CHALLENGE, in the law of England, is an excep-
tion made to jurors*; and is either in civil or crimi-
nal cases.
1. In civil cases challenges are of two sorts: chal-
lenges to the array, and challenges to the poll.
1. Challenges to the array are at once an exception
to the whole panel, 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 or his under officer who arrayed the panel.
Also, though there be no personal objection against
the sheriff, yet if he arrays the panel at the nomina-
tion, 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: also by the policy of the an-
cient 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 from
defect of hundreders. For, living in the neighbour-
hood, these were supposed to know beforehand the
characters of the parties and witnesses; and therefore
they better knew what credit to give to the facts al-
leged in evidence. But this convenience was over-
balanced by another very natural and almost unavoi-
dable inconvenience; that jurors coming out of the im-
mediate neighbourhood, would be apt to intermix
their prejudices and partialities in the trial of right.
And this the law was so sensible of, that it for a long
time has been gradually relinquishing this practice;
the number of necessary hundreders in the whole pa-
nel, which in the reign of Edward III. were constantly
six, being in the time of Fortescue reduced to four;
afterwards by statute 27 Eliz. c. 6. to two; and at
length, by statute 4 and 5 Anne, c. 16. it was en-
tirely abolished upon all civil actions, except upon pe-
nal statutes; and upon those also by the 24 Geo. II.
c. 18. the jury being now only to come de corpore ce-
mitatus, 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 ob-
tained by his motion to the court for a jury de medie-
tate linguae, such a one be not returned by the sheriff
pursuant to the statute 28 Edward III. c. 13. enforced
by 8 Hen. VI. c. 29. which enacts, that where either
party is an alien born, the jury shall be one half deni-
zens and the other aliens, (if so many be forthcoming
in the place), for the more impartial trial: A privi-
lege indulged to strangers in no other country in the
world; but which is as ancient in England as the time
of king Ethelred, in whose statute de monticolis Wallie,
(then aliens to the crown of England) c. 3. it is or-
dained, that "duodeni legales homines, quorum sex
Walli et sex Angli erunt, Anglis et Wallis jus di-
cunto."
2. Challenges to the polls, in capita, are exceptions
to particular jurors; and seem to answer the recusatio
judicis in the civil and canon laws; by the constitu-
tions of which, a judge might be refused upon any su-
spicion.
Challenge. suspicion of partiality. By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause; but now the law is otherwise, and it is held that judges or justices cannot be challenged. 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 on 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: 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 jurymen be an alien born, this is defect of birth; if he be a slave or bondman, this is defect of liberty, and he cannot be a 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 supposititious 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. But the principal deficiency is defect of estate sufficient to qualify him to be a juror, which depends upon a variety of statutes*. 3. Jurors may be challenged propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it, prima facie, evident marks of suspicion either of malice or favour: as, that a juror is of kin to either party within the ninth degree; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict, &c. which, if true, cannot be overruled, for jurors must be omni exceptione maiores. Challenges to the favour, are where the party hath no principal challenge; but objects only some probable circumstances of suspicion, as acquaintance, and the like; the validity of which must be left to the determination of triers, whose office it is to decide whether the juror be favourable or unfavourable. 4. Challenges propter delictum, are for some crime or misdemeanour that affects the juror's credit, and renders him infamous: As for a conviction of treason, felony, perjury, or conspiracy; or if, for some infamous offence, he hath received judgment of the pillory or the like.
II. In criminal cases, challenges may be made either on the part of the king, or on that of the prisoner; and either to the whole array, or to the separate polls, for the very same reasons that they may be in civil causes. For it is here at least as necessary as there, that the sheriff or returning officer be totally indifferent; that, where an alien is indicted, the jury should be de medietate, or half foreigners, if so many are found in the place (which does not indeed hold in treasons, aliens being very improper judges of the
breach of allegiance; nor yet in the case of Egyptians under the statute 22 Hen. VIII. c. 10.); that on every panel there should be a competent number of hundreders; and that the particular jurors should be omni exceptione maiores, not liable to objections either propter honoris respectum, propter defectum, propter affectum, or propter delictum.
Challenges on any of the foregoing accounts are filed challenges for cause; which may be without stint in both civil and criminal trials. But in criminal cases, or at least in capital ones, there is, in favorem vite, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without shewing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners for which our laws are justly famous. This is grounded on two reasons: 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is, that a prisoner, when put to defend his life, should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike. 2. Because upon challenges for cause shewn, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to let him aside.
This privilege of peremptory challenges, though granted to the prisoner, is denied to the king by the statute 33 Edward I. stat. 4. which enacts, that the king shall challenge no jurors without assigning a cause certain to be tried and approved by the court. However, it is held that the king need not assign his cause of challenge, till all the panel is gone through, and unless there cannot be a full jury without the persons so challenged. And then, and not sooner, the king's counsel must shew the cause: otherwise the juror shall be sworn.
The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never be tried. This reasonable boundary is settled by the common law to be the number of 35: that is, one under the number of three full juries. For the law judges, that 35 are fully sufficient to allow the most timorous man to challenge through mere caprice; and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all. And therefore it deals with one who peremptorily challenges above 35, and will not retract his challenge, as with one who stands mute or refuses his trial; by sentencing him to the peine forte et dure in felony, and by attainting him in treason. And so the law stands at this day with regard to treason of any kind. But by statute 22 Hen. VIII. c. 14. (which, with regard to felonies, stands unrepealed), no person arraigned for felony can be admitted to make more than 20 peremptory challenges.