Challenge

— [L. Fr. chalenge, from chalenger, calanger, to object, to claim; L. Lat. calumnia, calangia; exceptio.^ In practice. An exception or objection taken either against persons or things. Cowell, The word had this large sense in old practice, a writ or count being as proper a subject of challenge as a juror. See Chodm^ get. In modem practice, however, its signification has been materially narrowed, and it is now almost exclusively used to denote An exception or objection taken to the jurors summoned and returned for the trial of a cause, either individually, (to the polls), or collectively, (to the array). See infra. Bracton, in tueatin^ of the law of challenge, (which has undergone comparatively little change since his time,) employs neither calumnia nor calangia to designate the objection taken, but calls it exceptio contra Juratores. Bract, fol. 185. In Britton chalenge (from which is derived the modem term challenge) is introduced. Britt* c. 62. To CHALLENGE. [L. Fr. chalenger, calenger, calanger; L. Lat. codumnitm^, calumpniare.] In practice. To call to answer;

— to accuse;

— to appeal, in the ancient sense of the word. See Appeal, aad see infra. To claim or assert a right. See Cha^ lenger. To dispute or call in question another's right; hence to object or except to. To object or except to a person. To except against those that are returned to be jurors. Co. Litt. 155 b. T^as is the proper signification of the term in modem practice. The etymolo^ of this word has been variously explained. The Fr. chalenger, from wbich it is immediate^ derired, was used in several senses, as given under that word, 9upra. Lord Coke traces it, through the L. Lat. calumr Uare, ehalumniare, and ealumjmiare from the old Fr. ealoir or chcdoir, to care for or foresee. (7o. l Att. 165 b. Mr. Crabb inclines to derive it from call, " to challenge " meaning " to call or eingle out " a person by way of objection to him. C%66*« Hist. Eng, Law, 299. This deri< ration is adopted by Webster, (who explains challenge to mean '* to call off a juror or jurors," "to demand that a juror shall not sit in trial upon a cause;") and receives great support from the fact that appel, the French word for challenge, is derived from the Latin appellare, to call upon, to call by name. The practice of challenging jurors is mentioned by Blackstone as answering to the recueatio judieis, (rejection of b, judex,) in the civil and canon laws. Cod. 3. 1. 16. Decretal, lib. 2, tit. 28, c. 36. Mr. Spence goes further, and speaks of "the Roman right of challenge" as introduced into England or confirmed, at the Conquest. 1 8pefiee*$ Chancery, 10 b. There was a usage of the middle ages however, which, from its connection with the old trial by peers, and the judicial combat, as well as Its bearing upon the present popular sense of the term challenge, deserves a passing notice. This was the proceeding called an appeal of false judgment; by which a party dissatisfied with the judgment of a court was allowed to appeal the peers of whom the court was composed, that is, to challenge and fight them. Esprit des Lois, liv. 28, c. 27. Beaumanoir, ch. 61, 6Y. Defoniaines, ch. 21, 22, cited ibid. See Appeal of false judgment. Challenob to the array. An exception to the whole panel in which the jury are arrayed, or set in order by the sheriff in his return, upon account of partiality, or some default in the sheriff, coroner, or other officer who arrayed the panel or made the return.* 3 Bl. Com. 869. Co. Lilt. 155 b, 156 a. Wharton's Am. Crim, Law, 699. See Array, Panel. Challbvoe to the polls. [Lat. in capita, against the individuals.] An exception to any one or more of the individuals returned as jurors on the trial of a cause, as not being indifferent between the parties. Termes de la ley. Co. Litt. 156 a. 3 Bl. Com. 361. The grounds of this kind of challenge, or rather of principal challenges to the polls, are reduced by Lord Coke under four heads:— propter honoris rttpecturn, propter defectum, propter affectum and propter delictum, (qq. v.) Co. Litt, 166 b.

Challenge peremptory

A privilege allowed to a prisoner in criminal cases, of challenging peremptorily a certain number of jurors, without assigning any cause. Termes de la ley.

4 Bl. Com. 363. Co. Litt. 166 b.

This is called by Blackstone "an arbitrary and capricious species of challenge," and is permitted in capital cases in favorem vitce.

4 BL Com. 363. Co. Litt. 166 b.

The number of peremptory challenges allowed by the law of England is thirty -five in cases of treason, and twenty in cases of felony.

4 BL Com. 364. 4 Steph. Com. 424. Stat 22 ffen VIII. c. 14. Stat. 6 Geo. IV. c. 50, s. 29.

The same numbers were adopted by the Act of Congress, April 30, 1190, sec.

30.

For the provisions made by the laws of the different states on this subject, see Wharton's Am. Crim. Law, 602, 604.

And see U. S» Digest, and Supplement, Jurors, I. U. S. Ann. Dig. 1847, 1848, h. t.

Challenge for cause. [L. Fr. pur cause.] A challenge for which some cause or reason is alleged. Termes de la ley.

4 BL Com. 363.

Thus distinguished from a peremptory challenge.

Challenge principal

A species of challenge to the polls, so called, according to Lord Coke, because if it be found true, it stands sufficient of itself without leaving any thing to the conscience or discretion of the triers.

Co. Litt 166 b.

Or, according to Sir Wm. Blackstone, (who confines it to the species of challenge propter affectum,) it is so called from the circumstance that the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor, and which, if true, cannot be overruled.

3 BL Com. 363. See 4 Id. 363.

A species of challenge to the array, as distinguished from a challenge to the favor.

Co. Litt 156 a.

Challenge to the favor, or for favor, is where the party has no principal chal* lenge, but objects only some probable circumstances of suspicion, as acquaintance, and the like, the validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favorable or unfavorable.

3 BL Com. 868.

4 Id. 353. r There is some confusion in the books in regard to classifying the various subdivisioiis bf challenges above defined. The older authorities seem to have understood peremptory and principal challenges to signify the same thing. Catoell, citing Stawutf.

PI, Cor. 167, 168.

Blount, citing Lamb, Mren. lib.

4, c. 14.

Termes de la %. The challenge /or cause seems also to have been confounded with the challenge for favor. Termes de la ley.

Cowell, citing Kitch. 92.

Sir W

Blackstone makes principal challenges and challenges to the favor, subdivisions of one species of challenge to the polls, viz., the challenge propter affectum.

3 BL Com. 363.

Lord Coke, on the other hand, makes them the leading divisions both of challenges to the array, and challenges to the polls.

Co. Litt. 166 a, 166 b.