3

IV. The fourth method of trial used in criminal cases is that by the peers of Great Britain, in the court of parliament, or the court of the lord high steward, when a peer is capitally indicted: for in case of an appeal, a peer shall be tried by jury. (d) Of this enough has been said in a former chapter; (e) to which I shall now only add, that in the method and regulation of its proceedings, it differs little from the trial per patriam, or by jury; except that no special verdict can be given in the trial of a peer; (ƒ) because the lords of parliament, or the lord high steward (if the trial be

had in his court), are judges sufficiently competent of the law that [340] may arise from the fact: and except also, that the peers need not

all agree it their verdict; but the greater number, consisting of twelve at the least, will conclude, and bind the minority. (g)

V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter: (h) "nullus liber homo capiatur, "vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per "legale judicium parium suorum, vel per legem terrae."

The antiquity and excellence of this trial, for the settling of civil property, has before been explained at large. (i) And it will hold much stronger in criminal cases; since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject, than disputes between one individual and another, to settle the metes, and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people, and the prerogative of the crown. It was necessary for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince; and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration, that such is their will and pleasure. But the founders of the English law have with excellent forecast contrived, that no man should be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury: and that the truth of every accusation, whether [350] preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make,) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first

d 9 Rep. 30. 2 Inst. 49.

e See page 259.

g Kelynge, 56. Stat. 7 W. III. c. S. §11. Foster, 247.
i See Book III. page 379.

f Hatt. 116.
h 9 Hen. III. e. 29.

England to preside at the trial, who proclaimed a day for the duel, on which the combatants were to appear with a spear, a long sword, a short sword, and a dagger; but the combat was prorogued to a further day, before which the king revoked the commission. See an account of the proceedings, 11 Harg. St. Tr. 124. See also 3 Book, 337.

(3) The nobility are tried by their peers for treason and felony, and misprision of these; bat ia all other criminal prosecutions they are tried like commoners by a jury. 3 Inst. 30. See 1 Book, 401. n. 12.

(as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous

concern.

What was said of juries in general, and the trial thereby, in civil cases, will greatly shorten our present remarks, with regard to the trial of criminal suits; indictments, informations, and appeals; which trial I shall consider in the same method that I did the former; by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.

When therefore a prisoner on his arraignment has pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto; that is, freeholders without just exception, and of the visne or neighbourhood; which is interpreted to be of the county where the fact is committed. (j) If the proceedings are before the court of king's bench, there is time allowed, between the arraign. [351] ment and the trial, for a jury to be impanelled by a writ of venire facias to the sheriff, as in civil causes; and the trial in case of a misdemeanor is had at nisi prius, unless it be of such consequence as to merit a trial at bar; which is always invariably had when the prisoner is tried for any capital offence. But before commissioners of oyer and terminer and gaol deli. very, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty-eight jurors, to try all felons that may be called upon their trial at that session; and therefore it is there usual to try all felons immediately, or soon, after their arraignment. But it is not customary, nor agreeable to the general course of proceedings (unless by consent of parties; or where the defendant is actually in gaol), to try persons indicted of smaller misdemesnors at the same court in which they have pleaded not guilty, or traversed the indictment. But they usually give security to the court, to appear at the next assises or session, and then and there to try the traverse, giving notice to the prosecutor of the same."

6

j 2 Hal. P. C. 264. 2 Hawk. P. C. 403.

(4) As to jury process in general, see 1 Chit. C. L. 2 ed. 506 to 517.

(5) Now by the 6 Geo. IV. c. 50. s. 13. the jury are to come from the body of the county, and the want of hundredors is no longer a cause of challenge.

The qualifications of petty jurors on the trial are now clearly pointed out, by the 6 Geo. IV. ¿ 50. s. 1. See ante, 3 Book, 356. also the exemptions, id. 356.

By the 6 Geo. IV. c. 50. s. 15. the panel must be returned annexed to the venire facias.

(6) See how indictments for capital offences may be tried at nisi prius, p. 309. n. 309. n. 3. ante. When offences may be tried at bar, see 1 Chit. C. L. 497, 8.

(7) Now, by the 60 Geo. III. and 1 Gev. IV. c. 4. s. S., if the defendant has been committed to custody, or held to bail for a misdemeanor, twenty days before the session of the peace, session of oyer and terminer, great session, or session of gaol delivery, at which the indictment was found, the defendant shall plead, and the trial shall take place at such session, unless a writ of certiorari be awarded. And by section 5. where a defendant, indicted for a misdemeanor at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery, not having been committed to custody, or held to bail to appear to answer for such offence, twenty days before the session at which the indictment was found, but who shall have been committed to custody, or held to bail to appear to answer for such offence at some subsequent session, or shall have received notice of such indictment having been found, twenty days before such subsequent session, he shall plead at such subsequent session, and trial shall take place at such session, unless a certiorari be awarded before the jury be sworn for such trial. But on sufficient VOL. II.

82

In cases of high treason, whereby corruption of blood may ensue (exccpt treason in counterfeiting the king's coin or seals), or misprision of such treason, it is enacted by statute 7 W. III. c. 3. first, that no person shall be tried for any such treason, except an attempt to assassinate the king, unless the indictment be found within three years after the offence committed; next that the prisoner shall have a copy of the indictment (which includes the caption), (k) but not the names of the witnesses, five days at least before the trial; that is, upon the true construction of the act, before his arraignment; (1) for then is his time to take any exceptions thereto, by way of plea or demurrer : thirdly, that he shall also have a copy of the panel of jurors two days before his trial: and, lastly, that he shall have the same compulsive process to bring in his witnesses for him as was usual to compel their appearance against him. And by statute 7 Ann. c. 21. (which did

not take place till after the decease of the late pretender ), all per[352] sons, indicted for high treason or misprision thereof, shall have not

only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impanelled, with their professions, and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses; the better to prepare him to make his challenges and de. fence. But this last act, so far as it affected indictments for the inferior species of high treason, respecting the coin and the royal seals, is repealed by the statute 6 Geo. III. c. 53., else it had been impossible to have tried those offences in the same circuit in which they are indicted: for ten clear days, between the finding and the trial of the indictment, will exceed the time usually allotted for any session of oyer and terminer. (m)3 And no person

k Fost. 229. Append. i.

cause shewn, the court may allow further time for trial. Id. s. 7. In cases of indictments for obtaining goods, &c. by false pretences, and sending threatening letters, with intent to extort money, &c. and other misdemeanors punishable under the 30 Geo. II. c. 24., it is enacted by that act, s. 17. that every such offender, bound over to the general quarter sessions of the peace, or sessions of oyer and terminer, and gaol delivery, of the county where the offence was committed, shall be tried at such general quarter sessions of the peace, or sessions of oyer and terminer, and gaol delivery, which shall be held next after his apprehension, unless the court shall think fit to put off the trial, on just cause made out to them. So also, by the 39 & 40 Geo. III. c. 87 s. 22., persons indicted for a misdemeanor, in receiving stolen goods, under the 2 Geo. III. c. 28., are to be tried immediately, without being allowed the delay of a traverse. 2 East P. C. 754. As to traverses in general, in criminal proceedings, see 1 Chit. C. L. 486. (8) By the 6 Geo. IV. c. 50. s. 21. (which act repeals the 7 Ann. c. 21. as far as it relates to Chitty. giving a list of the jury, when any person is indicted for high treason, or misprision of treason, in any court other than the court of king's bench, a list of the petit jury, mentioning the names, profession, and place of abode, of the jurors, shall be given at the same time that the copy of the indictment is delivered to the party indicted, which shall be ten days before the arraignment, and in the presence of two or more credible witnesses; and when any person is indicted for high treason or misprision of treason in the court of king's bench, a copy of the indictment shall be delivered within the time, and in the manner aforesaid, but the list of the petit jury made out as aforesaid, may be delivered to the party indicted at any time after the arraignment, so as the same be delivered ten days before the day of trial, provided always that nothing herein contained shall any ways extend to any indictment for high treason, in compassing and imagining the death of the king, or for misprision of such treason, where the overt act or overt acts of such treason alleged in the indictment shall be assassination or killing of the king, or any direct attempt against his life, or any direct attempt against his person, whereby his life may be endangered or his person suffer bodily harm; or to any indictment of high treason, for counterfeiting his majesty's coin, the great seal, or privy seal, bis sign manual or privy signet; or to any indictment of high treason, or to any proceedings thereupon, against any offender or offenders, who by any act or acts now force, is and are to be indicted, arraigned, tried, and convicted, by such like evidence, and in such manner as is used and allowed against offenders for counterfeiting his majesty's coin.

By the 39 & 40 Geo. III. c. 93. it is enacted, that in all cases of high treason, in compassing or imagining the death of the king, or in misprision of such treason, where the overt act of such treason shall be alleged in the indictment to be the assassination of the king, or a direct attempt against his life or person, the person accused shall be indicted and tried in the same manner in every respect, and upon the like evidence, as if he was charged with murder, but the judgment

indicted for felony is, or (as the law stands) ever can be, entitled to such copies, before the time of his trial. (n)

When the trial is called on, the jurors are to be sworn, as they appear, to the number of twelve, unless they are challenged by the party.

9

Challenges may here be made, either on the part of the king, or on that of the prisoner; and either to the whole array, or to the separate polls, for the very same reasons that they may be made in civil causes. (0) For it is here at least as necessary, as there, that the sheriff or returning officer be totally indifferent; that where an alien is indicted, the jury should be de medietate, or half foreigners, if so many are found in the place; 10 (which does not indeed hold in treasons, (p) aliens being very improper judges of the breach of allegiance; nor yet in the case of Egyptians," under the statute 22 Hen. VIII. c. 10.) that on every panel there should be a competent number of hundredors; 13 and that the particular jurors should be omni exceptione majores; not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum."

Challenges, upon any of the foregoing accounts are stiled challenges for cause; which may be without stint in both criminal and [353] civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious spe. cies of challenge to a certain number of jurors, without shewing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons. 1. As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how neo See Book III. page 359. p 2 Hawk. P. C. 420. 2 Hal. P. C. 271.

14

n 2 Hawk. P. C. 410.

and execution shall remain the same as in other cases of high treason. But as to this latter clause relating to judgment and execution, now the 57 Geo. III. c. 6. provides, that persons accused of high treason shall be entitled to the benefit of 7 & 8 W. III. c. S., and to the provisions of 7 Ann. c. 21., except in the case of compassing or imagining the death of the king, or any direct attempt on his life.

In felony, the prisoner is not entitled to a copy of the indictment. 1 Lev. 63. Moore, 666. 1 Show. 131. 4 T. R. 692.; though, if any legal exception be taken to its form, the court will, as a favour, allow a copy to be taken of the part which it is material to examine. 1 Lev. 68. 1 Sid. 85. And he is, in all cases, allowed to have the record read over to him with sufficient distinctness, or even twice in English, Id.; as is the case at the present day where the prisoner desires to plead autrefoits acquit to an indictment for felony. 2 Leach, 711. In offences inferior to felony on the other hand, it seems that the right of having a copy of the indictment has at all times been admitted. Cro. Car. 483. And now, by 60 Geo. III. and 1 Geo. IV. c. 4. s. 8., in prosecutions for misdemeanors, instituted by the attorney or solicitor-general, in any of the courts therein mentioned, the court shail, if required, make order that a copy of the information or indictinent shall be delivered, after appearance, to the party prosecuted, or his clerk, in court, or attorney, upon application made for the same, free from all expense to the party so applying; provided that such party, or his clerk in court, or attorney, shall not have previously received a copy thereof. Chitty. (9) As to challenges in general, see 2 Hale, 267 to 276. Hawk. b. 2. c. 43. Bac. Ab. Juries. E. Com. Dig. Challenge. Burn J. Jurors, IV. Williams J. Jurors, V. Digh. Sess. 183 to 191. 1 Chit. C. L. 2 ed. 533 to 551. Ante, 3 Book, 357. notes.

(10) The right of aliens to challenge, de medietate linguae, seems to be disputed, and it is said they must demand the privilege at the time of awarding the venire. 1 Bla. Rep. 517. Cro Eliz. 869. 2 Dyer, 144. 3 Dyer, 357. b. 1 Keb. 547. acc. 2 Hale, 272. contra. See the 47 sec. of 6 Geo. IV. c. 50. ante, 3 Book, 357.

(11) This is repealed as to Egyptians, by 1 Geo. IV. c. 116.

(12) The right to challenge for want of hundredors is now taken away, by the 6 Geo. IV. c. 50, s. 13.

(13) See these objections fully stated, 1 Chit. C. L. 540 to 544.

(14) A peremptory challenge is not allowed in the trial of collateral issues. Fost. 42. Nor in any trial for a misdemeanor, 2 Harg. St. Tr. 808. and 4 H. St. Tr. 1.

cessary it is, that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him : the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shewn, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

This privilege, of peremptory challenges, though granted to the prisoner, is denied to the king by the statute 33 Edw. I. st. 4. which enacts, that the king shall challenge no jurors without assigning a cause certain, to be tried and approved by the court.15 However, it is held, that the king need not assign his cause of challenge, till all the panel is gone through, and unless there cannot be a full jury without the person so challenged. And then, and not sooner, the king's counsel must shew the cause: otherwise the ju ror shall be sworn. (q) 16

The peremptory challenges of the prisoner must however have some rea. sonable boundary; otherwise he might never be tried. This reasonable

boundary is settled by the common law to be the number of thirty[354] five; that is, one under the number of three full juries. For the

Jaw judges that five-and-thirty are fully sufficient to allow the most timorous man to challenge through mere caprice; and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all. And therefore it deals with one who peremptorily challenges above thirty-five, and will not retract his challenge, as with one who stands mute or refuses his trial; by sentencing him to the peine forte et dure in felony, and by attainting him in treason. (r) And so the law stands at this day with regard to treason of any kind.

But by statute 22 Hen. VIII. c. 14. (which, with regard to felonies, stands unrepealed by statute 1 & 2 Ph. & Mar. c. 10.) by this statute, I say, no person arraigned for felony, can be admitted to make any more than twenty peremptory challenges. But how if the prisoner will peremptorily challenge twenty-one, what shall be done? The old opinion was that judgment of peine forte et dure should be given, as where he challenged thirty-six at the common law: (s) but the better opinion seems to be, (f) that such challenge shall only be disregarded and overruled. Because, first, the common law doth not inflict the judgment of penance for challenging twenty-one, neither doth the statute inflict it; and so heavy a judg. ment (or that of conviction, which succeeds it,) shall not be imposed by implication. Secondly, the words of the statute are, "that he be not admitted to challenge more than twenty;" the evident construction of which is, that any farther challenge shall be disallowed or prevented and there

r 2 Hal. P. C. 269.

q 2 Hawk, P. C. 413. 2 Hal, P. C. 271.
s 2 lawk. P. C. 414.

t 3 Inst. 227. 2 Hal. P. C. 270.

(15) And see a similar provision in 6 Geo. IV. c. 50. s. 29.

(16) And the practice is the same both in trials for misdemeanors and for capital offences. 3 Harg. St. Tr. 519. When there is a challenge for cause, two persons in court not of the jury are sworn to try whether the juryman challenged will try the prisoner indifferently. Evidence is then produced to support the challenge, and according to the verdict of the two tryers, the juryman is admitted or rejected. A juryman was thus set aside in O'Coigly's trial for treason, Because, upon looking at the prisoners, he had uttered the words, "damned rascals." See O'Coigly's trial---Mr. Christian's note.