JURY. 



EnglilK h\v have with excellent forecaft contrived, that no 

 man (hould be called to anfwer to the king for any capital 

 Ci-ir.'.e, iinlefs upon the preparatory accufation of 12 or more 

 of lus fellow-fubjpfts, the grand jury ; and that the truth 

 of every accufaticn, whether preferred in the (liape of in- 

 diclment, information, or appeal, Aiould afterwards be con- 

 firmed by the unanimous fultraije of 12 of his equals and 

 neighbours, indiiferently chofen, and T perior to all fufpi- 

 cion. So that the liberties of England cannot Lnt fubfift, 

 fo long as this palladmm remains fucred and inviolate : not 

 only from all open attacks, (which none wi'l be fo hardy as 

 to make), but alfo from all fecret machinations, which may 

 fap and undermine it ; by introducing new and arbitrary 

 methods of triil, by juftices of the peace, commiflioners of 

 the revenue, and courts of confcience. A nd however cot- 

 irnicai thefe may appear at firft, (as, donhtlefs, all arbitrary 

 powers, well executed, are the moft convenient,) yet let it be 

 again remembered, that delays, and little inconveniences in 

 the forms of juftice, are the price that all free nations mull 

 pay for their liberty in more lubftantial matters ; that thefe 

 inroads up.m this facred bulwark of the nation are funda- 

 mentally oppofite to the fpirit of our conttitution ; and that, 

 thou^di be^un in trifles, the precedent may gradually in- 

 creafe and fpread, to the utter difufe of juries in queitions 

 of the moll momentous concern." 



In criminal cafes, it is provided by the equity and lenity 

 of the Enghfli laws, that no man (hould be call;d to an- 

 fuer fr.r any capital crime, unlefs, as we have already ftatcd, 

 upon the preparatory accufation of twelve or more of his 

 fellow-fubj-'dts, called the _fri7:!^ jury. This iury coniiders 

 all bills of indidment againll criminals preferred to the court, 

 which they either approve or find, by writing upon them 

 liiHa "vera, or difallow, by indorfing igncremus, and i^enerally 

 confifts of gentlemen that are freeholders of fupcrior quality 

 to thofe who form the ft/it jury, who try the prifoners m- 

 difted by the other jury, and convidl them by verdi-t. 



When a prifoner, on his arraignment, has pleaded not 

 guilty, and for his trial hath put himfelf i:pon the country, 

 which country the jury are, the ftierifF of the county mull 

 return a panel of jurors that are freeholders, wi'hout juft 

 exception, and of the ■vi/nc, or ncighbourheod, i. e. of the 

 county where the faft ij committed. If the proceedings are 

 before the court of kuig's bench, there is a time allowed, 

 between the arraignment and the trial, for a jury to be im- 

 panelled by a writ of vcr.'ne faaas to the (herifF, as in civil 

 cauftrs ; and the trial in cai'e of a mifdemefnor, is had at ti'ifi 

 priu!, unlefs it be of fuch confequence as to m.erit a trial at 

 bar ; which is always invariably had, when the prifoner is 

 tried for any capital offence. Bnt, before commiflioners of 

 cycr and terminer, and jjaol dehvery, the fheriff, by virtue of 

 a general precept, direfted to him beforehand, returns to the 

 court a panel of forty-eight iuiors, to try all felons that may 

 he called upon their trial at that feffion ; and, therefore, it is 

 ufual to try all felons immediately, or foon after their 

 arraignment. But perfons indicled of fmaller mifdemefnors, 

 ufually give fecurity to the court to appear, for trial at the 

 next afiizes or feffion. See IsDlCTMENT. 



When the trial is called on, the jurors are to be fworn, 

 as they appear to the sumber of twelve, unlefs they are 

 challenged by the party. (See Cii.\LLKXC;e, l^ fupra) 

 Tales may be awarded as in civil caufos, till the number of 

 twelve is fwoni, " well and truly to try, and true deliver- 

 ance make, between our fovereigu lord the king, and the 

 prifoner whom they have in charge ; and a true verdid to 

 give, according to the evidence." When the jury is fworn, 

 if it be a caufe of any confequence, the indictment is ufually 

 opened, and the evidence itated by the counfel for the cro^wn. 



or profecution. But it is a fettled rule at common laxv 

 (inconliilent, indeed, with the humane treatment of prifon- 

 ers by the Englifh laws, but palliated by the declaration of 

 law, that the judge Ihall be counfel i -x the prifoner, t.t. 

 (lull fee th't the proceedings again il him are legal and 

 ftrictly regular) that no counfel (hall be allowed a prifoner 

 upon his trial, upon the general iflue, in any capital crime, 

 unlefs fome point of law (lioiild arife proper to Ije debated. 

 (2 Hawk. P.C. 400. ) However, the judges never fcruple 

 to allow a prifoner counfel to (land by Inm at the bar, and 

 inilrnft him what qucftions to a(k, or even to aik queftions 

 for him, with refpecl to matters of fjfl ; for as to matters 

 of law, arifmg on the tria', they areentilkd to the afTiilance 

 of counfel. When the evidence on both fides is clofed, the 

 jury cannot be difcharged, (unlefs in cafes of evident 

 ncceffity,) till they have piven in their vcrdicl ; but are to 

 confider of it and deliver it in, with the fame forms as upon 

 civil canfes ; only that they cannot, in a criminal cafe, give 

 a privy vcrdift. (2 Hal. P C. 3C0 2 Hav.k. P. C. 439 ) 

 But nn open verd.ft may be euiier genera', guilty or not 

 guilty ; or fpecial, fetting forth all the circumftances of 

 the cafe, and praying the judgment of the court, whether, 

 for inftance, on the facts ftatcd, it be m.urder, man (laughter, 

 or no crime at all. (See VtnniCT and JuiiORs.) If the 

 jur)- find the prifoner not guilty, he is then for ever dif- 

 charged of the accufation, except he be aj pealed of felony 

 within the time limited by bw. (See Aiteal.) And 

 upon (nch his acquittal, or difcharge for want cf profccu- 

 tion, he (hall be immediately fet at large, without paynent 

 of any fee to the gaoler. (Stat. 14 Geo. III. c. 20.) But 

 if they find him giulty, he is faid to hi conviSeJ of the crime 

 whereof he (lands indicted. On a conviction for any felony, 

 in general, the reafonabie expences of profecution are, by 

 (lat. 25 Geo. II. cap 36 aad 18 Geo III. c. 19. to be al- 

 lowed to the proiecutor out of the connty llock, if he peti- 

 tions the jndge for that purpofe ; and if he be poor, a com« 

 pcnfation for his trouble and lols of time ; and by 27 Geo. II. 

 cap. 3. explained by ftat. 18 Geo. III. c. 19. poor perfons 

 bound ovL-r to give evidence are likewife entitled to be paid 

 their charges, as well without convidlion as with it. More- 

 over, on a conviction of larceny in particular, the profecutcr 

 (hall have reilitution of his goods, by 21 Hen. VIII. cap. 11. 

 which enadls, that if any perfon be convifted of larceny by 

 the evidence of the party robbed, he (hall have full reilitu- 

 tion of his money, goods, and chattirls ; or the value of 

 them out of the offender's goods, if he has any, by a writ 

 to be granted by the jullices ; and this writ iTiall reach the 

 ftolen goods, though the property of ihem is transferred to 

 another by fale in open market, (i Hal. P.C. 543.) With- 

 out fuch writ of reilitution, the party may peaceably retake 

 his goods wherefoever h'e finds them. And if the felon be 

 convicled and pardoned, or allowed his clerg;,', the parry 

 robbed may bring his action of trover againft him for his 

 goods, and recover a fatisfaftion in damages. Such are the 

 proceedinijs and confequences of a trial by jury in criminal 

 cafes. S^-e Blackll. Comm. book iii. iv. 



Jury, Special. Where it is conceived that an indifferent 

 impartial jury will not beretnrncd between party and party 

 by the (heriff, the court upon motion will order the (heri(r 

 to attend the fecondary of the king's bench, with his book 

 of freeholders of the county ; and the fecondary, in the 

 prefence of the attornics on both fides, is to ftrike a jury. 

 And when a caufe of confequence is to be tried at the bar, 

 the court of king's bench, on motion and affidavit made, 

 will make a rule for the fecondary to name forty-eight free- 

 holders ; and each party is to (Irikc out twelve, one at a 

 time, the plaintiff, or Jiis attorney, beginning nrft : and 



fro in 



