By 7 Will. III. c. 3, in treason, whereby corruption of blood may ensue (except treason in counterfeiting the king's seals) or misprision of such treason, no person shall be tried (except in the case of an attempt to assassinate the king) unless the indictment be found within three years after the offence committed; and the prisoner shall have a copy of the indictment (which includes the caption, but not the name of the witnesses,) five days at least before the trial, that is, before his arraignment; and he shall also have a copy of the panel of the jurors two days before his trial, and the same compulsory process to bring in his witnesses as is usual to compel the appearance of witnesses for the crown.

And by 7 Anne, c. 21, all persons indicted for treason or misprision thereof, shall have not only a copy of the indictment but a list of all the witnesses to be produced and of the jurors, with their professions and places of abode, delivered to him ten days before the trial and in the presence of two witnesses; and it has been decided that these ten days must be after bill found and before arraignment, and are exclusive of the day of delivery and arraignment, and, as it seems, of Sundays.--1 East, P.C. 112.

But this last act is repealed as to treason for counterfeiting the king's seal, by 6 Geo. III. c. 53, s. 3.

And by 39 & 40 Geo. III. c. 93, in all cases of treason in compassing or imagining the death of the king, and of misprision of such treason, where the overt act alleged in the indictment is the assassination of the king, or a direct attempt against his life or person, the party accused shall be indicted and tried in the same manner and upon the like evidence as if charged with murder. But the judgment and execution shall remain the same as in other cases of treason.

By 6 Geo. IV. c. 50, s. 21, where any person is indicted for treason or misprision of treason in any court except the court of King's Bench, a list of the petty jury, with their names, professions and places of abode, shall be given at the same time that the copy of the indictment is delivered

to the party indicted, which shall be ten days before arraignment, and in the presence of two or more credible witnesses; and when any person is so indicted in the King's Bench, a copy of the indictment shall be delivered as before mentioned, but the list of the petty jury, made out as before mentioned, may be delivered to the party indicted after arraignment, so that it be ten days before trial. Proviso not to interfere with the provisions of 39 and 40 Geo. III. c. 93.

Except in cases of treason no person indicted for felony is intitled to a copy of the indictment or list of witnesses or jurors; though if any legal exceptions be taken to the indictment, the court will, as a favour, allow a copy to be taken of the part material to be examined.-4 Bl. C. 352; 1 Chitty, Cr. Law, 403.

But in offences inferior to felony it seems that the right of having a copy of the indictment has at all times been admitted.-1 Chitty, Cr. Law, 404.

When the trial is called on, the jurors are to be sworn as they appear, to the number of twelve, unless they are challenged.-4 Bl. C. 352.

Challenges may be made either on the part of the crown or of the prisoners, and either to the whole array or to the polls.-Ibid.

Challenges to the whole array are objections to the whole panel of the jurors upon some ground applying to the whole, and not to particular jurors only. One of these grounds is partiality in the sheriff, the returning officer. If the partiality is manifest, for example, if the sheriff be the prosecutor, the challenge is called a principal challenge. If the partiality be less certain, for example, if the sheriff be the king's menial servant, the challenge is called a challenge for favour.-1 Chitty, Cr. Law, 538; Co. Litt. 156 a.; 2 Hale, P. C. 271.

Challenges to the polls are objections to particular jurors; and are as follows:

1. Propter honoris respectum.

This is where a peer is called to be sworn for the trial of a commoner. In that case either party may challenge him, or he may challenge himself, and it is a principal challenge. Members of the House of Commons cannot be challenged, but they will be discharged on their own request, especially if parliament be sitting. Co. Litt. 156 b.; 1 Chit. Cr. L. 540, 541; 6 Geo. IV. c. 50, s. 2, vide sup. 294.

2. Propter defectum.

This is on account of some personal objection to the juror, as alienage or non-qualification in respect of age or property, &c.; and this also is a principal challenge.— Ibid.; and see 6 Geo. IV. c. 50, s. 27, 50, vide post, 302.

3. Propter affectum.

This is on the ground of some actual or presumed partiality in the juryman challenged; and like the challenge to the array, it may be by way of principal challenge or challenge for favour. This challenge will be admitted if the witness is related to one of the parties within the ninth degree; though only by marriage-if he has acted as godfather to his child; if he is under his power or employ; or is to receive part of a fine on conviction; or has eaten or drunk at the expense of one of the parties; or if there are actions depending between the juryman and one of the parties; or if the juryman has expressed a wish or opinion as to the result of the trial, with a malicious intention. And by 25 Edw. III. st. 5, c. 3, a man who has acted as grand juryman on the finding of an indictment, may be challenged, if returned on the petty jury. And that statute has been construed to extend not only to the same indictment but any other indictment for the same offence; or where the matter which there came in question, happens here to be material.—Ibid.; 3 Bl. C. 363.

It is not competent to the prisoner to ask a juryman whether he has not previously to the trial expressed opi

nions hostile to the prisoner, in order to found a challenge thereon; but such expressions must be proved by extrinsic evidence.-4 Barn. & Ald. 471.

4. Propter delictum.

This is where a juror has been attainted of felony, or convicted of any infamous crime, or is under outlawry or excommunication.-Vide 6 Geo. IV. c. 50, s. 3, sup. 294, 295. It is a principal challenge.-Co. Litt. 158 a.

5. Peremptory.

This is an objection to some juror, at the mere pleasure of the defendant, without showing any cause.—Co. Litt. 156 b.

By 33 Edw. I. st. 4, and 6 Geo. IV. c. 50, s. 29, a peremptory challenge is not allowed to the crown.

But the crown need not assign the cause of challenge till all the panel is gone through.-2 Hale, P. C. 271; 1 Chitty, Cr. Law, 534.

It is allowed to the defendant, only on the issue of not guilty, and not on collateral issues.-2 Hale, P. C. 267; Fost. 42; 1 Chit. Cr. Law, 535.

It is allowed to him only in treason or felony, and not in misdemeanor.-Co. Litt. 156 b.

It is allowed in treason to the number of thirty-five, that is, one under the number of three full juries. After this, the defendant can challenge no further.-2 Hale, P. C. 269.

By 22 Hen. VIII. c. 14, and 6 Geo. IV. c. 50, s. 29, it is allowed in other cases of felony, to the number of twenty only.

In misprision of treason, the number allowed seems to be unsettled.-1 Chitty's Cr. Law, 535; 3 Inst. 27 a.; 2 Hawk. c. 43, s. 5.

By 7 & 8 Geo. IV. c. 28, s. 3, if any person indicted for treason, felony or piracy, shall challenge peremptorily a greater number of the men returned to be of the jury than such person is intitled by law to challenge in any of the said cases, every peremptory challenge beyond the number allowed by law, in any of the said cases, shall be

entirely void, and the trial of such person shall proceed as if no such challenge had been made.

By 6 Geo. IV. c. 50, s. 27, if any man shall be returned as a juror for the trial of any issue in any of the courts in the act mentioned, who shall not be qualified according to the act, the want of such qualification shall be a good cause of challenge, and he shall be discharged upon such challenge, if the court shall be satisfied of the fact; and if any man returned as a juror for the trial of any such issue, shall be qualified in other respects according to the act, the want of freehold shall not be good cause of challenge, nor for discharging the man upon his own application: Proviso, that the same shall not extend to any special juror.

By sect. 28, no challenge shall be taken to any panel for want of a knight being returned.

By sect. 47, the privilege of an alien to be tried by a jury de medietate linguæ, (allowed by 28 Ed. III. c. 13.) is preserved; and on the prayer of every alien indicted or impeached of felony or misdemeanor, the sheriff is by command of the court to return for one half the jury a competent number of aliens, or so many as may be found in the town or place of trial; and such aliens are not to be challenged for want of freehold or other qualification under the act.

By 1 & 2 Ph. & M. c. 10, this privilege of an alien is taken away in treason.

The time for challenge is between the appearance and the swearing of the jurors. It cannot be made either to the array or to the polls, before a full jury have made their appearance, nor after they are sworn.-1 Chitty's Cr. Law, 544, 545; 4 Barn. & Ald. 471.

The challenge to the array must be in writing; but that to the polls may be verbal.-1 Chitty's Cr. Law, 546.

To a challenge to the array for favour, the opposite party may either plead or demur in law.-Ibid. 548.

Upon demurrer to the challenge the court may proceed immediately to decision.-Ibid.

Upon challenge to the array, (whether principal or for favour,) it lies in the discretion of the court to direct the mode in which it shall be tried.-2 Hale, P. C. 275.