treated like capital felonies, where particular privileges are accorded to prisoners "in favour of life." Here life is not in danger, and those privileges, therefore, do not exist.

Napier, in reply: As to piracy, it was always considered a felony, though not triable in the ordinary courts of common law. The offence was always alleged to have been committed piratice et felonice. The argument from the case of piracy does not therefore apply. Heresy, however, was a capital offence, and yet there was no right of peremptory challenge, a fact which shows that the right did not exist on account of the punishment. It is a right ascribable to the class of offence, and not to the penalty affixed to the commission of it.

Lord CAMPBELL, in the absence of the Lord Chancellor, proposed for the consideration of the judges the following question, which had been prepared by the Lord Chancellor :

"A. B. being indicted under the statute 1 Vict. c. 85. s. 3, for the commission of the felony of shooting at another person with intent to murder, challenged peremptorily one of the jurors called to be sworn upon the trial: it was objected to by the prosecutor. Ought the Court to have allowed or disallowed such challenge?

The Judges, differing in their answers, delivered their opinions seriatim.

WIGHTMAN, J. The offence in question is a felony, but the punishment is not capital; and it is to be considered whether the privilege of peremptory challenge depends upon the quality of the offence, or the punishment.

It has been so invariably the practice in all the courts of criminal judicature in England, to allow a prisoner, charged with any felony whatever, whether capital or otherwise, to challenge peremptorily any one of the jurors called to be sworn, to the number of twenty, that the first impression upon the mind of any one accustomed to practise in those courts would be, that unless it clearly appeared that such practice was founded on error, its existence so long, without dispute or controversy, raises a strong presumption that its origin was legal and its continuance of right, and that the privilege is attached to the quality of the offence, and not to the punishment. It is said, however, that it is a privilege allowed only in favorem vitae, and does not extend to cases in which the punishment is not capital. This position appears to be founded upon an observation made by some of the text-writers, as to the ground upon which a peremptory challenge is allowed to persons charged with treason or felony, that it is in favorem

vita.

It is hardly necessary for the purpose of the present question to inquire critically into the etymology or original meaning of the term felony, but it is said by Sir William Blackstone (a) that the distinctive incident in felony is forfeiture, and not capital punishment: and that at common law there are offences which are felonies, though not capital, and that there are offences the punishment of which is capital, though they are not felonies. He gives instances of these, to which it is not necessary to refer; but he further remarks that:

"The idea of felony is so generally connected with that of capital punishment, that we find it hard to separate them, and to this usage the interpretations of the law do now conform; and, therefore, if a statute makes any new offence felony, the law implies that it shall be punished with death, as well as with forfeiture."

would happen that the privilege of perThis passage tends to explain how it emptory challenge allowed in felony should vito; and accordingly we find in books of be considered as originating in favorem the highest authority, that the privilege is stated to be incident to felony generally; and the reason assigned by some is, that

such a privilege is in favorem vitæ.

It is said by Mr. Justice Forster, in his Discourse on Homicide, (b) that "at common law all felonies, except petty larceny, rape and mayhem, were capital offences, unless in cases where the offender was capable of holy orders, and qualified for them"; and it may very well be that, felony generally being capital, the privilege was allowed generally to cases of felony, because the great majority were capital, though there were some few that were not.

In Finch's" Law of Trial by Jury" (c) it is said:

"in indictments and appeals of felony, the de fendant may challenge 35 jurors without show ing cause; which is called a peremptory chal lenge."

In "Doctor and Student," it is said (a that

"he that is arraigned upon an indictment felony shall be admitted, in favour of life, challenge 35 jurors peremptorily."

Lord Coke (e), speaking of perempto challenge, says that

"It is so called, because he may challenge pe emptorily upon his own dislike, without sho ing of any cause; and this only is in case treason or felony, in favorem vitæ: and by t

(a) 4 Bla. Com. 97. (b) Fost. C. L. 305. (c) Bk. 4. c. 36. p. 414. (d) Dial. 1. c. 8. p. 39. (e) Co. Lit. 156b.

deserving of attention, inasmuch as a special jury is never granted in criminal cases except for misdemeanors only. (a)

If we turn to the text-writers of the greatest weight, we find them stating, in general, that the privilege was granted in favour of life. Lord Coke, (b) in speaking of peremptory challenges, says,

"Peremptorie: This is so called because he may challenge peremptorily, upon his own dislike, without showing of any cause; and this only is in case of treason or felony, in favorem

vita."

Now it cannot, I think, be inferred that, because the right was granted in favorem vita, it must necessarily cease when the life ceased to be in jeopardy. It must, however, be observed, that some of the textwriters go further, and confine the right of peremptory challenge, in express terms, to capital cases: for instance, in the book called "Trials per Pais," c. 16, it is said that a peremptory challenge is not allow able but when the life of a man comes in question. So in Wood's Institutes (c) it is said,

"A peremptory challenge is not allowable but in case of life or death."

For which he quotes the above-cited passage from Co. Lit., which can hardly be said to go to the extent for which he cites it. There are other writers who lay the rule down without qualification. Finch (d) says,

"In indictments and appeals of felony, the defendant may challenge 35 jurors."

And in Comyns' Digest (title Challenge) it is said,

"In petty treason or felony, by the common law the prisoner might challenge 35; which is now restrained by the statute 22 Hen. 8. to twenty."

That the doctrine laid down by some of these authorities, namely, that a peremptory challenge is never allowed except when life is at stake, cannot be true, appears to me to be proved by the circumstance of a peremptory challenge being allowed in misprision of treason down to the time of 33 Hen. 8. By the statute 33 Hen. 8. c. 23. s. 3, it was enacted that peremptory challenge should not from thenceforth be allowed in any case of high treason or misprision of treason. (e) Now, it seems to me to follow necessarily from this enactment, that a peremptory challenge was allowed in indictments for

(a) 1 Chitty, C. L. 522. (b) Co. Lit. 156 b.

(c) p. 462.

(d) Bk. 4, p. 414.

(e) Restored by 1 Ph. & M. c. 10.

that offence, the punishment of which, though extremely severe, was not capital. It has been suggested that, at one time, misprision of treason was a capital offence; for it is said that Bracton considers con cealment of treason as being treason; and Lord Coke says (a) that, by the common law, concealment of treason was treason, as it appears by Lord Scrope's case. But the meaning of this is, I conceive, that an indictment for treason might be supported by a proof of concealment of treason, and in that case the ordinary sentence for treason would be passed; but if the milder course were adopted, of indicting for a misprision, in such case the sentence was not capital: and this view derive support from the statute 1 & 2 Philip an Mary c. 10. s. 8, by which it is declare and enacted,

"That concealment or keeping secret of an high treason, be deemed and taken only mi prision of treason, and the offenders therein forfeit and suffer as in cases of misprision treason hath heretofore been used."

These latter words evidently point to ancient recognized inode of dealing wi the offence of misprision of treason as di tinct from treason, and which must ha been then, as now, a misdemeanor.

As, however, the question I am co sidering arises upon very ancient matte of a technical nature, in which every st is liable to mistake, I should have lit confidence in any opinion that might formed if it were at variance with mod practice; and here we are met with startling fact, that the practice of Courts of Law in England, and that the Courts of Law in Ireland, are in dir opposition to each other; and I sho have attributed the greatest weight to Irish practice, if I did not find it to b variance, as I conceive, with a princi of law which is firmly established. practice of the Irish Courts, I underst to have been, not to allow peremp challenges in the case of clergy felonies. This practice I conceive have been erroneous, as the clergy m be counterpleaded, and the party execu so that the charge ought to be consid as a capital charge. I am driven, t to resort to the English practice, and not conceive that, with respect to any difference of opinion can aris believe it has always been the practi this country, in all felonies above degree of petty larceny, to allow per tory challenges as a matter of right.

On these grounds my humble op is, that your Lordships' question s be answered in the affirmative:

(a) 3 Inst. 36.

e less reluctance in coming to nclusion, because I think it clear Act of Parliament was not into abridge any right that prisoners ed before it passed; and as the peremptory challenge is little less ant now than when all felonies were it ought, in justice to prisoners, reserved to them.

IAMS, J.: In reply to the quesroposed by your Lordships, I beg o give the same answer as my brethren who have preceded me. he first place, I believe it is adon all hands, that the prevalent (in this country, at least, and I not whether your Lordships will any other) has been to allow a ptory challenge, up to the pred number, in all cases of felony. her petty larceny be included (about there may be some difference of n), as it does not seem to affect this on, it is not necessary to stop to e. No instance has been, and it is ed that none can be, adduced wheredistinction has been taken between es that are capital, and those which ot. What degree of weight is due to constant and undeviating course of ice, it is for your Lordships to e; to my apprehension, it is an inient in the case of very considerable rtance. To attribute this prevalence onnivance or concession, or to anyy but right, seems to me a solution of ry unsatisfactory description. Why ld an unauthorized indulgence, not ded upon any warrant or principle of have been conceded, if it could have resisted, in this case in particular e all others? I should rather think robable, that as a peremptory chale may be for any reason wholly unwn, and therefore to a certain extent

a personal and offensive nature, it ld have been resisted if resistance been considered practicable. Without ssing this observation to an excessive extravagant extent, or going so far Lord C. J. Wilmot, who, in his judgnt in Wilkes's case, (a) does not hesitate declare that

course of precedents and judicial proceed

make the law,"

does, at least, constitute a presumptive Be, which it is incumbent upon the party pugning it to do so upon clear and isfactory grounds, before a departure made from such a body of ancient and

challenge of the prisoner in this case was properly disallowed.

But to enter further into the case: The adverse argument appears to me mainly to rest upon the authority of text-writers (of great name and weight, undoubtedly), who so generally give us a reason for allowing the peremptory challenge, that it is in favorem vita; from which it is of course inferred that, except where life is at stake, such challenge may not be allowed: because if it should be found that the expression in favorem vitæ is equivalent to and really means no more than that such challenge is allowable in treason and felony, and that, at the time when it was first used, it applied just as much to felony generally as to treason, and that the phrase has since been continued to express the principle upon which such challenges are allowable, I must confess that the prevalent usage, with the legislative exposition, to which I shall presently refer, and upon which I very much found myself, does constitute a case which (but for the respect I have for the contrary opinion), I should have thought, admits of no doubt whatever.

The use of the expression in favorem vite may perhaps be as well considered in the passage of Lord Coke where he treats of peremptory challenge, (a) as in any other; partly because that passage is directly referred to by Hawkins, (b) and partly because Lord Coke refers to Staunford, Fortescue, and all the earlier authorities. Now, first it is observable that Lord Coke, though he speaks of in favorem vitæ as the reason for allowing the challenge, yet mentions felony generally of all kinds, treason only being named particularly. Hawkins, in the passage referred to, uses this language:

:

"I take it to be agreed that a peremptory challenge was allowable by the common law in all capital cases, both upon indictments and appeals, and also in misprision of high treason."

Hawkins, then, did not mean to lay down the general proposition that such challenge was allowed in favorem vitæ, or capital cases only; for he includes misprision of treason, which was not capital, according to him, was allowed. and yet challenge to a stipulated number,

In Lord Hale's Pleas of the Crown (c) he does not refer to Lord Coke, or any of the ancient authorities before mentioned, but to Moore, 12, to warrant him in saying that the right of peremptory challenge, to any number under three whole juries,

motor and in the

referred to there is nothing to warrant such conclusion; from which I infer that Lord Hale does not use the expression as if any peculiar weight or importance was attributable to it, but rather illustrating the principle upon which the challenge is allowed, indulgence to the prisoner, though circumstances might have been changed since the first adoption of it.

I shall lastly refer to Blackstone's Commentaries, (a) merely for the purpose of showing in what manner the subject is treated by one writer after another.

"In criminal cases (he says), 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."

He then breaks out, as his manner is, in an eulogy upon the humanity of the English law, which will not allow a man to be tried by another whose countenance is not agreeable. It is obvious, however, that if this reason be good for anything in a capital case, it must prevail, to a certain extent, in inferior cases; it is a question of degree only, of more or less.

It is now proper to advert to the state of the law at the time when the expression in favorem vitæ first had its origin, and from which it has been continued, from one writer to another, so late as the author last quoted. And it cannot be denied that all felonies (I purposely exclude petty larceny, for the reason already mentioned) were capital. To say, therefore, at that early time, that a peremptory challenge was allowed in favorem vitæ, and to say that it was allowed in felony generally, were expressions of precisely the same meaning. If it was a charge of felony, life was in question, and the allowance of challenge in such case was, strictly, in favorem vite; but to infer that, because capital punishment in the case of any particular felony may have been taken away, and the challenge can therefore be no longer said to be in favorem vitæ, the right of challenge is for that reason lost, is contrary, as I think, to all sound reasoning, upon any legal principle or anthority; and yet that is what ought to be shown, to maintain the judgment below. I come now to the consideration of some statutes which seem to me to have an important bearing upon this question. The first is 22 Hen. 8. c. 14, the 6th section of which is in the following terms:

"And that no person arraigned for any petit treason, murder, or felony, be from henceforth admitted to any peremptory challenge above the number of twenty."

(n) 4 Bla. Com. 353.

Now it is to be observed that this is no incidental allusion to the subject, in a statute having other and different objects, but an express provision respecting this very subject of challenge, and making an important alteration therein. And as the language is "treason, murder, or felony,' I cannot but consider this as a legislative recognition, that in felony generally without reference to capital or not, a peremptory challenge had been allowed before, and continued to be so, subject t the restriction as to twenty. The nex statute is 33 Hen. 8. c. 23. s. 4, b which it is enacted,

"that peremptory challenge shall not fro henceforth be admitted or allowed in any cas of high treason, nor misprision of high treason

noticed in the passage cited from Hawkin This, therefore, plainly shows, as w that in a case not a capital felony, n even a felony at all, peremptory challen was allowable. And, accordingly, t generality of the rule as to in favorem vi is clearly broken in upon, and its soun ness thereby impeached. Lastly, t statute 7 & 8 Geo. 4. c. 28. s. 3, P vides

"that if any person indicted for any treas felony, or piracy, shall challenge peremptori more than the number allowed by 1 every such challenge shall be "entin void.' Then comes section 6, whereby "benefit of clergy with respect to persons victed of felony shall be abolished."

I

I shall not repeat the observati already made upon the statute Hen. 8., but merely observe that t seem to be precisely applicable to third section of the latter Act. be contended that the question is pliedly affected by the 6th sectio confess my inability to do justice to argument, and I must therefore it by, with the remark, that the d inference which I draw from the 1 statute, taken altogether, is in favo the right of challenge which was allowed, and, upon the whole, I improperly

GURNEY, B.: I concur in opinion the learned judges who have pre me, that the Court ought to have all the challenge in question. There ap to have always existed a right of emptory challenge in cases of felony undoubtedly it is stated by every on criminal law, one repeating the lan of the other, that it was in favorem I think that there may be some qu whether that was the ground upon it was originally allowed, or whet was a reason found out after it ha established. The ancient practice allow this to the extent of 25, one s