| Chap. 186. |
Jurors, and Challenges to them.
Jurors, and Challenges to them. CHAP.
CLXXXVI.
' THis is that happy way of tryal, that notwithstanding
all shakings
' of state and Revolutions of times, hath been continued from
' time beyond all memory to this present day, the beginning whereof
' no History specifies, it being contemporary with the foundation of this
' State, and one of the pillars of it both as to Age and Consequence:
' that Maxim, Ad quæstionem facti respondent Juratores, being
as ancient
' and fundamental as that other, Ad quæstionem Juris respondent
Judices;
' the one being as liable to be controlled by a Writ of Error as the other
' by an Attaint, both Essential to the Justice of this Nation. And
although
' Jurors are in other things subject to His Majesties Commissionated
' Judges, yet they are not so in point of Judgment, which after some
' pangs and throws was happily asserted in the case of the Habeas Corpora
' prosecuted by Bushel and others, by a sacred and nigh an unanimous
Opinion
' of all the Judges. |
519
§. 1.
Trial by
Jurors. |
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' This Tryal is the Birthright of every Subject
of England, and is put
' to him by way of question, How wilt thou be tried? Which is thought
' to be so just and equal for him to chuse, that the Waiver of it is revenged
' with paine fort & dure; no punishment being judged too severe
for one
' that refuseth so just a Trial. |
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' So happy is our Condition, that every Englishman
(in matters of
' Crime and Forfeitures) passes a double Jury; neither to my apprehension
' doth the Cousner and care of the first Inquest differ from the last,
' but only in consequence brought on by Custom, the Indictment being as
' much found to be true by the one as the other. |
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' These Jurors are returned by the Sheriff by virtue
of a Precept to that
' purpose, against which at common Law both the King and the
' party had two lawful Challenges, one peremptory, to the other upon
' cause shewed. |
§. 2.
Challenge. |
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' But forasmuch as Life, Liberty and Estate are
all at stake in cases of
' felony, it is provided by 33 E. 1. that the King shall not challenge
peremptorily,
' but must shew his cause, which shall be enquired and tried
' if true, as alledged, and if found otherwise, shall be rejected. |
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' Yet the peremptory Challenge remaineth for the
party, although not
' so amply as at Common Law, according to which he might challenge
' 35 without cause shewed, and as many more as he could upon cause
' shew: but now by the Statute of 32 H. 8. 3. this peremptory
Challenge
' is reduced to 20; to challenge peremptorily beyond which number,
' is to waive his Trial; and to stand unto which is a great offence,
' and grievously punished in our Law, that person being judged unworthy
' of Life, whose Innocency is not clear to endure an English Trial. |
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' The Jurors ought to be fairly impanelled, and
duly returned, by
' the Sheriff or other sworn Bailiff, and not at the nomination of the
' Juror himself or any other, by 11 H. 4. 9. or else the Indictment
is
' void by that Statute. And they are to be liberi & legales
homines: for
' first they must be liberi, not Villains born: 2. legales,
not convicted or
' attainted, and so slaves to punishment as well as to their own Vices;
' and an Outlary in a Personal Action seems to be not only a good
' Challenge, but also good cause to set aside the Indictment. Jones
Rep.
' 196. |
§. 3.
Who good
Jurors. |
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