that the Crown is as strongly interested as those engaged on the part of the prosecution; but I cannot consent to or allow a challenge of this kind, without taking the distinct opinion and decision of the Court upon it. It would be productive of the greatest mischief to nullify the Jurors' Book for 1844; in point of law there is no ground for treating it as null and void. I may observe, that in England, according to the case of the King v. Edmonds and others, 4 B. & Ald. 471, there can be no challenge to the array in a special jury case. For these reasons I trust the Court will be of opinion that the demurrer to the several challenges should be allowed, and the trial permitted to proceed.

Sir Colman O'Loghlen.-My Lords, I am counsel for the traverser, Daniel O'Connell. I do not understand the learned Attorney General to rely on his last observation as to the right to challenge to the array to a special jury.

The Attorney General.-I certainly do, and I cited Rex v. Edmonds with that view.

Sir C. O'Loghlen.—It is laid down in Dickenson's Quarter Sessions, by Sergeant Talfourd, p. 501, note, that a challenge to the array of a special jury does lie. The same position is laid down in Hayes' Crim. Law, 443, and in Bacon's Abridg. Jury. D. Rex v. Brumage, 3 Wils. 439; Rex v. Johnson, 2 Str. 1000: and in Andrews, 85, 104; Rex v. Nolan, 1 Huds. & Br. 164. With regard to the effect of this challenge the Attorney General has stated, first, that there is no averment that the Recorder did not make up the general list; and secondly, that there is no averment that he did not hand over to the Clerk of the Peace the general list, and that the Clerk of the Peace did not make out the Jurors' Book for 1844. Now, these facts are averred as distinctly as they possibly could be. The challenge, after referring to the correction of the list before the Recorder, goes on to state: "And the said Daniel O'Con"nell further says, that the said several lists respectively were by the "said Recorder at the said special sessions duly corrected, allowed, and "signed, by the said Recorder pursuant to the statute, &c.; that the "several persons whose names are hereinafter mentioned, were then "and there adjudged by the Recorder to have the qualification here"inafter named, and that the names of the said several persons were "then and there contained in the said several lists so corrected, al"lowed, and signed, as aforesaid; but the said Daniel O'Connell says, "that the said Recorder did not, as by said statutable enactments is "directed, cause to be made out from said several last-mentioned lists, one general list containing the names of all the persons whose quali"fications had been so allowed, arranged according to rank and pro"perty; nor did the said Recorder thereupon at all deliver such general "list containing such names to the Clerk of the Peace to be fairly copied "by the said Clerk of the Peace in the same order as by said statutable "enactments is directed, but on the contrary neglected so to do." With regard to the word "all," if issue was joined on the fact, and if it was shown that one name was omitted, it would be sufficient. The words of the Statute, sec. 9, are: "They the said Justices shall cause one ge

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"neral list to be made out therefrom, containing the names of all persons "whose qualification shall have been so allowed." It is specifically averred in the challenge that the Recorder did not cause the list to be made out, and that he did not deliver it to the Clerk of the Peace. We then go on: "and the said Daniel O'Connell further says, that a certain paper "writing purporting to be a general list purporting to be made out from "such several lists so corrected, allowed, and signed, as aforesaid, was "illegally and fraudulently made out." The Attorney General did not dare to join issue on that point. By demurring to the challenge he has admitted the truth of the averment that the general list was illegally and fraudulently made out. I will now show you that the Jurors' Book, from which the special jury in this case was struck, was made out from this list, so illegally and fraudulently concocted. My Lords, the next averment is this: [counsel here read the remainder of the challenge]. Thus we have taken all the facts step by step. We have averred in precise language that no general list was caused to be made out by the Recorder; secondly, that no such list was delivered to the Clerk of the Peace by the Recorder; thirdly, that a fraudulent book was concocted, from which this special ury was taken. The present panel is therefore fraudulently taken from a list concocted by some person whom we do not know. The Crown might have joined issue on these facts. The Attorney General said there was no averment that this was to the prejudice of Daniel O'Connell. The word "fraudulently" would include that, but besides, the challenge concludes " to the wrong and injury of the said Daniel O'Connell." The fact being admitted upon this demurrer that there was a fraudulent list concocted, that the Jury Book was made up from a fraudulent list, and the special jury was taken from the Jurors' Book, the next question is, what is the effect of that, and is it a ground for challenging the array?

The LORD CHIEF JUSTICE.I do not know whether you are not putting the matter further than the pleading warrants, in using the word "concocted."

Sir Colman O'Loghlen.—I mean "made out." The principle contended for by us is, that the general list was fraudulently made out. There can be no doubt that if the Sheriff acted fraudulently, and if he was to omit the names, it would be a ground of challenge. At the Maryborough Special Commission, page 259, in Munday's Report, Chief Justice Bushe says: "Your duty is to try, whether this is an "impartial panel, or has it been so constructed as to deprive the prisoners of а fair trial. If persons have been left off that panel, or "corruptly placed, or postponed in such a manner and to such an ex"tent, as would deprive the prisoners of impartial jurors, or throw "them into the power of jurors prejudiced against them, then this is "not an impartial panel, and you will find accordingly; but if otherwise, "there is no pretence for this challenge." That case establishes that fraud in the Sheriff is good ground for a challenge to the array. No fraud is now imputed to the Sheriff, our allegation is, that fraud was committed before it came to the Sheriff's hands; and I ask, is there a substantial distinction between the cases where fraud has been com

mitted by the Sheriff, and where it has been committed before it came to his hands. The Attorney General stated that the Statute points out a remedy by imposing a penalty on the person who acts corruptly. What remedy would that be in a case of life and death? The 36th section gives the same remedy against the Clerk of the Peace, and all subordinate officers, and against the Sheriff; yet fraud in the Sheriff is a good cause for a challenge to the array. Therefore, if a subordinate officer acts fraudulently, it is a good cause of challenge. The Attorney General referred to one or two cases, Regina v. Conrahy, and Regina v. Fitzpatrick. In the first case Judge Torrens decided that the Statute was merely directory. There is no analogy between that and the present case. There it was merely alleged that the form had not been complied with, but no fraud was alleged of any kind. In the other case, Chief Justice Doherty overruled the challenge pro forma, and reserved the point for the twelve Judges. It did not become necessary to decide the question, for the prisoner was acquitted. Those cases, therefore, are merely blind cases, and have nothing to do with the present case. The Attorney General stated that a formidable principle would be decided if the challenge was allowed; the formidable principle is the other way. It would lead to this, that provided the Sheriff does not act corruptly, if every other officer acts corruptly, the party has no remedy whatever. If there is no precedent, it is because the question never has arisen before. [Mr. Justice BURTON.-How is the fraud alleged in this case?] The allegation is, that the list was illegally and fraudulently made out, by some person or persons unknown, and that fact is admitted by the demurrer. So the case stands thus; no general list was made out by the Recorder, as directed by the Statute; no such list was delivered by the Clerk of the Peace; but a fraudulent list was made out by a person unknown, and from that the Jurors' Book and the special jury panel were taken. Notice was given of this to the Crown Solicitor, and the question is now, whether that is sufficient to set aside the whole panel. In point of law it is. The only substantial objection on the part of the Crown is, that allowing the challenge would lead to delay. I answer, that it would only postpone the trial for a short time. Delay is necessary when a packed jury list is made out for the purpose of injuring us. But even if your Lordships do not consider that you have jurisdiction to act in this case, I would apply to the Attorney General himself, and ask him, even at the eleventh hour, to reconsider the decision he has come to, because I ask him how can he expect that this trial will be satisfactory to the country, if there is a conviction, per fas aut nefas, when the fact of the fraud

is admitted?

The Attorney General.-I made no such allegation, or no such admission, and no counsel is justified in stating that I did.

Sir Colman O'Loghlen.—I merely stated that the Attorney General admits the fact by the demurrer which he has taken to the challenge.

Mr. Fitzgibbon. My Lords, I am, with my friend Sir Col man O'Loghlen, to sustain the challenge, not only on the part of my

respected friend, Mr. O'Connell, but also of the other traversers, as it was not thought right that the time of the Court should be taken up by arguments offered by as many counsel as there are traversers. My Lords, an anxiety is plainly expressed in the Jury Act that the Jurors' Book should be framed according to the provisions of it, that it may be fairly constituted. The legislature directs that a list should be made out by each collector, of every man residing within their respective districts, without wilfully omitting the name of any one individual. The legislature uses the comprehensive words, "all the names," in every instance. That being so, the question is, whether a special jury panel, from which a substantial number of names is omitted, is properly constituted. Every person is interested in the list having all properly qualified persons included in it, and, therefore, it is directed that the list shall be open for the inspection of every person, for the purpose of suggesting or expunging names, and for the purpose of preventing the fatality which has occurred at the present trial, two of the parties on the list being erroneously described. The Attorney General stated that this Jurors' Book was made up from the list revised by the Recorder. Why was that not pleaded? It was alleged on the motion that there was some collusion between the unknown person, who made this omission, and the traversers. But the traversers have plainly averred that they were not in collusion, or in communication with him. If the Attorney General had taken issue on that averment, it would have been decided whether it was true or false. It is common reason and common sense that a man accused of a heinous crime, is entitled to be tried by a jury legally constituted; and it is no answer to tell him that it has not been legally constructed, but the prosecutor is no party to the fraud, which has been committed by a person unknown to you and to them. The law says, that the Recorder shall cause to be made out a list, comprehending the names of all those persons adjudged to be properly qualified. The Recorder did not do so. Those acting for the Crown had distinct and express notice that the list was fraudulently and illegally constructed. If there is any remedy at all for the traversers, it is the present one. Suppose the case of a jury list so cut up as to consist only of outrageous partisans, and a jury struck by the Sheriff from such a list; is the party to be first tried, then punished, and then to have his remedy against the sheriff? Yet that is the proposition which the Court is called on to entertain. I admit that it is always presumed that a public officer does his duty until the contrary appears; and the contrary appears here. The Recorder's own handwriting is to the parish list. He had a simple and easy duty to perform, to see that the general list was made out correctly from it, and to rectify the omissions. Those are the provisions of the Act of Parliament. They have not been complied with, and gross neglect has taken place. Is the Recorder to be presumed to have done his duty after this proof that he has not done it? Fraud will vitiate everything. It will vitiate a judgment of your Lordships' court, or of the House of Lords. Fraud committed, even without the intent of the parties, will vitiate the most solemn deed. If it is al

tered by a third party it is no longer valid. There is no proceeding in law which fraud will not invalidate; and will it not vitiate the construction of a tribunal which is to pronounce the guilt or innocence of the person accused, who, in the oldest language of the law, is always to be presumed to be innocent, until he is proved to be guilty. In such a case the Court should try to get rid of technicalities, in order to arrive at a just conclusion. We have heard much of the delay of justice. For the purpose of rectifying this fraud, it is a desirable thing to delay justice. But the delay necessary for rectifying the omission will be short. It is the right of the subject and the duty of the Crown to delay this trial. The Attorney General has objected to this pleading for want of technicality. He says that there is no averment; that the Recorder handed over a list to the Clerk of the Peace. There is an averment that he handed him over an illegal list. The argument of the Attorney General is this: that because the 35th section gives a remedy in a certain case, it was not intended that there should be one in other cases. That is a complete non sequitur. No provision was made for a case like this, because the Legislature did not presume that such an occurrence could take place. Let me not be understood that I object to any gentleman on the panel of twenty-four, who have been called over. Let no man imagine that I intend to allege or insinuate that any one of them is not a fair and upright and impartial juror. I think it necessary to guard myself against that supposition. That is not the question at all. I know not who the gentlemen are who have been selected. I am arguing against the legality of the panel. I am not suggesting that we cannot receive a fair trial from the jurors who have been called. I know them not, and I am therefore entitled to presume that they are upright and honourable men.

The Solicitor General.-My Lords, before I reply to the several objections which have been relied on, I must advert to an expression which was made use of by Sir Colman O'Loghlen. I certainly did regret to hear him make use of such an expression, which I would willingly attribute to inadvertence-I mean the expression "a packed jury." I must give him the benefit of that supposition, because I am unwilling to suppose he used the expression wilfully, as it was totally unjustified by the case put on his own. showing. I would not advert to this, but that I felt that an erroneous impression might go before the public, from the words which were so thrown out, which were wholly unjustifiable and untenable. Am I not authorized in saying, that such were unjustifiable, when Mr. Fitzgibbon was obliged to admit that he had no grounds for saying that any of the gentlemen who had been summoned would not fairly decide the issue, and therefore I hope the expression was not deliberately used.

My Lords, I shall now apply myself to the legal grounds upon which it is contended that this challenge ought to be allowed. The Attorney General insisted, as I do now, that in point of law this challenge is not maintainable. I think that it is different altogether