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CHALLENGES to the array are at once an exception to the whole panel, in which the jury are arrayed or set in order by the sheriff in his return; and they may be made upon account of partiality or some default in the sheriff, or his under-officer who arrayed the panel. And, generally speaking, the same reasons that before the awarding the venire were sufficient to have directed it to the coroners or clisors, will be also sufficient to quash the array, when made by a person or officer of whose partiality there is any tolerable ground of suspicion. Also, though there be no personal objection against the sheriff, yet if he arrays the panel at the nomination, or under the direction of either party, this is good cause of challenge to the array. Formerly, if a lord of parliament had a cause to be tried, and no knight was returned upon the jury, it was a cause of challenge to the array": but an unexpected use having been made of this dormant privilege by a spiritual lord', it was abolihed by statute 24 Geo. II. c. 18. But still, in an attaint, a knight must be returned on the jury'. Also, by the policy of the antient law, the jury was to come de vicineto, from the neighbourhood of the vill or place where the cause of action was laid in the declaration : and therefore some of the jury were obliged to be returned from the hundred in which such vill Jay; and, if none were returned, the array might be challenged for defect of hundredors. Thus the Gothic jury, or nembda, was also collected out of every quarter of the country: binos, trinos, vel etiam fenos, ex fingulis territorii quadrantibus'.” For, living in the neighbourhood, they were properly the very country, or pais, to which both parties had appealed ; and were supposed to know beforehand the characters of the parties and witneses, and therefore the better knew what credit to give to the facts alleged in evidence. But this convenience was overbalanced by another very natural and almost unavoidable inconvenience ; that jurors, coming out of the immediate neighbourhood, would be apt 1 Co. Litt. 156. Selden baronage. II. 23 Geo. Il. B. R.

1 Co. Litt, 156. K. v. Bilbop of Worcester. M. Stiernhook de juro Gorb, 1, 1.6.4.

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to intermix their prejudices and partialities in the trial of
right. And this our law was so sensible of, that it for a long
time has been gradually relinquishing this practice ; the num-
ber of neceffary hundredors in the whole panel, which in the
reign of Edward III. were constantly fix!, being in the time
of Fortescue " reduced to four. Afterwards indeed the statute
35 Hen. VIII. c. 6. restored the antient number of fix, but
that clause was soon virtually repealed by statute 27 Eliz.
c. 6. which required only two. And fir Edward Coke also
gives us such a variety of circumstances, whereby the courts
permitted this necessary number to be evaded, that it appears
they were heartily tired of it. ' At length, by statụte 4 & 5
Ann. c. 16. it was entirely abolished upon all civil actions,
except upon penal statutes; and upon those also by the 24
Geo. II. c. 18. the jury being now only to come de corpore
comitatus, from the body of the county at large, and not de
vicineto, or from the particular' neighbourhood. The array
by the antient law may also be challenged, if an alien be party
to the suit, and, upon a rule obtained by his motion to the
court for a jury de medietate linguae, such a one be not returne
ed by the sheriff, pursuant to the statute 28 Edward III. C. 13.
enforced by 8 Hen. VI. c. 29. which enact, that where either
party is an alien born, the jury shall be one half denizens,
and the other aliens (if so many be forthcoming in the place)
for the more impartial trial. A privilege indulged to strangers
in no other country in the world; but which is as antient
with us as the time of king Ethelred, in whose statute de
monticolis Wallie (then aliens to the crown of England)
cap. 3. it is ordained, that “ duodeni legales homines, quorum
fex Walli et sex Angli erunt, Anglis et Wallis jus dicunto.
But where both parties are aliens, no partiality is to be pre-
sumed to one more than another; and therefore it was re-
solved soon after the statute 8 Hen. VI. W that where the
issue is joined between two aliens (unless the plea be had be-
fore the mayor of the staple, and thereby subject to the restric-
tions of statute 27 Edw. III. st. 2. c. 8.) the jury fhall all
be denizens. And it now might be a question, how far the
i Gilb. Hift. C. P. c. 8.

vi Inft. 157.
u de Laud. LL. 6. 25.

w Yearb. 21 Hen. VI. 4

statute

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statute 3 Geo. II. c. 25. (before referred to) hath in civil causes undesignedly abridged this privilege of foreigners, by the positive directions therein given concerning the manner of impanelling jurors, and the persons to be returned in such panel. So that (unless this statute is to be construed by the fame equity, which the statute 8 Hen. VI. c. 29. declared to be the rule of interpreting the statute 2 Hen. V. st. 2. C. 3. concerning the landed qualification of jurors in suits to which áliens were parties) a court might perhaps hesitate, whether it has now a power to direct a panel to be returned, de medietate linguae, and thereby alter the method prescribed for striking a special jury, or balloting for common jurors.

CHALLENGES to the polls, in capita, are exceptions to particular jurors; and seem to answer the recufatio judicis in the civil and canon laws: by the constitutions of which a judge might be refused upon any suspicion of partiality'. By the laws of England also, in the times of Bracton Y and Fleta ?, a judge might be refused for good cause; but now the law is otherwise, and it is held that judges and justices cannot be challenged". For the law will not suppose a possibility of bias or favour in a judge, who is already sworn 19 administer impartial justice, and whose authority greatly depends upon that presumption and idea. And fhould the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such misbehaviour would draw down a heavy censure from those, to whom the judge is accountable for his conduct.

But challenges to the polls of the jury (who are judges of fad) are reduced to four heads by sir Edward Coke 6: propter honoris respectum ; propter defectum ; propter affectum; and propter deliftuin.

1. Propter honoris respectum ; as if a lord of parliament be impanelled on a jury, he may be challenged by either party, or he may challenge himself.

* Cod. 3. 1. 16. Decretal. l. 2.6. 28. - 21. 6. c. 37. 6. 36.

a Co. Lict. 294. y 1.5.6.15. . . o, Inft. 15h.

2. Propter

2. Propter defectum; as if a juryman be an alien born, this is defect of birth; if he be a llave or bondman, this is defect of liberty, and he cannot be liber, et legalis homo. Under the word homo. also, though a name common to both sexes, the female is however excluded, propter defectum fexus : except when a widow feigns herself with child, in order to exclude the next heir, and a supposititious birth is suspected to be intended; then upon the writ de ventre infpiciendo, a jury of women is to be impanelled to try the question, whether with child or notc. But the principal deficiency is defect of estate, sufficient to qualify him to be a juror. This depends upon a variety of statutes. And, first, by the statute Westm. 2. 13 Edw. I. c. 38. none shall pafs on juries in assises within the county, but such as may difpend 20s by the year at the least; which is increased to 40s by the statute 21 Edw. I. ft. I. and 2 Hen. V. st. 2. c. 3. This was doubled by the statute 27 Eliz. c. 6. which requires in every such case the jurors to have estate of freehold to the yearly value of 41 at the least. But, the value of money at that time decreasing very considerably, this qualification was raised by the statute 16 & 17 Car. II. c. 3. to 20l per annum, which being only a temporary act, for three years, was suffered to expire without renewal, to the great debasement of juries. However by the statute 4 and 5 W. & M. c. 24. it was again raised to Tol per annum in England and 61 in Wales, of freehold lands or copybold; which is the first time that copyholders (as such) were admitted to serve upon juries in any of the king's courts, though they had before been admitted to serve in some of the sheriff's courts, by statutes 1 Ric. III. c. 4. and 9 Hen. VII. c. 13. And, lastly, by statụte 3 Geo. II. c. 25. any leaseholder for the term of five hundred years absolute, or for any term determinable upon life or lives, of the clear yearly value of 20l per annum over and above the rent reserved, is qualified to serve upon juries (6). When the jury is de medietate

Cro. Eliz. 566.

(6) Upon account of the small number of freeholders in the county of Middlesex, and the frequent occasion for juries at West. minster in that county, it was enacted by 4 Geo. II. c.7. that a

leaseholder

lingune, that is, one moiety of the English tongue or nation,

and the other of any foreign one, no want of lands shall be [ 363 7 cause of challenge to the alien; for, as he is incapable to

hold any, this would totally defeat the privilege d.

3. JURORS may be challenged propter affic?im, for sus. picion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is fuch, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour: as, that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward or attorney, or of the same fociety or corporation with him; all these are prins cipal causes of challenge;, which, if true, cannot be overruled, for jurors must be omni exceptione majores. Challenges to the favour, are where the party hath no principal challenge; but objects only some probable circumstances of suspicion, as acquaintance and the like'; the validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favourable or unfavourable. The triors, in case the first man called be challenged, are two indifferent persons named by the court; and, if they try one man and find him indifferent, he shall be sworn; and then he and the

See Stat. 2 Hen. V. ft. 2. c. 3.
8 Hen. VI. c. 29.
e Finch. L. 401.

In the nembda, or jury of the an.
tient Goths, three challenges only were
allowed to the favour, but the principal

challenges were indefinite, “ Licebat palam excipere, et semper ex probabili caufa tres repudiari; etiam plures ex “ caufa praegeantiet manifefia."(Stiera. hook. l. 1. c. 4.)

leaseholder for any number of years, if the improved annual value of his lease be sol. above all ground-rents and other reservations, fhall be liable to serve upon juries for that county. By the 3, Geo. II. c. 25. persons impanelled upon any jury within the city of London shall be householders, and poffefsed of fome estate either real or personal of the value of icol.

two

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