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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 per
jured ; and therefore perjured, because that thou feloniously [*348] 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 (c).” The battle 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 for ever quit, not only of the appeal, but of all indictments likewise for the same offence (3) (4).
IV. The fourth method of trial used in criminal cases is pery similar to 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
IV. Trial by peers, which is very similar to trial by jury.
(c) 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 so lemn manner : the prosecutor, that he was related to the deceased, (for none
but near relations were permitted to prosecute in that court,) and that the prisoner was the cause of his death; the prisoner, that he was innocent of the charge against him. (Pott. Antiq. b. 1, c. 19.)
(3) The last time that the trial by battle was awarded in this country, was in the case of Lord Rea and Mr. Ramsey, in the 7 Ch. I. The king by his commission appointed a constable of England to preside at the trial, who appointed 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.-Cu.
(4) The trial by battle is now utterly abolished by the statute 59 Geo. III. c. 46. Vide ante 317, note (21). (6) No freemen shall be apprehended, or imprisoned, or banished, or
V. Trial by
indicted; for in case of an appeal, a peer shall be tried by jury (d) (5). Of this enough has been said in a former chapter (e); to which I shall only now add, that, in the method and regulations 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 parliament, or the lord high steward, if the trial be *had in his court, are judges sufficiently competent of the law r*3197 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 wo Trial by that trial by the peers of every Englishman, which, as the secured by grand bulwark of his liberties, is secured to him by the great charter (h): “nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ (6).”.
The antiquity and excellence of this trial, for the settling iadium of Engof civil property, has before been explained at large (i). And lish 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
(d) 9 Rep. 30; 2 Inst. 49. c. 3, § 11; Foster, 247. (e) See page 259.
(h) 9 Hen. III. c. 29. Hatt. 116.
(i) See vol. III. page 379. (g) Kelynge, 56; stat. 7 W. III.
and is the pal
king and another, Our law
of a pre
(5) See 3 Inst. 30, ante 259, note (1).
in any other manner disparaged, except by the legal judgment of his peers, or by the law of the land.
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 indictment, 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 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 esecuted, 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 has 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 (i) (7). If the proceedings are before the court of King's Bench, there is time allowed, between the arraignment and the trial, for a jury to be *empanelled by writ of venire facias to the sheriff, as in civil causes: and the trial in case of a misdemesnor 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
(7) By the 6 Geo. IV. c. 50, S I, every man, between the age of twenty one and sixty, residing in any county in England, who shall have in his own name or in trust for him, within the same county, 101. by the year above reprizes in lands or tenements, whether of freehold, copyhold, or customary tenure, or of ancient demesne, or in rents issuing out of such lands, &c., or in such lands, &c., and rents taken to gether, in fee simple, fee tail, or for the life of himself or another, or who shall have 201. by the year above reprizes, in lands, &c., held by lease for twenty-one years or longer, or for any term of years determinable on any life or lives, or who, being a householder, shall be rated to the poor rate, or to the inhabited house duty in the county of Middlesex, on a value of 301., or in any other county 201., or who shall occupy a house containing fifteen windows, shall be qualified and liable to serve on juries for the trial of all issues joined in any of the king's courts of record, at Westminster, and in the superior courts, both civil and criminal, of the counties palatine, and in all courts of assize, nisi prius, oyer and terminer, and gaol delivery, such issues being respectively triable in the county, &c. in which every man so qualified respectively shall reside, and on grand juries in courts of sessions of the peace, and on petty juries for the trial of all issues joined therein, and triable in the
county, &c., in which every man so qualified respectively shall reside; and the regulation with respect to Wales is the same, only limiting the qualifications to three fifths of the foregoing.
By $ 2, peers; judges of the king's courts of record at Westminster, and of the courts of great sessions in Wales ; clergymen in holy orders ; priests of the Roman Catholic faith ; persons teaching or preaching in congregations of protestant dissenters; serjeants and barristers at law actually practising ; members of the society of doctors of law, and advocates of the civil law actually practising ; attornies, solicitors, and proctors, duly admitted, actually practising, and having duly taken out their certificates; officers of courts actually exercising their offices; coroners, gaolers, and keepers of houses of correction ; physicians, surgeons, and apothecaries, actually practising ; officers in the navy or army on full pay ; pilots ; houschold servants of the king; officers of customs and excise; sheriff's officers, high constables, and parishclerks; are exempt.
And by $ 3, no man not being a natural born subject of the king, except, ($ 47,) on trials of aliens, where a jury de medietate is demanded; and no man attainted of treason or felony, or convicted of any infamous crime, unless he has obtained a free pardon ; nor any man under outlawry or excommunication ; shall be qualified.
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 (8). 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 misdemesnors 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 (9).
(8) With respect to the mode of mitted more than twenty days before empannelling juries, &c., see the same the assizes for felony. The grand jury statute, (6 Geo. IV. c. 50,) S 4 to ignored the bill for felony, but found $ 25, inclusive, an abstract of which two bills against the defendant for miswould occupy too much space here. demeanors; application was made for
(9) By 60 G. III., and 1 G. IV., leave to traverse these indictments till c. 4, § l, persons prosecuted in the the next assizes : the defendant having Court of King's Bench for any misde- appeared and pleaded, which was held meanor, and having appeared in term necessary, the judge decided that he time to answer to the indictment, shall was entitled to his traverse. not be permitted to imparl to the fol- In Rex v. W. Wakefield, ibid, the delowing term, but shall be required to fendant, being charged with a misdeplead or demur thereto within four days meanor, had been admitted to bail more from the time of appearance; and in than twenty days before the assizes. default of so pleading or demurring, One true bill was found against him judgment may be entered against such upon that charge, and another for a defendants for want of a plea.
conspiracy. It was contended that he By sect. 2, the court, or any judge was entitled, as of right, to traverse the thereof, upon sufficient cause shewn, latter indictment; but the judge said, may allow further time for any such “By the terms of his recognizance he defendant to plead or demur.
undertakes to appear at these assizes, By sect. 3, persons prosecuted for to answer all such matters as shall be any misdemeanor at any session of the preferred against him," and the traverse peace, session of oyer and terminer, was refused. great session, or session of gaol delivery, By S 4, writs of certiorari may be having been committed, or held to bail, issued before indictment found, in the twenty days before the session at which like cases, and on the same terms, as the indictment is found, shall plead to after indictment found. such indictment, and trial shall proceed By S 5, persons so prosecuted, not thereon at such session, unless a cer- having been committed or held to bail, tiorari to remove the indictment is de- twenty days before the session at which livered at such session, before the jury the indictment is found, but having been are sworn.
committed or held to bail to appear at In Rer v. E. I'akefield, Cro. Cir. some subsequent session, or having re('om. 491, the defendant had been com- ceived notice of the indictment being