A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

CHALLENGE.

Challenge, is a word common as well to the En∣glish as to the French, and sometimes signifieth to claim, sometimes in respect of revenge, to chal∣lenge into the field: sometimes in respect of par∣tiality or insufficiency to challenge in a Court per∣sons* 1.1 returned on a Jury. Challenge made to the Jurors, is either made to the Array or to the Poll▪ Challenge to the Array, is where exception is ta∣ken to the whole number, as impa••nelled partial∣ly; challenge to or by the Poll, is where excep∣tion is taken to one or more, as not indifferent.

By the Common Law, the prisoner upon an In∣dictment or appeal might challenge peremptorily* 1.2 thirty 〈…〉〈…〉▪ which was under the number of three Juries: 〈…〉〈…〉 now by the Statute of 22 H. 8. the number is reduced to twenty in petty Treason, Murder and Felony. But by the Statute of 1 and 2 Ph〈…〉〈…〉 and M〈…〉〈…〉ry, the Common Law is revived; for a〈…〉〈…〉reason, the prisoner shall have his chal∣lenge to the number of 35. But if he be a Lord of Parliament, and a Peer of the Realm, and is to be ••••ied by his Peers; he shall not challenge any of his

Peers at all, for they are not sworn as other Ju∣rors be, but find the party guilty, or not guilty; upon their Faith and Allegiance to the King, and th〈…〉〈…〉e Judges of the fact, and every of them 〈…〉〈…〉atly give his judgment beginning at the low••••t. But a sub••ect under the degree of Nobi∣li••y,* 1.3 may in case of Treason or Felony challenge 〈…〉〈…〉 as many he can, if he can allege ca〈…〉〈…〉 or malice.

Principall challenges to the Poll may be reduced to four Heads.

• 1. Propter honoris respectum, as any Peer of the ••••alm o•• Lord of Parliament, for these in respect of honour and nobility, are not to be sworn on Juries; and if neither party will challenge* 1.4 him, he may challenge himself, for by Mag∣na Charta it is provided, quod nec super cum ibi••••••s, nec super cum mittemus, nisi per legale judi••••um pa••ium suorum, aut per legem terrae. A Peer of the Realm shall not be impan∣nelled, where any of the Commons is to have a tryal.
• 2. Propter defectum, for want or default,
  • 1. Patriae, as alieus born.
  • 2. Libertatis, as Villains or Bondmen.
  • 3. A••nui census, i. e. liberi tenementi; as if any of the Jury impannelled cannot di∣spend 40 s. by the year of his own Free∣hold.
  • 4▪ Hundredorum, vicini vicinorum facta prae∣sumuntur s••ire.
• 3. Propter affectum, for affection or partiality, as if the Juror be consanguineus of blood or kind∣red to either party, this is a principall challenge; for the Law presumeth, that one kinsman doth fa∣vour another before a stranger. If either party la∣bour the Iuror, and give him any thing to give his

• verdict, this is a principall challenge; but if either party labour the Jury to appear, and to do his conscience; this is no challenge at all, but lawfull for him to do it.
• 4. Propter delictum, for crime, it being a ma∣xime in the Law Repellitur a sacramento in∣famis.

Notes

• * 1.1

  Cook on Lit. l. 2. c. 12. sect. 234.
• * 1.2

  In savo∣rem vitae.
• * 1.3

  Magna Charta saith per judicium Parium suorum.
• * 1.4

  Cook ub•• supra▪