Lists of all persons qualified to be jurors are made out by the churchwanlene and overseers of each pariah, and fixed on the church door for the first three Sundays in September in each year ; these are afterwards allowed at a petty sessions and then delivered to the high constable, who retune them to the next quarter-se,ssions for the county. The clerk of the peace then arranges the lists in a book, which is called the ' Jurors' Book' for the ensuing year, and afterwards delivers it to the sheriff. From tide book the names of the jurors are returned in panels to the different courts.
Special juries are composed of euch persons as are described In the ' Jurors Book' as esquires, and persons of higher degree, or as bankers or merchants ; and it is the duty of the !sheriff to make a distinct list of such persons, which is called the' Special Jurors' List.' When a special jury is ordered by any of the courts, which most always be the result of a special application of one of the parties, 48 names are taken by ballot from this list in the manner particularly described in the statute, which are afterwards reduced to 24 by means of each party striking out 12; and the first 12 of these 24 who answer to their names In court are the special jury for the trial of the cause.
The legitimate mode of objecting to a jury by the parties is by challenge, though in modern practice this course is seldom resorted to, having yielded to the more convenient usage of privately suggesting the objection to the officer who calls the jury in court; upon which the name objected to Is paned over ass matter of course without discussion. This practice, though n far lees troublesome and obnoxious mode of effecting the object of obtaining a jury indifferent between the parties than a formal challenge, Is, strictly speaking, Irregular, and being con sidered to take place by consent, and as a matter of favour, cannot be heisted upon as a right. Challenges are of two kinds: challenges to the array, and challenges to the polls. The challenge to the array is an objection to the whole panel or list of jurors returned for some partiality or default in the sheriff or the under-sheriff by whom it has been arrayed. Challenges to the polls are objections to particular jurors, either on the ground of incompetency (as if they be aliens, or of insufficient qualification within the provisions of the Jnry Act, 0 Geo. IV., cap. 50), or of bias or partiality, or of infamy, as having been convicted of some crime which the law deems infamous. Upon
these challenges the cause of objection must in each case be expressly shown to the court; but in trials for capital offences the accused is entitled to challenge peremptorily (that is, without giving any reason) thirty-five jurors. The king, however, as nominal prosecutor, has no right of peremptory challenge, though ho is not compelled to show his cause of challenge until the panel is gone through, and unless a full jury cannot be formed without the person objected to.
The trial by jury, originally introduced into the law of France in criminal cases by the National Assembly, was retained in the French code. An account of the proceeding and of the qualifications and for mation of the jury will be found in the ` Code d'Instruction Criminelle,' livre ii., tit. 2, chap. iv. and tr, It has often been remarked as a singular fact, that the institution which in England has been highly prized as a security to the subject against the crown, shoulfl have been preserved in France by a despotic monarch, in the zenith of his power, and certainly not disposed to enlarge popular authority. The advan tage of the trial by jury has been frequently the subject of debate amone. German and French jurists, and in particular the propriety of its introduction has been discussed in the various commissions issued with a view to reforming the laws of several of the German States.
Anciently in Scotland all offences were tried by juries; at present all prosecutions of a higher nature must proceed by an assize or jury of 15 men, who determine their verdict by a majority of voices. (Erskine's ' Principles of the Law of Scotland,' book iv. tit. 4.) In the course of many attempted improvements of the Court of Session, several efforts have been made to introduce the trial by jury into civil proceedings in Scotland; but great and general opposition has been made to it by the courts and the legal profession in Edinburgh. It cannot be said to have beeu fairly tried as yet, for no judges have been trained to its use, and no generation has had opportunity to learn how to act as jurymen. Whether the people of Scotland shall ever obtain the advantages of our English trial by jury, it seems difficult to say. Recent legislation on the subject, and recent observations in the House of Lords, have demonstrated that as an instrument in the adminis tration of civil justice, trial by jury is not yet practicable in Scotland.