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panel are either seal 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 freeholders in the presence of the attorneys on both sides; who are each of them to [ *358 ] 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 (0) in which case six or more of the jurors returned, to be agreed on by the parties, or named by a 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. (8)

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 or his under officer who arrayed the panel. (9) 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

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

(p) Co. i itt. 156. Seld.on Baronage. ii. 11. (q) K. vs. Bishop of Worcester, M. 28 Geo. II, B. R. (r) Co. Litt. 156.

(8) [The qualification of both common and special jurymen is now regulated by statute 6 Geo. IV.c.50, by which all other acts are repealed.]`

(9) 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.

vieneto, 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 neighbourhood, 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 prejudi[ *360] ces and partialities in the trial of right. And 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, (f) 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 soon 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 Aun. 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 ricineto, or from the particular neighbourhood. (10) 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 Walliæ (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 parties 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 [ *361] in civil causes 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 9 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. (11)

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 con(8) Stiernhook, de jure Goth. 1. 1. c. 4. (v) Inst. 157.

(t) Gilb. Hist. C. P. c. 8.

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

(10 [See an excellent note, Co. Lit. 125, a. b. note 2.]

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

(11) [From the enactments of the statute 6 Geo. IV, c. 50, and especially section 47 thereof, it would seem that a jury de medietate linguæ is now allowed only upon trials for felony or misdemeanor.]

stitutions 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, (z) 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 im partial 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 empanelled 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 defect of birth; if he be a slave or bondman, this is defect of liberty, and he [ *362 ]

cannot be liber et legalis homo. Under the word homo, also, though a name common to both sexes, the female is however excluded, propter defertum 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. (e) 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 47. 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 to 107. 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' courts, though they had before been admitted to serve in some of the sheriff's courts, by statutes 1 Ric. III, c. 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 201. per annum over and above the rent reserved, is qualified to serve upon juries. (12) When the jury is de medietate lingue, 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 alien; for, as he is incapable to hold any, this would totally defeat [*363]

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

(x) Cod. 3, 1. 16. (b) 1 Inst. 156.

Decretal. 1. 2. t. 28.c. 36. (y) L. 5, c. 15. (z) L. 6, c. 37. (a) Co. Litt. 294. (c) Cro. Eliz. 566. (d) See stat. 2 Hen. V, st. 2, c. 3. 8 Hen. VI, c. 29.

(12) [A juror must be twenty-one years old, and if above sixty, he is exempted, though not disqualified from serving. He must also possess freehold or copyhold property, held by lease for twenty-one years or longer, of the annual value of twenty pounds, or occupy a house con taining not less than fifteen windows. In London, the occupation of a house, shop, or place of business within the city, or the possession of real or personal property of the value of 1002 corstitutes a qualification. 6 and 7 Geo. IV, c. 50.]

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 it 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 shall 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) (13)

4. Challenges propter delictum, are for some crime or misdeameanor, 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

[*364] 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, 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 voir dire, veritatem dicere, within regard to such causes of challenge as are not to his dishonour or discredit; but not with regard to any crime, or any thing which tends to his disgrace of disadvantage. (h)

Besides these challenges, which are exceptions against the fitness of jurors, and whereby they may be excluded from serving, there are also other causes, to be made use of by the jurors themselves, which are matter of exemption; whereby their service is excused, and not excluded. As, by statute West. 2, 13 Edw. I, c. 38, sick and decrepit persons, persons not commorant in the county, and men above seventy years old; and by the statute of 7 and 8 Wm. III. c. 32, infants under twenty-one. This exemption is also extended by divers statutes, customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impanelled, must show their special exemption. Clergymen are also usually excused, out of favour and respect to their function: but, if they are seized of lands and tenemeats, they are, in strictness, liable to be impanelled in respect of their lay-fees, unless they be in the service of the king or some bishop: "in obsequio domini regis, vel alicujus episcopi." (i) (14)

If, by means of challenges, or other cause, a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A

(e) Finch. L. 401.

(f) In the nembda, or jury of the ancient Goths, three challenges only were allowed to the favour, but the principal challenges were indefinite. Licebat palam excipere, et semper ex probabili causa tres repudiari. etiam plures ex causa prægnanti et manifesta." Stiernhook. 1, c. 4. (g) Co. Litt. 158.

(h) Ibid. 158, b.

(i) F. N. B. 166. Reg. Brev. 179.

(13) [The question of challenge to the array, and incidentally to the polls and triors, underwent much discussion in The King v. Edmonds, 4 B. and A. 476.]

The whole subject was very fully considered in the case of Freeman ". 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, see1 Burr's trial, 416; Osiander's Case, 3 Leigh, 785; People v. Bodine, 1 Denio, 307; Commonwealth v. Knapp, 9 Pick. 499; Smith e. Eames, 3 Seam.78; Bradford v. State, 15 Ind. 351; 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. 332; Hasceig v. Tripp, 20 Mich. 216.

(14) Clergymen, Roman Catholic priests, and dissenting ministers, are now excused.

tales is a supply of such men as are summoned upon the first panel, in order to make up the deficiency. For this purpose, a writ of decem tales, octo tales, and the like, was used to be issued to the sheriff at common law, and must be still so done at a trial at bar, if the jurors make default. But at the assize, or nisi prius, by virtue of the statute 35 Hen. VIII, c. 6, and other subsequent *statutes, the judge is empowered, at the prayer of either party, to award

a tales de circumstantibus (j) (15) of persons present in court, to be [*365]

joined to the other jurors, to try the cause; who are liable, however, to the same challenges as the principal jurors. This is usually done, till the legal number of twelve be completed; in which patriarchal and apostolical number Sir Edward Coke (4) hath discovered abundance of mystery. (1)

When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores.

We may here again observe, and, observing, we cannot but admire, how scrupulously delicate, and how impartially just, the law of England approves itself, in the constitution and frame of a tribunal thus excellently contrived for the test and investigation of truth; which appears, most remarkably. 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In its caution against all partiality and bias, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shown of malice or favour to either party. The prodigious multitude of exceptions or challenges allowed to jurors, who are the judges of fact, amounts nearly to the same thing as was practised in the Roman republic, before she lost her liberty that the select judges should be appointed by the prætor, with the mutual consent of the parties *Or, as Tully (m) expresses it: “nemi[*366] nem voluerunt majores nostri, non modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima, esse judicem; nisi qui inter adversarios convenissit."

Indeed, these selecti judices bore, in many respects, a remarkable resemblance to our juries: for they were first returned by the prætor: de decuria senatoria conscribuntur; then their names were drawn by lot, till a certain number was completed in urnam sortito mittuntur, ut de pluribus necessarius numerus confici posset: then the parties were allowed their challenges: post urnam permittitur accusatori, ac reo, ut ex illo numero rejiciant quos putaverint sibi, aut inimicos, aut ex aliqua re incommodos fore: next they struck what we call a tales; rejectione celebrata, in eorum locum qui rejecti fuerunt subsortiebatur prætor alios, quibus ille judicum legitimus numerus compleretur; lastly, the judges, like our jury, were sworn; his perfectis, jurabant in leges judices, ut obstricti religione judicarent. (n)

The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impanelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue. For the issue is said to lie, and proof is always first required,

(j) Appendix, No. II, 54.

(k) 1 Inst. 155.

(Pausanias relates that at the trial of Mars, for murder, in the court denominated Areopagus from that incident, he was acquitted by a jury composed of twelve pagan deities. And Dr. Hickes, who attributes the introduction of this number to the Normans, tells us that among the inhabitants of Norway, from whom the Normans, as well as the Danes, were descended, a great veneration was paid to the number twelve "nihil sanctius, nihil antiquius fuit; perinde ac si in ipso hoc numero secreta quædam esset religio." Dissert. Epistolar. 49. Spelm. Gloss. 329.

(m) Pro Cluentio. 43.

(n) Ascon. in Cic. Ver. 1, 6. A learned writer of our own, Dr. Pettingal, hath shown in an elaborate work (published A. D. 1769) so many resemblances between the dikaoral of the Greeks, the judices selecti of the Romans, and the jurics of the English, that he is tempted to conclude that the latter arc derived from the former.

(15) In general, no writ is issued for this purpose in the United States, but the court, by order, directs the sheriff to summon from the bystanders the necessary number of talesmen to fill the panel

VOL. II.-29


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