7

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 misdemesnor or breach of the peace. 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. 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 commissions of oyer and

8

terminer, and general gaol delivery, are at once absorbed and deter[266] mined ipso facto: in the same manner as by the old Gothic and Saxon constitutions, “jure vetusto obtinuit, quievisse omnia inferiora "judicia, dicente jus rege.” (z)°

Into this court of king's bench hath reverted all that was good and salutary of the jurisdiction of the court of star-chamber, camera stellata : (a) x 4 Inst. 70. 2 Hal. P. C. 2. 2 Hawk. P. C. 6. y See Book III. page 41. z Stiernh. l. 1. c. 2. a This is said (Lamb. Arch. 154.) to have been so called, either from the Saxon word preopan, to steer or govern; or from its punishing the crimen stellionatus, or cosenage ;-or because the room wherein it sate, 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 1. 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. Uzor Ebraic. 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 Scace. P. 6. Edw. I. prefixed to Maynard's year-book of Edw. II. fol. 8. Madox, hist. exch. c. 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 des esteiles pres la resceipt al

(6) As to the criminal jurisdiction of the court in general, see 2 Hale, 1 to 7. 12, 13. 154. Hawk. b. 2. c. 3. Bac. Ab. Court of King's Bench, A. Com. Dig. Courts, B. 1. 9 Co. 118. a. b. 1 Chit. C. L. 156 to 158.

(7) Without some statute for that purpose, offences committed out of England are not cognizable by this court. 1 Esp. Rep. 62. 1 Sess. Cas. 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 misdemeanor, 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. s. 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. 33 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.

(8) 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.

(9) 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 discontinued 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 jusfices of the peace for the county of Middlesex.

which was a court of very ancient original, (c) 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 misdemesnors, contrary to the laws of the land. Yet, this was afterwards (as lord Clarendon informs us) (c) stretch. [267] ed" to the asserting of all proclamations, and orders of state: "to the vindicating of illegal commissions, and grants of monopolies ; hold"ing 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)

66

4. The court of chivalry, (e) of which we also formerly spoke (ƒ) 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 [268] 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

Westminster.-Claus. 41. Edw. III. m. 13.) For in process of time, when the meaning of the Jewish starrs was forgotten, the word star-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. (10) b Lanab. Arch. 156. c Hist. of Reb., book 1 and 3.

d The just odium into which this tribunal had fallen before its dissolution has been the occasion that few memorials have ever 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; (11) and a short account of the same, with copies of all its process, may also be found in 18 Rym. Food. 192, &c.

e 4 last. 123. 2 Hawk. P. C. 9.

f See Book III. pag. 68.

(10) 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 Star-chamber. -Christian's note.

(11) Hudson's Treatise of the Court of Star-chamber is now published at the beginning of the 2d vol. of Collectanea Juridica.

(12) As to the criminal jurisdiction of this court in general, see 4 Inst. 134. 147. 2 Hale, 11 to 20. Com. Dig. Admiralty, E. 1. & Bac. Ab. Court of Admiralty, D. Com. Dig. Court of Admiralty. 1 Chit. C. L. 151.

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, stiled 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 punishment: 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 the 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 [269] 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.13

(13) 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 sante punishment as if they had committed such manslaughter upon the land. 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. s. 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 statute 28 Hen. VIII. c. 15. The statute 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. 37. S. C. But now, this is provided for by the statute 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, and 7.

The 28 Hen. VIII. c. 15. merely altered the mode of trial in the admiralty court, and its ju

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,

I

6, 7. The courts of oyer and terminer, and 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 assises, the judges sit by virtue of five several authorities: two of which, the commission of assise and its attendant jurisdiction of nisi 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. (1) The third, which is the commission of the peace, was also treated of in a former book, (m) when we in- [270] quired into the nature and office of a justice of the peace. shall only add, that all the justices of the peace of any county, wherein the assises 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 misdemesnors. 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 assises; for they must first inquire by means of the grand jury or inquest, before

66

i 4 Inst. 162.168. 2 Hal. P. C. 22. 32.
1 2 Hal. P. C. 39. 2 Hawk. P. C. 28.

Com. Dig.

risdiction still continues to rest on the same foundations as it did before that statute. 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 he 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 die 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, 6. And, it being doubtful whether it could be tried at common law, the statute 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 commited 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.

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 anciently 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 excellence.15 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, [271] as upon general and ordinary commissions.1 Formerly it was

(14) At common law, the commissions of oyer and terminer, as well as that of gaol delivery, were suspended by the court of king's bench, sitting in the same county, 9 Co. 118. b. Inst. 163. Bac. Abr. Court of Justice of Oyer, &c. A.; but this has been rectified by the statute 25 Geo. III. c. 18., which enacts, that the session of oyer and terminer, and gaol delivery of the gaol of Newgate, for the county of Middlesex, should not be discontinued 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 where an offence has been committed within the county of any city or town corporate, the prosecutor may prefer his indictment to the jury of the next adjoining county at any sessions of oyer and terminer, or general gaol delivery; and the finding of such a bill will be valid except in London and Westminster, and some other excepted jurisdictions, if the prosecutor has first entered into a recognizance to pay the extra costs, in esse it shall be ordered that he shall defray them. 38 Geo. III. c. 32. ss. 2. 10. & 12. 51 Geo. III. c. 100. East, 208.

Chitty.

(15) 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. 2. c. 6. s. 4. Bac. Ab. 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. 2. c. 6. s. 2. Bac. Ab. Court of Justices of Oyer, &c. B. Cro. C. C. 2.; or may take an indictment originally before themselves, Hawk. b. 2. 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. 2. 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. 2. c. 6. s. 5. Bac. Ab. 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.

(16) The issuing of this commission seems authorized by the 33 Hen. VIII. c. 23. ; but this act was not introductory of a new law, it only introduced a better mode of trying according to the old law, and of carrying its principle into effect, a principle consonant to the laws of all nations, that subjects wherever they may be, are amenable to the laws of their own country. 1 Taunt. 27. 30, 31. R. & R. C. C. 134. S. C. This statute, however, was repealed as to treasons committed in this realm by the 1st & 2d P. & M. c. 10., but it continues in force as to murders, 2 Hale, 22. 43 Geo. III. c. 113. s. 6. ; and it was extended by the statute 43 Geo. III. c. 113. to accessories before the fact, and to manslaughter.