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have their true interest at heart-we see with i of our said lord the king, for our said lord the equal sensibility the present outcry against, king, further gives the court here to undezreforms, and a proclamation” (meaning his stand and be intormed, that the said Jolin said majesty's royal proclamation) " tending | Lainbert, James Perry, and James Gray, being to cramp the liberty of the press, and discredit wicked, malicious, seditious, and ill-dispuses the true friends of the people, receiving the persons, and wickedly and seditiously consupport of numbers of our countrymen-we triving and intending to disturb the peace see the continuation of oppressive game laws" and tranquillity of our said lord the king, (meaning the game laws of this kingdom) and of this kingdom, and to excite ani « and destructive monopolies; we see the stir up the subjects of our said lord the king education and comfort of the poor” (ineaning to haired and contempt of our said bere the poor of this kingdom)“ neglected, not the king, and of the constitution, laws, and withstanding the enormous weight of the government of this kingdom, on the said poor-rates; we see burthens multiplied, the twenty-fifth day of December, in the thirtylower classes” (ineaning the lower classes of third year of the reign of our said lord the the subjects of this kingdom)“ sinking into · now king, at the parish of Saint Mars-lepoverty, disgrace, and excesses; and the 'Strand aforesaid, in the county of Middlesex means of these shocking abuses increased for aforesaid, to complete, perfect, and bring to the purposes of revenue for the same, and effect, their said last-mentioned wicked 2nd excise laws” (meaning the excise laws of this seditious contrivances and intentions, wickkingdom, “ those badges and sources of op- edly, maliciously, and seditiously, did print pression, kept up and multiplied; and when' and publish, and cause to be printed ani we cast our eyes on a people just formed in a published, in a certain newspaper, called the free community, without having had time to Morning Chronicle, a certain other faise. grow rich under a government by which jus- wicked, scandalous, and seditious libel, of and tice is duly administered, the poor taught and concerning our said lord the king, and of and comforted, property protected, taxes tew and concerning the constitution, laws and governeasy; and at an expense as small as that of ment of this kingdom, according to the tende our pension list--we ask ourselves are we in and effect following: “In short, we see, with England ? Have our forefathers fought, and I the most lively concern, an army of placebled, and conquered, for liberty? And did men, pensioners” (meaning persons holding they not think that the fruits of their places and pensions under the government of patriotism would be more abundant in peace, this kingdom,) “ &c. fighting in the cause ci plenty, and happiness? Are we always to corruption and prejudice, and spreading the stand still, or go backward? Are our bur- contagion far and wide; a large and highly thens” (meaning the burthens of the subjects expensive military establishment,” (meaning of this kingdom)“ to be as heavy as the most the military establishment of this kingdom enslaved people? Is the condition of the poor" though we have a well-regulated milita; (meaning the poor of this kingdom)“ never to the increase of all kinds of robberies, riots be improved ? 'Great Britain must have arrived executions, &c. though the nation” (meaning at the highest degree of national happiness this kingdom)“ pays taxes equal to the whole and prosperity, and our situation must be too land retail” (meaning rental) “ of the king, good to be mended, or the present outcry dom, in order to have his property protected against reforms and improvements is inhu- and secured, and is also obliged to enter into man and criminal; but we hope our condition separate associations against felonious dewill be speedily improved, and to obtain so predations ; a criminal code of laws,” (meandesirable a good is the object of our present ing a criminal code of laws of this kingdom) association, au" (meaning an)“union founded " sanguine and inefficacious; a civil code," on principles of benevolence and humanity, (meaning a civil code of laws of this king. disclaiming all connexion with riots and dis- dom) " so voluminous and mysterious, as to orders, but firm in our purpose, and warm in puzzle the best understandings; by which our affections for liberty.-- 7. Lastly, we ineans justice is denied to the poor," (ineaninvite the friends of freedom throughout ing the poor of this kingdom) * on account of Great Britain to form similar societies, and to the expense attending the obtaining it; coract with unanimity and firmness, till the porations,” (meaning corporations of this people” (meaning the people of Great Britain) : kingdom)“ under ministerial or party intiu
be too wise to be imposed upon, and their ence, swallowing up the importance, and act. influence in the government be commensurate ' ing against the voice of the people;” (meanwith their dignity and importance; then shall ing the people of this kingdom)“ penaltie" we be free and happy: by order of the society. (meaning penalties) " inflicted on those who S. Eyre, chairman," (meaning the chairman accept of offices without conforming to the to the said society). In contempt of our said violation of their consciences and their rights; lord the king, in open violation of his laws, to the voice of free inquiry drowned in prosectthe evil and peruicious example of all others lions, and the clamours of the pensioned and in the like case offending, and against the interested: and we view with the most pois peace of our said lord the king, his crown nant sorrow, a part of the people” (meaning and dignity. And the said attorney-general the people of this kingdom) "deluded by a
ery of the constitution and church in danger, Your lordship may recollect, that at the fighting with the weapons of savages, under sittings after the last term in this place, an the banners of prejudice, against those who information, filed by the attorney-general, have their true interest at heart: We see, with against the proprietors and printer of the equal sensibility, the present outcry against Morning Chronicle, for a supposed libel in reforms, and a proclamation” (meaning the that newspaper, was called on for trial in the said proclamation so issued by his said ma- ordinary course of things. Seven of the spejesty on the said twenty-first day of May as cial jurors, struck under the rule obtained by aforesaid) “tending to cramp the liberty of the crown itself for the trial of the cause, apthe press, and discredit the true friends of peared, and came into the box to be sworn; the people, receiving the support of numbers but the attorney-general did not think proper of our countrymen; we see the continuation to pray a tales to complete the pannel. --The of oppressive game laws" (meaning the game cause, therefore, of course, went off, pro delaws of this kingdom)“ and destructive mo fectu juratorum. nopolies; we see the education and comfort My lord, if any special reason existed why of the poor,” (meaning the poor of this king- the jury so appearing should not be permitted dom) « neglected, notwithstanding the enor to iry the information, when it came or mous weight of the poor-rates; we see bur- again for trial, and the crown had moved upon thens multiplied, the lower classes” (meaning such special matter, verified by affidavit, to the lower classes of the people in this king- discharge the original rule under which the dom) “ sinking into poverty, disgrace, and jury was appointed, I should, according to the excesses; and the means of these shocking nature of the objections, have been prepared abuses increased, for the purposes of revenue to give them an answer. But, my lord, no for the same; and excise laws,” (meaning the such proceedings have been had or attempted, excise laws of this kingdom)“ those badges The crown has made no objections to the and sources of oppression, kept up and mul- jurors, nor any motion in court to discharge tiplied.” In contempt of our said lord the the original rule under which the jury was im. king, in open violation of his laws, to the pannelled: but assuming it to be the law that evil and pernicious example of all others the rule was spent and expired, by the trial in the like case offending, and against the going over, for defect of jurors, they have, as peace of our said lord the king, his crown a motion of course (drawn up, upon the sigand dignity. Whereupon the said attorney- nature of counsel out of court), obtained a general of our said lord the king, who for our second rule for striking a jury, as if no former said lord the king in this behalf prosecuteth, rule had ever existed, and as if no jury had for our said lord the king, prayeth the consi- | been struck under it. deration of the Court here in the premises, I confess I was not a little surprised at this and that due process of law may be awarded attempt to impannel a jury, without the conagainst them the said John Lambert, James sent of the defendants, between whom and Perry, and James Gray, in this behalf, to the crown the former had been reduced and make them answer to our said lord the king ascertained under the first rule.-On their touching and concerning the premises afore part, I therefore now object to the proceed
ing, as totally illegal and hostile to the freedom of trial; and I humbly move that this
new rule may be discharged. In Trinity Term a rule was made in the I do not know that I am able to state, at usual way, on the motion of the prosecutor, for this moment, any direct precedent for my a special jury. Forty-eight jurors were struck; motion, nor is it necessary that I should, beand in Easter Term they were reduced by the cause I found my application upon the whole parties to twenty-four. In the sittings after statute law of the kingdoin respecting the Easter, the cause came on, and seven of the trial by jury, which is positive and unequivocal special jurors came into the box. Sir John on the subject, which no practice can shake, Scott, the then Attorney General, did not and which no decisions of the Court, if there pray a tales, and the trial went off as a re were any, could repeal or over-rule. manet pro defectu juratorum.
Lord Kenyon. The application crosses all In Michaelmas Term the prosecutor, on a my ideas of the law upon the subject. It motion of course, took out a rule for a new would be highly dangerous to impartial trial, special jury. This the defendants thought if the juries were known to the parties so long irregular.
before the trial. It is very strange if the law On Friday, the 15th day of November, the honourable Thomas Erskine moved the Court laws seem to have thought very differently on
Mr. Erskine. My lord, the authors of our as follows:
this subject. They seem to have entertained My lord, the motion which I am about to no jealousy, that the trial by the country, address to the Court, will deserve your lord which was instituted for the people's protecship’s particular attention, as it relates to one tion, could ever be too favourable to them; of the most essential rights and liberties of on the contrary, the most ancient statutes of the subject, the trial by jury.
the kingdom express no fears for the crown,
but for the subject only, and provide that default of jurors, the justices should put in jurors shall be struck su long before the day of the inquest no other than those first sumtrial, that the defendant may know them, moned, and this regulation was so much the and be prepared to take his challenges. The settled law, that the act of William, for the act of the 420 of Edward 3, chap. 11, ex. ease of jurors, and the regulation of trial, repressly gives this reason. After stating that cites, that, as the law then stood, it often divers of the people had been disherited and happened that upon causes going off at the oppressed, frum pot having had knowledge assizes, for defect of jurors, the same jurors before-band of those who were to pass in the were obliged to attend again and again at inquent, it enacts, that the names of the jurors the trial of one and the same cause, to should be returned into court in the term be- their great expense and trouble; and after fore the assizes, and that, in the mean time, this preamble, a new venire facias, for the the parties, on demand, should view the same.* first time in the history of the law, was given
The whole statute law, from that period, to the parties, to bring in a new jury, upon speaks the same language, down to the fa- the default of those impannelled under the mous Statutes of king William and queen first writ. It is therefore only by the effect Anne, which give to detendants, accused of of this statute, that a jury, once summoned, high treason, the names and abodes not is discharged before trial; and the statute merely of the jurors, but of the very witnesses not extending, nor indeed relating at all to to be examined against them on the trial. special juries, they remain upon the old footSo far, indecd, is it from being true, that, by ing. Special juries do not exist, as many the conmon law, a jury, once summoned, and people seem to suppose, by the authority of not attending, could not be distrained again a modern statute ; on the contrary, they are to appear at a future day, as is supposed by as ancient as the law itself, and were always Mr. Justice Page, in Masterman's note, that struck, as they are at this day, by direction of they were bound to give their attendance the Court, when trials were had at the bar from assizes to assizes, in infinitum, until the and not at nisi prius; the act of the 3d of reign of William the third.
George 2, chap. 25, having no relation to The statute of the 13th Edward 1. chap. / such juries, except as it removes a doubt with 30,+ had expressly directed, that, upon the regard to the legality of striking them for the
trial of misdemeanors. This legality the staThe following are the words of the tute recognises; and putting special juries, statute :
struck in the crown-office, on the same foot* Item, Forasmuch as divers mischiefs ing with those in civil cases, directs them to have happened, because that the panels of in-be struck by rule, as they anciently were in quests which have been taken before justices cases of trials at bar, and enacts, that the jury by writ at scire facias, and other writs, have so struck, shall be the jury to try the cause. not been returned before the sessions of the Indeed, so notorious is it, that a jury sumjustices at the Nisi Prius, and otherwise, so moned, and not attending, could be distrained That the parties could not have knowledge of to appear again (till the law, as far as it rethe names of the persons which should pass : lated to common juries, was altered by the in the inquest, whereby divers of the people statute of king William),--that we know that have been disherited and oppressed: it is or the whole jury process of the courts at this dained, That no inquest, but assises and delic day is founded upon that law; for the venire verances of gaols, be taken by writ of Nisi' is always returnable on the last day of the Prius, nor in other manner, at the suit of any, term before trial, at which day it is entered on great or small, before that the names of all record, as of course, that detault was made by of them that shall pass in the inquesis be re- ' the jurors summoned; and then the distrin. turned in the Court: and that the sheriffs gus issues to bring them in on the day in array the panels in assises four days at the banc, in the term following, unless the jus. leasi before the sessions of the justices, upon tices shall come to the assizes in the interval; pain of twenty pound, so that the parties may under which clause of nisi prius, the trials are have the view of the panels, if they the same all had.-So that the process at this day, demand. And as to the return or answer of building fiction on reality, to give precision the bailiffs of franchises, they shall make and uniformity to practice, ratifies that which their answer to the sheriff six days before is supposed now to have been contrary to all their session upon the same pain. Ind in all practice whatsoever In ancient times, every manner of panels arrayed by the sherifts, or man, in a civil cause, knew, upon the return bailitis within tranchise, shall be put the most of the venire in term, the jury that was to substantial people, and worthy of credit, and come at the assizes. The sheriff now, by the not suspect, which have best knowledge of act of the 3d of George 2, returns one pannel the truth, and be nearest.” See Statutes of for all, which effectually prevents a defect of the Roalm, Vol. 1, p. 389, 390.
jurors; but special juries remain untouched + The words are “ And from henceforth by that statute The reason and justice of she justices shall not put in assises or juries the thing moreover support my construction. than those that were summoned to , The attorney general alone can pray a tales
first." See Statutes of the 'in a criminal cause; for the statutes go no '), 36.
farther than to give defendants a right to pray Mr. Bearcroft, on the part of the crown, the tales in penal actions, prosecuted qui tum contended that the cases cited by Mr. Erswith the Crown, but not in cases where the kine were not in point. In the case of the Crown is the prosecutor alone. It is true King against Hart, the special jury of fortythat the attorney-general now grants his war- eight had not been reduced to twenty-four by rant of course to a defendant to pray one, but the parties, and the jurors had not come into he may legally refuse it; and the subject's Court. In the case of the King against Jolliberties are not to rest upon the courtesies liffe, the cause had been put off on account of of the officers of the Crown. What, then, is some publications, which might have incontended for in this right to change the fuenced the jury.* In the next term, a new jury? Why, nothing short of this, that if the jury was struck, so that the case was in point attorney-general does not like his jury, he for the Crown, and it was so much the more may forbear to pray a tales himself;- he may so, as the new jury was moved for by a solialso refuse his warrant, without which the citor as well versed in the general practice as defendant cannot pray one; and this he may any solicitor of that court. Their lordships do, toties quoties, until he has got a jury to would agree with him in this description, his fancy. I am not arguing that Mr. Attor- when they heard that the solicitor for the deney General is likely to attempt this practice fendant in that cause was Mr. Lowten, and for such purposes; but the country is not to he was solicitor also for the present defenhold its righis upon the courtesy of the prero- dants. In that cause, then, Mr. Lowten had gative, or the honesty of those who may oc moved for a new trial, and here he opposed a casionally represent it.
new jury.—[Mr. Bearcroft was set right in Mr. Erskine then proceeded to state the the case of Jolliffe. In that instance the trial modern cases, which clearly showed that the first went off, because, from the publications practice of the Court bore him out in the law which had been made, the Court thought that on the subject. He stated the King o. Hart, the jury might be influenced. In the term Cowp. 412, and the King o. Joliffe, 4 T. R. after this, the cause came on again, and both 285; but he relied implicitly, he said, on the parties agreed to have a new jury. A second law.
time it was put off, through the delicacy of One of the officers of the crown-office Mr. Justice Gould, and on the third time it handed up to Mr. Justice Buller, an opinion was brought on again, and the prosecutor of Judge Page, in the 13th of George 2, that moved for a new jury, without any pretext a new jury ought to be granted; but Mr. Jus- of influence, or of any other argument for a tice Buller said, the defendants should take new jury. This Mr. Lowten, as solicitor for a rule to show cause, as it was of great im- the defendant (and who had not been emportance to be argued and ascertained. ployed in the beginning of the cause) ob
Lord Kenyon said, he thought it scarcely jected to, and the Court refused.] nccessary; but granted they might take a Mr. Bearcroft read from the notes of the rule. A rule was therefore granted.
late Mr. Masterman, one of the secondaries On Monday the 25th of November 1792, of the crown-office, a case where it was his the rule came on to be argued.*
opinion, that a new jury was conformable to The arguments are thus reported in 5 * With respect to this, see the case of the T. R. 453.
dean of St. Asaph, antè Vol. XXI. pp. 848, et
seq. The King against Perry, and two others. In Hilary term last an information was plied to lord Kenyon, at his chambers, for a filed by the attorney-general against the de- new jury, which was refused, and the jury fendants for a libel, to which they pleaded first struck tried the defendant.--He also not guilty in Trinity term. In the same produced an affidavit, in which it was stated term a special jury was struck, but for the that the venire and distringas of the former default of jurors at the sittings after Trinity jury in this case were returned; and that term, the information was not tried. A rule the twenty-four persons named in those having been since obtained for striking a new writs were alive and resident in the county. special jury;
And he observed that, though a distinction Mr. Erskine, on a former day, moved to formerly prevailed in cases where there discharge it, on the ground that after a spe had been a change of sheriff after the time cial jury had been once struck, that jury of striking the first jury, in which cases a new alone, or as many of them as appeared when special jury was struck, that distinction had the cause came on to be tried, with the ad- been exploded in R. o. Hart (Cowp. 412.] dition of talesmen, only could try the cause. Mr. Bearcroft now showed cause against That the stat. 3. Geo. 2, c 25, sect. 15, this rule, and insisted that what had been enacted, that “ the jury so struck, &c. should done in this case was warranted by practice be the jury returned for the trial of the said and authority, and supported by principle. issue." That in R. v. Jolliffe, [4 T. R. That it was of great importance to the admi. 285) where the trial ha
een put off on nistration justice that there should not be the day tirst appointed, the prosecutor ap- a standing jury, and that the parties might
the practice ; and he quoted also a cause moved for a new jury, and had succeeded; against lord Charles Fitzroy, where Mr. Low- but he owned, that in this case it had been ten had also, as solicitor for the defendant, consented to by both parties. have no opportunity of lampering with the cutor's counsel whether he had seen a conjury. That in point of practice it had been trary determination in R. o. Franklin, and usual to strike a new special jury, whenever received an answer in the negative, read the cause went off for a default of jurors at those parts of the following note, which are the time first appointed. That, in a very applicable to this point. “The King against late case, R. v. Lord Charles Fitzroy, which Franklin (Vide 2 Sess. case, page 333, 8. C.] was an information in nature of a quo war- Hil. 5 G. 2, B. R. 1731. Franklin was conranto, a new special jury had been struck, as victed upon an information for publishing a a matter of course, under such circumstances. libel against the government; and now Mr. That in R. v. Jolliffe, after the trial had been Bootle moved that the prosecutor should put off at the spring assizes on account of bring in the postea, and that the jury process, some band bills which the defendant had &c. might be filed; and said such a motion distributed with a view of influencing the was granted in the case of the King o. Ward, jury, a new special jury was struck in the and also in the case of the King o. Wright. Easter term following as a matter of course, It was objected by the Court (upon the inforand not on the ground of the defendant's hav- mation of Mr. Masterman) that it was coning attempted to influence the forner jury; trary to the practice of the Court in these and that the application for another special cases to hasten and oblige the Crown to jury (alluded to by the defendant's counsel in bring in the postea upon motion; and that making this motion) was afterwards in Tri- the defendant could not move in arrest of nity term; but that in fact the jury first ap- judgment till the prosecutor had brought in pointed did not try the defendant, but a se- the postea, and given a rule, &c. to the decond special jury struck in the Easter term fendant. Mr. Bootle ; there seems to be no after ihe assizes when the trial was first reason for such practice. In all cases refixed. That in R. v. Hart, the twenty-four lating to the revenue, &c. where the Crown had not been struck, and that the only ques- is prosecutor, the defendant upon motion hath tion there was whether the master should a rule of course to bring in the postea; the reduce the forty-eight to twenty-four. And same reason holds in this case, and stronger; that this very question had been determined for should the prosecutor reluse to bring in in R. o. Waring. [The following note of R. the postea at all, the verdict will not only 0. Waring was read from the manuscripts of hang over his head in the interim ; but supthe late Mr. Masterman :-R. v. Waring. pose the defendant be in custody and cannot Indictment against the defendant for perjury, find bail, he must remain there till the Crown in East. 12 Geo. 2. The defendant pleaded thinks proper to bring in the posien, which, not guilty in Trinity term following; when perhaps, may never be brought in at all, and Mr. Wirley, on behalf of the prosecutor, so the party be without remedy. * Rule per moved for a special jury. The record went curiam nisi. down for trial at the ensuing assizes, and the “At another day, Mr. Attorney-General special jury were returned for the trial; but came and showed cause, and alleged that this the cause was not entered with the marshal, ! motion was contrary to practice. That there the prosecutor's witnesses not being able to was no one instance that the postea was ever attend. In the Michaelmas term following I filed in these cases, but that it always rethe Court gave costs to the defendant against mained in the hands of the clerk in court; the prosecutor for not having proceeded to and that when it is brought into Court, the trial." In Hilary* term following a motion distringas is always annexed to it, and brought was made for a special jury by Mr. Burrell, in along with it. The defendant, if he please, which was opposed by Mr. Taylor, the de- may move to have the postea brought in, fendant's counsel, who said he did not see which is the cominon motion in these cases, any reason why the same jury should not be in order to move in arrest of judgment. It is summoned to attend at the next assizes. Sed impossible that the distringas should be filed, per curiam (Probyn J. and Chapple J. abs.) there being no file for that purpose in the * If the party desire a new special jury, we crown-office: it is always annexed to the cannot refuse him one." And Page J. posten, and cannot be separated from it upon " seemed to think that the former could not any motion. As to the venire (he said) that he summoned.” Per Curiam, let there be a was filed before this motion was made, and new special jury.]
it' the defendant had any objection to that, it Mr. Justice Buller having asked the prose- was open to his inspection.
“ Mr. Bootle and Mr. Fazakerly contrà. * N. B. No rule for such jury appears. If the postea and distringas are brought into to have been drawn up either in Hilary or Court it will answer our purpose. Although Fastor term, but in Trinity term following the distringas is annexed to the postea upon there was a rule for a special jury at the in the return, and is brought into court along stance of the defendant
with it, yet it is always sent back again to be