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 W. 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 (9): next, that the prisoner shall have a copy of the indictment (which includes the caption) (4), 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 (); for then is the 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 pre[*352] tender), all persons, indicted for high treason or misprision there.

of, shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impanelled, 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so far as it affected indictments for the inferior species of high treason, respecting the coin and the royal seals, is repealed by the statute 6 Geo.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) (10). 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 (7).

(*) Fost. 229. Append. i. (1) Ibid. 230.

dicted for a misdemeanor at any session of the peace, session of oyer and terminer, great session, or session of gaol-delivery, not having been committed to custody, or held to bail to appear to answer for such offence, twenty days before the session at which the indict ment was found, but who shall have been committed to custody, or held to bail to appear to answer for such offence at some subsequent session, or shall have received notice of such indictment having been found, twenty days before such subsequent session, he shall plead at such subsequent session, and trial shall take place at such session, unless a certiorari be awarded before the jury be sworn for such trial. But on sufficient cause shewn, the court may allow further time for trial. Id. s. 7. In cases of indictments for obtaining goods, &c. by false pretences, and sending threaten ing letters, with intent to extort money, &c. and other misdemeanors punishable under the 30 Geo. III. c. 24, it is enacted by that act, s. 17, that every such offender, bound over to the general quarter sessions of the peace, or sessions of oyer and terminer, and gaol delivery, of the county where the offence was committed, shall be tried at such general quarter sessions of the peace, or sessions of oyer and terminer, and gaol-delivery, which shall be held next after his apprehension, unless the court shall think fit to put off the trial, on

(m) Fost. 250.

(n) 2 Hawk. P. C. 410,

just cause made out to them. So also by the
39 & 40 Geo. III. c. 87. s. 22, persons indict-
ed for a misdemeanor, in receiving stolen
goods, under the 2 Geo. III. c. 28, are to be
tried immediately, without being allowed the
delay of a traverse. 2 East. P. C. 754.
to traverses in general, in criminal proceed.
ings, see 1 Chit. C. L. 486.

As

(9) This limitation as to the time of finding an indictment applies, in New-York, to all of fences except murder, and in all cases the defendant may have a copy of the indictment (2 R. S. 726, § 37, id. 728, ◊ 53,) and of the list of the jurors: (id. 414, § 31,) he may also have gratuitously subpoenas to compel the attendance of witnesses. (Id. 729, § 59.)

(10) By 39 and 40 Geo. III. c. 93, in all cases of high treason, in compassing or imagining the death of the king, and of misprision of such treason, where the overt act alleged in the indictment is the assassination of the king, or a direct attempt against his life or person, the party accused shall be indicted and tried in the same manner and upon the like evidence as if charged with murder. But the judgment and execution shall remain the same as in other cases of high treason. And by 6 Geo. IV. c. 50, ◊ 21, when any person is indicted for high treason or misprision of trea son, in any court except K. B., a list of the petty jury, with their names, professions, and

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 (11).

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 (o). 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 (12); (which does not indeed hold in treasons (p), aliens being very improper judges of the breach of allegiance (13); nor yet in the case of Egyptians (14) under

85

the statute 22 Hen. VIII, c. 10.) that on every panel there should be a competent number of hundredors (15); and that the particular jurors should be omni exceptione majores; not liable to objection either propter honoris re

spectum, propter defectum, propter affectum, or propter delictum (16). [*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 vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without shewing 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 (17). 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 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 shewn, if the reasons 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 challenges, though granted to the prsoner, 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 (18). However, it is held that the king need not assign 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 shew the cause: otherwise the juror shall be sworn (q) (19).

The peremptory challenges of the prisoner must however have [354] some reasonable 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 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 inten

(g) 2 Hawk. P. C. 413. 2 Hal. P. C. 271.

(15) The right to challenge for want of hundredors is now taken away by the 6 Geo. IV. e. 50. s. 13.

(16) As to qualifications of jurors in New York, see 2 R. S. 411.

(17) A peremptory challenge is not allowed ir. the trial of collateral issues. Fost, 42. Nor in any trial for a misdemeanor, 2 Harg. St. Tr. 808, and 4 H. St. Tr. 1.

As to law of New-York, see note (†) p. 352,

ante.

(18) And see a similar provision in 6 Geo. IV. c. 50. s. 29.

(19) And the practice is the same both in trials for misdemeanors and for capital offen

ces.

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 indiffe rently. Evidence is then produced to support the challenge, and according to the verdict of the two tryers, the juryman is admitted or rejected. A juryman was thus set aside in O'Coigly's trial for treason, because, upon looking at the prisoners he had uttered the words, "damned rascals. See O'Coigly's trial.

tion 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 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 & 2 Ph. & Mar. c. 10.) by this statute, 1 say, no person arraigned for felony, can be admitted to make any more than twenty peremptory challenges. But how if the 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 (4), that such challenge shall only be disregarded and overruled. Because, first, the common law doth 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 farther challenge shall 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 (20).

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 [*355] awarded as in civil 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 their evidence."

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, examined, and en forced 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) (21). 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 at 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 mirrour (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," immediately afterwards

subjoins, and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes (2) (22)." And the judges themselves are so sensible of this defect, that they never scruple to allow a

prisoner counsel to instruct him what questions to ask, or even to [*356] *ask questions for him, with respect to matters of fact: for as to matters of law, arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence, in the case of state-criminals, the legislature has directed by statute 7 W. III. c. 3. that persons indicted for such high treason, as works a corruption of the blood, or misprision thereof (except treason in counterfeiting the king's coin or seals), may make their full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge and the same indulgence, by statute 20 Geo. II. c. 30, is extended to parliamentary impeachments for high treason, which were excepted in the former act (23) (24).

(z) 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 a law of Hen. 1. meaning (I presume) chapters 47 and 48 of the code which is usually attributed to that prince. "De causis criminalibus vel capitalibus nemo quaerat 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; (See Book III. page 298.) which is

(22) The prisoner is not allowed counsel to plead his cause before the jury in any felony, whether it is capital, or within the benefit of clergy; nor in a case of petty larceny. But in misdemeanors the prisoner or defendant is allowed counsel as in civil actions, but even here the defendant cannot have the assistance of counsel to examine the witnesses, and reserve to himself the right of addressing the jury. 1 Ry. & M. C. C. 166. 3 Camp. 98.

The maxim that the judge is counsel for the prisoner, signified nothing more than that the judge shall take care that the prisoner does not suffer from the want of counsel. The judge is counsel only for public justice, and to promote that object alone all his inquiries and attention ought to be directed. Upon a trial for the murder of a male child, the counsel for the prosecution concluded his case without asking the sex of the child, and the judge would not permit him afterwards to call a witness to prove it, but, in consequence of the omission, he directed the jury to acquit the prisoner. But to the honour of that judge, it ought to be stated, that he declared afterwards in private his regret for his conduct. This case is well reinembered, but it ought never to be cited but with reprobation.

(23) And see further as to the allowance and assigning of counsel, 1 Chit. C. L. 2 ed. 407 to 411. Upon the trial of issues which do not turn upon the question of guilty or not guilty, but upon collateral facts, prisoners under a capital charge, whether for treason or felony, always were entitled to the full assist

(24) The law restricting the aid of counsel on indictments still prevails in England. It has generally been repealed in the U. S., and,

not allowable in any criminal prosecution. This will be manifest by comparing this law with a contempo rary 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 peut nyer le facit dont ill est accuse." Or, as it stands in the Lat. text, (edit 1539,) "Querelatus autem postea tenetur responde re; et habebit licentiam consulendi, si requirat ; ha into autem consilio, debet factum negare quo accusatue

est."

ance of counsel. Fost, 232. 42.

It is very extraordinary that the law of England should have denied the assistance of counsel, when it is wanted most, viz. to defend the life, the honour, and all the property of an individual. It is the extension of that maxim of natural equity, that every one shall be heard in his own cause, that warrants the admission of hired advocates in courts of justice; for there is much greater inequality in the powers of explanation and persuasion in the natural state of the human mind, than when it is improved by education and experience. Amongst professional men of established character, the difference in their skill and management is generally so inconsiderable, that the decision of the cause depends only upon the superiority of the justice in the respective cases of the litigating parties. Hence the practice of an advocate is absolutely necessary to the administration of substantial justice. An honourable barrister will never mis-state either law or facts within his own knowledge, but he is justified in urging any argument, whatever may be his own opi nion of the solidity or justness of it, which he may think will promote the interests of his client; for reasoning in courts of justice and in the ordinary affairs of life seldom admits of geometrical demonstration; but it happens not unfrequently that the same argument, which appears sophistry to one, is sound logic in the mind of another, and every day's experience proves that the opinions of a judge and an advocate are often diametrically oppoas is believed, much to the benefit of the community, and without the evils apprehended in England