Lord Campbellbegged to draw the attention of his noble and learned Friend on the Woolsack, to a subject in some measure connected with the subject on which the noble Marquess had just addressed the House. It was relative to the Bill that had occupied the attention of his noble and learned Friend, respecting Bail in Error in Criminal Cases. He hoped there would be no delay in bringing this necessary and useful measure forward, as it was desirable to send it down to the Lower House as soon as possible. There was another point to which he wished to direct the attention of his noble and learned Friend, as it was of considerable importance.—It also was in some sort connected with the matter he had just referred to. The subject of it arose out of a proceeding on which he was not anxious to say much, not desiring to revive discussions tending to prolong or to reproduce angry feelings. He referred to the mode of proceeding which was to be adopted 225 henceforward with respect to objecting to a Jury which had been improperly returned. He would assume that the opinions of the Judges who had been consulted on that subject were perfectly correct. He would also assume that the view taken of the same subject by his noble and learned Friend on the Woolsack, was perfectly correct. Then, if so, how, according to the law of England, was a person now to act with respect to a Jury thus improperly returned? It appeared to him, it the law were correctly defined, that as it now stood, the party put on his trial was without a remedy. An accused person might be put on his trial before a Jury partially selected, and yet he was without remedy for this wrong. The old Common Law of England gave the accused the tight, under such circumstances, to challenge the array, and on proof of the validity of the objection, the array was quashed, and the process of forming the July was renewed. Formerly, the duty of impanel-ling the Jury devolved upon the Sheriff, or, in his absence, upon the Coroner; and upon this functionary it depended whether the Jury so impannelled, was properly or improperly constituted. The ground of challenge then was, that the Sheriff was either partial or not indifferent, and upon either of these grounds, if proved, the jury was quashed. Afterwards, however, by a most excellent law, for which they were indebted to the present Prime Minister, the mode of constituting the Jury was altered, and the power formerly vested in his hands was taken from the Sheriff, and entrusted to other functionaries. The challenge to the array was likewise taken away, because the Sheriff could no longer influence the formation of the Jury, nor was he recognised in the proceeding. This being the position of matters, the learned Judges came to the unanimous decision, that as the Sheriff could no longer be complained of, the challenge to the array was gone. Now, although he was humbly of opinion that this was a point involved in considerable doubt, and that another mode of redress might still be pointed out, still, assuming that the decision was correct, he hoped that his noble and learned Friend would acknowledge that the law, if such were the law, should not remain in that condition, but that some remedy should be provided, something tantamount to the challenge to the array when the Sheriff was the returning 226 officer. Now, he begged to draw the attention of his noble and learned Friend to this subject, and he ventured to ask him now, or if he wished for time to consider it, he would not press the question, but be ventured to put it—to ask whether it was the intention of Government speedily to bring forward a measure upon the subject? Such a Bill would certainly be better in their hands than in those of any noble Lord sitting upon the left of the Woolsack. He would repeat the question — whether it was now the intention of his noble and learned Friend to introduce any such measure as that to the necessity for which he had referred? If it was his intention, he would most willingly leave the matter in his hands. His (Lord Campbell's) sole object was to amend the Criminal Law, and he would much rather that the measure came from his noble and learned Friend than that he should attempt to introduce it. But should that noble and learned Lord's answer be that he declined to take any such steps, then he (Lord Campbell) gave notice that be should feel it his duty to move for leave to bring in such a Bill as he believed was wanting upon the subject.
The Lord Chancellorsaid, his noble and learned Friend had put two distinct questions to him. The first was, whether, in conformity to the engagements entered into by him on a former occasion, he was prepared to bring in a Bill on the subject of Bail in Error. He begged leave to state that, having directed his attention to this matter, it was his intention within a few days (so that the Bill should pass through the House before Easter) to bring in a Bill on the subject, the provisions of which were founded in no small degree upon the Bill formerly brought forward by his noble and learned Friend. With respect to the second topic upon which his noble and learned Friend had addressed their Lordships, he thought some misapprehension existed in his noble and learned Friend's mind. He did not understand the learned Judges to have given their opinions to the effect stated by the noble and learned Lord; nor had he (the Lord Chancellor) given any opinion to such an effect, for he did not think the right of challenge to the array was taken away by any recent Act of the Legislature. All the learned Judges said was, that the challenge to the array did not lie in that particular case to which their attention 227 was directed. The challenge to the array could only be had by reason of a default on the part of the returning-officer. If the Sheriff was the returning-officer, then the challenge existed either as to his unindifferency or his default. Those were the grounds upon which the Common Law of England granted the right of challenge. But in the case referred to there was no imputation upon the Sheriff, nor was there any ground to accuse him of unindifferency, and for that reason, according to the Common Law, there was no ground for allowing a challenge of the array. That was the opinion of the learned Judges. The ground upon which the challenge of the array in the case in question rested was, that there was a defect in the book. A certain number of names which ought to have been there were not in it. The list was, therefore, defective; but the Sheriff was bound to take the names from the list presented to him by the proper officer, and no blame could be attached to him, for he performed his share of the duty correctly. He therefore apprehended that the learned Judges gave no opinion to the effect stated by his noble and learned Friend. That there existed an evil in the proceedings he entirely agreed with the noble and learned Lord in admitting, and if it was necessary to prevent its recurrence, a remedy should be provided. If a jury-book were defective, or if names were improperly empannelled, a remedy ought to exist; and if by the existing law none did exist, his attention should be directed to the subject, in order to provide one, and he would bring in a Bill for the purpose. The defect in the case referred to, arose out of an act of the Legislature, which was passed with a view to amend and revise the law relating to Juries. The Common Law had nothing to do with the particular case in question. He trusted that what he had stated would prove satisfactory to the noble and learned Lord.
Lord Campbellwas extremely glad to hear that his noble and learned Friend had directed his attention to the subject; but he was quite certain, at the same time, that if the noble and learned Lord considered the subject further, he would find that the learned Judge's opinions were, that the right of challenge to the array was gone altogether, because the only grounds upon which that right was allowed by the Common Law were the neglect or unindifferency of the Sheriff; and as the matter was no longer under 228 the control of the Sheriff, but was taken wholly away from him, there was no challenge as far as he was concerned, whilst with respect to any error of the Recorder, there was not, as far as he could perceive, any remedy. He was greatly consoled by the assurance given him by his noble and learned Friend that he would direct his attention to the subject.