THE WRIT OF ERROR—MISREPRESENTATION. (Hansard, 19 July 1844)

The Lord Chancellor
I beg to call your Lordships' attention to a matter which, although personal to myself, is of importance to the public, as connected with some proceedings which recently took place in your Lordships' House: I allude to the trial and arguments on the writ of error in the case of the Queen v. Daniel O'Connell and others. I have been informed that in certain Irish papers there has been published a most erroneous account of some statements made by me on that occasion; and in consequence of that information, I thought it my duty to examine into the source in which such an erroneous statement could have originated, and I find that it had its origin in a report, or rather in a commentary on this case, which appeared in the Morning Chronicle a day or two after the termination of the arguments of 1063 counsel. Now though I think it necessary to call your Lordships' attention to this subject, I do not mean to charge the writer of this article with any act of wilful misrepresentation; indeed, I am anxious, and bound, and ready to suppose that it arose from misapprehension, which a person not acquainted with the law of the subject would be very likely to fall into. Therefore I have no complaint to make against the editor of this journal in this matter, although on account of the nature of the statement, I feel it my duty to enter into some explanation upon the subject. I will beg now to call the attention of your Lordships to one or two sentences in this article, for the purpose of explaining what I am about to state to your Lordships. The first passage runs as follows:— Whilst Mr. Hill was upon the subject of the manner in which the jury had been composed, and which had been made the subject of a challenge by the defendants, the Lord Chancellor said, 'There is no dispute about the facts. It is clear from the record that there was a fraudulent list, that the book was made up from that list, and that the panel was made out from the book.' His Lordship afterwards observed—'The only question was, whether this was the right course of proceeding, whether the fraud formed a ground of challenge to the array.' At the same time Lord Campbell observed—'The question is, whether this [fraudulent composition of the Jury List] 'was a cause of challenge, or whether the parties ought to have applied to the Court of Queen's Bench in Dublin to quash the panel.' Here then, we have the deliberate and judicial declaration of the Lord Chancellor, that the trial took place before a Jury, which, as his Lordship expressly declares, the Crown prosecutors themselves, upon the record, admitted to have been fraudulently composed. Can any mortal who has the slightest acquaintance with the feelings and the temper of the people of England imagine that they will not receive such an admission with an universal burst of execration? Further on, the writer says— We cannot imagine it to be possible that any Minister of the Crown would have the audacity to maintain a judgment which is founded upon a verdict returned by a Jury who have been selected from a list which, according to the authority of the Lord Chancellor of England, has been fraudulently concocted, and at the hands of whom a verdict of conviction was anticipated as a matter of course. This, my Lords, is the principal matter of the article to which I have now called 1064 your attention. In order to explain the transaction to which it refers, I must mention that in legal proceedings, when parties state a fact, or a series of facts, for the purpose of leading to a legal conclusion, the opposite party may demur to the point of law so raised upon that statement of facts; and the effect of his so doing is this, that for the purpose of argument, and of coming to a conclusion upon the point of law, and for this purpose only, the fact may be considered to be admitted. If he demurs, he cannot deny the facts; he must make his election. If he demurs, he admits the facts for the purpose of argument. He says, "Assuming the facts as the opposite party states them, I don't believe, that they will lead to the legal conclusion, in point of law, that you contend for." This was the case in reference to the challenge of the array. The facts were placed on the record. In order to support the challenge of the array, these facts were stated—"that a fraudulent list was made out by some person unknown with a view to prejudicing the case of the defendants; and that the Jury-book was made out from that list." These were the facts stated on the record, as the ground for supporting the challenge to the array. To this statement the Attorney General for Ireland demurred; the effect of which was as much as to say to the traversers, "assuming the facts to be as you have stated them, still I maintain they are no ground for a challenge to the array." Now, in the course of his argument on the Writ of Error, Mr. Hill, who was of counsel for some of the traversers, was going into some detail as to the facts alleged in the challenge of the traversers, when I observed to him "that it was not necessary to go into those facts, for that they were all admitted; it was admitted on the record that the list was fraudulently made up, and that from this list the Jury Book was made up to the prejudice of the traversers." It was so admitted for the purpose of legal argument; it could not be denied that it was so admitted on the record. I never intended to say, nor could I be expected, or supposed to say, that the facts were true of my own knowledge. My observation extended to the record merely. It is very possible, my Lords, that the person who wrote this article was not aware of these legal technicalities, nor of the effect of my observations—I do not, therefore, charge him with wilful 1065 misrepresentation. But when it goes forth that the High Chancellor of England has used such remarks, and made such admissions as those this writer states of me, it becomes necessary that I should set the matter right. I am the more anxious to give this explanation, because I understand from some noble Lords who sit near me that it was set forth in the Irish newspapers in large letters—in large characters—that it was admitted by the Lord Chancellor of England himself, "That the Jury-List was fraudulently made out for the purpose of prejudicing the defendants." I have, therefore, felt it necessary to explain this matter to your Lordships as clearly, and with as much perspicuity, as I can. I am sure that your Lordships have understood me, and are satisfied that what I did say on the occasion referred to did not lead to the conclusion in argument which has been arrived at by this writer; nor warrant the inference appended to it; that it can hardly be supposed possible That any minister of the Crown would have the audacity to maintain a judgment on which is founded a verdict returned by a jury who have been selected from a list which, according to the authority of the Lord Chancellor of England, has been fraudulently concocted, and at the hands of whom a verdict of conviction was anticipated as a matter of course. This was a most perverse representation of what had fallen from him. The party making it must have been misled by not understanding the nature and object of the law, but if be did understand it, nothing can be more mischievous, nothing can be more improper, than the representation that had been made by him. There is another passage in the article in which the writer says that if the counsel for the Crown thought proper, they might have taken issue upon the matter of fact averred in the challenge. I shall not now give any opinion upon this point; but I may mention that the Attorney General for England stated in argument at the Bar of their Lordships' House that it was impossible to traverse any fact which was material to the issue. I trust your Lordships will think that I am justified in making these observations to the House. I seldom take notice of anything that is published relating to myself; but on the present occasion the publication is important, as having a tendency to prejudice the administration of justice.

Lord Brougham
said, that the misrepresentation 1066 adverted to was certainly a most extravagant one; but he was also clearly of opinion that there was no ground for designating it as a wilful misrepresentation. It was certainly the greatest possible misrepresentation, but it arose from the greatest possible misapprehension of the course of the law, and of the nature of proceeding in making up the record. His noble and learned Friend stated, that he was charged with having gone out of the case to give an opinion on a point of fact, the evidence of which was not before the House. His noble and learned Friend was not the only person so charged; for in the Irish newspaper which he (Lord Brougham) had seen, it was assumed that all the Law Lords concurred with his noble and learned Friend because they had not contradicted him. Undoubtedly they did not contradict his noble and learned Friend, because they understood his statement exactly in the sense in which he had just explained it. He would not go into the other questions adverted to—as to the non-traversing the facts, simply because that question was not now before them. The present question was, whether the noble and learned Lord on the Woolsack had pronounced a judicial opinion that those facts were true, and his noble and learned Friend had set that matter right by contradicting the statement. He (Lord Brougham) did not, however, consider the misrepresentation wilful.

The Lord Chancellor
said, that the other passage in the newspaper to which he had referred, but had not read, was as follows:— If the Crown lawyers thought proper they might have taken issue upon the matters of fact averred in the challenge, but, instead of doing so, they demurred to the statement itself. In answer to that he had stated, that the Attorney General in his argument at the Bar of the House said he could not with propriety have taken issue on the facts; but he (the Lord Chancellor) made no observations on that point, because it was not now the question before the House.

Lord Campbell
, after approving of the conduct of the noble and learned Friend on the Woolsack in correcting the misrepresentation to which his observations had been subject in the paper referred to, said, that when the matter came regularly before the House, and when they would 1067 have to consider the manner in which these trials had been conducted, he should feel it his duty to give an opinion entirely different from that which had been expressed by his noble and learned Friend.

The Lord Chancellor
I must beg to set my noble and learned Friend right; I gave no opinion whatever on the subject; on the contrary, I said I would not do so.

Lord Campbell
Well, then, he begged to give notice that when their Lordships came to consider this subject in their political and constitutional capacity, he should be prepared to contend that the Attorney General for Ireland was not justified in going to trial in the way in which he had done; that it was his duty to have seen that the Jury was impartially selected which was to try the question between the Crown and the traversers.

§ Lord Cottenham
said, that the explanation which his noble and learned Lord had given, he was sure must be satisfactory to every one who heard it. The fact was, that the noble and learned Lord's observation to the counsel for the traversers could not have been stated as between court and counsel in any other manner than it had been. Lawyers were so in the habit of treating matters alleged in demurrer as true, that the observation of the noble and learned Lord would have been at once understood by all who were acquainted with the principle and rules of pleading. Such, however, might not be the case with persons who were not informed upon the subject; and therefore he did not think there was any ground even to suspect that the misstatement of the writer now in question had any other origin than his misunderstanding the precise bearing of the case he treated of.