Origins of the Peremptory Challenge

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My name is -----. I'm student from -------------------- Law Faculty, in Poland. I write in the hope that You can answer some questions that have been weighing on my mind of late. It puzzled me when did the defendant acquire the right to peremptory challenges in criminal trial? I think that according to Fleta peremptory challenges were not permitted: the appellor and appellee will be able to remove any jurors legitimately suspected, but it is not sufficient with any jury to put forward a challenge without giving a reason and , if this cannot be verified by those who are not challenged, the man who is challenged will be compelled to take the oath, Fleta, Book I, Cap. 32, p. 86); I have also found examples of challenge for cause in State trials of the reign of Edward the First, 1289-1293, (Tout, Johnstone), pp. 30 and 36 : et quod calumpnianerunt iuratores per certas et racionabiles causas, videlicet quod fuerunt homines Radulfi de Bello Campo qui totum factum procurauit contra eos, nee fuit eorum calumpnia allocata… But no trace of peremptory challenges. First examples are from the Northamptonshire Eyre of 1329-30 (Eyre of Northamptonshire 3-4 Edward III (1329-30), vol. I, p. 179). I have references to the chapter 3. Trial and the verdict revolution from Bellamy, The criminal trial in later medieval England but unfortunately don’t have access to this book. I would greatly appreciate if You could help. Best wishes,

Your move.

John Post (in Jury Lists and Juries in the late fourteenth century; in Twelve Good Men and True: the Criminal Trial Juryin England, 1200-1800 (Princeton, 1988), p. 71) thought there was no evidence in the records of peremptory challenges. A. Musson stated that jury challenges were not uncommon in criminal trials and he givs some examples in his Public Order and Law Enforcement (p. 196). But Musson might be referring to challenges for cause.

-- Main. - 8 Dec 2008 (I accidentally deleted the name of the commenter above. Please put it back if you're reading this. Sorry- James)

It is clear that the accused in criminal trials were allowed to challenge jurors at least for cause, and there is some evidence that they were allowed to challenge peremptorily as well. We know from Bellamy that “The accused might base his challenge on the fact that the jurors were not drawn from the hundred where the crime had been committed or that they had been members of the indicting jury, or that they were related to the victim, or that their wealth was insufficient.” Bellamy, The Criminal Trial in Later Medieval England, 100. But in trials for felony, where the punishment was death, the juror was allowed to challenge with or without giving cause. He could challenge up to 35 jurors without cause. “The rule was that such a peremptory challenge was permissible when a person was on trial for his life.” Bellamy, 100-101. Richard Littleton explained this rule by saying that “The accused … did not have sufficient courage to show a particular cause because their lives were at stake.” Bellamy, 100. (Bellamy cites to Cambridge University Library MS Hh.3.6, ff.8-8v for Littleton’s actual remarks- without access to Cambridge all we have is Bellamy’s restatement of it.) S.E. Thorne and J.H. Baker collaborate this explanation, “In an indictment or an appeal the defendant shal have his peremptory challenges, [which he does not have] in other actions, because when his life is at risk he is so troubled in his mind through fear of death that he has neither the boldness nor the presence of mind to show cause; and because the law presumes that he has a secret cause in mind, which he does not know how to show in a suitable manner, he may therefore challenge thirty-five peremptorily without showing cause.” Thorne and Baker, Readings and Moots at the Inns of Court in the Fifteenth Century, 276.

Determining the date of this rule’s beginning is difficult because the system of record keeping was such that peremptory challenges would only be noted when made by the accused on appeal. “In gaol delivery records instances of juror challenge are rare, as they are elsewhere. This may have been because they only secured a place in legal records if they were made by apellees.” Bellamy, 101. This leaves us with an incomplete record. We have some early examples, as pointed out in the original post aboce, but no definitive first example.

Please, could you send me scanned pages of that books?

-- PavelZlamanczuk? - 13 Dec 2008