Sol. Gen. (sir John Hawles). If your lord-plete his pannel to let his bailiff know who must ship pleases to spare me a word of the same be summoned; but in the case of an indictment, side; my lord, this is an objection that has been though a bill be first formed by the clerk, yet foreseen, and I think has been prevented; for, it is not looked upon as a formal indictment in with submission, I take it, the act has been point of law, till it be found by the jury as their sufficiently answered both as to the words, and verdict, and preferred to the court; and it is as to the intent of it, in the prisoner's having not necessary that this indictment should be the copy of the pannel before the jury be re- formed for the jury before they find it, for they turned; there must be such a thing as a pannel are properly to make their own presentments arrayed before the jury be summoned, and themselves; and the ancient practice was, that therefore it is sufficient that the prisoner have they only presented the fact, and the matter a copy of that pannel so many days before his was put into form afterwards by the court, and trial; which was only intended for that parti- in many cases it is so at this day, as we have cular reason, that he might be provided suffi- had some instances lately; but as to the arciently to make his legal challenges. Cer- raying of a pannel it always was so, and always tainly within the intent of the act of parliament must be so arrayed by the sheriff before the jury it is well enough if he had but a copy of the summoned, and there is the difference between pannel two days before the return of the writ, the giving a copy of an indictment and the provided the jury was not altered that was ar- copy of a pannel, the one is taken notice of in rayed, nor any other names put in but those point of law to be necessary, the other is not. that he had a copy of before: now, my lord, I This giving a copy of the pannel, my lord, we think this act of parliament must be taken ac- say, is within the intent of the act, which was cording to the intent and meaning of it, or else only to enable persons accused to make their it will bear hard upon the prisoner, and harder just challenges, and that they may as well do sure than it was designed it should: this act when a copy is delivered after it is arrayed by says, he shall have a copy of his indictment so the sheriff, as when it is returned by the sheriff, many days before his trial; now I would fain and being so done, with submission, it is well know whether they would have it construed, done within the words, and within the intent of that the copy does not need to be delivered till this act of parliament. after issue joined, which must be if their doctrine holds true, that the act is to be construed according to the strict letter of it, for that trial is the trial of the issue; what if the indictment be delivered five days before the trial, though after issue joined, it is well enough according to such an exposition, for the arraigning of the prisoner is no part of the trial, and yet it was the intent of the parliament that he should have a copy of the indictment five days before he was arraigned, and that for this reason, because he might have several pleas to plead, and objections to make before he pleaded the general issue; he might bave pleas in abatement, which after plea pleaded of not guilty he could not have the advantage of, nor could he afterwards move to quash the indictment, which he might otherwise have good reason for, if he had the copy before he was put to plead, so that I take it the act is to be interpreted every where according to the intention of it, and the prisoner at the bar, according to the intention of the act, has had a copy of this indictment five or six days before his arraignment, and therefore we have acted according to the purpose and meaning of the parliament; and likewise he has had a copy of the pannel of the jurors that are to try him, which is duly returned by the sheriff, which is likewise according to the act of parliament. As for what they say that even a copy of the indictment before it be found would not be good according to this act; that is true, but the case Sir Barth. Shower. My lord, in answer to is not the same, nor the reason of the case alike what Mr. Solicitor has said, that there is as between that and the pannel of a jury, because much reason to expect that the copy of the init is sufficient in law to make it a good pannel dictment should not be delivered till after plea if it be arrayed by the sheriff before the jury be pleaded, as that the pannel should not be delisummoned, for the sheriff must array and com-vered till after the jury returned, because in the

Mr. Conyers. My lord, the words of this act of parliament are, That they shall have a copy of the pannel of the jurors who are to try them, duly returned by the sheriff, and delivered to them, and this, two days before the trial: my lord, that this is the pannel of the sheriff of the jurors that are to try them, as soon as it is arrayed, has been observed already; now it would be a forced construction to construe these words that follow, ' duly returned by the sheriff,' to be meant, that a copy should be delivered after the jury is returned, because that would be a delay of justice, and keeping off the trial longer than was intended by this act of parliament, and more than will answer the end of this law; for the end of it was to give the prisoner all benefit and advantage of exceptions against any of those that were to try him, and if he has this pannel two days before his trial, he has that benefit the law intended him. Now, my lord, as to what has been said of an indictment, which by this law, he is to have a copy of too, that is plainly quite another case; for it is not an indictment till it be found, and so answers not the words nor intention of the act till found by the grand jury; till then it is not a copy of his charge, and therefore by no construction can it! be called a copy of the indictment. I think I need not trouble your lordship any further in this matter, because this objection was foreseen, and has been already considered of by the court upon the prisoner's arraignment.

case of the indictment it is said so many days before the trial, and the trial cannot be till issue joined, there can be no weight in that objection at all; for the words of the act are quite differently penned in the case of the indictment from what they are in the case of the pannel; for though it be said it should be done five days before the trial, yet it is added, in order to the advising with counsel how to plead ;' which must be before plea pleaded, and therefore it must be absolutely necessary to be done before the arraignment. My lord, I have proposed my doubt, it may have consequences on the one side and the other, we submit intirely unto your lordship's judgment; it is a new law, and never has received any opinion; the words of it are, duly returned by the sheriff,' and the question is, Whether a copy of the pannel upon the array before it be returned be a copy of the pannel duly returned, though the same pannel be afterwards duly returned.

or the names of the jurors that were summoned to try him; but now we can aver, that we have pursued this act of parliament literally; for in answer to their objection, we may ask this question of them upon the words of the act, Have you not had a true copy of the names of those that are to try you, and are duly returned by the sheriff for that purpose? and was not that copy delivered unto you above two days ago? They cannot say they have not had it so, and if they cannot say so, then both the words and meaning of the act of parliament are in every respect answered; if when the jury come to be called the prisoner finds the pannel to be altered, he has reason to object, and will have the benefit of the objection, that he has not that advantage which the law intended him, but till that prove to be the fact, we think here is a full compliance with this law.

Sol. Gen. Sir Barth. Shower mistakes my objections about the copy of the indictment; for we say, if the intent of the act of parliament be complied with, it is sufficient, especially where the words are any way doubtful; according to the words of this act of parliament a copy of the indictment need to be delivered but five days before the trial; but it appearing that the intention of these law-makers was, that he should have a copy of the indictment to enable him to plead to it if he had cause, therefore though the words be before the trial,' we have taken it that he should have a copy five days before his arraignment, and so we bave complied with the meaning of the law in that point, as we have also in this, which was, we take it, only to enable the prisoner to make his challenges, and if that be done two days before his trial, with submission, it fully answers this law. L. C. J. Have you done, gentlemen? Couns. Yes, my lord.

Mr. Phipps. My lord, Mr. Attorney General owns, that the pannel after it is arrayed may be amended and altered by the sheriff; and it was never intended by this act of parliament, that any copy of the pannel should be delivered to the prisoner but of those men that were really returned; so that we take it, we ought to have it two days after the return and before the trial; for certainly it must be a copy of the men returned, which if the sheriff may alter at any time before the return, the intent of the act of parliament can never be answered by any copy but what is a true copy of the return. Mr. Conyers would answer the objection that I made about a copy of the indictment by this, that it is not an indictment till it be found by the jury; but I think it is no answer to our objection at all, though it be but a copy of the bill intended to be presented to the grand jury, yet if the grand jury afterwards find it, it is as true L. C. J. Then look you, sir B. Shower, as a copy of the indictment as this is a copy of the to this point that you now insist upon, we have jury intended to be returned, and afterwards had it under consideration beretofore; we were returned. As to what they say, that this will here this day se'nnight, and then we did conintroduce a new method of trial, contrary to all sider in what method we should proceed, so form or proceedings, that can be no objection that the prisoner might have the benefit inneither; for if it be so, we cannot tell how to tended him by this act of parliament: the act help it, the parliament have thought fit to have of parliament does design, in the first place, it so, and we must submit to take it as the law that every prisoner that is to be tried for highhas made it if there be a necessity for a Ha- treason should have a copy of his indictment, beas Corpora upon the provision made in this at least five days before the trial; that, I think, act, so it must be, for we must take the law as was all the makers of this act of parliament init is. We submit our objection to your lord-tended at the first; but then there being subship; we think we have not had the benefit of this law.

sequent words, which shew the reason why they gave him the copy so long before the Mr. Cowper. Surely, my lord, what Mr. trial; which is, that he might advise with his Phipps has now said has no weight in it; that counsel what to plead ; these words, we conbecause the sheriff had it in his power to alter ceive, have given the prisoner a further time the pannel before it was returned, therefore this than what was originally intended, therefore is not now a true copy of the panel of jurors we have thought it necessary that the prisoner who are to try the prisoner, duly returned by should have a copy of his indictment five days the sheriff; which are the words in the act. It before he be arraigned, which is five days beis true, if the sheriff had in fact altered the fore he was put to plead; and your client, the pannel from what it was, and returned it so al-prisoner at the bar, has had the benefit of tiris tered into court, no doubt of it, the prisoner would be very well intitled to make this objection, that he had not a copy of the pannel,

act in that respect before we arraigned him; then after he has pleaded, the question was, when he was to have a copy of the pannel?

if the prisoner will upon this act say he has not had a copy of his indictment to enable him to plead, he ought to have taken the advantage of it before he did plead; that is the proper time for him to object this matter to the court; for if, after he has had such a copy as this prisoner has had, he does submit to plead, with submission it is too late to come at his trial and make this objection, he cannot be received to make it after.

L. C. J. That is a full answer, Mr. Attorney. Att. Gen. I think it is, my lord, with submission, not that we would wave giving other answer to it, if it were in a proper time; but the method of proceeding must be, and we think we have no occasion at this time to say any thing more to this objection.

should have the whole indictment to enable us
to plead, because if we had the Caption, it might
perhaps appear, that the indictment was taken
before the time of the fact alleged in the in-
dictment, and then that would make it vicious;
it might be before the 9th of February, when
this treason is said to be committed, and then
we ought not to be brought to trial. Now the
design of this act of parliament, in giving the
prisoner a copy of the indictment so long be-
fore the trial, was not only to enable him to
make his defence upon the trial, but also to ad-
vise with counsel to plead; for so the words
are, the better to enable him to plead.' Now
we say, to answer this end, it is necessary we
should have a copy of the whole indictment, as
it stands before your lordship in court. And
another reason is this, it is no indictment, un-
less it be presented by the jury, as their inqui-
sition upon oath, unto some court that has ju-
risdiction of the matter: what we have deli-
vered to us is only a copy of a bill as to be de-
livered to a grand jury to be found; non constat,
that it is found. Now the intent of the act of
parliament being to give the prisoner this ad-
vantage to enable him to plead, he may have
several pleas, of which he might take a legal
advantage if he had a copy of the whole, which
he knows not how to come at now; and in truth
it is very necessary, because if he be tried upon
an indictment found in another county, then
these commissioners have not a legal authority
to try him; and if the trial should go on, and he
be acquitted, he is subject to be indicted and tried
again, and never can relieve himself by the ac-
quittal upon such an indictment before persons
that had no authority to try him. I doubt he
can never plead the acquittal, because he can-
not make out, that he was duly tried and ac-
quitted and for these reasons we humbly sub-ther.
mit it to your lordship, whether we have had
the benefit of this law, in having a copy of the
whole indictment to enable us to plead; and if
we have not, till we have that benefit, we
humbly conceive this trial ought not to go on.

Mr. Phipps. My lord, the question is, Whether the style of the court, the persons before whom it was taken, and to whom the presentment is made, the time when it was taken, and the place where, ought not to appear in the indictment? this law requiring that the prisoner should have a copy of the whole indictment to enable him to plead; for if it should happen, that the indictment was taken before persons that had no jurisdiction, then I believe it will not be denied but that the prisoner might plead to the jurisdiction, and there might be several other pleas that he might take advantage of. I would desire to know of the king's counsel, whether ever they saw a copy of an indictinent given in evidence, or pleaded without the Caption. It is not a true copy without it; there ought to be the time, the place, and the style of the court before whom it is taken.

Att. Gen. Truly, my lord, I think I need say no more to this objection, than it does not come at a proper time; for, with submission,

L. C. J. No, no, that is a full answer in this point: for look ye, you that are of counsel for the prisoner, when once you have pleaded, you admit you have had a copy; for the copy was given you to enable you to plead, and when you have pleaded, you have passed by all advantage that you could have from the copy, as to any plea that you can make : for it is taken for granted ye had a copy to enable you to plead, and to advise with your counsel about it; since you did plead, and did not insist upon it at the time of your arraignment that you had not such copy.

Sir B. Shower. My lord, we have proposed one doubt; we humbly submit it to the court. Sol. Gen. It was their own fault, that this objection was not made in time.

L. C. J. That doubt of yours may serve at another time, but now certainly it is quite out of time.

Sol. Gen. Nay, my lord, even upon the arraignment that would not serve their turn nei

L. C. J. We will not enter upon that now, pray go on to swear the jury. Cl. of Ar. You, the prisoner, look to your challenges, as I told you before. Cryer, call sir Jeremy Sambrook.

Cryer. Vous avez. Sir B. Shower. Mr. Rookwood, you are to make your own challenges.

Rookwood. I do not challenge him.

Cl. of Ar. Then hold sir Jeremy the book. Sir Jer. Sambrook. My lord, I am uncapable of serving upon this jury, for I have been deaf these several years, these dozen years; I cannot hear what is said in court, though I am now so near the court; I could not hear what your lordship said, nor what was said at the bar. I have a certificate here, if your lordship please to have it read; and most of the persons of quality about the court know it to be true.

Att. Gen. My lord, I am afraid it is so..

L. C. J. Nay, if it be so, it is not fitting that he should be upon the jury, when he cannot hear what is said: you must excuse sir Jeremy Sambrook. Go on to the next.

Cl. of Ar. George Ford.-Cryer. Vous avez.
Cl. of Ar. Look upon the prisoner.
Rookwood. I challenge him.

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