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apd to give the prisoner an opportunity, as it | lenge likewise twenty, who inust by the same were, to chuse his jury, so as he exceed not rule be likewise drawn or set aside, as to all; the number prescribed by the law: and, con- this will amount to sixty challenged by the sequently, I take it, at the common law, every first; and as the first and second prisoners have man, of right, might and still may, the same the benefit of the challenges of the third, so having been altered by no statute that I can bas the third the benefit of theirs. This tanfind, as to a commoner, demand to be tried tamounts to a challenge of sixty by each, and single, although jointly indicted in the same thereby endangers their being pressed or bang. indictment with others; and that for these ed for challenging above the number prescribreasons, among others :
ed by the law; which the Court is by no means First, for that in case an innocent person to suffer. should unhappily be indicted with a criminal, An appeal against Beauchamp, and several it might be a means to prevent the jury, from others, who plead Not Guilty, and one ven. fac. the evidence given against the criminal, to be for all issued return, &c. at which day one of inveigled or drawn aside, to give too hard a the defendants challenge a juror peremptorily, Verdict on the guiltless.
and the other defendants say nothing, the juror Secondly, for that when a pannel is returned, shall be sworn against them, and the reason the prisoner (who, as was said before, may in a there given is, for that otherwise they might be manner chuse his jury) will otherwise be de. delayed of their acquittal for ever ; a mischief, prived of that right: As if two or three are in- | inconvenience, and wrong: And therefore the dicted, and the first perceive that in the begin-book goes on, and says, If covin be between ning of the papnel ibere are such returned, as me and two others, ihat I bring an appeal he has great reason to suspect are partial, but against them and another, to the end the other by challenging has a prospect to bring himself shall be detained in prison, &c. in that case, if to those in the pannel, wbich he has reason to I have a joint ven. fac. &c. and one challenge apprehend are indifferent; if, when he has peremptorily; and if he remain for default of challenged the number the law allows bim, jurors, then at another day may the other do in and his hands, as it were tied up, the other in the same manner; and then, when they bave dicted with bim shall come in and take off all taken their peremptory challenges, still one of those indifferent men, and so leave bim over to them may challenge with cause, and I will those he had as much (or more) reason to sus commit this challenge, &c, and so the three pect as those he had before challenged; which shall remain in prison for ever. If the chal. is a mischief, and that the law abhors, for the lenge of one shall be for all, &c. And the doubt juror returned may have malice to one, and be there was, whether the Court could sever them, indifferent as to the other; and so is the 9 E. it being in an appeal, and the den. fac. joint? 4, fol. 27, and the plaintiff or prosecutor no And by all the justices of the one bench, and ways prejudiced, for he might have sued se- the other, it was held, that because the ven. fac. veral den. fac. and thereby have been aided. was joint, the challenge of the one is for all, for And so is the book expressly.
that he could not be drawn as to ope, and taken Thirdly, for that the Court cannot accept of against the other; and the plaintiff ought to a joint plea, nor receive a joint verdict; but the have had several den. fac. plea of Not Guilty, although it be the general And afterwards the plaintiff challenged the issue, yet in its nature and effect is several. array, which was quashed; and the plaintiff
And so in trespass against several; they may prayed several ven. fac. against every one of every one come and plead several pleas by sea them to the coroners; which, by justice Jenny, veral attornies, and have several trials : And he could not have in that case, for this reason reasonable, for otherwise a plaintiff might join only, because the plaintiff bad elected to have a one in the action, who could oblige all the joint ven. fac. The plaintiff notwithstanding others to stand or fall by his confession, de I prayed to have several ven. fac. at their peril. fence, or plea. And as in trespass they may Which plainly shews, that the law was against sever in their pleas, so in treason or felony Not them as to the other. 9 E. 4, fol. 27. Guilty is a several plea, nay, and amounts to a And it was there said, that at a gaol-delivery, special plea; and the prisoners, or any of them, | if an inquest be demanded to pass upon two or shall have the same advantages, as if be or three men, and one challenge peremptorily, they had pleaded specially to all intents and then the clerk ought to sever tbe felons, every purposes whatsoever. Dr. St. cap. 48, fol. one by himself. And there seemed to be a dif150, 1, 2.
ference (and so is the book) where there are From whence I argue, that it is the right of several plaintiffs, &c. because if a man be found every subject to demand and brave a separate favourable to one, be is favourable to both, for trial, in criminal Cases, if so he be minded. that their title is joint: But otherwise it is of For,
defendants, where a man may have favour or If three are indicted of felony, one chal. | malice to one, or not; or be indifferent to the lenges the whole number twenty, and those other. 9 E. 4, fol. 27. twenty are to be drawn, that is, set aside and Appeal against the principal and accessary, not suffered to pass upon the other; and the who plead Not Guilty, and the accessary chal. second challenge twenty, those are to be drawn lenge the array, and the principal said nothing; or set aside in like manner; and the third chal. and because the array was quashed on his chale lenge, Hankford would not take the inquest had been called and excepted against, were against the other; and the reason was, because again called, and excepted against by Mr. the ven. fac. was joint, and the plaintiff might | Harrison. (See his Trial, in this Collection, fol. have bad several den. fac. 4 H. 4, 58.
5, p. 1009.) And in Banco Reg. Thimelby and Gray were And so in Mr. Scroop's case, vol. 5, p. 1035. arraigned on an indictment of robbery, as prin-Jones, Scroop, Scot, Gregory, Clements, and ciples, who severally pleaded Not Guilty, and Carew being set to ibe bar, sir Thomas Allen sererally put themselves upon their country; was called, and his hand being on the book, upon which a ven. fac. was returned this term, Scroop challenged him; and thereupon the lord and the jury appeared, and three of the jury chief baron spoke thus to the prisoners: “ That were sworn against both, and Thimelby cbal. you may not mistake, if you challenge in this lenged the four next without cause, or without manner, and do not join in your challenges, we saying peremptorily; and Gray would not must try you severally, one after another: I challenge them, for which Thimelby was with must tell you the course of the law; if one drawn from the bar; and the four who were challenge ope, and another challenge another, challenged by Thimelby were sworn against we must-sever, and go to trial one by one. Cali Gray, and so many more, till twelve were the next.” The clerk called sir Henry Worth, charged on bim, who found him Guilty: And and Scroop challenged bim ; upon which the Saunders moved, whether this was a right trial lord chief baron replied, “ Then we must go or not? For that there was but one ven. fac. on severally, set all aside but Mr. Scroop.” awarded, nor but one pannel returned; and one And directing himself to Mr. Scroop, said farjuror cannot be drawn out of the pannel, and ther, “ Mr. Scroop, you may challenge par. in the same pannel be allowed : Bat by the ticularly whom you will, till you come to thiropinion of all the justices of both benches, the ty-five; if you go beyond that number, you trial was good, for that no judgment was given, will lose the benefit of the law.” that the jurors that were challenged by the 1 And in that of Carew, Scot, Jones, and Cleone should be drawn, but, that they should ments: They being at the bar, the Lord Chief stand aside for a time; and were not clearly Baron demanded of the prisoners, Whether discharged by the court; and for that the ven. they were all agreed as to their challenges ? fac. for the king differ from ven. fac. in an ap- | wbo answered, No. “Then (said the Lord peal. Dyer, fol. 152, pl. 8.
Chief Baron) we must do as before, sever you, And although in 1 H. 5. 10, it is ruled by and go to trial severally :" And directed that the opinion of the Court, that a juror on indict the three should be taken away, and that Mr. ment may be challenged by one of the defen-Carew should be let stand at the bar. dants, and stand against the other, &c. that is, ' And indeed, through the whole course of the it is po principal cause of challenge in one de proceedings on the trial of the Regicides, the fendant to say the other defendant had before Court took great care of the several prisoners, challenged him. And so is the book to be that none of them might be any ways prejutaken, and the law is agreeable thereto, and the diced, either by challenging too many (viz. reason there given fully explains it so to be more than the law allows) of the jury, or any intended, viz. for that they are several pannels other forms of law, as a matter perfectly inand inguests in law; and therefore, if one de- cumbent on the Court to observe, take care of, Sendant had appeared on an indictment, and the and prevent. other defendant had made default, yet the Court And now I beg leave to observe, that the reawould have proceeded against him who ap- son the Court gave in Noble's case, was not that peared, although it may be otherwise in an the lord cbief justice Holt grounded his opi. appeal,
pion on; for that in fol. 1 of Charnock's trial, Which plainly proves the Court ought to it appears that above eight-score were by the sever the prisoners on indictment, where they sheriff returned to serve on that jury, conwill not join in their challenges.
sisting of baronets, knights, esquires, and genAnd in the trial of the Regicides; Harrison, tlemen; so that it plainly appears (they having Scroop, Jones, Clements and Scot were set to been called over, sitting the court) that in case the bar to be tried, and sir Thomas Allen was each of the prisoners had challenged thirtycalled and sworn; then sir Joshua Ash was five, amounting to one bundred and five in all; called, and Mr. Scroop excepted against bim : yet would there have been a sufficient number then sir Jeremy Whichcot was called, and Mr. of jurors, to wit, above fifty-tive, left to have Harrison excepted against him ; James Hal. passed upon, and tried the prisoners. ley, esq. being next to be sworn, Mr. Scot' And ihe words of the lord chief justice excepted against bim: Whereupon the Court Holt in Mr. Charnock's trial, “We can try (speaking to the prisoners) said, “ If you will you all together, as ye are all together not agree in your challenges, we must be forced jointly in the same indictment, and save the to try you severally.” And Henry Mildmay, time and trouble, that will otberwise be esq. being called next, Mr. Scroop excepted unavoidable; but if you will not join in the agaiust bim: Whereupon the Court said, “We same challenges, but every man challenge for must needs try them severally, therefore set himself, as by law he has liberty to do, we must them all aside but Harrison." Which was be forced to try you single, and therefore, &c." done, and the several persons which before can bear no other construction, for the word unavoidable' is, what must happen or come to on indictment challenge severally, the Court pass, notwithstanding any accident or inter- | ought to sever them in their trials. But it vening circumstances or conjuncture whatso- plainly appears, the only question was, how, ever: And, in that sense, I make no question, or in wbat manner that was to be done, the his lordship spoke them; for otherwise, several ven. fac. and pannel being joint? But that obother expressions, no doubt, would have oc- jection being once removed, the law is plain, curred, and been used by his lordship, as it that the trials in all such cases are to be severed, might be necessary,' and the like.
or the prisoners cannot legally be tried at all. The often repetition of the same thing, has And therefore I humbly submit it to the also a great weight to enforce this observation. judgment of the learned in the law, whether,
And this reason clearly to me appears, to be in the principal case, (pot as to the fact, which the foundation of the case in Plowden, that I pretend no ways to meddle with) altbough though the pannel be joint on indictment, and judgment has passed on the prisoner Noble, yet tales awarded, yet the Court (who are ever to he having before sentence moved this matter in be of counsel for the prisoners, to give thein arrest of judgment and likewise, as I have law and justice, 2 Inst. 178, and not permit been credibly informed, (my coming into court any inconvenience to happen to them in forms being just after that was over-ruled) having of law, Trial of Charnock et al. Dr. & St. | desired and earnestly pressed to be tried sepa. c. 48, p. 150, 1, 2.) may and (as 1 bumbly ap- rately and apart from the other two, there be prehend) ought, in case the prisoners sever not room to respite execution till the point be in their challenges, to sever the pannel, and settled and consideration had wbat may be neprevent not only the inconvenience in that case cessary farther to be done therein. And the ra
entioned, but many other, Plow. Com. 100, ther, for that in the case of Hopkin Hugget, on a 101 ; 2 Hale's Pl. Cr. ch. xxxiv.
special verdict found at a gaol delivery at New. And this is the more to be relied on, for that gate, 25 April, 1666, 18 Car. 2, on an indict. in an appeal against one Woodlark, the defendant ment of murder, to this effect; that John Berry, took so many challenges, tbat the jury remain and two others with him the day and place, ed against the defendant, by default of jurors, &c. had de facto, but without warrant (for and resolved, that in an appeal of murder, rape, aught appeared) imprest a man, unknown, to or felony, there may be had a larger number serve in the wars against the Dutch nation; than the principal pannel returved immediate, that thereupon, after the unknown man was viz. what number the justices please to award, imprest, be, with the said John Berry, went in regard the defendants may challenge pe- together quietly into Cloth-fair ; and the said remptorily; and therefore the justices award a Hopkin Hugget and ihree others, walking totales of 40. 14 H. 7, fol. 716, tit. Appeal.gether in the rounds in Smithfield, and seeing And so of an indictment, 2 Hale's Pleas of the the said Berry and two others, with the man Crown, ch, xxxiv. Finch's Law, c. 36, fo. imprest going into Cloth-fair ; instantly pur415, and that the stat. Westm. 2, c. 38, does sued after them, and overtaking Berry and the not extend to criminal cases or indictments. | imprest man, and the two other men, required Vane's case, Kelyng 7, 16. S. C. Vol. 6, p. \ to see their warrant, and Berry shewed them
And the practice has constantly been, and a paper, which Hopkin Hugget and the three was so resolved at the Restoration, by a great others said was no warrant; and immediately number of justices, upon mature deliberation, the said Hopkin Hugget and the three others that if several prisoners be put upon one jury, drew their swords, to rescue the said map imand they challenge peremptorily, and sever in prest, and did thrust at the said John Berry, their challenges, that then he who is challenged and thereupon the said John Berry, and the by one is to be drawn against all, because the two others with him, did draw their swords and pannel being joint, one juror cannot be drawn fight together, whereupon the said Hopkin against one, and serve for another ; but in such | Hugget did give the wound, &c. to the said case the pannel might be severed, and that the John Berry, whereof he instantly died : And same jury may be returned between the king | if upon the whole matter the said Hopkin and every one of the prisoners, and then they Hugget be guilty of murder, they find so; if are to be tried severally, and there the chal- of manslaughter they find so, &c. And afterlenge of one prisoner is no challenge to disa- | wards the opinion of all the judges of England, ble the juror so challenged against another. met at Serjeants-inn, in Fleet-street, being deAnd the case of Dr. Ellis's servant, Plow. sired in the case, (having bad copies of this spe Com. 100, 101, was agreed to be good law, as | cial verdict sent to them) whether they held it to the severing the pannels in that case. And murder or manslaughter? And there being a accordingly, in the trial of Harrison, Scroop, difference in their opinions, viz. the lord chief Carew, and other the regicides, who challenged justice Bridgman, lord chief baron Hales, Mr. peremptorily, and severed in their challenges, Justice Atkins, Tyrell, Turner, Brown, Archer, the pannels were severed, and they were tried | and Raiosford, were of opinion as then advised, severally. [Kelyog's Reports, fo. 9, 10. And but not to be bound by it, that it was no murder, the Trials of the Regicides in vol. 5, of this but only mavslaughter; and gave some rea. Collection.]
sons to support their opinions: But the lord And throughout all the books there appears chief justice Kelyog, Mr. Justice Twisden, to be no dispute, but that where the prisoners | Wyndham, and Morton, were of another oplnion, and held it to be murder, and gave their ! So very tender were the judges in the case of reasons for it: After which difference the lord life, not only well to be advised, but even chief justice Kelyng granted a Certiorari, to against their own opinions, and that when they remove the cause into the then King's-bench, were very clear in it, to give judgment in fato be argued there, and to receive a fipal and vour of life, although in a case of murder. * legal determination. And although all the judges of the Court were clearly of opinion it * All tbis is from the Former Edition; some was murder, yet it being in a case of life, they references however being corrected. See more did not think it prudent to give judgment of on the subject in a Note to the Case of Coke death upon him, but admitted him to his clergy. Woodburn, A. D. 1722. Kelyng's Reports, fo. 59, 60, 1, 2.
449. Proceedings in Parliament against James Earl of DERWENT
WATER, William Lord WIDDRINGTON, WILLIAM Earl of
THE above-named lords having excited a re- to involve the nation in the calamities of a civil bellion, and levied war against his majesty, and war, the House cannot exert themselves too being taken prisoners whilst in actual hostilities, early, nor with too much vigour; and as the the parliament at that time sitting, it was moved House shall acquit themselves on this occasion, in the House of Commons,* January 9, that I dare promise myself the effect will be an. they should not be left to the ordinary method swerable. The spirit which shall be shewn in of prosecutions, but be proceeded against by this instance, will animate the friends of the way of impeachment :
government both at home and abroad; and the Upon which occasion, Mr. Lechmere spake
terror it must strike on our enemies, will be
equal at least, and contribute as much to the as follows:
common safety, as any other preparation that After the general assurances this House has has or can be made. I wish I could say or given bis majesty, one moment ought not to be think that this rebellion is the project of those lost without taking some effectual step towards only who appeared to head it; or that it is the making them good. The first and great con- result of the weak or rash counsels of those cern is to put an end to this rebellion, not only who publicly arow it; I wish I could say, that to quiet the present commotions, but to extin- it is the work of Papists only, or of those few guish the very possibility of their being renew- Protestants who are wicked or weak enough ed: for these ends every gentleman will agree openly to join in it. I wish I could say, that to strengthen the hands of the king, in such it was a plot but of yesterday, and that it has manner as will enable bim speedily and effec- taken no deeper root than ordinary appearance tually to complete this work: you will do this will lead to suspect : but I think it plain, that it with absolute cheerfulness, from the certain is the effect of many years labour, of the joint knowledge and experience we have had of the and united labour of great numbers, both Prowisdom and justice of his majesty, who will testants and Papists, the plain and necessary make no other use of any confidence bis parlia- consequence of the measures which have been ment shall repose in bim, than to promote the carrying on for some years past: to frame a common welfare of his people ; and whatever right judgment of the nature of this rebellion, 1 extraordinary assistance the present juncture of think it necessary for us to look back and con. affairs shall require, will be continued no longer sider the natural tendency of the public pro. than the public necessity calls for. The next ceedings of late years, and the connection they useful and necessary step is the national jus- bear with the present unfortunate state of tice, which is incumbent on this House, in duty things; when men in sacred functions suffered to the king, as well as in justice to the people; themselves to become state instruments, and and as ungrateful and disagreeable a part as the great merit of such men was under the prethis must be, yet wben the design of the enemy tence of asserting the doctrines of the Church is become so desperate and so avowed, as to of England, to condemn the Revolution, I could strike at the crown upon the king's head, and never understand any other design or tendency
from those practices, than to undermine the *“ It does not appear that the Commons foundation of the Protestant Succession. I re. had before them any papers, or evidence of the member it was said upon a very solemn occa facts; or any other ground for their proceedingsion, by a very honourable gentleman, " That than common fame." 4 Hatsell, 238. the condemning the late happy Revolution,
could have no other meaning than to make way tion these things on no uncertainties, having for another." However wicked and dangerous been an eye-witness of them myself, and it these practices were, they made too great an having fallen to my share to bear some part in impression, and contributed a great deal to the them: this was one of the most successful parts present calamity ; for as the designs of the of the scheme of those who had fixed their enemy grew more avowed, state principles of eyes on the Pretender: the House need not be another kind were advanced, which still con- told how far it has operated, to the prejudice of duced to the same end. It was well known the Protestant Succession. I could give many what industry was used to inculcate the notions other instances of this kind, all which promoted of hereditary right to the crown, in opposition the same end: the gross distinctions that were to the settlement which bad been made of it in coined to elude the oaths that had been made the House of Hanover by the authority of par- for the security of the government: the endealiament, and with no other view than to weaken vours that were used to possess the people with that settlement: every one remembers wbat false fears of the danger of the Church ; and extraordinary pains wore taken to poison the the little care that was taken, to say no worse people with this dangerous notion; and that of it, to instil into the youth of the kingdom, those who made the best court to men in power, such principles as were consistent with the true were such who espoused this opinion in the interest either of Church or State. I look upon most notorious manner. I cannot forget with these things to be the foundation of the scheme what tenderness a certain divine * of the that is now, by this rebellion, carrying op into Church of England was treated below stairs, execution ; and I own that in this respect the whilst under prosecution for the most impu- authors of it were wise in their generation, for dent libel + that ever was published against any by these arts the very principle on wbich the government, that had either will or power to Protestant Succession is founded was shaken; maintain itself. I think the punishment that and though the methods of doing it were base was inflicted on that gentleman light enough, and vile, yet the dissatisfaction and uneasiness but I cannot avoid taking notice of a remarka- that was created by them in the minds of the ble passage which then alarmed every thinking people, made way for the change that was deman, and will, one time or other, deserve the sired. I must crave leave to put you in mind consideration of this House, viz. The order of other parts of this scheme that were carryfrom the government, countersigned by a se- | ing on at the same time. The enemies to the cretary of state to the judges of the Queen's- present government judging aright for their bench, after the judgment passed, to supersede own purpose, by all methods to attack tbe conthe ignominious part of ihe punishment, by sciences of the people, as to the legality and reason of the sacred function of the criminal: justice of the settlement of the crown in the by which the most unexampled and dangerous House of Hanover, thought it necessary at the distinction was introduced; and which pro. same time to disable, as far as they could, those ceeding could bear no other construction, than persons who bad been most remarkable for their as a licence and protection, even from the go- services in the support of it: the great effort vernment to men in holy orders, to propagate was made at that great man,* who is not only the that destructive position with impunity; and honour and ornament of his country, but the the character of the person, which ought in glory of the age be lives in. I think I shall justice to have aggravated his guilt and heigh- not be suspected of flattery at this time, por, I tened the punishment, became his indemnity believe, at any time, with respect to that great against the reproach of it, even by the autho man. Many who now hear me, remember the rity of the government itself. I remember part I took in vindication of that great man, very well in what manner every thing of that whilst his character was under debate in this nature was treated in Westminster-ball; what House. I cannot forget the rage and inveteseverities were exercised against those persons racy with which be was pursued; nor how who had courage enough to assert the interest much stress was laid upon obtaining tbe cene of their country, and of the Protestant Successures of parliament upon him : the aspersions sion, at the same time that the patrons of he- / then thrown upon him did not hurt that great reditary right enjoyed all indulgences. I men inan : and whatever endeavours may at any
time be used to lessen him, will burt node * Mr. Bedford.- Former Edition.
but those that sball promote them: but yet “I am informed that this book, though usu- those vain endeavours were a very useful ally ascribed to the Rev. Mr. Hilkiah Bedford, part of the scheme then carrying on. It was in reality written by Mr. Harbin; and the was a necessary step for those men to put preface by the Rev. Mr. Theophilus Downs. bim out of the way, whose very name and I am also referred to Tillotson's Life, by Dr. appearance, at that time, would have been Bircb, 2nd edit. with regard to these particu. sufficient to raise armies in favour of the lars.” Barrington's Obs. on 11 Hen. 7, c. 1. | Protestant Succession and the liberties of his See a short memorandum of Bedford's Case, country: But I cannot but observe, that as and other particulars concerning him, in a note serviceable as it was for tbe measures of those to the Case of John Matthews, A. D. 1719, men to wound his character, it is now a reproach infra. + « The Hereditary Right asserted,” &c.
* The Duke of Marlborough.