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not departed from, either in letter or in spirit, by any interference of the Lord Lieutenant or Mr Drummond, who in such matters represented him, or by his taking them altogether into his own direction and control, without reference to the InspectorGeneral, save so far as the interposition of that officer might be necessary to carry instructions into effect when communicated to him. The complaints of Colonel Shaw Kennedy, referred to on p. 277, were accordingly founded on a misapprehension of his relation to the force under the Act of 1836.
The only remaining portion of the Act which requires notice is that which provides for the appointment of stipendiary magistrates. The Act does not constitute the persons to be so appointed magistrates of police, as under the 54 Geo. III. c. 131, they are merely justices of the peace, to act as such in aid of the local magistrates, or to supply their place when necessary; and they are in no way connected by the Act with the police establishment, except in regard to paynient of their salaries, &c., which is to be made by the Receiver of the constabulary.
On the whole, the office of the Inspector-General was one very much of a merely ministerial character, the duties of it being to carry into effect the appointments and orders of the Lord Lieutenant in all matters relating to the constabulary force, commonly conveyed, as to all other public departments in Ireland, through the Under Secretary; to see to the due observance, in all ranks of the force, of the rules and regulations for its conduct and discipline approved of by his Excellency, and to exercise in that respect a general superintendence and control over the force; and to report to the Government all matters relating to the force or to the state of the county which might require the interference or directions of the Executive.*
* This note, and the two next following it, are founded on papers written, in 1839, by the Right Hon. Maziere Brady, and placed at the present writer's disposal.
THE CHARGES AGAINST THE IRISH GOVERNMENT AS TO THE
ADMINISTRATION OF JUSTICE.
First, That since the passing of the new Jury Act an inferior class of jurors had been returned.
Second, That the Crown had abandoned the right of challenge.
Third, That counsel for the Crown did not address the jury in reply.
Fourth, That justice was impeded by the practice of permitting prisoners to have copies of the informations against them before trial.
As to the first : The Jury Act alluded to is the 3d and 4th William IV. c. 91 (1833), (corresponding in substance with the English Act, 6th George IV. c. 50.) The classes of persons whom the Act recognised as qualified, are thus enumerated in the first section of the Act, viz. :Every man between 21 and 60 years of age1. Having L.10 a-year in lands or rents in fee-simple, fee
tail, or fee-life. 2. Or, L.15 a-year in lands held by lease, originally made
for a term not less than 21 years. 3. Or, being a resident merchant, freeman, or householder,
having a house in any city, town, or borough, of the
clear yearly value of L.20. In addition to these classes in counties at large, it is further provided that, in counties of cities and counties of towns, there shall be a fourth class, viz., every resident merchant, freeman, and householder having lands or tenements or personal estate of the value of L.100. The second section gives exemptions to certain classes, such as peers, judges, clergymen, barristers, attorneys, &c. &c., unnecessary to particularise. The only qualification previously existing for a juror in criminal cases was, that he should be a 40s. freeholder! And even that limited qualification was not requisite in a corporate city or town.
There was nothing in the machinery of the Act itself to render it likely, if all parties did their duty, that the jury lists would consist of the inferior classes. The Clerk of the Peace was to issue his precept once a-year to the high constables, and collectors of Grand Jury cess, to return him lists of qualified persons in their respective districts. The high constables were to make out the lists, stating the names, abodes, quality, business, and nature of the qualification of said persons and return them to the Clerk of the Peace, who, after keeping them for three weeks for the inspection of any inhabitant, should lay them before a special session of justices of the county. A special session was to be fixed for each division at the October Quarter Sessions; public notice of it to be given, and the high constables to attend it. The justices at this special session ought to revise the lists, by striking out the names of persons disqualified, and inserting the names of qualified persons. On the lists being thus revised, the justices ought to have one general list made out, arranging the names according to rank and property, and delivered to the Clerk of the Peace, who ought to have it copied in a book, which he is to deliver to the Sheriff, and which becomes “The Jurors' Book for the year.” As to trials of criminal cases, the Sheriff had, as he had before the Act, a certain discretion as to the persons to be returned by him, restricted solely by the obligation to return the names of persons entered in the jurors' book.
If, therefore (and there was no evidence of it), the class of jurors returned was inferior to that returned before the Act was passed, the fault must have been either in the Sheriff or his officers, or the county could not afford an adequate number of a superior class. But in this latter respect it was improbable that any county had deteriorated since the Act was passed. The explanation of the inferiority of the jurors, if it existed, lay in the non-performance of their duties by the persons appointed, as above explained, to select them.
* See Kirwan's Trial, p. 31; Howell's State Trials, pp. 578--631.
The high constables, or collectors of Grand Jury cess, who were to make out the lists, were officers appointed by an irresponsible body, the Grand Jury; they were, or might be, changed at each assizes, and they had not any remuneration for the duty of preparing the lists, their emoluments being solely derived from a poundage on the collection of cess. They were, consequently, in some counties negligent of this duty. The duty of revision, again, was delegated to the justices of the county, who might, from carelessness, omit to attend at the time appointed for the special sessions, as occurred in Sligo in 1837, and recently on the trials of the Fenians in 1867; or might, for party purposes, take on themselves to alter the lists in a manner not sanctioned by law.*
The Act imposed penalties for neglect of duty or misconduct in the collectors and other officers, but the technical difficulties attendant on all proceedings for penalties are very great, and the mere enactment of penalties rarely produces the desired effect.
The non-existence or defect of a jurors' book for a county does not invalidate the trials. An Act was passed with this view in 1854, to amend the Jury Act, in consequence of the non-observance of that Act; and the Jury Act itself provides, that it shall not be an objection to a trial that any juror was returned who was not named in the jurors' book. At the special commission in Tipperary in January 1839, the judges agreed that there not being a jurors' book for that county formed no ground of objection to the proceedings. And the same ruling has been pronounced in the Fenian trials.
So far, then, as regards the Jury Act itself, it in fact raised considerably the qualification of property to be required from jurors in criminal cases, excluding none save those who wanted that qualification; and it provided a machinery sufficient, in proper hands, to secure a true book or list of every person so legally qualified, out of which the Sheriff might, if he pleased, select the highest persons in the county to serve as jurors.
* See The Carlow Case.
+ This was the special commission at which the murderers of Cooper were convicted.
If, then, the juries were returned out of the inferior ranks of jurors, the fault rested not with the law itself; still less was it imputable to those who brought in that law; and, above all, it was no ground of blame to the Government, whose officers, from the highest to the lowest, had nothing whatever to do with the selection or return of jurors.
The true cause of the inferiority of the jurors in criminal cases, where it existed, was the objection which those of the better class had to be put on such juries, as considering it derogatory to them, and attended with much personal trouble and inconvenience. The Sheriff and Substitute consequently omitted that class of persons whom they supposed likely to be offended by being summoned to the Crown Court as jurors, or whom they might choose to favour in that respect; and their inferior officers, the bailiffs, often took money to excuse or omit serving many of those whom the Sheriff actually put on his pannel.
The second ground of charge was, that the Crown had abandoned the right of challenge to jurors. This was a total mistake, founded either in ignorance of the subject or wilful perversion of the facts. There are two species of challenge to individual jurors, viz., challenge for cause, and peremptory challenge. Challenge for cause is where a cause can be and is assigned, on account of which the person called ought not to be sworn on the jury. Challenges for cause had always been allowed both to the Crown and to the subject, and had always been acted on by both. They had never been abandoned by the Crown, either by instructions to the Crown solicitors or otherwise. The second class of challenges, i.e., peremptory challenges without cause assigned, stood on a very different footing; and so far from the Crown having abandoned this power, it had not possessed it for several centuries.
In the earlier periods of the law the Crown had the right of peremptory challenge, and without limit; a power which was so absurd, or so liable to abuse, that it was altogether abolished by Act of Parliament in the reign of Edward 1.,* and has never
* Stat. 33 Edward I. c. 4.