court above. So that now in almost every civil cause the clause of nisi prius is left out of the writ of venire facias, which is the sheriff's warrant to warn the jury: and is inserted in another part of the proceedings, as we shall see presently.

For now the course is to make the sheriff's venire returnable on the last return of the same term wherein issue is joined, viz.: Hilary or Trinity terms; which, from the making up of the issues therein, are usually called issuable terms. And he returns the names of the jurors in a panel (a little pane, or oblong piece of parchment) annexed to the writ. This jury is [*354] not summoned, and therefore, not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corpora juratorum, and in the king's bench a distringas, commanding the sheriff to have their bodies or to distrain them by their lands and goods, that they may appear upon the day appointed. The entry therefore, on the roll or record is, (k)" that the jury is respited, through defect of the jurors, till the first day of the next term, then to appear at Westminster; unless before that time, viz.: on Wednesday the 4th of March, the justices of our lord the king, appointed to take assizes in that county, shall have come to Oxford, that is, to the place assigned for holding the assizes." And thereupon the writ commands the sheriff to have their bodies at Westminster on the said first day of next term, or before the said justices of assize, if before that time they come to Oxford, viz.: on the 4th of March aforesaid. And, as the judges are sure to come and open the circuit commissions on the day mentioned in the writ, the sheriff returns and summons this jury to appear at the assizes, and there the trial is had before the justices of assize and nisi prius: among whom (as hath been said) (7) are usually two of the judges of the courts of Westminster, the whole kingdom being divided into six circuits, (4) for this purpose. And thus we may observe that the trial of common issues, at nisi prius, which was in its original only a collateral incident to the original business of the justices of assize, is now, by the various revolutions of practice, become their principal civil employment: hardly anything remaining in use of the real assizes but the name.

If the sheriff be not an indifferent person; as if he be a party in the suit, or be related either by blood or affinity to either of the parties, he is not then trusted to return the jury, but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff, to execute process when he is deemed an improper person. If any exception lies to the coroners, the venire shall be directed to two clerks of the court, or two persons of the county *named by the court, and sworn. (m) And these two, [*355] who are called elisors, or electors, shall indifferently name the jury, and their return is final; no challenge being allowed to their array.

Let us now pause awhile, and observe (with Sir Matthew Hale) (n) in these first preparatory stages of the trial, how admirably this constitution is adapted and framed for the investigation of truth, beyond any other method of trial in the world. For, first, the person returning the jurors is a man of some fortune and consequence; that so he may be not only the less tempted to commit wilful errors, but likewise be responsible for the faults of either himself or his officers; and he is also bound by the obligation of an oath faithfully to execute his duty. Next, as to the time of their return: the panel is returned to the court upon the original venire, and the jurors are to be summoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their sufficiency or insufficiency, characters, connections and

(k) Append. No. II, § 4. (n) Hist. C. L. c. 12.

(1) See page 59.

(m) Fortesc. de Laud. LL. c. 25. Co. Litt. 158.

(4) Now seven.

relations, that so they may be challenged upon just cause; while at the same time by means of the compulsory process (of distringas, or habeas corpora) the cause is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance; which in causes of weight and consequence is at the bar of the court; but in ordinary cases at the assizes, held in the county where the cause of action arises, and the witnesses and jurors live: a provision most excellently calculated for the saving of expense to the parties. For though the preparation of the causes in point of pleading is transacted at Westminster, whereby the order and uniformity of proceedings is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one attorney being able to transact the business of forty clients. But the troublesome and most expensive attendance is that of jurors and witnesses at the trial; which, therefore, is brought home to them. in the country where most of them inhabit. Fourthly, the persons before *whom they are to appear, and before whom the trial is to be held, are [*356] the judges of the superior court, if it be a trial at bar; or the judges of assize, delegated from the courts at Westminster by the king, if the trial be held in the country: persons, whose learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no small influence upon the multitude. The very point of their being strangers in the county is of infinite service, in preventing those factions and parties which would intrude in every cause of moment, were it tried only before persons resident on the spot, as justices of the peace, and the like. And the better to remove all suspicion of partiality, it was wisely provided by the statutes 4 Edw. III, c. 2, 8 Ric. II, c. 2, and 33 Hen. VIII, c. 24, that no judge of assize should hold pleas in any county wherein he was born or inhabits. (5) And as this constitution prevents party and faction from intermingling in the trial of right, so it keeps both the rule and the administration of the laws uniform. These justices, though thus varied and shifted at every assizes, are all sworn to the same laws, have had the same education, have pursued the same studies, converse and consult together, communicate their decisions and resolutions, and preside in those courts which are mutually connected and their judgments blended together, as they are interchangeably courts of appeal or advice to each other. And hence, their administration of justice and conduct of trials are consonant and uniform; whereby that confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment. But let us now return to the

assizes.

When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assizes, and enter it with the proper officer, in order to its being called on in course. If it be not so entered, it cannot be tried; therefore it is in the plaintiff's breast to delay any trial by not carrying down the record: unless the defendant, being fearful of such neglect in the plaintiff, and willing to discharge himself from the action, will himself undertake to bring on the trial, giving proper notice to the plaintiff. Which proceeding is called the trial by proviso; by reason of the clause then [*357] inserted in the sheriff's venire, viz., "proviso, provided that if two writs come to your hands (that is, one from the plaintiff and another from the defendant), you shall execute only one of them." But this practice hath begun to be disused, since the statute 14 Geo. II, c. 17, which enacts, that if, after issue joined, the cause is not carried down to be tried according to the course of the court, the plaintiff shall be esteemed to be nonsuited, and judgment shall be given for the defendant as in case of a nonsuit. In case the plaintiff intends to try the cause, he is bound to give the defendant (if he lives within forty miles of London) eight days' notice of trial; and, if he lives at a greater distance, then

(5) This is no longer the law.

fourteen days' notice, in order to prevent surprise: and if the plaintiff then changes his mind, and does not countermand the notice six days before the trial, he shall be liable to pay costs to the defendant for not proceeding to trial, by the same last-mentioned statute. The defendant, however, or plaintiff, may, upon good cause shown to the court above, as upon absence or sickness of a material witness, obtain leave upon motion to defer the trial of the cause till the next assizes. (6)

But we will now suppose all previous steps to the regularly settled, and the cause to be called on in court. The record is then handed to the judge, to peruse and observe the pleadings, and what issues the parties are to maintain and prove, while the jury is called and sworn. To this end the sheriff returns his compulsive process, the writ of habeas corpora, or distringas, with the panel of jurors annexed, to the judge's officer in court. The jurors contained in the panel are either special or common jurors. Special juries were originally introduced in trials at bar, when the causes were of too great nicety for the discussion of ordinary freeholders; or where the sheriff was suspected of partiality, though not upon such apparent cause as to warrant an exception to him. He is in such cases, upon motion in court and a rule granted thereupon, to attend the prothonotary or other proper officer with his freeholder's book; and the officer is to take *indifferently forty-eight of the principal free[*358] holders in the presence of the attorneys on both sides; who are each of them to strike off twelve, and the remaining twenty-four are returned upon the panel. By the statute 3 Geo. II, c. 25, either party is entitled upon motion to have a special jury struck upon the trial of any issue, as well at the assizes. as at bar; he paying the extraordinary expense, unless the judge will certify (in pursuance of the statute 24 Geo. II, c. 18) that the cause required such special jury.

A common jury is one returned by the sheriff according to the directions of the statute 3 Geo. II, c. 25, which appoints that the sheriff or officer shall not return a separate panel for every separate cause, as formerly; but one and the same panel for every cause to be tried at the same assizes, containing not less than forty-eight, nor more than seventy-two jurors: and that their names, being written on tickets, shall be put into a box or glass; and when each cause is called, twelve of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused; or unless a previous view of the messuages, lands, or place in question, shall have been thought necessary by the court (o) in which case six or more of the jurors returned, to be agreed on by the parties, or named by the judge or other proper officer of the court, shall be appointed by special writ of habeas corpora or distringas to have the matters in question shown to them by two persons named in the writ; and then such of the jury as have had the view, or so many of them as appear, shall be sworn on the inquest previous to any other jurors. These acts are well calculated to restrain any suspicion of partiality in the sheriff, or any tampering with the jurors when returned.

As the jurors appear, when called, they shall be sworn, unless challenged by either party. Challenges are of two sorts; challenges to the array, and challenges to the polls.

*Challenges to the array are at once an exception to the whole panel, [*359] 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,

(0) Stat. 4 Anne. c. 16.

(6) This statute, so far as relates to judgment as in case of a nonsuit, is repealed by the Common Law Procedure Act, 1852, which however provides a mode in which a plaintiff, who unreasonably delays his suit, may be forced to proceed to trial, or have judgment for costs against him.

or his under-officer who arrayed the panel. (7) And generally speaking, the same reasons that, before the awarding the venire, were sufficient to have directed it to the coroners or elisors, 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: (p) but an unexpected use having been made of this dormant privilege by a spiritual lord, (2) it was abolished by statute 24 Geo. II, c. 18. But still, in an attaint, a knight must be returned on the jury. (r) Also, by the policy of the ancient 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 lay; 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 senos ex singulis territorii quadrantibus." (s) For living in the neighborhood, 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 witnesses, and therefore they 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 *to intermix their prejudices and partialities in the trial of right. And [*360] this our law was so sensible of, that it for a long time has been gradually relinquishing this practice; the number of necessary hundredors in the whole panel, which, in the reign of Edward III, were constantly six, (t) being in the time of Fortescue (u) reduced to four. Afterwards, indeed, the statute 35 Hen. VIII, c. 6, restored the ancient number of six, but that clause was soon virtually repealed by statute 27 Eliz. c. 6, which required only two. And Sir Edward Coke (v) 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 statute 4 and 5 Ann. c. 6, 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 ancient 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 linguæ, such a one be not returned by the sheriff, pursuant to the statute 28 Edw. 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 ancient with us as the time of King Ethelred, in whose statute de monticolis Wallic (then aliens to the crown of England) cap. 3, it is ordained, that "duodeni legales homines, quorum sex Walli et sex Angli erunt, Anglis et Wallis jus dicunto." But where both par(p) Co. Litt. 156. Seld. on Baronage, ii. 11. (q) K. vs. Bishop of Worcester, M. 23 Geo. II, B. R. Stiernhook, de jure Goth. I. 1, c. 4.

(v) 1 Inst. 157.

(r) Co. Litt. 156. (t) Gilb. Hist. C. P. c. 8.

(u) De Laud. LL. c. 25.

(7) Upon a challenge to the array, if the facts are denied the court appoints triers, and if they pronounce the cause of challenge unfounded, it is overruled. If the facts are admitted, the court passes upon their sufficiency, and either quashes the panel or overrules the challenge. Gardner v. Turner, 9 Johns., 260. In the United States it is believed that an objection which would be good as a challenge to the array, is generally raised by motion to quash or set aside the panel.

ties are aliens, no partiality is to be presumed to one more than another; and therefore it was resolved soon after the statute 8 Hen. VI, (w) that where the issue is joined between two aliens (unless the plea be had before the mayor of the staple, and thereby subject to the restrictions of statute 27 Edw. III, st. 2, c. 8), the jury shall all be denizens. And it now might be a question, how far the statute 3 Geo. II, c. 25 (before referred to), hath in civil causes

[*361] 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 same 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 qualifications of jurors in suits to which aliens were parties) a court might perhaps hesitate whether it has now a power to direct a panel to be returned de medietate linguæ, and thereby alter the method prescribed for striking a special jury, or balloting for common jurors. (8)

Challenges to the polls, in capita, are exceptions to particular jurors; and seem to answer to the recusatio judicis in the civil and canon laws; by the constitutions of which a judge might be refused upon any suspicion of partiality. (x) By the laws of England, also, in the times of Bracton (y) and Fleta, (2) 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. (a) For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should 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 fact) are reduced to four heads by Sir Edward Coke; (b) propter honoris respectum; propter defectum; propter affectum; and propter delictum.

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.

*2. Propter defectum; as if a juryman be an alien born, this is de[*362] fect of birth; if he be a slave 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 sexus: except when a widow feigns herself with child, in order to exclude the next heir, and a suppositious birth is suspected to be intended; then upon the writ de ventre inspiciendo, a jury of women is to be impanelled to try the question, whether with child or not. (c) 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 of West. 2, 13 Edw. I, c. 38, none shall pass on juries in assizes within the county, but such as may dispend 20s. by the year at the least; which is increased to 40s. by the statutes 21 Edw. I, st. 1, 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 and 17 Car. II, c. 3, to 20%. 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. and M. c. 24, it was again raised

(w) Year-book, 21 Hen. VI, 4.

(x) Cod. 3, 1, 16. Decretal, l. 2, t. 23, c. 36. (v) L. 5, t. 5, c. 15. (b) 1 Inst. 156. (c) Cro. Eliz. 566.

(z) L. 6, c. 37. (a) Co. Litt. 294.

(8) By 6 Geo. IV, c. 50, provision is made for a jury de medietate linguæ. In the United States, generally, alienage is a ground for excluding a juror whatever the citizenship of the parties to the suit. Proffatt on Jury Trial, § 116.