sence of the attornies on both sides: who are each of aem to strike off twelve, and the remaining twenty-four are returne? 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 (16), as well a the assises 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 (17). 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 assises 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 (p) 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 shewn 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. 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 [*359] panel, 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. 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 (q): but an unexpected use having been made of this dormant privilege by a spiritual lord (r), it was abolished by statute 24 Geo. II. c. 18. But still, in an attaint, a knight must be returned on the jury (s). Also, by the policy of the ancient law, the jury was to come de vicineto, from the neighbourhood of the vill or place where the cause of action was laid in the declaration and therefore some of the ury were obliged to be returned from the hundred in which such vill lay; (p) Stat. 4 Ann. c. 16. g) Co. Litt. 156. Selden baronage II. 11. (16) Iow treason and felony may be tried m the cour of nisi prius, see 4th book, 309. . (16). TOL (r) K. v. Bishop of Worcester, M. 28 Geo. II. B. R. (s) Co. Litt. 156. (17) As to special juries in New-York, see ante 325, note 1; they are allowed only on special motion. (2 R. S. 418, § 46.) 38 and, if none were returned, the array might be challenged for defect o 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, [*360] coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of right. And his 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 (t), 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 & 5 Ann. 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 vicineto, or from the particular neighbourhood (18). The array by the ancient law may also be challenged, if an alien be e party to the suit, and, upon a rule obtained by his motion to the court for a jury de medietate linguae, 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 Walliae (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 *361] be denizens. And it now might be a question, how far the *sta tute 3 Geo. II. c. 25. (before referred to) hath in civil causes undesignedly abridged this privilege of foreigners, by the positive directions therein given concerning the manner of impanelling jurors, and the per sons to be returned in such panel. So that (unless this statute is to be construed by the same equity which the statute 8 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 aliers were parties) a (a) Stiernhook de jure Guth. 1. 1, c. 4. (t) Gilb. Hist. C. P. c. 8 (a) de Laud. LL. c. 25. (v) 1 Inst. 157. (wo) Yearb. 21 Hen. VI. 4. (18) See an excellent note, Co. Lit. 125. a. b. note (2). court might perhaps hesitate, whether it has now a power to direct a panel to be returned de medietate linguae, and thereby alter the method prescribed for striking a special jury, or balloting for common jurors (19). Challenges to the polls, in capita, are exceptions to particular jurors; and seem to answer the recusatio judicis in the civil and canon laws: by the constitutions of which a judge might be refused upon any suspicior. 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 impartial 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 impanelled on a jury, he may be challenged by either party, or he may challer ge himself. 2. Propter defectum; as if a juryman be an alien born, this is [362] defect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be liber et legalis homo. Under the word homo also, though a name common to both sexes, the female is however excluded, propter defectum sexus: except when a widow feigns herself with child, in order to exclude the next heir, and a supposititious 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 (c). 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 assises 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 41. at the least. But, the value of money at that time decreasing very considerably, this qualification was raised by the statute 16 & 17 Car. II. c. 3. to 201. 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 & 5 W. & M. c. 24. it was again raised to 101. per annum in England and 67. in Wales, of freehold lands or copyhold; which 18 the first time that copyholders (as such) were admitted to serve upon uries in any of the king's 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 (z) Cod. 3. 1. 16. Decretal, l. 2, t 28, c. 36. (19) The privilege is expressly preserved to allens indicted or impeached by 6 Geo. IV. c. 50. 4 In New-York, in no case, civil (a) Co. Litt. 294. or criminal, can an alien insist on having par of the jury aliens or strange:s. (2 R. S. 419 53: 734, § 7.) Ilen. VII c. 13. And, lastly, by statute 3 Geo. II. c. 25, any leaseholder for the team 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 (20). When the jury is de medietate linguae, that is, one moiety of the English tongue or nation, and the other of any foreign one, no want of lands shall [*363] be *cause of challenge to the alien; for, as he is incapable to hold any, this would totally defeat 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 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) (21). 4. Challenges propter delictum, are for some crime or misdemeanor, 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 judgment of the pillory, tumbrel, or the like; or to [*364] be branded, whipt, or stigmatized; or if he be outlawed or excommunicated, or hath been attainted of false verdict, praemunire, 29. (d) See stat. 2 Hen. V. st. 2, c. 3. 8 Hen. VI. c. but the principal challenges were indefinite. “LAcebat palam excipere, et semper ex probabili causa tres repudiari: etiam plures causa praegnanti et manifesta." (Stiernhook, 1. 1, c. 4.) (g) Co. Litt. 153. (e) Finch, L. 401. (ƒ) In the nembda, or jury of the ancient Goths, three challenges only were allowed to the favour, (20) The qualifications in England are enarged by 6 Geo. IV. c. 50: as to New-York, see 2 R. S. 411, § 12, &c. (21) The question of challenge to the array, and incidentally to the polls and triers, underwent much discussion in The King v. Edmonds, 4 B. & A. 476; and in that case it was determined that no challenge, either to the array or to the polls, can be taken until a full jury shall have appeared; that the disallow ing a challenge is not a ground for a new trial, but for a venire de novo; that every challenge, either to the array or to the polls, ought to he propounded in such a way that it may be put at the time upon the nisi prius record, so that, when a challenge is made, the adverse party may either demur or counterplea, or he may deny what is alleged for matter of challenge; and it is then only that triers can be appoint ed. It was also thereby determined, that the whole special jury panel cannot be challenged for the supposed unindifferency of the Master of the Crown Office, he being the officer of the court appointed to nominate the jury. And a material point was also ruled in the same case, namely, that it is not competent to ask jurymen, whether special or talesmen, whether they have not, previously to the trial, expressed opinions hostile to the defendants and their cause, in order to found a challenge to the polls on that ground; but such expres sions must be proved by extrinsic evidence But see now stat. 6 Geo. IV. c 50, ss 21 fg or forgery; or lastly, if he hath proved recreant when champion in he trial by battle, and thereby hath lost his liberam legem. A juror may hum self be examined on oath of vori dire, veritatem dicere, with regard to such causes or challenge as are not to his disho..our or discredit but not with regard to any crime, or any thing which tends to his disgrace or disadvanLage (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 & 8 W. III. c. 32. infants under twenty-one. This exemp tion 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 shew their special exemption. Clergymen are also usually excused, out of favour and respect to their function but, if they are seised of lands and tenements, they are in strictness liable to be impanelled in respect of their lay-fees, unless they be in the service of the king or of some bishop: "in obsequio domini regis, vel alicujus episcopi (i) (22).” 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 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 li 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 assises or nisi prius, by virtue of the statute 35 Hen. VIII. c. 6. and other subsequent statutes, the judge is em- [365] powered at the prayer of either party to award a tales de circumstantibus (j), of persons present in court, to be 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 (k) 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 |