CHAPTER THE NINETEENTH.
OF COURTS OF A CRIMINAL JURISDICTION.

THE fixth, and laft, object of our enquiries will be the method of inflicting thofe punifhments, which the law has annexed to particular offences; and which I have conftantly fubjoined to the defcription of the crime itfelf. In the difcuffion of which I fhall purfue much the fame general method, that I followed in the preceding book, with regard to the redrefs of civil injuries: by, firft, pointing out the feveral courts of criminal jurifdiction, wherein offenders may be profecuted to punifhment; and by, fecondly, deducing down in their natural order, and explaining, the feveral proceedings therein.

FIRST then, in reckoning up the feveral courts of criminal jurifdiction, I fhall, as in the former cafe, begin with an account of fuch, as are of a public and general jurifdiction throughout the whole realm; and, afterwards, proceed to fuch, as are only of a private and fpecial jurifdiction, and confined to fome particular parts of the kingdom.

I. IN our enquiries into the criminal courts of public and general jurifdiction, I muft in one refpect purfue a different order from that in which I confidered the civil tribunals. For there, as the feveral courts had a gradual fubordination to each
other,
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other, the fuperior correcting and reforming the errors of the inferir, I thought it beft to begin with the loweft, and fo afcend gradually to the courts of appeal, or thofe of the moft extenfive powers. But as it is contrary to the genius and fpirit of the law of England, to fuffer any man to be tried twice for the fame offence in a criminal way, efpecially if acquitted upon the firft trial; therefore thefe criminal courts may be faid to be all independent of each other: at leaft fo far, as that the fentence of the loweft of them can never be controlled or reverfed by the higheft jurifdiction in the kingdom, unlefs for errior in matter of law, apparent upon the face of the record; though fometimes caufes may be removed from one to the other before trial. And therefore as, in thefe courts of criminal cognizance, there is not the fame chain and dependence as in the others, I fhall rank them according to their dignity, and begin with the higheft of all; viz.

I. THE high court of parliament; which is the fupreme court in the kingdom, not only for the making, but alfo 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 perfons of treafon or felony, or to inflict pains and penalties, beyond or contrary to the common law, to ferve a fpecial purpofe, I fpeak not of them; being to all intents and purpofes new laws, made pro re nata, and by no means an execution of fuch as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a profecution of the already known and eftablifhed law, and has been frequently put in practice; being a prefentment to the moft high and fupreme court of criminal jurifdiction by the moft folemn grand inqueft of the whole kingdom^a . A commoner cannot however be impeached before the lords for any capital offence,

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^a 1 Hal. P. C. ^* 150.
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but only for high mifdemefnors^b : a peer may be impeached for any crime. And they ufually (in cafe of an impeachment of a peer for treafon) addrefs the crown to appoint a lord high fteward, for the greater dignity and regularity of their proceedings; which high fteward was formerly elected by the peers themfelves, though he was generally commiffioned by the king^c ; but it hath of late years been ftrenuoufly maintained^d , that the fably neceffary, but that the houfe may proceed without one. The articles of impeachment are a kind of bills of indictment, found by the houfe of commons, and afterwards tried by the lords; who are in cafes of mifdemefnors confidered not only as their own peers, but as the peers of the whole nation. This is a cuftom derived to us from the conftitution of the antient Germans; who in their great councils fometimes tried capital accufatons relating to the public: “licet apud concilium accufare quoque, et difcrimen capitis intendere^e .” And it has a peculiar proprity in the Englifh conftitution; which has much improved upon the antient model imported hither from the continent.

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^b When, in 4 Edw. III. the king de manded the earls, barons, and peers, to give judgment againft Simon de Bereford, who had been a notorious accomplice in the treafons of Roger earl of Mortimer, they came before the king in parliament, and faid all with one voice, that the faid 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 fame parliament, they were prevailed upon, in refpect of the notoriety and heinoufnefs of his crimes, to receive the charge and to give judgment againft him, the following proteft and provifo was entered on the parliamentroll. “And it is affented and accorded by “our lord the king, and all the great men, “in full parliament, that albeit the peers “as judges of the parliament, have taken “upon them in the prefence of our lord the “king to make and render the faid judgment; yet the peers who now are, or “fhall 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 difcharged and acquitted: and “that the aforefaid judgment now rendered “be not drawn to example or confequence “in time to come, whereby the faid peers “may be charged hereafter to judge others “than their peers, contrary to the laws of “the land, if the like cafe happen, which “God forbid.” (Rot. Parl. 4 Edw. III. n 2 & 6. 2 Brad. HIft. 190. Selden. Judic. In parl. ch. 1.)
^c 1 Hal. P. C. 350.
^d Lords Journ. 12 May 1679, Com. Journ. 15 May 1679. Foft. 142, & c.
^e Tacit. de mar. Germ. 12.
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For, though in general the union of the legiflative and judicial powers ought to be moft carefully avoided^f , yet it may happen that a fubject, intrufted with the adminiftration of public affairs, may infringe the rights of the people, and be guilty of fuch crimes, as the ordinary magiftrate either dares not or cannot punifh. Of thefe the reprefentatives of the people, or houfe of commons, cannot properly judge; becaufe their conftituents are the parties injured: and can therefore only impeach. But before what court fhall this impeachment be tried? Not before the ordinary tribunals, which would naturally be fwayed by the authority of fo powerful an accufer. Reafon therefore will fuggeft, that this branch of the legiflature, which reprefents the people, muft bring it's charge before the other branch, which confifts of the nobility, who have neither the fame interefts, nor the fame paffions as popular affemblies^g . This is a vaft fuperiority, which the conftitution of this ifland enjoys, over thofe of the Grecian or Roman republics; where the people were at the fame time both judges and accufers. It is proper that the nobility fhould judge, to infure juftice to the accufed; as it is proper that the people fhould accufe, to infure juftice to the commonwealth. And therefore, among other extraordinary circumftances attending the authority of this court, there is one of a very fingular nature, which was infifted on by the houfe of commons in the cafe of the earl of Danby in the reign of Charles II^h ; and is now enacted by ftatute 12 & 13 W. III. c. 2. that no pardon under the great feal fhall be pleadable to an impeachment by the commons of Great Britain in parliament^l .

2. THE court of the lord high fteward of Great Britain^k is a court inftituted for the trial of peers, indicted for treafon or felony, or for mifprifion of either^l . The office of this great magiftrate is very antient; and was formerly hereditary, or at

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^f See Vol. I. pag. 269.
^g Montefq. Sp. L. xi. 6.
^h Com. Journ. 5 May 1679.
^l 1 See chap. 31.
^k 4 Inft. 58. 2 Hawk. P. C. 5. 421.
^l 1 Bulftr. 198.
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leaft held for life, or dum bene fe gefferit: but now it is ufually, and hath been for many centuries parft^m , granted pro hac vice only; and it hath been the conftant practice (and therefore feems now to have become neceffary) to grant it to a lord of parliament, elfe he is incapable to try fuch delinquent peerⁿ . When fuch an indictment is therefore found by a grand jury of freeholders in the king's bench, or at the affifes before the juftices of oyer and terminer, it is to be removed by a writ of certiorari into the court of the lord high fteward, 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 an high fteward, merely for the purpofe of receiving fuch 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: becaufe, in confequence of fuch plea, it is poffible that judgment of death might be awarded againft him. The king therefore, in cafe a peer be indicted of treafon, felony, or mifprifion, creates a lord high fteward pro hac vice by commiffion under the great feal; which recites the indictment fo found, and gives his grace power to receive and try if fecundum legem et confuetudinem Angliae. Then, when the indictment is regularly removed, by writ of certiorari, commanding the inferior court to certify it up to him, the lord high fteward directs a precept to a ferjeant at arms, to fummon the lords to attend and try the indicted peer. This precept was formerly iffued to fummon only eighteen or twenty, felected from the body of the peers: then the number came to be indefinite; and the cuftom was, for the lord high fteward to fummon as many as he thought proper, (but of late years not lefs than twenty three^o) and that thofe lords only fhould fit upon the trial: which threw a monftrous weight of

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^m Pryn. on 4 Inft. 46.
ⁿ Quand nx feigneur de parlement ferra arrein de treafon ou felony, le roy par fes lettres patents fera un grand et fage feigneur d'eftri le grand fenefekal P Angleterre: qui-duit faire un precept—pur faire mir xx feigneurs, ou xviii, & c (Yearb. 13 Hen. VIII, 11.) See Staund P. C. 152. 3 Inft. 28. 4 Inft. 59. 2 Hawk. P. C. 5. Barr. 234.
^o Kelynge. 56.
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power

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power into the hands of the crown, and this it's great officer, of felecting only fuch peers as the then predominant party fhould moft approve of. And accordingly, when the earl of Clarendon fell into difgrace with Charles II, there was a defign formed to prorogue the parliament, in order to try him by a felect number of peers; it being doubted whether the whole houfe could be induced to fall in with the views of the court^p. But now, by ftatute 7 W. III. c. 3. upon all trials of peers for treafon or mifprifion, all the peers who have a right to fit and vote in parliament fhall be fummoned, at leaft twenty days before fuch trial, to appear and vote therein; and every lord appearing fhall vote in the trail of fuch peer, firft taking the oaths of allegiance and fupremacy, and fubfcribing the declaration againft popery.

DURING the feffion of parliament the trial of an indicted peer is not properly in the court of the lord high fteward, but before the court laft-mentioned, of our lord the king in parliament^q . It is true, a lord high fteward is always appointed in that cafe, to regulate and add weight to the proceedings; but he is rather in the nature of a fpeaker pro tempore, or chairman of the peers are therein the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high fteward has a vote with the reft, in right of his peerage. But in the court of the lord high fteward, which is held in the recefs of parliament, he is the fole judge in 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, fo 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 cafe the day appointed in the judgment for execution fhould lapfe before execution done, a new time of execution may be appointed by either the high court of parliament, during it's

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^p Carte's life of Ormonde. Vol. 2.
^q Foft. 141.
^r State Trials, Vol. 214. 232. 3.
^s Foft. 139.
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fitting, though no high fteward be exifting; or, in the recefs of parliament, by the court of king's bench, the record being removed into that court.

IT has been a point of fome controverfy, whether the bifhops have now a right to fit in the court of the lord high fteward, to try indictments of treafon and mifprifion. Some incline to imagine them included under the general words of the ftatute of king William, “all peers, who have a right to fit and vote in parliament:” but the expreffion had been much clearer, if it had been, “all lords,” and not, “all peers;” for though bifhops, on account of the baronies annexed to their bifhopricks, are clearly lords of parliament, yet, their blood not being ennobled, they are not univerfally allowed to be peers with the temporal nobility: and perhaps this word might be inferted purpofely with a view to exclude them. However, there is no inftance of their fitting on trials for capital offences, even upon impeachments or indictments in full parliament, much lefs in the court we are now treating of; for indeed they ufually voluntarily withdraw, but enter a proteft declaring their right to ftay. It is certain that, in the eleventh chapter of the conftitutions of Clarendon, made in parliament 11 Hen. II. they are expreffly excluded from fitting and voting in trials of life or limb: “epifcopi, ficut caeteri barones, debent intereffe judiciis cum baronibus, quoufque 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 bifhops to attend at all. And the determination of the houfe of lords in the earl of Danby's cafe^t , which hath ever fince been adhered to, is confonant to thefe conftitutions; “that the lords fpiritual have a right to ftay and “fit in court in capital cafes, till the court proceeds to the vote “of guilty, or not guilty.” It muft be noted, that this refolution extends only to trials in full parliament: for to the court of the lord high fteward (in which no vote can be given, but mere-

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^t Lords Journ. 15 May 1679.
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ly
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ly that of guilty or not guilty) no bifhop, as fuch, ever was or could be fummoned; and though the ftatute of king William regulates the proceedings in that court, as well as in the court of parliament, yet it never intended to new-model or alter it's conftitution; and confequently dores not give the lords fpiritual any right in cafes of blood which they had not before^u . And what makes their exclufion more reafonable, is, that they have no right to be tried themfelves in the court of the lord high fteward^w , and therefore rurely ought not to be judges there. For the privilege of being thus tried depends upon nobility of blood, rather than a feat in the houfe; as appears from the trials of popifh lords, of lords under age, and (fince the union) of the Scots nobility, though not in the number of the fixteen; and from the trials of females, fuch as the queen confort or dowager, and of all peereffes by birth; and peereffes by marriage alfo, unlefs they have, when dowagers, difparaged themfelves by taking a commoner to their fecond hufband.

3. THE court of king's bench^x, concerning the nature of which we partly enquired in the preceding book^y , was (we may remember) divided into a crown fide, and a plea fide. And on the crown fide, or crown office, it takes cognizance of all criminal caufes, from high treafon down to the moft trivial mifdemefnor or breach of the peace. Into this court alfo indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar, or at nifi prius, by a jury of the county out of which the indictment is brought. The judges of this court are the fupreme coroners of the kingdom. And the court itfelf is the principal court of criminal jurifdiction (though the two former are of greater dignity) known to the laws of England. For which reafon by the coming of the court of king's bench into any county, (as it was removed to Oxford on account of the ficknefs in 1665) all former commiffions of oyer and ter-

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^u Foft. 248.
^w Bro. Abr. t. Trial. 142.
^x 4 Inft. 70. 2 Hal. P. C. 2. 2 Hawk. P. C. 6.
^y See Vol. III. pag. 41.
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miner, and general gaol delivery, are at once abforbed and determined ipfo facto: in the fame manner as by the old Gothic and Saxon conftitutios, “jure vetufto obtinut, quieviffe omnia inferiora “judicia, dicente jus rege^z .”

INTO this court of king's bench hath reverted all that was good and falutary of the juridiction of the court of ftarchamber, camera ftellata^a : which was a court of very antient original^{b ,} but new-modelled by ftatutes 3 Hen. VII. c. 1. and 21 Hen. VIII. c. 20. confifting of divers lords fpiritual and temporal, being privy counfellors, together with two judges of the courts of common law, without the intervention of any jury. Their jurifdiction extended legally over riots, perjur, mifbe-

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^z Stiernhook. l. 1. c. 2.
^a This is faid (Lamb. Arch. 154.) to haven been fo called, either from the Saxon work preopan, to fteer or govern; or from it's punifhing the crimen ftellionatus, or cofenage; or becaufe the room wherein it fate, the old council chamber of the palace of Wefminfter, (Lamb. 148.) was full of windows; or (to which fir Edward Coke, 4 Inft. 66. accedes) becaufe haply the roof thereof was at the firft gurnifhed with gilded ftars. As all thefe are merely conjectures, (for no ftars are faid to have remained in the roof fo late as the reign of quuen Elizabeth) I fhall venture to propofe another conjecturad etymology, as plaufible perhaps as any of them. It is well known that, before the banifhment of the Jews under Edward I, their contracts and obligations were denominated in our antient records ftarra or ftarrs, from a corruption of the Hebrew word, fbetar, a covenant. (Tovey's Angl. Judaic. 32. Selden. tit. of hon. ii. 34. Uxor Ebraic. i. 14.) Thefe ftarrs, by an ordinance of Richard the firft, preferved by Hoveden, were commanded to be enrolled and depofited in chefts under three keys in certain places; one, and the moft confiderable, of which was in the king's exchequer at Weftminfter: and no ftarr was allowed to be valid, unlefs it were found in fome of the faid repofitaries. (Madox hift. exch. c. vii. §. 4. 5. 6.) The room at teh exchequer, wher the chefts containing thefe ftarrs were kept, was probably called the ftarr-chamber; and, when the Jews were expelled the kingdom, was applied to the ufe of the king's council, when fitting in their judicial capacity. To confirm this; the firft time the ftar-chamber is mentioned in any record, (Rot. clauf. 41 Edw. III. m. 13.) it is faid to have been fituated near the receipt of the exchequer: that the king's council, his chancellor, treafurer, juftices, and other fages, were affembled en la chaumbre des efteilles pres la refceipt al Weftminfter. For in procefs of time, when the meaning of the Jewifh ftarrs was forgotten, the word ftar-chamber was naturally rendered in law-french, la chaumbre des efteilles, and in law-latin, camera ftellata; which continued to be the ftile in latin till the difflution of that court.
^b Lamb. Arch. 156.
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haviour of fheriffs, and other notorious mifdemefnors, contrary to the laws of the land. Yet this was afterwards (as lord Clarendon informs us^c ) ftretched “ to the afferting of all proclamations, and orders of ftate; to the vindicating of illegal “commiffions, and grants of monopolies; holding for honourable that which pleafed, and for juft that which profited, “and becoming both a court of law to determine civil rights, “and a court of revenue to enrich the treafury: 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 ftar-chamber, which confifted “of the fame perfons in different rooms, cenfuring the breach “and difobedience to thofe proclamations by very great fines, “imprifonments, and corporal feverities: fo that any difrefpect “to any acts of ftate, or to the perfons of ftatefmer was in “no time more penal, and the foundations of right never more “in danger to be deftroyd.” For which reafons, it was finally abolifhed by ftatute 16 Car. I. c. 10. to the general joy of the whole nation^d .

4. THE court of chivalry^c , of which we alfo formerly fpoke^f as a military court, or court of honour, when held before the earl marfhal only, is alfo a criminal court, when held before the lord high conftable of England jointly with the earl marfhal. And then it has jurifdiction over pleas of life and member, arifing in matters of arms and deeds of war, as well out of the realm as within it. But the criminal, as well as civil

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^c Hift. of Reb. Book 1 & 3.
^d The juft odium, into which this tribunal had fallen before it's diffolution, has been the occafion that few memorials have reached us of it's nature, jurifdiction, and practice; except fuch as, on account of their enormous oppreffion, are recorded in the hiftories of the times. There are however to be met with fome reports of it's proceedings in manufcript; of which the author hath one, for the firft three years of king Charles: and there is in the Britifh Mufeum (Harl. MSS. Vol. I. n^o. 1226.) a very full, methodical, and accurate account of the conftitution and courfe of this court, complied by William Hudfon of Gray's Inn, an eminent practitioner therein.
^e 4 Inft. 123. 2 Hawk. P. C. 9.
^f See Vol. III. pag. 68.
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part of it's authority, is fallen into entire difufe: there having been no permanent high conftable of England (but only pro hac vice at coronations and the like) fince 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 fubject: fo ample, that when the chief juftice Fineux was afked by king Henry the eithth, how far they extended, he delince anfwering; and faid, the decifion of that queftion 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, ftiled the judge of the admiralty, is not only a court of civil, but alo of criminal, jurifdiction. This court hath cognizance of all crimes and offences committed either upon the fea, or on the coafts, out of the body or extent of any Englifh county; and, by ftatute 15 Ric. II. c. 3. of death and mayhem happening in great fhips being and hovering in the main ftream of great rivers, below the bridges of the fame rivers, which are then a fort of ports of havens; fuch as are the ports of London and Glocefter, though they lie at a great diftance from the fea. But, as this court proceeded without jury, in a method much conformed to the civil law, the exercife of a criminal jurifdictiion therein was contrary to the genius of the law of England; inafmuch as a man might be there deprived of his life by the opinion of a fingle judge, without the judgment of his peers. And befides, as innocent perfons might thus fall a facrifice to the caprice of a fingle man, fo very grofs offenders might, and did frequently, efcape punifhment: for the rule of the civil law is, how reafonably I fhall not at prefent enquire, that no judgment of death can be given againft offenders, without proof by two witneffes, or a confeffion of the fact by themfelves. This was always a great offence to the Englifh nation: and therefore in the eighth year of Henry VI a remedy was endeavoured to be applied in parli-

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^g Duck de authorit. jur. dv.
^h 4 Inft. 134. 147.
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ament; but it mifcarried for want of the royal affent. However, by the ftatute 28 Hen. VIII. c. 15. it was enacted, that thefe offences fhould be tried by commiffioners, nominated by the lord chancellor; namely, the admiral, or his deputy, and three or four more; (among whom two common law judges are conftantly appointed, who in effect try all the prifoners) the indictment being firft found by a grand jury of twelve men, and afterwards tried by another jury, as at common law: and that the courfe of proceedings fhould 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 ftill prefiding therein, juft as the lord mayor prefides at the feffions in London.

THESE five courts may be held in any part of the kingdom, and their jurifdiction extends over crimes that arife throughout the whole of it, from one end to the other. What fellow are alfo of a general nature, and univerfally diffufed over the nation, but yet are of a local jurifdiction, and confined to particular diftricts. Of which fpecies is,

6. THE court of oyer and terminer, and general gaol deliveryⁱ : which is held before the king's commiffioners, among whom are ufually two judges of the courts at Weftminfter, twice in every year in every county of the kingdom; except the four northern ones, where it is held only once, and London and Middlefex wherein it is held eight times. This was flightly mentioned in the preceding book^k . We then obferved, that, at what is ufually called the affifes, the judges fit by virtue of five feveral authorities: two of which, the commiffion of affife and it's attendant jurifdiction of nifi prius, being principally of a civil nature, were then explained at large; to which I fhall only add, that thefe juftices have, by virtue of feveral ftatutes, a criminal jurifdiction alfo, in certain fpecial cafes^l . The third,

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ⁱ 4 Inft. 162. 168. 2 Hal. P. C. 22. 32. 2 Hawk. P. C. 14. 23.
^k See Vol. III. pag. 58.
^l 2 Hal. P. C. 39. 2 Hawk. P. C. 28.
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which is the commiffion of the peace, was alfo treated of in a former volume^m , when we enquired into the nature and office of a juftrice of the peace. I fhall only add, that all the juftices of the peace of any county, wherein the affifes are held, are bound by law to attend them, or elfe are liabel to a fine; in order to return recognizances, & c, and to affift the judges in fuch matters as lie within their knowlege and jurifdiction, and in which fome of them have probably been concerned, by way of previous examination. But the fourth authority is the commiffioin of oyer and terminerⁿ , to hear and determine all treafons, felonies, and mifdemefnors. This is directed to the judges and feveral others; but the judges only are of the quorum, fo that the reft cannot act without them. The words of the commiffion are, “to enquire, hear, and determine.” Fo that by virtue of this commiffion they can only proceed upon an indictment found at the fame affifes; for they muft firft enquire, by means of the grand jury or inqueft, before they are empowered to hear and determine by the help of the petit jury. Therefore they have befides, fifthly, a commiffion of general gaol delivery^o ; which empowers them to try and deliver every prifoner, who fhall be in the gaol when the judges arrive at the circuit town, whenever indicted, or for whatever crime committed. It was antiently the courfe to iffue fpecial writs of gaol delivery for each particular prifoner, which were called the writs de bono et malo^p : but, thefe being found inconvenient and oppreffive, a general commiffion for all the prifoners has long been eftablifhed in their ftead. So that, one way or other, the gaols are cleared, and all offenders tried, punifhed, or delivered, twice in every year: a conftitution of fingular ufe and excellence. Sometimes alfo, upon urgent occafions, the king iffues a fpecial or extraordinary commiffioin of oyer and terminer, and gaol delivery, confined to thofe offences which ftand in need of immediate imquiry and punifhment: upon which the courfe of proceeding is the fame, as upon general and ordinary commiffions. Formerly it was held,

.{FS}
^m See Vol. I. pag. 351.
ⁿ See appendix, §. 1.
^o Ibid.
^p 2 Inft. 43.
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in purfuance of the ftatutes 8 Ric. II. c. 2. and 33 Hen. VIII. c. 4. that no judge or other lawyer could act in the commiffion 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 affife and determining civil caufes. But that local partiality, which the jealoufy of our anceftors was careful to prevent, being judged lefs likely to operate in the trial of crimes and mifdemefnors, than in matters of property and difputes between party and party, it was thought proper by the ftatute 12 Geo. II. c. 27. to allow any man to be a juftice of oyer and terminer and general gaol delivery within any county of England.

7. THE court of general quarter feffinos of the peace^q is a court that muft be held in every county once in every quarter of a year; which by ftatute 2 Hen. V. c. 4. is appointed to be in the firft week after michaelmas-day; the firft week after the epiphany; the firft week after the clofe of eafter; and in the week after the tranflation of faint Thomas a Becket, or the feventh of July. It is held before two or more juftices of the peace, one of which muft be of the quorum. The jurifdiction of this court by ftatute 34 Edw. III. c. 1. extends to the trying and determining all felonies and trefpaffes whatfoever: though they feldom, if ever, try any greater offence than fmall felonies within the benefit of clergy; their commiffion providing, that, if any cafe of difficulty arifes, they fhall not proceed to judgment, but in the prefence of one of the juftices of the courts of king's bench or common pleas, or one of the judges of affife. And therefore murders, and other capital felonies, are ufually remitted for a more folemn trial to the affifes. They cannot alfo try any new-created offence, without exprefs power given them by the ftatute which creates it^r . But there are many offences, and particular matters, which by particular ftatutes belong properly to this jurifdiction, and ought to be profecuted in this

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^q 4 Inft. 170. 2 Hal. P. C. 42. 2. Hawk. P. C. 32.
^r 4 Mod. 379. Salk. Lord Raym. 1144.
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court: as, the fmaller mifdemefnors againft the public or commonwealth, not amounting ot felony; and efpecially offences relating to the game, highways, alehoufes, baftard children, the fettlement and provifion for the poor, vagrants, fervants wages, apprentices, and popifh recufants^f . Some of thefe are proceeded upon by indictment; and others in a fummary way by motion and order thereupon; which order may for the moft part, unlefs guarded againft by particular ftatutes, be removed into the court of king's bench, by writ of certiorari facias, and be there either quafhed or confirmed. The records or rolls of the feffions are committed to the cutody of a fpecial officer denominated the cuftos rotulorum, who is always a juftice of the quorum; and among them of the quorum (faith Lambard^s ) a man for the moft part efpecially picked out, either for wifdom, countenance, or credit. The nomination of the cuftos 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 fign manual: and to him the nomination of the clerk of the peace belongs; which office he is expreffly forbidden to fell for money^t .

IN moft corporation towns there are quarter feffions kept before juftices of thier own, within their refpective limits: which have exactly the fame authority as the general quarter feffions of the county, except in a very few inftances; one of the moft confiderable of which is the matter of appeals from orders of removal of the poor, which, though they be from the orders of corporation juftices, muft be to the feffioins of the county, by ftatute 8 & 9 W. III. c. 30. In both corporatins and counties at large, there is fometimes kept a fpecial or petty feffion, by a few juftices, for difpatching fmaller bufinefs in the enighbourhood alehoufes, paffing the accounts of parifh officers, and the like.

.{FS}
^f See Lambard's cirenarcha, and Burn's juftice.
^s b. 4. c. 3.
^t Stat. 37. Hen. VIII. c. 1. 1. W. & M. ft. 1. c. 21.
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8. THE
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8. THE fheriff's tourn^u , or rotation, is a court of record, held twice every year within a month after eafter and michaelmas, before the fheriff, in different parts of the county; being indeed only the turn of the fheriff to keep a court-leet in each refpective 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 eafe of the fheriff, was taken

9. THE court-leet, or view of frankpledge^x , which is a court of record, held oncein the year and not oftener^y , within a particular hundred, lordfhip, or manor, before the fteward of the leet; being the king's court granted by charter to the lords of thofe hundreds or manors. It's original intent was to view the frank pledges, that is, the freemen within the liberty; who (we may remember^z ) according to the inftitution of the great Alfred, were all mutaually pledges for the good behaviour of each other. Befides this, the prefervation of the peace, and the chaftifement of divers minute offences againft the public good, are the objects both of the court-leet and the fheriff's tourn: which have exactly the fame jurifdiction, one being only a larger fpecies of the other; extending over more territory, but not over more caufes. All freeholders within the precinct are obliged to attend them, and all perfons commorant therein; which commorancy confifts in ufually lying there: a regulation, which owes it's original to the laws of king Canute^a . But perfons under twelve and above fixty years old, peers, clergymen, women, and the king's tenants in antient demefne, are excufed from attendance there: all others being bound to appear upon the jury, if required, and make their due prefentments. It was alfo antiently the cuftom to fummon all the king's fubjects, as they refpectively grew to years of difcretion and ftrength, to come to

.{FS}
^u 4 Inft. 259. 2 Hal. P. C. 69. 2 Hawk. P. C. 55.
^w Mirr. c. 1. §. 13 & 16.
^x 4 Inft. 261. 2 Hawk. P. C. 72.
^y Mirror. C. 1. §. 10.
^z See Vol. III. pag. 113.
^a part. 2. c. 19.
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the court-leet, and there take the oath of allegiance to the king. The other general bufinefs of the leet and tourn, was to prefent by jury all crimes whatfoever that happened within their jurifdiction; and not only to prefent, but alfo to punifh, all trivial mifdemefnors, as all trivial debts were recoverable in the court-baron, and county court: juftice, in thefe minuter matters of both kinds, being brought home to the doors of every man by our antient conftitution. Thus in the Gothic conftitution, the haereda, which anfwered to our court-leet, “de omnibus quidem “cognofcit, non tamen de ombibus judicat^b.” The objects of their jurifdiction are therefore unaviodably very numerous: being fuch as in fome degree, either lefs or more, affect the public weal, or good governance of the diftrict in which they arife; from common nufances and other material offences againft 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 circumftance, owing in part to the difcharge granted by the ftatute of Marlbridge, 52 Hen. III. c. 10. to all prelates, peers, and clergymen from their attendance upon thefe courts; which occafioned them to grow into difrepute. And hence it is that their bufinefs hath for the moft part grandually devolved upon the quarter feffions: which it is particularly cirected to do in fome cafes by ftatute 1 Edw. IV. c. 2.

10. THE court of the coroner^c is alfo a court of record, to enquire, when any one dies in prifon, or comes to a violent or fudden death, by what manner he came to his end. And this he is only entitled to do fuper vifum corporis. Of the coroner and his office we treated at large in a former volume^d , among the public officers and minifters of the kingdom; and therefore fhall not here repeat our enquiries: only mentioning his court, by way of regularity, among the criminal courts of the nation.

.{FS}
^b Stiernh. de jur. Goth. l. 1. c. 2.
^c 4 Inft. 271. 2. Hal. P. C. 53. 2 Hawk. P. C. 42.
^d See Vol. I. pag. 349.
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11. THE court of the clerk of the market^e is incident to every fair and market in the kingdom, to punifh mifdemefnors therein; as a court of pie poudre is, to determine all difputes relating to private or civil property. The object of this jurifdiction^f is principally the cognizance of weights and meafures, to try whether they be according to the true ftandard thereof, or no: which ftandard was antiently committed to the cuftody of the bifhop, who appointed fome clerk under him to infpect the abufe of them more narrowly; and hence this officer, though now ufually a layman, is called the clerk of the market^g . If they be not according to the ftandard, then, befides the punifhment of the party by fine, the weights and meafures themfelves ought to be burnt. This is the moft inferior court of criminal jurifdiction in the kingdom; though the objects of it's coercion were efteemed among the Romans of fuch importance to the public, that they were committed to the care of fome of their moft dignified magiftrates, the curule aediles.

II. THERE are a few other crimianl courts of greater dignity than many of thefe, but of a more confined and partial jurifdiction; extending only to fome paticular places, which the royal favour, confirmed by act of parliament, has diftinguifhed by the privelege of having peculiar courts of their own, for the punifhment of crimes and mifdemefnors arifing within the bounds of their cognizance; Thefe, not being univerfally difperfed, or of general ufe, as the former, but confined to one fpot, as well as to a determinate fpecies of caufes, may be denominated private or fpecial courts of criminal jurifdiction.

I SPEAK not here of ecclefiaftical courts; which punifh fpiritual fins, rather than temporal crimes, by penance, contrition, and excommunication, pro falute animae: or, which is looked upon as equivalent to all the reft, by a fum of money to the of-

.{FS}
^e 4 Inft. 273.
^f See ftat. 17 Car. 11. c. 19. 22 Car. II. c. 8. 23. Car. II. c. 12.
^g Bacon of Englifh Gov. b. 1. c. 8.
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ficers of the court by way of commutation of penance. Of thefe we difcourfed fufficiently in the preceding book^h . I am now fpeaking of fuch courts as proceed according to the courfe of the common law; which is a ftranger to fuch unaccountable barterings of public juftice.

1. AND, firft, the court of the lord fteward, treafurer, or comptroller of the king's houfhold^{i ,} was inftituted by ftatute 3 Hen. VII. c. 14. to enquire of felony by any of the king's fworn fervants, in the checque roll of the houfhold, under the degree of a lord, in confederating, compaffing, confpiring, and imagining the death or deftruction of the king, or any lord or other of his majefty's privy council, or the lord fteward, treafurer, or comptroller of the king's houfe. The enquiry, and trail thereupon, muft be by a jury according to the courfe of the common law, confifting of twelve fad men (that is, fober and difcreet perfons) of the king's houfhold.

2. THE court of the lord fteward of the king's houfhold, or (in his abfence) of the treafurer, comptroller, and fteward of the marfhalfea^k , was crected by ftatute 33 Hen. VIII. c. 12. with a jurifdiction to enquire of, hear, and determine, all treafons, mifprifions of treafon, murders, manflaughters, bloodfhed, and other malicious ftrikings; whereby blood fhall be fhed in any of the palaces and houfes of the king, or in any other houfe where the royal perfon fhall abide. The proceedings are alfo by jury, both a grant and a petit one, as at common law, taken out of the officers and fworn fervants of the king's houfhold. The form and folemnity of the procefs, particularly with regard to the execution of the fentence for cutting off the hand, which is part of the punifhment for fhedding blood in the king's court, is very minutely fet forth in the faid ftatute 33 Hen. VIII. and the feveral offices of the fervants fo the houfhold in and about fuch execution are de-

.{FS}
^h See V. 4. III. pag. C. 1.
ⁱ 4 Inft. 132.
^k Ibid. 2 Hal. P. C. 7.
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L l

fcribed;

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fcribed; from the ferjeant of the wood-yard, who furnifhes the chopping-block, to the ferjeant farrier, who brings hot irons to fear the ftump.

3. As in the preceding book^l we mentioned the courts of the two univerfities, or their chancellor's courts, for the redrefs of civil injuries; it will not be improper now to add a fhort work concerning the jurifdiction of their criminal courts, which is equally large and extenfive. The chancellor's court of Oxford (with which univerfity the author hath been chiefly converfant, thourgh probably that of Cambridge hath alfo a fimilar jurifdiction) hath authority to determine all caufes of property, wherein a privileged perfon is one of the parties, except only caufes of freehold; and alfo all criminal offences or mifdemefnors, under the degree of treafon, felony, or mayhem. The prohibition of meddling with freehold ftill continues: but the trial of treafon, felony, and mayhem, by a particular charter is committed to the univerfity jurifdiction in another court, namely, the court of the lord high fteward of the univerfity.

FOR by the charter of 7 Jun. 2 Hen. IV. (confirmed, among the reft, by the ftatute 13 Eliz. c. 29.) cognizance is granted to the univerfity of Oxford of all indictments of treafons, infurrections, felony, and mayhem, which fhall be found in any of the king's courts againft a fcholar or privileged perfon; and they are to be tried before the high fteward of the univerfity, or his deputy, who is to be nominated by the chancellor of the univerfity for the time being. But, when his office is called forth into action, fuch high fteward muft be approved by the lord high chancellor of England; and a fpecial commiffion under the great feal is given to him, and others, to try the indictment then depending, according to the law of the land and

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^l See Vol. III. pag. 83.
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the privileges of the faid univerfity. When therefore an indictment is found at the affifes, or elfewhere, againft any fcholar of the univerfity, or other privileged perfon, 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 affife: and then it comes to be tried in the high fteward's court. But the indictment muft firft be found by a grand jury, and then the cognizance claimed: for I take it that the high fteward cannot proceed originally ad inquirendum; but only, after inqueft in the common law courts, ad audiendum et determinandum. Much in the fame manner, as, when a peer is to be tried in the court of the lord high fteward of Grear Britain, the indictment muft firft be found at the affifes, or in the court of king's bench, and then (in confequence of a writ of certiorari) tranfmitted to be finally heard and determined before his grace the lord high fteward and the peers.

WHEN the cognizance is fo allowed, if the offence be inter minora crimina, or a mifdemefnor only, it is tried in the chancellor's court by the ordinary judge. But if it be for treafon, felony, or mayhem, it is then, and then only, to be determined before the high fteward, under the king's fpecial commiffion to try the fame. The procefs of the trial is this. The high fteward iffues one precept to the fheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedells of the univerfity, lwho thereupon return a panel of eighteen matriculated laymen, “laicos privilegio univerfitatis gaudentes:” and by a jury formed de medietate, half of freeholders, and half of matriculated perfons, is the indictment to be tried; that in the guildhall of the city of Oxford. And if execution be neceffary to be awarded, in confequence of finding the party guilty, the fheriff of the county muft execute the univerfity procefs; to which he is annually bound by an oath.

L l 2

I HAVE

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I HAVE been the more minute in defcribing thefe proceedings, as there has happily been no occafion to reduce them into practice for more than a century paft ; though it is not a right that merely refts in fcriptis or theory, but has formerly often been carried into execution. There are many inftances, one in the reign of queen Elizabeth, two in that of James the firft, and two in that of Charles the firft, where indictments for murder have been challenged by the vice-chancellor at the affifes, and afterwards tried before the high fteward by jury. The commiffions under the great feal, the fheriff's and bedell's panels, and all the other proceedings on the trial of the feveral indictments, are ftill extant in the archives of that univerfity.
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