appre

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 hended 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. (12) 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, despatch, 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 an indictment, information, or appeal, *should [*350 afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion. (13) So that the liberties of England cannot but subsist so long as this palladium (14) 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;(15) 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. (16)

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. When, therefore, a prisoner on his arraignment hath 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

(i) See book iii. page 379.

(12) McCauley v. State, 26 Ala. 135, 142 (1855).

(13) Nelson v. State, 47 Miss. 621, 629 (1872). State v. Albee, 61 N. H. 423, 425 (1881).

(14) [A wooden image of Pallas,-safeguard.]

(15) This remark, though it derives new force in being adopted by so great an authority, is not original in Mr. Justice Blackstone. For the same express reason for the institution and authority of juries is to be found in Bracton, who wrote above five hundred years before him." King v. Shipley, 4 Doug. 73, 110 Eng. (1784).

(16) McCauley v. State, 26 Ala. 135, 144 (1855). State v. Olds, 19 Ore. 397, 428 (1890). Hurtado v. California, 110 U. S. 516, 545 (1883).

homines, de vicineto;(17) that is, freeholders, without just exception, and of the visne or neighborhood; which is interpreted to be of the county where the fact is committed.(j)(18) If the proceedings are before the court of king's bench, there is time allowed, between the assignment and the *351] trial, for a jury to be *impanelled by a writ of venire facias, (19) to the sheriff, as in civil causes; and the trial in case of a misdemeanor is had at nisi prius, (20) 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 gaoldelivery, 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 assizes or session, and then and there to try the traverse, giving notice to the prosecutor of the same. (21)

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; 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 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 Anne, c. 21, (which did not take place till after the

decease of the late pretender,) all persons indicted for high treason or *352] 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

(17) [Free and lawful men of the vicinage.]

(18) See State v. Young, I Tread. (S. C.) 237 238 (1812). Whitehead v. Com., 19 Grat. (Va.) 640 (1870). State v. Albee, 61 N. H. 423, 425 (1881). Watt v. People, 126 Ill. 9, 16 (1888). Jurors in one county are not competent to pass upon the guilt or innocence of a party in regard to a crime alleged to have been committed by him in another county. Buckrice v. People, 110 Ill. 29, 33 (1884).

(19) [That you cause to come.]

(20) [Unless before.]

(21) State v. Posey, 7 Rich. Law (S. C.) 484, 489 (1854). See stat. 52 and 53 Vict. c. 12, 3, concerning expedition of trial at the sessions.

terminer.(m)(22) 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)

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. (23)

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, (24) for the very same reasons that they may be made in civil causes. (o)(25) For it is here at least unnecessary (26) 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, (27) (which

(m) Fost. 250.

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

(0) See book iii. page 359.

(22) By 39 & 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, s. 21, when any person is indicted for high treason or misprision of treason, in any court except King's Bench, a list of the petit jury, with their names, professions, and places of abode, shall be given at the same time that the copy of the indictment is delivered to the party indicted, which shall be ten days before arraignment, and in the presence of two or more credible witnesses; and when any person is so indicted in King's Bench, a copy of the indictment shall be delivered as before mentioned; but the list of the petit jury, made out as before mentioned, may be delivered to the party indicted, after arraignment, so that it be ten days before trial. Proviso, not to extend to interfere with the provisions of 39 & 40 Geo. IV. c. 93, nor to cases of treason relating to the coin.

Where the jury-panel is incorrect, a motion may be made on the part of the crown, in the court of gaol-delivery, for leave to the sheriff to amend the panel. I East, P. C. 113. -CHITTY.

(23) The caption if it does not give the names of the jurors should

show at least that it was taken before twelve jurors. McClure v. Tennessee, I Tenn. 222. Cooley v. State, 38 Texas, 638 (1873).

(24) By 6 Geo. IV. c. 50, s. 27, if any man shall be returned as a juror for the trial of any issue in any of the courts in the act mentioned who shall not be qualified according to the act, the want of such qualification shall be good cause of challenge, and he shall be discharged upon such challenge, if the court shall be satisfied of the fact; and if any man returned as a juror for the trial of any such issue shall be qualified in other respects according to the act, the want of freehold shall not on such trial, in any case, civil or criminal, be accepted as good cause of challenge, either by the crown or the party, nor as cause for discharging the man so returned upon his own application. Proviso, not to extend to any special juror.

By sect. 29, in all inquests to be taken before any of the courts in the act mentioned wherein the king is a party, howsoever it be, notwithstanding it be alleged by them that sue for the king that the jurors of those inquests, or some of them, be not indifferent for the king: yet such inquests shall not remain untaken for that cause; but if they that sue for the king will challenge any of those jurors, they shall assign of their challenge a cause certain, and the truth of the same challenge shall be inquired of according to the custom of the court; and it shall be proceeded to the taking of the same inquisition, as it shall be found, if the challenges be true or not, after the discretion of the court; and no person arraigned for murder or felony shall be admitted to any peremptory challenge above the number of twenty.

And, by 7 & 8 Geo. IV. c. 28, s. 3, if any person indicted for any treason, felony, or piracy shall challenge peremptorily a greater number of the men returned to be of the jury than such person is entitled by law so to challenge in any of the said cases, every peremptory challenge beyond the number allowed by law in any of the said cases shall be entirely void, and the trial of such person shall proceed as if no such challenge had been made.-CHITTY.

(25) Challenges must be specific. Rapalje's Crim. Pro. sec. 204 (1889). The subject of challenges is fully discussed in Anthony's on Self-Defence, 186.

(26) To have an impartially selected jury by a disinterested officer is a common law right independent of any statute. People v. Felker, 61 Mich. 116 (1886).

(27) Stat. 33 & 34 Vict. c. 77, 8 provides that aliens who have been domiciled in England or Wales for ten years shall be liable to serve as jurors, but not otherwise.

does not indeed hold in treasons, (p) aliens being very improper judges of the breach of allegiance; (28) nor yet in the case of Egyptians (29) under the statute 22 Hen. III. c., 10;) that on every panel there should be a competent number of hundredors; (30) and that the particular jurors should be omni exceptione majores, (31)—not liable to objection either propter honoris res

pectum, propter defectum, propter affectum, or proper delictum.(32) *353] *Challenges upon any of the foregoing accounts are styled challenges for cause, which may be without stint in both criminal and civil trials. (33) But in criminal cases, or at least in capital ones, there is, in favorem vitæ, (34) 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; (35) a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. (36) 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 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. However, it is held that the king need not assign his

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

(28) The privilege is taken away from persons indicted of high treason by the 1 & 2 Ph. and M. c. 10, which directs that all trials for that offence shall take place as at common law.-CHITTY.

(29) The 28 Edw. III. c. 13, on which this right of aliens was founded, was repealed, as to Egyptians, by the 1 & 2 Ph. and M. c. 4, s. 3 and the 5 Eliz. c. 20, which enacted that they should be tried by the inhabitants of the county where they were arrested, and not per medietatem linguæ [A jury composed one-half of natives and the other of foreigners]; but that provision was repealed by the 23 Geo. III. c. 51; and Egyptians are now dealt with under the vagrant acts as rogues and vagabonds.—CHITTY.

(30) The right to challenge for want of hundredors is now taken away, by the 6 Geo. IV. c. 50, s. 13.-CHITTY. See Co. Litt. 125a.

(31) [Above all exception.]

(32) [Vide, vol. 3, p. 361.] State v. Knight, 43 Maine, 110 (1857).

(33) When the challenge is on the ground of affinity to the sheriff it is best to leave it to two jurymen. Anthony on Self-Defence, 179 (1887). But if the parties submit to the judge a question as to the facts upon which a challenge is based, there is no appeal from his decision. I Archbold's Crim. Pr. & Pl. 520 (1877).

(34) [Out of regard for human life.]

(35) This right has been carefully protected and maintained by the courts of this country. People v. Bodine, I Denio (N. Y.) 310 (1845). Sealey v. State, I Ga. 216 (1846). Lamb v. State, 36 Wis. 426 (1874). Lewis v. The United States, 146 U. S. 376 (1892). State v. Wise & Johnston, 7 Richardson (S. C. Law) 416 (1853). Garner v. State, 5 Yerger (Tenn.) 170 (1833). Anthony on Self-Defence, 211 (1887). Whelan v. The Queen, 28 Up. Can. R. (Q. B.) 100 (1868). At common law, these are restricted to the main issue, in which the life of the party is in jeopardy, and cannot be made on the trial of any collateral issue whatever. Freeman v. People, 4 Denio, 9, 22 (N. Y. 1847). (36) 2 Harg. St. Tr. 808, and 4 Harg. St. Tr. i.

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. (9)(37) The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never be tried.(38) [*354 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 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(39) in felony, and by attainting him in 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 & 2 Ph. 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. (40) But how if the 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 doth not inflict the judgment of penance for challenging twentyone, 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 shall 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. (41)

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 [*355 as in civil causes, (u) till the number of twelve is sworn, "well and

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

(r) 2 Hal. P. C. 268.

(8) 2 Hawk. P. C. 414.

(t) 3 Inst. 227. 2 Hal. P. C. 270.

(u) See book iii. page 364. But in mere commis

sions of gaol-delivery no tales can be awarded, though the court may ore tenus [Verbally] order a new panel to be returned instanter [Instantly]. 4 Inst. 68. 4 St. Tr. 728. Cooke's case.

(37) Mansell v. The Queen, 8 Ellis & Blackburn, 108 (C. L. R. 1860). President etc. W. & W. Turnpike Co. v. People, 9 Barb. (N. Y.) 166 (1850). 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 tryers, the juryman is admitted or rejected. A juryman was thus set aside in O'Coigley's trial for treason, because, upon looking at the prisoners, he had uttered the words "damned rascals." See O'Coigley's Trial.-CHRISTIAN.

(38) The statutes of several of the states require the trial to take place within a specified time from the institution of the proceeding. Wharton's Crim. Plead. 418. (39) [A violent and severe punishment.]

(40) The right of a defendant to a peremptory challenge of jurors to the number of twenty now exists in all cases of felony, and is not confined to those which are punishable capitally. Gray v. The Queen, II Clark & Finnelly, 473 (1844).

(41) Now the statute 7 & 8 Geo. IV. c. 28, s. 3 has put an end to all doubt on the point, by enacting that every peremptory challenge beyond the number allowed by law shall be entirely void, and the trial of the offender shall proceed as if no such challenge had been made.-STEWART.