Lord Chief Justice Kenyon said, he must bow to such great authority, though the inclination of his disposition was the other way. But a point so solemnly argued (and where such a man as Mr. Pulteney, Earl of Bath, being implicated, error would have been pleaded, if they could have found error on the record), must decide the present case. He made no inquiry at all, and did not take into his consideration the merits of the question at issue between the present parties; but it was, in his opinion, of the utmost interest to criminal jurisprudence, that juries should not be subject to influence. It was that consideration which gave rise to the law for the balloting-box. Every lawyer knew the necessity that there was for that statute; as all the provisions which had been previously made to guard against influence, had proved ineffectual, though any person convicted of trying to influence jurors, was subject to a penalty of ten times the amount of the object at issue in the cause. What held good as to civil suits was equally applicable to criminal prosecutions. The principle of the balloting-box was equally applicable to both; but it was impossible to resist the precedent, standing as it did upon so high authority.

Mr. Justice Grose and Mr. Justice Ashhurst were of the same opinion.

The case of the King v. Franklin,* there.ore,

* In consequence of that case, viz. : the King v. Franklin, it became unnecessary for Mr. Erskine and Mr. Adam, as counsel for the defendants, to say anything on the part of the defendants; but it may not be unacceptable to know, by a short statement, how far the old practice confirms the good sense and authority of the case of the King v Franklin.

Special juries existed long before the statute of the third George II., by the act of the parties; and that as well in misdemeanor as in other cases. One party applied for a special jury, and the other party consented; so that the special jury was then the result of compact between the parties. But when the parties had so contracted, the authority of the court was necessary to give validity to the compact. Accordingly the court, upon application, made a rule for a special jury; and that rule ran in the same words before the statute, that are used now since the statute; an observation very material, especially in considering the last words. The rule ordered then, and it orders now, that forty-eight shall be returned; that the prosecutor shall strike twelve and the defendant twelve; and that twenty-four, the remainder of the forty-eight, shall be the jury returned for the trial of the issue joined in that cause.

This being agreed between the parties, and enforced by a rule of court, the parties, before the statute, chose their forum, and by this forum, their own compact, and the authority of the rule of court compelled them to abide; insomuch, that they could not get quit of the jury by the common mode of challenging the array; that is, challenging the whole panel of jurors; such challenge, after the rule of court, being deemed, like every other breach of the authority of the court, a contempt, by the party who should so challenge.

This had met with a decision in several cases, but particularly in the case of the King v. Burridge, for a misdemeanor, which came before the Court of King's Bench, in Trinity Term, 10 George I., a very short time before the passing of the act respecting special juries.

That case is reported in Lord Strange's Reports, vol. I., p. 593; in Lord Raymond, 1364; in Andrew's Reports, 52; in Eighth Modern Reports, 245; and in many other books; and the case, as reported in all of them, not only confirms the argument and statement above given, but explains the only remaining difficulty in the case, viz.: the meaning to be put upon the words in the rule of court, that the twenty-four shall be the jury returned for the trial of the issue in that cause.

For the judges, in the reports given of their opinions, consider as

decided this question; and the court determined, that the rule for another special jury, obtained upon the motion of the Crown lawyers, must be discharged,

synonymous, and meaning the same thing, the above phrase; and that they shall be the jury who shall actually try the cause; contrary to the construction contended for by the Crown, on the present occasion, where it was pressed that the statute and the rule were both satisfied, when the jury had been returned, although they had not actually tried the

cause.

Soon after this case, that is, in the 3d George II. came the statute; and it is very material to observe, that the statute transcribes verbatim the latter words of the rule used before the statute. Therefore whatever was the construction of those words in the rule, the same must be their construction in the statute. It has been shown in what sense the judges considered the words in the rule, and it will not be contended that the words in the statute. "which said jury, so struck, shall be the jury returned for the trial of the said issue," can bear a different construction. There is, therefore, judicial authority, added to that of common sense, to settle the 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.

This was the more material, because of the Attorney-General's power to refuse the defendant a warrant to have a tales, to make up the special jury, if deficient, out of the common jury, which was so far from being an idle right, as mentioned by Mr. Bearcroft, that there was a case in which it was solemnly agitated, and which formed a ground of decision that the attorney could and ought, in certain cases, to exercise the right. The King v. Jacob Banks, Sixth Modern Reports, p. 246, as follows:

SPEECH OF THE ATTORNEY-GENERAL.

On the 9th of December, 1793, the cause having been called on for trial, Mr. Attorney-General opened the case for the Crown as follows:

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 was then, as you now are, sworn to discharge an important duty to the public according to the best of his judgment. It has since fallen to my lot to execute that duty, in stating to you the grounds upon which this information has been filed. And I have no difficulty in saying

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 her 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 I. Keb. 195. Rex. v. Jones. And the granting a nisi prius amounts to a consent.

that, previous to my coming forward for this purpose, I thought it incumbent upon me to consider whether, in the office which I now hold, I should, of my own accord, have instituted this prosecution; because I thought that it became me not merely to follow up the measures of that highly respectable character, and to bring his opinion before a jury, but to be able, in so doing, to say that I approved of those measures, and concurred in that opinion; and to act exactly as he had done, according to the best of my judgment, for the public. Had I been clearly of opinion that this paper was not fit for the consideration of a jury, I have no hesitation in confessing that I should certainly have discontinued the prosecution. You, gentlemen of the jury, I am sure, will do me the justice to believe that I am not capable of the impertinence of saying, that because I may think this paper fit for prosecution, and may think the defendants guilty, you therefore must think so too. The prosecution does nothing more than declare that the paper is a proper subject for the discussion of a jury, and as such, that I consider myself as bound to bring it forward in the course of my professional duty. With respect to the guilt or innocence of the defendants in publishing this paper, that question which falls to your consideration I am perfectly satisfied to leave to your decision. This is a cause of the highest importance, as indeed, every cause which involves a