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123 u c h a p t e r x i i i u The Subject continued. After having offered to the reader, in the preceding Chapter, such general considerations as I thought necessary, in order to convey a juster idea of the spirit of the criminal Judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particulars. When a person is charged with a crime, the Magistrate, who is called in England a Justice of the Peace, issues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him: he must then hear him, and take down in writ-ing his answers, together with the different informations. If it appears on this examination, either that the crime laid to the charge of the person who is brought before the Justice, was not committed, or that there is no just ground to suspect him of it, he must be set absolutely at liberty: if the contrary results from the examination, the party accused must give bail for his appearance to answer to the charge; unless in capital cases, for then he must, for safer custody, be really committed to prison, in order to take his trial at the next Sessions. But this precaution of requiring the examination of an accused person, previous to his imprisonment, is not the only care which the law has taken in his behalf; it has farther ordained that the accusation against him should be again discussed, before he can be exposed to the danger of a trial. At every session the Sheriff appoints what is called the Grand Jury. This Assembly must be composed of more than twelve Men, and less than twentyfour ; and is always formed out of the most considerable persons in the County. Its function is to examine the evidence that has been given in support of every charge: if twelve of those persons do not concur in the 124 book i opinion that an accusation is well grounded, the party is immediately discharged ; if, on the contrary, twelve of the grand Jury find the proofs sufficient , the prisoner is said to be indicted, and is detained in order to go through the remaining proceedings. On the day appointed for his Trial, the prisoner is brought to the bar of the Court, where the Judge, after causing the bill of indictment to be read in his presence, must ask him how he would be tried: to which the prisoner answers, by God and my Country; by which he is understood to claim to be tried by a Jury, and to have all the judicial means of defence to which the law intitles him. The Sheriff then appoints what is called the Petty Jury: this must be composed of twelve Men, chosen out of the county where the crime was committed, and possessed of a landed income of ten pounds by the year; their declaration finally decides on the truth or falshood of the accusation. As the fate of the prisoner thus entirely depends on the Men who compose this Jury, Justice requires that he should have a share in the choice of them; and this he has through the extensive right which the law has granted him, of challenging, or objecting to, such of them as he may think exceptionable .1 These challenges are of two kinds. The first, which iscalledthechallenge to the array, has for its object to have the whole pannel set aside: it is proposed by the prisoner when he thinks that the Sheriff who formed the pannel is not indifferent in the cause; for instance, if he thinkshehasaninterest in the prosecution, that he is related to the prosecutor, or in general to the party who pretends to be injured. The second kind of challenges are called, to the Polls (in capita): they are exceptions proposed against the Jurors, severally, and are reduced to four heads by Sir Edward Coke.2 That which he calls propter honoris res1 . As De Lolme noted previously, in chapter 9, p. 81, note a, the right of the accused to challenge potential jurors was rarely utilized in practice. His account here of therights enjoyed by those facing trial for criminal offences reports more accurately the formal legal protections than the routine practices of trial and conviction. 2. See Edward Coke, First Part of the Institutes of the Laws of England, 156.(The“First Part” of Coke’s...

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