Respectum. Defectum. Affectum. 1. Propter honoris respectum, or in respect to the rank and dignity of the juror; as if a lord of parliament be impanelled on a jury, he may be challenged by either party, or he may challenge himself. 2. Propter defectum or for a defect; as if a juryman be an alien born, this is defect of birth, So if the juror be within the age of twentyone, it is a good cause of challenge,* and is de fect of age or that he hath not sufficient estate, this is defect of estate. 3. Propter affectum, or for suspicion of bias, or partiality. Therefore if the juror be of the blood or kindred to the party in the prosecu, tion; or under his power or direct influence, as tenant, or servant, or of council with him: So if he has declared his opinion beforehand respecting the guilt of the Prisoner.§ And an exception against a juror, that he hath found an indictment against the party for the same cause, hath been adjudged good; and also upon another indictment when the same matter is in question, or happen to be material, though not directly in issue. But it is no good cause of challenge that the juror 3 Black. Com. 361. + Ibid. Ibid. § 2 Hawk. 43. hath found others guilty on the same indictment; for the charge is several against each.* It is also a good cause of challenge on the part of a Prisoner, that the juror has a claim to the forfeiture which would ensue from the Party's attainder or conviction.t Lord Coke says, "If either party labour the juror, and give him any thing to give his verdict, this is a principal challenge: but if either party barely labour the juror to appear and to do his conscience, this is no challenge at all, but lawful for him to do it." Actions brought either by the juror against either of the parties, or by either of the parties against him, which imply malice or displeasure, are causes of principal challenge; other actions, which do not imply malice or displeasure, are but to the favour.§ 4. Challenges propter delictum, are for some Delictum. 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, tumbril, or the like; or to be branded, whipt, or stigmatized; or if he be outlawed or excommuni 2 Hawk. 43. † Ibid. + Co. Lit. 157. cated, or hath been attainted of false verdict. pramunire, or forgery. And it hath been holden that such exceptions, are not solved by a pardon. But it seems that none of the above cited challenges are principal ones, but only to the favour, unless the record of the outlawry, judgment, or conviction be produced, if it be a record of another court; or the term be shewn, if it be a record of the same court,* Further, as to challenges for suspicion of favour; although a juror has not given apparent marks of partiality, yet there may be suffi cient reason to suspect he may be more favour able to one side than the other, and this is reason for a challenge to the favour, The causes of favour are infinite, and in these inducements to suspicion of favour, the question is, "whether the juryman be indifferent as he stands unsworn;" for a juryman ought to be perfectly impartial to either side,† No challenge There can be no challenge either to the array, or to the polls, before a full jury appears: If till a full jury. there be a defect of jurors, and then challenge the jury. the party who in may pray a tales, As the challenge to the array must be before any of the jury are sworn, so challenge to the polis must be before the particular jurors are sworn.‡ Ibid. 2 Haw. 43.-3 Black. Com. 363. † Ibid. Bull. Ni. Pri. 8vo. Edit. 307. After a challenge to the array, the party may challenge the polls, but after a challenge to the polls, there can be no challenge to the array; and he who has more than one cause of challenge against a juror, must take them all at once: but if he challenge a juror, and the cause be found insufficient, he may nevertheless afterward challenge him peremptorily, for perhaps the very challenge may create a prejudice in the mind of the juror so challenged.* bal. A challenge to the array must be in writing, One chalbut a challenge to the polls is short and verbal.†lenge in writing, the A principal cause of challenge being ground- other vered on a manifest presumption of partiality, if it be found true, it unquestionably sets aside the array, without any other trial than its being made out to the satisfaction of the court, before which the panel is returned. But a challenge to the favour, when the partiality is not apparent, must be left to the discretion of the triers.‡ tried. If the array be challenged, it lies in the How chaldiscretion of the court how it shall be tried; lenges to be sometimes it is, done by two attornies, sometimes by two coroners, and sometimes by two of the jury; with this difference, that if the challenge be for kindred in the sheriff, it is * 4 Black Com. 363. most fit to be tried by two of the jurors returned; if the challenge be on account of partiality, then by any other two assigned thereunto by the court.* And when a challenge is to the array for favour, the plaintiff may either confess it, or plead to it; if he plead, the judges assign triers to try the array, which seldom exceed two, who being chosen and sworn, the clerk of the peace declares to them the challenge; and concludes to them thus," and so your charge is to inquire whether it be an impartial array, or a favourable one;" and if they affirm it, the clerk enters underneath the challenge, "affirmatur;" but if the triers find it favourable, then thus, "calumnia vera."+ As to a challenge to the polls; if a juror be challenged before any juror is sworn, two triers shall be appointed by the court; and if he be found indifferent, and sworn, he and the two triers shall try the next challenge; and if he be tried and found indifferent, then the two first triers shall be discharged, and the two jurors tried and found indifferent shall try the rest. But if the plaintiff challenge ten, and the prisoner one, and the twelfth be sworn, then he that remains shall have added to him one chosen by the plaintiff, and another by the Pri * 2 Hale's Hist. 275. |