Mr. Attorney General.-This is quite a departure from the matter of inquiry. The challenge to the array is, that the sheriff did not perform his duty with impartiality, but returned the jury at the nomination of the party concerned. Mr. Burne. My object was, to prove the fact in issue, and if I were to disclose how I meant to prove the fact, my object might be defeated. Lord Chief Justice Downes.-Surely the evidence ought to bear directly upon the sheriff. Mr. Burne. That is my object. Who are the persons who told you they were summoned ? Mr. Burne.-Do your lordships think the question ought not to be put? Lord Chief Justice Downes.-We are all of that opinion. Mr. Burne. My lord, I give it up. Mr. Justice Day.-There is no ground toshow why the declarations of other persons should affect the sheriff. Lord Chief Justice Downes.-Your own Mr. Attorney General.-My lord, I must ob- good sense must have told you, long since, that ject to that question. . Mr. Burne.-The question is respecting a matter of fact, bearing, as I conceive, upon the issue. Mr. Attorney General may not see the bearing of the question; but I have my motive for putting it. it was not relevant to the issue. Mr. Burne.-My lord, I give it up. William Kemmis, esq. cross-examined by You have said, that on Friday se'nnight, you delivered the writ of venire to the sheriff?—I did. Pray, was it not your duty, to issue the venire for the return of the jury?-Certainly it was. Lord Chief Justice Downes.-I do not see' how a conversation between the witness and a third person, can bear upon the conduct of the sheriff:-that third person may be brought forward to depose, whether he knows any thing concerning the conduct of the sheriff; but this witness is not to relate what passed be--On the first day of term, as I think. tween him and other persons in the absence of the sheriff. When was the writ returnable to this court? And it bore teste as of the last day of the preceding term?--I believe so. Am I to understand, that you thought it the Mr. Burne.-My lord, if the objection be duty of the sheriff to return the venire upon allowed, I cannot proceed. M Justice Osborne.-I cannot see how the question bears at all upon the sheriff. Mr. Justice Day.-State in what manner the question bears upon the inquiry; we cannot allow a fishing examination of this kind to consume our time, when there is much important matter to occupy our attention. Mr. Burne-My lord, if I mention in what way it bears upon the issue, in hearing of the witness, my object may be defeated. [The Court thereupon desired the witness withdraw.] the day mentioned for the return of it ?—I did, when I had the conversation with him. As in an ordinary case?-Yes. Mr. Burne.-My lord, I beg pardon for interrupting Mr. Attorney General.-I wish to ask a question or two more of the witness. the street, that they were summoned. Did you You said that you heard from some persons in come to a knowledge of the panel, or any part of it, in any other way, between Friday se'nnight and this day? Mr. Attorney General.-My lords, I object to this examination. If he got a knowledge of the panel from the sheriff, they may give that in issue, and let it have what effect it may : but, as to his getting a knowledge of the panel in any other way, it cannot bear upon this :issue. Did you get any knowledge of the panel from any other quarter than from the jurors who spoke to you in the street?-Partly, I did. In what other way did you get that knowledge before this day?-I got a list of names who, I understood, were to be upon the jury; some of whom are returned. Were any of those persons called this day? -Some of them were. From whom did you get that list? Mr. Attorney General.—I think not; but it will be matter for the consideration of the Court: it is of no consequence from whom he got it, unless it was from the sheriff himself. there were fifty names in it?—I think there were fifty names in it. Were there not more?-There might be more. I do not recollect them. Do you recollect, whether there was any person present when you received this list, except sir Charles Saxton and yourself.-No, I do not think there was. How did it happen to come into your possession? Did you go to sir Charles Saxton for the list, or did he send for you?-I was there about some business. I do not recollect exactly; and he gave me that list. Did he know in any way, or had he heard, that the sheriff refused a list to you?-Not to my knowledge. Were all the names in that list written in the same manner, without any marks annexed to any of them?-There were no marks, except the number annexed to the names, but I am not sure that they were even numbered. You say, you last saw that list in Kildarestreet?—Yes. When did you see it last?—Yesterday. . Where did you leave it?-In my father's office in Kildare-street. Will you have the goodness to look among Mr. Justice Daly.—Suppose he says, he got your papers, and enable yourself to say posiit from the sheriff. Mr. Attorney General.—I have no objection to his being asked that. tively whether it be in Court?—I did not put it among the papers. Will you be pleased to examine your bag and see?-(After searching his bag)—It is not Mr. Burne.-From whom did you get the among the papers. list?- got it from sir Charles Saxton. Have you that list now?—I have not. street. In your father's house?—Yes. In your father's possession ?-In my own possession. Then it is in your own possession?—I cannot say positively. You cannot say, positively, but it may be in Court?-1 cannot. Give me leave to ask, upon what day you got that list? It was on Friday last. You got a list of the jury?—Not a list of the jury, but a list of names, some of whom are on the jury. Now, Mr. Kemmis, can you recollect where you received that list? I received it at the Castle. Sir Charles Saxton holds some office there? -Yes. He is under secretary, I believe?—He is. Was it in his office?—No, it was in a room near it. And you received it from him?—I think so. Do you recollect what number of names were in that list ?—I do not. Can you take upon you to say, whether there were one hundred?—I do not think there was, nor near it. Mr. Kemmis, I wish you would take the trouble of înquiring, whether it be in Court, or that you would send for it. Can you say, Did you get any copy made of it?—I did not. Do you know whether any copy was made of it?--I was copying some of the names, but it was not copied through. Did you ever shew it to any person?—I did not. Before this day?—I did not shew the list. Or the copy, or any part of it?—No, I think not. I asked questions, with regard to certain persons, but I did not shew the list. From whom did you make inquiry?—From several persons. Mention their names? Mr. Attorney General.-My lords, if this examination can have any relevancy to the issue, let it proceed. Surely it is the duty of the solicitor for the crown to inquire into the characters of jurors who are to try the cause. Mr. Burrowes.-My lords, this examination is not only not contrary to law, but is absolutely necessary to the pure administration of justice. In order to consider whether the evidence be relevant, or not, I agree, that it is necessary to consider what the issue is. It is an alleged collusion between the returning officer and the crown, through the medium of the solicitor for the crown, or any ministerial officer. If the sheriff gave an advantage to any party which was not warranted by law, the triers cannot hesitate upon the finding of their issue. Then how does it stand? My lords, I really feel, that I shall satisfy the Court, and that the attorney general himself should call for the inquiry. What appears? The sheriff affects a prudence-or a prudery-and he refuses to give a copy of the panel, or to make a return, which he was bound to do, to enable both parties to investigate the grounds of challenge to jurors. Why, there is evidence of rank duplicity and collusion-that the statement of the sheriff was a mockery-a pretence-a trick, and management, to enable the solicitor for the crown to make this excuse. What stronger evidence can there be, than facts tending to show that the statement made to the crown solicitor was false and unfair, that he affected to stand indifferent between the parties, and would not make a copy for one of them, but, forthwith, there comes a copy from the secretary's office. This, we rely upon, is evidence to go to the triers. Mr. Justice Daly.-But the inquiry is, with whom do you connect the facts respecting particular jurors. The evidence does not appear to me to go to the issue before the Court. Mr. Burton-My lord, I wish to suggest this; the question is, was there any communication with any person respecting the jurors returned upon the panel? The challenge is, that the jury was returned at the instance of the solicitor for the crown. If he interfere at all in that return, the issue must be found for the traverser. When is the panel returned? Only this day: and between the time of the delivery of the venire, and the return, a list gets into the hands of the solicitor for the crown, and he makes inquiries respecting the persons whose names are in that list. Is not that interfering with the return of the panel? The confusion arises from supposing, that the return was previously made. The return might have been made to sit Charles Saxton: but, certainly, was not made to the Court; and it is from the conduct of persons in the interval, that we are to show an interference with the return, which is directly relevant to the issue now depending between the parties. Mr. Attorney General.-Do your lordships think, that the witness ought to answer the question? Mr. Justice Osborne.-What is the exact question? Mr. Burne.-My lord, the witness said, that he had a communication respecting this list. I ask him, with whom he had that communi. cation. Mr. Justice Day. That appears reasonable. Mr. Attorney General.-Can the conversation between the witness and the person with whom the witness communicated, relative to the qualifications of jurors, have any bearing, remotely or otherwise, upon the issue? Mr. Justice Osborne. There is only one way, in which, as it seems to me, it can. The return not being made till now, any question tending to show, whether there was any change made, in any one of the names, between Friday and this hour, may bear upon the issue. All the particulars cannot be examined into at once, but it may be shown, that particular names, which were not upon the panel upon a former day, are on it now. Lord Chief Justice Downes.-There is a possible mode of bringing it home to the sheriff. Mr. Johnson-There is more than the sheriff concerned. Two parties are charged, the sheriff and the solicitor. Mr. Justice Osborne.-It may, by possibility, be brought to bear upon the issue: I do not say that it will. Mr. Burne.-With whom had you any comCharles's list? I had a communication with munication respecting the names in sir one of the aldermen. Mention his name?-Alderman Carleton. Had you with any other?-I might have asked several whom I met, respecting the names appearing in the list. Do you not recollect the name of any other? Yes, I asked Mr. Hall some questions. What Mr. Hall?-I do not know his Christian name. What is he?-He is an attorney; he had an office in the city. You mean Mr. Hall, of St. Andrew-street? Was he not solicitor to the police establishment?-Mr. Hepenstall, I believe, was, and Mr. Hall lived with him. Do you recollect the name of another person with whom you communicated?-It is impossible for me to recollect. Do you mean to say, you do not recollect?→ I do not recollect. Are all the names which are in that list included in the present panel?—I do not think they are. There are more names in the panel, than were in the list. But are all the names which are in the list, now in the panel?-To my recollection they are, as I heard them called. Can you send for the list?-There is no person let into the office, except my father. You can send the key, and have the list brought? Mr. Justice Osborne.-You may examine to the contents of it. Lord Chief Justice Downes.Or shew that you served a notice to produce it. Mr. Johnson.-We did not know of it: the matter came out incidentally on the examination. Are you certain, that all the names in the list are upon the panel ?—I cannot be certain without comparing them. Mr. Burrowes-My lords, this is matter of very important consideration; it concerns the purity of the administration of justice, and the return of jurors. Lord Chief Justice Downes. It would be very desireable to have the paper, but I the loss of time. regret a mere mark, and therefore I cannot swear to it. How many different kinds of marks are there? There are numbers, crosses, and strokes. All the writing which is added to the name, Mr. Thomas Kemmis. My lord, I have the is by your father?-All that I see of writing is list, and will produce it. my father's. [The list was produced, and handed to the which you annexed marks and numbers to the What was the meaning, or purpose, for witness.] Is that the original list? It is. names?-To see that they were, in my mind, proper, loyal men. Is not the cross the mark of loyalty? Thomas Kemmis, esq., sworn.-Examined by much from the issue. Mr. Burne. You produce this list ?—I do. Where did it come from?-Out of my pocket. How did it happen, that you searched in the desk for it?—I did not really recollect at first, that it was in my pocket. What time did it get into your pocket?-I dare say I have it these two days. (To Mr. William Kemmis. Are all the names in the panel which are in the list? cannot tell without comparing the list with the panel. What is the first name upon the list?-The first name is sir Thomas Gleadowe Newcomen. He is not on the panel?-I believe not. Who is next?-Mr. Goff. Who is next?-Mr. White. He is not on the panel?—I believe not. Mr. Burrowes.-My lord, the best way would be for the officer of the Court to hold the panel in his hand, and compare it with the list, while it is read by the witness, and in doing so, he will have to attend to two things; first, whether there are any names in one, which are not in the other; and secondly, whether the names that are in both, stand in the same order. [This was accordingly done, and it appeared, that there were fourteen names in the list, which were not in the panel-that there were one hundred and fifteen names in the list, and one hundred and twenty in the panel, and that there was a considerable inversion in the order.] Examination of Mr. William Kemmis, resumed by Mr. Burne. Do you know in whose hand-writing that list is? I do not. There are numbers annexed to particular names, and pencilled marks; who made these numbers ?-I did Do you see any other marks to the names? -I do. Who made them?-I might have made some of them, and my father made the rest. It would seem unaccountable, that you can swear, positively, to your father's marks, and not to your own?It is not hand-writing; it is Mr. Goold.-My lord, the return was only made this day; and these marks were made before, which shows the management that has taken place about it. each of the names?-In making abstracts for Mr. Burne. Why did you put numbers to myself, and my father, I may have numbered them. For what purpose did you make abstracts?— For the purpose of making inquiries concerning them? There are the numbers, 1, 2 and 3; how did it happen that instead of the No. 4, you jumped to that of 27 P-I cannot say why. When did you make that number?-I do not recollect particularly, It must have been since Friday. Was it on the day you got the list from sir Charles ?-I believe it was. cannot recollect. When did you make the last number?-I Good God, sir, you got the list on Friday, have intervened, and you may take your and do not recollect the time. Two days only I believe, I put some choice: Was it on Saturday or Sunday ?— yesterday. numbers to it How did it happen that you went from No. 3 to 27?-I cannot recollect exactly, why I did it. Why does No. 4 come after No. 27?-Irectly or indirectly, with respect to this recannot say. You put it there?--I believe so. It was either on Friday, or Saturday, or yesterday; and you cannot say why you put it there?-They were according to a list which my father and I were making. And it refers, I suppose, to the order in which you and your father were making out the list; where is that other list?—I dare say my father has it. Mr. Burne.-I beg to ask Mr. Thomas Kemmis a question. Where is that list which your son says you have? Mr. T. Kemmis.-Am I bound to answer that question? I am sworn to keep the secrets of the crown. Will it prejudice the party?—I will not determine that. Mr. Goold.-You had better withdraw, and consult some of the counsel for the crown, whether you should answer?-No, sir, I am as good a judge of that, as you are. Mr. Burne. Do you think this a secret of your client?-Every thing which comes to my knowledge respecting the conduct of this prosecution, I think I am not bound to disclose; at the same time, if the Court order me, I will answer the question. Mr. Burne.-My lord, the question is, where is the list which he and the son made out, as is stated by the son? Mr. Justice Day.-State how the question applies to the issue ;-for I have been at a loss, this half hour, to see how the examination bears upon it. Mr. Burne. My lord, that is not the ground upon which Mr. Kemmis puts the objection: he knows the relevancy of the question. turn;-whether it was suggested, that any man should be put on the panel, or left off. With respect to that, we defy all investigation. But the inquiry sought to be persisted in, is not only not for the purpose of this issue, but goes to affect the right of the client to have his secrets kept by the solicitor; they are the proper secrets of the client, and cannot be disclosed by those whom he has employed. Let the counsel on the other side ask every question that leads to the point directly in issue. But as to the instructions of the solicitor, or what passed in his office, it is striking at the foundation of all that confidential intercourse which exists between counsel and client-between attorney and client,—if the Court will not interpose, and make the distinction. Mr. Solicitor General.-My lords, I apprehend, that the objection to answer is perfectly whose counsel or attorney is called as a witwell founded, as the privilege of the client, ness. In the present case, it is the anxious wish of the counsel for the crown, that there should be a most jealous investigation of the' matter of the challenge-namely, that this panel was nominated by the solicitor for the crown,-or that any collusion was used in the formation of it, between the sheriff and the solicitor for the crown,-should be investigated and probed to the bottom;-and I speak the that if the counsel on the other side should opinion of us all upon this subject, when I say, now drop this inquiry, we will institute and persevere in it. We claim no greater privilege for the solicitor for the crown, or for his client, than the law gives to every client-and for the client to the solicitor. It is the duty of a solicitor or attorney of a party, by every means, to prepare himself to challenge individual jurors, when the trial shall come on. If, in that preparation, matters are communicated to him, of which he takes notes, and does not think himself at liberty to disclose them surely an inquiry into them is not ad idem to an inquiry, whether the panel was corruptly formed or not.-So far as that inquiry can extend we make no objection;-whether there was any interference, directly or indirectly, in the formation of the panel-let the examination take its range.-But if the solicitor for the crown obtained a list-true or incorrect-of the names of persons who were probably to be returned on the panel, and conferred with his partner, and they consult together, with respect to what individuals they will put by, or whom they would wish to have upon the jury in preference to others-that is matter in the proper discharge of their duty, and: whatever comes to their knowledge in pursuit Mr. Attorney General.-My lord, I permit of their inquiries in that respect, is not a subhim to answer to that:-but they have no ject of judicial inquiry. Every thing which right to inquire into his motives, or from whom can be examined into respecting the formahe made inquiries. The sheriff may be tion, or preparation of the panel, is open to in examined-Sir Charles Saxton may be ex-vestigation. But after a copy or list of the amined-whether any influence was used di- panel, formed by the sheriff, has been obtain Mr. Attorney General.-As far as the crown is concerned, I advise Mr. Kemmis to answer any question, whether he, directly or indirectly, nominated any person to be inserted in the panel, or corrected it, or to have any names omitted, or that any practice was used to procure a return of the panel, or to invert the order of names in it: but if the gentlemen persist in ransacking the conduct of the solicitor for the crown, as to the mode of making inquiries respecting persons, who, he was informed, were to be on the panel, I must object. Mr. Justice Daly. -If the witness negatives what you now state, he has a right to say, that he shall not answer farther. |