relations, that so they may be challenged upon just cause; while at the same time by means of the compulsory process (of distringas, or habeas corpora) the cause is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance; which in causes of weight and consequence is at the bar of the court; but in ordinary cases at the assizes, held in the county where the cause of action arises, and the witnesses and jurors live: a provision most excellently calculated for the saving of expense to the parties. For though the preparation of the causes in point of pleading is transacted at Westminster, whereby the order and uniformity of proceedings is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one attorney being able to transact the business of forty clients. But the troublesome and most expensive attendance is that of jurors and witnesses at the trial; which, therefore, is brought home to them. in the country where most of them inhabit. Fourthly, the persons before *whom they are to appear, and before whom the trial is to be held, are the judges of the superior court, if it be a trial at bar; or the judges [*356] of assize, delegated from the courts at Westminster by the king, if the trial be held in the country: persons, whose learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no small influence upon the multitude. The very point of their being strangers in the county is of infinite service, in preventing those factions and parties which would intrude in every cause of moment, were it tried only before persons resident on the spot, as justices of the peace, and the like. And the better to remove all suspicion of partiality, it was wisely provided by the statutes 4 Edw. III, c. 2, 8 Ric. II, c. 2, and 33 Hen. VIII, c. 24, that no judge of assize should hold pleas in any county wherein he was born or inhabits. (5) And as this constitution prevents party and faction from intermingling in the trial of right, so it keeps both the rule and the administration of the laws uniform. These justices, though thus varied and shifted at every assizes, are all sworn to the same laws, have had the same education, have pursued the same studies, converse and consult together, communicate their decisions and resolutions, and preside in those courts which are mutually connected and their judgments blended together, as they are interchangeably courts of appeal or advice to each other. And hence, their administration of justice and conduct of trials are consonant and uniform; whereby that confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment. But let us now return to the

assizes.

When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assizes, and enter it with the proper officer, in order to its being called on in course. If it be not so entered, it cannot be tried; therefore it is in the plaintiff's breast to delay any trial by not carrying down the record: unless the defendant, being fearful of such neglect in the plaintiff, and willing to discharge himself from the action, will himself under

take to bring on the trial, giving proper notice to the plaintiff. Which [*357] proceeding is called the trial by proviso; by reason of the clause then inserted in the sheriff's venire, viz., "proviso, provided that if two writs come to your hands (that is, one from the plaintiff and another from the defendant), you shall execute only one of them." But this practice hath begun to be disused, since the statute 14 Geo. II, c. 17, which enacts, that if, after issue joined, the cause is not carried down to be tried according to the course of the court, the plaintiff shall be esteemed to be nonsuited, and judgment shall be given for the defendant as in case of a nonsuit. In case the plaintiff intends to try the cause, he is bound to give the defendant (if he lives within forty miles of London) eight days' notice of trial; and, if he lives at a greater distance, then

(5) This is no longer the law.

fourteen days' notice, in order to prevent surprise: and if the plaintiff then changes his mind, and does not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by the same last-mentioned statute. The defendant, however, or plaintiff, may, upon good cause shown to the court above, as upon absence or sickness of a material witness, obtain leave upon motion to defer the trial of the cause till the next assizes. (6)

But we will now suppose all previous steps to the regularly settled, and the cause to be called on in court. The record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive process, the writ of habeas corpora, or distringas, with the panel of jurors annexed, to the judge's officer in court. The jurors contained in the panel are either special or common jurors. Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholder's book; and the officer is to take *indifferently forty-eight of the principal free[*358] holders in the presence of the attorneys on both sides; who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel. By the statute 3 Geo. II, c. 25, either party is entitled upon motion to have a special jury struck upon the trial of any issue, as well at the assizes as at bar; he paying the extraordinary expense, unless the judge will certify (in pursuance of the statute 24 Geo. II, c. 18) that the cause required such special jury.

A common jury is one returned by the sheriff according to the directions of the statute 3 Geo. II, c. 25, which appoints that the sheriff or officer shall not return a separate panel for every separate cause, as formerly; but one and the same panel for every cause to be tried at the same assizes, containing not less than forty-eight, nor more than seventy-two jurors: and that their names, being written on tickets, shall be put into a box or glass; and when each cause is called, twelve of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused; or unless a previous view of the messuages, lands, or place in question, shall have been thought necessary by the court (o) in which case six or more of the jurors returned, to be agreed on by the parties, or named by the judge or other proper officer of the court, shall be appointed by special writ of habeas corpora or distringas to have the matters in question shown to them by two persons named in the writ; and then such of the jury as have had the view, or so many of them as appear, shall be sworn on the inquest previous to any other jurors. These acts are well calculated to restrain any suspicion of partiality in the sheriff, or any tampering with the jurors when returned.

As the jurors appear, when called, they shall be sworn, unless challenged by either party. Challenges are of two sorts; challenges to the array, and challenges to the polls.

*Challenges to the array are at once an exception to the whole panel, [*359] in which the jury are arrayed or set in order by the sheriff in his return; and they may be made upon account of partiality or some default in the sheriff,

(0) Stat. 4 Anne. c. 16.

(6) This statute, so far as relates to judgment as in case of a nonsuit, is repealed by the Common Law Procedure Act, 1852, which however provides a mode in which a plaintiff, who unreasonably delays his suit, may be forced to proceed to trial, or have judgment for costs against him.

or his under-officer who arrayed the panel. (7) And generally speaking, the same reasons that, before the awarding the venire, were sufficient to have directed it to the coroners or elisors, will be also sufficient to quash the array, when made by a person or officer of whose partiality there is any tolerable ground of suspicion. Also, though there be no personal objection against the sheriff, yet if he arrays the panel at the nomination, or under the direction of either party, this is good cause of challenge to the array. Formerly, if a lord of parliament had a cause to be tried, and no knight was returned upon the jury, it was a cause of challenge to the array: (p) but an unexpected use having been made of this dormant privilege by a spiritual lord, (q) it was abolished by statute 24 Geo. II, c. 18. But still, in an attaint, a knight must be returned on the jury. (r) Also, by the policy of the ancient law, the jury was to come de vicineto, from the neighbourhood of the vill or place where the cause of action was laid in the declaration: and therefore some of the jury were obliged to be returned from the hundred in which such vill lay; and if none were returned, the array might be challenged for defect of hundredors. Thus the Gothic jury, or nembda, was also collected out of every quarter of the country: "binos, trinos, vel etiam senos ex singulis territorii quadrantibus.” (s) For living in the neighborhood, they were properly the very country, or pais, to which both parties had appealed; and were supposed to know beforehand the characters of the parties and witnesses, and therefore they better knew what credit to give to the facts alleged in evidence. But this convenience was overbalanced by another very natural and almost unavoidable inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt *to intermix their prejudices and partialities in the trial of right. And [*360] this our law was so sensible of, that it for a long time has been gradually relinquishing this practice; the number of necessary hundredors in the whole panel, which, in the reign of Edward III, were constantly six, (t) being in the time of Fortescue (u) reduced to four. Afterwards, indeed, the statute 35 Hen. VIII, c. 6, restored the ancient number of six, but that clause was 800n virtually repealed by statute 27 Eliz. c. 6, which required only two. And Sir Edward Coke (v) also gives us such a variety of circumstances, whereby the courts permitted this necessary number to be evaded, that it appears they were heartily tired of it. At length, by statute 4 and 5 Ann. c. 6, it was entirely abolished upon all civil actions, except upon penal statutes; and upon those, also, by the 24 Geo. II, c. 18, the jury being now only to come de corpore comitatus, from the body of the county at large, and not de vicineto, or from the particular neighbourhood. The array by the ancient law may also be challenged, if an alien be party to the suit, and, upon a rule obtained by his motion to the court for a jury de medietate linguæ, such a one be not returned by the sheriff, pursuant to the statute 28 Edw. III, c. 13, enforced by 8 Hen. VI, c. 29, which enact, that where either party is an alien born, the jury shall be one-half denizens, and the other aliens (if so many be forthcoming in the place), for the more impartial trial; a privilege indulged to strangers in no other country in the world; but which is as ancient with us as the time of King Ethelred, in whose statute de monticolis Wallic (then aliens to the crown of England) cap. 3, it is ordained, that "duodeni legales homines, quorum sex Walli et sex Angli erunt, Anglis et Wallis jus dicunto." But where both par

(p) Co. Litt. 156. Seld. on Baronage, ii. 11.
(q) K. vs. Bishop of Worcester, M. 23 Geo. II, B. R.
(8) Stiernhook, de jure Goth. l. 1, c. 4.
(v) 1 Inst. 157.

(r) Co. Litt. 156. (t) Gilb. Hist. C. P. c. 8.

(u) De Laud. LL. c. 25.

(7) Upon a challenge to the array, if the facts are denied the court appoints triers, and if they pronounce the cause of challenge unfounded, it is overruled. If the facts are admitted, the court passes upon their sufficiency, and either quashes the panel or overrules the challenge. Gardner v. Turner, 9 Johns., 260. In the United States it is believed that an objection which would be good as a challenge to the array, is generally raised by motion to quash or set aside the panel.

ties are aliens, no partiality is to be presumed to one more than another; and therefore it was resolved soon after the statute 8 Hen. VI, (w) that where the issue is joined between two aliens (unless the plea be had before the mayor of the staple, and thereby subject to the restrictions of statute 27 Edw. III, st. 2, c. 8), the jury shall all be denizens. And it now might be a question, how far the statute 3 Geo. II, c. 25 (before referred to), hath in civil causes [*361] undesignedly abridged this privilege of foreigners, by the positive directions therein given concerning the manner of impanelling jurors, and the persons to be returned in such panel. So that (unless this statute is to be construed by the same equity which the statute 8 Hen. VI. c. 29, declared to be the rule of interpreting the statute 2 Hen. V, st. 2, c. 3, concerning the landed qualifications of jurors in suits to which aliens were parties) a court might perhaps hesitate whether it has now a power to direct a panel to be returned de medietate linguæ, and thereby alter the method prescribed for striking a special jury, or balloting for common jurors. (8)

Challenges to the polls, in capita, are exceptions to particular jurors; and seem to answer to the recusatio judicis in the civil and canon laws; by the constitutions of which a judge might be refused upon any suspicion of partiality. (x) By the laws of England, also, in the times of Bracton (y) and Fleta, (2) a judge might be refused for good cause; but now the law is otherwise, and it is held that judges and justices cannot be challenged. (a) For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such misbehaviour would draw down a heavy censure from those to whom the judge is accountable for his conduct.

But challenges to the polls of the jury (who are judges of fact) are reduced to four heads by Sir Edward Coke; (b) propter honoris respectum; propter defectum; propter affectum; and propter delictum.

1. Propter honoris respectum; as if a lord of parliament be impanelled on a jury, he may be challenged by either party, or he may challenge himself.

*2. Propter defectum; as if a juryman be an alien born, this is de[*362] fect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be liber et legalis homo. Under the word homo, also, though a name common to both sexes, the female is however excluded, propter defectum sexus: except when a widow feigns herself with child, in order to exclude the next heir, and a suppositious birth is suspected to be intended; then upon the writ de ventre inspiciendo, a jury of women is to be impanelled to try the question, whether with child or not. (c) But the principal deficiency is defect of estate sufficient to qualify him to be a juror. This depends upon a variety of statutes. And, first, by the statute of West. 2, 13 Edw. I, c. 38, none shall pass on juries in assizes within the county, but such as may dispend 20s. by the year at the least; which is increased to 40s. by the statutes 21 Edw. I, st. 1, and 2 Hen. V, st. 2, c. 3. This was doubled by the statute 27 Eliz. c. 6, which requires in every such case the jurors to have estate of freehold to the yearly value of 4l. at the least. But, the value of money at that time decreasing very considerably, this qualification was raised by the statute 16 and 17 Car. II, c. 3, to 207. per annum, which being only a temporary act, for three years, was suffered to expire without renewal, to the great debasement of juries. However, by the statute 4 and 5 W. and M. c. 24, it was again raised

(w) Year-book, 21 Hen. VI, 4.

(x) Cod. 3, 1, 16. Decretal, l. 2, t. 28, c. 36. (y) L. 5, t. 5, c. 15.
(b) 1 Inst. 156.
(c) Cro. Eliz. 566.

(z) L. 6, c. 37. (a) Co. Litt. 294.

(8) By 6 Geo. IV, c. 50, provision is made for a jury de medietate linguæ. In the United States, generally, alienage is a ground for excluding a juror whatever the citizenship of the parties to the suit, Proffatt on Jury Trial, § 116.

to 10%. per annum in England, and 67. in Wales, of freehold lands or copyhold; which is the first time that copyholders (as such) were admitted to serve upon juries in any of the king's courts, though they had before been admitted to serve in some of the sheriff's courts, by statutes 1 Ric. III, 4, and 9 Hen. VII, c. 13. And, lastly, by statute 3 Geo. II, c. 25, any leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of 20l. per annum over and above the rent reserved, is qualified to serve upon juries. (9) When the jury is de medietate ingue, that is, one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall be *cause of challenge to the [*363] alien; for, as he is incapable to hold any, this would totally defeat the privilege. (d)

3. Jurors may be challenged propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree; (e) that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him: all these are principal causes of challenge; which, if true, cannot be overruled, for jurors must be omni exceptione majores. Challenges to the favour, are where the party hath no principal challenge: but objects only some probable circumstances of suspicion, as acquaintance and the like; (f) the validity of which must be left to the determination of triors, whose office is to decide whether the juror be favourable or unfavourable. The triors, in case the first man called be challenged, are two indifferent persons named by the court; and if they try one man and find him indifferent, he shali be sworn; and then he and the two triors shall try the next; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest. (g) (10)

4. Challenges propter delictum, are for some crime or misdemeanor, that affects the juror's credit and renders him infamous. As for a conviction of treason, felony, perjury, or conspiracy; or if for some infamous offence he hath received judgment of the pillory, tumbrel, or the like; or to be branded, *whipt, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, præmunire, or forgery; or, lastly, [*364] if he hath proved recreant when champion in the trial by battle, and thereby hath lost his liberam legem. A juror may himself be examined on oath of

(e) Finch, L. 401.

(d) See stat. 2 Hen. V, st. 2, c. 3. 8 Hen. VI, c. 29. (f) In the nembda, or jury of the ancient Goths, three challenges only were a'lowed to the favour, but the principal challenges were indefinite. "Licebat palam excipere, et semper ex probabili causa tres repudiare etiam plures ex causa prægnanti et manifesta.' Stiernhook, l. 1, c. 4. g) Co. Litt. 158.

(9) In England one must be between 21 and 60 years of age, and must be the owner of some interest in real estate in the county, or be a householder taxed on at least £30 for the poor rate, or must occupy a house with at least fifteen windows. See 6 Geo. 4, c. 50, and 3 and 34 Vict. c. 77. In the United States a juror must usually have the qualifications of an elector of the state. Proffatt, Jury Trial, 116.

(10) The whole subject of challenges was very fully considered in the case of Freeman v. People, 4 Denio, 9, to which the reader is referred. As to what opinion formed or expressed by a juror will be sufficient ground for challenge to the favor, see 1 Burr's Trial, 16; Osiander's Case, 3 Leigh, 785; People v. Bodine, 1 Denio, 307; Commonwealth v. Knapp, 9 Pick.; 496; Smith v. Eames, 4 Ill., 76; Bradford v. State, 15 Ind., 347; Holt v. People, 13 Mich., 224; Maddox v. State, 32 Ga., 581.

The practice upon challenges varies so much in different states, that the American reader will expect to consult and be guided by the book of practice in use in his own state. As to disqualification from relationship, see Den v. Clark, Coxe, 444; Paddock v. Wells, 2 Barb. Ch., 331; Hasceig v. Tripp, 20 Mich., 216.