CHAP. XXV.

WHENSOEVER the parties, contending in the King's Courts, are come to the issue of the Plea, upon the matter of fact, the justices forthwith, by virtue of the King's Writ, write to the Sheriff of the County, where the fact is supposed to be, that he would cause to come before them, at a certain day, by them appointed, twelve good and lawful men of the neighbourhood, where the fact is supposed, who stand in no relation to either of the parties who are at issue, in order to enquire and know upon their oaths, if the fact be so as one of the parties alleges, or whether it be as the other contends it, with him. At which day the Sheriff shall make return of the said Writ before the same Justices, with a panel of the names of them whom he had summoned for that purpose. In case they appear, either party may challenge the array, and allege, that the Sheriff hath acted therein partially, and in favour of the other party, (viz.) by summoning such as are too much parties in the cause and not indifferent; which exception, if it be found to be true upon the oath of two men of the same panel, pitched on by the Justices, the panel shall immediately be quashed, and then the Justices shall write to the Coroners of the same County, to make a new panel; in case that likewise should be excepted against, and be made appear to be corrupt and vicious, this panel shall also be quashed. Then the Justices shall choose two of the clerks in Court, or others of the same

County, who, sitting in the court, shall upon their oaths, make an indifferent panel, which shall be excepted to by neither of the parties; but, being so impanelled, and appearing in Court, either party may except against any particular person; as he may at all times, and in all cases, by alledging that the person so impanelled is of kin, either by blood, or affinity to the other party; or in some such particular interest, as he cannot be deemed an indifferent person to pass between the parties of which sort of exceptions there is so much variety, as is impossible to shew in a small compass: if any one of the exceptions be made appear to the Court to be true and reasonable, then he against whom the exception is taken, shall not be sworn, but his name shall be struck out of the panel in like manner shall be done with all the rest of the panel, until twelve be sworn: so indifferent, as to the event of the cause, that neither of the parties can have reasonable matter of challenge against them out of these twelve, four, at the least, shall be Hundredors, dwelling in the Hundred, where the Vill is situate, in which the fact disputed is supposed to be: and every one of the Jury shall have lands, or revenues, for the term of his life, of the yearly value at least of forty shillings. This method is observed in all actions and causes, criminal, real or personal; except where, in personal actions the damages, or thing in demand, shall not exceed forty marks English money: because, in such like actions of small value, it is not necessary, nor required, that the Jurors should be able to expend so much; but they are required to have lands, or revenues, to a competent value, at the discretion of the Justices; otherwise they shall not be accepted; lest, by reason of their meanness and poverty, they may be liable to be easily bribed, or suborned: and in case, after all exceptions taken, so many be struck out of the panel, that there does

not remain a sufficient number to make up the Jury, then it shall be given in charge to the Sheriff, by virtue of the King's Writ, that he add more Jurors; which is usually and often done, that the enquiry of the truth upon the issue in question may not remain undecided, for want of Jurors. This is the form how Jurors, who enquire into the truth, ought to be returned, chosen and sworn in the King's Courts of Justice: it remains to enquire. and explain how they ought to be charged and informed as to their declaration of the truth of the issue before them".

In this Chapter, Fortescue directs the attention of the Prince, to some of the leading features of the trial by Jury: it will be noticed, that several of the principles, upon which that institution was originally founded, have undergone essential alterations. The qualification of neighbourhood, has been materially affected by Statute: and the private knowledge of Jurors, is not at present deemed a proper cause for their decision; whereas so late as the time of Charles II, it was considered by the Courts, that the greater and better part of the evidence, which should sway the minds of the Jury, might be unknown to the Judge: an infraction of the right of being tried by Peers of their vicinage, was alleged by the American States, as one of the grounds of their quarrel with Great Britain. (Memoirs of Franklin 1. p. 462. Per C. J. Vaughan, Case of Bushell's Habeas Corpus; and see C. J. Pemberton's Charge to Lord Shaftesbury's Grand Jury. Concerning the Period when the Principle came to be changed, 3 Bl. Comm. 374. Styles 233. 1 Sid 133.) The qualification of freehold has been greatly modified by the Legislature: it was, however, insisted upon as indispensable in trials for High Treason, by a clause in the Bill of Rights, a circumstance which was owing to the celebrated discussion upon the subject in the case of Lord Russel. In High Treason, likewise, the subject is furnished by Statutes passed since the Revolution, with an advantage in the challenging of the Jurors, which he did not possess at Common Law, by supplying him with the names, professions and abodes of the Jurors, at a specified period before the trial. Foster expresses a doubt, whether, by the Law, as it is now settled, a prisoner accused of treason, is not invested with privileges too great for the purposes of equal justice. But, as far as the power of challenging is concerned, the prisoner will be thought to be entitled to every facility, when it is

considered

considered, that, by the rules which the Courts have established, he cannot defer making his challenge in any instance, for the purpose of ascertaining whether the Counsel for the Crown intend to offer theirs; that no cause can be required to be shewn on the part of the prosecution, until all the panel has been gone through; and that the great size of the panels, which has been allowed in trials for High Treason, combined with these two circumstances, operates to invest the Crown with the power of arbitrarily rejecting Jurors. (See the Cases of O'Coigly, and Horne Took, for Treason. Howell's St. Tr. and References, ibid.) A very important alteration has taken place in the ancient law respecting Juries, by the practice of striking Special Juries in cases of misdemeanor. The Statute of 3 George II, recognizes this usage as being then long established. The reader will find the objections, which have been made to the use of Special Juries in State prosecutions, urged with great ability by the defendant, in the case of the King v. Horne 11th St. Tr. and in a letter addressed by Lord Lyttleton to a Member of Parliament, which is published in his works. Previous to the Statute of William, the trial of a Peer in the High Steward's Court, afforded opportunities for the most flagrant injustice; since the selection of the Lords who were to try the prisoner, was virtually the act of the Crown, and there existed no right of challenge. A single historical fact, will illustrate the danger to which Peers were liable to be exposed by such an unfair mode of procedure. At the trial of the Protector Somerset, Northumberland, Northampton, and Pembroke, sat among his Judges.

CHAP. XXVI.

TWELVE good and true men being sworn, as in the manner above related, legally qualified, that is, having over and besides their moveables, possessions in land sufficient (as was said) wherewith to maintain their rank and station; neither suspected by, nor at variance with either of the parties; all of the neighbourhood; there shall be read to them in English, by the Court, the Record and nature of the plea, at length, which is depending between the parties; and the Issue thereupon shall be plainly laid before them, concerning the truth of which, those who are so sworn, are to certify the Court: which done, each of the parties, by themselves or their Counsel, in presence of the Court, shall declare and lay open to the Jury all and singular the matters and evidences, whereby they think they may be able to inform the Court concerning the truth of the point in question; after which each of the parties has a liberty to produce before the Court all such witnesses as they please, or can get to appear on their behalf; who being charged upon their oaths, shall give in evidence all that they know touching the truth of the fact, concerning which the parties are at issue: and, if necessity so require, the witnesses may be heard and examined apart, till they shall have deposed all that they have to

See the Cases of Cook and of Vaughan, tem. Will. III. Hargr. St. Tr.