Now what does the statute say as to the last year's book? The statute says, that if there is no book made up, you may go to the last year's book; and when you have gone to the last year's book, you may find just the same sort of nonfeasance or misfeasance tending to make that book invalid. So that you would never get a good jury panel at all, and trial by jury would in reality be suspended, if not abolished. But do the words of the Act, "if there is no book made up," apply to a case where there is a book made up, but where a name is left out? For if this argument be good for 59 names being omitted, it is good for a single one being omitted; it is exactly the same thing. I must say, that I think it would be going a prodigious length indeed to hold that the omitting of one name, in whatever way, from the jury panel, would make a case that no book was made up, and render it competent to the parties. to go back to the last year's book. My opinion, therefore, is most decided, that there ought to be no venire de noro upon this ground; and here all the learned Judges, without exception, are agreed.

I should say nothing further but for one observation which I have heard made, upon the great hardship which has been sustained by these traversers, in having endured a partial execution of the judgment pending this writ of error. I have only to say, that the law of the land is so; it cannot be otherwise. And those who most thoughtlessly, and, I think, everything considered, most improperly, have publicly expressed an opinion that the Crown must have lost the power of bestowing mercy and the power of pardoning, if it did not exercise it upon this occasion, totally forget that if the Crown had pardoned pending the writ of error, it had no power of incarcerating if the judgment was affirmed; and consequently it would come to this, that in every case of misdemeanor, without exception, no punishment could possibly be inflicted, because the person has only to prosecute a writ of error, during the pendency of which he must be pardoned; and if the writ of error be decided against him, then the Crown, having pardoned, would have no power of inflicting punishment. And then there is also an end, as appears to me, to all criminal law; for in every case you may bring a writ of error, and so prevent the possibility of the sentence being carried into effect. Whether the law should remain as it is, may be another question. I agree with those who think that it may very well, and very reasonably, be altered.

My Lords, I have now performed my duty to the best of my ability. I have given to this question as much attention as it was

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O'CONNELL possible for me to give. I wish that I could have brought to it more ample stores of learning. My experience, during my practice at the Bar, having been much more limited in criminal Courts than that of many of my noble and learned friends here, I have been bound to look to authority, and respectfully to consult those learned Judges who are most capable of supplying my deficiencies. With these feelings of respect I have consulted their authority; and upon the grounds which I have stated to your Lordships, concurring in the views of the majority of those learned Judges whose assistance we have had upon this occasion, I have arrived at the conclusion which I have now attempted to state; that conclusion being in favour of my noble and learned friend's proposition, that the judgment should be for the defendant, and against the plaintiffs in error.

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LORD DENMAN :

My Lords, in considering the important questions which are involved in the case now before your Lordships, it appears to me convenient to advert, in the first place, to that which has been last argued by my noble and learned friend who has just sat down. I mean the objection to the judgment given by the Court below, allowing the demurrer to the challenge to the array. I am induced to begin with this subject, not only because it is preliminary in the course of the proceedings, but because I think it is important, to a degree which does not admit of exaggeration, to the administration of justice throughout the United Kingdom; and that, if it is possible that such a practice as that which has taken place in the present instance should be allowed to pass without a remedy (and no other remedy has been suggested), trial by jury itself, instead of being a security to persons who are accused, will be a delusion, a mockery, and a snare.

The traversers challenged the array, on account of the fraudulent omission of 59 names from the list of jurors of the county of the city of Dublin. The Attorney-General demurs to that challenge, admitting thereby that that fact has taken place. It appears to me that that challenge ought to have been allowed: that was the opinion of one of the learned Judges of the Court of Queen's Bench in Dublin; an opinion stated by him with the diffidence which becomes one who differs from his brethren, but at the same time stated with firmness and perspicuity, and for reasons which, I venture to think with great confidence, received no kind of answer from the learned Judges who formed the majority of that Court.

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Speaking with the same diffidence, I disagree with the opinion O'CONNELL which then prevailed, and which has been repeated by the learned CHIEF JUSTICE upon the present occasion, speaking herein for himself and all the other Judges who attended the consultation at his house. I think that the principle laid down in that opinion is not correct. With deference to him and to my noble and learned friend on the woolsack, I think that the principle of challenge to the array is not confined to the narrow issue, whether the sheriff has done wrong, but involves that larger question, whether the party has had the security of trial by a lawful jury of his country. I feel it to be a great misfortune to differ from all my learned and respected brethren who have been consulted on this subject; but I confess that that regret is in some degree diminished, so far as my own position stands with reference to this matter, by a circumstance which I must be allowed to state; and as I have put it in writing (because at one time I thought that it ought to have appeared upon your Lordships' minutes), I shall take the liberty, with your Lordships' leave, of reading that statement. When the Judges are consulted by this House upon any case submitted to them, it is not usual for such Judges as have the honour of a seat in your Lordships' House to attend their consultation; but I was so much struck with the immense importance of this present question, and so entirely unconvinced by the reasoning of the learned Judges in Dublin, that I felt a strong desire to ensure the benefit of a full discussion of that point; and I accordingly wrote to my brother COLERIDGE, several weeks ago, thinking that he would attend that consultation, and would submit that point to the learned Judges. Most unfortunately, however, he was prevented by illness from leaving his room, but he wrote his opinion upon the whole subject; sending one copy of it to the LORD CHIEF JUSTICE, and another to myself.

"I answer this sixth question," he says, "with much doubt, being wholly unable to look into the authorities, and knowing that I differ in opinion, so far as my opinion is formed, from my brother PATTESON. It seems to me that all questions touching the formation of juries must be examined by the Judges with very critical eyes. Taking the facts from the challenge of one of the traversers, and dismissing all other knowledge, it must be admitted that the Recorder has sent no general list, as required by the statute, to the sheriff; that by some persons unknown a spurious list has been transmitted, omitting the names of many qualified special jurors; that this has been done fraudulently, with intent to prejudice him upon

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O'CONNELL his trial; that from that spurious list the jurors' book and special jurors' list have been made, and the present array selected; and that the traverser himself is wholly unparticipant in this fraud, and protested against the array being constituted from the list so framed. Here," he proceeds, "is a confessed and serious wrong; and the only question is, whether a challenge to the array be the proper remedy. It is said, first, that the sheriff is not in default; and, secondly, that if the challenge be allowed, no better materials can be found for the array, for the book now formed is by law the book from which any other jury must be selected. With great deference, I submit that neither of these is an answer. Suppose at common law a challenge to the array," and then he puts a particular case in which the sheriff may have made an imperfect array, and yet not have been guilty of any default at all; and he says: yet I apprehend the array would have been quashed. So here, the sheriff may not be in default, but still, if the materials for a jury have an inherent defect in them, the defendants are not to suffer, but the challenge ought to be allowed." Then he answers the second argument by observing, "the only consequence is, that the trial may remain untaken;" and he expresses in strong language his own opinion, that far better it were that no trial should be taken under those circumstances, than that it should be taken. subject to the heavy suspicion which these facts must involve. He further observes, "It is to be considered whether, as the Recorder has sent no list to the sheriff, there is any book made up for the year; and whether therefore the book of last year is not that from which juries ought to be taken. That the fraud is not charged upon the prosecutor is, in a criminal question, quite immaterial. Upon the whole, I confess I think that, dealing with modern legislation upon the subject of the returns of juries, we ought to consider all those officers who now take any part in what would have been the sheriff's duty at common law, as included, for the purpose of challenge, under the term 'sheriff.' I repeat, that I submit this with the greatest diffidence."

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On Monday, when the learned CHIEF JUSTICE stated to this House the entire agreement of all the Judges on this point, and afterwards the agreement of my brother COLERIDGE with himself and them upon the other points, I did not think myself justified in alluding to that letter, because I rather concluded that my LORD CHIEF JUSTICE had had a subsequent communication with my brother COLERIDGE, in which he might possibly have seen some

REG.

ground to alter his former opinion; but when I left your Lord- O'CONNELL ships' House I found upon my table, on my return home, another letter from my brother COLERIDGE, written the day before. I had stated to him my general views upon this subject; and in this second letter, after repeating what he had before said, that he thought the argument in favour of overruling the demurrer was too technical for the decision of a great constitutional question, and stating again the view he took of the balance of conveniences, he says this, the note is written by his son, as he himself unfortunately is not at present able to write, "He is much struck by what you have written on the question of challenge; and at present, like your Lordship, awaits the better arguments that are to be adduced on the other side."

Now I have a right to state, that I do not stand in the unfortunate position of being alone among the Judges, in not thinking that anything may be done with any panel out of which a jury may be drawn, and that there is no redress for the injury which may be so inflicted. I venture also to think, as I believe my learned brother COLERIDGE will think, that those better arguments have not yet been adduced.

My Lords, I shall shortly notice the reasoning employed in the Court below upon this subject. There was originally, perhaps, some notion that the challenge to the array was taken away altogether by the present Jury Acts, 6 Geo. IV. c. 50, for England, and 3 & 4 Will. IV. c. 91, for Ireland; but that clearly is not the case, because there is in each a particular provision which preserves the right of challenge to the array,-sect. 28 of the former, sect. 21 of the latter. I do not trouble your Lordships with the particulars of that argument, because it is not now doubted. It was also a question whether a challenge lies to the array, where a special jury has been struck, because the consent of the party might have got over any previous difficulty: but it having been already held by Lord TENTERDEN and the Court of Queen's Bench in England that such a challenge does lie, I do not think there is any great impropriety in supposing that that is equally free from doubt; and I cannot question that, in the case of a special jury also, a challenge to the array may be entertained by the Court.

My Lords, the next point is-that upon which both my noble and learned friends have proceeded; namely, that the principle of a challenge to the array is solely for unindifferency or misconduct on the part of the sheriff. The judgment that I have formed, and

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