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IV. The fourth method of trial used in criminal cases is that by the peers of Great Britain, in the court of parliament, or the court of the lord bigh steward, when a peer is capitally indicted : for in case of an appeal, a peer shall be tried by jury (d) (3). Of this enough has been said in a former chapter (); to which I shall now only add, that in the method and regulation of its proceedings, it differs little froin the trial per patriam, or by jury ; except that no special verdict can be given in the trial of a peer (S);

because the lords of parliament, or the lord high steward (it the [*349] trial be *had in his court), are judges sufficiently competent of

the law that may arise from the fact : and except also, that the peers need not all agree in their verdict; but the greater number, consisting of twelve at the least, will conclude, and bind the minority (g).

V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to run by the great charter (n) : “ nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo ulio modo destrualur, nisi per legale judicium parium suorum, vel per legem terrae.

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 apprehended 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. 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, dispatch, 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 in[*350] dictment, information, or appeal, *should afterwards be confirmed

by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium 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; by introducing new and arbitrary methods of trial, by justices (d) 9 Rep. 30. 2 Inst. 49.

(h) 9 Hen. III. c. 29. (8) Kelyngo, 56. stat. 7 W. III. c. 3, & 11. Fos.

ter, 247.

le) See page 259.

Hatt. 116.

(1) See

III page 379.

the combat was prorogued to a further day, he. treason and felony, and misprision of these fore which the king revoked the commission. but in all other criminal prosecutions they are See an account of the proceedings, 11 Hurg. tried like commoners by a jury. 3 Insi. 30 St. Tr. 124. See also 3 book. 337,

See l book, 401. note 11 (3) The nobility are tried by their peers for

of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitra. ry powers, well executed, are the most convenient), yet let it be again remembered, that delays and little inconveniences in the forins 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 trifies, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.

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 criminul suits : indictments, informations, and appeals ; which trial I shall consider in the saine 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 (4) has pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of ihe county must return a panel of jurors, liberos et legales homines, de vicineto; that is, freeholders, without just exception, and of the visne or neighbourhood ; which is interpreted to be of the county where the fact is committed (j) (5). If the proceedings are before the court of king's bench, there is time allowed, between the assignment and the trial, for a jury to be *impanelled by a writ of venire [*351) facias to the sheriff, as in civil causes : and the trial in case of a misdemeanor is had at nisi prius, 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 (6), (7). 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 guilty, or traversed the indictment. But they usually give security to the court, to appear at the next assises or session, and then and there to try the traverse, giving notice to the prosecutor of the same (8).

(j) 2 Hal. P. C. 264. 2 Hawk. P C. 403.

(4) As to jury process in general, see 1 Chit. court of oyer and terminer for capital offences, C. L. 2 ed. 506 to 517.

unless removed by certiorari to the supreme (5) Now by the 6 Geo. IV. c. 50. s. 13, the court, and then the record is carried down for jury are to come from the body of the county, trial at the circuit, not at bar. (2 R. S. 732, and the want of hundredors is no longer a cause 82, 84.) As to the time of trial, see id. 737, of challenge.

28, &c.: and ante p. 301. note (1). The qualifications of petty jurors on the trial (8) Now, by the 60 Geo. III, and 1 Geo. are now clearly pointed oui by the 6 Geo. IV. IV. c. 4. s. 3, if the defendant has been com c. 50. s. l.

mitted to custody, or held to bail for a misde By the 6 Geo. IV.c. 50. s. 15, the panel must meanor, twenty days before the session of ine e returned annexed to the venire facias. peace, session of oyer and terminer, great

(6) See how indictments for capital offences session, or session of gaol-delivery, at which may be tried at nisi prius, p. 309. notes, ante. the indictment was found, the defendan, shall When offences may be tried at bar, see i Chit. plead, and the trial shall take place at such C. L. 497, 8.

session, unless a writ of certiorari be award :) in New York the trial is before the ed. And by section 5, where a defendant, in

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In cases of high treason, whereby corruption of blood may ensue (excepe 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 (9): 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 therdo, 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 pre[*352] tender), all persons, indicted for high treason or misprision there

of, 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 prosessions and places of abode, delivered to him len 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 repoaled by the statute 6 Geo. III. c. 53, else it had been impossi. ble 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) (10). And no person indicted for selony is, or (as the law stands) ever can be, entitled to such copies, before the time of his trial (n). (A) Fost. 229. Append. i.

(m) Post. 250. (1) Ibid. 230.

(n) 2 Hawk. P. C. 410. dicted for a misdemeanor at any session of the just cause made out to them. So also by the peace, session of oyer and terminer, great 39 & 40 Geo. III. c. 87. s. 22, persons indict. session, or session of gaol-delivery, not having ed for a misdemeanor, in receiving stolen been committed to custody, or held to bail to goods, under the 2 Geo. III. c. 28, are to be appear 10 answer for such offence, twenty tried immediately, without being allowed the days before the session at which the indict. delay of a traverse. 2 East. P. C. 754. As ment was found, but who shall have been com- to traverses in general, in criminal proceed. mitted to custody, or held to bail to appear to ings, see ! Chit. C. L. 486. answer for such offence at some subsequent (9) This limitation as to the time of finding session, or shall have received notice of such an indictment applies, in New-York, to all of indictment having been found, twenty days fences except murder, and in all cases the debefore such subsequent session, he shall plead fendant may have a copy of the indictment at such subsequent session, and trial shall (2 R. S. 726, 9 37, id. 728, 953,) and of the list take place at sich session, unless a certiorari of the jurors : (id. 414, 431,) he may also have be awarded before the jury be sworn for such gratuitously subpoenas to compel the attendtrial. But on sufficient cause shewn, the ance of witnesses. (Id. 729, 9 59.) court may allow further time for trial. Id. s. 7. (10) By 39 and 40 Geo. III. c. 93, in all In cases of indictments for obtaining goods, cases of high treason, in compassing or ima. &c. by false pretences, and sending threaten gining the death of the king, and of misprision ing letters, with intent to extort money, &c. of such treason, where the overt act alleged and other misdemeanors punishable under the in the indictment is the assassination of the 30 Geo. III. c. 24, it is enacted by that act, s. king, or a direct attempt against his life or 17, that every such offender, bound over to person, the party accused shall be indicted the general quarter sessions of the peace, or and tried in the same manner and upon the sessions of oyer and terminer, and gaol delive. like evidence as if charged with murder. But ry, of the county where the offence was com. the judgment and execution shall remain the mitted, shall be tried at such general quarter same as in other cases of high treason. And sessions of the peace, or sessions of oyer and by 6 Geo. IV. c. 50, 9 21, when any person is terminer, and gaol-delivery, which shall be indicted for high treason or misprision of tres. held next after his apprehension, unless the son, in any court except K. B., a list of the court shall think fit in put off the trial, on petty jury, with their names, professions, und


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W nen 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 (11).

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 (o). 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 (12); (which does not indeed hold in treasons (p), aliens being very improper judges of the breach of allegiance (13) ; nor yet in the case of Egyptians (14) under

0) See Book III. page 359.

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

places of abode, shall be given at the same certain, and the truth of the same challenge time that the copy of the indictment is deli- shall be inquired of according to the custom vered to the party indicted, which shall be ten of the court; and it shall be proceeded to the days before arraignment, and in the presence taking of the same inquisition, as it shall be of two or more credible witnesses; and when found, if the challenges be true or not, after any person is so indicted in K. B., a copy of the discretion of the court; and no person arthe indictment shall be delivered as before raigned for murder or felony, shall be admitted mentioned, but the list of the petty jury, made to any peremptory challenge above the number out as before mentioned, may be delivered to of twenty.t the party indicted, after arraignment, so that And by 7 and 8 Geo. IV. c. 28, 93, if any o be ten days before trial. Proviso, not to person indicted for any treason, felony, or extend to interfere with the provisions of 39 piracy, shall challenge peremptorily a greater and 40 Geo. IV. c. 93, nor to cases of treason number of the men returned to be of the jury relating to the coin.

than such person is entitled by law so to chal. Where the jury panel is incorrect, a motion lenge, in any of the said cases, every peremp: may be inade on the part of the crown, in the tory challenge, beyond the number allowed by court of gaol delivery, for leave to the sheriff law in any of the said cases, shall be entirely w amen: the panel. i East, P. C, 113. void, and the trial of such person shall proceed

(11) By 6 Geo IV. c. 50, § 27, if any man as if no such challenge had been made. shall be returned as a juror for the trial of any (12) The 6 Geo. IV. c. 50, $ 47, provides, issue, in any of the courts in the Act mention that nothing in that Act contained shall exed, who shall not be qualified according to the tend or be construed to extend to deprive any AC:, the want of such qualification shall be alien indicted or impeached of any felony or good cause of challenge, and he shall be dis. misdemeanor of the right of being tried by charged upon such challenge, if the court a jury de medietate linguæ ; but that, on the shall be satisfied of the fact; and if any man prayer of every alien so indicted or impeachreturned as a juror for the trial of any such ed, the sheriff, or other proper minister, shall, issue shall be qualified in other respects ac. by command of the court, return for one half cording to the Act, the want of freehold shall of the jury a competent number of aliens, if not on such trial, in any case, civil or crimi- so many there be in the town or place where, nal, be accepted as good cause of challenge, the trial is had, and if not, then so many aliens either by the crown or the party, nor as cause as shall be found in the same town or place, for discharging the man 30 returned upon his if any: and that no such alien juror shall be own application. Proviso, not to extend to liable to be challenged for want of freehold, or any special juror.

of any other qualification required by the Act; By $ 28, no challenge shall be taken to any bat every such alien may be challenged for any panel of jurors for want of a knight being re. other cause, in like manner as if he were qua. turned in such panel, nor any array quashed lified by the Act. I by reason of any such challenge.

(13) The privilege is taken away from per. By $ 29, in all inquests to be taken before sons indicted of high treason by the 1 and 2 any of the courts in the Act mentioned, P. and M. c. 10, which directs that all trials wherein the king is a party, howsoever it be, for that offence shall take place as at common not withstanding it be alleged by them that sue law. for the king, that the jurors of those inquests, (14) The 28 E. III. c. 13, on which this or some of them, be not indifferent for the right of aliens was founded, was repealed as king ; yet such inquests shall not remain un. to Egyptians by the 1 and 2 P. and M. c. 4, 9 taken for that cause ; but if they that sue for 3, and the 5 Éliz. c. 20, which enacted thai the king will challenge any of those jurors, they should be tried by the inhabitants of the they shall assign of their challenge a cause county where they were arrested, and not per

t In New-York, on every indictment for an challenge for cause. (2 R. S. 734, 8, 9, 10, 11.; offence punishable with death, or imprison- In New York, no alien can claim a jury

Inent in a stateprison for ten years or inore, partly of aliens on an indictment, (2 R. S 'the defendant may challenge peremptorily 20, 734, Ø 7,) nor in any suit whatever. (Id. 419 and no more; the district attorney can only 0 53.) • Vol. II.


the statuite 22 Hen. VIII, c. 10.) that on every panel there should be a

competent number of hundredors (15); and that the particular jurors should be omni exceptione majores ; not liable to objection either propter honoris re

spectum, propter defectum, propter affectum, or propter delictum (16). [*353] *Challenges upon any of the foregoing accounts are styled chal

lenges 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 vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without shewing any cause at all ; which is called a peremptory challenge : a provision full of that ten. derness and humanity to prisoners, for which our English laws are justly famous (17). 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

a for such his dislike. 2. Because, upon challenges for cause shewn, 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 prsoner, 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 (18). 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 shew the cause : otherwise the juror shall be sworn (9) (19),

The peremptory challenges of the prisoner must however have [*354) some reasonable boundary ; otherwise he might never *be tried.

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 inten

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

medietatem linguæe; but that provision was (18) And see a similar provision in 6 Geo. repealed by the 23 G. III. c. 51, and Egyptians IV. c. 50. s. 29. are now dealt with under the Vagrant Acts (19) And the practice is the same both in as rogues and vagabonds. Vide ante, 167, n. trials for misdemeanors and for capital offen10.

ces. 3 Harg. St. Tr. 519. Where there is a (15) The right to challenge for want of hun- challenge for cause, two persons in court not dredors is now taken away by the 6 Geo. IV. of the jury are sworn to try whether the jury. c. 50. s. 13.

man challenged will try the prisoner indiffe. (16) As to qualifications of jurors in New. rently. Evidence is then produced to supYork, see 2 R. S. 411.

port the challenge, and according to the ver(17) A peremptory challenge is not allowed dict of the two tryers, the juryman is admit. ir the trial of collateral issues. Fost, 42. Nor ted or rejected. A juryman was thus set in any trial for a misdemeanor, 2 Harg. St. aside in O'Coigly's trial for treason, because, Tr. 808, and 4 H. St. Tr. I.

upon looking at the prisoners he had uttered As to law of New York, see note (t) p. 352, the words, “ damned rascals. See O'Coiglv's wate.


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