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 oyer and terminer in London (14), (15). 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 universally diffused over the nation, but yet are of a local jurisdiction, and confined to particular districts. Of which species are, (14) In the U S., the admiralty court are 29. ss. 5, 6, and 7. the district and circuit courts of the U. S., The 28 Hen. VIII. c. 15. merely altered the which have jurisdiction, exclusive of the state mode of trial in the admiralty court, and its courts, of all offences committed at sea. (Sto- jurisdiction still continues to rest on the same ry's laws, p. 56, 0.9. 11.) The trial, except in foundations as it did before that statute. Com. civil causes of admiralty and maritime juris. Dig. Admiralty, E. 5. It is regulated by the diction, is by jury. civil law et per consuetudines marinas, ground(15) The jurisdiction of the commissionersed on the law of nations, which may possibly appointed under the 28 Hen. VIII. c. 15. was give to that court a jurisdiction with which confined by that statute to treasons, felonies, our common law is not able to invest it. Per robberies, murders, and confederacies ; and Mansfield, C. J. I Taunt. 29. The statutes therefore the 39 Geo. III. c. 15. declares, tbat 28 H. VIII. c. 15, and 39 Geo. III. c. 37. do it is expedient that other offences committed not, however, take away any jurisdiction as to on ine seas should be tried in the like manner; the trial of offences, which might before have and it enacts that every offence committed been tried in a court of common law; and, upon the high seas shall be subject to the same therefore, an indictment for a conspiracy on punishment, as if it had been committed upon the high seas is triable at common law, on the shore, and shall be tried in the same man- proof of an overt act on shore, in the county ner as the crimes enumerated in the 28 Hen. where the venue is laid. 4 East, 164. Ita VIII. c. 15. are directed to be tried. And as pistol be fired on shore, which kills a man at persons tried for murder under that statute sea, the offence is properly triable at the adcould not be found guilty of manslaughter, miralty sessions, because the murder is, in and where the circumstances made the crime law, committeilt where the death occurs. 1 manslaughter, were acquitted entirely, the 39 East P. C. 367. 1 Leach, 388. 12 East, 246 Geo. III. c. 15. expressly enacts, that where 2 Hale, 17. 20: but, if on the other hand, a persons iried for murder or manslaughter com. man be stricken upon the high sea, and did mitted on the high seas are found guilty of upon shore after the reflux of the water, the manslaughter only, they shall be subject to admiral, by virtue of this commission, has no the same punishment as if they had commit- cognizance of that selony. 2 Hale, 17. 20. ! ted such manslaughter upon the land. The East P. C. 365, 6. And, it being doubtful 46 Geo. III. c. 54. enables the king to issue a whether it could be tried at common law, the similar commission for trying such offences in statute 2 Geo. II. c. 21. provides that the of. the same manner in any of his majesty's fender may be indicted in the county where islands, plantations, colonies, dominions, forts, the party died. So the courts of common law or factories. The 43 Geo. III. c. 113. s. 2 & have concurrent jurisdiction with the admiral3. provides that any person wilfully casting ty, in murders committed in Milford Haven, away any vessel, &c. or procuring it to be and in all other havens, creeks, and rivers in done, shall be guilty of felony without benefit this realm. 2 Leach, 1093. | East P. C. 368. of clergy; and shall, if the offence were com- R. & R. C. C. 243. S. C. Piratically steal. mitted on the high seas, be tried, &c, by a ing a ship's anchor and cable is a capital ofspecial commission, as directed by statute 28 fence by the marine laws, and punishable unHen. VIII. c. 15. The statute 11 and 12 W. der the 28 Hen. VIII. c. 15; the 39 Geo. III. Ill. c. 7. contains provisions against accessa- c. 37. not extending to this case. R. & R.C. ries to piracies and robberies on the high seas. C. 123. The 1 Geo. IV. c. 91. s. I. provides Accessaries before the fact, on shore, to the that the crimes and offences mentioned in 43 wilful destruction of a ship on the high seas, Geo. III. c. 58. which shall be committed on were not triable the admiralty jurisdiction the high seas, out of the body of any county, under 11 Geo. I. c. 29. s. 7. 2 Leach, 947. shall be liable to the same punishment as if East P. C. Addenda, 26. Russ. & Ry. 37. committed on land in England or Ireland, and S. C. But now, this is provided for by the shall be inquired of, &c. as treasons, &c. are statute 43 Geo. III. c. 113. which repeals the by 28 Hen. VIII. R. & R. C. C. 286. statutes 4 Geo. I. c. 12. s. 3. and 11 Geo. I. c. 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 (1). The third, which is the *com- [*270] mission of the peace, wa 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, fc. 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 delivery (0); 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 excellence (17). Sometimes also, upon urgent occasions, the king issues a (m) See Book I. page 351. (1) 4 Inst. 162. 168. 2 Hal. P. C. 22. 32.2 Hawk. P. C. 14. 23. (k) Seo Book III. page 60. (0) Ibid. (16) See 2 R. S. 201, 94, &c. justices may proceed upon any indictment of (17) The 3 Geo. IV. c. 10. enables in cer. felony or trespass found before other justices, tain cases the opening and reading of com- 2 Hale, 32. Hawk. b. 2. c. 6. s. 2. Bac. Ab. missions under which the judges sit upon their Court of Justices of Oyer, &c. B. Cro. C. circuit, after the day appointed for holding as. C. 2; or may take an indictment originally sises. before themselves, Hawk. b. 2. c. 6. s. 3. 2 Every description of offence, even high Hale, 34 ; and they have power to discharge, tres son, is cognizable under this commission, not only prisoners acquitted, but also such 2 Hale, 35. Hawk. b. 2.C. 6. s. 4. Bac. Ab. against whom, upon proclamation made, na Court of Justices of Oyer, &c. B. ; and the parties shall appear to indict them, which can (7) See Hov. n. (7) at the end of Vol. B IV. 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 (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 Eng. land. 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 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 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 (9) 4 Inst. 170. I Hal. P. C. 42.2 Hawk. P. C. (r) 4 Mod. 379. Salk. 406. Lord Raym. 1144 32. not be done either by justices of oyer and ter- same on all the circuits. Unlike the commis. miner, or of the peace. Hawk. b. 2. c. 6. s. sion of oyer and terminer, in which the same 6. 2 Hale, 34. It is not imperative on a com- authority suffices for every county, there is a missioner of goal delivery to discharge all the distinct commission to deliver each particular prisoners in the goal who are not indicted; goal of the prisoners under the care of its but it is discretionary in him to continue on keeper, their commitments such prisoners as appear The court of general goal delivery has ju. to him committed for trial, but the witnesses risdiction to order, that the proceedings on : against whom did not appear, having been trial from day to day shall not be published bound over to the sessions. Russ. & R. C. till all the trials against different prisoners C. 173. But it seems clear from the words of shall be concluded, and the violation of such the commission, that these justices cannot try orders is a contempt of court, punishable by any persons, except in some special cases, fine or imprisonment, and if the party refuse who are not in actual or constructive custody to attend, he may be fined in bis absence. 4 of the prison specifically named in the com- B. & A. 218. 11 Price, 68. mission. Hawk. b. 2. c. 6. s. 5. Bac. Ab. (18) In New York, the governor, and in Court of Justices of Oyer. &c. B. But it is some cases the circuit judges, may issue com. not necessary that the party should be always missions of oyer and terminer. and goal deliin actual custody, for if a person be admitted very. (2 R. Š. 204, 9 32, and 205, 9. 35.) to bail, yet he is in law, in prison, and his bail (19) The Michaelmas quarter sessions mus! are his keepers, and justices of goal delivery now be bolden in the first week after the llth may take an indictment against him, as well Oct. 54 Geo. III. C. 84. If the feast-day fall as if he were actually in prison. 2 Hale, 34, on Sunday, the sessions are to be holden in 35. The commissions of goal delivery are the 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) (1) 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). 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 ap. 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. 30.8 In both corporations and counties at large, there is sometimes kept a special or petty session, by a sew 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 (o), which is a court of record, held 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) *z), 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 (8) See Lambard eirenarcha and Burn's Justice. a (6) Mirr. c. 1, $ 13, and 16. (u) Stat. 37 Hen. VIII. c. 1. 1W. & M. st. 1, c. (3) 4 Inst. 261. 2 Hawk. P. C. 72. (u) 4 Inst. 259.2 Hal. P. C. 69.2 Hawk. P. (8) See Hov. n. (8) at the end of the Vol. B IV. C. 55. (1) b. 4, c. 3. 21. (y) Mirror, c. 1, $ 10. 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 (6)." 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 ses. sions ; which it is particularly directed to do in some cases by statute ] 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 (f) is principally the recog. nizance 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 (a) part 2, c. 19. (d) See Book I. page 349. (e) 4 lnst. 278. (6) Stiernh. de jur. Goth. l. 1, c. 2. (c) 4 Inst. 271. 2 Hal. P. C. 53, 2 Hawk. P. C. 42. Car. II. c. 12. а (20) See 2 R. S. 742. ner's inquisition, and a bill of indictment re(21) The finding of such inquest is equiva. turned by the grand jury, 2 Leach, 1095. 3 lent to the finding of a grand jury ; and a wo. Campb. 371. Russ. & Ry. C. C. 240. S. C. ; man tried on the coroner's inquest for the but, in order to found an indictment on a coro. murder of her bastard child, may be found ner's inquest, the jurors, and not merely the guilty under 43 Geo. III. c. 58. s. 4. of endea. coroner, must have subscribed it. Imp. Cor. vouring to conceal its birth; there being no 65. distinction in this respect between the coro |
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