cartel or invitation to a duel or other combat*. A challenge either by word or letter, or to be the bearer of such a challenge, is punishable by fine and imprisonment on indictment or information.

Challenge, among hunters. When hounds or beagles, at first finding the scent of their game, preferently open and cry, they are said to challenge.

the Law of England, is an exception made to jurors†; and is either in civil or criminal cases.

I. In civil cases challenges are of two sorts; challenges to the array, and challenges of the poll.

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1. Challenges Challenges to the array are at once an exception to the whole panel, in which the jury are arrayed, or fet 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, if yet he arrays the panel at the nomination, 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 ancient 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 neighbourhood, 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 alleged in evidence. But this convenience was overbalanced by another very natural and almost unavoidable inconvenience; that jurors, coming out of the immediate 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 panel, which in the reign of Edward III. was constantly six, being in the time of Fortescue reduced to four; afterwards by statute 26 Eliz. c. 6. to two; and at length, by statute 4 and 5 Anne, c. 16. it was entirely abolished upon all civil actions, except upon penal statutes; and upon those also by the 24 Geo. II. c. 18. the jury being now only to come de corpore comitatus, from the body of the country 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 obtained by his motion to the court for a jury de mediate lingua, 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 denizens and the other aliens (if so many be forthcoming in the place), for the more impartial trial; a privilege 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 ordained, that "duodenii legales homines, quorum sex Walli et lex Angli erunt, Anglis et Wallis jus dicunto."

2. Challenges to the polls, in capitae, are exceptions to particular jurors; and seem to answer the recusatio judicis in the civil and canon laws; by the constitutions of which a judge might be refused upon any 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 impannelled 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, it 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 impannelled 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* see may be challenged propter affectum, for suspicion of bias Blackstone's or partiality. This may be either a principal challenge, or 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 majoris. 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 is to decide whether the juror be favourable or unfavourable.

4. Challenges propter delictum, are for some crime or misdemeanor 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 mediate, 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 majoris, not liable to objections either propter honoris respectum, propter defectum, propter affectum, or propter delictum.

Challenges Challenges on any of the foregoing accounts are fly-led challenges for cause; which may be without flint in both civil and criminal trials. But in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge: a provision full of 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 shown, 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 set 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 show 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 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 pein 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.