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fo deficient, as ourselves and our magiftrates in putting those laws in execution.

9. LASTLY, there is another offence, conftituted by a variety of acts of parliament; which are fo numerous and fo confufed, and the crime itself of fo queftionable a nature, that I fhall not detain the reader with many obfervations thereupon. And yet it is an offence which the sportsmen of England feem to think of the highest importance; and a matter, perhaps the only one, of general and national concern: affociations having been formed all over the kingdom to prevent it's deftructive progrefs. I mean the offence of deftroying fuch beafts and fowls, as are ranked under the denomination of game: which, we may remember, was formerly observed", (upon the old principles of the forest law) to be a trespass and offence in all perfons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws, called the game laws, have alfo inflicted additional punishments (chiefly pecuniary) on perfons guilty of this general offence, unless they be people of fuch rank or fortune as is therein particularly specified. All perfons therefore, of what property or diftinction foever, that kill game out of their own territories, or even upon their own eftates, without the king's licence expreffed by the grant of a franchise, are guilty of the first original offence, of encroaching on the royal prerogative. And thofe indigent perfons who do fo, without having fuch rank or fortune as is generally called a qualification, are guilty not only of the original offence, but of the aggravations alfo, created by the ftatutes for preferving the game: which aggravations are so feverely punished, and those punishments fo implacably inflicted, that the offence against the king is feldom thought of, provided the miferable delinquent can make his peace with the lord of the manor. This offence, thus aggravated, I have ranked under the prefent head, because the only rational footing, upon which we can confider it as a crime, is, that in low and indigent perfons it promotes idlenefs, and takes them away from their proper employments and callings:

h See Vol. II. pag. 417, &c.

that may arife from the fact: and except alfo, that the peers need not all agree in their verdict; but the greater number, confifting of twelve at the least, will conclude, and bind the minority 8.

V. THE trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter nullus liber homo capiatur, vel imprifonetur, aut "exulet, aut aliquo alio modo deftruatur, nifi per legale judicium "parium fuorum, vel per legem terrae."

:

THE antiquity and excellence of this trial, for the settling of civil property, has before been explained at large. And it will hold much stronger in criminal cafes; fince, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in fuits between the king and the fubject, than in difputes between one individual and another, to fettle the metes and boundaries of private property. Our law has therefore wifely placed this strong and twofold barrier, of a prefentment and a trial by jury, between the liberties of the people, and the prerogative of the crown. It was neceffary, for preferving the admirable balance of our conftitution, to veft the executive power of the laws in the prince: and yet this power might be dangerous and deftructive to that very conftitution, if exerted without check or control, by justices of oyer and terminer occafionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an inftant declaration, that fuch is their will and pleasure. But the founders of the English law have with excellent forecast contrived, that no man fhould be called to answer to the king for any capital crime, unless upon the preparatory accufation of twelve or more of his fellow-fubjects, the grand jury: and that the truth of every accufation, whether pre

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ferred in t shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but fubfift, fo long as this palladium remains facred and inviolate; not only from all open attacks, (which none will be fo hardy as to make) but also from all fecret machinations, which may fap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commiffioners of the revenue, and courts of confcience. however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this facred bulwark of the nation are fundamentally oppofite to the spirit of our conftitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter difufe of juries in questions of the most momentous concern.

And

WHAT was faid of juries in general, and the trial thereby, in civil cafes, will greatly fhorten our present remarks, with regard to the trial of criminal fuits; indictments, informations, and appeals; which trial I fhall confider in the fame method that I did the former; by following the order and course of the proceedings themselves, as the most clear and perfpicuous way of treating it.

WHEN therefore a prifoner on his arraignment has pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the fheriff of the county muft return a panel of jurors, liberos et legales homines, de vicineto; that is freeholders, without juft exception, and of the vifne or neighbourhood: which is interpreted to be of the county where the fact is committed. If the proceedings are before the court of king's bench, there is time allowed, between the arraignment and the trial, for a jury to be impa

j 2 Hal. P. C. 264. 2 Hawk. P. C. 403.

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nelled by writ of venire facias to the sheriff, as in civil causes : and the trial in cafe of a mifdemefnor is had at nifi prius, unless it be of such confequence as to merit a trial at bar; which is always invariably had when the prisoner is tried for any capital offence. But, before' commiffioners of oyer and terminer and gaol delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty-eight jurors, to try all felons that may be called upon their trial at that feffion: and therefore it is there usual to try all felons immediately, or foon, after their arraignment. But it is not customary, nor agreeable to the general courfe of proceedings, (unless by consent of parties, or where the defendant is actually in gaol) to try persons in-dicted of fmaller mifdemefnors at the fame court in which they have pleaded not guilty, or traverfed the indictment. But they usually give fecurity to the court, to appear at the next affifes or feffion, and then and there to try the traverse, giv-ing notice to the profecutor of the same.

In cafes of high treason, whereby corruption of blood may enfue, (except treafon in counterfeiting the king's coin or feals) or mifprision of such treason, it is enacted by statute 7 W. III. c. 3. first, that no perfon fhall be tried for any fuch treafon, except an attempt to affaflinate the king, un-lefs the indictment be found within three years after the of -fence committed: next, that the prifoner fhall have a copy of the indictment, (which includes the caption *) but not the names of the witneffes, five days at least before the trial; that is, upon the true conftruction of the act, before his arraignment; for then is his time to take any exceptions thereto, by way of plea or demurrer: thirdly, that he shall alfo have a copy of the panel or jurors two days before his trial: and, laftly, that he fhall have the fame compulsive process to bring in his witnesses for him, as was usual to compel their appearance against him. And, by ftatute 7 Ann. c. 21. (which did not take place till after the decease of the late pretender) all persons, indicted for high treason or misprision

Foft. 229. Append. i.

23

1 Ibid. 230.

thereof,

BOOK IV, thereof, shall have not only a copy of the indictment, but a lift of all the witneffes to be produced, and of the jurors impa nelled, with their profeffions and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses; the better to prepare him to make his challenges and defence. But this laft act, fo far as it affected indictments for the inferior fpecies of high treason, respecting the coin and the royal feals, is repealed by the statute 6 Geo. III. c. 53. else it had been impoffible to have tried those offences in the fame circuit in which they are indicted: for ten clear days, between the finding and the trial of the indictment, will exceed the time usually allotted for any feffion of oyer and terminer m. And no perfon indicted for felony is, or (as the law stands) ever can be, entitled to fuch copies, before the time of his trial ".

WHEN the trial is called on, the jurors are to be fworn, as they appear, to the number of twelve, unless they are challenged by the party.

CHALLENGES may here 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 fame reasons that they may be made in civil caufes. For it is here at least as neceffary, as there, that the sheriff or returning officer be totally indifferent; that where an alien is indicted, the jury fhould be de medietate, or half foreigners, if fo many are found in the place; (which does not indeed hold in treasons 3, aliens being very improper judges of the breach of allegiance; nor yet in the cafe of Egyptians under the ftatute 22 Hen. VIII. c. 10.) that on every panel there fhould be a competent number of hundredors; and that the particular jurors fhould be omni exceptione majores; not liable to objection either propter honoris refpectum, propter defectum, propter affectum, or propter delictum.

m Foft. 250.

n 2 Hawk. P. C. 410.

See Vol. III. pag. 359.

P 2 Hawk. P. C. 420. 2 Hal. P. C. 271.

CHAL

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