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.

Secondly, for that when a pannel is returned, the prisoner (who, as was said before, may in a manner chuse his jury) will otherwise be deprived of that right: As if two or three are indicted, and the first perceive that in the beginning of the pannel there are such returned, as he has great reason to suspect are partial, but by challenging has a prospect to bring himself to those in the pannel, which he has reason to apprehend are indifferent; if, when he has challenged the number the law allows him, and his hands, as it were tied up, the other indicted with him shall come in and take off all those indifferent men, and so leave him over to those he had as much (or more) reason to suspect as those he had before challenged; which is a mischief, and that the law abhors, for the juror returned may have malice to one, and be Indifferent as to the other; and so is the 9 E. 4, fol. 27, and the plaintiff or prosecutor no ways prejudiced, for he might have sued several ven. fac. and thereby have been aided. And so is the book expressly.

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.

From whence I argue, that it is the right of every subject to demand and have a separate trial, in criminal cases, if so he be minded. For,

If three are indicted of felony, one challenges the whole number twenty, and those twenty are to be drawn, that is, set aside and not suffered to pass upon the other; and the second challenge twenty, those are to be drawn or set aside in like manner; and the third chal

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 shall be sworn against them, and the reason there given is, for that otherwise they might be delayed of their acquittal for ever; a mischief, inconvenience, and wrong: And therefore the book goes on, and says, If covin be between me and two others, that I bring an appeal against them and another, to the end the other shall be detained in prison, &c. in that case, if I have a joint ven. fac. &c. and one challenge peremptorily; and if he remain for default of jurors, then at another day may the other do in the same manner; and then, when they have taken their peremptory challenges, still one of them may challenge with cause, and I will commit this challenge, &c. and so the three shall remain in prison for ever. If the challenge of one shall be for all, &c. And the doubt there was, whether the Court could sever them, it being in an appeal, and the ven. fac. joint? And by all the justices of the one bench, and the other, it was held, that because the ven. fac. was joint, the challenge of the one is for all, for that he could not be drawn as to one, and taken against the other; and the plaintiff ought to have had several ven. fac.

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 chal. lenge 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. fac. 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 defendant 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.

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 his 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 law 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.

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 hear no other construction, for the word

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 him, 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.

After the general assurances this House has given bis 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 than common fame." 4 Hatsell, 258.

to involve the nation in the calamities of a civil 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 equal at least, and contribute as much to the terror it must strike on our enemies, will be 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, I 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,

could have no other meaning than to make way for another." However wicked and dangerous these practices were, they made too great an impression, and contributed a great deal to the present calamity; for as the designs of the enemy grew more avowed, state principles of another kind were advanced, which still conduced to the same end. It was well known what industry was used to inculcate the notions of hereditary right to the crown, in opposition to the settlement which had been made of it in the House of Hanover by the authority of parliament, and with no other view than to weaken that settlement: every one remembers what extraordinary pains were taken to poison the people with this dangerous notion; and that those who made the best court to men in power, were such who espoused this opinion in the most notorious manner. I cannot forget with what tenderness a certain divine* of the Church of England was treated below stairs, whilst under prosecution for the most impudent libel + that ever was published against any government, that had either will or power to maintain itself. I think the punishment that was inflicted on that gentleman light enough, but I cannot avoid taking notice of a remarkable passage which then alarmed every thinking man, and will, one time or other, deserve the consideration of this House, viz. The order from the government, countersigned by a secretary of state to the judges of the Queen'sbench, after the judgment passed, to supersede the ignominious part of the punishment, by reason of the sacred function of the criminal: by which the most unexampled and dangerous distinction was introduced; and which proceeding could bear no other construction, than as a licence and protection, even from the government to men in holy orders, to propagate that destructive position with impunity; and the character of the person, which ought in justice to have aggravated his guilt and heightened the punishment, became his indemnity against the reproach of it, even by the authority of the government itself. I remember very well in what manner every thing of that nature was treated in Westminster-hall; what severities were exercised against those persons who had courage enough to assert the interest of their country, and of the Protestant Succession, at the same time that the patrons of hereditary right enjoyed all indulgences. I men

* Mr. Bedford.-Former Edition.

"I am informed that this book, though usually ascribed to the Rev. Mr. Hilkiah Bedford, was in reality written by Mr. Harbin; and the preface by the Rev. Mr. Theophilus Downs. I am also referred to Tillotson's Life, by Dr. Birch, 2nd edit, with regard to these particulars." Barrington's Obs. on 11 Hen. 7, c. 1. See a short memorandum of Bedford's Case, and other particulars concerning him, in a note to the Case of John Matthews, A. D. 1719, infra.

"The Hereditary Right asserted," &c.

tion these things on no uncertainties, having been an eye-witness of them myself, and it having fallen to my share to bear some part in them: this was one of the most successful parts of the scheme of those who had fixed their eyes on the Pretender: the House need not be told how far it has operated, to the prejudice of the Protestant Succession. I could give many other instances of this kind, all which promoted the same end: the gross distinctions that were coined to elude the oaths that had been made for the security of the government: the endea vours that were used to possess the people with false fears of the danger of the Church; and the little care that was taken, to say no worse of it, to instil into the youth of the kingdom, such principles as were consistent with the true interest either of Church or State. 1 look upon these things to be the foundation of the scheme that is now, by this rebellion, carrying on into execution; and I own that in this respect the authors of it were wise in their generation, for by these arts the very principle on which the Protestant Succession is founded was shaken; and though the methods of doing it were base and vile, yet the dissatisfaction and uneasiness that was created by them in the minds of the people, made way for the change that was desired. I must crave leave to put you in mind of other parts of this scheme that were carrying on at the same time. The enemies to the present government judging aright for their own purpose, by all methods to attack the consciences of the people, as to the legality and justice of the settlement of the crown in the House of Hanover, thought it necessary at the same time to disable, as far as they could, those persons who had been most remarkable for their services in the support of it: the great effort was made at that great man, who is not only the honour and ornament of his country, but the glory of the age he lives in. I think I shall not be suspected of flattery at this time, nor, I believe, at any time, with respect to that great man. Many who now hear me, remember the part 1 took in vindication of that great man, whilst his character was under debate in this House. I cannot forget the rage and inveteracy with which he was pursued; nor how much stress was laid upon obtaining the cen sures of parliament upon him: the aspersions then thrown upon him did not hurt that great iman and whatever endeavours may at any time be used to lessen him, will hurt none but those that shall promote them: but yet those vain endeavours were a very useful part of the scheme then carrying on. was a necessary step for those men to put him out of the way, whose very name and appearance, at that time, would have been sufficient to raise armies in favour of the Protestant Succession and the liberties of his country: But I cannot but observe, that as serviceable as it was for the measures of those men to wound his character, it is now a reproach

* The Duke of Marlborough.

It