refuse the wager of battel; and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and employment. So, likewise, if the crime be notorious; as, if the thief be taken with a 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 felony. So help me God, and the saints; and this I will defend against thee by my body, as this court shall award." To which the appellant replies, holding the bible and his antagonist's hand in the same manner as in 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 the saints: and this I will prove against thee by my body, as this court shall [*348 ] 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 battel, providence is deemed to have determined in favor 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. 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) (2) 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 parliament, 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 [*349] fact and except, also, that the peers need not all agree in their verdict; but (a) 2 Hawk. P. C. 427. (b) Flet. l. 1, c. 34. 2 Hawk. P. C. 426. (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 solemn manner; the proseentor, 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. i. c. 19. (d) 9 Rep. 30. 2 Inst. 49. (e) See page 259. (f) Hatt. 116. (2) [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. 30. See book I, 401, note.] 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 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 imprisonetur, aut exulet, aut aliquo alio modo destrautur, nisi per legale 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. (1) And 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 two-fold 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, dispatch 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 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 [*350] 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 the 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. (j) If the proceedings are before the court of king's bench, there is time allowed, between the assignment and the trial, for a jury to be *im[*351] paneled by a writ of venire facias to the sheriff, as in civil causes: and the trial in case of misdemeanor is had at nisi prius, unless it be of such consequence as to merit a trial at bar; which is always invariably had when (g) Kelynge, 56. Stat. 7 Wm. III, c. 3, 11. Foster, 247. (h) 9 Hen. III, c. 29. (i) See book III, page 379. (j) 2 Hal. P. C. 264. 2 Hawk. P. C. 403. 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 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 misdemeanors at the same court in which they have pleaded not quilty, 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 Wm. 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; (7) for then is his 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 Ann. c. 21 (which did not take place till after the decease of the late pretender), all persons indicted for high treason or misprision *thereof, shall have not only a copy of the indictment, but a list of all the witnesses [*352 ] to be produced, and of the jurors impaneled, with their professions and places of abode, delivered to him ten days before the trial, and in the presence of two 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) (3) 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 indifferent; that where an alien is indicted, the jury should be de medietate, or half foreigners, if so many are found in the place; (which indeed does not hold in treasons, (p) aliens being very improper judges of the breach of allegiance; nor yet in the case of Egyptians (4) under the statute 22 Hen. VIII, c. 10), that on every panel (k) Fost. 229. Append. i. (1) Ibid. 230. (m) Fost. 250. (3) Although in England the prisoner is not entitled as of right to a copy of the indictment in case of felony, yet the prosecution may give it, and their doing so on request would be expected. If not given, the court would direct the indictment to be read over slowly, in order that it might be taken down. Rex v. Parry, 7 C. and P. 836. In misdemeanors, the defendant is entitled to a copy. Morrison v. Kelly, 1 W. Black. 385. In the United States, the right is generally secured by statute or constitution in all cases. (4) This class of persons are now dealt with summarily, as rogues and vagabonds. VOL. II.-65 513 there should be a competent number of hundredors; (5) and that the particular jurors should be omni exceptione majores; not liable to objection either propter honoris respectum, propter defectum, propter effectum, or propter delictum. [353] *Challenges upon any of the foregoing accounts are styled challenges for cause; which may be without stint in both criminal and civil trials. But 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 challenge: a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. (6) This is grounded on two reasons. 1. As 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 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 dislike. 2. Because upon challenges for cause shown, if the reason 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. The 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 asssign 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. (q) (7) The peremptory challenges of the prisoner must, however, have some reason[*354] able boundary; otherwise he might never be tried. This reasonable boundary is settled by the common law to be the number of thirty-five; that is, one under the number of three full juries. For the law judges that fiveand-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 (q) 2 Hawk, P. C. 413. 2 Hal. P. C. 271. (5) [The right to challenge for want of hundredors is now taken away by the 6 Geo. IV, c. 50, s. 13.] (6) [A peremptory challenge is not allowed in the trial of collateral issues. Fost. 42. Nor in any trial for a misdemeanor. 2 Harg. St. Tr. 803, and 4 H. St. Tr. 1.] (7) [And the practice is the same both in trials for misdemeanors and for capital offences 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 triers, the juryman is admitted or rejected.] In the United States challenges to the favor are generally tried by two jurors already impaneled, if there are such, and if not, then by two indifferent by-standers appointed and sworn by the court for that purpose, or by the court itself. The American decisions regarding challenges are collected in 1 Waterman's Arch. Cr. L. 545, et seq. The subject of challenges to the polls was quite fully considered in People v. Bodine, 1 Denio, 281. There is a good deal of diversity of opinion as to what previously received impressions of the party called as a juror, as to the guilt of the accused, should exclude him from sitting. Compare Freeman v. People, 4 Denio, 9; People v. Mather, 4 Wend. 229; Baxter v. People, 3 Gil. 368, with Moran's Case, 9 Leigh, 651; State v. Ellington, 7 Ired. 61; Moses v. State, 10 Humph. 456; Holt v. People, 13 Mich. 224. treason. (r) And so the law stands at this day with regard to treason of any kind. But by statute 22 Hen. VIII, c. 14 (which, with regard to felonies, stands unrepealed by statute 1 and 2 P. and M. c. 10), by this statute, I say, no person arraigned for felony can be admitted to make any more than twenty peremptory challenges. But how if a prisoner will peremptorily challenge twenty-one? what shall be done? The old opinion was, that judgment of peine forte et dure should be given, as where he challenged thirty-six at the common law: (s) but the better opinion seems to be, (t) that such challenge shall only be disregarded and overruled. Because, first, the common law does not inflict the judgment of penance for challenging twenty-one, neither doth the statute inflict it; and so heavy a judgment (or that of conviction, which succeeds it) shall not be imposed by implication. Secondly, the words of the statute are," that he be not admitted to challenge more than twenty;" the evident construction of which is, that any further challenge be disallowed or prevented: and therefore, being null from the beginning, and never in fact a challenge, it can subject the prisoner to no punishment; but the juror shall be regularly sworn. (8) If, by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales *may be awarded as in civil [*355] causes, (u) till the number of twelve is sworn, "well and truly to try, and true deliverance make, between our sovereign lord the king, and the prisoner whom they have in charge; and a true verdict to give according to the evidence." When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshaled, examined, and enforced by the counsel for the crown or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. (w) (9) A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) (x) seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass? Nor, indeed, is it, strictly speaking, a part of our ancient law: for the Mirror (y) having observed the necessity of counsel in civil suits, "who know how to forward and defend the cause, by the rules of law and customs of the realm," and immediately afterwards subjoins: "and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes." (2) And the judges themselves (r) 2 Hal. P. C. 268. (8) 2 Hawk. P. C. 414. (t) 3 Inst. 227. 2 Hal. P. C. 270. (u) See book III. page 364. But in mere commissions of gaol delivery, no tales can be awarded ; though the court may ore tenus order a new panel to be returned instanter. (4 Inst. 68. 5 St. Tr. 728. Cooke's Case.) (w) 2 Hawk. P. C. 400. (2) Sir Edward Coke (3 Inst. 137) gives another additional reason for this refusal, "because the evidence to convict a prisoner should be so manifest, as it could not be contradicted." Which Lord Nottingham (when high steward) declared (3 St. Tr. 726) was the only good reason that could be given for it. (1) c. 3, § 1. (2) Father Parsons. the jesuit, and after him Bishop Ellys (of English liberty ii, 66), have imagined that the benefit of counsel to plead for them was first denied to prisoners by law of Hen. I, meaning (I presume) chapters 47 and 48 of the code which is usually attributed to that prince. "De causis criminalibus vel capitalibus nemo querat consilium : quin implacitatus statim perneget. sine omni, petitione consilii. — In aliis omnibus potest et debet uti consilio."-But this consilium, I conceive, signifies only an imparlance, and the petitio consilii is craving leave to imparl; (sce book III. page 298), which is not allowable in any criminal prosecution. This will be manifest by comparing this law with a contemporary passage in the grand coustumier of Normandy (ch. 85), which speaks of imparlances in personal actions. Apres ce. est tenu le querelle a respondre; et aura congie de soy conseiller, s'il le demande; et quand il sera conseille, il pout myer le facit dont il est accuse."' Or. as it stands in the Lat. text edit, 1539), Querelates autem postea tenetur respondere; et habebit licentiam consulendi, si requirat ; habito autem consilio, debet factum negare quo accusa tus est." (8) By statute 7 and 8 Geo. IV, c. 28, s. 3, peremptory challenges beyond the number allowed by law are entirely void. (9) A full defence by counsel is now allowed in all cases. See statute 6 and 7 Wm. IV, c. 114. In the United States the right to counsel is a constitutional right, and if the accused |