forehand, as to be subject to influence. That warrant of the attorney-general to enable in regard to the prayer for a tales, though him to pray a tales, yet the attorney-general undoubtedly the defendant must have the never denied such a warrant. Another arhave been arrested. In the other case of act is fulfilled in this particular. And there Fines and Norton in Cro. Car. 278, 23 jurors is no provision made in the act, that if the only were returned upon the venire, and trial should go off, the same jury shall subin the habeas corpora there were 24; the last sist: the intention of the act is otherwise, of whom (that is to say) W. L. was not re- and made to prevent mischiefs arising from turned upon the venire i the whole 24 being the continuation of juries. But should the returned by distringas, 12 of them were doctrine of the other side prevail, the whole sworn, whereof the said W. L. was one; and force and energy of the act will be overturned. after verdict this was held to be a manifest The act recites several abuses in the impanerror. The objection in the present case is nelling and returning of juries (vid. 3 G. 2), to the panel of the jurors: there ought to and in prevention of such abuses directs and have been 48 returned, whereas 21 have only prescribes the method of ballotting, to prebeen returned, which is as manisest an error vent mischiefs arising from the picking up of in special juries as where 23 only were re- talesmen. There are likewise words that turned upon common juries. So iť a bad re- impori there must be fresh juries. The act turn be made to the venire, a writ of error likewise enforces an attendance by giving will lie after verdict, 1 Roll. Ab. 800. It power to the Judges, &c. to fine. It likewise would be putting a difficulty upon the delen provides that juries shall have certificates of dant to oblige him to make his objection in their discharge from serving for two years. stanter : where a doubt arises he ought to But if this construction prevail, the act will have time to consider of it, to enable him to have no effect as to these particulars. Will lay it properly before the Court. This objec- not juries continue as they did before the tion arises properly upon the rule of court, act? Will they not be as liable to be tamwhich is the best judge of its own proceed pered with and solicited, supposing a design ings. It is not so much a challenge to the to have a packed jury? The method will be jury as to the proceedings of the sheriff upon this; the plaintiff will get a rule for a special that rule; and whether he acted according to jury, will have a jury strucks, will have 24 rethe directions of the Court, is proper for the turned, and those he will continue upon the consideration of the Court. The anonymous | distringas till lie bath time and opportunity case cited by the other side was upon a good to mould them to his purpose. But admitjury. There is no distinction between a good ting the jury cannot be corrupted, the plainjury and a common jury. Suppose no defence tili may continue them till one dies; and by bad been made in that case, could the defen- this mean talesmen will be added as before. dant have objected that the jury was not a By the same reasons that this construction good jury? The sherift is a proper judge what prevails in criminal cases, it will prevail in is a good jury; and when he hath returned a civil cases; and so the essential end of the fair jury, be there a defence or no defence, it act will be entirely overturned. It is further is the same thing; a verdict was never set insisted upon, that there could be no new aside because the jury was not a good jury. rule in this case from the necessity of the If the plaintiff should move for a special jury, thing, because the crown cannot sue out a he may wave his motion to try his cause by new venire, &c.: wherever a new law is ina common jury: had the verdict in this case troduced, the practice of the Court must been by common jury, viz. by jury chosen by conform to the intention of that law, and not balloting according to the late act, the con- the intention of that law to the forms of viction had been good: but in this case the Court. Where a rule cannot subsist by reaauthority of the jury depends upon the rule son of a new law, but it is necessary ut res of court; and although the authority of juries valeat to have a new rule, in that case a in general depends upon the king's writ, yet venire must issue of course. Bro. title the particular manner of returning 21 de- nire facias," pl. 30. And though the matter pends upon the rule of court; and when the does not appear upon record to entitle them rule falls, the authority of the jury is deter- to a new venire, yet it may be suggested upon mined. The act of parliament expressly pre record; for if the party' can have liberty for scribes that 48 shall be returned, but special the sake of making continuances to suggest juries struck by rule of court are excepted what is contrary to matter of fact, à fortiori out of the act ; so that these juries have their where it is in support of an act of parliament existence from the rule of court. But it is which cannot subsist without such suggesjasisted on, that if the act extends to the tion. Supposing a venire issue upon the balcrown, it is in this case to be taken in favour lotting clause, will that preclude the party of the crown; for it is said the jury most be from applying to the Court for a special jury? struck and returned to try the same cause. This would be carrying the act apparently, The act in this case hath been complied with further than was intended; for trials by spealtogether; a jury hath been struck, and the cial juries are in this respect excepted out of same jury returned ; so the intention of the the act. The statute for this reason gives a VOL. XXI.

3 R

gument against the continuance of a jury | they were to be discharged, Here seven of was, that it must subject gentlemen to great them attended to do their duty, and they inconvenience, they never would know when were again to be called upon; eleven of general direction, and takes no notice whe- defectus juratorum, a decem tales or an octo ther a venire issued before or no; for the tales issues, which is a continuation of the issue is the thing the act hath in view, and same process; and so a great difference be takes no notice of the process. Supposing tween trials at bar by adjournment and trials before the act a new venire was taken out, by special juries. must proceedings be upon that venire ? Cer- “Chief Justice Raymond delivered the opi. tainly no. Therefore a new venire may issue nion of the Court; that there did not appear out by virtue of this act, and though the any irregularity upon the record to set aside words of the act arc general, yet such con the verdict. He said the act of parliament struction must be made as is consistent with was a very beneficial act, and ought to be the meaning of the act. In some cases con supported. He then mentioned the mischiets tinuances may be entered upon the venire, as which occasioned the making of the act, and where the array is quashed, nothing more

the several remedies that are applied in the certain than that a new venire issues out of redress of them. (Vid. 3, G. 2, an act inticourse, Bro.“ venire fucius,” 22 Staun. P.C. tuled for the better regulation of juries.) The 155, 6, Bend. 56, b. 5, Rep. 41, Rowland's act particularly provides that no jurors shall

A venire may be quashed at the suit be returned which have served within such a of the party. In the case of Wright and Pin time. It further provides that no less than dar, Al. 18, an alias venire was awarded: in 48 shall be returned upon the venire, unless this case had there been a new venire, the in particular cases, where upon application to intention of the act would have been answer the Court a rule is granted for a special jury; ed. The venire ought to have been returned so that by the express words of the statute and filed, to convince the Court the crown special juries are excepted. The method could not have another venire by a conti- therefore of proceeding by special juries is in nuance upon the venire of dicccomes non misit no respect altered, but must be in the same breve. The crown may have as many venires form and in the saine manner as before the as it pleases. Suppose there had been no act. The statute indeed goes farther, ad venire at all, would a defence have aided that says, after a special jury is struck, that the error? In the case of Young anu Watson jury so struck shall be the persons returned there was no return to the venire, and yet for the trial: but there are no additional words that was held error after verdict. The Court to make it necessary for the same jury to might have granted a new rule after the old serve ; for if these words bad been inserted one was expired, and a venire de novo would they would have excluded talesmen, which have issued in that case, 2 Roll. Ab. 720, p. would have been inconvenient in these cases, 8. If at the return of the inquest upon a The case in question is not included within venire a writ come from the king not to pro- the words of the act, and the Court cannot ceed Rege inconsulto, and afterwards a pruce. cxtend the words of the act to it: neither will dendo is granted, a new venire issues, and not the intention or force of the act be any ways a habeas corpora; and so is 2 Roll. Ab. In impeached or offendeu by this construction. the case of Wilby and Quinsey, Hob. 130, the It is insisted upon by the detendant, that the habeas corpus was returned album breve, and rule was specially confined to a time, viz. to thereupon a new venire was awarded. In the the sittings atier Trinity term; and that in case of Green and Cole 2 Saund. 257, 258, these cases it is the rule of court which gives error was assigned upon a mis-return of the authority to the jury: the Court is of ano venire; and i was objected that defendant ther opinion; that in all cases the authu. might have challenged the array at the time rity of juries arises from the king's writ: of the trial, but having made no objection to the import of the rule is to have a fair jury it at that time, he could not now assign it for struck before the master; and after that is error; to which it was answered that there done, the return must be made by the sherifi was no fault in the officer for which he might as in other cases, wlio returns the venire, upon have challenged the array; but that it was which the power of the jury depends. And the erroneous act of the Court to mis-award i though the rule is to have the trial at a the venire. As to trials at bar, where the time limited, yet it is not restrictive. The cause does not come on to trial at the day rule is pro triatione in general; and the time appointed, it is put off by adjournment; and limited shows only the intention of the Court when the trial comes on, the entry upon re- to have it tried at that time, but it is not to be cord is made upon that day which was first taken negatively “at that time and no appointed : and in all these cases the ad- other.” In this case the crown could not journment is to a day within the same term. have a venire de novo, and therefore from the There is no instance of trials being adjourned necessity of the thing the trial must be upon to a subsequent term without a fresh applica- the old rule. Before 7 and 8 W. s, a new tion to the Court to obtain a new rule. In venire could issue in some cases, as upon a wials at bar, if at the day appointed there is challenge of the array : so where the verdict them might attend, and still be subject to be Mr. Adam stated, on the part of the de.called again; there was no end of this, and fendants, that there were many instances in he owned he did not know how they could the books, especially in Brooke's Abridgment, call upon them again, for he did not know an where an alias distringas had gone to compel instance of an alias distringas to bring up the attendance of jurors of all descriptions. special jurors.

Mr. Justice Buller said, that as this case

comprehended so important a rule of pracwas imperfect, where there had been a mis- tice, he had taken pains to inform himself on return of the jurors, &c,; in these cases and the point, and he had found a case which, in the like a vcnire de novo would issue. In his mind, determined the rule. He would Aleyn 18, it is said an alias venire should be read it, and then Mr. Bearcroft would see awarded, and not a venire de novo ; but he what he could make of the argument. Mr. thought that an odd case; and said that he Justice Buller then read a manuscript note of never before heard of an 'alias venire. In the case the king r. Francklin, the publisher Styles 34, it is held a venire de novo could go; of the famous paper called the Craftsman. but even in that case there is a contrariety of It was important to remark the time and the opinions: and though it was adjudged that a judges-it was the 5th of George 20, only venire de novo should be awarded, yet it was three years after the law recognising special held that the same jurors should be returned. I juries in misdemeanors had passed, and the This case hath a great resemblance to the judges on the bench were Mr. Justice, aftercase in Styles; the same jury is returned in wards lord chief justice Lee, Mr. Justice this case; only the continuances are kept on Page*, &c. and the crown lawyers were men upon the distringas, and an alias distringas is of the first eminence. Francklin was conawarded. In all the cases cited by the de- victed of printing and publishing a libel in tendant, there hath been some mistake either the Craftsman. The case was only so far in the impannelling of the jury or returning different from the present, that the defendant the writ; but where there appears no defect there moved the Court to reverse the judgupon record, a new venire never goes. The ment, because the cause, after being put off stat 7 and 8 W.3, does not extend to criminal from one term to another, had not been tried causes ; so that cases of that nature remain by a new jury. Here the defendants moved as they were before the act. Before this act to continue the same jury. venires de novo were granted, but never with- The doctrine was the same in both cases, out the consent of parties. It is said that in only that in this case, it is upon the applicaC. B. in cases of special juries new rules are tion of the attorney-general that the new always granted. Admitting it to be so, it jury is required; in that case the attorneyavails nothing here; for different courts have general or the crown contended that the old different forms, and their practice varies in jury should continue. Chief-justice Lee promany circumstances. Where an irregularity nounced the opinion of the Court, which Mr. is complained of, the party complaining must Justice Buller read. The opinion of the show the irregularity, and not put it upon the Court was, that the words of the statute other party to vindicate his proceedings, and were express, and could not be departed show that he is regular. There does not ap- from, unless cause could be shown that there pear to be any irregularity in the

had been some irregularity in the striking of case : but the Court is unanimous that the the jury. or in the reducing, or in some part verdict shall stand. Whether the defendant of the proceeding, or in the writ of Venire, or was too late to make this objection, (he said) otherwise. The words of the statute were, the Court would not determine that point, the “ that the jury so struck and so reduced, objection being overruled upon the merits of shall be the jury to try the issue joined in it but without doubt in cases of irregularity, such cause.” The jury were not dissolved advantage must be taken of it in its proper until the cause was determined, and an alias season, otherwise no advantage can be taken distringas might issue. The opinion was at of it afterwards.

great length, and detailed the practice of “It was afterwards moved in arrest of judg- striking juries by the ancient statutes downment, that the rule which was granted by the wards, and showed, that by the act then Court to have a special jury returned, and a recently passed, the 11th of George 2d, the special jury having been returned by virtue of alteration with respect to juries related only that rule, the rule itself should have been to the common jury, and left the practice as suggested upon the record. But this objec- to special jurors exactly as it stood by the tion was after argument unanimously over- ancient law, except as it declared that special ruled, and sentence was passed upon the de- jurors might be deinanded by the Crown in fendant."]

cases of misdemeanor, In regard to common After this note had been read,

The Court said, that considering the emni- * The same judges who are supposed to nence of the counsel who had argued, and of have decided the case of the King against the judges who had decided, that case, it was Waring.–Orig. Edit. impossible to get over such an authority and + See Francklin's case in Vol. XVII p. therefore they made the

juries, it was thought hard and severe to fore, decided this question ; and the court

1 compel their attendance from time to time; determined, that the rule for another special but the special jury was leit by that act precisely as it stood before.—This opinion, Mr. I cially in considering the last words. The Justice Buller said, delivered so soon after , rule ordered then, and it orders now, that the act had passed so solemnly and argu- 48 shall be returned ; that the prosecutor mentatively, in a question discussed by such shall strike 12 and the defendant' 12; and great legal characters, must, in his inind, de- that 24, the remainder of the 48, shall be the termine the question. He concluded with jury relurned for the trial of the issue joined saying, that he could not see how the crown in that cause. otticers could go on without creating error This being agreed between the parties, and on the record.

enforced by a rule of court, the parties, beLord Chief Justice Kenyon said, he must fore the statute, chose their forum, and by bow to such great authority, though the in- by this forum, their own compact and the clination of his disposition was the other authority of the rule of court compelled them way. But a point so solemnly argued (and to abide; insomuch, that they could not get where such a man as Mr. Pulteney, earl of quit of the jury by the common mode of Bath, being implicated, error would have challenging the array, that is, challenging been pleaded, if they could have found error the whole pannel of jurors: such challenge, on the record), must decide the present case. after the rule of Court, being deemed, like He made no inquiry at all, and did not take every other breach of the authority of the into his consideration the merits of the ques. I court, a contempt, by the party who should tion at issue between the present parties; so chaHenge. but it was, in his opinion of the utmost in- This had met with a decision in several terest to criminal jurisprudence, that juries cases, but particularly in the case of the should not be subject to influence. It was i King' o. Burridge, for a misdemeanor, which that consideration which gave rise to the law came before the court of king's-bench, in for the balloting-box. Every lawyer knew Trinity term, 10 Geo. 1st, a very short time the necessity that there was for that statute; before the passing of the act respecting as all the provisions which had been pre- special jurics. viously made to guard against influence, had That case is reported in lord Strange's proved ineffectual, though any person con- Reports, vol. 1, p. 599; in lord Raymond, victed of trying to influence jurors, was sub-1364; in Andrews's Reports, 52; in Eighth ject to a penalty of ten times the amount of Modern Reports, 215; and in many other the object at issue in the cause. What held books; and the case, as reported in all of good as to civil suits was equally applicable' them, not only contirms the argument and to criminal prosecutions. The principle of statement above given, but explains the the balloting-box was equally applicable to only remaining dithculty in the case, viz. the both; but it was impossible to resist the meaning to be put upon the words in the precedent, standing as it did upon so high rule of court, that the 24 shall be the jury authority.

returned for the trial of the issue in that Mr. Justice Grose and Mr. Justice Ash- cause. hurst were of the same opinion.

For the judges, in the reports given of The case of the King v. Francklin, there their opinions, consider as synonymous, and

meaning the same thing, the above phrase ; In consequence of that case, viz. the and that they shall be the jury who shall King o. Francklin, it became unnecessary for actually try the cause; contrary to the conMr. Erskine and Mr. Adam, as counsel for struction contended for by the crown, on the the defendants, to say any thing on the part present occasion, where it was pressed that of the defendants; but it may not be unac- the statute and the rule were both sa usted, ceptable to know, by a short statement, bow when the jury had been returned, although far the old practice confirms the good sense they had not actually tried the cause. and authority of the case the king v. I'rancklin. Soon after this case, that is, in the Sd of

Special juries existed long before the ! Geo. 2d, came the statute; and it is very statute of the Sd of Geo. 2nd, by the act of material to observe, that the statute transcribes the parties; and that as well in misdemeanor verbatiin the latter words of the rule used as in other cases. One party applied for a before the statute. Therefore whatever was special jury, and the other party consented; the construction of those words in the rule, so that the special jury was then the result of the same must be their construction in the compact between the parties. But when the statute. It has been shown in what sense parties had so contracted, the authority of the judges considered the words in the rule, the court was necessary to give validity to and it will not be contended that the words the compact. Accordingly the court, upon in the statute, " which said jury, so struck, application, made a rule for a special jury; shall be the jury returned for the trial of and that 'rule ran in the same words before the said issue," can bear a different construe the statute, that are used now since the tion. There is, therefore, judicial authority, statute: an observation very material, espe- added to that of common sense, to settle the

jury, obtained upon the motion of the crown lawyers, must be discharged.

COURT OF KING'S BENCH.

Monday, December 9th, 1793.

Before the Right Hon. Lord Kenyon.

Eight only of the special jury, originally struck between the parties, and continued by rule of Court from the sittings after last Trinity term to the present time, attended.

The Officer of the Court asked, if Tales were prayed?

Mr. Attorney General. My lord, as I cannot, on a second trial, have a special jury in this case, I will pray a tales,

meaning of these words. The only other consideration in this case is, what change the statute made in the rights of the parties, if it made none from the words of the rule; and it is evident, that it did no more than convert into a statutory obligation, carried into execution by a rule of court, what had been a matter of compact, executed by a rule of Court; but that in all other respects, except that the one party was, after the statute, bound to agree to a special jury, if the other proposed it, the consequences were the same.

The disobedience to the rule remained a contempt, and the rule remained valid, unless the court, for particular cause of corruption, or undue interference, properly verified, should see ground to have another jury; but that otherwise, the jury of compact or statute must continue.

Gentlemen of the Jury; the Information charges the defendants with having printed and published a seditious libel, the contents of which you have now heard stated. The information originally was not filed by me, but by my predecessor in office, who then was, as you now are, sworn to discharge an important This was the more material, because of the duty to the public, according to the best of his attorney general's power to refuse the de-judgment. It has since fallen to my lot to fendant a warrant to have a tales, to make execute that duty, in stating to you the up the special jury, if deficient, and of the common jury; which was so far from being *On calling the name of Charles Barber an idle right, as mentioned by Mr. Bearcroft, esq. of Rupert-street, in the parish of St. that there was a case in which it was so- James's, Mr. George Barber of Newportlemnly agitated, and which formed a ground street, in the parish of St. Anne, answered, of decision that the attorney could and and said he had received a summons by the ought, in certain cases, to exercise the right. officer of the Court, as a special juror in the The King v. Jacob Banks, Sixth Modern Re-cause, but which had been altered from ports p. 246, as follows:

And as to another objection that was made, "that such a course, if tolerated, would be of great mischief; for then most profligate offenders would get themselves acquitted by surprise, or over-hastening the trial, without allowing the queen convenient time to manage ber prosecution :"

It was answered," that there could be none, because in crown causes there cannot be Nisi Prius or Tales, without a warrant from the attorney-general, who shall be sure to grant none if he find any such danger." And that such a thing may be at least by consent appears 1 Keb. 195. Rex v. Jones. And the granting a Nisi Prius amounts to a consent.-Orig. Edit.

Charles to George, and from Rupert-street, to Newport-street. Lord Kenyon did not see any objection to his serving, if the parties were agreed. The attorney-general acquiesced; and Mr. George Barber went into the jury box; but Mr. Erskine, for the defendants, contended,--not from any personal objection to Mr. Barber, whom they did not know, but merely for the regularity of the proceeding,that as they had received a list of names for the purpose of making inquiry concerning them, and could find no such person as Mr. Charles Barber, of Rupert-street, they held it to be irregular to admit a person of another name, in another street, of another parish to be of the jury. The objection was held to be valid, and Mr. Barber left the box. Orig. Ed.