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to the canon law, but of the general rule, that compelled the bishopš to attend at all. And the determination of the house of lords in the earl of Danby's case, 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 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," 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 them selves by taking a commoner to their second husband.

3. The court of king's bench,* 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 prins, 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 criniual 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 iuto any county, (as it was removed to Oxford on account of the sickness in 1665,) all former commissions of oyer and terminer, and general gaol delivery, are at once absorbed and determined ipso facto : in the same manner as by the old Gotbic and Saxon constitutions, (32) “ jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege.

i Lords' Journ. 15 May 1679.
u Fost. 248.
w Bro. Abr. t. Trial. 142.

* 4 Inst. 70. 2 Hal. P.C. 2. 2 Hawk. P.C 6.

y See Vol. II. pag. 36.

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 which was a court of very ancient


z Stiernlook. l. ). c. 2. that, before the banishment of

a This is said (Lamb. Arch. the Jews under Edward 1. their 154.) to have been so called, contracts and obligations were either from the Saxon word denominated in our ancient resteopan to steer or govern ;- cords starra or starrs, from a or from its punishing the oric corruption of the Hebrew word men stelliouatus, or cosenage;- shetar, a covenant, (Tovey's or because the room wherein it Angl. judaic. 32. Selden. tit. of sate, the old council chamber hon.ii.34. Uxor. Ebraic. i. 14.) of ibe palace of Westinipster, These stars, by an ordinance of (Lamb. 148.) which is now con- Richard the first, preserved by verted into the lottery office, Hoveden, were commanded to and forms the eastern side of be enrolled and deposited in New Palace-yard, was full of chests under three keys in cerwindows ;-or (to which sir Ed- tain places; one, and the most ward Coke, 4 Inst. 66. accedes) considerable, of which was in because haply the roof thereof the king's exchequer at Westwas at the first garnished with minster; and no star was algilded stars. As all these are lowed to be valid unless it were merely conjectures (for no stars found in some of the said repoare now in the roof, nor any are sitories (Memorand. in Scacc. said to have remained there so P. 6 Edw. I. prefixed to May. late as the reign of queen Eliza- nard's year-book of Edw. II. beth,) it may be allowableto pro- fol. 8. Madox hist. exch. c. vii.

another conjectural etymo- $4, 5, 6.) The room at the exany of them. It is well known taining these stars were kept,

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(32) The 25 G. III. c. 18. enacts, that the session of gaol delivery of Newgate for Middlesex, shall not be discontinued by the sitting of K. B. &c, and by the 32 Geo. III. c. 48. the session of peace and of oyer and terminer for Middlesex, shall not be discontinued by the sitting of K. B. &c.

original, 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) stretched "to the asserting of all proclamations, and orders of state: to the vindicating of illegal commissions, and grants of mo. nopolies; 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 eurich 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

was probably called the starr. dered in law-french, le chambre chamber ; and when the Jews des esteilles, and in law-latin were expelled the kingdom, was camera stellata ; which conapplied to the use of the king's tinued to be the style in latin council, sitting in their judicial till the dissolution of that court. capacity. To confirm this, the b Lamb. Arch. 156. first time the star-chamber is e Hist. of reb. book 1 and 3. mentioned in any record, it is The just odium into which said to have been situated near this tribunal had fallen before the receipt of the exchequer at ils dissolution, has been the ocWestminster ; (the king's colin- casion that few memorials have cil, his chancellor, treasurer, jus- reached us of its nature, juristices, and other sages, were as- diction, and practice;, except sembled la chambre des such as on account of their enesteilles pres la resceipt al West- ormous oppression are recorded minster - Claus. 41 Edw. III. in the histories of the times. m. 13.). For in process of time, There are bowever to be met when the meaning of the Jewish with some reports of its prostarrs was forgotten, the word ceedings in Dyer, Croke, Coke, star-chamber was naturally ren- and other reporters of that age,


4. The court of chivalry, of which we also formerly spoke' as a military court, or a court of honour, when beld 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 ouly 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 Fiveux was asked by king Henry the eighth, how far they extended, he declined answering; and said, the de cision of that question belonged to the law of arms, and not to the law of England.

5. The high court of admiralty," 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 crie minal 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

and somein manuscript, of which Inn, an eminent practitioner the author hạth two; one from therein; and a short account of 40 Eliz. to 13 Jac. I. the other the same, with copies of all its for the first three years of king process, may also be found in Charles : and there is in the 18 Rym. Fæd. 192, &c. British Museum (Harl. MSS. 4 lnst. 123. 2 Hawk P. C. Vol. I. No. 1926.) a very full, 9. methodical, and accurate ac- i See Vol III. pag. 63. count of the constitution and 6 Duck. de authorit. jur. civ. course of this court, compiled 4 Inst. 134. 147: by William Hudson of Gray's



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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 per: sons 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 royal assent. However, by the statute 28 Hew. 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 and 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.

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 follows 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

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. We then observed, that, at what is

in Inst. 169. 168. . Hal. P. 23. C. 22. 32. 2 Hawk. P. C. 14. k See Vol. III. pag. 54.

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