in the 13th of George II., that a new jury ought to be granted; but Mr. Justice Buller said, the defendants should take a rule to show cause, as it was of great importance to be argued and ascertained.

Lord Kenyon said, he thought it scarcely necessary; but granted they might take a rule. A rule was therefore granted.

On Monday, the 25th of November, 1792, the rule came on to be argued.

Mr. Bearcroft, on the part of the Crown, contended that the cases cited by Mr. Erskine were no in point. In the case of the King against Hart, the special jury of forty-eight had not been reduced to twenty-four by the parties, and the jurors had not come into court. In the case of the King against Joliffe, the cause had been put off on account of some publications, which might have influenced the jury. In the next term, a new jury was struck, so that the case was in point for the Crown, and it was so much the more so, as the new jury was moved for by a solicitor as well versed in the general practice as any solicitor of that court. Their lordships would agree with him in this description, when they heard that the solicitor for the defendant in that cause was Mr. Lowten, and he was solicitor also for the present defendants. In that cause, then, Mr. Lowten had moved for a new trial, and here he opposed a new jury. [Mr. Bearcroft

was set right in the case of Joliffe. In that instance the trial first went off, because, from the publications which had been made, the court thought that the jury might be influenced. In the term after this, the cause came on again, and both parties agreed to have a new jury. A second time it was put off, through the delicacy of Mr. Justice Gould; and on the third time it was brought on again, and the prosecutor moved for a new jury, without any pretext of influence, or of any other argument for a new jury. This, Mr. Lowton, as solicitor for the defendant (and who had not been employed in the beginning of the cause), objected to, and the court refused.]

Mr. Bearcroft read from the notes of the late Mr. Masterman, one of the secondaries of the crown office, a case, where it was his opinion, that a new jury was conformable to the practice; and he quoted also a cause against Lord Charles Fitzroy, where Mr. Lowton had also, as solicitor for the defendant, moved for a new jury, and had succoeded; but he owned, that in this case it had been consented to by both parties.

Mr. Bearcroft then said he would argue the question on the reason of the rule. It struck him as a most important point indeed, that juries should not be continued from term to term, as they might be tampered with by the parties; a thing so outrageous to justice, and so opposite to the spirit of

our jurisprudence, that it had been ever the study of the courts, and indeed the very aim cf Parliament, in making the statute of the 3rd of George II. to prevent juries from becoming permanent, or from being so long known beforehand, as to be subject to influence. That in regard to the prayer for a tales, though undoubtedly the defendant must have the warrant of the Attorney-General to enable him to pray a tales, yet the Attorney-General never denied such a warrant. Another argument against the continuance of a jury was, that it must subject gentlemen to great inconvenience-they never would know when they were to be discharged. Here seven of them attended to do their duty, and they were again to be called upon; eleven of them might attend, and still be subject to be called again; there was no end of this, and he owned he did not know how they could call upon them again, for he did not know an instance of an alias distrin · gas to bring up special jurors.

Mr. Adam stated, on the part of the defendants, that there were many instances in the books, especially in Brooke's Abridgment, where an alias distringas had gone to compel the attendance of jurors of all descriptions.

Mr. Justice Buller said that as this case comprehended so important a rule of practice he had taken pains to inform himself on the point, and he had found a case which, in his mind, determined

the rule He would read it, and then Mr. Bearcroft would see what he could make of the argument. Mr. Justice Buller then read a manuscript note of the case the King v. Franklin, the publisher of the famous paper called the Craftsman. It was important to remark the time and the judges-it was the 5th of George II. only three years after the law recognizing special juries in misdemeanors had passed, and the judges on the bench were Mr. Justice, afterwards Lord Chief Justice Lee, Mr. Justice Page, etc.; and the Crown lawyers were men of the first eminence. Franklin was convicted of printing and publishing a libel in the Craftsman. The case was only so far different from the present that the defendant there moved the court to reverse the judgment, because the cause, after being put off from one term to another, had not been tried by a new jury. Here the defendants moved to continue the same jury. The doctrine was the same in both cases, only that in this case it is upon the application of the Attorney-General that the new jury is required; in that case the Attorney-General or the Crown contended that the old jury should continue. Chief Justice Lee pronounced the opinion of the court, which Mr. Justice Buller read. The opinion of the court was, that the words of the statute were

*The same judges who are supposed to have decided the case of the King against Waring.

express, and could not be departed from, unless cause could be shown that there had been some irregularity in the striking of the jury, or in the reducing, or in some part of the proceeding, or in the writ of venire, or otherwise. The words of the statute were, "that the jury so struck and so reduced shall be the jury to try the issue joined in such cause." The jury were not dissolved until the cause was determined, and an alias distringas might issue. The opinion was at great length, and detailed the practice of striking juries by the ancient statutes downwards, and showed that by the act then recently passed, the 11th of George II. the alteration with respect to juries related only to the common jury, and left the practice as to special jurors exactly as it stood by the ancient law, except as it declared that special jurors might be demanded by the Crown in cases of misdemeanor In regard to common juries, it was thought hard and severe to compel their attendance from time to time; but the special jury was left by that act precisely as it stood before. This opinion, Mr. justice Buller said, delivered so soon after the act had passed, so solemnly and argumentatively, in a question discussed by such great legal characters, must in his mind, determine the question. He concluded with saying, that he could not see how the Crown officers could go on without creating error on the record.