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since been restored. On the contrary, that statute of Edward I. was re-enacted in the Jury Act* in England, and in the Act for amending the Criminal Law † in Ireland, and the law has accordingly been, from the reign of Edward I. to this day, that the Crown has no right of peremptory challenge.
The right of the subject in this respect is different. At the common law he had, in cases of felony, the power to challenge peremptorily to the number of thirty-five. This has been restrained by statute, and at present the law, as settled in Ireland by the 9th Geo. IV. c. 54, sec. 9 (and in England by the 6th Geo. IV. c. 50, sec. 29), is that the prisoner, in cases of murder or other felony, has not power to challenge peremptorily · more than twenty. (The peremptory challenge was even allowed to a prisoner in cases of misdemeanour.)
The true state of the matter was this:-The old Act of Edward I. having taken away the right of such peremptory challenge from the Crown, a contrivance was resorted to, and obtained the sanction of the judges, for evading the Act in this way, namely, by holding that the construction of the statute was,
that the King was not bound to state his cause of challenge to a juror until the whole pannel or list of jurors was called over, and that the Crown might, on a juror being called, direct him to stand aside for the present, i.e., until the whole list was gone through; and that in this way, if a jury could be had out of the list without going back to the persons so set aside, they were excluded, and thus virtually a peremptory power of putting particular individuals off juries was assumed and exercised. It prevailed in England, and particularly in state trials, but has become of late years almost obsolete there. In Ireland it received a kind of legislative sanction by the clause of the 9th Geo. IV. c. 54, sec. 9, which re-enacted the prohibition of the Act of Edward I, but declared that this should not affect the power of the Courts to bid a juror stand by at the prayer of those who prosecuted for the King, as had been theretofore accustomed. This was the power which was acted on in Ireland, and abused most grossly, to the disgust and indigpation of the Roman Catholics and liberal Protestants. It was * 6 Geo. IV. c. 50, sec. 29.
† 9 Geo. IV. c. 54, sec. 9.
used unscrupulously, to the exclusion of persons solely from religious and political motives. The exercise of it has been checked, but the power has not been abandoned, as untruly alleged. The letters of instruction of Perrin and O’Loghlen were merely that no person shall be set aside on account of his religion or politics, and that the Crown Solicitor should be able to state to the Attorney-General the grounds on which he should in this way object to any individual. Mr Brady's instructions are given at length ante, p. 444.
The third charge was that Crown counsel did not make speeches in reply. This charge was meant to apply to cases of felony, in which the prisoner's counsel had not, till 1836, the privilege of addressing the jury. That privilege was given by the statute 6 and 7 William IV. c. 114 (1836), commonly called the Prisoners' Counsel Bill. In practice,* previous to that Act statements by counsel for the prosecution were extremely rare, the ordinary practice being to proceed at once to the examination of the witnesses, leaving the full exposition of the case on both sides to the judge in his charge to the jury. The case on both sides was generally got out by examination and cross-examination of counsel. The above statute having given the prisoner's counsel, in cases of felony, the privilege of addressing the jury, it became necessary for counsel for the prosecution more frequently than before to make a statement of the case. But still that course was, and perhaps very properly, exceptional. The constant habit of speaking to reply tends to introduce a contest of argument and ingenuity between counsel not consistent with the course desirable in trials on capital charges. Where, however, the want of a speech from the Crown counsel might seem to admit that the case was truly such as represented by the counsel for the prisoner, there ought to be a speech. The matter was accordingly left, as in England and Scotland now, to the judgment and discretion of the counsel. The principle of the Prisoners' Counsel Bill, as
* In England the practice was always different, counsel for a prosecution generally making an opening statement.
it passed the House of Commons, was to give the final reply to the counsel for the prisoner.*
The fourth charge was that justice had been impeded by the practice of allowing prisoners to have copies of the informations against them before trial. This is a right given to parties accused by the statute 6 and 7 William IV. c. 114, which is not merely an Irish Act, but a general statute for the United Kingdom (except Scotland). The Government had no power to control or abridge this right. It rests on the most obvious principles of justice. Before the Act passed, a prisoner had no means of knowing what was sworn against him, except he was present at the examination of the witnesses (which was not always the case in Ireland), and even then he could only instruct his counsel or attorney from recollection. It was said the practice was calculated to defeat the ends of justice, by informing the parties accused of the names of those who had lodged informations against them, and by enabling them to get up alibi defences. The information of the names of the witnesses was supposed to be dangerous, as exposing such witnesses to danger. This, however, was a danger equally existing under the former practice, at all events when magistrates acted according to law by having the witnesses examined in presence of the accused before his committal; and it could not deter witnesses from coming forward, as, at all events, they must appear at the trial. The Act was passed for the protection of the innocent, by enabling the prisoner and the Court to detect any contradictions between the statements of the witnesses ; and instances of such contradictions so proved, and of the most vital consequence to the protection of innocence, are not unfrequent.
* See now the Statute 28 and 29 Vict. c. 18.
STATE OF THE LAW IN IRELAND AS TO ILLEGAL SOCIETIES.
When illegal societies were constituted by the administration of oaths, the act of administering, tendering, or taking such oaths was in itself an indictable offence of a highly penal nature, and the statute law was abundantly sufficient to meet most cases where the charges could be supported by legal evidence.
The offence was felony,* and subjected the person convicted of it, in some cases, to the punishment of transportation for life, in others to transportation for seven years.
When a plain and express purpose of treason or sedition, or of committing any other indictable offence, was avowed in the constitution of any society or confederacy, or evidenced by its proceedings, the parties were liable to indictment at the common law, and in such cases the questions of difficulty could be only questions of evidence.
But in many cases societies had been declared unlawful, without reference to their ultimate objects, or requiring any proof to be given of those objects, the mode of organisation or constitution of the society forming in itself the test of its illegality for whatever purpose it might be formed. The statutes passed for this purpose had been devised in order to prevent the formation of any societies so constituted, and to facilitate the conviction of the members of illegal societies by means of evidence of those acts and proceedings of such bodies which must necessarily be known to many, and therefore more capable of proof than the ultimate and secret designs of the leaders.
The statutes in Ireland which related to this subject were the Irish Act, 33 George III. c. 29 (commonly called the Convention Act), and the 4 George IV. c. 87.
The former statute, 33 George III. c. 29, was of rather a limited application; it only declared illegal assemblies, committees, or other bodies elected to represent, or assuming to represent the
* See 27 Geo. III. c. 15, sec. 6, Irish Act, and 50 Geo. III. c. 102, sec. 1, &c.
people, or any portion of them, under pretence of petitioning for, or in any other manner for procuring, an alteration of matters established by law in Church or State.
It thus required proof of two things—first, an election or representation of the people, or some portion of them; and secondly, that such elections, &c., should be for the alteration of some matter established by law in Church or State. It was passed at a peculiar period of Irish history, and to meet a particular emergency, and has been rarely put in force since.
The 4 Geo. IV. c. 87, was of a much more comprehensive character; it was taken from the English Act against the Spencean and other societies, 57 Geo. III. c. 19, sec. 25, with some alterations.
The 4 Geo. IV. c. 87, sec. 1, for Ireland, declared that any and every society, association, brotherhood, committee, lodge, club, or confederacy whatsoever, now established, or hereafter to be established in Ireland, of the nature hereinafter described, shall be, and be deemed and taken to be, and is hereby declared to be, an unlawful combination and confederacy; that is to say, any and every society, &c., the members whereof shall, according to the rules thereof, or to any provision or agreement for that purpose, be required or admitted, or remitted to take any oath or engagement which shall be an unlawful oath or engagement, within the intent and meaning of the said recited Act of the fiftieth year of His late Majesty's reign, or to take any oath not required or authorised by law; and any and every society, the members whereof, or any of them, shall take or in any manner bind themselves by any such oath or engagement upon becoming, or in consequence of being members of such society; and any and every society, the members whereof shall take, subscribe, or assent to any test or declaration not required by law; and any and every society, &c., of which the names of the members, or any of them, shall be kept secret from the society at large, or which shall have any committee or select body chosen or appointed in such manner that the members constituting the same may not be known by the society at large to be members of such committee or select body, or which shall have any president, treasurer, secretary,