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. The third, which is the commission of the peace, was also treated of in a former volume," 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 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," 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 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; 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: 12 Hal. P. C. 39. 2 Hawk. P. C. 28. See vol. I. pag. 356. n See Appendix, § 1. o Ibid. P 2 Inst. 43. a constitution of singular use and excellence. 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 statute 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 assise 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 misdemsnors, 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 county of England. any 8. The court of general quarter sessions of the peace 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. 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 courts of king's bench or common pleas, or one of the judges of assise. And therefore murders, and other capital felonies, are usually remitted for a more solemn trial to the assises. They cannot also try any new-created offence, without express power given them 4 4 Inst. 170. 2 Hal. P. C. VOL. IV.-PART II. Ꮓ 42. 2 Hawk. P. C. 32. by the statute which creates it. 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 misdemesnors, 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. 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 one court of king's bench, by a writ of certiorari facias, and be there either quashed or confirmed. The record, or alls of the sessions are committed to the custody of a special officer denominated the custos 45born who is always a justice of the quorum; and among them of the quorum (saith Lambard1) a man for the most part especially picked out, either for wisdom, countenance, or credit. The nomination of the custos rotularm (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." : 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 and 9 W. III. c. 30. In both corporations and counties at large, there is sometimes kept special or petty session, by a few justices for dispatching 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. 4 Mod.379. Salk. 406. Lord Raym. 1144. t b. 4 c. 3 u Stat. 37 Hen. VIII. c. 1. 1 s See Lambard eirenarcha and W. & M. st. 1. c. 21. Burn's Justice. 9. The sheriff's tourn," 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: " 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. X 10. The court-leet, or view of frankpledge, which is a court of record, held once in the year and not oftener, 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 frank pledges, that is, the freemen within the liberty; who, we may remember," 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 original to the laws of king Canute. But persons under twelve and above sixty years old, peers, clergymen, women, and the king's tenants in ancient 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 anciently the custom to summon all the king's subjects, as they respectively grew to years of discretion and strength, to come 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 misdemesnors, as all tri u 4 Inst. 259. 2 Hal. P. C. 69. 2 Hawk. P. C. 55. w Mirr. c. 1. § 13 and 16. 72. y Mirror, c. 1. § 10. a vial 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 ancient constitution. Thus in the Gothic constitution, the hæreda, which answered to our court-leet, "de omnibus quidem cognoscit, non tamen de omnibus judicat." 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 nusances and other material offences against the king's peace and public trade, down to eaves-dropping, waifs, and irregularities in the 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 Ed. IV. c. 2. 11. The court of the coroner 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. 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. 12. The court of the clerk of the market is incident to every fair and market in the kingdom, to punish misdemesnors therein; as a court of pie poudre is, to determine all disputes relative to private or civil property. The object of this jurisdiction is principally the cognizance of weights and measures, to try whether they be according to the true standard thereof, or no: which standard was anciently |