CHALLENGES upon any of the foregoing accounts are ftiled challenges for caufe; which may be without stint in both criminal and civil trials. But in criminal cafes, or at leaft in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious fpecies of challenge to a certain number of jurors, without fhewing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prifoners, for which our English laws are justly famous. This is grounded on two reasons. I. As every one must be fenfible, what fudden impreffions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how neceflary it is, that a prisoner (when put to defend his life) fhould 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 affign a reason for fuch his diflike. 2. Because, upon challenges for cause shewn, if the reason affigned prove infufficient to set aside the juror, perhaps the bare queftioning his indifference may fometimes provoke a resentment; to prevent all ill confequences from which, the prisoner is ftill at liberty, if he pleases, peremptorily to set him aside, THIS privilege, of peremptory challenges, though granted to the prifoner, is denied to the king by the ftatute 33 Edw. I. ft. 4. which enacts, that the king fhall challenge no jurors without affigning a cause certain, to be tried and approved by the court. However it is held, that the king need not affign his caufe of challenge, till all the panel is gone through, and unless there cannot be a full jury without the perfons fo challenged. And then, and not fooner, the king's counsel must fhew the caufe: otherwife the juror fhall be fworn 9. THE peremptory challenges of the prisoner must however have some reasonable boundary; otherwise he might never be tried. This reafonable boundary is fettled 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 five and thirty are fully fufficient 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 ftands mute or refuses his trial; by fentencing him to the peine forte et dure in felony, and by attainting him in treason '. And fo the law ftands at this day with regard to treafon, of any kind. BUT by ftatute 22 Hen. VIII. c, 14. (which with regard to felonies, stands unrepealed by statute 1 & 2 Ph. & Mar. c. 10.) by this ftatute, I say, no perfon arraigned for felony, can be admitted to make any more than twenty peremptory challenges. But how if the prifoner will peremptorily challenge twenty-one, what fhall be done? The old opinion was, that judgment of peine forte et dure should be given, as where he challenged thirty-fix at the common law: but the better opinion feems to be', that fuch challenge fhail only be disregarded and overruled. Because, first, the common law doth not inflict the judgment of penance for challenging twenty-one, neither doth the ftatute inflict it; and fo heavy a judgment (or that of conviction, which fucceeds it) fhall not be imposed by implication. Secondly, the words of the ftatute are, "that he be not admitted to challenge more "than twenty;" the evident conftruction of which is, that any farther challenge fhall be difallowed or prevented: and therefore, being null from the beginning, and never in fact a challenge, it can fubject the prifoner to no punishment; but the juror fhall be regularly fworn. IF, by reafon of challenges or the default of the jurors, a fufficient number cannot be had of the original panel, a tales t 3 Inft. 227. 2 Hal. P. C. 270. 2 Hal. P. C. 268. $2 Hawk. P. C. 414. may may be awarded as in civil causes ", till the number of twelve is fworn, "well and truly to try, and true deliverance make, "between our fovereign lord the king, and the prifoner "whom they have in charge; and a true verdict to give, "according to their evidence." WHEN the jury is fworn, if it be a cause of any confequence, the indictment is ufually opened, and the evidence marshalled, examined, and enforced by the counsel for the crown, or profecution. But it is a fettled rule at common law, that no counsel shall be allowed a prisoner upon his trial, upon the general iffue, in any capital crime, unless fome point of law fhall arife proper to be debated ". 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, fhall fee that the proceedings against him are legal and strictly regular *) seems to be not at all of a piece with the rest of the humane treatment of prifoners by the English law. For upon what face of reafon can that affiftance be denied to fave the life of a man, which yet is allowed him in profecutions for every petty trefpafs? Nor indeed is it ftrictly speaking a part of our antient law for the mirrour, having obferved the neceffity of counfel in civil fuits, "who know how to forward and defend "the caufe, by the rules of law and cuftoms of the realm," immediately afterwards subjoins; " and more neceffary are "they for defence upon indictments and appeals of felony, "than upon other venial causes 2." And the judges themfelves are fo fenfible of this defect, that they never fcruple to allow a prisoner counsel to instruct him what questions to u See Vol. III. pag. 364. But, in mere commiffions of gaol delivery, no tales can be awarded; though the court may ore tenus order a new panel to be returned inftanter. (4 Inft. 68. 4 St. Tr. 728. Cooke's Cafe.) w 2 Hawk. P. C. 400. x Sir Edward Coke (3 Inft. 137.) gives another additional reason for this refufal, because the evidence to con"vict a prifoner fhould be fo manifeft, as "it could not be contradicted." Which, afk, lord Nottingham (when high steward) z Father Parsons the jefuit, and after him bishop Ellys, (of English liberty. ii. 26.) have imagined, that the benefit of counsel to plead for them was first denied to prifoners by a law of Hen. I, meaning (I prefume) chapter 47 and 48 of the code which is ufually attributed to that prince. "De caufis criminalibus " vel Book IV. afk, or even to ask questions for him, with respect to matters of fact: for as to matters of law, arifing on the trial, they are entitled to the affiftance of counfel. But, left this indulgence should be intercepted by fuperior influence, in the cafe of state-criminals, the legislature has directed by statute 7 W. III. c. 3. that perfons indicted for such high treason, as works a corruption of the blood, or mifprifion thereof, (except treason in counterfeiting the king's coin or feals) may make their full defence by counsel, not exceeding two, to be named by the prisoner and affigned by the court or judge: and the fame indulgence, by ftatute 20 Geo. II. c. 30. is extended to parliamentary impeachments for high. cafon, which were excepted in the former act, THE doctrine of evidence upon pleas of the crown is, in in most respects, the fame as that upon civil actions. There are however a few leading points, wherein, by feveral statutes, and refolutions, a difference is made between civil and criminal evidence. FIRST, in all cafes of high treason, petit treason, and mifprifion of treafon, by ftatutes 1 Edw. VI. c. 12. and 5 & 6 Edw. VI. c. 11. two lawful witneffès are required to convict a prisoner; unless he fhall willingly and without violence confefs the fame. By ftatute 1 & 2 Ph. & Mar. c. 10. a farther exception is made as to treasons in counterfeiting the king's feals or fignatures, and treasons concerning coin current within this realm; and more particularly by c. 11. the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin. The ftatutes 8 & 9 W. III. c. 25. & 15 « vel capitalibus nemo quaerat confilium; quin implacitatus ftatim perneget, fine "omni petitione confilii.In aliis omnibus "poteft et debet uti confilio."-But this confilium, I conceive, fignifies only an imparlance, and the petitio confilii is craving leave to imparl; (See Vol. III. pag. 298.) which is not allowable in any criminal profecution. This will be manifeft by comparing this law with a contemporary paffage in the grand coutumier of Normandy, (ch. 85.) which & 16 Geo. II. c. 28. in their fubfequent extenfions of this fpecies of treafon do alfo provide, that the offenders may be indicted, arraigned, tried, convicted, and attainted, by the like evidence and in fuch manner and form, as may be had and used against offenders for counterfeiting the king's money. But by ftatute 7 W. III. c. 3. in profecutions for thofe treafons to which that act extends, the fame rule (of requiring two witneffes) is again enforced; with this addition, that the confeffion of the prifoner, which fhall countervail the neceffity of such proof, must be in open court. In the conftruction of which act it hath been holden 2, that a confeflion of the prisoner, taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is fufficient to convict him of treason. But hafty unguarded confeffions, made to perfons having no fuch authority, ought not to be admitted as evidence under this ftatute. And indeed, even in cafes of felony at the common law, they are the weakest and most fufpicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; feldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence. By the fame ftatute 7 W. III. it is declared that both witneffes must be to the fame overt act of treafon, or one to one overt act, and the other to another overt act, of the fame fpecies of treafon ", and not of diftinct heads or kinds: and no evidence fhall be admitted to prove any overt act not expressly laid in the indictment. And therefore in fir John Fenwick's cafe, in king William's time, where there was but one witness, an act of parliament was made on purpose to attaint him of treafon, and he was executed. But in almost every other accufation one pofitive witness is fufficient. Baron Montefquieu lays it down for a rule, that those laws which condemn a man to death in any cafe on the depofition of a fingle witness, are fatal to liberty: and he adds this reason, that the witness who affirms, and the accused who denies, make an equal balance; there is a neceflity therefore to call a Fofter. 240-244• b See St. Tr. II. 144. Fofter 235, Stat. 8 W. III. c. 4. C |