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 higǹ 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 [265] 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 (). 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 (w), and therefore surely ought not to be judges there. For the privi lege 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 themselves by taking a commoner to their second husband (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 misdemeanor or breach of the peace (8), (9). 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 (10). The judges of this court are the supreme coroners of the kingdom. And the court itself is the principal (u) Fost. 248. (w) Bro. Abr. t. Trial, 142. (7) But peeresses by marriage cannot be said to be ennobled by blood; for after the death of their husbands they have even a less estate in their nobility than bishops, it being only durante viduitate. See the editor's conjecture how the notion was originally introduced that bishops were not entitled to a trial by the peers in parliament. Book I. p. 401. note. Since that note was written, the editor has been happy in finding what he suggested only as a conjecture drawn from general principles, confirmed by the more extensive learning of the late Vinerian professor Mr. Wooddeson, who not only has adopted the same opinion, but has adduced in confirmation of it several instances of bishops, who, being arraigned before a jury, demanded the privileges of the church, and disclaimed the authority of all secular jurisdictions. 2 Woodd. 585. (8) This power in New-York is vested in the court of oyer and terminer. (2 R. S. 205, 29.) See note (1) p. 258 ante. (9) 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 o. an offence be completed in Middlesex, though the rest were committed abroad, an indictment + In New York, stealing in another state and bringing the property here, is punishable (z) 4 Inst. 70. 2 Hal. P C. 2. 2 Hawk. P. C. 6 (y) See Book III. page 41. 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 in formation, 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. 32 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. (10) All informations filed in the court o! 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. in the same way as if the thett were commis ted here. 2 R. S. 698, ◊ 4. 5 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 ac court of the sickness in 1665), all former commissioners of oyer and termi ner, 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 nudicia, dicente jus rege (z) (11)." 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); which was a court of very ancient original (b), but new-modelled by sta tutes 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 [*267] of sheriffs, and other notorious misdemeanors, 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 monopolies; 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 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 con (z) Stiernhook, l. 1, c. 2. (a) This is said (Lamb. Arch. 154.) to have been so called, either from the Saxon word reoɲan to steer or govern ;-or from its punishing the crimen stellionatus, or cosenage ;-or because the room wherein it sat, 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) necause 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 I. their contracts and obligations were denominated .n 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. Uror braic. 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 (11) 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 Dench 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 justices of the peace for the county of Middlesex. (12) In one of the statutes of the university of Cambridge, the antiquity of which is most considerable, of which was in the king's ex (b) Lamb. Arch. 158. not known, the word starrum is twice used for room where ably be cal.es sisted of the same persons in different rooms, censuring the oreach 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). 4. The court of chivalry (e), of which we also formerly spoke (f) 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 Eng land 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 [*268] as civil part of its authority, is fallen into entire disuse there having been no permanent high constable of England (but only pro has vice at coronations and the like) since the attainder and execution of Staf ford duke of Buckingham, in the thirteenth year of Henry VIII; the au thority 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 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 jursidiction 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 this English nation: and therefore in the eighth year of Henry VI. it was endeavoured to apply *a [*269] (d) The just odium into which this tribunal had ailen before its dissolution, has been the occasion that few memorials have reached us of its nature, jurisdiction, and practice; except such as, on account of their enormous oppression are recorded in ⚫he histories of the times. There are however to be inet 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. N° 1226; a (13) Hudson's Treatise of the Court of Star-chamber is now published at the beginning of ne 2d vol. of Collectanea Juridica. remedy in parliament: which then miscarried for want of the 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 øyer ard terminer in London (14), (15). 29. ss. 5, 6, and 7. 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 uni(14) In the U S., the admiralty court are the district and circuit courts of the U. S., which have jurisdiction, exclusive of the state courts, of all offences committed at sea. (Story's laws, p. 56, 9. 11.) The trial, except in civil causes of admiralty and maritime jurisdiction, is by jury. (15) 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 com. mitted on the high seas are found guilty of manslaughter only, they shall be subject to the same punishment as if they had commit ted 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 pecial commission, as directed by statute 28 Hen. VIII. c. 15. The statute 11 and 12 W. III. c. 7. contains provisions against accessarics to piracies and robberies on the high seas. Accessaries 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. 1 The 28 Hen. VIII. c. 15. merely altered the mode of trial in the admiralty court, and its jurisdiction still continues to rest on the same foundations as it did before that statute. Com Dig. 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 H. 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 be 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. 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 did 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 F. 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 of fender may be indicted in the county where the party died. So the courts of common law have concurrent jurisdiction with the admiral ty, in murders committed in Milford Haven and in all other havens, creeks, and rivers ir this realm. 2 Leach, 1093. 1 East P. C. 368 R. & R. C. C. 243. S. C. Piratically steal ing a ship's anchor and cable is a capital of fence by the marine laws, and punishable un der the 28 Hen. VIII. c. 15; the 39 Geo. Ili 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 it 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 versally 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 the 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 (16). 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 authorites: 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 *com- [*270] mission of the peace, was also treated of in a former volume (m), 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 (n) to hear and determine all treasons, felonies, and misdemeanors. 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 they are empowered to hear and determine by the help of the petit jury. Therefore they have, besides, fifthly, a commission of general gaol deli very (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 exceltence (17). Sometimes also, upon urgent occasions, the king issues a (m) See Book I. page 351. (n) See Appendix, 1. (0) Ibid. (i) 4 Inst. 162. 168. 2 Hal. P. C. 22. 32. 2 Hawk. P. C. 14. 23. (k) See Book III. page 60. (1) 2 Hal. P. C. 39. 2 Hawk. P. C. 28. (16) See 2 R. S. 201, § 4, &c. (17) The 3 Geo. IV. c. 10. enables in cermain cases the opening and reading of commissions under which the judges sit upon their eircuit, after the day appointed for holding as sises (p) 2 Inst. 43. : 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, ro parties shall appear to indict them, which can (7) See Hov. n. (7) at the end of Vol. B IV Every description of offence, even high reason, is cognizable under this commission, 2 Hate, 35. Hawk. b. 2. c. 6. s. 4. Bac. Ab. Court of Justices of Oyer, &c. B.; and the |