The Online Library of Liberty

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• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

*[*258The sixth, and last, object of our inquiries will be the method of inflicting those punishments which the law has annexed to particular offences; and which I have constantly subjoined to the description of the crime itself. In the discussion of which I shall pursue much the same general method that I followed in the preceding book with regard to the redress of civil injuries: by, first, pointing out the several courts of criminal jurisdiction, wherein offenders may be prosecuted to punishment; and by, secondly, deducing down in their natural order, and explaining, the several proceedings therein.

First, then, in reckoning up the several courts of criminal jurisdiction, I shall, as in the former case, begin with an account of such as are of a public and general jurisdiction throughout the whole realm, and afterwards proceed to such as are only of a private and special jurisdiction, and confined to some particular parts of the kingdom.

I. In our inquiries into the criminal courts of public and general jurisdiction I must in one respect pursue a different order from that in which I considered the civil tribunals. For there, as the several courts had a gradual subordination to each other, the superior correcting and reforming the errors of the inferior, I thought it best to begin with the lowest, and so ascend gradually to the courts of appeal, or those of *[*259the most extensive powers. But as it is contrary to the genius and spirit of the law of England to suffer any man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial, therefore these criminal courts may be said to be all independent of each other, at least so far as that the sentence of the lowest of them can never be controlled or reversed by the highest jurisdiction in the kingdom, unless for error in matter of law apparent upon the face of the record; though sometimes causes may be removed from one to the other before trial. And therefore, as in these courts of criminal cognizance there is not the same chain and dependence as in the others, I shall rank them according to their dignity, and begin with the highest of all; viz,—

1. The high court of parliament, which is the supreme court in the kingdom, not only for the making but also for the execution of laws, by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose, I speak not of them, being to all intents and purposes new laws, made pro re nata, and by no means an execution of such as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom.(a) A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanours.(b)1 A peer may be impeached for any *[*260crime: and they usually (in case of an impeachment of a peer for treason) address the crown to appoint a lord high steward for the greater dignity and regularity of their proceedings, which high steward was formerly elected by the peers themselves, though he was generally commissioned by the king;(c) but it hath of late years been strenuously maintained(d) that the appointment of a high steward in such cases is not indispensably necessary, but that the house may proceed without one. The articles of impeachment are a kind of bills of indictment found by the house of commons, and afterwards tried by the lords, who are, in cases of misdemeanours, considered not only as their own peers, but as the peers of the whole nation. This is a custom derived to us from the constitution of the antient Germans, who, in their great councils, sometimes tried capital accusations relating to the public: “licet apud consilium accusare quoque, et discrimen capitis intendere.”(e) And it has a peculiar propriety in the English constitution, which has much improved upon the antient model imported hither from the continent. For, though in general the union of the legislative and judicial powers ought to be more carefully avoided,(f) yet it may happen that a subject intrusted with the administration of public affairs may infringe the rights of the people, and be guilty of such crimes as the ordinary magistrate either **261dares not or cannot punish. Of these the representatives of the people or house of commons cannot properly judge, because their constituents are the parties injured, and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason, therefore, will suggest that this branch of the legislature, which represents the people, must bring its charge before the other branch, which consists of the nobility, who have neither the same interests nor the same passions as popular assemblies.(g) This is a vast superiority which the constitution of this island enjoys over those of the Grecian or Roman republics, where the people were at the same time both judges and accusers. It is proper that the nobility should judge, to insure justice to the accused, as it is proper that the people should accuse, to insure justice to the commonwealth. And therefore, among other extraordinary circumstances attending the authority of this court, there is one of a very singular nature, which was insisted on by the house of commons in the case of the earl of Danby, in the reign of Charles II.;(h) and it is now enacted, by statute 12 & 13 W. III. c. 2, that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament.(i)

2. The court of the lord high steward of Great Britain(k) is a court instituted for the trial of peers indicted for treason or felony, or for misprision of either.(l) The office of this great magistrate is very antient, and was formerly hereditary, or at least held for life, or dum bene se gesserit: but now it is usually, and hath been for many centuries past,(m) granted pro hac vice only; and it hath been the constant practice (and therefore seems now to have become necessary) to grant *[*262it to a lord of parliament, else he is incapable to try such delinquent peer.(n) When such an indictment is therefore found by a grand jury of freeholders in the king’s bench, or at the assizes before the justices of oyer and terminer, it is to be removed by a writ of certiorari into the court of the lord high steward, which only has power to determine it. A peer may plead a pardon before the court of king’s bench, and the judges have power to allow it, in order to prevent the trouble of appointing a high steward merely for the purpose of receiving such plea. But he may not plead in that inferior court any other plea, as guilty or not guilty of the indictment, but only in this court; because, in consequence of such plea, it is possible that judgment of death might be awarded against him. The king, therefore, in case a peer be indicted for treason, felony, or misprision, creates a lord high steward pro hac vice, by commission under the great seal, which recites the indictment so found, and gives his grace power to receive and try it secundum legem et consuetudinem Angliæ. Then, when the indictment is regularly removed by writ of certiorari, commanding the inferior court to certify it up to him, the lord high steward directs a precept to a serjeant-at-arms to summon the lords to attend and try the indicted peer. This precept was formerly issued to summon only eighteen or twenty, selected from the body of the peers: then the number came to be indefinite, and the custom was for the lord high steward to summon as many as he thought proper, (but of late years not less than twenty-three,)(o) and that those lords only should sit upon the trial;2 which threw a monstrous weight of power into the hands of the crown and this its great officer of selecting only such peers as the then predominant party should most approve of. And accordingly, when the earl of Clarendon fell into disgrace with Charles II., *[*263there was a design formed to prorogue the parliament, in order to try him by a select number of peers, it being doubted whether the whole house could be induced to fall in with the views of the court.(p) But now, by statute 7 W. III. c. 3, upon all trials of peers for treason or misprision, all the peers who have a right to sit and vote in parliament shall be summoned at least twenty days before such trial to appear and vote therein; and every lord appearing shall vote in the trial of such peer, first taking the oaths of allegiance and supremacy and subscribing the declaration against popery.

During the session of parliament the trial of an indicted peer is not properly in the court of the lord high steward, but before the court last mentioned,—of our lord the king in parliament.(q) It is true, a lord high steward is always appointed in that case to regulate and add weight to the proceedings; but he is rather in the nature of a speaker pro tempore or thairman of the court than the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high steward has a vote with the rest, in right of his peerage. But in the court of the lord high steward, which is held in the recess of parliament, he is the sole judge of matters of law, as the lords triors are in matters of fact; and as they may not interfere with him in regulating the proceedings of the court, so he has no right to intermix with them in giving any vote upon the trial.(r) Therefore, upon the conviction and attainder of a peer for murder in full parliament, it hath been holden by the judges(s) that in case the day appointed in the judgment for execution should lapse before execution done, a new time of execution may be appointed by either the high court of parliament during its sitting, though no high steward be existing, or in the recess of parliament by the court of king’s bench, the record being removed into that court.

**264]It has been a point of some controversy whether the bishops have now a right to sit in the court of the lord high steward to try indictments of treason and misprision. Some incline to imagine them included under the general words of the statute of king William, “all peers who have a right to sit and vote in parliament;” but the expression had been much clearer if it had been “all lords,” and not “all peers;” for though bishops, on account of the baronies annexed to their bishoprics, are clearly lords of parliament, yet, their blood not being ennobled, they are not universally allowed to be peers with the temporal nobility: and perhaps this word might be inserted purposely with a view to exclude them. However, there is no instance of their sitting on trials for capital offences, even upon impeachments or indictments in full parliament, much less in the court we are now treating of; for, indeed, they usually withdraw voluntarily, but enter a protest declaring their right to stay. It is observable that, in the eleventh chapter of the constitutions of Clarendon, made in parliament, 11 Hen. II., they are expressly excused, rather than excluded, from sitting and voting in trials when they come to concern life or limb: “episcopi, sicut cæteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem;” and Becket’s quarrel with the king hereupon was not on account of the exception, (which was agreeable to the canon law,) but of the general rule that compelled the bishops to attend at all. And the determination of the house of lords in the earl of Danby’s case,(t) which hath ever since been adhered to, is consonant to these constitutions: “that the lords spiritual have a right to stay and sit in court in capital cases till the court proceeds to the vote of guilty or not guilty.” It must be noted that this resolution extends only to trials in full parliament: for to the court of the lord high steward (in which no vote can be given but merely that of guilty or not guilty) no bishop, as such, ever was or could be summoned; and though the statute of king William **265]regulates the proceedings in that court as well as in the court of parliament, yet it never intended to new-model or alter its constitution, and consequently does not give the lords spiritual any right in cases of blood which they had not before.(u) And what makes their exclusion more reasonable is, that they have no right to be tried themselves in the court of the lord high steward,(w) and therefore surely ought not to be judges there. For the privilege of being thus tried depends upon nobility of blood rather than a seat in the house, as appears from the trial of popish lords, of lords under age, and (since the union) of the Scots nobility, though not in the number of the sixteen; and from the trials of females, such as the queen consort or dowager, and of all peeresses by birth, and peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband.3

3. The court of king’s bench,(x) concerning the nature of which we partly inquired in the preceding book,(y) was (we may remember) divided into a crown side and a plea side. And on the crown side or crown office it takes cognizance of all criminal causes, from high treason down to the most trivial misdemeanour or breach of the peace.4 Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar or at nisi prius by a jury of the county out of which the indictment is brought.5 The judges of this court are the supreme coroners of the kingdom, and the court itself is the principal court of criminal jurisdiction (though the two former are of greater dignity) known to the laws of England. For which reason, by the coming of the court of king’s bench into any county, (as it was removed to Oxford on account of the sickness in 1665,) all former commissioners of oyer and terminer and general gaol delivery are at once absorbed and determined ipso facto; *[*266in the same manner as, by the old Gothic and Saxon constitutions, “jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege.”(z)6

Into this court of king’s bench hath reverted all that was good and salutary of the jurisdiction of the court of starchamber, camera stellata,(a)7 which was a court of very antient original,(b) but new-modelled by statutes 3 Hen. VII. c. 1 and 21 Hen. VIII. c. 20, consisting of divers lords spiritual and temporal being privy counsellors, together with two judges of the courts of common law, without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour of sheriffs, and other notorious **267]misdemeanours contrary to the laws of the land. Yet this was afterwards (as lord Clarendon informs us)(c) stretched “to the asserting of all proclamations and orders of state; to the vindicating of illegal commissions and grants of monopolies; holding for honourable that which pleased and for just that which profited, and becoming both a court of law to determine civil rights and a court of revenue to enrich the treasury; the council-table by proclamations enjoining to the people that which was not enjoined by the laws, and prohibiting that which was not prohibited; and the star-chamber, which consisted of the same persons in different rooms, censuring the breach and disobedience to those proclamations by very great fines, imprisonments, and corporal severities: so that any disrespect to any acts of state or to the persons of statesmen was in no time more penal, and the foundations of right never more in danger to be destroyed.” For which reason it was finally abolished, by statute 16 Car. I. c. 10, to the general joy of the whole nation.(d)

4. **268]The court of chivalry,(e) of which we also formerly spoke(f) as a military court or court of honour, when held before the earl marshal only, is also a criminal court when held before the lord high constable of England jointly with the earl marshal. And then it has jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it. But the criminal as well as civil part of its authority is fallen into entire disuse, there having been no permanent high constable of England (but only pro hac vice, at coronations and the like) since the attainder and execution of Stafford duke of Buckingham in the thirteenth year of Henry VIII.; the authority and charge, both in war and peace, being deemed too ample for a subject: so ample, that when the chief justice Fineux was asked by king Henry the Eighth how far they extended, he declined answering, and said the decision of that question belonged to the law of arms, and not to the law of England.(g)

5. The high court of admiralty,(h) held before the lord high admiral of England or his deputy, styled the judge of the admiralty, is not only a court of civil but also of criminal jurisdiction. This court hath cognizance of all crimes and offences committed either upon the sea or on the coasts out of the body or extent of any English county, and, by statute 15 Ric. II. c. 3, of death and mayhem happening in great ships being and hovering in the main stream of great rivers, below the bridges of the same rivers, which are then a sort of ports or havens, such as are the ports of London and Gloucester, though they lie at a great distance from the sea. But, as this court proceeded without jury, in a method much conformed to the civil law, the exercise of a criminal jurisdiction there was contrary to the genius of the law of England, inasmuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers. And besides, as innocent persons might thus fall a sacrifice to the caprice of a single man, so very gross offenders might and did frequently escape *[*269punishment; for the rule of the civil law is, how reasonably I shall not at present inquire, that no judgment of death can be given against offenders without proof by two witnesses, or a confession of the fact by themselves. This was always a great offence to this English nation; and therefore, in the eighth year of Henry VI., it was endeavoured to apply a remedy in parliament, which then miscarried for want of the royal assent. However, by the statute 28 Hen. VIII. c. 15, it was enacted that these offences should be tried by commissioners of oyer and terminer under the king’s great seal, namely, the admiral or his deputy, and three or four more, (among whom two common-law judges are usually appointed;) the indictment being first found by a grand jury of twelve men, and afterwards tried by a petty jury: and that the course of proceedings should be according to the law of the land. This is now the only method of trying marine felonies in the court of admiralty, the judge of the admiralty still presiding therein, as the lord mayor is the president of the session of oyer and terminer in London.9

These five courts may be held in any part of the kingdom, and their jurisdiction extends over crimes that arise throughout the whole of it, from one end to the other. What follow are also of a general nature, and universally diffused over the nation, but yet are of a local jurisdiction, and confined to particular districts. Of which species are,10 —

6, 7. The courts of oyer and terminer and the general gaol delivery,(i) which are held before the king’s commissioners, among whom are usually two judges of the courts at Westminster, twice in every year in every county of the kingdom except the four northern ones, where they are held only once, and London and Middlesex, wherein they are held eight times. These were slightly mentioned in the preceding book.(k) We then observed that at what is usually called the assizes the judges sit by virtue of five several authorities, two of which, the commission of assize and its attendant jurisdiction of nisi **270]prius, being principally of a civil nature, were then explained at large; to which I shall only add that these justices have, by virtue of several statutes, a criminal jurisdiction also in certain special cases.(l) The third, which is the commission of the peace, was also treated of in a former volume,(m) when we inquired into the nature and office of a justice of the peace. I shall only add that all the justices of the peace of any county wherein the assizes are held are bound by law to attend them, or else are liable to a fine, in order to return recognizances, &c., and to assist the judges in such matters as lie within their knowledge and jurisdiction, and in which some of them have probably been concerned by way of previous examination. But the fourth authority is the commission of oyer and terminer,(n) to hear and determine all treasons, felonies, and misdemeanours. This is directed to the judges and several others, or any two of them; but the judges or serjeants-at-law only are of the quorum, so that the rest cannot act without the presence of one of them. The words of the commission are, “to inquire, hear, and determine;” so that by virtue of this commission they can only proceed upon an indictment found at the same assizes; for they must first inquire by means of the grand jury or inquest before they are empowered to hear and determine by the help of the petit jury. Therefore they have, besides, fifthly, a commission of general gaol delivery,(o) which empowers them to try and deliver every prisoner who shall be in the gaol when the judges arrive at the circuit town, whenever or before whomsoever indicted, or for whatever crime committed. It was antiently the course to issue special writs of gaol delivery for each particular prisoner, which were called the writs de bono et malo;(p) but, these being found inconvenient and oppressive, a general commission for all the prisoners has long been established in their stead. So that, one way or other, the gaols are in general cleared, and all offenders tried, punished, or delivered, twice in every year: a constitution of singular use and *[*271excellence.11 Sometimes, also, upon urgent occasions, the king issues a special or extraordinary commission of oyer and terminer and gaol delivery, confined to those offences which stand in need of immediate inquiry and punishment; upon which the course of proceeding is much the same as upon general and ordinary commissions. Formerly it was held, in pursuance of the statutes 8 Ric. II. c. 2 and 33 Hen. VIII. c. 4, that no judge or other lawyer could act in the commission of oyer and terminer or in that of gaol delivery within his own county where he was born or inhabited, in like manner as they are prohibited from being judges of assize and determining civil causes. But that local partiality, which the jealousy of our ancestors was careful to prevent, being judged less likely to operate in the trial of crimes and misdemeanours than in matters of property and disputes between party and party, it was thought proper, by the statute 12 Geo. II. c. 27, to allow any man to be a justice of oyer and terminer and general gaol delivery within any county of England.

8. The court of general quarter sessions of the peace(q) is a court that must be held in every county once in every quarter of a year, which, by statute 2 Hen. V. c. 4, is appointed to be in the first week after Michaelmas-day, the first week after the Epiphany, the first week after the close of Easter, and in the week after the translation of St. Thomas the martyr, or the seventh of July.12 It is held before two or more justices of the peace, one of which must be of the quorum. The jurisdiction of this court, by statute 34 Edw. III. c. 1, extends to the trying and determining all felonies and trespasses whatsoever, though they seldom if ever try any greater offence than small felonies within the benefit of clergy; their commission providing that, if any case of difficulty arises, they shall not proceed to judgment but in the presence of one of the justices of the court of king’s bench or common pleas, or one of the judges of assize. And therefore murders and other capital felonies are usually remitted, for a **272]more solemn trial, to the assizes. They cannot also try any new-created offence without express power given them by the statute which creates it.(r) But there are many offences and particular matters which by particular statutes belong properly to this jurisdiction, and ought to be prosecuted in this court; as the smaller misdemeanours against the public or commonwealth not amounting to felony, and especially offences relating to the game, highways, alehouses, bastard children, the settlement and provision of the poor, vagrants, servants’ wages, apprentices, and popish recusants.(s) Some of these are proceeded upon by indictment, and others in a summary way by motion and order thereupon; which order may for the most part, unless guarded against by particular statutes, be removed into the court of king’s bench by a writ of certiorari facias, and be there either quashed or confirmed. The records or rolls of the sessions are committed to the custody of a special officer denominated the custos rotulorum, who is always a justice of the quorum; and among them of the quorum (saith Lambard)(t) a man for the most part especially picked out, either for wisdom, countenance, or credit. The nomination of the custos rotulorum (who is the principal civil officer in the county, as the lord lieutenant is the chief in military command) is by the king’s sign-manual; and to him the nomination of the clerk of the peace belongs, which office he is expressly forbidden to sell for money.(u)

In most corporation-towns there are quarter sessions kept before justices of their own, within their respective limits, which have exactly the same authority as the general quarter sessions of the county, except in a very few instances; one of the most considerable of which is the matter of appeals from orders of removal of the poor, which, though they be from the orders of corporation-justices, must be to the sessions of the county, by statute 8 & 9 W. III. c. 30. In both corporations and counties at large there is sometimes kept a special or **273]petty session, by a few justices, for despatching smaller business in the neighbourhood between the times of the general sessions: as for licensing alehouses, passing the accounts of the parish officers, and the like.

9. The sheriff’s tourn,(v) or rotation, is a court of record held twice every year, within a month after Easter and Michaelmas, before the sheriff, in different parts of the county; being indeed only the turn of the sheriff to keep a court leet in each respective hundred:(w) this therefore is the great court-leet of the county, as the county-court is the court-baron; for out of this, for the ease of the sheriff, was it taken.

10. The court-leet, or view of frankpledge,(x) which is a court of record, held once in the year, and not oftener,(y) within a particular hundred, lordship, or manor, before the steward of the leet: being the king’s court, granted by charter to the lords of those hundreds or manors. Its original intent was to view the frankpledges, that is, the freemen within the liberty; who, (we may remember,)(z) according to the institution of the great Alfred, were all mutually pledges for the good behaviour of each other. Besides this, the preservation of the peace, and the chastisement of divers minute offences against the public good, are the objects both of the court-leet and the sheriff’s tourn; which have exactly the same jurisdiction, one being only a larger species of the other, extending over more territory but not over more causes. All freeholders within the precinct are obliged to attend them, and all persons commorant therein; which commorancy consists in usually lying there: a regulation which owes its origin to the laws of king Canute.(a) But persons under twelve and above sixty years old, peers, clergymen, women, and the king’s tenants in antient demesne, are excused from attendance there; all others being bound to appear upon the jury, if required, and make their due presentments. It was also antiently the custom to summon all the king’s subjects, as they respectively grew to years of discretion and strength, to *[*274come to the court-leet and there take the oath of allegiance to the king. The other general business of the leet and tourn was to present by jury all crimes whatsoever that happened within their jurisdiction; and not only to present, but also to punish, all trivial misdemeanours, as all trivial debts were recoverable in the court-baron and county-court; justice, in these minuter matters of both kinds, being brought home to the doors of every man by our antient constitution. Thus, in the Gothic constitution, the hæreda, which answered to our court-leet, “de omnibus quidem cognoscit, non tamen de omnibus judicat.”(b) The objects of their jurisdiction are therefore unavoidably very numerous: being such as in some degree, either less or more, affect the public weal or good governance of the district in which they arise; from common nuisances, and other material offences against the king’s peace and public trade, down to eaves-dropping, waifs, and irregularities in public commons. But both the tourn and the leet have been for a long time in a declining way; a circumstance owing in part to the discharge granted by the statute of Marlbridge, 52 Hen. III. c. 10, to all prelates, peers, and clergymen, from their attendance upon these courts, which occasioned them to grow into disrepute. And hence it is that their business hath for the most part gradually devolved upon the quarter sessions, which it is particularly directed to do in some cases by statute 1 Edw. IV. c. 2.

11. The court of the coroners(c) is also a court of record, to inquire when any one dies in prison, or comes to a violent or sudden death, by what manner he came to his end. And this he is only entitled to do super visum corporis.13 Of the coroner and his office we treated at large in a former volume,(d) among the public officers and ministers of the kingdom, and therefore shall not here repeat our inquiries; only mentioning his court by way of regularity among the criminal courts of the nation.

*[*27512. The court of the clerk of the market(e) is incident to every fair and market in the kingdom, to punish misdemeanours therein, as a court of pie poudre is, to determine all disputes relating to private or civil property. The object of this jurisdiction(f) is principally the recognizance of weights and measures, to try whether they be according to the true standard thereof or no; which standard was antiently committed to the custody of the bishop, who appointed some clerk under him to inspect the abuse of them more narrowly; and hence this officer, though now usually a layman, is called the clerk of the market.(g) If they be not according to the standard, then, besides the punishment of the party by fine, the weights and measures themselves ought to be burned. This is the most inferior court of criminal jurisdiction in the kingdom: though the objects of its coercion were esteemed among the Romans of such importance to the public that they were committed to the care of some of their most dignified magistrates, the curule ædiles.

II. There are a few other criminal courts of greater dignity than many of these, but of a more confined and partial jurisdiction; extending only to some particular places which the royal favour, confirmed by act of parliament, has distinguished by the privilege of having peculiar courts of their own for the punishment of crimes and misdemeanours arising within the bounds of their cognizance. These, not being universally dispersed, or of general use, as the former, but confined to one spot as well as to a determinate species of causes, may be denominated private or special courts of criminal jurisdiction.

I speak not here of ecclesiastical courts, which punish spiritual sins, rather than temporal crimes, by penance, contrition, and excommunication, pro salute animæ, or, which is looked upon as equivalent to all the rest, by a sum of **276]money to the officers of the court by way of commutation of penance. Of these we discoursed sufficiently in the preceding book.(h) I am now speaking of such courts as proceed according to the course of the common law; which is a stranger to such unaccountable bartering of public justice.

1. And, first, the court of the lord steward, treasurer, or comptroller of the king’s household(i) was instituted, by statute 3 Hen. VII. c. 14, to inquire of felony by any of the king’s sworn servants, in the check-roll of the household, under the degree of a lord, in confederating, compassing, conspiring, and imagining the death or destruction of the king or any lord or other of his majesty’s privy council, or the lord steward, treasurer, or comptroller of the king’s house. The inquiry, and trial thereupon, must be by a jury, according, to the course of the common law, consisting of twelve sad men (that is, sober and discreet persons) of the king’s household.

2. The court of the lord steward of the king’s household, or (in his absence) of the treasurer, comptroller, and steward of the marshalsea,(k) was erected by statute 33 Hen. VIII. c. 12, with a jurisdiction to inquire of, hear, and determine all treasons, misprisions of treason, murders, manslaughters, bloodshed, and other malicious strikings, whereby blood shall be shed in or within the limits (that is within two hundred feet from the gate) of any of the palaces and houses of the king, or any other house where the royal person shall abide. The proceedings are also by jury, both a grand and a petit one, as at common law, taken out of the officers and sworn servants of the king’s household. The form and solemnity of the process, particularly with regard to the execution of the sentence for cutting off the hand, which is part of the punishment for shedding blood in the king’s court, are very minutely set forth in the said statute 33 Hen. VIII., and the several offices of the servants of the household in and about such execution are **277]described, from the sergeant of the wood-yard, who furnishes the chopping-block, to the sergeant-farrier, who brings hot irons to sear the stump.14

3. As in the preceding book(l) we mentioned the courts of the two universities, or their chancellors’ courts, for the redress of civil injuries, it will not be improper now to add a short word concerning the jurisdiction of their criminal courts, which is equally large and extensive. The chancellor’s court of Oxford (with which university the author hath been chiefly conversant, though probably that of Cambridge hath also a similar jurisdiction) hath authority to determine all causes of property wherein a privileged person is one of the parties, except only causes of freehold, and also all criminal offences or misdemeanours under the degree of treason, felony, or mayhem. The prohibition of meddling with freehold still continues; but the trial of treason, felony, and mayhem, by a particular charter, is committed to the university-jurisdiction in another court, namely, the court of the lord high steward of the university.

For, by the charter of 7 Jun. 2 Hen. IV., (confirmed, among the rest, by the statute 13 Eliz. c. 29,) cognizance is granted to the university of Oxford of all indictments of treasons, insurrections, felony, and mayhem which shall be found in any of the king’s courts against a scholar or privileged person; and they are to be tried before the high steward of the university, or his deputy, who is to be nominated by the chancellor of the university for the time-being. But when his office is called forth into action, such high steward must be approved of by the lord high chancellor of England; and a special commission under the great seal is given to him and others to try the indictment, then depending, according to the law of the land and the privileges of the said university. When, therefore, an indictment is found *[*278at the assizes, or elsewhere, against any scholar of the university, or other privileged person, the vice-chancellor may claim the cognizance of it; and (when claimed in due time and manner) it ought to be allowed him by the judges of assize: and then it comes to be tried in the high steward’s court. But the indictment must first be found by a grand jury, and then the cognizance claimed; for I take it that the high steward cannot proceed originally ad inquirendum, but only, after inquest in the common-law courts, ad audiendum et determinandum. Much in the same manner as when a peer is to be tried in the court of the lord high steward of Great Britain, the indictment must first be found at the assizes or in the court of king’s bench, and then (in consequence of a writ of certiorari) transmitted to be finally heard and determined before his grace the lord high steward and the peers.

When the cognizance is so allowed, if the offence be inter minora crimina, or a misdemeanour only, it is tried in the chancellor’s court by the ordinary judge. But if it be for treason, felony, or mayhem, it is then, and then only, to be determined before the high steward, under the king’s special commission to try the same. The process of the trial is this. The high sheriff issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedels of the university, who thereupon return a panel of eighteen matriculated laymen, “laicos privilegio universitatis gaudentes:” and by a jury formed de medietate, half of freeholders and half of matriculated persons, is the indictment to be tried; and that in the guildhall of the city of Oxford. And if execution be necessary to be awarded, in consequence of finding the party guilty, the sheriff of the county must execute the university-process; to which he is annually bound by an oath.

*[*279I have been the more minute in describing these proceedings, as there has happily been no occasion to reduce them into practice for more than a century past, nor will it perhaps ever be thought advisable to revive them; though it is not a right that merely rests in scriptis or theory, but has formerly often been carried into execution. There are many instances—one in the reign of queen Elizabeth, two in that of James the First, and two in that of Charles the First—where indictments for murder have been challenged by the vice-chancellor at the assizes, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff’s and bedel’s panels, and all the other proceedings on the trial of the several indictments are still extant in the archives of that university.

[(a) ] 1 Hal. P. C. 150.

[(b) ] When (in 4 Edw. III.) the king demanded the earls, barons, and peers to give judgment against Simon de Bereford, who had been a notorious accomplice in the treasons of Roger, earl of Mortimer, they came before the king in parliament, and said all, with one voice, that the said Simon was not their peer, and therefore they were not bound to judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect of the notoriety and heinousness of his crimes, to receive the charge and to give judgment against him, the following protest and proviso was entered in the parliament roll:—“And it is assented and accorded by our lord the king, and all the great men, in full parliament, that albert the peers, as judges of the parliament, have taken upon them, in the presence of our lord the king, to make and render the said judgment, yet the peers who now are, or shall be in time to come, be not bound or charged to render judgment upon others than peers; nor that the peers of the land have power to do this, but thereof ought ever to be discharged and acquitted; and that the aforesaid judgment now rendered be not drawn to example or consequence in time to come, whereby the said peers may be charged hereafter to judge others than their peers, contrary to the laws of the land, if the like case happen, which God forbid.” Rot. Parl. 4 Edw. III. n. 2 and 6. 2 Brad. Hist. 190. Selden, Judic. in Parl. ch. 1.

[1 ] For misdemeanours, as libels, riots, &c., peers are to be tried, like commoners, by a jury; for, “at the common law, in these four cases only, a peer shall be tried by his peers,—viz., in treason, felony, misprision of treason, and misprision of felony; and the statute law which gives such trial hath reference unto these or to other offences made treason or felony. His trial by his peers shall be as before; and to this effect are all these statutes,—viz., 32 Hen. VIII. c. 4, Rastall, 404, pl. 10. 33 Hen. VIII. c. 12, Rastall, 415. 35 Hen. VIII. c. 2, Rastall, 416; and in all these express mention is made of trial by peers. But in this case of a præmunire, the same being only in effect but a contempt, no trial shall be here in this of a peer by his peers.” Per Fleming, C. J., assented to by the whole court, in Rex vs. Lord Vaux, 1 Bulstr. 197.—Chitty.

But, according to the last resolution of the house of lords, a commoner may be impeached for a capital offence. On the 26th of March, 1680, Edward Fitzharris, a commoner, was impeached by the commons of high treason; upon which the attorney-general acquainted the peers that he had an order from the king to prosecute Fitzharris by indictment; and a question thereupon was put whether he should be proceeded against according to the course of the common law, or by way of impeachment, and it was resolved against proceeding in the impeachment. 13 Lords’ Jour. p. 755. Fitzharris was afterwards prosecuted by indictment, and he pleaded in abatement that there was an impeachment pending against him for the same offence; but this plea was overruled, and he was convicted and executed. But on the 26th of June, 1689, Sir Adam Blair and four other commoners were impeached for high treason, in having published a proclamation of James the Second. On the 2d of July a long report of precedents was produced, and a question was put to the judges whether the record 4 Edw. III. No. 6 was a statute. They answered, as it appeared to them by the copy, they believed it to be a statute, but if they saw the roll itself they could be more positive. It was then moved to ask the judges—but the motion was negatived—whether by this record the lords were barred from trying a commoner for a capital crime upon an impeachment of the commons; and they immediately resolved to proceed in this impeachment, notwithstanding the parties were commoners and charged with high treason. 14 Lords’ Jour. p. 260. But the impeachment was not prosecuted with effect, on account of an intervening dissolution of parliament.—Christian.

[(c) ] 1 Hal. P. C. 350.

[(d) ] Lords’ Jour. May 12, 1679. Com. Jour. May 15, 1679. Foster. 142, &c.

[(e) ] Tacit de Mor. Germ. 12.

[(f) ] See book ii. page 269.

[(g) ] Montesq. Sp. L. xi. 6.

[(h) ] Com. Jour. May 5, 1679.

[(i) ] See ch. 31.

[(k) ] 4 Inst. 58. 2 Hawk. P. C. 5, 421. 2 Jon. 54.

[(l) ] 1 Bulstr. 198.

[(m) ] Pryn. on 4 Inst. 46.

[(n) ]Quand un seigneur de parlement serra arrein de treason ou felony, le roy par ses lettres patents fera un grand et sage seigneur d’estre le grand seneschal d’Angleterre. qui doit faire un precept pur faire venir xx. seigneurs, ou xviii., &c. Year-book, 13 Hen. VIII. 11. See Staundf. P. C. 152. 3 Inst. 28. 4 Inst. 59. 2 Hawk. P. C. 5. Barr. 234.

[(o) ] Kelynge, 56.

[2 ] The decision is by a majority; but a majority cannot convict unless it consists of twelve or more. See ante, book iii. p. 376, note.

A peer cannot have the benefit of a challenge like a commoner. 1 Harg. St. Trials, 198, 388.—Chitty.

[(p) ] Carte’s Life of Ormonde, vol. ii.

[(q) ] Fost. 141.

[(r) ] State Trials, vol. iv. 214, 232, 233.

[(s) ] Fost. 139.

[(t) ] Lords’ Jour. May 15, 1679.

[(u) ] Fost. 248.

[(w) ] Bro. Abr. tit. Trial, 142.

[3 ] But peeresses by marriage cannot be said to be ennobled by blood; for after the death of their husbands they have even a less estate in their nobility than bishops, it being only durante viduitate. See the editor’s conjecture how the notion was originally introduced that bishops were not entitled to a trial by the peers in parliament. Book i. p. 401, note. Since that note was written, the editor has been happy in finding what he suggested only as a conjecture drawn from general principles confirmed by the more extensive learning of the late Vinerian professor, Mr. Wooddesson, who not only has adopted the same opinion, but has adduced in confirmation of it several instances of bishops who, being arraigned before a jury, demanded the privileges of the church, and disclaimed the authority of all secular jurisdictions. 2 Woodd. 585.—Christian.

[(x) ] 4 Inst. 70. 2 Hal. P. C. 2. 2 Hawk. P. C. 6.

[(y) ] See book iii. page 41.

[4 ] Without some statute for that purpose, offences committed out of England are not cognizable by this court. 1 Esp. Rep. 62. 1 Sess. Ca. 246. If, however, any part of an offence be completed in Middlesex, though the rest were committed abroad, an indictment lies in this court, or, in case of misdemeanour, an information, if the offence were committed in any other county. 1 Esp. Rep. 63. 2 New Rep. 91. And this though the defendant himself was out of the kingdom at the time, if he caused the offence to be committed here; as where the defendant sent over a libel from Ireland to be published at Westminster. 6 East, 589, 590. Persons in his majesty’s service abroad committing offences there may be prosecuted in the King’s Bench by indictment or information, laying the venue in Middlesex. 42 Geo. III. c. 85, s. 1. 8 East, 31. So offences committed in the East Indies are subject to this jurisdiction. 24 Geo. III. sess. 2, c. 25, ss. 64, 78, 81. 5 T. R. 607. So if high treason be committed out of the kingdom, it can only be tried in the court of King’s Bench, or under a special commission. 32 Hen. VIII. c. 23. 1 Leach, 157. 1 Hale, 1. And this court has jurisdiction by information over offences committed in Berwick. 2 Burr. 860.—Chitty.

[5 ] All informations filed in the court of King’s Bench, and all indictments removed there by certiorari, if not tried at the bar of the court, (which rarely happens,) must be tried by writ of nisi prius.—Christian.

[(z) ] Stiernhook, l. 1, c. 2.

[6 ] But, by the 25 Geo. III. c. 18, it is enacted that the session of oyer and terminer and gaol-delivery of the gaol of Newgate for the county of Middlesex shall not be discon tinued on account of the commencement of the term, and the sitting of the court of King’s Bench at Westminster, but may be continued till the business is concluded. And the 32 Geo. III. c. 48 was passed to continue in like manner the sessions of the peace, and of oyer and terminer, held before the justices of the peace for the county of Middlesex.—Christian.

[(a) ] This is said (Lamb. Arch 154) to have been so called either from the Saxon word [Editor: illegible word] to steer or govern,—or from its punishing the crimen stellionatus, or cosenage,—or because the room wherein it sat—the old council-chamber of the palace of Westminster, (Lamb. 148,) which is now converted into the lottery-office, and forms the eastern side of New Palace-yard—was full of windows, or (to which Sir Edward Coke (4 Inst. 66) accedes) because haply the roof thereof was at the first garnished with gilded stars. As all these are merely conjectures, (for no stars are now in the roof, nor are any said to have remained there so late as the reign of queen Elizabeth,) it may be allowable to propose another conjectural etymology, as plausible perhaps as any of them. It is well known that before the banishment of the Jews under Edward I. their contracts and obligations were denominated in our ancient records starra or starrs, from a corruption of the Hebrew word shetar, a covenant. Tovey’s Angl Judaic. 32. Selden, tit. of Hon. ii. 34. Uxor. Braic i. 14. These starrs, by an ordinance of Richard the First, preserved by Hoveden, were commanded to be enrolled and deposited in chests under three keys in certain places,—one and the most considerable of which was in the king’s exchequer at Westminster, and no starr was allowed to be valid unless it were found in some of the said repositories. Memorand. in Scacc. P. 6 Edw. I. prefixed to Maynard’s Year-book of Edw. II. fol. 8. Madox, Hist. Exch. ch. vii. 4, 5, 6. The room at the exchequer where the chests containing these starrs were kept was probably called the starr-chamber, and, when the Jews were expelled the kingdom, was applied to the use of the king’s council, sitting in their judicial capacity. To confirm this, the first time the starr-chamber is mentioned in any record it is said to have been situated near the receipt of the exchequer at Westminster: the king’s council, his chancellor, treasurer, justices, and other sages were assembled en la chaumbre aes esteilles pres la resceipt al Westminster. Claus. 41 Edw. III. m. 13. For in process of time, when the meaning of the Jewish starrs was forgotten, the word starr-chamber was naturally rendered in law-French la chaumbre des esteilles, and in law-Latin, camera stellata, which continued to be the style in Latin till the dissolution of that court.

[7 ] In one of the statutes of the University of Cambridge, the antiquity of which is not known, the word starrum is twice used for a schedule or inventory. The statute is entitled De computatione procuratorum; and it directs that in fine computi fiat starrum per modum dividendæ, in quo ponentur omnia remanentia in communi cistâ tam pignora quam pecunia, ac etiam arreragia et debita, ita quod omnibus constare poterit evidenter, in quo statu tunc universitas fuerit quoad bona, &c. Stat. Acad. Cant. p. 32. Such inventories would be made at the king’s exchequer, and the room where they were deposited would probably be called the Starchamber.—Christian.

[(b) ] Lamb. Arch. 158.

[(c) ] Hist. of Reb., books i. iii.

[(d) ] The just odium into which this tribunal had fallen before its dissolution has been the occasion that few memorials have reached us of its nature, jurisdiction, and practice, except such as on account of their enormous oppression are recorded in the histories of the times. There are, however, to be met with some reports of its proceedings in Dyer, Croke, Coke, and other reporters of that age, and some in manuscript, of which the author hath two,—one from 40 Eliz. to 13 Jac. I., the other for the first three years of king Charles; and there is in the British Museum (Harl. MSS. vol. i. No. 1226) a very full, methodical, and accurate account of the constitution and course of this court, compiled by William Hudson, of Gray’s Inn, an eminent practitioner therein,8 and a short account of the same, with copies of all its process, may also be found in 18 Rym. Fœd. 192, &c.

[8 ] Hudson’s Treatise of the Court of Starchamber is now published at the beginning of the 2d vol. of Collectanea Juridica.—Christian.

[(e) ] 4 Inst. 123. 2 Hawk. P. C. 9.

[(f) ] See book iii. page 68.

[(g) ] Duck. de authorit. jur. civ.

[(h) ] 4 Inst. 134, 147.

[9 ] The jurisdiction of the commissioners appointed under the 28 Hen. VIII. c. 15 was confined by that statute to treasons, felonies, robberies, murders, and confederacies; and therefore the 39 Geo. III. c. 15 declares that it is expedient that other offences committed on the seas should be tried in the like manner; and it enacts that every offence committed upon the high seas shall be subject to the same punishment as if it had been committed upon the shore, and shall be tried in the same manner as the crimes enumerated in the 28 Hen. VIII. c. 15 are directed to be tried. And as persons tried for murder under that statute could not be found guilty of manslaughter, and where the circumstances made the crime manslaughter were acquitted entirely, the 39 Geo. III. c. 15 expressly enacts that where persons tried for murder or manslaughter committed on the high seas are found guilty of manslaughter only, they shall be subject to the same punishment as if they had committed such manslaughter upon the land.—Christian.

The 46 Geo. III. c. 54 enables the king to issue a similar commission for trying such offences in the same manner in any of his majesty’s islands, plantations, colonies, dominions, forts, or factories. The 43 Geo. III. c. 113, ss. 2 & 3 provides that any person wilfully casting away any vessel, &c., or procuring it to be done, shall be guilty of felony without benefit of clergy, and shall, if the offence were committed on the high seas, be tried, &c. by a special commission as directed by stat. 28 Hen. VIII. c. 15. The stat. 11 & 12 W. III. c. 7 contains provisions against accessories to piracies and robberies on the high seas. Accessories before the fact, on shore, to the wilful destruction of a ship on the high seas were not triable by the admiralty jurisdiction under 11 Geo. I. c. 29, s. 7. 2 Leach, 947. East, P. C. Addenda, 26. Russ. & Ry. C. C. 37, S. C. But now this is provided for by the stat. 43 Geo. III. c. 113, which repeals the statutes 4 Geo. I. c. 12, s. 3, and 11 Geo. I. c. 29, ss. 5, 6, & 7.

The 28 Hen. VIII. c. 15 merely altered the mode of trial in the admiralty court, and its jurisdiction still continues to rest on the same foundations as it did before that statute. Com. Dig. Admiralty, E. 5. It is regulated by the civil law et per consuetudines marinas, grounded on the law of nations, which may possibly give to that court a jurisdiction with which our common law is not able to invest it. Per Mansfield, C. J., 1 Taunt. 29. The statutes 28 Hen. VIII. c. 15, and 39 Geo. III. c. 37, do not, however, take away any jurisdiction as to the trial of offences which might before have been tried in a court of common law; and therefore an indictment for a conspiracy on the high seas is triable at common law, on proof of an overt act on shore, in the county where the venue is laid. 4 East, 164. If a pistol be fired on shore which kills a man at sea, the offence is properly triable at the admiralty sessions, because the murder is in law committed where the death occurs. 1 East, P. C. 367. 1 Leach, 388. 12 East, 246. 2 Hale, 17, 20. But if, on the other hand, a man be stricken upon the high sea and died upon shore after the reflux of the water, the admiral, by virtue of this commission, has no cognizance of that felony. 2 Hale, 17, 20. 1 East, P. C. 365, 366. And, it being doubtful whether it could be tried at common law the stat. 2 Geo. II. c. 21 provides that the offender may be indicted in the county where the party died. So the courts of common law have concurrent jurisdiction with the admiralty in murders committed in Milford Haven and in all other havens, creeks, and rivers in this realm. 2 Leach, 1093. 1 East, P. C. 368. R. & R. C. C. 243, S. C. Piratically stealing a ship’s anchor and cable is a capital offence by the marine laws, and punishable under the 28 Hen. VIII. c. 15,—the 39 Geo. III. c. 37 not extending to this case. R. & R. C. C. 123. The 1 Geo. IV. c. 91, s. 1 provides that the crimes and offences mentioned in 43 Geo. III. c. 58, which shall be committed on the high seas, out of the body of any county, shall be liable to the same punishment as if committed on land in England or Ireland, and shall be inquired of, &c. as treasons, &c. are by 28 Hen. VIII. R. & R. C. C. 286.—Chitty.

[10 ] The Central Criminal Court, which has jurisdiction to hear and determine all treasons, murders, felonies, and misdemeanours committed within the city of London and the county of Middlesex and certain parts of the counties of Essex, Kent, and Surrey, and also all offences committed on the high seas and other places within the jurisdiction of the admiralty. This court was established in 1834, by the statute 4 & 5 W. IV. c. 36, and sits twelve times (and oftener if necessary) every year, under commission of oyer and terminer and gaol-delivery. The judges or persons named in the commission consist of the lord mayor, for the time-being, of the city of London, the lord chancellor, all the judges, for the time-being, of the courts of Queen’s Bench, Common Pleas, and Exchequer, the judges of the Court of Bankruptcy, the judge of the Admiralty, the Dean of the Arches, the aldermen of the city of London, the Recorder and Common Serjeant of the city of London, the judge of the Sheriff’s Court of the city of London, and ex-chancellors and ex-judges of the superior courts; but in practice the trials are generally presided over by two judges of the superior courts (who sit by rotation) and the law-officers of the city of London.—Kerr.

[(i) ] 4 Inst. 162, 168. 2 Hal. P. C. 22, 32. 2 Hawk. P. C. 14, 23.

[(k) ] See book iii. p. 60.

[(l) ] 2 Hal. P. C. 39. 2 Hawk. P. C. 28.

[(m) ] See book i. page 351.

[(n) ] See Appendix, 1.

[(o) ] Ibid.

[(p) ] 2 Inst. 43.

[11 ] The 3 Geo. IV. c. 10 enables in certain cases the opening and reading of commissions under which the judges sit upon their circuit after the day appointed for holding assizes.

Every description of offence—even high treason—is cognizable under this commission, (2 Hale, 35. Hawk. b. ii. c. 6, s. 4. Bac. Abr. Court of Justices of Oyer, &c. B.;) and the justices may proceed upon any indictment of felony or trespass found before other justices, (2 Hale, 32. Hawk. b. ii. c. 6, s. 2. Bac. Abr. Court of Justices of Oyer, &c. B. Cro. C. C. 2,) or may take an indictment originally before themselves, (Hawk. b. ii. c. 6, s. 3. 2 Hale, 34;) and they have power to discharge, not only prisoners acquitted, but also such against whom, upon proclamation made, no parties shall appear to indict them,—which cannot be done either by justices of oyer and terminer, or of the peace. Hawk. b. ii. c. 6, s. 6. 2 Hale, 34. It is not imperative on a commissioner of gaol-delivery to discharge all the prisoners in the gaol who are not indicted; but it is discretionary in him to continue on their commitments such prisoners as appear to him committed for trial, but the witnesses against whom did not appear, having been bound over to the sessions. Russ. & R. C. C. 173. But it seems clear from the words of the commission that these justices cannot try any persons, except in some special cases, who are not in actual or constructive custody of the prison specifically named in the commission. Hawk. b. ii. c. 6, s. 5. Bac. Abr. Court of Justices of Oyer, &c. B. But it is not necessary that the party should be always in actual custody; for if a person be admitted to bail, yet he is, in law, in prison, and his bail are his keepers, and justices of gaol-delivery may take an indictment against him, as well as if he were actually in prison. 2 Hale, 34, 35. The commissions of gaol-delivery are the same on all the circuits. Unlike the commission of oyer and terminer, in which the same authority suffices for every county, there is a distinct commission to deliver each particular gaol of the prisoners under the care of its keeper.

The court of general gaol-delivery has jurisdiction to order that the proceedings on a trial from day to day shall not be published till all the trials against different prisoners shall be concluded; and the violation of such orders is a contempt of court, punishable by fine or imprisonment; and if the party refuse to attend, he may be fined in his absence. 4 B. & A. 218. 11 Price, 68.—Chitty.

[(q) ] 4 Inst. 170. 1 Hal. P. C. 42. 2 Hawk. P. C. 32.

[12 ] The Michaelmas quarter-sessions must now be holden in the first week after the 11th October. 54 Geo. III. c. 84. If the feast-day fall on Sunday, the sessions are to be holden in the week following. 2 Hale, 49.—Chitty.

[(r) ] 4 Mod. 379. Salk. 406. Lord Raym. 1144.

[(s) ] See Lambard’s Eirenarcha and Burn’s Justice.

[(t) ] B. iv. c. 3.

[(u) ] Stat. 37. Hen. VIII. c. 1. 1W. and M. st. 1, c. 21.

[(v) ] 4 Inst. 259. 2 Hal. P. C. 69. 2 Hawk. P. C. 55.

[(w) ] Mirror, c. 1, 13, 16.

[(x) ] 4 Inst. 261. 2 Hawk. P. C. 72.

[(y) ] Mirror. c. 1, 10.

[(z) ] See book iii. page 113.

[(a) ] Part 2, c. 19.

[(b) ] Stiernh de jure Goth. l. 1, c. 2.

[(c) ] 4 Inst. 271. 2 Hal. P. C. 53. 2 Hawk. P. C. 42.

[13 ] The finding of such inquest is equivalent to the finding of a grand jury; and a woman tried on the coroner’s inquest for the murder of her bastard child may be found guilty, under 43 Geo. III. c. 58, s. 4, of endeavouring to conceal its birth, there being no distinction in this respect between the coroner’s inquisition and a bill of indictment returned by the grand jury, (2 Leach, 1095. 3 Camp. 371. Russ. & Ry. C. C. 240, S. C.:) but, in order to found an indictment on a coroner’s inquest, the jurors, and not merely the coroner, must have subscribed it. Imp. Cor. 65.—Chitty.

[(d) ] See book i. page 349.

[(e) ] 4 Inst. 278.

[(f) ] See stat. 17 Car. II. c. 19. 22 Car. II. c. 8. 23 Car. II. c. 12.

[(g) ] Bacon of English Govt. b. x. c. 8.

[(h) ] See book iii. p. 61.

[(i) ] 4 Inst. 133.

[(k) ] Ibid. 2 Hal. P. C. 7.

[14 ] The 3 Hen. VII. c. 14 is wholly repealed by the 9 Geo. IV. c. 31, as is also the 33 Hen. VIII. c. 12, part of s. 6 to s. 18, relating to this subject. The two courts mentioned in the text may now, therefore, be considered as no longer existing. They had for many years been utterly disused.—Chitty.

[(l) ] See book iii. page 83.