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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 misdemeanours 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 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,(l) 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 misprision *thereof shall have not only a copy of the indictment, but a list of all the witnesses to [*352 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 twʊ 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so far as it affected indictments for the inferior species of high treason, respecting the coin and the royal seals, is repealed by the statute 6 Geo.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 samo 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)


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Now, by the 60 Geo. III. and 1 Geo. IV. c. 4, s. 3, if the defendant has been committed to custody, or held to bail for a misdemeanour, twenty days before the session of the peace, session of oyer and terminer, great session, or session of gaol-delivery at which the indictment was found, the defendant shall plead and the trial shall take place at such session, unless a writ of certiorari be awarded. And, by sect. 5, where a defendant indicted for a misdemeanour at any session of the peace, session of oyer and terminer, great session, or session of gaol-delivery, not having been committed to custody, or held to bail to appear to answer for such offence, twenty days before the session at which the indictment was found, but who shall have been committed to custody, or held to bail to appear to answer for such offence, at some subsequent session, or shall have received notice of such indictment having been found, twenty days before such subsequent session, he shall plead at such subsequent session, and trial shall take place at such session, unless a certiorari be awarded before the jury be sworn for such trial. But, on sufficient cause shown, the court may allow further time for trial. Id. s. 7. In cases of indictments for obtaining goods, &c. by false pretences, and sending threatening letters with intent to extort money, &c., and other misdemeanours punishable under the 30 Geo. III. c. 24, it is enacted by that act (sect. 17) that every such offender, bound over to the general quarter-sessions of the peace, or sessions of oyer and terminer and gaoldelivery of the county where the offence was committed, shall be tried at such general quarter-sessions of the peace, or sessions of oyer and terminer and gaol-delivery, which shall be held next after his apprehension, unless the court shall think fit to put off the trial, on just cause made out to them. So also, by the 39 & 40 Geo. III. c. 87, s. 22, persons indicted for a misdemeanour in receiving stolen goods, under the 2 Geo. III. c. 28, are to be tried immediately, without being allowed the delay of a traverse. 2 East, P. C. 754. As to traverses in general, in criminal proceedings, see 1 Chitt. C. L. 486.— CHITTY.

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

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 does not indeed hold in treasons,(p) aliens being very improper judges of the breach of allegiance; nor

(°) See book iii. page 359.

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

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. 1 East, P. C. 113. -CHITTY.

6 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. 28, no challenge shall be taken to any panel of jurors for want of a knight being returned in such panel, nor any array quashed by reason of any such challenge. 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 chal lenge 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.

The 6 Geo. IV. c. 50, s. 47 provides that nothing in that act contained shall extend or be construed to extend to deprive any alien indicted or impeached of any felony or misdemeanour of the right of being tried by a jury de medietate linguæ, but that, on the prayer of every alien so indicted or impeached, the sheriff, or other proper minister, shall, by command of the court, return for one-half of the jury a competent number of aliens, if so many there be in the town or place where the trial is had, and if not, then so many aliens as shall be found in the same town or place, if any; and that no such alien juror shall be liable to be challenged for want of freehold or of any other qualifi cation required by the act, but every such alien may be challenged for any other caure, in like manner as if he were qualified by the act.-CHITTY.

The privilege is taken away from persons indicted of high treason by the 1 & 2 Ph

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;10 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. *Challenges upon any of the foregoing counts are styled challenges for cause, which may be without stint in both criminal and civil trials. But [*353

1. As

in criminal cases, or at least in capital ones, there is, in favorem vitæ, 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. 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


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 à 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)12 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 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 nuniber, 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 treason.(r) And so the law stands at this day with regard to treason of any kind.

(9) 2 Hawk. P. C. 413. 2 Hal. P. C. 271.

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

and M. c. 10, which directs that all trials for that offence shall take place as at common law. CHITTY.

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 lingua; 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.

10 The right to challenge for want of hundredors is now taken away, by the 6 Geo. IV. c. 50, s. 13.-CHITTY.

"A peremptory challenge is not allowed in the trial of collateral issues, (Fost. 42,) nor in any trial for a misdemeanour. 2 Harg. St. Tr. 808, and 4 Harg. St. Tr. 1.— CHRISTIAN.

12 And the practice is the same both in trials for misdemeanours and for capital ffences. 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.

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. 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 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 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.18

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 their evidence."

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, 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) 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 at 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 antient 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," immediately afterwards subjoins, "and more necessary are they for defence upon indictments and appeals of felony than upon other venial causes."(z)1 And the judges themselves are so sensible of this defect that

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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 298,) 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 Apres ce, est tenu le querelle a respondre; et aura congie de soy conseiller, s'il le demande; et quand il sera conseille, il peut nyer le faict dont ill est accuse.” Or, as it stands in the Latin text, (edit. 1539,) “Querelatus autem postea tenetur respondere; et habebit licentiam consulendi, si requirat; habito autem consilio, debet factum negare quo accusatus est."


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13 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.

14 The prisoner is not allowed counsel to plead his cause before the jury in any felony, whether it is capital, or within the benefit of clergy; nor in a case of petty larceny. But in misdemeanours the prisoner or defendant is allowed counsel as in civil actions, but even here the defendant cannot have the assistance of counsel to examine the witnesses and reserve to himself the right of addressing the jury. 1 Ry. & M. C. C. 166. 3 Camp. 98.

they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact; [*356 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 state-criminals, the legislature has directed, by statute 7 W. 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.15

The maxim that the judge is counsel for the prisoner signified nothing more than that the judge shall take care that the prisoner does not suffer from the want of counsel. The judge is counsel only for public justice, and to promote that object alone all his inquiries and attention ought to be directed. Upon a trial for the murder of a male child, the counsel for the prosecution concluded his case without asking the sex of the child; and the judge would not permit him afterwards to call a witness to prove it, but, in consequence of the omission, he directed the jury to acquit the prisoner. But, to the honour of that judge, it ought to be stated that he declared afterwards in private his regret for his conduct. This case is well remembered; but it ought never to be cited but with reprobation.-CHRISTIAN.

16 And see further, as to the allowance and assigning of counsel, 1 Chitt. C. L. 2d ed. 407 to 411.-CHITTY.

Upon the trial of issues which do not turn upon the question of guilty or not guilty, but upon collateral facts, prisoners under a capital charge, whether for treason or felony, always were entitled to the full assistance of counsel. Fost. 232, 242.

It is very extraordinary that the law of England should have denied the assistance of counsel when it is wanted most,-viz., to defend the life, the honour, and all the property of an individual. It is the extension of that maxim of natural equity, that every one shall be heard in his own cause, that warrants the admission of hired advocates in courts of justice; for there is much greater inequality in the powers of explanation and persuasion in the natural state of the human mind than when it is improved by education and experience. Among professional men of established character, the difference in their skill and management is generally so inconsiderable that the decision of the cause depends only upon the superiority of the justice in the respective cases of the litigating parties. Hence the practice of an advocate is absolutely necessary to the administration of substantial justice. An honourable barrister will never misstate either law or facts within his own knowledge; but he is justified in urging any argument, whatever may be his own opinion of the solidity or justness of it, which he may think will promote the interests of his client; for reasoning in courts of justice and in the ordinary affairs of life seldom admits of geometrical demonstration; but it happens not unfrequently that the same argument which appears sophistry to one is sound logic in the mind of another; and every day's experience proves that the opinions of a judge and an advocate are often diametrically opposite. Many circumstances may occur which will justify or compel an individual member of the profession to refuse the defence of a particular client; but a cause can hardly be conceived which ought to be rejected by all the bar; for such a conduct in the profession would excite so strong a prejudice against the party as to render him in a great degree condemned before his trial. Let the circumstances against a prisoner be ever so atrocious, it is still the duty of the advocate to see that his client is convicted according to those rules and forms which the wisdom of the legislature has established as the best protection of the liberty and the security of the subject. But the conduct of counsel in the prosecution of criminals ought to be very different from that which is required from them in civil actions or when they are engaged on the side of a prisoner in the latter cases they are the advocates of their client only, and speak but by his instruction and permission; in the former they are the advocates of public justice, or, to speak more professionally, they are the advocates of the king, who in all criminal prosecutions is the representative of the people: and both the king and the country must be better satisfied with the acquittal of the innocent than with the conviction of the guilty. Hence in all criminal prosecutions, especially where the prisoner can have no counsel to plead for him, a barrister is as much bound to disclose all those circumstances to the jury, and to reason upon them as fully, which are favourable to the brisoner, as those which are likely to support the prosecution.

When this note was written, the editor was not aware that the general observations contained in it were sanctioned by so great authorities as Cicero and Panætius. Cicero makes the distinction that it is the duty of the judge to pursue the truth,

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