Origins of the Peremptory Challenge

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.