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REP PL IT GARAGE le STI TS

Prpibse ge

The second question to be considered is as to whether or not the ‘objection 38 to be taken by way of a challenge to the grand jurors o by plea in abatement after indicbment found.

On this point T refer to Bacon’s Abridgement, Verbo Juries letters À, : to Hale, Pleas of the Crown, Vol, 2, p. 155 ; 2 Hawkins, P. CO. 307. Further, JT refer to Waterman’s Notes on Archbold’s ‘Criminal Practice and Pleading, Vol. I, p. 5%, where it is stuted : ‘A person charged with a crime may challenge any number of the “ Grand Jury.” And, further, © The law on this subject, as laid “ down in Hawkins is that any one under persecytion for # crime » ‘ may before he is iadicted challenge any one-of the persons returned

‘on the Grand Jury. ?

Yst. Chitty, p. 30 # TF a man who is disgualitied be returned “ be may Le challenged by the prisoner before the bill is presented.”

1 have been able to find but one case, that of Rex vs Sheridan, -21 State Trials, p. 545, in wbich à contrary cule was laid dowa,

That case was a State prosecution for à political affense in freland ‘in 181E,; and in this respect bears à close resemblance t6 the present case ; but that is not à réason why the rule there laid down by ‘three out of four judges should he accepted againse the unanimous “opinion of the text-writers, T huve gone through the books and do not Sod that any of the modern Uriromal Law writers accept the rule laid down in Sheridan’s case. On the contrary, à long series of unbroken decisions in the United States Courts adlopt tks rule laid down in Chitty, Hale and Hawkins.

Admitting that differences of opinion exist on this point, to use the words of Bishop, I say : ‘“ There is oné principle which must be ‘ borne in mind, viz. that where à wrong has been done, the partÿ “who suffered from iv should be permitted to :nd in some way ‘: redress, ”

In this case a wroug has been done. Criminal authors such as Hawkins, Bacon, and Hale with the universal practire in the Tnited

‘States point to a challenge as being the proper course to adopt to redress the wrong ; anû but one case, that of Sheridan, suggests that a plea in »batement is the proper course, In this case, however, it is impossible for me to accept the suggestion that I plead in abaterent, because Archbold says, p. 125 : ‘ The judgment for the ‘ Queen upon à plen cf abatement in misdemeanors is final and the Dfendant eannot plead over. ”

Such being the law, as stated by Archbold, I feel that L would improperly imperil my client’s interests 1f I were to adept the course suggested in the Queen vs Sheridan, as judgmert against my clieat on this-point would be equivalent to a plea of guilty on the change.

Referring now to the merits of the challenge, 1 wish co remark chat it is à proceeding adepted by the counsel of the defendant only ; but 1 take it that in a vase of this sort it :s the duty of counsel ta ail themsrives-even of the mest technical objections ; and while

SA" ENNER

I entertain no doubt of the eventuai acquittal of my client, it is a duty which as a legal adviser T have to perform, as : feel that I am compelled to neglect nothing that by possibility can lead to an acquittal on this very unjust charge. Independently of the interests of my client, in à case of this sozt, which, in spite ef all that can be said and done, is essentially a political case, one in which one political party is seeking to attack the former leader and one of the very prominent supporters of another political party, it is necessary that the public at large should be satisfied that nothing whatever has been done that could in any way be co'\sidered or construed as being an attempt to improperly influence the impartial administration of justice. And if, as has been done here, it is permissible for the Crown, after the Grand Jury has been selected, sworn and charged,

to send three other grand jurymen to the gran | jury-room — men.

who have not appeared on the panel, who have not been sworn in the presence of their foreman as the forms of onth above quoted necessarily require they should be, and who have not béen properlv instructed as to the nature of their duties, then, it would be permissible to say that the Crown can, after grand jurymen have refused to appear, make enquiry as to their political antecedents, and, if the enquiry prove satisfactory to the Crown, get these men to attend on the Court and take part in the deliberations of the Grand Jury.

In this case the Grand Jury had actually begun their deliberations on the indictement submitted to them against the Defendants, when three more were added to them ; and if after the deliberations are actually begun it is permissible to send Grand Jurymen into the room, then as a logical sequence it would be permissible to send men into the room after all the evidence had been tken before the Grand Jury, so that they might simply give their voise in the tinding of an indictment without having heard the evidence.

All the authorities are to the effect that in addition to the Grand Jury being properly sworn, it is necessary that they should be properly charged in order that they may be empowered to execute their duties. This will be found in EI Chitty, Criminal Law, p. 314 ; Blackstone’s Commentaries, p. 303 ;: 4 Stephens’ Commentaries, p. 362 ; 4 Brown & Hadley, p. 400.

À question somewhat similar to that now under discussion came up in the case of The Queen against Cunard et alin New Brunswick, and it was decided by the Supreme Court, after full argument, that

indictment which had been found by the Grand Jury, one of the awuber of which was interested in the proceeding, was null and would be set aside upon motion after plea and verdict. That being the case, the defence subrnit that if, as they contend thiez Grand Juryimen went into the Grand Jury room without having been properly sworn, and their namies are mentioned in the caption of the indictment found against Mr. Pacaud, the indictment should be set aside

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LR ÉRRS

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Nc IaRER

Ju NE

The judges after hearing the arguments decided that they would be governed by the ruling in the case of The Queen vs Sheridan above referred to ; and Mr. Fitzpatrick asked if in view of the epinion expressed in Bacon’s Abridgement, Hale, and Hawkins, and in simply à majority judgment of a Court in Ireland given at a timr when the rights of prisoners were not always scrupulously considered, especially in political cases, it would not be proper to reserve ‘he question for the consideration of the full Court, particularly, as it is admitted that the ‘question had never been discussed in this Provinse. This the judges refused to do, and the juries brought in their indictment.

The challenge thus being dismissed, a motion to quash the indictment was made, busrd upon the same grounds, which was also dismissed, and the judges again refused to reserve the question for the consideration of the full Court, \

The motion was in the following terms :

PROVINCE or QUEBEC, District of Quebec.

In the matter of