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committed to the custody of the bishop, who appointed some clerk under him to inspect the abuse of them more narrowly and hence this officer, though now usually a layman, is called the clerk of the market. If they be not according to the standard, then, besides the punishment of the party by fine, the weights and measures themselves ought to be burnt. This is the most inferior court of criminal jurisdiction in the kingdom; though the objects of its coercion were esteemed among the Romans of such importance to the public, that they were committed to the care of some of the most dignified magistrates, the curule ædiles.
II. There are a few other criminal courts of greater dignity than many of these, but of a more confined and partial jurisdiction; extending only to some particular places, which the royal favour, confirmed by act of parliament, has distinguished by the privilege of having peculiar courts of their own, for the punishment of crimes and misdemesnors arising within the bounds of their cognizance. These not being universally dispersed, or of general use, as the former, but confined to one spot, as well as to a determinate species of causes, may be denominated private or special courts of criminal jurisdiction.
I speak not here of ecclesiastical courts; which punish spiritual sins, rather than temporal crimes, by penance, contrition, and excommunication, pro salute anima; or, which is looked upon as equivalent to all the rest, by a sum of money to the officers of the court by way of commutation of penance. Of these we discoursed sufficiently in the preceding book.h I am now speaking of such courts as proceed according to the course of the common law; which is a stranger to such unaccountable barterings of public justice.
1. And, first, the court of the lord steward, treasurer, or comptroller of the king's household,i was instituted by statute 3 Hen. VII. c. 14. to inquire of felony by any of the king's sworn servants, in the cheque roll of the household, under the degree of a lord, in confederating, compassing, conspiring, and imagining the death or destruction of the king, or any lord or other of his majesty's
8 Bacon of English gov. b. 1.
h See Vol. III. pag. 56.
privy council, or the lord steward, treasurer, or comptroller of the king's house. The inquiry, and trial thereupon, must be by a jury according to the course of the common law, consisting of twelve sad men, that is, sober and discreet persons, of the king's household.
2. The court of the lord steward of the king's household, or, in his absence, of the treasurer, comptroller, and steward of the marshalsea, was erected by statute 33 Hen. VIII. c. 12. with a jurisdiction to inquire of, hear, and determine, all treasons, misprisions of treason, murders, manslaughters, bloodshed, and other malicious strikings; whereby blood shall be shed in, or within the limits, that is, within two hundred feet from the gate, of any of the palaces and houses of the king, or any other house where the royal person shall abide. The proceedings are also by jury, both a grand and a petit one, as at common law, taken out of the officers and sworn servants of the king's household. The form and solemnity of the process, particularly with regard to the execution of the sentence for cutting off the hand, which is part of the punishment for shedding blood in the king's court, are very minutely set forth in the said statute 33 Hen. VIII. and the several offices of the servants of the household in and about such execution are described; from the serjeant of the wood-yard, who furnishes the choppingblock, to the serjeant-farrier, who brings hot irons to sear the stump.
3. As in the preceding book we mentioned the courts of the two universities, or their chancellor's courts, for the redress of civil injuries; it will not be improper now to add a short word concerning the jurisdiction of their criminal courts, which is equally large and extensive. The chancellor's court of Oxford, with which university the author hath been chiefly conversant, though probably that of Cambridge hath also a similar jurisdiction, hath authority to determine all causes of property, wherein a privileged person is one of the parties, except only causes of freehold; and also all criminal offences or misdemesnors under the degree of treason, felony, or mayhem. The prohibition of meddling with freehold still continues: but the trial of treason, felony, and mayhem, by a particular char1 See Vol. III. pag. 77.
* 4 Inst. 133. 2 Hal. P. C. 7.
ter is committed to the university jurisdiction in another court, namely, the court of the lord high steward of the university.
For by the charter of 7 Jun. 2 Hen. IV. (confirmed, among the rest, by the statute 13 Eliz. c. 29.) cognizance is granted to the university of Oxford of all indictments of treasons, insurrections, felony, and mayhem, which shall be found in any of the king's courts against a scholar or privileged person; and they are to be tried before the high steward of the university, or his deputy, who is to be nominated by the chancellor of the university for the time being. But, when his office is called forth into action, such high steward must be approved by the lord high chancellor of England: and a special commission under the great seal is given to him, and others, to try the indictment then depending, according to the law of the land and the privileges of the said university. When therefore an indictment is found at the assises, or elsewhere, against any scholar of the university, or other privileged person, the vice-chancellor may claim the cognizance of it; and, when claimed in due time and manner, it ought to be allowed him by the judges of assise: and then it comes to be tried in the high steward's court. But the indictment must first be found by a grand jury, and then the cognizance claimed: for I take it that the high steward cannot proceed originally ad inquirendum; but only, after inquest in the common law courts, ad audiendum et determinandum. Much in the same manner, as when a peer is to be tried in the court of the lord high steward of Great Britain, the indictment must first be found at the assises, or in the court of king's bench, and then, in consequence of a writ of certiorari, transmitted to be finally heard and determined before his grace the lord high steward and the peers.
When the cognizance is so allowed, if the offence be inter minora crimina, or a misdemesnor only, it is tried in the chancellor's court by the ordinary judge. But if it be for treason, felony, or mayhem, it is then, and then only, to be determined before the high steward, under the king's special commission to try the same. The process of the trial is this. The high steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the
bedells of the university, who thereupon return a panel of eighteen matriculated laymen," laicos privilegio universitatis gaudentes:" and by a jury formed de medietate, half of freeholders and half of matriculated persons, is the indictment to be tried; and that in the guildhall of the city of Oxford. And if execution be necessary to be awarded, in consequence of finding the party guilty, the sheriff of the county must execute the university process; to which he is annually bound by an oath.
I have been the more minute in describing these proceedings, as there has happily been no occasion to reduce them into practice for more than a century past; nor will it perhaps ever be thought advisable to revive them : though it is not a right that merely rests in scriptis or theory, but has formerly often be carried into execution. There are many instances, one in the reign of queen Elizabeth, two in that of James the first, and two in that of Charles the first, where indictments for murder have been challenged by the vice-chancellor at the assises, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff's and bedell's panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that university.
OF SUMMARY CONVICTIONS.
We are next, according to the plan 1 have laid down, to take into consideration the proceedings in the courts of criminal jurisdiction, in order to the punishment of offences. These are plain, easy, and regular; the law not admitting any fictions, as in civil causes, to take place where the life, the liberty, and the safety of the subject are more immediately brought into jeopardy. And these proceedings are divisible into two kinds; summary, and regular of the former of which I shall briefly speak, before we enter upon the latter, which will require a more thorough and particular examination.
By a summary proceeding 1 mean principally such as is
directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An in stitution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute offence. But it has of late been so far extended, as if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases. For,
I. Of this summary nature are all trials of offences and frauds contrary to the laws of the excise, and other branches of the revenue: which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the country; officers, who are all of them appointed and removable at the discretion of the crown. And though such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expence and delay of frequent prosecutions by action or indictment; and though such has usually been the conduct of the commissioners, as seldom, if ever, to afford just grounds to complain of oppression; yet when we again a consider the various and almost innumerable branches of this revenue; which may be in their turns the subjects of fraud, or at least complaints of fraud, and of course the objects of this summary and arbitrary jurisdiction; we shall find that the power of these officers of the crown over the property of the people is increased to a very formidable height.
II. Another branch of summary proceedings is that before justices of the peace, in order to inflict divers petty pecuniary mulcts, and corporal penalties, denounced by act of parliament for many disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited," and which used to be h Lambard and Burn.
a See Vol. I. pag. 324. &c.