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 statutes 8 and 9 Wm. 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 ale-houses, passing the accounts of the parish officers, and the like. *9. The sheriff's tourn, (v) or rotation, is a court of record, held twice every year, within a month after Easter and [*273] 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 view of frankpledge, (x) 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 freemen 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 consists in usually lying there: a regulation, which owes its original 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 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 [*274] 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 hæreda, which answered to our court-leet, "de omnibus quidem cognoscit, non tamen de omnibus judicat" (takes cognizance of all offences, but does not give judgment in all). (b) The (v) 4 Inst. 259. 2 Hal. P. C. 69. 2 Hawk. P. C. 55. (10) Mirr. c. 1, §§ 13, 16. (y) Mirror, c. 1, § 10. (b) Stiernhook de jure Goth. l. 1, c. 2. (z) See book III, p. 113. 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 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 1 Edw IV, c. 2. 11. The court of the coroners (c) 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 (on view of the body). 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. Market court. The court of the clerk of the mar [*275] ket (e) is incident to every fair and market in the kingdom, to punish misdemeanors therein; as a court pie poudre is, to determine all disputes relating to private or civil property. The object of this jurisdiction (f) 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 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. (g) 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 their most dignified magistrates, the curule ædiles. II. Courts of special and limited jurisdiction.-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 (c) 4 Inst. 271. 2 Hal. P. C. 53. 2 Hawk. P. C. 42. (e) 4 Inst. 273. (d) See book I, page 346. (f) See st. 17 Car. II, c. 19. 22 Car. II, c. 8. 23 Car. II, c. 12. (g) Bacon of English Gov. b. x, c. 8. sins, rather than temporal crimes, by penance, contrition and excommunication, pro salute anima; or, which is looked upon as equiv[*276] alent 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, (2) 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 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 shall houses of the king, or any other house where the royal person 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 [*277] 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.2 3. Courts of the universities.- As in the preceding book (1) 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 misdemeanors under the degree of treason, felony, or mayhem. The prohibition of (i) 4 Inst. 133. (h) See book III, p. 61. (k) 4 Inst. 133. 2 Hal. P. C. 7. c. 12, relating to this subject, was repealed by 9 Geo. IV, c. 31, and this court is therefore become obsolete. 1431 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 7th June, 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 assizes or elsewhere, against any [*278] 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 assize: 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 (to inquire); but only, after inquest in the common-law courts ad audiendum et determinandum (to hear and determine). 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 assizes, 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 (among the lesser crimes) 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 laymen, "laicos privilegio universitatis gaudentes" (laymen enjoying the privilege of the university): 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 pro[*279] ceedings, as there has happily been no occasion to reduce them into practice for more than a century past; nor will it per haps be thought advisable to revive them: though it is not a right that merely rests in scriptis or theory, but has formerly often been 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 assizes, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff's and bedel's panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that university. *CHAPTER XX. OF SUMMARY CONVICTIONS. [*280] We are next, according to the plan I 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 briefly speak, before we enter upon the latter, which will require a more thorough and particular examination. Definition. By a summary proceeding1 I mean principally such as is directed by several acts of parliament (for the common law is 1 There were two reasons for holding inferior courts to great strictness in exercising authority to convict of petty offenses in a summary way: 1. That jury trial, which is supposed to be favorable to accused parties was not allowed, and 2. No appeal was given, and therefore the conviction was final. It was perfectly reasonable, therefore, as Pratt, J., says in R. v. Marriott, Stra. 67, to keep the magistrate up strictly to the law. "No comparison," says Lord Kenyon, 64 can be made between summary proceedings on a conviction before magistrates, and actions in the courts of common law. * It is necessary for courts of justice to hold a strict hand over summary proceedings before magistrates, and I never will agree to relax any of the rules by which they have been bound. Their jurisdiction is of a limited nature, and they must show that the party was brought within it." Rex v. Stone, 1 East, 639, 649, 650. See also Rex v. Corden, Burr. 2279. In People v. Phillips, 1 Park. Cr. R. 95, it is said that a record must be made up in every case as a prerequisite to the execution of the conviction; the reasons of which are: * 1. For protection of the accused, that he may not again be convicted of the same offense; 2. For protection of the magistrate: a proper record being conclusive evidence in his favor in cases within his jurisdiction; 3. In the absence of appeal the only mode by which the accused can obtain a review of the sentence is by habeas corpus or certiorari, founded on the record. To the same purport is Bennac v. People, 4 Barb. 164. And the record must recite the facts; not legal conclusions merely, or it will be void. Therefore, a complaint and conviction of defendant for that, on the Lord's day, commonly called Sunday, "he performed certain worldly employment or business, the same not being a work of necessity or charity, by driving certain horses to which was attached a carriage in which certain persons, not travelers, but resi dents of the aforesaid county, were carried over the streets of the city of Pittsburgh," were held bad, because they did not show the purpose for which the carriage was driven. "No citizen," says Lowrie, Ch. J., "could have any sort of protection against the ignorance or wickedness of inferior |