Blackwood's Edinburgh Magazine — Volume 55, No. 339, January, 1844. Various
usual of those answers to the indictment which we have enumerated, the others being all of extremely rare occurrence in the modern practice of the criminal law. By this plea, the accused puts himself upon his county, which county the jury are. The sheriff of the county must then return a panel of jurors. In England the jurors are taken from the "jurors' book" of the current year. It must be observed, that a new jurors' book comes into operation on the first of January in each year, having previously been copied from the lists of those liable to serve on juries, made out in the first instance, between the months of July and October, both inclusive, by the churchwardens and overseers of each parish, then reviewed and confirmed by the justices of the peace in petty sessions, and, through the high constable of the district, delivered to the next quarter sessions. If the proceedings are before the Queen's Bench, an interval is allowed by the court, in fixing the time of trial, for the impanneling of the jury, upon a writ issued to the sheriff for that purpose. The trial in a case of misdemeanour in the Queen's Bench is had at nisi prius, unless it be of such consequence as to merit a trial at bar, which is invariably had when the prisoner is tried for any capital offence in that court. But before the ordinary courts of assize, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of not less than forty-eight nor more than seventy-two persons, unless the judges of assize direct a greater or smaller number to be summoned. When the time for the trial has arrived, and the case is called on, jurors, to the number of twelve, are sworn, unless challenged as they appear; their names being generally taken promiscuously, one by one, out of a box containing a number of tickets, on each of which a juror's name is inserted. Challenges may be made, either on the part of the crown or on that of the accused, and either to the whole array or to the separate polls. The challenge to the array, which must be made in writing, is an exception to the whole panel, on account of some partiality or default in the sheriff, or his officer, who arrayed the panel, the ground of which is examined into before the court. Challenges to the polls—in capita—are exceptions to particular persons, and must be made in each instance, as the person comes to the box to be sworn, and before he is sworn; for when the oath is once taken the challenge is too late.
Sir Edward Coke reduces the heads of challenge to four. 1st, propter honoris respectum; as if a lord of Parliament be impannelled. 2d, propter defectum; as if a juryman be an alien born, or be in other respects generally objectionable. 3d, propter affectum; for suspicion of bias or partiality: and 4th, propter delictum; or, for some crime that affects the juror's credit, and renders him infamous; In treason and felony, the prisoner is allowed the privilege of a limited number of peremptory challenges; after which, as in misdemeanours, there is no limit to the number of challenges, if the party shows some cause for each challenge to the court. This cause is tried by persons appointed for that purpose by the court, when no jurymen have been sworn; but when two jurymen have been sworn, they are the parties who must adjudicate upon the qualifications of those who are afterwards challenged, who, except when the challenge is propter delictum, may be themselves examined upon oath. The crown, also, we have seen, can exercise this privilege, but with this difference, that no cause for challenge need be shown by the crown, either in felonies or misdemeanours, till the panel is exhausted, and unless there cannot be a full jury without the persons so challenged.
When twelve men have been found, they are sworn to give a true verdict "according to the evidence," and the jury are then ready to hear the merits of the case. To fix their attention the closer to the facts which they are impannelled and sworn to try, the indictment, in cases of importance, is usually opened by the junior counsel for the crown—a proceeding, by which they are briefly informed of the charge which is brought against the accused. The leading counsel for the crown then lays the facts of the case before the jury, in a plain unvarnished statement; no appeal is made to the passions or prejudices of the twelve men, who are to pronounce upon the guilt or innocence of the accused; but every topic, every observation, which might warp their judgment, or direct their attention from the simple facts which are about to be proved before them, is anxiously deprecated and avoided by the counsel for the prosecution. The witnesses for the crown are called one by one, sworn, examined, and cross-examined by the accused, or his counsel. When the case for the crown has been brought to a close, the defence commences, and the counsel for the defendant addresses the jury. It is the duty of the advocate, on such an occasion, to put forth all his powers in behalf of his client; to obtain acquittal is his object: he must sift the hostile evidence, he must apply every possible test to the accuracy of the testimony, and to the credibility of the witnesses; he may address himself to the reason, to the prejudices, to the sympathies, nay, even to the worst passions of the twelve men whose opinions he seeks to influence in favour of his client. He may proceed to call witnesses to disprove the facts adduced on the other side, or to show that the character of the accused stands too high for even a suspicion of the alleged clime; he has the utmost liberty of speech and action He may indefinitely protract the proceedings, and there seems to be scarcely any limit, in point of law, beyond which the ultimate event of the trial may not be, by these means, deferred. Whenever the defence closes, in those cases in which the government is the real prosecutor, the representative of the crown has the general reply; at the close of which the presiding judge sums up the evidence to the jury, and informs them of the legal bearing of the facts, on the effect and existence of which the jury has to decide. This having been accomplished, it becomes the duty of the jury to deliberate, decide, and pronounce their verdict. If the verdict be "Not guilty," the accused is for ever quit and discharged of the accusation; but if the jury pronounce him guilty, he stands convicted of the crime which has been thus charged and proved against him, and awaits the judgment of the court. In felonies and ordinary misdemeanours, judgment is generally pronounced immediately upon, or soon after, the delivery of the verdict; in other cases, when the trial has been had before the Queen's Bench, the judgment may, in England, be pronounced either immediately or during the ensuing term. But whenever this event occurs, the prisoner has still one chance more for escape: he can move an arrest of judgment, on the grounds either that the indictment is substantially defective, or that he has already been pardoned or punished for the same offense. These objections, if successful, will, even at this late stage of the proceedings, save the defendant from the consequences of his crime. But if these last resources fail, the court must give the judgment, or pronounce the measure of that punishment, which the law annexes to the crime of which the prisoner has been convicted.
By the law of this country, the species of punishment for every offence is always ascertained; but, between certain defined limits, the measure and degree of that punishment is, with very few exceptions, left to the discretion of the presiding judge. Treasons and some felonies are, indeed, capital: but, in the mercy of modern times, the great majority of felonies, and all misdemeanours, are visited, some with various terms of transportation or imprisonment, which, in most cases, may be with or without hard labour, at the discretion of the court. In these cases, the punishment is prescribed by the statute law; but there are some misdemeanours the punishment of which has not been interfered with by any statute, and to which, therefore, the common law punishments are still attached. The case of Mr O'Connell, which is now in abeyance, seems to range itself under this head of misdemeanours. Such cases are punishable by fine or imprisonment, or by both; but the amount of the one, or the duration of the other, is each left at large to be estimated by the court, according to the more or less aggravated nature of the offence, and, as it is said, also according to the quality and condition of the parties. That a fine should, in all cases, be reasonable, has been declared by Magna Charta; and the Bill of Rights has also provided, that excessive fine, or cruel and unusual punishments, should not be inflicted; but what may or may not be unreasonable or excessive, cruel or unusual, is left entirely to the judgment of the executive.
For crimes of a dark political hue, which, by their tendency to subvert the government or destroy the institutions of the country, necessarily assume a character highly dangerous to the safety and well-being of the state, it might be difficult to say what degree of punishment would be excessive or unusual. It seems probable, that in cases of this nature, which include crimes, so varied in their circumstances that there appears no limit to the degree of guilt incurred—crimes, the nature and character of which could not possibly be foreseen or provided for, in all their infinite multiplicity of detail; it seems probable that, in such cases, a large discretion may have been purposely left by the framers of our constitution, in