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) (3). 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 (f); because the lords of parliament, or the lord high steward (if the [349] trial be had in his court), are judges sufficiently competent of

the law that may arise from the fact and except also, that the peers need not all agree in 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 in 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 preferred in the shape of in[350] dictment, 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 (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 saine 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 (4) 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) (5). If the proceedings are before the court of king's bench, there is time allowed, between the assignment and the trial, for a jury to be *impanelled by a writ of venire [*351] 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 (6), (7). But, before commissioners of oyer and terminer and gaol-delivery, 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 misdemeanors 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 (8).

(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.

c. 50. s. 1.

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

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

(7) In New-York the trial is before the

court of oyer and terminer for capital offences, unless removed by certiorari to the supreme court, and then the record is carried down for trial at the circuit, not at bar. (2 R. S. 732, 82, 84.) As to the time of trial, see id. 737, 28, &c. and ante p. 301. note (1).

:

(8) Now, by the 60 Geo. III. and 1 Geo. IV. c. 4. s. 3, 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, in

1

In cases of high treason, whereby corruption of blood may ensue (except 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 (9): next, that the prisoner shall have a copy of the indictment (which includes the caption) (4), 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 the 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 pre[*352] tender), all persons, 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 defence. 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) (10). And no person indicted for felony is, or (as the law stands) ever can be, entitled to such copies, before the time of his trial (n).

(k) Fost. 229. Append. i.
(1) Ibid. 230.

dicted 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 indict-
ment was found, but who shall have been com-
mitted 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 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 threaten
ing letters, with intent to extort money, &c.
and other misdemeanors punishable under the
30 Geo. III. 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 delive-
ry, of the county where the offence was com-
mitted, 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

(m) Fost. 250.

(n) 2 Hawk. P. C. 410.

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 proceed. ings, see 1 Chit. C. L. 486.

(9) This limitation as to the time of finding an indictment applies, in New-York, to all of fences except murder, and in all cases the defendant may have a copy of the indictment (2 R. S. 726, § 37, id. 728, § 53,) and of the list of the jurors: (id. 414, § 31,) he may also have gratuitously subpoenas to compel the attendance of witnesses. (Id. 729, ◊ 59.)

(10) By 39 and 40 Geo. III. c. 93, in all cases of high treason, in compassing or imagining the death of the king, and of misprision of such treason, where the overt act alleged in the indictment is the assassination of the king, or a direct attempt against his life or person, the party accused shall be indicted and tried in the same manner and upon the like evidence as if charged with murder. But the judgment and execution shall remain the same as in other cases of high treason. And by 6 Geo. IV. c. 50, ◊ 21, when any person is indicted for high treason or misprision of treason, in any court except K. B., a list of the petty jury, with their names, professions, and

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 (11).

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 (o). 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 (12); (which does not indeed hold in treasons (p), aliens being very improper judges of the breach of allegiance (13); nor yet in the case of Egyptians (14) under

85

the statute 22 Hen. VIII, c. 10.) that on every panel there should be a competent number of hundredors (15); and that the particular jurors should be omni exceptione majores; not liable to objection either propter honoris re

spectum, propter defectum, propter affectum, or propter delictum (16). [*353] *Challenges upon any of the foregoing accounts are styled challenges for cause; which may be without stint in both criminal and 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 species 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 (17). 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 necessary 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 reasons 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 (18). 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 juror shall be sworn (q) (19).

The peremptory challenges of the prisoner must however have [*354] some reasonable boundary; otherwise he might never be tried. This reasonable boundary is settled by the common law to be the number of thirty-five; that is, one under the number of three full juries. For the law 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 inten

(g) 2 Hawk. P. C. 413. 2 Hal. P. C. 271.

medietatem lingua; but that provision was repealed by the 23 G. III. c. 51, and Egyptians are now dealt with under the Vagrant Acts as rogues and vagabonds. Vide ante, 167, n. 10.

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

(16) As to qualifications of jurors in New York, see 2 R. S. 411.

(17) 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.

As to law of New-York, see note (†) p. 352,

ante.

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

(19) And the practice is the same both in trials for misdemeanors and for capital offences. 3 Harg. St. Tr. 519. Where 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 indiffe rently, Evidence is then produced to support the challenge, and according to the ver dict of the two tryers, the jury man 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.