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impanelled by a writ of venire facias directed to the sheriff. But justices of oyer and terminer and general gaol delivery, and justices of the quarter sessions 8 of the peace, may, by a bare award and without any writ or precept, have a panel returned by that officer: for, in consequence of a general precept directed to him beforehand, he returns to the court a panel of jurors to try all persons, who may be called upon for their trial at that session. Before such justices, it is usual, for this reason, to try criminals immediately or soon after their arraignment.
Jurors must be “homines liberi et legales,” men free and superiour to every legal exception ; for every legal exception is a cause of challenge. My Lord Coke i enumerates four such causes-propter
respectumpropter defectum-propter delictum-propter affectum. The first cause relates to the peerage solely: the second is an exception against aliens and minors: the third is an exception against persons convicted of infamous crimes: the fourth is an exception which arises from bias or partiality. When this bias is apparent, the challenge founded on it is a principal one, and takes effect immediately : when the bias is only probable, the challenge is only to the favour'; and its validity must be decided by triers, selected by the court for this purpose, till two are sworn of the jury. These two, as they are acknowledged or found to be impartial, become the triers of all the others.
Besides these challenges for cause, which operate as frequently as they exist, the benignity of the common
Wood. Ins. 666. b 4. Bl. Com. 344, 345. 2. Haw. 405. i 1. Ins. 156. b.
law allows, as we saw before, every person indicted for a capital crime to challenge peremptorily, or without cause, any number of jurors under thirty six-the number of three juries. j In every capital crime, except treason, this number is, by a law of the United States, reduced to 'twenty jurors. A person who challenges more than the number allowed, is, by the same law, to be treated as one who stands mute. That treatment we have already seen. By a law of Pennsylvania, a similar deduction is made in the number of peremptory challenges: but he, who challenges more than the number allowed, shall suffer as a criminal convicted. There is a great difference between the two provisions : by that of the United States, the person indicted is treated as one who must be tried: by that of Pennsylvania, he is treated as one, who is already convicted."
When an alien is tried, one half of his jury should be aliens, if he require it."
On this subject of challenges it is proper to observe, that it seems to have been very familiar in the Roman law, during the existence of the commonwealth. In a criminal process, before the court of the prætor, the accuser and the accused were each a lowed to except against fifteen of those returned to try the cause. This exception was denominated“ rejectio judicum”—in the phraseology of our law, the challenge of the jury. Whenever Cicero
í 2. Haw. 413. k 1.cong. 2. sess. c. 9. s. 30. 11. Laws. Penn. 134.
m The law of Pennsylvania is now similar to that of the United States. 3. Laws Penn. 119. Ed.
3. Bl. Com. 360. 4. Bl. Com. 346. 2. Haw. 420. 1. Dall. 73.
uses the expression-judices; its legal translation is -Gentlemen of the jury.
Concerning the celebrated trial of Milo, we have a number of particular facts transmitted to us, which deserve our particular notice and attention. On the first day of the trial, or, as we would say, on the return of the venire facias, the judices—we would say the jurywere produced, that they might be balloted. The next day, they balloted eighty one persons to make up the jury. But the accuser had the liberty to challenge fifteen; and the accused could challenge as many. By these challenges on both sides, the number of those who were to give the verdict was reduced to fifty one. In another place we have a particular account of the votes given for, and of those given against, Milo: added together, they amount to the precise number of fifty one. °
At Rome, as we have seen on more occasions than one, prosecutions were considered as the causes of the accusers, rather than as the causes of the commonwealth. The proceedings were regulated by this supposition. Accordingly, in a criminal prosecution, the challenge extended to such persons as either party—the accuser as well as the accused_had reason, or thought he had reason, to suspect might be influenced in their verdict by favour, affection, consanguinity, malice, or any other passion, which might lead to partiality or a corrupt judgment.”
When a prosecution, as well as the defence of it, was viewed as the cause of an individual, it might be reasonable enough that, in this view, the power of challenging
Pet. on Jur. 114.
jurors should, on both sides, be equal. But when a prosecution is considered as the cause of the community, by a part of which community this very cause is to be tried; matters now assume a very different appearance. This important difference was fully explained in the account which I gave of the radical principles, as I may call them, of the trial by jury. The accused stands alone on one side : on the other side stand the whole community: the jury are indeed a selected part; but still they are a part of the whole community: the power of challenging, therefore, ought not, on both sides, to be equal.
True it is, that, at the common law, the king might challenge peremptorily, as well as the prisoner. The distinction between a publick and a private prosecutor was not sufficiently regarded. From this characteristick feature, by the way, a strong intrinsick evidence appears of the lineage of juries. But equally true it is, that the distinction was perceived at an early period, was then established—I mean in the reign of Edward the firstand has been since uniformly observed." In consequence of this distinction, it has been the law, for many centuries past, that the privilege of peremptory challenges, though enjoyed by the prisoner, is refused to the king.
If, on account of the number of challenges, or the non-attendance of the jurors, so many of the panel returned as are necessary to make a jury cannot be had, the court may award a tales-others qualified in the same manner--to be added to the panel, till twelve are sworn to try
the cause. s
Ante. vol. 2. p. 314. 315.
2. Haw. 412.
s 4. Bl. Com. 348.
Their oath is--that they will well and truly try and true deliverance make between the United States and the prisoner at the bar, and a true verdict give according to their evidence. After they are sworn, the indictment is read, and the issue which they are sworn to try is stated to them : and then the publick prosecutor opens the cause, and arranges, in such order as he thinks most proper, the evidence which is to be offered in support of the prosecution.
But it is a settled rule at the common law, as it is now received in England, that, in a trial for a capital crime, upon the general issue, no counsel shall be al. lowed the prisoner, unless some point of law, proper to be debated, shall arise. By a statute, however, made in the reign of William the third, and by another made in that of George the second, an exception to this general and severe rule is introduced, for the benefit of those who are indicted or impeached for treason. This prac. tice in England is admitted to be a hard one, and not to be very consonant to the rest of the humane treatment of prisoners by the English law. Indeed the judges themselves are so sensible of this defect in their modern practice, that they generally allow a prisoner counsel to stand by him at the bar, and instruct him what questions to ask, or even to ask questions for him.
This practice of refusing counsel to those who are indicted for a capital crime, is not agreeable to the common law as it was formerly received in England. The ancient Mirrour tells us, that, in civil causes, counsel are necessary to manage and to defend them, by the rules of