RE 2 AT

LES PREMIZRES PROCEDURES

La première procédure qui sut lieu devant le tribunal par les avocats de Ïs défense fut ie 11 octobre, à l'ouverture de lu Cour, une motion de M. Fitzpatrirk, appaléé en droit “a challenge to the array.” Comme je l'ai dit ailleurs, trois jurés étaient entrés dans la salle der ‘lélibérations, sans avoir entendu l'adresse du juge et après que lours collègues eussent commencé leurs travaux, MM. Fitzpatrick, Lemieux et Greenshiekls s'opposèrent vigoureusement à ce qu'il fût pormis au jy «last, composé de faire un rapport. M. Fitzpatrick parla, on - + termes, Je crois qu'il est préférable de publier dans la langue qu'il les à faits los discours et les motions du savant avocats

M. Frezparricx. 1 appear for Mr. Ernest Pacaud, who is comrmibed to stand his trial at the present term of the Court of Queen's Bencü on à ch:rge of conspiracy ; and, before the Grand J ury make à return oa any of the bills presented to them, Ï wish to draw the attention of the Court to a condition of things which 1 inay fairly qualiy as somewhat extraordinary. When the panel 6f Grand Jurors was called on Monday, the 10th October, at the opening of ‘he Uour!, seventeen Grand Jurors appenred and were sworn. A foreman was then chosen, and the usual oath was administered to hin «nd + the other Grand Jurors in the regular way. The Grand Jury was then chargod and instructed by the judge who presided, as to the nabure of their duties and the subject matter of the different indictmente to be submitted for their enquiry was explained to them. Subsenuently an interpreter was sworn to assist them during tbe examination of the witnesses, and constables being chosen and sworn by the Court to attend on them, they were sent to their room. Several indlictments, and among them, one against my client, were

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then submitted to the Grand Jury as thus constituted. This Grand Jury now comes into the Court to return some bills ; and instead of finding it made up of the seventeen jurymen who appes péapon the panel, and were sworn, charged and empowered by 46h deal with the indictment against my client, we ateWace twenty jurymen, three of whom must have ben properly added to the others. T say illegally at

to my mind it is perfectly clear that the F2 Jury was SA when the seventeen jurors above referred to appeareû upon the panel and were sworn and charged by the jrdge ; and it was not in the power of the Crown or of the judge to add to this Grand Jury at any subsequent period of time however short.

The form of osth administered to the foremun and other members of the Grand Jury, necessarily implies that each grand jurcr must be present when the oath is administered to the foreman, and that the swearing of the foreman and of each of the grand jurors is one continuous act. Archbold says, speaking of grand jurors :

“ They are called, sworn and charged, and as each grand jurur ‘“ answers he goes into the jury-box. The nuruber must bo A6 leust “ twelve and must not excéed bw ty-three. They are sworn in this “form, and first the foreman thns: You, as foreman of this de inquest shall diligently inquire and true presentment make on all “ such matters and things as shall be given you in charge, Fhe # Queen's counsel, your felluws and your own you shall keen secret. “ Yot shall present no man fer envy, hatred or malice ; neither ‘ shall you leave any man unpresented for fear, favor or affection or “ hope of reward, but you shall prebens all things truly as they ‘“ come to your knowledge, according te the best of your under- “ standing. So help you God.

“The remaining jururs are then sworn thus:--The same oath “ which your foreman has taken upon his part you and every of *“ you shall well and truly observe and keep on your own parts. So “ help you God.”

And further, Archbold says :-—“ The form of oath administered “ to the grand jurors is of ancient origin and should be substantially + observed.”

On these facts the first question to be considered is whether or

- mot Mr. Pacaud, before an indictment is found against him, has the

right to appear by counsel and draw the attention of the Court to this alleged irregularity in the formation of the Grand Jury.

On this point I refer to Bishop, Criminal Procedure, Vol. 1, par. 877, where it is stated :-—‘ That if a person is held to answer to an “ indictment which à particular Grand Jury may find, he is entitled ‘ to interfere in the process of its organization.”

Furthermore, Hale, Pleas of the Crown, Vol, ?, p. 155, foot note, says : ‘ Objections to the sufliciency of tie grand jurors must be ‘* made before indictment found, ”

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