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ployment. So likewise if the crime be notorious: as if the thief be taken with the mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel from the appellee;(a) for it is unreasonable that an innocent man should stake his life against one who is already half convicted.

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 vastly more striking and solemn.(b) The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body; the appellant takes up the glove and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand and in his left the right hand of his antagonist, swears to this effect: Hoc audi, homo, quem per manum teneo, &c.," "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 any way guilty of the said felory. So help me God and the saints; and this I will defend against thee by y body, as this court shall award." To which the appellant replies, holding the Bible and his antagonist's hand in the same manner as the other:-"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 [*348 the saints; and this I will prove against thee by my body, as this court. shall award."(c) The battel is then to be fought with the same weapons, viz., batons, the same solemnity, and the same oath against amulets and sorcery, that are used in the civil combat; and if the appellee be so far vanquished that he cannot or will not fight any longer, he shall be adjudged to be hanged immediately; and then, as well as if he be killed in battle, Providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain the fight from sunrising till the stars appear in the evening, he shall be acquitted. So also, if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem and become infamous; and the appellee shall recover his damages, and also be forever quit, not only of the appeal, but of all indictments likewise for the same

offence.2

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 high steward, when a peer is capitally indicted: for in case of an appeal a peer shall be tried by jury.(d) Of this enough has been said in a former chapter ;(e) to which I shall now only add that, in the method and regulation of its proceedings, it differs little from the trial per patriam, or by jury; except that no special verdict can be given in the trial of a peer,(f) because the lords of par liament, or the lord high steward, (if the 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)

(a) 2 Hawk. P. C. 427.

() Flet. l. 1, c. 34. 2 Hawk. P. C. 426.

() There is a striking resemblance between this process and that of the court of Areopagus at Athens for murder, wherein the prosecutor and prisoner were both sworn in the most soleinn manner; the prosecutor, that he was reated to the deceased, (for none but near relations were per

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[*349

mitted to prosecute in that court,) and that the prisoner
was the cause of his death; the prisoner, that he was inno
cent of the charge against him. Pott. Antiq. b. i. c. 19.
(d) 9 Rep. 30. 2 Inst. 49.
() See page 259.
() Hatt. 116.

() Kelynge, 56, stat. 7 W. III. c. 3, § 11. Foster, 247.

The last time that the trial by battel was awarded in this country was in the case of ord Rae and Mr. Ramsay, in the 7 Ch. I. The king, by his commission, appointed a constable of England to preside at the trial, who proclaimed a day for the duel, on which the combatants were to appear with a spear, a long sword, a short sword, and a dagger, but the combat was prorogued to a further day, before which the king revoked the commission. See an account of the proceedings, 11 Harg. St. Tr. 124. See also 3 book, 337. -CHRISTIAN.

'The nobility are tried by their peers for treason and felony, and misprision of these; but in all other criminal prosecutions they are tried, like commoners, by a jury. 3 Inst. See 1 book, 401, note 11.-CHRISTIAN.

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 him by the great charter:(h) "nullus liber homo capiatur, vel imprisone tur, aut exulet, aut aliquo alio modo destruatur, nisi per legcle judicium parium suorum, vel per legem terræ."

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 appre hended 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, despatch, 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 an indictment, information, or appeal, *350] *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 of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms 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 trifles, 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 criminal suits; indictments, informations, and appeals; which trial I shall consider in the same 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 hath pleaded not guilty, and for his trial hath 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, without just exception, and of the visne or neighbourhood; which is interpreted to be of the county where the fact is committed.(j) If the proceedings are before the court of king's bench, there is *351] time allowed, between the assignment and the trial, for jury to be *impanelled by a writ of venire facias to the sheriff, as in civil causes; and the trial in case of a misdemeanour 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. 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

(*) 9 Hen. III. c. 29.

() See book iii. page 379.

(5) 2 Hal. P. C. 264. 2 Hawk. F. C. 403.

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 pro tender,) all persons indicted for high treason or misprision *thereof shall [*352 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 professions and places of abode, delivered to him ten days before the trial, and in the presence of twu 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 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) 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 com mitted 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.

5 By 39 & 40 Geo. III. c. 93, in all cases of high treason in compassing or imagining the death of the kirg, and of misprisior 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 indif ferent; 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 challenge 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 lingua, 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 cause, 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

1. As

yet in the case of Egyptians under the statute 22 Her 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 accounts are styled challenges for be without stint in both criminal and civil trials. But cause, which may [*35J 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 chal lenge; 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 disike. 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

aside.

12

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 a 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.(g) The peremptory challenges of the prisoner must, however, have 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; [*354 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 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.

() 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 meliet item 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, ho had uttered the words "damned rascals." See O'Coigley's Trial.-CHRISTIAN

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