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it might cause convulsions and paleness, and find no passage, if the man was really guilty; but might turn to health and nourishment, if he was innocent. This resembled the water of jealousy among the Jews, which by God's special appointment, caused the belly to swell and the thigh to rot, if the woman was guilty of adultery.
Mingled with the Sacramental Bread. The corsned was given to the suspected person, who at the same time partook of the holy sacrament; if indeed the corsned was not the sacramental bread itself; till the subsequent doctrine of transubstantiation preserved it from profane uses. Our historians assert, that Godwin, earl of Kent, in the reign of Edward the Confessor, abjuring the death of the king's brother, appealed to his corsned, which stuck in his throat and killed him. In the kingdom of Pegu,' this custom prevails, though raw rice is substituted in lieu of bread. A whimsical mode of deciding law suits exists in the kingdom of Monomotapa, where the witness for the plaintiff chews the bark of a tree, endued with an emetic quality; which being sufficiently masticated, is then infused in water, and given to the defendant to drink. If his stomach rejects it, he is condemned; if it stays with him, he is absolved, unless the plaintiff will drink some of the same water; and if it stays with him also, the suit is left undetermined.
Saxon Origin. These two methods of trial were principally in use among our Saxon ancestors. The next method was introduced by Norman princes.
III. Trial by Battel, Duel or Single Combat. This was another species of presumptuous appeals to Providence, to give the victory to the innocent or injured party. This trial by battel, can be demanded by the appellee, in either an appeal or an approvement; and is carried on with equal solemnity, as that on a writ of right; but with this difference, that there each party might hire a champion, but here they must fight in their proper persons.
Parties Exempted. Hence, if the appellant or approver be a woman, a priest, an infant, or of the age of sixty, or lame or blind, he or she may counterplead and refuse the wager of battel, and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their person; nor the citizens of London, by a special charter, because fighting is foreign to their education. So likewise, if the crime be notorious, as if the thief be taken with a mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel from the appellee; for it is unreasonable, that an innocent man should stake his life against one, who is already half convicted.
1 Situate in farther India ; south of Burmah and west of Siam. 2 Situate in southeast Africa, near the mouth of the Zambesi river. 8 Abolished by statute of George III.
Form and Manner. The form and manner of waging battel upon appeals are much the same, as upon a writ of right, only the oaths of the two combatants are much more solemn. The appellee, when appealed of felony, pleads not guilty, throws down his glove, and declares he will defend the same with his body. The appellant takes up the glove, and replies, that he is ready to make good the appeal, body for body. The appellee then taking the book in his right hand, and in his left, the right hand of his antagonist, swears :
The Oath. “ Hoc audi homo, quem per manum teneo," etc. "Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas, by the name of baptism, did not feloniously murder thy father, William by name, nor am in any way guilty of the said felony. So help me God and the saints; and this I will defend against thee, by my body, as this court shall award.” To which the appellant replies, holding the Bible and his antagonist's hand: “Hear this, O man, whom I hold by the hand, who callest thyself Thomas, by the name of baptism, that thou art perjured, and therefore perjured, because that thou feloniously didst murder my father, William by name. So help me God and the saints; and this I will prove against thee by my body, as this court shall award."
The Battle Itself. The battle is then fought with batons, with the same solemnity, and the same oaths against amulets and sorcery, that are used in the civil combats; and if the appellee be so far vanquished that he cannot fight any longer, he shall be adjudged to be hanged immediately, and his blood shall be attainted. But if he kills his opponent, or can maintain the fight from sunrise till the stars appear in the evening, he shall be acquitted. So also, if the appellant becomes recreant, and pronounces the horrible word, "craven," he shall lose his liberam legem, and become infamous; and the appellee shall recover his damages, and be forever quit, not only of the appeal, but of all indictments likewise for the same offence.
IV. Trial of Peers. Peers are tried, when capitally indicted, in the court of parliament, or the court of the lord high steward; but in case of an appeal, a peer shall be tried by a jury. No special verdict can be given, and the peers need not agree in their verdict, but the greater number will bind the minority.
V. Trial by Jury. The trial by jury or the country, per patriam, is the grand bulwark of English liberty, secured to every man by the great charter.
Advantage in Criminal Cases. Its value is greater in criminal, than in civil cases ; since in times of difficulty and danger, more is to be apprehended from the violence and partiality of jndges appointed by the crown, in suits between the king and the subject, then in property disputes between individuals. Our law places the barriers of a presentment and a trial by jury between the liberties of the people, and the prerogative of the crown. The executive power of the laws is properly vested in the king; and yet the power might be dangerous and destructive to the constitution, if exerted, without check or control, by justices of oyer and terminer, occasionally named by the crown, who might imprison. despatch or exile any man, who was obnoxious to the government.
Palladium of Our Liberties. By English law, no man need answer 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 by indictment, information or appeal, should afterwards be confirmed by the unanimous vote of twelve of his equals and neighbors, indifferently chosen and above suspicion. The liberties of England will abide as long as this palladium remains sacred and inviolate; and will be secure against all open attacks and secret machinations, which might undermine it, by the introduction of new and arbitrary modes of trial by justices of
i The nobility are tried by their peers for treason and felony, and mispris. ion of these; but in all other criminal prosecutions, they are tried like commoners, by a jury.
the peace, commissioners of the revenue, and courts of conscience. While arbitrary powers, well executed, may be more convenient; yet delays and slight inconveniences in the forms of justice are the price, that all free nations must pay for their liberty in more substantial matters. These inroads are opposed to the spirit of our constitution; and though begun in trifles, the precedent may gradually increase, to the utter disuse of juries in questions of great concern.
Panel of Jurors. When a prisoner, on being arraigned, pleads not guilty, and for his trial, bas put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines de vicineto, that is, freeholders of the neighborhood, which means, of the county. If the proceedings are in the court of king's bench, there is time allowed, between the assignment and the trial, for a jury to he impanelled, by a writ of venire facias to the sheriff, as in civil causes; and the trial of misdemeanors is had at nisi prius, unless it be of such consequence, as to merit a trial at bar, which is always had, when the prisoner is tried for any capital offence.
Distinction as to the time of Trial. But before the commissioners of oyer and terminer and gaol-delivery, the sheriff, by virtue of a precept directed to him, returns a panel of forty-eight jurors, to try all felons that may be called upon their trial that session; and hence it is usual to try all felons as soon as possible after their arraignment. But it is not customary, unless by consent, or where the defendant is actually in jail, to try persons indicted of misdemeanors at the same term of court, in which they have pleaded not guilty, or traversed the indictment.
But they usually give bail to appear at the next assizes or session, and then and there to try the traverse, giving notice to the prosecutor.
Privileges in cases of High Treason. In cases of high treason, whereby corruption of blood may ensue, except treason in counterfeiting the king's coin or seal, or misprision of such treason, the indictment must be found within three years, except in the case of an attempted assassination of the king. The prisoner shall be furnished with a copy of the indictment, but not the names of the witnesses, at least five days before the trial, and indeed before the arraignment; for then is the time to take any exceptions thereto, by way of plea or demurrer. He shall also have a copy of the panel of jurors two days before his trial; and lastly he shall have the same compulsive process, to bring in his witnesses for him, as is usual to compel their appearance against him. By later statute, the prisoner is also to be furnished with a list of all the witnesses to be produced, and the jurors impanelled, with their occupations and abodes, and a copy of the indictment is to be delivered to him ten days before the trial in the presence of two witnesses; the better to prepare him for challenges and defence. Ten days being deemed too long a period for such notice, as the session of oyer and terminer might end before that time expired, the law on this point was repealed in relation to inferior species of high treasons. And now no person, indicted for felony, is entitled to such copies before the time of trial.
Challenges, Generally. When the trial is called, the jurors are to be sworn as they appear, to the number of twelve, unless 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 same reasons as in civil causes. It is necessary, that the sheriff be totally indifferent. Where an alien is indicted, the jury should be de medietate, or half foreigners, if so many are found in the place; except in cases of treason, aliens being very improper judges of the breach of allegiance; and except as to the class called Egyptians. In every jury there should be a competent number of hundredors, and the particular jurors be omni exceptione majores, not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum, on account of dignity, or of incompetency, or of partiality, or of wrongful act.?
Challenges Peremptory. Challenges upon any of the foregoing accounts are styled challenges for cause; which may be without stint in both civil and criminal trials. But in criminal cases, at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary species of challenge to a certain number of jurors, without showing any cause whatever, which is
1 In misdemeanors the defendant is entitled to a copy, and the prosecution may give it in felony cases, otherwise it must be read slowly in court, so that it may be taken down. In the United States, the right is generally secured by statute or the constitution.-Cooley.
2 The provision as to hundredors is repealed.