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decided this question ; and the Court determined, that the rule for another special jury, obtained upon

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Geo. 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 Eight 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 24 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 synonimous, 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 of Geo. 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 own 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

the motion of the Crown lawyers, must be discharged.

been a matter of compact, executed by a rule of Court; but that în 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, and of the common jury; wbich 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:

And as to another objection that was made, “ that such a course, #if tolerated, would be of great mischief; for then most profli* gate offenders would get themselves acquitted by surprise, or

over-hastening the trial, without allowing the Queen convenient **e 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 find any such danger." And that such a thing may be at least by consent appears 1 Keb. 195. Rex v. Jones. And the granting a nisi prius amounts to a consent.

On the oth 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 then was, 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, 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 criminal charge must be important, but this more particularly so from the nature of the charge. It is connected with the press, which has ever been deemed the great palladium of British freedom. In every case in which it is concerned, it is natural, therefore, that the most watchful attention of Englishmen should be excited. It is of

great consequence, then, in the first instance, to ascertain what properly constitutes the liberty of the press;- what are its bounds, and how far it extends;and on this subject I shall take the liberty of reading to you the sentiments of a character of the highest legal authority, namely, the late Mr. Justice Blackstone.

“ In this and the other instances which we have

lately considered, where blasphemous, immoral, .." treasonable, schismatical, seditious, or scandalous

“ libels are punished by the English law, some with «a greater, others with a less degree of severity, the " liberty of the press, properly understood, is by no

means infringed or violated. The liberty of the

press is indeed essential to the nature of a free “ staté;, but this consists in laying no previous re“ straints upon publications, and not in freedom “ from censure for criminal matter, when published.

Every freeman has an undoubted right to lay what “ sentiments he pleases before the public; to forbid “ ,

this, is to destroy the freedom of the press; but if he -publishes what is improper, mischievous, or illegal, . “ he must take the consequence of his own temerity. “ To subject the press to the restrictive power of a “ licenser as was formerly done, both before and “ since the Revolution, is to subject all freedom of “ sentiment to the prejudices of one man, and make “ him the arbitrary and infallible judge of all contro“ verted points in learning, religion, and govern“ ment; but to punish (as the law does at present)

any dangerous or offensive writings, which, when

published, shall, on a fair and impartial trial, be “adjudged of a pernicious tendency, is necessary “ for the preservation of peace and good order, of:

government and religion, the only solid founda-, “ tions of civil liberty. Thus the will of individuals, “ is still left free; the abuse only of that free will is " the object of legal punishment. Neither is any. “ restraint hereby laid upon freedom of thought " or inquiry ; liberty of private sentiment is still left; “ the disseminating or making public of båd senti

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