specia 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 (18). Formerly it was [*271] held, in pursuance of the statutes 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 misdemeanors, 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 any county of England. 8. The court of general quarter sessions of the peace (q) 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 (19). 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 com mission 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 court 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 by the statute which creates it (r). But there are many offences and particular matters, which by particular (g) 4 Inst. 170. 1 Hal. P. C. 42. 2 Hawk. P. C. 32. not 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 goal delivery to discharge all the prisoners in the goal 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 goal delivery may take an indictment against him, as well as if he were actually in prison. 2 Hale, 34, 35. The commissions of goa! delivery are the (r) 4 Mod. 379. Salk. 406. Lord Raym 1144 same on all the circuits. Unlike the commis sion of oyer and terminer, in which the same authority suffices for every county, there is a distinct commission to deliver each particular goal of the prisoners under the care of keeper. The court of general goal delivery has ju risdiction 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. (18) In New-York, the governor, and in some cases he circuit judges, may issue commissions of oyer and terminer, and goal delivery. (2 R. S. 204, § 32, and 205, ◊ 35.) (19) The Michaelmas quarter sessions must now be holden in the first week after the 11th Oct. 54 Geo. III. c. 84. If the feast-day fall on Sunday, the sessions are to be holden is the week following. 2 Hale, 49 statutes belong properly to this jurisdiction, and ought to be prosecuted in this court: as, the *smaller misdemeanors against the [272] 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 (s). 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 the court of king's bench, by a writ of certiorari facias, and be there either quashed or confirmed. The records or rolls of the sessions are committed to the custody of a special officer denominated the custos rotulorum, who is always a justice of the quorum; and among them of the quorum (saith Lambard) (t) a man for the most part especially picked out, either for wisdom, countenance, or credit. The nomination of the custos rotulorum (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 (u). : ap 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 peals 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 & 9 W. III. c. 30. In both corporations and counties at large, there is sometimes kept a 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. *9 The sheriff's tourn (v), or rotation, is a court of record, held [*273] 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 (w): 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. 10. The court-leet, or veiw of frankpledge (x), which is a court of record, neld once in the year and not oftener (y), 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 frankpledges, that is, the freeman within the liberty; who we may remember) (2), 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 s) See Lambard eirenarcha and Burn's Justice. () b. 4, c. 3. (a) Stat. 37 Hen. VIII. c. 1. 1 W. & M. st. 1, c ) 4 Inst 259. 2 Hal. P. C. 69. 2 Hawk. P. C. 55. (w) Mirr. c. 1, 13, and 16. (x) 4 Inst. 261. 2 Hawk. P. C 73. (z) See book III. page 119 (8) See Hov. n. (8) at the end of the Vol. B IV consists in usually lying there a regulation, which owes its origin to the laws of king Canute (a). 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 [*274] 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 misdemeanors, as all trivial 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 haereda, which answered to our court-leet, "de omnibus quidem cognoscit, non tamen de omnibus judicat (b)." The objects of their jurisdiction are therefore unvoidably 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 nuisances and other material offences against the king's peace and public trade, down to eaves-dropping, waifs, and irregularities in 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 Edw. IV. c. 2. 11. The court of the coroners (c) (20) 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 (21). 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. [*275] *12. The court of the clerk of the market (e) is incident to every fair and market in the kingdom, to punish misdemeanors therein; as a court of pie poudre is, to determine all disputes relating to private or civil property. The object of this jurisdiction (ƒ) is principally the recognizance of weights and measures, to try whether they be according to the true standard thereof, or no: which standard was anciently committed to the custody of the bishop, who appointed some clerk under him to inspect the This is the most in the abuse of them more narrowly; and hence this officer, though now us ally a layman, is called the clerk of the market (g). if they be not according to the standard, then, besides the punishment of the party by fine, weights and measures themselves ought to be burnt. ferior 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 their most dignified magistrates, the curule aediles. 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 misdemeanors 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 animae; 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 [*276} 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 stewart. *reasurer, 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 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 (k), 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 officers of the servants of the household in and about such execunon are *described; from the sergeant of the wood-yard, who fur- [*277] nishes the chopping-block, to the sergeant-farrier, who brings hot irons 13 sear the stump (22). 3. As in the preceding book (1) we mentioned the courts of the two universities, or their chancellors' 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 misdemeanors 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 charter, 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 Ox ford 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 indict[*278] ment 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 misdemeanor 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 bedels of the university, who thereupon return a panel of eighteen matriculated lay (1) See Book III. page 83. (22) The 3 H. VII. c. 14, is wholly repeal d by the 9 G. IV. c. 31, as is also the 33 H. VIII. c. 12, part of s. 6 to s. 18, relating to his sub ect. The two courts mentioned in the text may now, therefor, be conside -ed » no longer existing. They oad for many year been utterly disused. |