The following Case being reckoned curious, and a proper addition to Mr. Noble's motion in arrest of judgment, is here inserted. The CASE of Mr. RICHARD NOBLE impartially considered: abstractly from the Man, or Crime, but merely as to the Law, in relation to the Motion by him made, on Monday the 16th day of March, 1712, at Kingston Assizes, in Arrest of Judgment and the Reason given for over-ruling the same confuted. By a Student of the InnerTemple. : Richard Noble, gentleman, Mary Salisbury, and Mary Sayer, widow, were indicted; he, for the murder of John Sayer, esq. on the 29th day of January, Anno 11° Annæ Reginee; Salisbury, as present, aiding, assisting, and abetting the same; and Mary Sayer, widow of the deceased, for petty-treason, as being present, aiding, assisting, and abetting the murder of her said husband; and the said Noble, on the coroner's inquest for the murder of the said John Sayer, and for manslaughter on the statute of stabbing: and on Thursday the 12th day of March, 1712, were severally arraigned, and severally pleaded Not Guilty, and put themselves on trial, to which they were brought the next morning; and on their trial they severally challenged of those returned to serve upon the jury, viz. Richard Noble 20, Mary Salisbury 20, and Mary Sayer 35, peremptorily; after which a jury was sworn, and charged with them all jointly; and on a long hearing found Richard Noble Guilty of the facts in the indictments, and also on the coroner's inquest; and found Mary Salisbury and Mary Sayer Not Guilty. Whereupon, on Monday following, the 19th of March, Richard Noble was set to the bar, and demanded what he could say, why judgment should not be given, and execution awarded? Upon which he moved in arrest of judgment in these or the like words: 66 My lord, I humbly move in arrest of judgment, for that I apprehend I have had a mistrial, and that my trial has been contrary to the law of England, in that we severed in our challenges, and yet were tried together by the same jury: and, to warrant this opinion, 1 have in my hand the trial of Mr. Charnock, King, and Keys. There were, my lord, then upon the bench, the lord chief justice Holt, the lord chief justice Treby, the lord chief baron Ward, Mr. justice Nevill, Mr. justice Powell, and Mr. justice Rokeby; and there VOL. XV. the lord chief justice Holt, directing himself "Look ye, you that are the prisoners, every "And again, Do you understand what is said to you, Mr. King and Mr. Keys? Every one of you may, without shewing any cause, except against thirty-five of those that are returned of the jury, which are to try you, if you have no mind that those should be sworn; but then, if each of you do severally challenge thirty-five, ye cannot be tried by the same jury." "And there is a case to the same purpose in one of the year books, I think it is in 9 E. 4, fol. 27, but desire that my counsel may speak to it." This is the substance of what Mr. Noble then said; upon which, being asked who were his counsel? He answered, Mr. Darnall and Mr. Bonwick, who were by the Court readily assigned to be bis counsel; but (for what reason I cannot well apprehend) could neither of them be prevailed on to speak to it. So that although it was agreed and allowed, that the words were as full and clear as they could be penned, the Court soon over-ruled the motion, alleging, that the lord chief justice Holt's reason in the case of Charnock, King, and Keys, was, that in case each of them severally challenged thirty-five, three times thirty-five would amount to 105, and then they must have been obliged to sever them (as the Court were near obliged to have done in the present case) for default of jurors; and Mr. Noble, after a speech by him, tending to obtain a short reprieve, had judgment given against him. I have, as carefully as I could, fairly and indifferently stated the case, and shall now proceed to consider it as briefly as possible. Challenge of a juror is an undoubted right of the subject, and was at the common law; and therefore, it is to be presumed, to have been as ancient as trial by juror, and was unquestionably at first allowed in favorem vitæ,' 3 C and to give the prisoner an opportunity, as it were, to chuse his jury, so as he exceed not the number prescribed by the law: and, consequently, I take it, at the common law, every man, of right, might and still may, the same having been altered by no statute that I can find, as to a commoner, demand to be tried single, although jointly indicted in the same indictment with others; and that for these reasons, among others: First, for that in case an innocent person should unhappily be indicted with a criminal, it might be a means to prevent the jury, from the evidence given against the criminal, to be inveigled or drawn aside, to give too hard a verdict on the guiltless. lenge likewise twenty, who must by the same rule be likewise drawn or set aside, as to all; this will amount to sixty challenged by the first; and as the first and second prisoners have the benefit of the challenges of the third, so has the third the benefit of theirs. This tantamounts to a challenge of sixty by each, and thereby endangers their being pressed or hanged for challenging above the number prescribed by the law; which the Court is by no means to suffer. An appeal against Beauchamp, and several others, who plead Not Guilty, and one ven. fac. for all issued return, &c, at which day one of the defendants challenge a juror peremptorily, 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 pannel there are such returned, as me and two others, that 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, which he has reason to I have a joint ven. fuc. &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 him, jurors, then at another day may the other do in and bis hands, as it were tied up, the other in- the same manner; and then, when they have dicted with him shall come in and take off all taken their peremptory challenges, still one of those indifferent men, and so leave him 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 chalis 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 ven. fuc. 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 ven. 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 one, and taken against the other; and the plaintiff ought to have had several ven. fac. Thirdly, for that the Court cannot accept of a joint plea, nor receive a joint verdict; but the plea of Not Guilty, although it be the general issue, yet in its nature and effect is several. And so in trespass against several; they may every one come and plead several pleas by several attornies, and have several trials: And reasonable, for otherwise a plaintiff might join one in the action, who could oblige all the others to stand or fall by his confession, defence, or plea. And as in trespass they may sever in their pleas, so in treason or felony Not Guilty is a several plea, nay, and amounts to a special plea; and the prisoners, or any of them, shall have the same advantages, as if he or they had pleaded specially to all intents and purposes whatsoever. Dr. St. cap. 48, fol. 150, 1, 2. And afterwards the plaintiff challenged the array, which was quashed; and the plaintiff prayed several ven. fac. against every one of them to the coroners; which, by justice Jenny, he could not have in that case, for this reason only, because the plaintiff had elected to have a joint ven. fac. The plaintiff notwithstanding prayed to have several ven. fac. at their peril. Which plainly shews, that the law was against them as to the other. 9 E. 4, fol. 27. And it was there said, that at a gaol-delivery, if an inquest be demanded to pass upon two or three men, and one challenge peremptorily, then the clerk ought to sever the felons, every one by himself. And there seemed to be a difference (and so is the book) where there are several plaintiffs, &c. because if a man be found favourable to one, he is favourable to both, for that their title is joint: But otherwise it is of defendants, where a man may have favour or malice to one, or not; or be indifferent to the other. 9 E. 4, fol. 27. Appeal against the principal and accessary, who plead Not Guilty, and the accessary challenge the array, and the principal said nothing; and because the array was quashed on his chal lenge, Hankford would not take the inquest against the other; and the reason was, because the ven. fac. was joint, and the plaintiff might have had several ven. fac. 4 H. 4, 58. And in Banco Reg. Thimelby and Gray were arraigned on an indictment of robbery, as principles, who severally pleaded Not Guilty, and severally put themselves upon their country; upon which a ven. fac. was returned this term, and the jury appeared, and three of the jury were sworn against both, and Thimelby challenged the four next without cause, or without saying peremptorily; and Gray would not challenge them, for which Thimelby was withdrawn from the bar; and the four who were challenged by Thimelby were sworn against Gray, and so many more, till twelve were charged on him, who found him Guilty: And Saunders moved, whether this was a right trial or not? For that there was but one ven. fac. awarded, nor but one pannel returned; and one juror cannot be drawn out of the pannel, and in the same pannel be allowed: But by the opinion of all the justices of both benches, the trial was good, for that no judgment was given, that the jurors that were challenged by the one should be drawn, but, that they should stand aside for a time; and were not clearly discharged by the court; and for that the ven. fac. for the king differ from ven. fuc. in an appeal. Dyer, fol. 152, pl. 8. And although in 1 H. 5. 10, it is ruled by the opinion of the Court, that a juror on indictment may be challenged by one of the defendants, and stand against the other, &c. that is, it is no principal cause of challenge in one de fendant to say the other defendant had before challenged him. And so is the book to be taken, and the law is agreeable thereto, and the reason there given fully explains it so to be intended, viz. for that they are several pannels and inquests in law; and therefore, if one defendant had appeared on an indictment, and the other defendant had made default, yet the Court would have proceeded against him who appeared, although it may be otherwise in an appeal. Which plainly proves the Court ought to sever the prisoners on indictment, where they will not join in their challenges. And in the trial of the Regicides; Harrison, Scroop, Jones, Clements and Scot were set to the bar to be tried, and sir Thomas Allen was called and sworn; then sir Joshua Ash was called, and Mr. Scroop excepted against him: then sir Jeremy Whichcot was.called, and Mr. Harrison excepted against him; James Halley, esq. being next to be sworn, Mr. Scot excepted against him: Whereupon the Court (speaking to the prisoners) said, "If you will not agree in your challenges, we must be forced to try you severally." And Henry Mildmay, esq. being called next, Mr. Scroop excepted against him: Whereupon the Court said, "We must needs try them severally, therefore set them all aside but Harrison." Which was done, and the several persons which before had been called and excepted against, were again called, and excepted against by Mr. Harrison. [See his Trial, in this Collection, vol. 5, p. 1009.] And so in Mr. Scroop's case, vol. 5, p. 1035. Jones, Scroop, Scot, Gregory, Clements, and Carew being set to the bar, sir Thomas Allen was called, and bis hand being on the book, Scroop challenged him; and thereupon the lord chief baron spoke thus to the prisoners: “That you may not mistake, if you challenge in this manner, and do not join in your challenges, we must try you severally, one after another: I must tell you the course of the law; if one challenge one, and another challenge another, we must sever, and go to trial one by one. Call the next." The clerk called sir Henry Worth, and Scroop challenged him; upon which the lord chief baron replied, "Then we must go on severally, set all aside but Mr. Scroop." And directing himself to Mr. Scroop, said farther," Mr. Scroop, you may challenge particularly whom you will, till you come to thirty-five; if you go beyond that number, you will lose the benefit of the law." And in that of Carew, Scot, Jones, and Clements: They being at the bar, the Lord Chief Baron demanded of the prisoners, Whether they were all agreed as to their challenges? who answered, No. "Then (said the Lord Chief Baron) we must do as before, sever you, and go to trial severally:" And directed that the three should be taken away, and that Mr. Carew should be let stand at the bar. And indeed, through the whole course of the proceedings on the trial of the Regicides, the Court took great care of the several prisoners, that none of them might be any ways prejudiced, either by challenging too many (viz. more than the faw allows) of the jury, or any other forms of law, as a matter perfectly incumbent on the Court to observe, take care of, and prevent. And now I beg leave to observe, that the reason the Court gave in Noble's case, was not that the lord chief justice Holt grounded his opinion on; for that in fol. 1 of Charnock's trial, it appears that above eight-score were by the sheriff returned to serve on that jury, consisting of baronets, knights, esquires, and gentlemen; so that it plainly appears (they having been called over, sitting the court) that in case each of the prisoners had challenged thirtyfive, amounting to one hundred and five in all; yet would there have been a sufficient number of jurors, to wit, above fifty-five, left to have passed upon, and tried the prisoners. And the words of the lord chief-justice Holt in Mr. Charnock's trial, "We can try you all together, as ye are all together jointly in the same indictment, and save the time and trouble, that will otherwise be unavoidable; but if you will not join in the same challenges, but every man challenge for himself, as by law he has liberty to do, we must be forced to try you single, and therefore, &c." can bear no other construction, for the word < unavoidable' is, what must happen or come to pass, notwithstanding any accident or intervening circumstances or conjuncture whatsoever: And, in that sense, I make no question, his lordship spoke them; for otherwise, several other expressions, no doubt, would have occurred, and been used by his lordship, as it might be necessary,' and the like. on indictment challenge severally, the Court ought to sever them in their trials. But it plainly appears, the only question was, how, or in what manner that was to be done, the ven. fac. and pannel being joint? But that objection being once removed, the law is plain, that the trials in all such cases are to be severed, or the prisoners cannot legally be tried at all. And therefore I humbly submit it to the judgment of the learned in the law, whether, in the principal case, (not as to the fact, which I pretend no ways to meddle with) although judgment has passed on the prisoner Noble, yet be having before sentence moved this matter in arrest of judgment and likewise, as I have been credibly informed, (my coming into court being just after that was over-ruled) having desired and earnestly pressed to be tried sepa The often repetition of the same thing, has also a great weight to enforce this observation. And this reason clearly to me appears, to be the foundation of the case in Plowden, that though the pannel be joint on indictment, and tales awarded, yet the Court (who are ever to be of counsel for the prisoners, to give them law and justice, 2 Inst. 178, and not permit any inconvenience to happen to them in forms of law, Trial of Charnock et al. Dr. & St. c. 48, p. 150, 1, 2.) may and (as I humbly ap-rately and apart from the other two, there be prehend) ought, in case the prisoners sever in their challenges, to sever the pannel, and prevent not only the inconvenience in that case mentioned, but many other, Plow. Com. 100, 101; 2 Hale's Pl. Cr. ch. xxxiv. not room to respite execution till the point be. settled and consideration had what may be necessary farther to be done therein. And the rather, for that in the case of Hopkin Hugget, on a special verdict found at a gaol delivery at NewAnd this is the more to be relied on, for that gate, 25 April, 1666, 18 Car. 2, on an indictin an appeal against one Woodlark, the defendant ment of murder, to this effect: that John Berry, took so many challenges, that 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 returned immediate, that thereupon, after the unknown man was viz. what number the justices please to award, imprest, he, 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 three 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 man 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 had copies of this speCom. 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 Rainsford, were of opinion as then advised, severally. [Kelyng'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 manslaughter; and gave some rea Collection.] sons to support their opinions: But the lord chief justice Kelyng, Mr. Justice Twisden, Wyndham, and Morton, were of another opi And throughout all the books there appears to be no dispute, but that where the prisoners nion, and held it to be murder, and gave their reasons for it; After which difference the lord chief justice Kelyng granted a Certiorari, to remove the cause into the then King's-bench, to be argued there, and to receive a final and legal determination. And although all the judges of the Court were clearly of opinion it was murder, yet it being in a case of life, they did not think it prudent to give judgment of death upon bim, but admitted him to his clergy. Kelyng's Reports, fo. 59, 60, 1, 2. So very tender were the judges in the case of life, not only well to be advised, but even against their own opinions, and that when they were very clear in it, to give judgment in favour of life, although in a case of murder.* * All this is from the Former Edition; some references however being corrected. See more on the subject in a Note to the Case of Coke Woodburn, a. D. 1722. 449. Proceedings in Parliament against JAMES Earl of DERWENTWATER, WILLIAM Lord WIDDRINGTON, WILLIAM Earl of NITHISDALE, ROBERT Earl of CARNWATH, WILLIAM Visc. KENMURE, and WILLIAM Lord NAIRN, upon an Impeachment for High Treason: 2 GEORGE I. a. d. 1716. 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 being taken prisoners whilst in actual hostilities, the parliament at that time sitting, it was moved in the House of Commons,* January 9, that they should not be left to the ordinary method of prosecutions, but be proceeded against by way of impeachment: After the general assurances this House has given his majesty, one moment ought not to be lost without taking some effectual step towards making them good. The first and great concern is to put an end to this rebellion, not only to quiet the present commotions, but to extinguish the very possibility of their being renewed: for these ends every gentleman will agree to strengthen the hands of the king, in such manner as will enable him speedily and effectually to complete this work: you will do this with absolute cheerfulness, from the certain knowledge and experience we have had of the wisdom and justice of his majesty, who will make no other use of any confidence his parliament shall repose in him, than to promote the common welfare of his people; and whatever extraordinary assistance the present juncture of affairs shall require, will be continued no longer than the public necessity calls for. The next useful and necessary step is the national justice, which is incumbent on this House, in duty to the king, as well as in justice to the people; and as ungrateful and disagreeable a part as this must be, yet when the design of the enemy is become so desperate and so avowed, as to strike at the crown upon the king's head, and "It does not appear that the Commons had before them any papers, or evidence of the facts; or any other ground for their proceeding shan common fame." 4 Hatsell, 238. war, the House cannot exert themselves too early, nor with too much vigour; and as the House shall acquit themselves on this occasion, I dare promise myself the effect will be answerable. The spirit which shall be shewn in this instance, will animate the friends of the government both at home and abroad; and the terror it must strike on our enemies, will be equal at least, and contribute as much to the common safety, as any other preparation that has or can be made. I wish I could say or think that this rebellion is the project of those only who appeared to head it; or that it is the result of the weak or rash counsels of those who publicly avow it; I wish I could say, that it is the work of Papists only, or of those few Protestants who are wicked or weak enough openly to join in it. I wish I could say, that it was a plot but of yesterday, and that it has taken no deeper root than ordinary appearance will lead to suspect: but i think it plain, that it is the effect of many years labour, of the joint and united labour of great numbers, both Protestants and Papists, the plain and necessary consequence of the measures which have been carrying on for some years past: to frame a right judgment of the nature of this rebellion, 1 think it necessary for us to look back and consider the natural tendency of the public proceedings of late years, and the connection they bear with the present unfortunate state of things; when men in sacred functions suffered themselves to become state instruments, and the great merit of such men was under the pretence of asserting the doctrines of the Church of England, to condemn the Revolution, I could never understand any other design or tendency from those practices, than to undermine the foundation of the Protestant Succession. I remember it was said upon a very solemn occa sion, by a very honourable gentleman, "That the condemning the late happy Revolution, |