adultery. This corsned was then given to the suspected person; who at the same time also received the holy sacrament (q): if indeed the corsned was not, as some have suspected, the sacramental bread itself; till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us, that Godwin, earl of Kent, in the reign of king* Edward the Confessor, adjuring the death of [* 435 ] the king's brother, at last appealed to his corsned, "per buccellam deglutiendam abjuravit " (r), which stuck in his throat and killed him. This custom has been long since gradually abolished, though the remembrance of it still subsists in certain phrases of adjuration retained among the common people (s). These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which remained in force till much more recently, owed its introduction among us to the princes of the Norman line. And that is, 3. Trial by battle. 3. The trial by battle, duel, or single combat; which was another species of presumptuous appeal to Providence, under an expectation that Heaven would give victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was discussed in the preceding volume (t); to what was there said I have only to add, that the trial by battle might have been demanded at the election of the appellee, in either an appeal (u) or an approvement (); and that it was carried on with equal solemnity as on a writ of right: but with this difference, that there each party might have hired a champion, but here he was bound to fight in his proper person (y). The form and manner of waging battle upon an appeal * were much [* 436] the same as upon a writ of right; only the oaths of the two combatants were more striking and solemn (a). The appellee, when appealed of felony, pleaded not guilty," and throwing down his glove, declared he would defend the same by his body: the appellant, taking up the glove, replied that he was ready to make good the appeal, body for body. Thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonist, made an oath 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 replied, 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 perjured; and an approver or prover, probator, and the party appealed or accused was called the appellee. Such approvement could only be in capital offences. (y) This rule was, however, subject to exceptions, for if the appellant or approver were a woman, a priest, an infant, or of the age of sixty, or lame, or blind, he or she might have counterpleaded and refused the wager of battle; and compelled the appellee to put himself upon the country. (a) Flet. 1. 1, c. 34; 2 Hawk. P. C. 426 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 award." The battle was then to be fought with the same weapons, viz. batons, the same solemnity, and the same oath against amulets and sorcery, that were used in the civil combat; and if the appellee were so far vanquished, that he could not or would not fight any longer, he was adjudged to be hanged immediately; and then, as well as if he were killed in battle, Providence was deemed to have determined in favour of the truth, and his blood was attainted. But if he killed the appellant, or could maintain the fight from sunrising till the stars appeared in the evening, he was acquitted. So also if the appellant became * recreant, and pronounced the horrible word "craven," he was [* 437 ] adjudged to lose his liberam tegem, and became infamous; and the appellee recovered his damages, and so was for ever quit, not only of the appeal, but of all indictments likewise for the same offence. Trial by battle was abolished by the statute 59 Geo. 3, c. 46 (b). 4. Trial by high court of parlia of the lord high ment, or court steward. 4. The fourth method of trial used in criminal cases is that by the peers of Great Britain, in the court of parliament, or in the court of the lord high steward, when a peer has been indicted. Of this enough was said in a former chapter (c); to which I may add, that, in its procedure, this solemn mode of trial differs little from the trial per patriam, or by jury; except that no special verdict can be given at the trial of a peer (d); 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 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 (e). 5. The fifth method of trial, to be now mentioned, is trial by jury, or the country. The antiquity and excellence of this trial, for the settling of civil property, has before been explained (f). And what was then 5. Trial by jury. said applies yet more strongly in criminal cases; since, in times of difficulty and danger, greater evil is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the sovereign and the subject, than in disputes between one individual and another. 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 [* 438] balance of our constitution, to vest the executive power of the laws in the sovereign: 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 imprison, dispatch, or exile any man 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 on to answer to the crown for any crime, unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury: and that the truth of (b) See Ashford v. Thornton, 1 B. & Ald. 405. See also an account of the proceedings, in the case of Lord Rae and Mr. Ramsey (7 Car. 1), 11 St. Tr. 124. (c) Ante, chap. xvi. p. 336. (e) Kelyng, 56; Foster, 247. So every accusation, whether preferred in the shape of indictment or information, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion. that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from open attacks on it (which none, perhaps, would be so hardy as to make), but also from secret machinations, which might sap and undermine it. V. Jury process. V. 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 at least forty-eight jurors, for the determination of criminal as well as civil issues at that session; and accordingly it is there usual to try all felons immediately, or soon, after their arraignment. But it was formerly not customary, nor agreeable to the general course of proceedings, (unless by consent of parties, or where the defendant was actually in custody,) to try persons indicted for misdemeanor of the same court at which they had pleaded not guilty, or traversed the indictment. But they usually gave 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 [* 439] same. Now, however, the statute 14 & 15 Vict. c. 100, by its 27th section enacts, that "no person prosecuted shall be entitled to traverse or postpone the trial of any indictment found against him at any session of the peace, session of oyer and terminer, or session of gaol delivery: provided always, that if the court, upon the application of the person so indicted or otherwise, shall be of opinion that he ought to be allowed a further time, either to prepare for his defence or otherwise, such court may adjourn the trial of such person to the next subsequent session, upon such terms as to bail or otherwise as to such court shall seem meet, and may respite the recognizances of the prosecutor and witnesses accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent session without entering into any fresh recognizance for that purpose." In felonies as well as misdemeanors the court has indeed, independently of statute, authority to postpone the trial to a subsequent assizes or sessions, for sufficient cause, as the unavoidable absence of a material witness, or the existence of a prejudice in the jury, shown upon affidavit, at the instance either of the prosecutor or the defendant. Where the application is made by the defendant, in a case of felony, the court will remand him, and detain him in custody till the next assizes or sessions; where by the prosecutor, it is in the discretion of the court to detain the defendant in custody, or admit him to bail, or discharge him on his own recognizance; but after a bill has been found, in any case of a serious nature, bail will not be taken. 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: a reference indeed to the preceding volume will show that the qualifications of petty jurors on criminal are the same as on civil trials (g), that the grounds of disqualification and exemption from serving as such are likewise [*440] the same, and what was there said respecting the mode of preparing (g) See also stat. 6 Geo. 4, c. 50, s. 50. the jury lists, returning the names of persons qualified as jurors, making up the jury book, and summoning the jurors, will now generally apply (h). On a trial in the court of queen's bench for misdemeanor-though not for treason or felony-a special jury may be obtained on the application of either the prosecutor or the defendant (i), and the precept issued by the judges of assize for the sheriff to summon jurors for the assizes, directs him to summon a sufficient number of special jurymen not exceeding forty-eight in all to try the special jury causes, and from these a special jury will be struck (k); the proper number of jurors, if not in attendance, being made up by a tales. Where an alien (7) is indicted, the jury should be de medietate linguæ, or half foreigners, if so many are found in the place (m); but this does not hold in treason, aliens being very improper judges of the breach of allegiance (n). And the stat. 6 Geo. 4, c. 50, s. 47, expressly provides, that nothing in that act * contained shall be construed to deprive any alien indicted or impeached of any felony or misdemeanor of the right of being tried by [* 441 ] a jury de medietate, but that on the prayer of any alien so indicted or impeached, the sheriff shall, by command of the court, return for one half of the jury a competent number of aliens, if so many there be in the town or place where the trial is had, and if not, then so many aliens as shall be found in the same town or place, if any; and that no alien juror shall be liable to be challenged for want of freehold, or of any other qualification required by that act; but every such alien juror may be challenged for any other cause, in like manner as if he were qualified by the act. VI. When the trial is called on, the jurors to the number of twelve, as they appear, are to be sworn or required to make the affirmation or declaration permitted by the statute 30 & 31 Vict. c. 35, s. 8, to persons who are unwilling from alleged conscientious motives to take an oath; before being sworn or making such affirmation or declaration, however, the jurors may be challenged. VI. The right of challenge. Challenges may be made, either on the part of the crown, 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 (6). For it is on a criminal at least as necessary, as on a civil trial, that the sheriff or returning officer be totally indifferent; and that the particular jurors should be omni exceptione majores; not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum. (h) By stat. 6 Geo. 4, c. 50, s. 20, all courts of oyer and terminer, and gaol delivery, the superior criminal courts of the three counties palatine, and courts of sessions of the peace in England and Wales, shall respectively have and exercise the same power and authority as they had exercised, in issuing any writ or precept, or in making any award or order, orally or otherwise, for the return of a jury for the trial of any issue before any of such courts respectively, or for the amending or enlarging the panel of jurors returned for the trial of any such issue. And the 7 Geo. 4, c. 64, s. 21, enacts, that no judgment after verdict upon any indictment or information for any felony or misdemeanor shall be stayed or reversed by reason that the jury Challenges upon any of the foregoing accounts are styled challenges for cause: which may be without stint in both criminal and civil trials. But on a trial for treason or felony (p), there is, in favorem vitæ, allowed to *the prisoner an arbitrary and capricious species of challenge to a cer [*442] tain number of jurors, without showing any cause at all; which is called a peremptory challenge: a provision full of tenderness and humanity to prisoners. 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 a prisoner (when put to defend himself) 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. This privilege, of peremptory challenge, though granted to the prisoner, is denied to the crown by the statute 6 Geo. 4, c. 50, s. 29 (q), which provides, that the crown shall challenge no jurors without assigning a cause certain, to be tried and approved by the court. However, it is held that the crown need not assign a cause of challenge, till all the panel is gone through and exhausted (r), and unless there cannot be a full jury without the person so challenged. And then, and not sooner, counsel for the crown must show the cause: otherwise the juror objected to shall be sworn (s). And the practice is the same in trials for misdemeanors as in those for treason or felony (t). *Where there is a challenge for cause, two persons in court, not of [* 443] the jury, are sworn to try whether the juryman challenged is indiffer ent. Evidence is then produced to support the challenge; and according to the verdict of the two tryers, the juryman is admitted or rejected (u). The peremptory challenges of the prisoner must however have some reasonable boundary; otherwise he might never be tried. This reasonable boundary is in high treason (save as presently mentioned) settled to be the number of thirty-five: that is, one under the number of three full juries. For the law judges that five-and-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. therefore the common law dealt with one who peremptorily challenged above thirty-five, and would not retract his challenge, as with one who stood mute or refused to take his trial; by sentencing him to the peine forte et dure in felony, and by attainting him in treason (x). Where the treason charged is the compassing the queen's death, and an overt act alleged in the indictment is the assassination of the queen, or any direct attempt against her life, or (p) A peremptory challenge is not allowed in any trial for a misdemeanor. St. Tr. ii. 808, iv. 1. (q) See also the prior statute, 33 Edw. 1, stat. 4. (r) Mansell v. Reg. Dearsl. & B. 375. juror, where a jury de medietate has been (u) See O'Coigly's Case, 26 St. Tr. 1227; O'Brien v. Reg. 2 H. L. Cas. 469, where the challenge was to the array. (x) 2 Hale, P. C. 268. |