cess directed to any other officer; and even in his affidavit, made since the trial, which is, unsupported by any other, he does not state that this cause of complunt came to his knowledge subsequent to the trial; indeed the reason of his belief speaks the contrary, namely, his being the conductor of, what is called, a government paper, an officer in the militia, and in the revenue; which facts, it is presumable, he could not have been a stranger to at the time of the trial. strongly against him, where it has been attempted to set aside the verdict where the witness has been incompetent, of which the Court, and not the jury, are by law the judges, Ilvon and Ballard cited 7 Mod. 51, referred to 5 Bacon, was the case of a nonsent, and the Court refused to set it aside, although the sed, upon which the defendant relied, was sworn to be a forgery; and Turner and Pearte 1 Term Rep. 717 is much stronger than this, against what is applied for. An application Next comes that objection to the juror Perrin, was made for a new trial upon affidavit, that in answer to which, what I have already said, five of the witnesses produced by the party, respecting time, that the challenge should who obtained a verdict, were incompetent, have been made before the juror was sworn, and ought not to be examined at all; there and if a challenge had been made, there is not is an athidavit in answer, that the party who enough in the alavit, even supposing the called these witnesses did not know that there facts true, to support it. It is not sworn was any objection to them. Ashhurst J. said that he made any declaration respecting the they came too late after trial. Now there matter in issue, nor in malice, to the defen- their evidence was to be considered as a nuldant. 2 Hawk. P. C. 589, chap. 43, sec. 28, lity, that they never should have been exacited by Mr. Prime Serjeant. The trior's mined at all; not what credit they deserved, oath illustrates and is applicable, it is to try, whether more or less, which the jury are whether the jurors are indifferent upon the judges of, not the Court. And in that case, matter in issue. But I still resort to what I where the matter was of law within the power said before, the objection now comes too late., of the judges, whether competent or not, A third objection goes to vitiate the ver- though it was sworn that five of them were dict as unjust, founded upon false, on incredi- interested, and incompetent of course, yet the ble testimony. This is a question of great Court would not hear the objection because it extent, and of great consequence to the ad- came too late; and Mr. Justice Buller, a very ministration of criminal law: the object de- great lawyer, says "there has been no insired is, to be let in, it is said, to impeach stance of this Court's granting a new trial, on farther by new witnesses, the credit of per- ¡ an allegation, that some of the witnesses exasons already attempted to be discredited on mined were interested, and I should be very the trial. If that were yielded to, no verdicts sorry to make the first precedent." "There for misdemeanors against the traverser could never yet has been a case in which the party stand, as long as a man could be found to has been permitted after trial to avail him Į swear that the witness did not deserve credit. self of any objection which was not made at It would be a direct and general invitation to the time of the examination." Mr. Justice such perjury as could not be punished by an Grose, in the same case, says, "In the first indictment, and would tend to withhold a place it does not clearly appear, that the part of that evidence by which the witness on plaintitis did not know of the objection at the the first trial might be impeached, and hold time of the trial. It is sworn very loosely; out an invitation to persons to offer them- and if they knew of it, at that time, that selves after the trial, to discredit the wit- would he a decisive reason for refusing to al nesses with safety, perhaps profit to them-low it now."† And now I shall apply this selves. It would wound the constitution deeply, by transferring the jurisdiction of the jury to the Court, and would totally overturn the trial by jury. It is admitted by the defendant's counsel, that no case has been found to authorize it, and the case cited 7 Mod. 57, has been searched for, and cannot be found. I have found a case in p. 54, which, so far as it goes, is against him; it would be strange and unjust if it could; but there are other cases, which go much more See the note in p. 1135 of this Volume. But the reader on reference to Mr. Curran's argument, will observe that 7 Mod. 57, was cited by Mr. Curran to show that "where there was good ground of challenge to a juror not known at the trial, it was sufficient cause for setting aside the verdict," which does not seem to be the question here contemplated by the learned judge, opinion, in this case, to the last objection See the note in p. 1148 of this case. in case of incompetency, where the witness ought not to be permitted to stand upon the table, or open his lips,-there after trial, the Court would not set aside a verdict upon that ground. But see what Mr. Rowan's affidavit Is, even if it could be listened to as to his own innocence; he says, he heard the evidence of Lyster and Morton, charging him with having read, distributed, and published the paper in the information, in Cope-street, at Pardon's fencing school, and positively swears, that their testimony was utterly false. Now first I say, that no trial or verdict was ever set aside, in a case like this, upon such an affida vit. It is at best the oath of the party to his own innocence; but it is not so much; here he does not deny the facts, not one of them; and let me take the words "utterly false" in every sense they convey; if he means false in every thing, then he has surely made an affidavit stating that he has heard the evidence of Lyster and Morton, charging him with having read, distributed, and published the paper, that, he says, is utterly false. To use the expression of one of the judges in that case I cited, it is a great deal too loose; the party swearing for himself does not even contradict Lyster: he does not contradict any one of these facts specifically. I will ask, could he be found guilty of perjury, upon such loose swearing, supposing it to be false? I should think not But it is material to another part, that this is the only part of their testimony which he has contradicted, and he might, when he undertook to contradict any of the facts, have contradicted the whole, or any other part, as far as the truth would justify him, at least upon hearsay or belief; he has not done that. But it is urged from the bar, upon a point not stated in the notice, but from the recollection of one of the counsel, unto which no affidavit refers, that I assumed to the jury the fact of a meeting, at Cope-street, of 150 men, at which Mr. Rowan was present, which he has not contradicted: upon that I have built a strong inference of guilt, upon the presump tion arising from their silence. Here I will state, as accurately as I can, what I did say; what I did not say, which has been imputed to me; in which I have the concurrence of my brethren as to their recollection. I told the jury, and meant to have told them, as far as my recollection serves me, that the observation made by one of the prosecutors counsel, indeed by two of them, first Mr. Attorney-general, and afterwards Mr. Prime-serjeant, struck me as obvious and strong, viz. that the defendant did not contradict by a single witness, any one fact sworn to against him; I then stated some of the leading facts sworn to, those facts, as I thought, easiest to be contradicted, and those facts which brought with them, if they were true, the means of defence; for example, that there was a meeting in open day at a public fencing school, where from one to two hundred persons, many VOL. XXII. of them in volunteer uniforms, were sworn to have been present; this fact, I told them, was sworn to by two witnesses, and if the jury believed there was a meeting of the kind and number sworn to, it was to my mind, a volume of evidence; I say so still, that the defendant did not produce any of the persons to contradict any of these facts, or prove that he did not read, publish or disperse the libel in question. He has now made an affidavit, and see the power of perverting fancy: Gentlemen argue for an hour upon affidavits, because the facts sworn to are not contradicted, and they insist upon these uncontradicted facts as truths; these six affidavits, say the counsel, are strong and uncontradicted, and therefore the facts in them must be assumed; but on the other hand Mr. Rowan has made an affidavit, and he has not to this hour, ventured to contradict all the facts proved against him on the trial; and shall we not be at liberty in our turn, to assume upon this motion that he cannot contradict them? He swears he heard the evidence: he has not ventured to contradict any of those facts; he has not sworn that there was not a meeting of so many persons, nor any thing of that nature. Now I will state what the evidence was Lyster swore, that on the 16th December, 1792, he was at Pardon's fencing school, in Cope street, in the city of Dublin; that there was from one to two hundred persons present in scarlet uniforms; that Napper Tandy, Hamilton Rowan, and others, were sitting at a table; the witness went in from curiosity, and he was told by Mr. Rowan, to the best of his knowledge, that no man in coloured clothes could be admitted there. He does not contradict that conversation with this man that there was a gallery, to which he might go, that is not contradicted;-that Hamilton Rowan was very busy, and walked about with papers in his hand; these facts, let it be remembered too, that he swore upon belief and vague recollection to the best of his knowledge. I told the jury this was not evidence, and should be rejected; but he does not now contradict any of those facts. Then he goes to the publication. So it was with respect to Morton, what did I tell the jury? after stating the act of parliament which declares, if not gives, a power to the jury, to find upon the whole matter, which I told them they had a right to do; that the credit of the witnesses was with them and not with me; that they were to find upon the whole matter in issue, and that they were the judges of the fact, and the intention Did I assume any fact? No; that fact as well as every other, was to be determined upon belief or disbelief of the witnesses. Such may not have been my iden tical words, but such must have been my manifest meaning, and the Court approved of what I said. And I say now with certainty, I never said to the jury, that the defendant's silence upon those facts was to supply aný 4 F defect in the prosecutor's evidence ; I disclaim this motion, as the defendant's counsel desre, it. I did not assume the fact, nor did I mean we must abandon that very ground of ansor direct that the jury should take it for logy: the great principle is that, and that granted, that there was any meeting whatso- alone, which is recognised in Bright and ever. Enyon, 1 Bur. 390, alluded to and adopted a These facts were sworn to, like the others, many others, from the case in Styles to this by two witnesses, except the fact of publica- hour-has substantial justice been done! tion, which was the eriminal fact, and which Has the party who requires a new trial been was sworn to by one witness only; and so I manifestly injured? Upon what ground is it stated to the jury, that Lyster whose credit we are to presume an injury done to the trawas attacked, if they did not believe, I told verser? He has had fourteen months to prethem, they ought to acquit. I then left the pare himself. In trials for their lives, mear whole of the facts and credit of the witnesses have often not more than one, and very sels and the intention of the paper (if they be. dom more than six months ; he had fourteen; lieved the defendant published it) to the jury, -they, though confined and in prison, are who were, I told them, to determine upon the supposed to have time to defend themselves whole matter. in felonies of death-here the party at large, . But suppose the fact otherwise, and as fa- complains, invites, provokes the trial. Has vourable to the defendant as his counsel wished he been surprised? Has he wanted the aid ci to have it taken, it cannot avail upon this counsel? Has he been unattended with motion either in law, or justice, or fact, or legal friends and followers ? Look at the history of discretion First it makes no part of the no- the trial. What new defence has he alleged? tice: next it should have been objected to be- Has he, even bimself, contradicted the facts low: it was the duty of the gentleman who charged against him? No: from what then urged it now, and he was not remiss, to have are we to infer, that injustice has been done taken notice of it at the time: thirdly, it falls to him? It was said that whether by right of under the general rule that any objection by courtesy, by indulgence, or connivance, which could have been made below, and con- persons in his situation find a way to the tradicted or refuted by evidence, cannot af- matter charged against them. See how that terwards be taken advantage of. It might stands: there may be very good and sufhave been instantly answered, qualified, con cient and proper reasons, not to disclose the tradicted, or auhared to; but in truth, the name of the party swearing the information: general course of the detence rejected all idea to protect him from violence or corruption of of disproof; it was to justity that paper; and the party sworn against. How is this case ? standing upon that ground, it scorned to deny The very thing, which most deserves to be the publication, I take for granted; for no concealed, was made known to him and his attempt was made to contradict a single fact agent; for the person who is to swear aguins sworn to by one or other of those witnesses. him, is disclosed to them, they trace him to But, upon this motion, how is it to affect the place of his birth, they inquire into his our discretion? Does it appear now that any family and connexions, they follow bin of those facts are contradicted? What are we through his private bargains and engagethen to judge of? Is it that manifest injustice ments, they become acquainted with his inhas been done, which is the principle that discreet, and perhaps immoral conduct; shall governs motions for new trials? Is there any we presume, that this man, whose name was thing like a new substantive defence set up, then at the foot of the examination, was uswhich has not been made before? Is it said known to him? Where are we to look for by any of the persons who have made affida- that substantial justice, by which he can provits here, or by the traverser himself, that he tect himself on another trial? I find it no can by witnesses contradict these facts? Not where; I tind it not in the principle of the a word of any such thing; and if we are to criminal law; I find it not in adjudged caves; draw the same inference from the silence of I find it not in the sound discretion of the the affidavits, which was drawn from not an- Court. He has had every possible indusswering them in the arguments of the case, gence, he has had every latitude of dcteare see how it stands; what he has not contra- by justification (at the least as far as it dicted he has admitted ;-but I have no occa- would go), by insinuation, by address,-I be sion for that lieve, and hope he has had; and I trust, in This motion is addressed to the discretion this free country, I am not mistaken when I of the Court; that is to the Court bound by suffer counsel to go as large, and take a the curb of legal discretion, for we cannot wide a range as decent language will adnut, indulge our feelings, be they what they may, to convey every sentiment which may assist and legal discretion is as well ascertained as his client: can we say the merits are not any express point of law; adjudications are tried? Is it said the merits are in his favour? evidence-- we are obliged to follow these, as But see, as I said before, how pervert. evidence of what the law is. It is said there ing imagination can change the most comis an analogy respecting the granting of new mon maxim : is it alleged that the juror, who trials, between cases of misdemeanors and is complained of, exerted himself to influence civil cases; and yet, in order to determine the others? That this was a case of a struggle jections at the trial, is a strong ground to prevent the Court from interfering, especially where the traverser, in no part of his affidavit, swears he is not guilty, or has a good cause of defence to make upon a new trial, which, in my opinion, are two material grounds in granting new trials. amongst the jury? Oh no; but the case was so clear, that there was not a minute a man in the deliberation. Then where there is not a struggle, and it is not said that he did act partially, or work upon the other eleven, or that by his unjust means the verdict was obtained; yet we are desired to step out of our way to go unconstitutionally into the jury box, and say that they should not have given credit to the witnesses, where the constitution gives them a power to decide. I am therefore clearly of opinion, that the verdict cannot, upon any principle of law or justice, be disturbed. Mr. Justice Boyd. This is an application to set aside a verdict upon an information. My lord Clonmell has stated the affidavits so much at large, that it is not necessary for me to take up much time. The counsel in the argument rested the case, 1st. Upon the declaration of a juror against Mr. Rowan. 2d. Upon the partiality of the sheriff. Sdly. The incredibility of Lyster the witness, and Lastly. The misdirection of the Court. As to the declaration of the juror, there are two affidavits which state it, but it was upon a common subject; it had no relation whatever to the matter in issue; it does not appear that this declaration was malicious, and the authority in Hawkins establishes that a declaration to prevent a man from being a juror, must be pertinent to the matter in issue, and malicious. The declaration of Perrin, in my opinion, if laid before the Court in proper time, was not a ground of challenge in point of law; and I must conclude it now comes too late; it was an objection merely to the favour; it is a matter in pais, to be determined by triors appointed; and here the Court are desired to assume the province of a jury, and try it here. But I think it now comes too late. In this case it does not appear, that justice has not been done, which is the true ground of setting aside verdicts. It is no where suggested, that the misconduct of this juror was the cause by which the ver dict was obtained. The shortness of the time that the jury were withdrawn, is a strong ground to presume they were not persuaded by him. 2dly. As to the charge of partiality in the sheriff, Mr. Rowan in his affidavit speaks only as to belief; he does not charge it positively. The same observation I have already mentioned, goes to this point; there was not a challenge taken to the array, on the ground of partiality in the returning officer. This being an application to the discretion of the Court to set aside the verdict, the question is, has justice not been done? The charge is general upon belief; and yet the affidavit does not say, that the sheriff did procure a partial jury, or that he could procure it; and in this case, as in every other, the not making ob As to the incredibility of Lyster's evidence, I must observe that evidence was offered at the trial, which shows to demonstration, that the defendant was prepared; he produced three witnesses against Lyster, for he did produce Blake, Smith, and Hatchell, their evidence and Lyster and Morton, all went up to the jury; the jury have found their verdict; and this application is made to the discretion of the Court, to set that verdict aside and to grant a new trial, to let in farther evidence in support of that which the jury did not credit, that is, of the witnesses who charge that Lyster ought not to be believed on his oath. There is no instance in the books to be met with to warrant such a proceeding.There are instances, where a court has refused to set aside a verdict, on the ground of incompetency of the witnesses on the former trial, because the defendant had taken a chance of a verdict in his favour. Suppose a new trial granted, what would be the consequence? Lyster would be examined before another jury, with the suspicion of the court of King's-bench falling upon him, that he was an incredible witness. As to the misdirection of the judge;-I attended to every word, as I always do, to what falls from his lordship; I recollect the substance of the charge, it had my entire approbation, it was, that the defendant did not contradict, by a single witness, any one fact charged against him. His lordship stated several of the facts, which he thought might be disproved, if not true; the meeting was at noon-day, in a public room, and 150 persons present, in uniform; the evidence of Lyster was confirmed by Morton, but Morton had not the paper, but heard the expression, “ citizen soldiers, to arms." On the whole the evidence went to the jury, but there was only one witness to the fact of publication. If the jury believed there was any meeting of the kind and number that was so mentioned, the defendant did not produce a witness to contradict one of the facts so alleged. His lordship did not say, that the defendant's silence was to supply the defects in the prosecutor's evidence. All the facts were left to the jury by the Court, and each of us made such observations as occurred to him. By the verdict the jury, it appears, did give credit to the witnesses, and did believe there was a meeting. The description given of the meeting was, that there were 150 persons present. These were strong circumstances to go to the jury. If you believe there was a meeting, not one of those persons has been brought forward to contradict these assertions. know of no judicial determination of any case I similar to the present. In this case, the traverser does not swear he is not guilty. If this were a civil case, here is not good ground for a demurer C. the whole, I concur with lord Clonmel, that this verdict ought not to be impeached Mr. Justice Downes. This is an application to set aside a verdict of guilty in a criminal case, on several atidavits. I hope that it will be recollected, that the affidavits have been read without opposition from the counsel for the crown, and that the Court have not given any opinion whether after a ver dict of guilty in a criminal case, the defendant has a right to have such affidavits read,, as have been produced in this case; but as they have been read, I shall examine the grounds of the motion, which is founded on them. 1st. The verdict is sought to be set aside (according to the notice) on this ground, that it is contrary to justice, founded on false testimony not deserving any credit; those are the words of the notice. This is a direct appeal from the jury to the Court, in a matter solely within the province of the jury; the Court cannot decide on the truth or falsehood of evidence, and yet we are desired to set aside this verdict on the ground that the evidence was false, and that the jury ought not to have believed the witnesses. witness; it is not suggested that the defendant can produce any evidence to that effect. But two witnesses can be produced, who will swear, that they think he ought not to be believed; and to let in these opinions, we are desired to set aside the verdict; I say, to let in these opinions, for the particular facts of perjury, which they state, could not be suffered to be proved at that trial. And I think it is at least doubtful, whether if they had appeared on the trial, which has been had, they could (from any thing appearing on their atidavits) have given any evidence at all; for neither of them speaks as to Lyster's general character; whether that be such as not to deserve credit in a court of justice, and it is with respect to his general character only, that a witness can be prepared to defend himself, and not against the opinion of an individual. But if it were admitted, that a verdict might be set aside, where a party is surprised by the production of a suspicious witness, who he had no reason to suppose would be examined against him; yet this is not that case; here it is evident, that there was no such surprise: the defendant knew before trial that Lyster was his prosecutor, he was prepared at the trial to impeach his credit; he examined three witnesses for that purpose, the jury have weighed and decided upon that credit; and can we say, after the credit of this witness has been examined by the jury, that particular facts, sworn by him, in some of which he was corroborated by another witness, and contra No fact sworn to by either of the witnesses for the crown, on the trial, was then contradicted by evidence, no new witness is discovered who can, in case of a new trial, contradict any fact sworn by either of those wit-dicted by none, ought not to be believed, be nesses. The truth of their testimony as given on the trial, is even now contradicted only by the afidavit of the defendant; the Court can make no distinction between defendants, and | no instance is, or I believe can be shown, where the oath of a person found guilty, contradicting the witnesses examined against him on the trial, has been allowed to shake the verdict that convicted him: and if it should be suffered to do so, I believe few convictions would stand. But it is said, that if the verdict should be set aside, new light will be let in upon the case by the evidence disclosed in these allidavits. But what is the new light that is suggested? not upon the merits of the case; it is not alleged that any new ground of defence is discovered; no affidavit of any of the new witnesses says one word of the matter in issue in the cause, and the defendant himself does not in his affidavit state, that if this verdict, shall be set aside, he can at a future trial produce any evidence, as to the fact with which he is charged. But it is said, that new light can be thrown upon the defect of credit in Lyster, the principal witness for the crown. Not by showing that any fact he swore was false, the best mode of discrediting a cause persons come forward and state that they would not give him credit on his oath? It would in my apprehension be a most mischievous decision, if the Court were to do so. And I know not how any verdict could ever stand, if it were sufficient ground to set it aside, that new witnesses come and tell us, that the former witnesses ought not to be be lieved. My lord has cited cases on this point, which I need not take up time in again going over. As to the declaration sworn to have been made by a juror Mr. Curran cited a case, which cannot be found in the book referred to; but supposing it has been decided, that a cause of challenge not known at the trial, is sufficient to set aside a verdict, I cannot feel, that mere general declarations, though severe ones, relative to the defendant's political conduct, made long be fore the trial, upon a conversation, no way concerning the matter in issue, would have been sufficient cause for a challenge. I can not think that such general declarations could form any ground of challenge, for if they would, suppose a rebellion in the country, no loyal subject could be a juror on the trial of any of the principal persons concerned in it. As to the objection grounded on the conduct of the sheriff, it is enough to say, that no particular act of partiality is stated, and that |