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The List having been gone through, the Defaulters wera
Mr. Attorney General. My Lord, my learned friend having stated that it is his intention to sever his challenges, I should state to your Lordship, that it is my intention to proceed to the trial of Jeremiah Brandreth first.
The prisoner, Jeremiah Brandreth, otherwise John
Coke, otherwise the Nottingham Captain, was accordingly set to the bar.
The Jurors returned by the Sheriff, and who had answered
to their names, were again called over. William White, Farmer, challenged by the Prisoner. William Morley, Farmer, challenged by the Prisoner. William Wilkes, Farmer, sworn. John Stretton, Farmer, sworn. Robert Beard, Farmer, challenged by the Prisoner. Thomas Robotham, Farmer, challenged by the Crown. William Salt, Miller, challenged by the Prisoner. Robert Frost, Farmer, challenged by the Prisoner. John Tempest, Farmer, sworn. John Heacock, Esq. challenged by the Prisoner. William Bailey, Farmer, challenged by the Prisoner: Samuel Wilder, Farmer, sworn. Thomas Archer, Farmer, sworn. Thomas Orme, Farmer, challenged by the Prisoner,
Thomas Harvey, Farmer, not a Freeholder of the county of Derby, to the amount of £10. a year.
Samuel Archer, Farmer, challenged by the Prisoner.
Thomas Borough, Gentleman, challenged by the Crown.
Thomas Hall, Farmer, challenged by the Prisoner. Thomas Ensor, Farmer, challenged by the Prisoner. Walthall Spurrier, Farmer, challenged by the Prisoner. Henry Spurrier, Farmer, challenged by the Prisoner. Michael Goodall, Farmer, challenged by the Prisoner. Thomas Lowndes, Farmer, challenged by the Prisoner: Thomas Webster, Farmer, challenged by the Prisoner. John Bradshaw, Farmer, challenged by the Prisoner. Robert Eaton, Farmer, sworn.
Thomas Gilman (of Osliston and Thurvaston,) Farmer, Sworn.
Thomas Sherwin, Farmer, sworn.
William Shipton, Farmer. (No challenge having been made, the Cryer commenced the administration of the oath, when challenges were interposed by Mr. Denman, and nearly at the same moment by the Solicitor General.)
Mr. Solicitor General. You should mention that à little sooner: you do not mention it till they are begun . to be sworn.
Mr. Cross. They are to be challenged before they are sworn: I apprehend that is till they are fully sworn.
Mr. Attorney General. My Lord, I apprehend that that means before they are begun to be sworn. When the Prisoner has decided whether he shall challenge, it is for the Crown to decide whether they shall or not challenge. Now, if a juryman is begun to be sworn, the Crown cannot tell, till the last word of the oath comes out of the officer's mouth, whether the Prisoner will exercise his privilege first; and the consequence is, if the last word of the oath comes out of the officer's mouth, the Crown is prevented from challenging, because then the person is sworn; and, therefore, though I am sure that if my learned friend, Mr. Cross, from inadvertence, did not attend at the
moment, I should be very far from desiring to preclude him from exercising the right at any time; yet, I apprehend, being challenged before they are sworn, means before they are begun to be sworn by the officer; and that is the course I have always seen pursued, whether on trials in which I have been myself engaged, or on other trials. That was the course on the late trial for Treason, in the Court of King's Bench, where the officers looked first to the Counsel for the Prisoner, then to the Counsel for the Crown ; and, receiving no intimation from the one or the other, then he gave the Juror the book.
Mr. Cross. My Lord, I was not aware that the Prisoner was bound to exercise his right of challenge before the Crown; nor did I conceive it to be any privilege to the Prisoner so to do; because, undoubtedly, it is rather a disadvantage to the Prisoner to expend his challenges on a person who would be the subject of a challenge by the Crown. I must take your Lordship’s direction, whether we are bound to make our challenge before the Crown.
Mr. Attorney General. My Lord, I apprehend that the Prisoner has a right to make his challenge at any time before the book is put into the juryman's hand, and he is begun to be sworn. They may change their intention at any time before the man is begun to be sworn; but I submit, that neither the Prisoners Counsel, nor the Counsel for the Crown, have a right to challenge the juryman after he is begun to be sworn. If, through any circumstance, there were inadvertence on the part of the Prisoner, I certainly should not insist on the Prisoner being tried by a juryman to whom he felt an objection ; but I apprehend, my Lord, that the Prisoner is called upon to challenge first; and one of the reasons why I apprehend that the Prisoner is called upon to challenge first, is that the Prisoner has five and thirty challenges, without any cause to shew why. The Crown challenges peremptorily, but the Crown must shew cause why, if after they have made their challenges, there are not a sufficient number of jurymen; and therefore the Prisoner necessarily ought to decide, whether he means to exercise his peremptory
challenge, before he calls upon the Crown to exercise their right of challenge; for which, though peremptory in the first instance, it may afterwards be necessary they should assign cause; in fact, it is a qualified challenge, because it may become necessary afterwards to make it out by matter of good cause.
Mr. Denman. My Lord, unless this has been already decided, I humbly wish to add a few words.
Mr. Solicitor General. Unless you make it matter of favor, I do not think you are entitled to be heard in this stage.
Mr. Denman. It is as matter of favor I ask it; the importance of it did not strike me before. I trust, on this subject, your Lordship will indulge me with a few observations.
Mr. Justice Abbott. Having attended, I believe, more trials of this kind than any other of the Judges, I would state that the uniform practice has been that the juryman was presented to the Prisoner, or his Counsel, that they might have a view of his person ; then that the officer of the Court looked first to the Counsel for the Prisoner, to know whether they wished to challenge him; he then turned to the Counsel for the Crown, to know whether they challenged him, and if neither of them made any objection, the oath was administeied; and from reference to the State Trials, independently of the terms of the intimation made to the Prisoner when he may challenge, it is clear that that must be the uniform practice; for this reason you will very often find that the Prisoner himself, in the early part of our history, said " I do not challenge him ;" then, at a later period, you find his Counsel saying “ I do not challenge him;" and then the Attorney General, or the Counsel for the Crown, saying " then I challenge him for the Crown,” evidently shewing that that was the practice. For the last twenty years I can speak to the practice.
Mr. Denman. If your Lordship thinks that the practice which has prevailed is decisive, then I will not trouble the Court; but I think it is very important, especially where there are three hundred Jurors returned to try these
Prisoners, and where the thirty-five challenges are only a drop in the ocean ; there is still remaining a panel three or four times larger than that to which the Prisoner generally applies his challenges; it appears to me this is a question which cannot very frequently arise, but very important in principle, and that the fair course would be, where either party has an objection to a juryman on the point of being sworn, perhaps that each side give in that objection to the Court, and that then some alternation should take place as to the privilege. I do not mean to say that that has been the practice, but that to secure any thing like fairness and mutuality for the parties, that is necessary; for here the Crown gets the benefit of the Prisoner's challenge; the Crown has an objection to him also, and though it is very true that the Crown must afterwards support their challenge for cause, yet it is perfectly clear that this panel cannot be deficient in point of number; the Crown can never be put to any inconvenience; when all the thirty-five challenges are expended, it is impossible there should not be enough left to try the Prisoner, the question then clearly is, whether the Crown are by means of the fears of the Prisoner to get rid of a person whom they do not chuse to trust to try the case; I think it my duty to state this to the Court, thinking it a matter of the very greatest importance.
Mr. Attorney General, My Lord, I will make one or two observations to your Lordship as far as my recollection goes; having referred to several State Trials for High Treason, I do not recollect one, I do not mean to say that I have looked at those trials for the express purpose of this question, but I think from my recollection I can venture to challenge my learned Friends to take from the first volume of State Trials down to the last, and that they will not see in the course of any of those trials any other course of proceeding than that of the Prisoner first making his election to challenge or not, and I take it for the reason that I have taken the liberty of already stating to your Lordship, which is this, that the Prisoner has his right of peremptory challenge from any caprice, if