be so strictly applied as not to wave the right on the part of the Crown, if any discovery had been made between the commencement and the conclusion of the oath ; but every case of that sort is a special case, and must depend upon its own circumstances. On the general point, whether considered on practice, on usage, or on the general principle, I have no doubt whatever that the Prisoner is to make his challenge before the Crown makes its decision; and that both the one and the other must be concluded when the oath has commenced.

Mr. Justice Abbott. The Court is now called upon to lay down a general rule. I have no doubt that, if from inadvertence, or any other cause, the Prisoner or his counsel should have omitted to make the challenge at the proper moment, the strictness of the rule, which confines him to make his challenge before the officer begins to administer the oath, would not be insisted upon by the Attorney General, or if insisted upon by him would not be allowed by the Court. But in prescribing a general rule, I should be extremely unwilling to depart from what I conceive to be an uniform practice. I have already expressed my own opinion, formed on my recollection of many former trials of this kind. I recollect one trial for felony, in which there were several challenges taken both on the part of the Prisoner and the part of the Crown. In the case of felony, challenges are very unusual, I remember one case, the practice pursued by the officer of the Court was that which has always been pursued by the officer on trials for Treason, where challenges are more common; he applied to the Counsel for the Prisoner, to know whether he challenged or not, and then to the Counsel for the Crown.

Considering this to have been the usual practice, I should have been very unwilling now for the first time to lay down a different rule, unless very good reasons had been assigned for departing from it; unless it had been shewn in argument that the rule was attended with inconvenience in the administration of justice, or hardship on the Prisoner. The argument, however, on the part of the

Prisoner has not satisfied my mind that any such conse quences will result; I think, therefore, that we ought to abide by that practice, which, according to all I have this day heard, I should think the most convenient practice that could be established, if the question were now for the first time presented to a Court of Justice, and no prior precedent referred to; I am therefore of opinion, that the Counsel for the Prisoner ought, in the first instance, before the officer begins to administer the oath, to declare whether he intends, or not, to challenge; and that on his declining, then the Crown must determine whether they challenge; and, on both declining, then the officer must swear the Juror, and that after that moment, by strict rule, both parties are excluded from interference; but if any particular circumstance arises, I have no doubt the strict rule will be waved.

Mr. Justice Holroyd. I am of opinion that the strict rule as to challenges is, that they shall be made before the oath is begun to be administered. When a Juror is called and presented to the Court, the first thing is to ascertain whether he is a Juror or not. The next thing to be enquired into is, whether either party has cause of challenge, or not: I mean, after it is ascertained that he is a freeholder, and has those qualifications, without which he cannot be sworn. The first step, therefore, is to ascertain whether he is to be sworn or not. The course has always been, and, if my recollection is right, the course has been determined to be, that the Prisoner's counsel should first state whether they challenge or not. The next thing, if they do not object to him, is to ascertain whether the Counsel for the crown object to him; and it is not intended that the Court, or the officer of the Court, are to do that which would be a nugatory act-to swear him. Then, if neither party challenges him, and it is shewn that he is a person qualified to be a Juror, the only requisite step remains to be done, that he shall be sworn, by which he becomes a complete Juror; and that is not to be done till it is ascertained whether there is a challenge by either party.

The act of swearing I take to be one single act; and it would be extremely indecorous that the Court should proceed to do an act which would be nugatory, and which the law says shall not be done till it is ascertained whether there is cause of objection, or not. That the constant usage has been so, is unquestionable; and, on a late case, to be found in the State Trials. I am confident it will be found, that, on the objection being made, the words of the officer appeared to be, that the challenge shall be as the Juror comes to the book to be sworn. There was a case in which a Juror came, and the book happened to be handed to him, an objection not happening to be made at the time, and it was decided by the Court, that the party was too late to make the objection, for the objection is to be made at the time the party comes to the book to be sworn; and, if there was an objection to him, it should be stated before the book is presented to him, for the Court is not to do an act which is nugatory. Agreeing clearly with the rest of the Court on principle, and considering the question as determined, I am of opinion, that the challenge must be made previously to the book being handed to him, and before he is sworn.

Mr. Attorney General. My Lord, lest it should be supposed that the Prisoner had been prejudiced by any misconception on this point, I agree that it shall be entered, that the last challenge was for the Crown.

Lord Chief Baron Richards. It must be very satisfactory, that the Attorney General has consented, for the benefit of the Prisoner, that that challenge shall be entered as made by the Crown.

Mr. Justice Dallas. I have just been looking at Layer's case, in which it is laid down, that the Prisoner's counsel must declare whether they mean to challenge, before the King's Counsel take their objection.

Mr. Gurney. And that form of proclamation to the Prisoner, to which Mr. Justice Dallas alluded, was settled by the twelve Judges, with Lord Holt at the head.

Robert Shipton, Farmer, challenged by the Prisoner. John Stretton, Farmer, challenged by the Prisoner.

Henry Yates, Farmer, sworn.

Robert Steeple, Farmer, challenged by the Prisoner. John Skevington, Farmer, challenged by the Prisoner. John Oakden, Farmer, sworn.

Isaac Statham, the younger, Farmer, challenged by the Prisoner.

Paul Caulton, Farmer, challenged by the Prisoner.
John Adsett, Farmer, fined £10.*

William Beresford, Gentleman, challenged by the Prisoner.

Solomon Frost, Farmer, challenged by the Prisoner.
John Adsett, Farmer, now appeared, sworn.

The Jury were charged with the Prisoner in the usual form.

Lord Chief Baron Richards. I wish to have it understood, and therefore the caution which I gave yesterday I repeat to day, that no part of the proceedings of this day or of any day during any of the Trials, this Trial which is now depending or any future Trials, shall be made public till all is concluded, and if this notice which I now give for the second time be not attended to, the Court must use the authority it has to bring the delinquent to punishment: I trust there will be no occasion for any further notice.

Mr. Attorney General. My Lord, before Mr. Balguy opens the Indictment, it is our request on both sides that the witnesses may be out of Court.

Mr. Justice Abbott. That does not apply to mere witnesses of form of course?

• See four lines lower down.

Mr. Attorney General. No, my Lord, we do not wish that on either side.

Mr. Gurney. It cannot apply to the High Sheriff, of course he must be in Court?

Mr. Cross. Certainly to no one officially employed. Mr. Serjeant Vaughan. Nor to the Magistrates I suppose?

Mr. Cross. That is distinctly understood, we do not object to any Magistrate remaining in Court.

Lord Chief Baron Richards. It is to be understood that such witnesses as are to be examined, except those who are specially excepted, are to withdraw from the Court, and not to return into Court until they are called

for.

The Indictment was opened by Mr. J. Balguy.

Mr. ATTORNEY GENERAL.

May it please your Lordships.

Gentlemen of the Jury.

We are assembled in this place upon a most solemn and important occasion; and you twelve gentlemen are placed in that box to perform one of the most solemn and sacred functions that men, in the state of society in which, thank God, we live in this country, can be called upon to perform, namely, that of deciding, by your verdict, upon the guilt or innocence of one of your fellow-subjects, charged with the highest crime that in a state of society, against that state of society, any man can commit. Gentlemen, there are other crimes, to which human nature at times is prone, of a very great and enormous magnitude, but those crimes striking generally only at the safety and 'the happiness of certain individuals, though they are crimes against the law and against the peace of the king, who is the representative of the state; yet, in the class of civil crimes, they fall far short of that crime of High Treason, which is in fact committed against all and each of the community who belong to that state and society where that crime happens to be committed. The safety and the happiness, and the comfort of us all, is involved in the