Semble, that Reg. v. Purchase (Car. & Marsh, 619), Reg. v. Phelps (ib. 180), are in that respect overruled by Reg. v. Odgers (2 Mood. & Rob. 480), and can no longer be considered law; and that the judgment upon a demurrer in a criminal case, not capital, is final judgment, and not respondeat ouster.

On the 13th May the prisoner was committed for trial at a session to commence on the 20th May, on which day a bill was sent up to the grand jury against him, which was on the 22nd found a true bill; and until the 23rd of May (when his trial was fixed for the 25th inst.), no attempt was made to secure the attendance at the trial of one S. M., who, it then appeared, had left Dublin on the 22nd. The court refused to postpone the trial, notwithstanding an affidavit, by the prisoner's attorney, that he believed sufficient grounds existed for challenging the array on the part of the prisoner, and that the said S. M. was a most indispensable witness to sustain said challenges.”

66

To induce a court to postpone a criminal trial on account of the absence of a witness, it must be shown, by affidavit, that the witness is material -that due diligence has been used to secure his attendance, and that it can be obtained by the postponement.

The array was challenged on the grounds, inter alia, that the panel was arrayed partially, and to the prejudice of the prisoner; and that, for the purpose of depriving him of a fair trial, the names of jurors usually summoned, and of other jurors, had been omitted from the panel, because they were deemed more likely to acquit than to convict; and the names of other jurors were inserted therein, because they were deemed more likely to convict than to acquit.

Held, that the mere fact of the existence of a great disproportion between the relative number of persons of different religious persuasions upon the panel was, per se, no evidence in support of such a challenge. By the stat. 3 & 4 Will. 4, c. 91, it is the duty of the recorder, in the October of each year, to revise, in open court, the general list of jurors returned, pursuant to the stat., and to deliver it, when so revised and signed by him, to the clerk of the peace, who gives a copy thereof to the sheriff, as the jurors' book for the ensuing year, and from which the sheriff is bound to form the jury panel. The court held that a list of the jurors' names, checked off by the witness as they were in open court placed on the revised list by the recorder, but which was not compared with the revised list after it was signed by the recorder, or with the jurors' book, was not admissible as evidence of the contents of the jurors' book.

And refused to direct the book itself to be produced for the purpose of ascertaining the different religions of the jurors named therein and comparing their relative number with the proportion in which jurors of the same persuasion appeared on the panel.

Held, that a juror, whose name, though he was summoned to attend the court, was left off the panel, could not be asked what his religion was. The triers are entitled to know whether, in the opinion of the court, there is any evidence to sustain such challenge.

It is not necessary, in order to sustain an indictment for compassing to levy war against the Queen, in order by force and constraint to compel her to change her measures and counsels, either to aver in the indictment or prove at the trial, a compassing or intention to compel Her Majesty to change any particular measures or counsels.

Held, that upon an indictment, charging the publication by the prisoner of a printing purporting to be a report of a speech made by a Mr. Mitchell at Limerick, as an overt act of compassing to depose our Lady the Queen, and to levy war to compel her, by force and constraint, to change her measures and counsels, evidence that the prisoner spoke at the place mentioned a speech to the same purport, was only admissible to show that the prisoner was the Mr. Mitchel meant in the printed report of the speech in question.

v.

Government

A TRUE bill having been found against the prisoner by the grand THE QUEEN jury of the city of Dublin, charging him, in several counts, J. MITCHEL. with feloniously compassing, &c., to deprive and depose our Lady the Queen from the style, honour, and royal name of the Imperial Crown and crown of the United Kingdom, and with feloniously expressing, &c., Securities Act. the said felonious compassings, &c., by then and there feloniously publishing certain printings in a public newspaper called The United Irishman, of which he was the proprietor, and charging him also with a like compassing to levy war against the Queen, in order by force and constraint to compel her to change her measures and counsels, and with expressing, &c., the said felonious compassings, &c., by publishing certain printings in a public newspaper called The United Irishman, of which he was the proprietor. And the prisoner having been called on to plead, a motion was made that he be furnished with a copy of the indictment and of the jury panel, and of the jury panels returned at the three former sessions of the court, which application was grounded upon the following affidavit :

"The Queen

บ.

"Martin Francis O'Flaherty, of number eightyfour Lower Gardiner-street, in the city of Dublin, John Mitchel.) attorney for the defendant in this case, maketh oath and saith, that he, this deponent, on Wednesday last, the seventeenth day of May instant, personally, and through others, applied to Nathaniel A. Hamilton, Esquire, as also the undersheriff's clerk for the city of Dublin, for a copy of the common jury panel summoned to serve at the approaching commission for said county of the city of Dublin aforesaid, and that he was refused the same; saith, that he has been advised, and believes, that a timely inspection and examination of said panel will be absolutely necessary for the proper defence of the said defendant, to enable him to exercise with due effect his legal right of challenge to such persons as may be objectionable upon said panel; saith, he, this deponent, has been informed and believes, a copy of the indictment, when duly found against the said defendant, will also be requisite for the proper conduct of his defence and that he has a legal right to same; saith, he has been advised, and believes, that copies of the three former jury panels, and which are now matters of record in the office of the Clerk of the Crown, will be indispensable to enable the said defendant to ascertain and test the proper construction of the present panel."

Sir Colman O'Loghlen, in support of the motion.-It is stated in Hale and other text books, that at common law in England parties

v.

J. MITCHEL.

Crown and
Government
Securities Act.

THE QUEEN were not entitled to copies of the indictment. However that may be, it would seem that up to the time of Charles II. it was the practice in England to allow to prisoners copies of the indictment in felonies and treason. Thus, in Bothe's case (Sir F. Moore's Rep. 666), where the prisoner was indicted for forgery, which was felony under the Statute of Elizabeth, the prisoner was allowed a Copy of indict- copy of the indictment, though the Attorney-General opposed the ment refused. application. In the political trials in the reign of Charles II., cases which ought to be looked upon with great suspicion as authorities, as they were, as Sir Michael Foster remarks (p. 231), carried on "too often in the spirit of party" copies of indictments were refused to prisoners, and in the 10th of Charles II. a resolution was passed by five of the judges assembled at the Old Bailey (Kelyng, p. 3), prohibiting copies of indictments for felony to be given without special order to be made upon motion in open court. That resolution has given rise to the practice which has since prevailed in England: (Anonymous, 1 Lewin's Cr. C. 205, n.) This practice has been followed in Ireland, but whatever may be the common law of England, it would appear to be contrary to the common law of Ireland. This appears from the records of the Irish House of Commons (vol. i., p. 174), and the practice, though uniform, cannot be considered as settled, as it has never been

brought under the consideration of any court. It appears that in the year 1640, questions were prepared by the then Irish House of Commons, who sent them to the House of Lords with a request that they would lay them before the judges and request their opinion upon them. In proposing the questions the House of Commons prefaced them by a statement (amongst other things) that they did so, not for any doubt or ambiguity which may be conceived or thought of for or concerning the premises, nor of the ensuing questions, but for the manifestation and declaration of a clear truth and of the said laws and statutes already planted, and for many ages past settled in this kingdom." One of these questions was as follows:-" Whether the judges of the King's Bench, or any other judges of gaol delivery or any other court, and by what law, do or can deny the copies of indictments of felony or treason to the parties accused, contrary to law?" The Lords delivered these questions to the judges, who took time to consider them, and in May, 1641, delivered the following answer:(a)— "That neither the justices of the King's Bench (as they inform us that are of that court), or justices of gaol delivery, or of any other court, do or can by any law they know, deny the copies of indictments of felony or treason to the party only accused, as by said question is demanded." The House of Commons not being satisfied with the answers which the judges made upon some of the questions, made what was called a declaration upon all the points

(a) See Nelson's Collection of the Great Affairs of State, 1st vol. p. 587, Lond. 1683, in which the answers of the judges are preserved, the journals of the Irish House o; Lords for 1641 having beeen burned. And see also a very learned and interesting note, treating more at large upon this important subject, appended by Sir Colman O'Loghlen to Neil's case (Irish Circ. P1.1.375).

V.

J. MITCHEL.

submitted to the judges, and upon this particular subject declared THE QUEEN that "the judges of the King's Bench, or justices of gaol delivery, or the judges of any other court, ought not to deny copies of indictments of felony or treason to the party indicted." This Crown and affords strong evidence that at common law in Ireland a prisoner Securities Act. was entitled to a copy of the indictment against him. But even if

Government

a prisoner is not entitled to a copy of an indictment in cases of Copy of indictfelony, there can be no doubt that the court have a discretion to ment refused. grant it (a), and this is a proper case in which to exercise that discretion, being the first prosecution under a new act which alters the nature of a crime for which, had the prisoner been indicted before the act passed, he would have been entitled to a copy of the indictment by express statute: (Rosewell's case, 10 St. Tr. 261, 266.) [LEFROY, B.-At what state of the proceedings was the application made in Rosewell's case?] Both before pleading (10 St. Tr. 152), and afterwards in arrest of judgment (ib. 266). With respect to the rest of the motion, it is not necessary to apply for a copy of the present panel, as that has been given by the sheriff, but we ask for a copy of the panels of jurors summoned at the three preceding commissions. They are matters of record in the Crown Office, and as such we ought to have access to them; Lord Coke, in his preface to 2nd vol. Rep. p. 6, says that "the records of the King's Court are safely kept, yet not so kept but that any subject may for his own use and benefit have access thereunto, which was the ancient law of England, and so is declared by an Act of Parliament." By stat. 46 Edw. 3 it was enacted that all persons shall for the future have free access to them, and may have exemplifications of them, whether it makes for or against the King (1 Blackst. 39; Reg. v. Worsenham and another, 1 Lord Ray. 705; Herbert v. Ashburner, 1 Wils. 297; Rex v. Smith, 1 Str. 126).

The Attorney-General and Baldwin, Q.C., opposed the motion. -If this application is granted, it will be a departure from the settled practice at this court, in the Queen's Bench, and on circuit. Rex v. Holland (4 T. R. 693); Browne v. Cumming (10 B. & C. 70), show that the court will grant such an application after an acquittal, in order to enable the defendants to maintain an action for a malicious prosecution; but not in such a case as the present. With regard to the question of the discretionary power of the court to grant a copy of the indictment, all the authorities show that the prisoner has no right to it (2 Hale's P. C. 236; Fost. Cr. C. 228; 2 Hawk. P. C. 557, sect. 14); and some very conclusive authority in favour of such an application ought to be shown to coerce the court to vary the practice of centuries.

Sir Colman O'Loghlen.-The prisoner's counsel could not demur to this indictment if they have not a copy of it. If the court do not permit the defendant to have a copy, he will be obliged to get a shorthand-writer to take a note of it, and it will be the duty of the Clerk of the Crown to read it slowly and distinctly (see 1 Lewin's Cr. C. 207, n.) to enable him to do so. The object of the prisoner (a) See Reg. v. Grace (2 Cox's Cr. C. p. 101).

v.

J. MITCHEL.

Crown and
Government
Securities Act.

ment refused.

No case

THE QUEEN in seeking copies of the former panels is to be in a position to challenge the array, if it appears that a different class of jurors have been impannelled to try this case from that usually impannelled for trials at this court; or if it appears that the names of jurors have been placed on the panel in such a way as to prejudice the prisoner. I do not impute such conduct to the sheriff; all we seek is to get such information as is necessary to enable us to exercise a constitutional right, without which, in the words of Lord Denman, trial by jury would be " a delusion, a mockery, and a snare.” LEFROY, B.-This motion must be refused. The law is clear Copy of indict- and express upon the point, as laid down by Lord Hale (2 Hale, P. C. 236), Hawkins (1 Hawkins, P. C. 369), and Foster (Disc. of High Treason, 228); and the practice is stated accordingly by Lord Kenyon: (Rex v. Holland, 4 T. R. 692-3.) to the contrary has been cited to us to show that a prisoner, in this stage of the proceedings, is entitled to a copy of the indictment. The act entitling a prisoner to this privilege in cases of high treason, and the more recent act, 1 Geo. 4, c. 4, s. 8, granting it in cases of ex officio informations in cases of misdemeanors, would alone be sufficient to show that by the common law a prisoner had no such right; we conceive, therefore, that we have no authority to grant this application, and that it would be mischievous to break in upon a long-established practice, sanctioned by the highest authorities; and a course of uniform practice for a long period down to the present time. The argument urged by the prisoner's counsel that the prisoner may require the indictment to be read so slowly as to allow of its being taken down by a shorthand-writer, and much time be thereby unnecessarily occupied, cannot avail. No decision or rule of a court of justice could be made to depend on the length of an indictment, or the time which it would take to have it read. There cannot be a different rule for a short indictment and a long one. As to the application for copies of the preceding panels, the prisoner has no right to them, and the authorities referred to, on the other point, show that he had just as little to receive a copy of the present panel. But as he has received it no question arises regarding it. As to the use proposed to be made of the former panels, to show that the present panel differs from them in some respects, it should be recollected that every sheriff has his own duty to perform, and must act upon his own discretion, and accordingly the Jury Act (3 & 4 Will. 4, c. 91, s. 11), expressly provides "that nothing therein contained shall be construed to prevent any sheriff or returning officer in making returns to any writ of venire or precept from exercising his discretion in framing the panel annexed to such returns in such manner as he is now by law directed to do, save only so far as to prevent the insertion in such panel of any names not contained in the said jurors' book." This is the law of the land applicable to all cases, and we have no authority to hold a doctrine contrary to it in this particular case.