but for the subject only, and provide that jurors shall be struck so long before the day of trial, that the defendant may know them, and be prepared to take his challenges. The act of the 42d of Edward 3, chap. 11, expressly gives this reason. After stating that divers of the people had been disherited and oppressed, from not having had knowledge before-hand of those who were to pass in the inquest, it enacts, that the names of the jurors should be returned into court in the term before the assizes, and that, in the mean time, the parties, on demand, should view the same The whole statute law, from that period, speaks the same language, down to the famous statutes of king William and queen Anne, which give to defendants, accused of high treason, the names and abodes not merely of the jurors, but of the very witnesses to be examined against them on the trial. So far, indeed, is it from being true, that, by the common law, a jury, once summoned, and not attending, could not be distrained again to appear at a future day, as is supposed by Mr. Justice Page, in Masterman's note, that they were bound to give their attendance from assizes to assizes, in infinitum, until the reign of William the third.

The statute of the 13th Edward 1. chap. 30,† had expressly directed, that, upon the

The following are the words of the

statute:

"Item, Forasmuch as divers mischiefs have happened, because that the panels of inquests which have been taken before justices by writ at scire facias, and other writs, have not been returned before the sessions of the justices at the Nisi Prius, and otherwise, so that the parties could not have knowledge of the names of the persons which should pass in the inquest, whereby divers of the people have been disherited and oppressed: it is or dained, That no inquest, but assises and deliverances of gaols, be taken by writ of Nisi Prius, nor in other manner, at the suit of any, great or small, before that the names of all of them that shall pass in the inquests be returned in the Court: and that the sheriffs array the panels in assises four days at the least before the sessions of the justices, upon pain of twenty pound, so that the parties may have the view of the panels, if they the same demand. And as to the return or answer of the bailiffs of franchises, they shall make their answer to the sheriff six days before their session upon the same pain. And in all manner of panels arrayed by the sheriffs, or bailiffs within franchise, shall be put the most substantial people, and worthy of credit, and not suspect, which have best knowledge of the truth, and be nearest." See Statutes of the Realm, Vol. 1, p. 389, 390.

The words are "And from henceforth the justices shall not put in assises or juries than those that were summoned to, the first." See Statutes of the

D. 36.

default of jurors, the justices should put in the inquest no other than those first summoned; and this regulation was so much the settled law, that the act of William, for the ease of jurors, and the regulation of trial, recites, that, as the law then stood, it often happened that upon causes going off at the assizes, for defect of jurors, the same jurors were obliged to attend again and again at the trial of one and the same cause, to their great expense and trouble; and after this preamble, a new venire facias, for the first time in the history of the law, was given to the parties, to bring in a new jury, upon the default of those impannelled under the first writ. It is therefore only by the effect of this statute, that a jury, once summoned, is discharged before trial; and the statute not extending, nor indeed relating at all to special juries, they remain upon the old footing. Special juries do not exist, as many people seem to suppose, by the authority of a modern statute; on the contrary, they are as ancient as the law itself, and were always struck, as they are at this day, by direction of the Court, when trials were had at the bar and not at nisi prius; the act of the 3d of George 2, chap. 25, having no relation to such juries, except as it removes a doubt with regard to the legality of striking them for the trial of misdemeanors. This legality the statute recognises; and putting special juries, struck in the crown-office, on the same footing with those in civil cases, directs them to be struck by rule, as they anciently were in cases of trials at bar, and enacts, that the jury so struck, shall be the jury to try the cause.

Indeed, so notorious is it, that a jury summoned, and not attending, could be distrained to appear again (till the law, as far as it related to common juries, was altered by the statute of king William),-that we know that the whole jury process of the courts at this day is founded upon that law; for the venire is always returnable on the last day of the term before trial, at which day it is entered on record, as of course, that default was made by the jurors summoned; and then the distringas issues to bring them in on the day in banc, in the term following, unless the justices shall come to the assizes in the interval; under which clause of nisi prius, the trials are all had.-So that the process at this day, building fiction on reality, to give precision and uniformity to practice, ratifies that which is supposed now to have been contrary to all practice whatsoever In ancient times, every man, in a civil cause, knew, upon the return of the venire in term, the jury that was to come at the assizes. The sheriff now, by the act of the 3d of George 2, returns one pannel for all, which effectually prevents a defect of jurors; but special juries remain untouched by that statute The reason and justice of the thing moreover support my construction. The attorney general alone can pray a tales in a criminal cause; for the statutes go no

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 Hari, 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 fluenced 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. Aitor- when they heard that the solicitor for the de ney 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 rights 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 v. 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 The King against Perry, and two others.

seq. 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 be 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 cnacted, 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. 0. Jolliffe, [+ T. R. That it was of great importance to the admi. 285) where the trial had been put off on nistration of justice that there should not be the day tirst appointed, the prosecutor ap- a standing jury, and that the parties might

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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 ven had also, as solicitor for the defendant, consented to by both parties. have no opportunity of tampering with the cutor's counsel whether he had seen a conjury. Thai in point of practice it had been trary determination in R. 0. 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, 5. 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 . 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 foriner 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 the 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 refuse 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 sup. the 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 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 common motion in these cases, any reason why the same jury should not be in order to move in arrest of judgment. It is suminoned 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-ofice: 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.]

if 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 posten and distringas are brought into to have been drawn up either in Hilary or Court it will answer our purpose. Although Faster 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

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Mr. Bearcroft then said, he would argue that juries should not be continued from term the question on the reason of the rule. It to term, as they might be tampered with by struck him as a most important point indeed, the parties; a thing so outrageous to justice, filed, for it is no part of the record, nor is it rule: he made his challenge to the poll, and entered up upon the plea.

capt. Wringfield was struck off the pannel, “ Per curiam ; the distringas cannot bc and a tales sworn in his place; and so the filed; there is no file in the office for that defendant is now too late to make any obpurpose. The defendant after conviction may jection to the array. Suppose a rule is made come at any time within the four first days for a special jury, and the parties proceed to of the term, and upon motion oblige the trial before a common jury, the verdict shall clerk in court to attend and bring in the pos- not afterwards be impeached, for the defentea: he is entitled to it de jure, and this is dant must either make challenge to the the constant practice in these cases.- - And so array, or let judgment go by default : but if they made a rule that the postea and distrin- he appear, and a defence be made, he is by gas should be brought into court, and the that precluded to make any objection to the venire filed.

jury afterwards; and so it was adjudged 13 “ Mr. Franklin being convicted upon an W.ş, in an anonymous case, in an action for information for publishing a libel, his counsel words. 2dly, It was said that before the late moved to set aside the verdict, the trial being act of parliament this objection could be of by a jury who had no authority; and ob- no weight; for before that act the authority jected that a rule being made in B. R. for a of special juries did not arise from the rule of special jury for the trial at the sittings after court, for the purport of the rule is only to Trinity term expressly, and he not being have a fair jury, and after that is once struck, then tried, could not afterwards be tried by the rule hath had its effect, and then the authe same jury at the sittings after Michael- | thority of the jury arises from the king'a mas term, but that a new rule should have writ; for a jury cannot be returned upon the been made by the Court; and they compared rule of court, but upon the distringas et venire it to the case of Lear; where upon motion issuing to the sheriff for that purpose: that part to the Court to appoint a day for execution, therefore of the rule which limits the trial to a rule was obtained accordingly, but at the a particular tune can be of no force, for after day execution was suspended by his majesty. | the parties have been before the master, and In the subsequent term a new application a fair and impartial jury is struck, that jury is was made to the Court, and a second day ap- then under the same circumstances, and their pointed, but his majesty was then pleased authority of the same nature, with all comto grant a further reprieve, which occasioned mon juries. Suppose the rule had been 11a fresh application, &c. The same reason mited to the first sittings in term, if the cause holds for a new trial in this case; for the old had not then been brought to trial, would rule being special, and restrained to a parti- there have been occasion for a new rule to try cular time by express words, viz. at the sit- it at the second sittings? It would be absurd tings after Trinity term, the rule must expire to imagine it. The same reason where the with the time, and therefore it was necessary rule is for trial after term. In these cases a to have a fresh rule. It was farther argnied new jury is never struck, nor does a new that this was the constant practice in C. B.; venire issue for that purpose; an alias disand that new rules are always granted in tringas issues out, and the continuance is encases of this nature: but what was chiefly tered upon that; so the trial is upon the old relied upon was the stat. of 3 G. 2. c. 25. for venire, and hy the old jury: pari ratione, regulation of juries, which now enforced the where a rule is made for a special jury, and á practice, and made it absolutely necessary to jury is struck accordingly; though the trial have a fresh rule.

be not precisely at the time limited by the “To these objections the king's counsel rule, yet the authority of the jury is continued made three answers; 1st, That the objection upon the alias distringas; and yet there is was made out of time; 2dly, Before the late the same reason for a new jury as for a new act of parliament there would have been no rule. It is impossible to have a venire de weight in the objection; and 3dly, The late novo in this case ; for the stat. 7 and 8 W, 3, act of parliament did not extend to the which gives the new venire, does not extend crown, and so the crown was not bound or to the crown; and it is adjudged in 2 Ventr. precluded by it. As to the first, it was in- 173, that a new venire is error: à fortiori if sisted that the defendant was now too late to there cannot be a venire de novo there cannot make any challenge to the array; for after be a rule de novo; for the Court cannot make a challenge of the poll

, the party is precluded a rule to have that particular jury returned; of his challenge to the array; and so it is for that would be in effect for the Court to held in 1 Inst. and laid down there as a strike the jury. And though it is said to be maxim, that after challenge to the poll, the practice of the Court of C. B., yet the there can be no challenge to the array practice of one court is not the practice of There is no precedent to impcach this maxim. another : but admitting this to be the pracThe defendant in this case falls within this tice of C. B. yet the king is not included

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and so opposite to the spirit of our jurispru- , ment, in making the statute of the 3rd of dence, that it had been ever the study of the George 2, to prevent juries from becoming Courts, and indeed the very aim of parlia- permanent, or troen being so long knowo be within that practice; for it extends only to is delivered to the sheriff; but in executions civil cases; and where the general words of at the suit of the crown, the property is an act of parliament do not extend to the always bound from the teste of the writ." in crown, the general practice of a court shall, the stat of Jeofails, revenue causes are esnot. There are no negative words in this pressly mentioned ; otherwise the crown had rule; and though the time is specially limited not been included within those acts The to the sittings after Trinity terin, yet it can- stat. 35 H. 8, c. 6, which gives a tales de cir. not negatively be inferred from thence, that cumstantibus, does not extend to juries ima trial subsequent to that ti e will be erro- pannelled to try causes between the king and neous; and where no inconvenience can arise party; and therefore by the 4 and 5 Ph. and to the parties by extending the old rule to M. c. 7, the crown is expressly mentioned. a further day, there can be no necessity for In the case of the king and Meredith, Tr. 13 any fresh application to the Court for a new W. 3, upon an information for perjury, a one. In all cases of trials at bar, where a venire facias was issued forth, returnable in time certain is limited for the trial, if at the three weeks of Trinity; the then attornerday there is a defectus juratorum on which general died, and sir E. Northey succeeded the trial is adjourned, yet no application is him: the cause did not come on to trial, but ever made to the Court for a new trial at bar continuances were entered upon the distriade novo; but a decem tules is awarded, and gas for a year. After verdict it was objected the trial is had upon the old rule; and yet that no continuances were entered upon the in that case the jury is struck in the same venire, and yet the court adjudged that jury manner as it is here, and so falls within the to be a sutficient jury. In the excheques same reason. As to Lear's case, where rules chamber there never issues a new venire, and de novo were granted for execution, that case the reason of this practice is obvious; for makes nothing for the defendant; for there the 7 and 8 W. 3, which gives the new to the sheriff's authority altogether arises from nire, does not extend to the crown. The act the rule, and consequently expires with it: of 3 G. 2, is within the same reason as these bulin this case the authority of the jury takes cases: there are no particular words to eiits foundation from the king's writ, and so tend it to the crown: and it is impossible, long as the writ continues in force, so long from the necessity of the thing, that the the authority of the jury remains. There crown should be included by it; for unless would therefore have been no weight in this the crown could have a new venire as hath objection before the 3 G. 2, c. 25; and what been observed, they cannot have a new rule, alteration that will make in the present case and the crown cannot have a new venire, beis proper for the consideration which falls cause the statute which gives the new tenire, under the 3d answer ; viz. that that act of does not extend to the crown; ergo, &c. parliament does not extend to the crown, and But admitting the crown to be within the so the crown is not bound or precluded by it. late act, if it can have any effect in the preAll acts of parliament, that are made for the sent case it will be in favour of the crown; ease of jurors, and that prescribe particular for by the express words of the act when a forms for the method of proceedings to be special jury is once struck and returned, the observed between plaintiff and defendant, do cause must be tried by that jury. The words not extend to the crown unless there are par. are, “ which said jury so struck as aforesaid ticular words for that purpose; which is the shall be the jury returned for the trial of the reason why 7 and 8 W. 3, which gives a new said issue.” Admitting therefore this act to venire, does not extend to prosecutions where have any weight in the present question, as the crown is concerned: and yet it is ex- there could not have been a new venire, the pressly enacted by that statute, that if any cause must have been tried by the same jury plaintiff or demandant in any cause depend which was first struck and returned upos ing in any of the courts at Westminster, the old rule. which shall be at issue, shall bring or sue “ To these answers the defendant's counsd forth any venire facias, &c. in order to the replied, that it was not too late to make the trial of such issue at the assizes, and shall not objection. In Gardner's case, 5 Rep. 37, and then proceed to trial, the plaintiff or de- in Cro. Car. 278, a defence was made, and mandant, whenever he shall think fit to try yet objections were taken to the verdict; the the said issue, shall sue forth a venire de one in arrest of judgment, and the other in noto. There the words are express, viz. “any error; and the objections in both the cases plaintiff or demandant;" and yet because were to the panels of the jurors. In Gardthere are no particular words to extend it to ner's case 23 jurors were only returned, of the crown, no tenire de noro does ever issue whom twelve appeared and gave a verdict; at the suit of the crown. By 29 Car. 2, c. 3, and though it was adjudged that this was rewrits of executions shall not bind the pro- | medied by the 18th Eliz. c. 14, yet if it had perty of the goods but from the time the writ not been for that statute, judgment would