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 at the same court in which they have pleaded not quilty, 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), (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; (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 [*352] have not only a copy of the indictment, but a list of all the witnesses 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 cirallenges 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so far as it affected indictments for the inferior species of high treason, respecting the coin and the royal seals, is repealed by the statute 6 Geo.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) (3)

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, if so many are found in the place; (which indeed does not hold in treasons, (p) aliens being very improper judges of the breach of allegiance; nor yet in the case of Egyptians (4) under the statute 22 Hen. VIII, c. 10), that on every panel

(k) Fost. 229. Append. i.
(o) See book III, page 359.

(1) Ibid. 230. (m) Fost. 250.
(n) 2 Hawk, P. C. 410.
(p) 2 Hawk. P. C. 420. 2 Hal. P. C. 271.

(3) 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, in order that it might be taken down. Rex v. Parry, 7 C. and P. 835. 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.

(4) This class of persons are now dealt with summarily, as rogues and vagabonds.

VOL. II.-65

513

there should be a competent number of hundredors; (5) 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. [ *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 vite, 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. (6) 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.

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 asssign 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) (7) The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never be tried. This reasonable [ *354] 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 fiveand-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 dealt 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

(q) 2 Hawk. P. C. 413. 2 IIal. P. C. 271.

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

(6) [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. 803, and 4 H. St. Tr. 1.]

(7) [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 indifferently. Evidence is then produced to support the challenge, and according to the verdict of the two triers, the juryman is admitted or rejected.]

In the United States challenges to the favor are generally tried by two jurors already impaneled, if there are such, and if not, then by two indifferent by-standers appointed and sworn by the court for that purpose, or by the court itself. The American decisions regarding challenges are collected in 1 Waterman's Arch. Cr. L. 545, et seq. The subject of challenges to the polls was quite fully considered in People v. Bodine, 1 Denio, 231. There is a good deal of diversity of opinion as to what previously received impressions of the party called as a juror, as to the guilt of the accused, should exclude him from sitting. Compare Freeman v. People, 4 Denio, 9; People v. Mather, 4 Wend. 229; Baxter v. People, 3 Gil. 368, with Moran's Case, 9 Leigh, 651; State v. Ellington, 7 Ired. 61; Moses v. State, 10 Humph. 456; Holt v. People, 13 Mich. 224.

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 and 2 P. and M. 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 a 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, (t) that such challenge shall only be disregarded and overruled. Because, first, the common law does not inflict the judgment of penance for challenging twenty-one, neither doth the statute inflict it; and so heavy a judgment (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 further challenge be disallowed or prevented: and therefore, being null from the beginning, and never in fact a challenge, it can subject the prisoner to no punishment; but the juror shall be regularly sworn. (8)

If, by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales *may be awarded as in civil [*355] causes, (u) till the number of twelve is sworn, "well and truly to try, and true deliverance make, between our sovereign lord the king, and the prisoner whom they have in charge; and a true verdict to give according to the evidence."

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshaled, examined, and enforced by the counsel for the crown or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. (w) (9) A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) (x) seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass? Nor, indeed, is it, strictly speaking, a part of our ancient law: for the Mirror (y) having observed the necessity of counsel in civil suits, "who know how to forward and defend the cause, by the rules of law and customs of the realm," and immediately afterwards subjoins: "and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes." (z) And the judges themselves

(r) 2 Hal. P. C. 268. (s) 2 Hawk. P. C. 414. (t) 3 Inst. 227. 2 Hal. P. C. 270. (u) See book III. page 364. But in mere commissions of gaol delivery, no tales can be awarded; though the court may ore tenus order a new panel to be returned instanter. (4 Inst. 68. 5 St. Tr. 728. Cooke's Case.) (w) 2 Hawk. P. C. 400.

(x) Sir Edward Coke (3 Inst. 137) gives another additional reason for this refusal, because the evidence to convict a prisoner should be so manifest, as it could not be contradicted." Which Lord Nottingham (when high steward) declared (3 St. Tr. 726) was the only good reason that could be given for it. () c. 3. § 1.

(2) Father Parsons. the jesuit, and after him Bishop Ellys (of English liberty ii, 66), have imagined that the benefit of counsel to plead for them was first denied to prisoners by law of Hen. I, meaning (I presume) chapters 47 and 48 of the code which is usually attributed to that prince. "De causis criminalibus vel capitalibus nemo quærat consilium: quin implacitatus statim perneget, sine omni, petitione consilii - In aliis omnibus potest et debet uti consilio."-But this consilium, I conceive, signifies only an imparlance, and the petitio consilii is craving leave to imparl; (see book III, page 293), which is not allowable in any criminal prosecution. This will be manifest by comparing this law with a contemporary passage in the grand coustumier of Normandy (ch. 85), which speaks of imparlances in personal actions. Apres ce. est tenu le querelle a respondre; et aura congie de soy conseiller, s'il le demande ; et quand il sera conseille, il pout myer le facit dont il est accuse." Or. as it stands in the Lat. text edit, 1539), Querelates autem postea tenetur respondere; et habebit licentiam consulendi, si requirat; habito autem consilio, debet factum negare quo accusatus est."

(8) By statute 7 and 8 Geo. IV, c. 28, s. 3, peremptory challenges beyond the number allowed by law are entirely void.

(9) A full defence by counsel is now allowed in all cases. See statute 6 and 7 Wm. IV, c. 114. In the United States the right to counsel is a constitutional right, and if the accused

are so sensible of this defect, that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for [*356] him, with respect to matters of fact: for as to matters of law, arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence, in the case of the state criminals, the legislature has directed by statute 7 Wm. III, c. 3, that persons indicted for such high treason, as works a corruption of the blood, or misprision thereof (except treason in counterfeiting the king's coin or seals), may make their full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge: and the same indulgence, by statute 20 Geo. II, c. 30, is extended to parliamentary impeachments for high treason, which were excepted in the

former act.

The doctrine of evidence upon pleas of the crown is, in most respects, the same as that upon civil actions. There are, however, a few leading points. wherein, by several statutes, and resolutions, a difference is made between civil and criminal evidence.

First, in all cases of high treason, petit treason, and misprision of treason, by statutes 1 Edw. VI, c. 12, and 5 and 6 Edw. VI, c. 11, two lawful witnesses are required to convict a prisoner; unless he shall willingly and without violence confess the same. By statute 1 and 2 P. and M. c. 10, a farther exception is made as to treasons in counterfeiting the king's seals or signatures, and treasons concerning coin current within this realm: and more particularly by chapter 11, the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin. The statutes 8 and 9 Wm. III, c 25, and 15 and *16 Geo. II, c. 28, in their subsequent [*357] extensions of this species of treason, do also provide, that the offenders may be indicted, arraigned, tried, convicted, and attainted, by the like evidence, and in such manner and form as may be had and used against offenders for counterfeiting the king's money. But by statute 7 Wm. III, c. 3, in prosecutions for those treasons to which that extends, the same rule (of requiring two witnesses) is again enforced; with this addition, that the confession of the prisoner, which shall countervail the necessity of such proof, must be in open court. In the construction of which act it hath been holden, (a) that a confession of the prisoner, taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is sufficient to convict him of treason. But hasty, unguarded confessions, made to persons having no such authority, ought not to be admitted as evidence under this statute. And, indeed, even in cases of felony at the common law, they are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or repeated with due precision; and incapable in their nature of being disproved by other negative evidence. (10) By the same statute, 7 Wm. III, it is declared, that both witnesses must be to the same overt act of treason, or one to one overt act, and the other to another overt act, of the same species of treason, (b) and not of distinct heads or kinds: and no evidence shall be admitted to prove any

party is unable to employ counsel, the court will designate some member of the bar for that purpose, and he is not at liberty to decline the appointment. See Vise v. Hamilton County, 19 Ill. 18. See also, Cooley's Const. Lim. 334.

(10) The confession is not sufficient evidence of the corpus delicti, but is only allowed for the purpose of connecting the defendant with the offence when that has been established by other evidence. People v. Hennessey, 15 Wend. 147; Stringfellow v. State, 26 Miss. 157; State v. Guild, 5 Halst. 163; People v. Lambert, 5 Mich. 349.

The confession, to be admissible in any case, ought to appear to have been made voluntarily, and without motives of hope or fear being employed for the purpose of inducing it. Rex v. Enoch, 5 C. and P. 539; Earle v. Picken, id. 542, note; Morehead v. State, 9 Humph. 635; State v. Bostick, 4 Harr. 563; 1 Greenl. Ev. § 214, and note; 1 Phil. Ev. by Cowen, Hill and Edwards, 514, and cases cited.

overt act not expressly laid in the indictment.(11) And, therefore, in Sir John Fenwick's case in King William's time, where there was but one witness, an act of parliament (c) was made on purpose to attaint him of treason, and he was executed. (d) But in almost every other accusation one positive witness is sufficient. Baron Montesquieu lays it down for a rule, (e) that those laws which condemn a man to death in any case on the deposition of a single witness, are fatal to liberty; and he adds this reason, that the witness who affirms, and the accused who denies, make an equal balance; (f) there is a necessity, therefore, to call *in a third man to incline the scale But this seems to be carry[*358] ing matters too far: for there are some crimes, in which the very privacy of their nature excludes the possibility of having more than one witness; must these, therefore, escape unpunished? Neither, indeed, is the bare denial of the person accused equivalent to the positive oath of a disinterested witness. In cases of indictment for perjury, this doctrine is better founded; and there our law adopts it: for one witness is not allowed to convict a man indicted for perjury; because then there is only one oath against another. (g) In cases of treason, also, there is the accused's oath of allegiance, to counterpoise the information of a single witness; and that may perhaps be one reason why the law requires a double testimony to convict him: though the principal reason, undoubtedly, is to secure the subject from being sacrificed to fictitious conspiracies, which have been the engines of profligate and crafty politicians in all ages.

Secondly, though from the reversal of Colonel Sidney's attainder by act of parliament, in 1689, () it may be collected, (i) that the mere similitude of hand-writing in two papers shown to jury, without other concurrent testimony, is no evidence that both were written by the same person; yet undoubtedly the testimony of witnesses, well acquainted with the party's hand, that they believe the paper to have been written by him is evidence to be left to a jury. (j) (12)

Thirdly, by the statute 21 Jac. I, c. 27, a mother of a bastard child, concealing its death, must prove by one witness that the child was born dead; otherwise such concealment shall be evidence of her having murdered it.(k) (13)

Fourthly, all presumptive evidence of felony should be admitted cautiously; for the law holds that it is better that ten guilty persons escape, than that one innocent suffer. *And Sir Matthew Hale in particular (7) lays down two rules most prudent and necessary to be observed: 1. Never to convict a *[359] man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and 2. Never to convict any person of murder or manslaughter, till at least the body be found dead; on account of two instances he mentions, where persons were executed for the murder of others, who were then alive, but missing. (14)

Lastly, it was an ancient and commonly received practice (m) (derived from the civil law, and which, also, to this day obtains in the kingdom of France), (n) that, as counsel was not allowed to any prisoner accused of a capital crime, so

(d) St. Tr. V. 40. (h) St. Tr. VIII, 472.

(c) Stat. 8 Wm. III, c. 4. (g) 10 Mod. 194.

Lord Preston's Case, A. D. 1690. St. Tr. IV, 153. Francis's Case, A. D. 1716. St. Tr. VI, 69. Layer's Case, A. D. 1722. Ibid. 279. Henzey's Case, A. D. 1758. Burr. 644.

(7) 2 Hal. P. C. 290.

(m) St. Tr. I, passim.

(k) See page 198.
(n) Domat. publ. law, b. 3, t. 1. Montesq. Sp. L. b. 29, c. 11.

(11) [By 5 and 6 Vic. c. 51, where the overt act is an attempt to injure the person of the sovereign, a conviction may be had on the same evidence as if the prisoner were charged with murder; so that, in this case, two witnesses are not required.]

(12) [But the proof of handwriting is not evidence in high treason, unless the papers are found in the custody of the prisoner. 1 Burr. 644.]

(13) This statute is since repealed.

(14) A noted instance of conviction in America for the murder of a person who afterwards returned alive, had principally upon the confessions of the accused parties, has had a tendency towards still greater caution. See the case referred to in 1 Greenl. Ev. 214, n., and given more at large by Mr. Gallison, in 10 N. A. Review, 418