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ment in Uie selection of jurors, nnd Uie undue 

 prejudices arising from public opinion, has thrown 

 additional guards round Uie party accused. He 

 is not only entitled to be tried by good and law- 

 ful men, of Uie neigh bourltood where the crime is 

 alleged to have been committed, but to be con- 

 tiontrd with the witnesses, and to have, in capital 

 ( ;i-fs, some privileges, which are not allowed either 

 in rivil cases or in offences of a subordinate char- 

 acter. And, in the first place, the right of challenge, 

 which, though it exists for many purposes in civil 

 trials, is of far more consequence and extent in 

 criminal trials. A challenge is, properly speaking, 

 an objection or exception to a juror, or to the whole 

 jury, as incompetent to sit in a trial. It is of two 

 sorts : the first is a challenge to the array, or an 

 exception to the whole panel or list of jurors, as they 

 are arrayed or set in order by the sheriff in his 

 return. And it may be taken on account of the par- 

 tiality of the sheriff, when he selects the jury ,or of some 

 default, omission, or illegality of himself or of some 

 other officer or functionary concerned in arraying or 

 returning the panel. This challenge may be either 

 for a principal cause or to the favour, the former of 

 which is founded upon positive proof or presumption 

 of impropriety ; the latter is founded upon less strong 

 presumption or suspicion and therefore properly to 

 be inquired into, or to be decided by the sound dis- 

 cretion of the triers. Secondly, the other sort of 

 challenge (which also may be for a principal cause 

 or to the favour) is a dial lenge to the polls, that is 

 an exception to particular jurors, answering in some 

 degree to the recusatio judicis of the civil and canon 

 law. Challenges to the polls, at common law, have 

 been reduced to four sorts : 1. Challenge proptcr 

 honoris respectum, or in respect to nobility ; as, if a 

 lord or peer of the realm in England be empan- 

 neled on a jury, he may be challenged by either 

 party, or may challenge himself. 2. Challenge 

 propter defectum, or for want of proper qualifica- 

 tions ; as if a person be an alien or a slave ; or in 

 cases where he is required to be a freeholder, if he is 

 not such ; or is not of a suitable age, as a minor; or is 

 a female, for females are not allowed to be jurors ; 

 or is convicted of an infamous crime, or is otherwise 

 disqualified. 3. Challenge propter ajfectum, for sus- 

 picion of bias or partiality. This may be a principal 

 challenge, as has been already stated, when there is 

 pregnant proof or presumption of partiality or of 

 malice, as that a juror is of kindred to either party 

 ( at the common law, in the ninth degree) ; that he 

 lias already prejudged the cause, as an arbitrator ; 

 that lie has an interest in the cause ; that he has 

 taken money for his verdict ; that he has formerly, 

 as a juror, tried the same cause; and that he is the 

 servant, master, attorney, or counsel of one of the 

 parties. A challenge to the polls for favour (which sup- 

 poses a doubt of impartiality) is where the party has 

 no principal cause of challenge, but has suspicion of 

 favour, and offers circumstances in support of such 

 suspicion. In such a case, the validity of the objec- 

 tion is, by the common law, left to the determination 

 of triers, whose office it is to decide whether the 

 juror who is objected to is favourable or unfavour- 

 able, or, rather, whether he stand indifferent between 

 the parties. The triers, in case the first man called 

 as a juror is challenged, are two indifferent persons, 

 named by the court ; and if they try one man, and 

 find him indifferent, he is sworn, and then he and the 

 two first triers try the next who is objected to ; and 

 whcii a second is found indifferent, those two who 

 are sworn as jurors become the triers of all the others 

 who are objected to, in lieu of the two triers first 

 chosen. 4. Challenge propter delictum, or on ac- 

 count of some crime, of which the person called as 



a juror hns been guilty, and which imports a disa- 

 bility and discredit as a juror. This applies to cases 

 of a capital nature, and other infamous crimes, such 

 as treason, felony, perjury, conspiracy, and other 

 species of the crimen falni. A person called as a 

 juror may be called to s-ay the truth (whence he is 

 said to be interrogated voir dire, veritatem dicere) in 

 respect to such causes of challenge as are not to his 

 discredit or dishonour ; but he cannot be called upon 

 to acknowledge himself guilty of any crime, or other 

 thing which renders him infamous. These are all 

 the causes, strictly speaking, of challenge by the 

 parties. But many persons are entitled to be ex- 

 cused from serving on juries, and, on this account, 

 may plead the excuse for themselves, though the 

 parties may not take the exception. Among these 

 are magistrates, aged persons, and persons holding 

 particular offices, and others having special exemp- 

 tions. The challenges above mentioned equally 

 apply to civil and criminal cases. But in favour of 

 life, in capital trials, the accused is indulged the 

 privilege of challenging a certain number of persons, 

 called as jurors, without assigning any cause ; and 

 this privilege is thence called the right of peremptory 

 challenge. This is a provision founded in great 

 humanity and tenderness towards persons capitally 

 accused. The reasons commonly assigned for it are, 

 1. that every person is liable to strong dislikes and 

 prejudices, in respect to particular persons, merely 

 from their appearance, manners, and gestures, 

 although they are strangers to him, and that even a 

 caprice or feeling of this kind may, in the course of 

 the trial, embarrass the party in his defence ; 2. that 

 upon a challenge for cause shown, the reason may 

 prove insufficient, and, if the party had no right of 

 peremptory challenge, he might be tried by a juror 

 who, from the very circumstance of being objected 

 to, might conceive a prejudice against the accused. 

 On these accounts, he is at liberty to challenge the 

 juror peremptorily, after he has, for an insufficient 

 reason, challenged him for cause ; and, as the object 

 of all trials is to allow a fair and full defence, the 

 accused ought, at least, to have his wishes consulted 

 so far as to exclude those whom he distrusts in the 

 first instance. But as it is obvious that the right of 

 peremptory challenge, if not limited by some known 

 boundary, might for ever prevent a trial, the law has 

 fixed a definite number, to which the party is confined. 

 The common law fixed this number at thirty-five, or 

 one short of three full juries ; and that still remains 

 the rule in all trials for treason. But in other capi- 

 tal offences, the right is now generally restrained, by 

 statute, to twenty, both in England and America. 

 If a person attempts to challenge beyond this num- 

 ber, his challenge is disregarded. If, by reason of 

 peremptory or other challenges, a sufficient number 

 of jurors are not found, talesmen are appointed, as in 

 civil cases. If several persons are tried at the same 

 time, upon one indictment, each one is entitled to his 

 full number of challenges, and one may challenge a 

 juror not objected to by the others, and he must be 

 excluded altogether; for every juryman must be 

 above any objection by any of the persons tried. 

 We have thus far treated of challenges by the party 

 accused. The government has, strictly, no right to 

 challenge, except for cause shown ; but for cause 

 shown the government may either challenge the 

 array, or the polls, in the same manner as a private 

 person. However, it is usual, at least in England, 

 if a juror is objected to by the government, not to 

 call upon the government to show cause until the 

 panel is gone through, and then, if sufficient jurors 

 are not found and sworn, the cause of the challenge 

 may be inquired into ; for. if there is a full jury 

 without the persons objected to by the government, 



