The Statesman.
London, England, 1820-11-24 00:00:00

') The Awe* for which IlAlliPI)E-N fell in the Field, am( SYDNEY died on Ike We

LAW INALLIGENCE.

COURT OF BINH'S BENCH, Nov. EL

[The decision in this interesting ease we rave in (pr'
parer of yeatereley. We now present the prueeyings
and argument to
THE JONG r. cal( riratcirr AND 0 rout*.
This, it will be recolle..ted, was an irdlittipent
against John Cartwright, Esq. tieo-ge Echnends, T.
J. Wooler. and Wns. tireathead Lewis, for a co ey,'
with others, to unlawfully elect a Represen* in
Parliament for the inhabitants of Birmingham, and in
pursuance thereof electing Sir Charles 11 olsehy, Bart.
to be such Representative: At the last Assiseeafor the
County of WarwiA, before the Lord Chief Baron, the
defendants Were found guilty.
The defendants now appeared in Court personally
for the purpose of moving to set aside the verdict. and
obtaining a new trial.
Mr. DENMAN appeared on behalf of Edmonds
and Madded's, Yea 1111.1. fur Major Cartwrighti -Una'
the rest of the defendants proposed to addrese the
Conrt in permits. •
Mr. DIMIAX (lewd the application. This motion
was made on grosads which were altogether inde-
pendent of say thing that took place in the course of
the trial of the indictment. It was f limited on
grounds prising antecedently to the trial it,cll, and re-
lated to th • mode in which the Jury leas ridlecte.l to
try the indictment. The trial was ordered by a Rule
of Court, to take place before a Special jury. Four
Special Jurymen only attended t and a Ti.les hating
been prayed, eight 'I alesmen were sworn of the Jury.
The first objection be bad to submit arose loot; to fere
the date of the trial, and reltted to the mode of ap-
pointing Special Jurors in general. That objection
was intended to draw the attention of tl.e Court onre
more to the doctrine laid dim it in r. Wooler--1
Barn. and Ala. 193. where it nag held that the 3laster
of the Cion a I Mice had the right of moilinating;.nuil
selecting the names t f persons who mere to serve as
Specisl Jmurs.
'f he CHILI, JrSTICE—Is there any other mode of
selecting Special Jurynwil, tat can be suggested?
Mr. DaNst submit that it is nut to be an act
of selection, and I think upon consideration there are
:rood grounds for submitting that argument.
31r. Justice Hsi-Lei—ln the ease you refer to, was
it a .ion to set aside the verdirt, or to set aside the
list of Jurors nominated ?

31r. Di. Ml\—lt wasa moths.) antecedent to the
and before the siltation did tit undergo all the
discussion it might.
The enter JusTict —When was the Special Jury
struck in :he case?

Mr: DeN AX —Before the Spring Assizes ;.J think
In Hilary Ter.. -
The Cnts, Jertiee— es 'there wari• two crw*,
in which a motion might hare btea turtle to set aside
the Special Jury.
Mr. DrsimaN—The Special Jury was ltrark 011
the •2:011 of Fehrimry Ix'', awl the intliettuent was
taken don n to the Leo Asbizes. bet it was not then
The Cater JUSTICIC-14 there any induce in
which a party has been allowed first to hike the chance
of his trial. and then take adraetafe dutch a motion
as this. ate .r havittz had an opportunity, of which lie
omitted to avil hints.l:, of moving-to set isaiJe the See-
cial ?

Ale. Desat ts.—l am very unwilling to commit the
interests my dient to my 'Homy, whether any such
case has occurred. lam nut provided with any casein
which that has been done. 'this Sweial Jury wee
strut k un the :nth of February, for tae Assizes then
coming on, and at the moment of striking this Spe•
cial Jury, the objections were made is hich I shall stow
have the honour of snhinittin; to the ('ours. 'I hose ob-
jections were reiterated at the time, and I think they
are entitled to very great Wright ; for when the de-
fendants afterwards came docu to trial, they again ob-
jected to the proceeding, and they challenged the array
fur the imputed partiality of the Master. 1 his im-
puted partiality forms the second ground of this ap-
plication to your Lordships. The first ground is
simply upon the authority of the Master to exercise
a discretion in making the nomination to the Special
Juty.
'1 he Cuter Jess-pt.—This part of the case, I pre-
mate. is founded upon affidavit.
DENNAN answered, that it was founded upon
the affidai its of Mr. Charles Pearson and Major Cart-
wright. Those gentlemen stated, that they attended
by appointment, un the 2.ith of February, at the of
of the Ki.ig's Crown, to nominate the Jury to try this
cause, when the hook or list of frerhul.!ers of the county
of IV 'writ k, competent to sit tiro,' Juries for that
county, was produced which hoot: earlS taitted 2,1•110
names, or thereabouts. That Major Cartwright asked
the Master of the Crown-ufliee what was the rule lie
observed in strikiug the panel en such occasions: To
which he 1V:13 answered by the 31astei, that lie had
h. en in the habit of opening the b .uk at hazard with
his pen, aid from the place liens openeil, selectibg the
names iv' 50...• persons as he thought proper, and as°
pcuee..:liiig qa•ii he had coin:dried the poet ; but that
fur so time past, he had dealt .1 to pr..ce. din that
manner, and selected fr..ni the entire list the whole
panel, according t h:i own judgment and discretion.
flue first question then ua . whether, according to the
trite intent and meaning of the :let of Parliament, J
(ten. 11. e. •25, the .ilas•e: of the Crump-office has a
right to exercise his jii igment and ilisreethm in the
choice of the nausea of persons to sit un special
Juries ?
The enter-JCSTI E.—What did they tell him to do,
and what ought he to du ?
Mr. Damm.lx.-1 say that he should have adopted
sonic mode of nominating the Jury, wiiich was indif-
ferent.
The Cuter-Just'. not this the proper mode?

Mt. DENNAN.-4 submit not.

The entier-Jusncr.--Wby sot

AIL Dzxstan.—Becsure it places the matter entirely
in the discretion of the individual officer, which I sub-
mit *ache wt ;ea be.
The Ouse-Ater:cr.—The question in. whether the
Legislature does nut so direct the selection to take
place. Who selects the ordinary Jury fur the Assizes ?
Mr. DEN:4 tx.---The Sheriff.
Ile Cater A./click .—Then does not the Sheriff
telect the Jury, and is not that the usual mods?

Mr. Dan m.t K.-1 it this case I submit that the Master of
the Crown Iltfics is to no:Linate, and not to select. Nomi-
nation does not import the power of selection according
to his own judgment : for, if that were so, it would give
the Master very considerable opportun!ties for making a
partial and biasses! selection. Probably, the same op-
portunities fur such partiality would not be *forded
for the selection of Jurors from the bo..ks of London
and aliabllesex, where the defendant might have an
niportueitv of knowing the persors iy.temling to be
strut*. lint not so in small ft/untie., lire the per-
sons qualified to serve as Special Jurors must be com-
paratively few in number. The proper eourse for the
Master to pursue w.dild be, to tare I:.e sles-ription
Bits 11 by the Sberili, and select the Jurors aercriling
to that description ; but according to the practice now
pursued, it gives the Master a complete discretionary
power as to who shall, er who shall not serve on the
Special Jury. The Court will hear with some sue-
prise, that in the county of Warwick. though there
are 2,500 freeholders, good and lawful men, those of
that nensher who arc entitled to the appellation of,
Esquire, amount only to hl.. So that if the Sheriff!
had returned :hose only, the Master would have an
opportunity of select:ng -IS from among them, and
the A:IIIIC 15 Esquire, might be selected in every in-
stance. In other counties there might nut be 0'
Empires to make up the panel. I think Itutlandshire
would fords,' en example of that kind. According'
to the Statute 3 tiro. ii. ..a., the only description
liven of the permits eligible to serve as Special
Jurors is, that they should be " free and lawful
men."

"Fte Cuter JrSTICE.-..-Is it not usual to mill sense!
description to the persona nutuitiatesi, in order to ilia.'
&guild, them!. tor it may happen that there are'
persons of the same 111 Lie ill the comity. Lien in'
continuos Jury tanels, t believe, an addition 1.0
description is Oven ii :h that limy.
Mr. Dsxmax.7-1 tottkonit, that the meaning of
Special Jury is not merely a cora...Akin of persons
of a certain rapit a:id station in life, who should
he thought by the Master of the Crown Office tit
persons to serve on a jury, but that the Special
Jury must be a return of forty-eight names, taken
indifferently, awl by hazard, from which the twelve
mispigito et) he prem. 11-eaeesa.tfini
is the Statute which gives the M ister of the l'ruw:t
OlLce a right to exercise one oli,creti.on in the se-
lection of those who a-c to he re.m.ited the
pearl.
The Otter Jesrtec.--Can a person nominate Ivith-
eat selecting is the later to nominate %%it'll-
out selecting?
Mr. IteNusx.--It is very ease to nominate or set
aside names that are presented iDlifferently in the
book, without any exereise of discretion upon the sub-
ject, in the saute way as the names of twelve re;.sous
arc taken oat of an urn or box, to be swum ;:s a .u:n-
mon jury.
The i lIIF7 Jrsrtra.—There no discretion eau be
exercised, 'treatise it is expressly required by the Ste-
tate, that the officer shall draw the names by ballot.
Mr. licxst.tx.—lf there had been that exitvu pra-
vision made in such a cue as this, there could be no
argument, because the practice then would be clear
and definite; but I submit, that when there is an am-
biguous expression capable of misappl:tiation, the
practice should he similar to the mode adopted in other
eases, and to the general ruins of law, anti the princi-
ples elks:dice.
Mr. Justice Ilzer.--If irhat yon suggest be the
proper course, special juries will bo the Mite as
common.

Mr. Dxsist.tx said, in the case of a common jury the
party had a right to reject, or challenge a juror-wit
eligible to serve; but in the case of a special jury,
' the Master exercises his discretion in the selection of
names---a discretion which wiis ti,) where given by
law. Hr believed, that the addition ef trinire del
pended entirely upon a grant from the Crown.
Mr. Justice Derr.—Then von nill find a great
number of Esquires who would hare great difficulty
in malting out their title.
Mr. HaNsttx said, that if all the persons qualified
to serve as special jurors, were retwnsd merely as
freeholders, they would fall antler the same principle
whielt all juries should fall under. In this ease it so
happened, that fmrteen of the persons actually nomi-
nated hail been on the ()rand Jury who foetid the Bill.
This must have arisen from the paucity of persons who
were described by the appellation of Esquire, and that
was one great objection %thief' he had upon principle
to this mode of selecting jurors.
The Unite Ji any person sworn npnn
the jury to try the indictment, nho had been upon
the brand Jury.
Mr. Ites.stax replied in the negatire,
Mr. Justice Res I.•—Thut would be a good cause of
challenge.
Mr. Ilkstmart.-1 here could be no cause of chal-
lenge to a special juror at the Anse of 'he trial.
t he Coo EV Jcs rtes.—That is anothi r
,iniat.
Mr. I fENIS 1S C:!:21rIllied, that the nowt: Allot of the
4;1 04:11e% upon Cie panel ought to talce place by hazard
and indifferently, without any discretion on the part of
the Zlasi.r. The question was, whether the Act of
Parliament intruded to give a right of selectinto, which
n•As liable to abnse and suspicion, if exercised is the
way complained of. Thr Km, r. Wooler hid decided
that sttell a discretion might lie exercised. It was now
his duty to submit, upon a toestinit so extremely itupor-