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CHAPTER XIII,

The Subject continued.

AFTER having offered to the reader, in the preceding chapter, such general considerations as I thought necessary, in order to convey a more just idea of the spirit of the criminal judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particulars.

When a person is charged with a crime, the magistrate, who is called in England a justice of the peace, issues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him : he must then hear him, and take down in writing his answers, together with the different informations. If it appears, on this examination, either that the crime laid to the charge of the person who is brought before the justice was not committed, or that there is no just ground to suspect him of it, he must be set absolutely at liberty; if the contrary results from the examination, the party accused must give bail for his appearance to answer to the

charge, unless in capital cases ; for then he must, for safer custody, be really committed to prison, in order to take his trial at the next sessions.

But this precaution, of requiring the examination of an accused person, previous to his imprisonment, is not the only care which the law has taken in its behalf; it has farther ordained, that the accusation against him should be again discussed, before he can be exposed to the danger of a trial. At every session the sheriff appoints what is called the grand jury. This assembly must be composed of more than twelve men, and less than twenty-four; and is always formed out of the most considerable persons in the county. Its function is, to examine the evidence that has been given in support of every charge: if twelve of those persons do not concur in the opinion that an accusation is well grounded, the party is immediately discharged; if, on the contrary, twelve of the grand jury find the proofs sufficient, the prisoner is said to be indicted, and is detained in order to go through the remaining process.

On the day appointed for his trial, the prisoner is brought to the bar of the court, where the judge, after causing the bill of indictment to

be read in his presence, must ask him how he would be tried; to which the prisoner answers, By God and my country; by which he is understood to claim to be tried by a jury, and to have all the judicial means of defence to which the law entitles him. The sheriff then appoints what is called the petit jury: this must be composed of twelve men, chosen out of the county where the crime was committed, and possessed of a landed income of ten pounds a year: their declaration finally decides on the truth or falsehood of the accusation.

As the fate of the prisoner thus entirely depends on the men who compose this jury, justice requires that he should have a share in the choice of them; and this he has through the extensive right which the law has granted him, of challenging, or objecting to, such of them as he may think exceptionable.

These challenges are of two kinds. One, which is called the challenge to the array,

has for its object to have the whole pannel set aside : it is proposed by the prisoner when he thinks that the sheriff who formed the pannel is not indifferent in the cause ; for instance, if he thinks he has an interest in the prosecution, that he is related to the prosecutor, or

in general to the party who pretends to be injured.

The other challenges are called, to the polls (in capita): they are exceptions proposed against the jurors, severally, and are reduced to four heads by Sir Edward Coke.—That which he calls propter honoris respectum, may be proposed against a lord empannelled on a jury; or he might challenge himself. That propter defectum takes place when a juror is legally incapable of serving that office, as if he is an alien; if he has not an estate sufficient to qualify him, &c. That propter delictum has for its object to set aside any juror convicted of such crime or misdemeanor as renders him infamous, as felony, perjury, &c. That propter affectum is proposed against a juror who has an interest in the conviction of the prisoner: one, for instance, who has an action depending between hiin and the prisoner; one who is of kin to the prosecutor, or bis counsel, attorney, or of the same society or corporation with him, &c. *

In fine, in order to relieve even the imagination of the prisoner, the law allows him,

* When a prisoner is an alien, one half of the jurors must also be aliens: a jury thus formed is called a jury de medietate lingue

independently of the several challenges abovementioned, to challenge peremptorily, that is to say, without showing any cause, twenty jurors successively.*

When at length the jury is formed, and they have taken their oath, the indictment is opened, and the prosecutor produces the proofs of his accusation. But, unlike to the rules of the civil law, the witnesses deliver their evidence in the presence of the prisoner: the latter may put questions to them; he may also produce witnesses in his behalf, and have them examined upon oath. Lastly, he is allowed to have a counsel to assist him, not only in the discussion of any point of law which may be complicated with the fact, but also in the investigation of the fact itself, and who points out to him the questions he ought to ask, or even asks them for him.t

Such are the precautions which the law has devised for cases of common prosecutions ;

* When these several challenges reduce too much the number of the jurors on the pannel, which is fortyeight, new ones are named on a writ of the judge, who are named the tales, from those words of the writ, decem or octo tales.

† This last article, however, is not established by law, except in cases of treason; it is done only through custom and the indulgence of the judges.

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