[quit, not only of the appeal, but of all indictments likewise for the same offence (r).] It is not a little singular that this method of trial remained a part of our legal system till the early part of the present century. It was, however, abolished by statute (59 Geo. III. c. 46), attention having been drawn to the inconvenience of its retention, by a case which occurred in the year 1818,-in which an appeal of murder having been brought by the brother of the deceased, the party accused (who had already been acquitted on an ordinary indictment) demanded a trial by battle; though no combat actually took place, the proceedings being discontinued by the appellant (s). IV. [The fourth method of trial in criminal cases, is that by the peers of Great Britain, in the court of parliament, (or in the court of the lord high steward,) when a peer, or peeress, is charged with any treason or felony, or misprision of either. Of this enough has been said in a former chapter (t): to which we shall only now add, that in the method and regulation of its proceedings, it differs but little from the trial per patriam or by jury, of which we are about to speak; except that no special verdict can be here given (u), because the lords of parliament,—or the lord high steward, if the trial be had in his court,—are judges sufficiently competent of the law that may arise from the fact: and except, also, that the peers need not all agree in their verdict: but the greater number, consisting of twelve at the least, will conclude and bind the minority (x). V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, (r) 4 Bl. Com. 348. (8) The case referred to in the text is that of Ashford v. Thornton, reported in 1 Barn. & Ald. 405. (t) Vide sup. pp. 299, 302. (a) Kelynge, 56; stat. 7 Will. 3, c. 3, s. 11; Foster, 247. [as the grand bulwark of his liberties, is secured to him by the Great Charter: "nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terra" (y). The excellence of this method of trial holds still stronger in criminal than in civil cases: since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the Crown, in suits between the Sovereign and the subject, than in disputes between one individual and another, to settle the metes and boundaries of private property. Our law has, therefore, wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the Crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted, without check or control, by justices of oyer and terminer occasionally named by the Crown; who might then imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have with excellent forecast contrived, that no man should be called to answer to the Crown for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury (z); (y) 9 Hen. 3, c. 29. () These remarks from Blackstone (vol. iv. p. 359) are as true now as when they were written; but it is to be observed that the preparatory presentment of a grand jury is required (as the general rule) in all charges of felony, whether capital or otherwise; thongh as certain of the offences which by VOL. IV. 24 & 25 Vict. cc. 96, 97 (vide sup. p. 330), are confided to the summary jurisdiction of the justices of the peace, are felonious, these may be considered as exceptions. On the other hand the modern provisions under which the felonious offence of larceny may, in certain cases, be so disposed of, are no innovation on the principle mentioned in the text, EE [and that the truth of every accusation, whether preferred in the shape of indictment or information, should afterwards be brought to trial and confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. What has been already said of juries in general, and the trial thereby in civil cases, will greatly shorten our present remarks with regard to the trial of criminal suits, indictments and informations. Which trial we shall consider in the same method that we did the former,-by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.] When, therefore, a prisoner has pleaded not guilty to the indictment or information, the next step is to impanel and swear for that purpose a jury,-called, (when intended to distinguish them from a grand jury,) a petty jury,―consisting of twelve persons, who must be of the same county where the indictment was found (a); and whose qualification, in other respects, is the same as that of jurors in civil causes. But it is a rule that no person who was of the grand jury by which the bill was found, is competent to sit upon the petty jury (b). If the proceedings are before the Queen's Bench, an interval after the plea elapses before the trial; during which, process issues for summoning a jury, as in civil causes: and the trial is either at bar (c) or at nisi prius, as mentioned in a former place (d). But if the proceedings and trial are in a court of oyer and terminer and general gaol delivery, the sheriff, (by virtue of a general precept, directed to him beforehand by the judges of assize,) inasmuch as the consent of the person charged, or, in the case of a juvenile offender, of his parents or guardians, must be given before such course may be taken (vide sup. pp. 333, 334). (a) 2 Hale, P. C. 264; Hawk. P. C. b. 2, c. 40. As to the finding of the indictment, vide sup. p. 361. (b) 25 Edw. 3, st. 5, c. 3. (c) On an information ex officio, the attorney-general is entitled to demand a trial at bar, if he thinks proper. (1 Chit. Cr. L. 848.) (d) Vide sup. p. 308. returns to such court, a panel of at least forty-eight jurors, to try all issues, whether criminal or civil, at that session and therefore it is in such courts usual to try all persons charged with felony immediately or soon after their arraignment (e). And a similar practice-both as to the summoning jurors and as to the time of trial after arraignment-prevails in the case of such persons as are tried at the sessions of the peace. As to misde meanors at the assizes or sessions, it was formerly not customary, (unless by consent of parties, or where the defendant was actually in gaol,) to try persons indicted thereof, at the same sessions in which they had pleaded not guilty to the indictment. It is now, however, provided by 14 & 15 Vict. c. 100, s. 27, that no person prosecuted, shall be entitled to traverse (that is, postpone) the trial of any indictment found against him at any session of the peace, of oyer and terminer, or of gaol delivery (ƒ); but that if the court,-upon the application of such person or otherwise,-shall be of opinion that he ought to be allowed a further time, either to prepare his defence or otherwise, such court may adjourn the trial to the next subsequent session, on such terms as to bail or otherwise, as shall seem meet; and may respite the recognizances of the prosecutor's witnesses accordingly. In misdemeanors, also, where the record is in the Queen's Bench, we may remark, that the trial may, by leave of the court, be by a special jury; but this is not allowed in misdemeanors tried under commissions of oyer and terminer and gaol delivery, or at the sessions of the peace; (e) 2 Hale, P. C. 263; 2 Arch. Just. 18. And see 6 Geo. 4, c. 50, s. 13; 7 Geo. 4, c. 64, s. 21; 15 & 16 Vict. c. 76, s. 105. (f) To traverse properly signifies to plead in denial, and, therefore, in every case, a party who pleads not guilty to an indictment must also be said to traverse the indictment; but the meaning of the statute is, that his traverse shall not entitle him to a postponement. In the practice of the criminal courts, the word has been ordinarily thus used in connection with a postponement of the trial. nor is a special jury ever allowed in cases of treason or felony. In connection with the subject of trial, we may remark here, that in the case of treason generally, (but with the exception of an attempt to assassinate the sovereign,) it is enacted by statute 7 Will. III. c. 3, that no person shall be tried for the same, or for any misprision thereof, unless the indictment be found within three years after the offence committed; and that the prisoner shall have the same compulsory process to bring in his witnesses for him, as was usual to compel their appearance against him. And by statutes of 7 Anne, c. 21, and 6 Geo. IV. c. 50, s. 21, the prisoner is in general entitled,—in case of treason and misprision thereof,-to have a copy of the indictment, and a list of the witnesses to be produced against him and of the jurors, delivered to him ten days before the trial (7). But by 5 & 6 Vict. c. 51 (m), it is provided, that in all cases of treason in compassing or imagining any bodily harm tending to the death or destruction, maiming or wounding, of the Queen, (and in all cases of misprision of any such treason,) where the overt act or acts shall be an attempt to injure in any manner the person of the Queen, the person charged shall be indicted, arraigned, tried, and attainted in the same manner and according to the same course and order of trial in every respect, and upon the like evidence, as (1) Sce R. v. Frost, 2 Mood. C. C. 140. In all felonies (treason and misprision thereof excepted), the allowance of a copy of the indictment, and a list of the witnesses, is in the discretion of the court; though, in practice, they are always allowed both in the case of felonies and misdemeanors. (1 Chit. Cr. L. 403.) But in the case of prosecutions for misdemeanors instituted by the attorney or solicitor-general, such copy and list are expressly required by 60 Geo. 3 & 1 Geo. 4, c. 4, s. 8, to be given to the party prosecuted, free of expense, on his application. As to the right of the accused person to have copies of the depositions taken, vide sup. p. 358. (m) Vide sup. p. 166. See also 39 & 40 Geo. 3, c. 93. |