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Exclusion of jurors by the Crown.

Peremptory challenge.

made to the proper officer, and in such case probably the juror objected to would not be called. How is the validity of the challenge to be determined? If it is a principal challenge, by the court itself; if a challenge for favour, by two jurors who have already been sworn. But if the challenge for favour is of one of the first two jurors, the court appoints two indifferent persons, thence termed "triers," to try the matter; but they are superseded as soon as two are sworn on the jury. Witnesses may be called to support or defeat the challenge, and the person objected to also may be examined, but not asked questions which tend to his discredit. It should be noticed that, as a rule, a person may challenge himself, upon which he may be examined on oath as to the cause. So the sheriff may suggest the objection to his array on the ground of his relationship, &c.

The Crown may order any number of persons called as jurors to stand by, and has not to shew any cause for excluding them, until the panel has been gone through and it appears that there will not be left enough jurors without those ordered to stand by (u).

So much for challenges for cause, to the number of which there is no limit, and the rules as to which are generally alike both in criminal and civil cases. But there is another kind of challenge known to the criminal law alone.

Peremptory Challenge.-In felonies the prisoner is allowed to arbitrarily challenge, and so exclude, a certain number of jurors without shewing any cause at all. He cannot claim this right in misdemeanors (x);

(u) v. Mansell v. R., 27 L. J. (M.C.) 4.

(x) "It is equally absurd that in the case of a trifling theft the prisoner should have the right of peremptorily challenging twenty jurors, whilst a man accused of perjury might see his bitterest enemy in the jury box, and be unable to get rid of him as a juror, unless he could give judicial proof of his enmity."-Fitz. St. 106.

but it is usual, on application to the proper officer, for him to abstain from calling any name objected to by the prosecution or defendant within reasonable limits; and this course has been sanctioned by the court (y).

The defendant may peremptorily challenge to the Number of number of thirty-five in treason, except in that treason challenges. which consists of compassing the Queen's death by a direct attempt against her life or person (z). In such excepted case, in murder, and all other felonies, the number is limited to twenty (a). If challenges are made beyond the number allowed, those above the number are entirely void, and the trial proceeds as if no such extra challenge had been made (b).

The court itself may take out of the panel the names of any jurors and insert others where such a course is necessary (c).

If a sufficient number of jurors do not appear, or if Tales. by means of challenges or exemptions a sufficient number of unexceptionable ones do not remain, either side may pray a tales, that is, a supply of such men as are summoned upon the panel, in order to make up the deficiency (generally from the bystanders, tales de circumstantibus); but this course seems to require a warrant from the attorney-general (d). The usual course, however, at the assizes, is for the judge to order the

(y) The reasons which Blackstone assigns are (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 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 anyone against whom he has conceived a prejudice, even without being able to assign a reason for such dislike. (2) Because, upon challenges for cause shewn, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment.-4 Bl. 353.

(z) 39 & 40 Geo. 3, c. 93.

(a) 6 Geo. 4, c. 50, s. 29.

(b) 7 & 8 Geo. 4, c. 28, s. 3.

(c) 6 Geo. 4, c. 50, s. 20.

(d) 2 Hawk. c. 41, s. 18; 4 Bl. 355; Arch. 169.

Conduct of the jury.

Special juries.

sheriff to return a new panel instanter, without further precept; and at sessions, for the justices to issue a special precept commanding the sheriff to return a sufficient number of jurors immediately.

When the jury have once been sworn they cannot leave the box without the leave of the court, and then only in company with some officer of the court. If, in consequence of being unable at once to come to a conclusion, they obtain leave to withdraw in order to consider their verdict, they are kept apart from any one, under the charge of an officer, who is sworn not to speak to them (except to ask them whether they have agreed), or suffer any one else to do so. Their verdict will be set aside if they speak with any one interested, or cast lots as to which way they shall decide. In these and other cases of delinquency they may be fined. By leave of the court they may have reasonable refreshment (e). If the trial is adjourned over night in treason or felonies, the jury retire in custody of the sheriff and his officer, who are sworn to keep them together. In misdemeanors they are allowed to go home on engaging not to listen to anything spoken to them as to the case under trial If during the trial, before verdict is given, one of the jury dies, or is taken so ill that he is not able to proceed with the trial, or without permission leaves the box (ƒ), the jury is discharged and a new one sworn to try the case. Of course in such an event the remaining eleven may, and most frequently will, be in the new jury.

We have been hitherto referring to common juries. But as in civil, so in criminal cases, special juries are sometimes summoned. But this is only in misdemeanors, where the record is in the Queen's Bench Division, and only by permission of the court on

(e) v. 33 & 34 Vict. c. 77, s. 23.
(f) R. v. Wood, 10 Cox, 573.

motion of either the prosecutor or the defendant. The party applying for a special jury must pay the extra fees and expenses, unless the court certifies that it was a proper case to be tried by a special jury. These jurors are taken from a higher class than common jurors, their qualifications being determined by statute (g). The instances of the trial of a criminal case by a special jury are so rare, that we need not enter into further particulars.

medietate

Another exceptional form of jury was, until lately, Jury de sometimes demanded; a jury de medietate linguæ. linguæ. Formerly, in cases of felony or misdemeanor, but not of treason, an alien might claim his right to be tried by a jury, half of whose number were aliens, or, at least, if not half, as many as the town or place could furnish. But this privilege was taken away by the Naturalization Act, 1870 (h); and now an alien is tried as if he were a natural born subject (i).

(g) 33 & 34 Vict. c. 77, s. 6.

(h) 33 & 34 Vict. c. 14, s. 5.

(i) We have already referred to another case of a so-called jury de medietate linguæ, v. p. 303.

jury.

CHAPTER XIV.

THE HEARING.

Swearing the THE full complement of jurors having been obtained, they are sworn; or, if any of them on conscientious grounds object to the oath, they make the statutory declaration (j). The oath, and mode of taking it, differ slightly in felonies and in misdemeanors. In felonies, each juror is sworn separately in the following terms: "You shall well and truly try, and true deliverance make, between our sovereign lady the Queen and the prisoner at the bar, whom you shall have in charge, and a true verdict give according to the evidence. So help you God." In misdemeanors, four take hold of the book at the same time, and four, or sometimes all, are sworn together. The oath is: "You shall well and truly try the issue joined between our sovereign lady the Queen and the defendant, and a true verdict give according to the evidence. So help you God" (k).

Proceedings at

After the jury are sworn, in cases of treason or the hearing. felony, the crier at the assizes makes the following proclamation: "If any one can inform my lords the Queen's justices, the Queen's attorney general, or the Queen's serjeant, ere this inquest taken between our sovereign lady the Queen, and the prisoners at the bar, of any treason, murder, felony, or misdemeanor, committed

(j) 30 & 31 Vict. c. 35, s. 8.

(k) v. Fitz. St. p. 57, as to the historical cause of this distinction, the terms of the oath in a misdemeanor shewing the resemblance of procedure in a misdemeanor to that in a civil action; that in felony reminding us of the days "when the jury were both judges and witnesses, who reported on the prisoner's guilt or innocence of their own knowledge."

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