizes . Sir W . Follett—And then the prisoner , beyond having been unjustly kept in confinement from one aseize to another , might have the fear of an indictment for treason hauging over his head all his life . This jeopardy the Crown had no right to inflict upon him . The prisoner had a right to demand his trial , and if entitled to it , to his acquittal . And what inconsistency was there in urging that a prisoner ought not to be executed , on a trial which had been conducted illegally , because not in conformity with the Aet \ IVas it to be imagined that tha Legislature , when it laid down regulations
should have anticipated that they would not be complied with t Was it not just to suppose that the Legislature would anticipate its provisions being complied with . Lord Coke , in his 3 rd Institute , page 137 , had stated that " the court ought to see that the indictment and other proceedings be good and sufficient in law , otherwise a prisoner may bo attainted unjustly . " Was it to be argued that by pleading the prisoner admitted the Act had been complied with ! What admissions could a person make in so serious a case against himself ! Was not the law 8 * careful of allowing prisoners charged with capital offences to prejudice themselves , that thair demurrerto indictments wasno admission , and did not prevent the trial ! The law of England never allowed
a subject to admit away his life . What legal mode had he of avoiding pleading on the ground of lists not having been delivered 1 The Court might in its discretion permit tha postponement . But if the prisoner had the right ,. the law must have given bini a legal remedy to secure it . Where was tbe remedy I The law knew no such excuse for pleading . The administration of the criminal law of England had evet been marked by fairness- and justice . But woold it be fair and just to Bay that when an uneducated and ignorant man was placed at tbe bar , without the aid of counsel , aad was aakod to say if he wero guilty or not of the «* ime of high treason , that when , oe answered " Not Guilty , " with no knowledge that is so doing he wasadmitting every right—that he should be told he had waived
and lost that light . Tlieir Lordships had already j held that no . witness could be examined , whose name was not in the list , and further that , no witness improperly described in the list could be examined . Y « V if the prisoner by p leading admitted a list , did h « not equally admit a list in conformity with the Ae *! : Now . though it was true that the Act required a simultaneous delivcrj of all these documents * jet their object was differe&t , and a prisoner migju , waive tbe irregularity in one case , and never mean to waive it in another . What he ( Sir W . Follett ) , said was , that if the prisoner pleaded to the indietaent , ha waived any objection as to the indictment ; but be contended that it did not follow that tho prisoner had waived any objection that he might hare to make to the Jury panel , or to the delivery of the list of witnesses .
Lord Denman supposed that a witness had been called , and the prisoner then said that no list wae delivered with a copy of the indictment , and then proceeded to show that the copy of the indictment was incorrect . Sir W . Follett said that no witness could be examined whose name was not on the list , according to the provisions of the statute . It had been stated that the present case was not one of a total omission of the list , but one of irregularity only , and an irregularity that was waived by tho demurrer . What ho ( Sir W . Follett ) said was , that there was no such thing aa irregularity , he did not understand what waa meant by it ; it wm a nou-comp'ianee witk the
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Act that wm intended m a benefit for the prison ** Me said that all theprovisiotw were equally stringent rffi « SJ J ? » fe t tfae re-enactment of the provision of the eihGeo . IV : evidently considered it most im-IKS : • ther ? fore »» d they could not waiy » whit wnnV ^ - nd , ¦ * j \ aotfoa of "regularity ; for 2 ! i m ? uld the ' r Lo'dships Ve doing ! Why they Si ^ f c ? ™ ^ . l Mentions of the lepl »\ rlT ~ Hi rrH' ^ » « ™ Act th ? o-8 lTea : _ ?? therefore submitted that if the Court tothe conclusion
came - that , under the statute of Anne , the list of witnesses was to be delivered at the same time with tho copy of the indictment-h . said , if tney ield that , they must hold it to be a substantive and essential provision of the Act , and therefore that 4 non-compliance was equally fataL And he was aura that the non-compliaucc with the statute by the Crown was never aontemplated by the Legislature ; and therefore it was the intention of th « Legislature that no man should be executed without such a compliance .
Lord Denman submitted another supposition . Shr W . Follett had said that they had no right to suppose that the prisoner was not guilty . Let him suppose that the prisoner was guilty , and that na list had been delivered , what would be the conae queiice ? Sir W . Follett thought that in such a case no advantage would be taken by the prisoner . If be pleaded guilty , no witness would be produced at th » trial . In conclusion , then , ho repeated what had
fallen from one of their Lordships , that they were then deciding a dry question of law . He ventured to hope , thfkt the consequences of a trial not being conducted according to the provisions of the Act of Parliament , would not arise , and he trusted that their Lordships would decide that the objection—no matter how formal—by which tho prisoner sought an advantage to which he was entitled—that the objection was fatal , and that the awful consequences would not follow from the verdict that had boen theft obtained .
Iho Attorney-General next roge , and said that th # Learned Counsel had acted very fairly and manfully in tho defence they attempted to maka in favour or their clients—at the same time , he trusted they would hold him excused if he occupied a portion of their time in answering thoeo objections which the Learned Counsel had so ably argued . Notwithstanding that laudable zeal which had been manifest on . their side , he was compelled to say that he had heard no new argument advanced that had not previously been made use of . He begged to say that he never sought to avail himself of any advantage from anything that took place before Zophaniah Williams was called npon to plead . Ho agreed in opinion with the prisoner ' s Counsel that Williams
should not in auy degree be prejudiced by anything that topk place beibro the trial . Ii was at the request of Mr . Owen , the prisoner's attorney , that it was agreed to give the prisoner an advantage which , ho otherwise would not have been entitled-to , and that same Mr . Owen expressed himself very thankful for the manner in which he was treated . Whatever the consequences might be , he thought it was quite impossible to allege that the prisoner had been , treated unfairly , or that he had an unfair trial . With regard to the objection raised by Sir Frederick Pollock and Mr . Kelly , he thought that in the proper discharge of his duty he was called upon to inquire whether that objection should have been brought forward at the time or
after the jury had been sworn . The counsel for the prisoner was askod if he had any objection to have the prisoner tried , and he yaid not at all ; at the same time reserving to himself the power of making that objection , and enjoying the full benefit lie waa entitled to . They should then consider what validity there was in the objection which has been eo much urged , and , in doing so , they must see what construction should be put upon the acts of Parliament which had been so often quoted during this argument , from the 7 th of Queen Anne , as : d the 6 th of Geo . IV . ; it would . appear that the 6 th of George IV . ronderi that quite unnecessary which is required to be done by the 7 th of Anne , but he did not ask to have any word 3 struck out of the statute—he did not ask for
the striking out of one single wor J . He would ask what was the just and equitable meaning of the words of the statute ! With regard to the words 14 at tho same time , " the meaning of which should be taken either absolutely or relatively , those words eordd very well bear another construction , for the word " at , " is frequency intended to bear the game meaning aa tbe word " within . " For example , a bill of exchange at three months , or a promissory note at six weeks , means thai either of these wero payable within that period ; and he thought the words of the statuto bore the same interpretation . With regard to the service of the threo things before two or more credible witnesses , that might also be construed into the meaning of
having each of those things se-ved in the presence of two crediblo witnesses , independent of tho others . The questioa for their consideration vras to consider what construction should be put upon those statutes , spaa to carry forward the intentions of the legislation . The 7 th Win . III . stated the copy of the indictment should be served five days before the trial , and a list of the jury should be served two days ; but , theu , it appeared both of those notices should bo served at the same timo . The words " same time" relatively refers to the trial , to which the calculation was made . Which of tho statutes was best calculated to carry the objects of the legislation into effect , either the 7 th of William III ., or the 7 th of George III . ! In the preamble of the
bill of William III ., "That act was passed for the purpose of enabling the prisoner to p-epare for his defence . " The object of the law would be best observed by making the different services at the period which might be found most convenient . The objection made to the non-simultaneous services of tho documents as being disadvantageous to the prisoners were entirely groundless and imaginary . He had , on the contrary , shown many positive advantages which would result from it . Tho enactments of William tho Fourth and of Anne were considered as the glory of the English law , but no lawyer had ever inferred from thorn that the service of the throe documents should be made at the samo time . That was not manifestly the opinion of
Blackstone . —4 Here the Learned Gentleman read over again a passago from Blackstone on the subject . ) The fact was , that the object of the lawwould bo better obtained by separate services than b y making them simultaneous . Reliance had beea placed by the Learned Counsel for the prisoner on Lord Geerge Gordon ' s case . The proceedings , however , in that case had been merely a continuation of what had always been done , under the Btatute of William .. It had been there held sufiicient to serve a copy of the witnesses to be returned—that had been done , and this trial took place at the expiration of ten days . His Learned Friends had also relied on the Btatute of-Ibi of Victoria , chap . 26 . Referring to the 9 th Section of that Act of Parliament they ask if the signatures of a testator would be legal .
though made at different times . He should reply most certainl y not . They should be made at the same point of tim « , because that is expressly required by the Legislature . The Act of Parliament alluded to admitted of only one interpretation , and the Court would of course be bound by it . His Learned Friend , Mr . Kelly , had said that he ( the Attoruey-General ) had treated top lightly the cases cited by his friend , Sir Frederick Pollock . He should say that there was no intention on his part to undervalue the learning and ability exhibited by all his learned friends on the occasion ; but he did not think , on a former occasion , that the cases they had cited bore strongly on the point , and he did not believe it was neces sary for him-to enter very minutely into them . He
thought so still , and he would now follow the same course on the . matter . [ The learned gentleman here discussed tho cases eited by Sir Frederick Pollock , and again contended that they were not applicable in the present instance . ] With roepect to the several actions of the King against various parties , he should onl y again remark that in these cases the words of the Act of Parliamtnt did not admit of a second interpretation ; and that there the intentions of the Legislature were not defeated . Now he ( the Attorney-General ) had cited eases in which the Court had altogether departed from the literal words of the Act , to carry into effect what they considered the real interest of the Legislature . Both the statutes of William and Anne referred to trial
The strict meaning was the Jury being sworn . Yet the Courts had held it opeu to arraignment . His learned friends bad not weakened the force of Rookwood ' s case , where though the words were that tbe prisoner should be served with a copy of the list "returned" two days before the trial , it waa held sufficient that he should be so served with a copy of the list to bo returned . Why 1 Because the evident intention of the legislature was answered . He now would shortly advert to Peel ' s Act . If he were asked if tk « intentions of the framers of the act were to sever the simultaneous service of the documents , he should answer negatively ; because they would not hav « considered that the statute of Anne did not require it—but however that was under Peel's aet . it was p lainly not necessary , had it been considered beneficial to the prisoner it would have been carefully secured to him . Mr . Baron Alderson—That still requires that the list of witnesses should be given with a copy of the indictment .
Mr . Baron Paike said Peel ' s act related to the list of jurors only . The Attorney-General—In the King ' s Beneh that aot effected a severance . The copy of the indictment must be delivered ten days before arraignment , that was twenty days before trial ; and if the list of witnesses must be delivered with the oopy of indictment , that would be twenty days before trial , and would effect a considerable alteration in the statute of Anne . In trials in the King ' s Bench a severance was made in one mode of trial , and it could hardly be supposed that a severance would be made in one Bpecies of trial and not in another . How then could it oe said that all these then w « to to be served simultaneously . Or even admitting that at the same time under Peel ' s Act meant simultaneous service , it could only apply to the list of the jurors and tbe ( Ctntimwi in $ w Eighth page . )
Untitled Article
m ' THE NORTHERN STAR .
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Citation
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Northern Star (1837-1852), Feb. 1, 1840, page 7, in the Nineteenth-Century Serials Edition (2008; 2018) ncse.ac.uk/periodicals/ns/issues/king-y1kbzq92ze2669/page/7/
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