ner in which it was made up. I by no means say that the party is without remedy if he proceeds; but this I will say, that if we were right in refusing the motion, we are, a multo fortiori, right in refusing the challenge. I can conceive the motion might be successful, in consequence of the misconduct of some specified person; but when the Jurors' Book is brought before us, and we are told that this panel has been struck in such a manner that a trial cannot be had, the assertion is without foundation. There is an abundant number of names on the panel to form a jury, from which a fair trial may be obtained. It may be a hardship on the traversers, or it may be a hardship on the Crown, but the principle of law is of universal application, that a particular injury must give way to the general inconvenience. No particular injury is pointed out; general inconvenience is pointed out, because, by pronouncing a judgment in favour of this challenge, we pronounce that there can be no valid trial, either by a special or a common jury, during the year 1844.

Mr. JUSTICE PERRIN.-I have carefully considered this Act of Parliament and its provisions since this motion has been before the Court, and in applying its provisions to the matter which appears on the challenge, I am under the disadvantage of coming to a different conclusion from my Lord Chief Justice and my brethren on the bench. Ithink, but not without considerable doubt, that this challenge ought to be allowed. By the Act, the collectors are to make out, in alphabetical order, true lists of all qualified persons within their districts, and to deliver them to the Clerk of the Peace, who shall keep them for public inspection for a certain time; special sessions are to be fixed for the purpose of revision and correction of the lists, by the insertion of proper persons, or the omission of improper persons, when every such list shall be fully corrected, by the Justices in the different counties in Ireland, and the Recorder in the city of Dublin, and shall be allowed and signed by him or them; and they, or one of them, shall cause a general list to be made out. I concur entirely in the distinction taken by my Lord Chief Justice between the judieial and ministerial duties of the Recorder, and I will say with him, that the judicial duties of the Recorder here end; and I think that it so appears by reference to the case of the counties, for after the revision of the list by the Justices, the general list is not to be prepared by them. I should say that, so far, the proceedings of the Recorder are strictly judicial, and so much so, that after he has, as judge, closed and allowed and signed the lists, he could himself make no alteration in it; and therefore, I take it, his judicial duty then closes, and what remains for him to do is not to write with his own hand a general list, but to cause a general list to be made, containing the names of all those whose qualifications have been allowed, which is to be framed from the several lists sent by the collectors, upon which several adjudications, revisions, and corrections have been made. It is the duty of the Justices and of the Recorder to cause a general list to be made of all qualified persons, arranged according to rank and property, and I should say, that if a mistake were made in that arrangement, that would be a matter upon which the Jurors' Book should not be im

peached a matter from which no appeal could be made. I will go further, and say that a casual mistake would not vitiate the list, and would not be incurable. The Act then directs that the Recorder shall deliver the same, that is the general list of all whose qualifications have been allowed, and the Clerk of the Peace shall thereupon cause the same to be truly and fairly copied, in the same order, in a book to be by him provided for that purpose, at the expense of the county, city, and town respectively, &c. which book shall be called the Jurors' Book. Then the Statute provides, that every Jurors' Book so prepared shall be brought into use on the first of January after it is so delivered, and shall be used for a year. What does the challenge say? The challenge says, that after the Recorder had duly revised, examined, and corrected the parochial list, after he had signed it, he did not deliver a general list of all the names, arranged according to rank and property, but omitted to do so; on the contrary, that some person unknown, fraudulently, and, as alleged in some of the challenges, "to the prejudice of the traversers," made a list, omitting sixty names, purporting to be a general list, from which list the Jurors' Book was made out. Now, this is not an allegation that, by error or mistake in making out the list, some names were omitted accidentally. This is not a charge of an unintentional error, but it is a charge of intentional error, that some person did make a false list, omitting sixty names. The Attorney General very properly insisted that matters not contravened or met in the challenge, must be taken to be admitted; and he insisted, I think, justly, that he was at liberty to take them as admitted. But it must be considered, that there is a sufficient allegation that the Recorder handed in a list which was a defective list. The Recorder knew no more of it than I do; and I think it would be monstrous to hold that a shadow of suspicion should alight upon him. There is nothing to warrantnothing to suggest that he knew it; therefore, it must be taken that he was imposed on. Then what is the result of that? Is that the general list authenticated by the Recorder? Is it to be taken to be the act of the Recorder, and that he is giving it as a voucher of the correctness of what he hands in? He is merely a ministerial officer in that case, no more answerable for it than the person by whom he sends it; and, in my mind, it is indifferent whether he hands it in himself, or whether he was ignorant of the omission. But how does that affect the materiality of the question? The evil to the parties who want a full jury list is as great as if the Recorder or the Justices were conusant of it. It appears to me that this challenge amounts to an allegation, that this was not, in truth, a general list, made from the other lists, which it ought to be, in order to constitute a foundation for a Jurors' Book. It has been observed, that the Act of Parliament was framed with great accuracy-that the important object was to secure unbiassed jurors, and to leave as little as possible in the power of any particular officer. If we hold, then, that an alteration of this kind, made by a person who must be doing his duty in the employment of the public-if a contrivance of this sort is to be incurable, and is not to vitiate the act, which purports

to be the act of the Judge or superior officer, I cannot understand what security there is for the purity of the Jurors' Book. If the correct one may be mutilated, another one may be substituted. I cannot imagine that the mere fact of being received from the hands of the officer, from the Justices, or the Recorder, should constitute the real foundation of the list from which the Jurors' Book is to be made. It seems to me, and perhaps this is as good a place to mention it as any other, that if such a thing were practised, and came to the ear of the Recorder, he would have a right to go with the real list, and call on the Sheriff to repudiate the fabricated list, and to correct the Jurors' Book according to the truth. It strikes me, that not only he would have that power, but that it would be his duty to do so. Suppose the Sheriff, in framing his special jury list, had marked off the names for his clerk to write, and that some of those names had been omitted by the clerk, and that the special jury list was framed, with the omission of those names, and that that was not discovered until the forty-eight names were about to be drawn, it strikes me that that would be a good cause for challenge. On the same principle, suppose a nisi prius trial, for which the Sheriff returns a distringas to this Court, and that it was afterwards altered by a subordinate officer of the Court some weeks before the trial, and afterwards, when it went down to the country it was discovered, surely that would be a ground of challenge, although not for misconduct in the Sheriff. It is said, that this challenge is a novel one, but its novelty arose from this, that the Act was of recent date. Before it, the Sheriff was uncontrolled in his selection. He was called on to return a jury from the body of the county, or from the different districts, but he might return whom he pleased. Here is a provision, confining his selection to a particular list; if that is vitiated, although the Sheriff is not a party to that, yet it appears to me to come within the principle on which challenge to the array rests, and upon which it was originally founded. Much has been said about the inconvenience that would arise from admitting the present challenge, although no case can be found in the books on the subject. It has been objected that great inconvenience would arise, if this challenge was held to be good. The Court is not to regard the consequences of its decision, except so far, that it should be cautious that those decisions are well founded, and act upon sound principles of law. We are to decide the law according to the best of our abilities, and if any public inconvenience should follow, that should be remedied by those who had power to make laws. But it strikes me, that the inconvenience apprehended has been described as more extensive than it really is, and that there is a power to correct the error, which was admitted to exist in this particular case. I cannot see any objection to amend the book according to the true and real general list. These are the grounds on which I felt myself compelled to act, though not without considerable doubt, in coming to a different conclusion from my brethren,

The demurrer was allowed.

TUESDAY, JANUARY 16TH.

The Clerk of the Crown then called on the traversers to appear; two of whom, Messrs. Barrett and Duffy, not answering to their names, Messrs. Cantwell and Gartlan, the attorneys concerned for them, stated they would be in court in a very short time, and that they, as acting on their behalf, assented to whatever should be done in their absence.

The Attorney General.-My Lords, I am quite satisfied of the accuracy of what has been stated; but I think in a case of this kind, every thing should be regular.

Mr. JUSTICE CRAMPTON.-In misdemeanor cases, is it not usual for traversers to appear by attorney?

The Attorney General.-That is only conceded ex gratia. But where the traversers enter into recognizance, they cannot appear by attorney, without the consent of the Crown, and it has been expressly so decided in England. There would be an obvious objection, if, for instance, any difficulty should arise as to the identity of any of the traversers in the progress of the trial.

Mr. Henn.-There should be a separate appearance entered for each of the traversers, by attorney. There is no objection in point of law to their appearing by attorney, and we shall undertake that they shall appear, if required.

The Attorney General.-If that application had been originally made, I was prepared to show by authority, that they could not appear by attorney. I shall certainly require their attendance during the trial.

Messrs. Barrett and Duffy having come into Court,

The following gentlemen were called, and answered to their

names:

James Hamilton.

Edward Roper.

Mr. Roper objected to serve, as his health was bad; and also that he was not liable to serve as a juror, being seventy-two years of age. He handed in a document, certifying his inability to serve.

Mr. Henn. As Mr. Roper has been returned on the jury list, and made no objection to his being put on the list when the revision was going on, he cannot now object to serve.

Mr. O'Connell. The document handed in by Mr. Roper is a declaration, and cannot be received by the Court.

Mr. Macdonagh.-The Court decided yesterday, that the decision of the Recorder was final; the party not having objected at the time when it was competent for him to object, cannot now be excused.

Mr. JUSTICE CRAMPTON.-Your argument is not ad idem to the present case. The observations were then made with respect to the array, not to the qualification of any particular juror.

The CHIEF JUSTICE.-This gentleman is returned on the jury list, and I have heard nothing that would induce me to say that he

has established an excuse; and I further think, unless some sufficient reason be shewn, the traversers have a right to insist that he should be sworn, and in my opinion he ought to be sworn.

The following Jury were then sworn:

James Hamilton.

Edward Roper.

Edward Clarke.

Henry Thompson.
Anson Floyd.

John Rigby.

Francis Falkner.

John Croker.

Henry Flinn.

Robert Hanna.

William Longfield.

William Ord.

The Clerk of the Crown then gave the traversers in charge. Mr. Napier. My Lords, and Gentlemen of the Jury. This is an indictment, charging the traversers with an unlawful conspiracy and The first count charges confederacy, and contains eleven counts. the traversers, first, with unlawfully intending and devising to raise and create discontent and disaffection amongst Her Majesty's subjects; and secondly, to excite them to hatred and contempt of the government and constitution of this realm, as by law established; thirdly, to excite hatred, jealousies, and ill-will amongst different classes, especially hostility and ill-will between Her Majesty's subjeets in Ireland and in England; fourthly, to create discontent and disaffection in the army; fifthly, to cause and procure, and aid and assist in causing and procuring divers subjects of Her Majesty, unlawfully and seditiously to meet and assemble at various times and places within Ireland, in order, by means of the intimidation to be thereby caused, and the exhibition and demonstration of great physical force, to obtain changes and alterations in the government and constitution, as by law established; and sixthly, to bring into disrepute the courts by law established for the administration of justice, and to diminish the confidence of her Majesty's subjects therein, with intent to withdraw the adjudication of their differences therefrom, and to submit them to the adjudication of other tribunals, to be contrived It then sets out, as overt and constituted for the purposes. acts, in furtherance of these designs, meetings, speeches, and publications.

The second count is the same as the first, omitting the overt acts. The third count is the same as the second, except in the charge as to the procuring the meetings, the words "unlawfully and seditiously" are omitted.

The fourth count omits the charge as to the army, and the overt acts.

The fifth count is for a conspiracy, with intent to create disaffection, and to excite to hatred and contempt of the government and constitution, omitting the overt acts.

The sixth count charges the intent to be by means of intimidation, and the demonstration of physical force to procure and effect changes in the government, omitting the overt acts.

The seventh count is the same as the sixth, with this addition, that the changes to be effected were especially the dissolution of the legislative Union.

H