cussed in the preceding book: () to which I have only to add, that the trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal solemnity as that on a writ of right: but with this difference, that there each party might hire a champion, but here they must fight in their proper persons. And therefore, if the *appellant or approver be a woman, a priest, an infant, or [*347] of the age of sixty, or lame, or blind, he or she may counterplead and refuse the wager of battel; and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and employment. So, likewise, if the crime be notorious; as, if the thief be taken with a mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel, from the appellee; (a) for it is unreasonable that an innocent man should stake his life against one who is already half convicted.

The procedure. The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn. (b) The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body: the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonist, swears to this effect: "Hoc audi, homo quem per manum teneo," &c. "Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way guilty of the said felony. So help me God, and the saints; and this I will defend against thee by my body, as this court shall award." To which the appellant replies, holding the bible and his antagonist's hand in the same manner as the other: "Hear this, O man, whom I hold by the hand, who callest thyself Thomas by the name of baptism, that thou art perjured; and therefore perjured, because that thou feloniously didst murder my *father, William by name. So help me, God, and the saints: and this I will prove against thee [*348] by my body, as this court shall award." (c) The battel is then to be fought with the same weapons, viz., batons, the same solemnity, and the same oath against amulets and sorcery, that are used in the civil combat: and if the appellee be so far vanquished that he cannot or will not fight any longer, he shall be adjudged to be hanged immediately; and then, as well as if he be killed in battel, providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain

(a) 2 Hawk. P. C. 427.

(z) See book III, p. 337. (b) Flet. l. 1, c. 34. 2 Hawk. P. C. 426. (c) There is a striking resemblance between this process and that of the court of Areopagus at Athens for murder; wherein the prosecutor and prisoner were both sworn in the most solemn manner; the prosecutor, that he was related to the deceased (for none but near relations were permitted to prosecute in that court) and that the prisoner was the cause of his death; the prisoner that he was innocent of the charge against hini. (Pott. Antiq. b. i. c. 19.)

the fight from sunrising till the stars appear in the evening, he shall be acquitted. So also if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem, and become infamous; and the appellee shall recover his damages, and also be forever quit, not only of the appeal, but of all indictments likewise for the same offence.

IV. Jury of peers.- 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)1 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 (by the country), 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 trial be *had in his court), are judges [*349] 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 terra" (no free man can be taken or imprisoned, or exiled, or in any other manner destroyed, unless by the lawful judgment of his peers, or equals, or by the law of the land).

The antiquity and excellence of this trial, for the settling of civil property, has before been explained at large. () 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 two-fold 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 an(f) Hatt. 116.

(d) 9 Rep. 30. 2 Inst. 49.

(e) See page 259.

(g) Kelynge, 56. Stat. 7 Wm. III, c. 3, § 11. Foster, 247.

(i) See book III, page 379.

(h) 9 Hen. III, c. 29.

1 The nobility are tried by jury like commoners, except in cases of treason and felony and misprision thereof.

swer 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 indictment, information, or appeal, *should after[*350] wards 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 the palladium (a safeguard a wooden image of Pallas) 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.1

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.

Character of jury.- 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. () If the proceedings are before the court of king's bench, there is time allowed, between the arraignment and the trial, for a jury to be *impaneled by a writ of ve nire facias to the sheriff, as in civil causes: and the trial in [*351] case of 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-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

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

1[See Am, Pub. Co. v. Fisher, 166 U. S. 464; Hurtado v. California, 110 U. S. 516.]

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 assizes or session, and then and there to try the traverse, giving notice to the prosecutor of the same.

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 Wm. 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), () 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; (7) 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 persons indicted for high treason or misprision *thereof, shall have [*352] not only a copy of the indictment, but a list of all the wit

nesses to be produced, and of the jurors impaneled, 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) 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)

1

Selecting the jury. 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.

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,

(k) Fost. 229. Append. i. (0) See book III, p. 359.

(1) Ibid. 230.

1 Although in England the prisoner is not entitled as of right to a copy of the indictment in case of felony, yet the prosecution may give it, and their doing so on request would be expected. If not given, the court would direct the indictment to be read over slowly,

(m) Fost. 250. (n) 2 Hawk. P. C. 410. in order that it might be taken down. Rex v. Parry, 7 C. & P. 836. In misdemeanors, the defendant is entitled to a copy. Morrison v. Kelly, 1 W. Black. 385. In the United States, the right is generally secured by statute or constitution in all cases.

2

if so many are found in the place; (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; and that the particular jurors should be omni exceptione majores (above all exception); not liable to objection either propter honoris respectum, propter defectum, propter af fectum, or propter delictum (on account of dignity, on account of incompetency, on account of partiality, on account of the commission of some offence).

Challenges for cause.-*Challenges upon any of the foregoing accounts are styled challenges for cause; which [*353] may be without stint in both criminal and civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitæ (from a regard to life), allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing 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 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 shown, 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.

Peremptory challenges. The 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. 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 show the cause: otherwise the juror shall be sworn. (q)1

(p) 2 Hawk. P. C. 420. 2 Hal. P. C. 271.

1 This class of persons are now dealt with summarily, as rogues and vagabonds.

2 This ground of challenge is now taken away by statute.

3 No challenges are allowed on the trial of collateral issues. R. v. Radcliff, 1 W. Bl. 3. The challenges must be made, before the jury is sworn to try the cause. R. v. Frost, 9 C. and P. 129. The jury must be full, before the challenges are made. R. v. Lacey, 3 Cox,

(q) 2 Hawk. P. C. 418. 2 Hal. P. C. 271.

517. In the American states statutes regulate to a large extent the matter of challenges, and a practice has grown up to consider and determine challenges to favor as the jurors are severally called.

4 In the United States challenges to the favor are generally tried by two jurors already impanele 1, if there are such, and if not, then by two indifferent bystanders appointed and sworn by the court for that purpose, or by the