During the session of parliament the trial of an indicted peer is not properly in the court of the lord high steward, but before the court last mentioned, of our lord the king in parliament. (q) It is true, a lord high steward is always appointed in that case, to regulate and add weight to the proceedings: but he is rather in the nature of a speaker pro tempore, or chairman of the court, than the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high steward has a vote with the rest, in right of his peerage. But in the court of the lord high steward, which is held in the recess of parliament, he is the sole judge of matters of law, as the lords triors are in the matters of fact; and as they may not interfere with him in regulating the proceedings of the court, so he has no right to intermix with them in giving any vote upon the trial. (r) Therefore, upon the conviction and attainder of a peer for murder in full parliament, it hath been holden by the judges, (s) that in case the day appointed in the judgment for execution should lapse before execution done, a new time of execution may be appointed by either the high court of parliament during its sitting, though no high steward be existing; or, in the recess of parliament, by the court of king's bench, the record being removed into that court.

*It has been a point of some controversy, whether the bishops have

now a right to sit in the court of the lord high steward, to try indict- [*264]

ments of treason and misprision. Some incline to imagine them included
under the general words of the statute of King William, "all peers who have a
right to sit and vote in parliament;" but the expression had been much clearer
if it had been, "all lords," and not "all peers;" for though bishops, on account
of the baronies annexed to their bishopricks, are clearly lords of parliament, yet,
their blood not being ennobled, they are not universally allowed to be peers
with the temporal nobility: and perhaps this word might be inserted purposely
with a view to exclude them. However, there is no instance of their sitting on
trials for capital offences, even upon impeachments and indictments in full
parliament, much less in the court we are now treating of; for indeed they
usually withdraw voluntarily, but enter a protest declaring their right to stay.
It is observable that, in the eleventh chapter of the constitutions of Clarendon,
made in parliament 11 Hen. II, they are expressly excused, rather than
excluded, from sitting and voting in trials, when they come to concern life or
limb: "episcopi, sicut cæteri barones, debent interesse judiciis cum baronibus,
quosque perveniatur ad diminutionem membrorum, vel ad mortem ;" and Becket's
quarrel with the king hereupon was not on account of the exception (which
was agreeable to the canon law), but of the general rule that compelled the
bishops to attend at all. And the determination of the house of lords in the earl
of Danby's case, (t) which hath ever since been adhered to, is consonant to these
constitutions; "that the lords spiritual have a right to stay and sit in court in
capital cases, till the court proceeds to 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 high 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 sum-
moned; and though the statute of King William *regulates the pro-
ceedings in that court, as well as in the court of parliament, yet it never
[ *265]
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.(u)
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 privilege of being thus tried.
depends upon nobility of blood, rather than a seat in the house: as appears
from the trials 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;

(q) Fost. 141.
(r) State Trials. vol. iv, 214, 232, 233.
(1) Lords' Journ. 15 May, 1679.
(u) Fost. 248.

(8) Fost. 139.
(w) Bro. Abr. t. Trial. 142.

and peeresses by marriage, also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband. (4)

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. 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. The judges of this court are the supreme coroners of the kingdom. And the court itself is the principal 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 account of the sickness in 1665), all former commissioners of oyer and terminer, and general gaol delivery, are at once absorbed and determined ipso facto (5) *in the same manner as by the old Gothic and Saxon consti[*266] tutions, "jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege." (z)

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-modeled by statutes 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 of sheriffs, and other notorious *misde[*267] meanors, 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 honorable 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 consisted of the same persons in different rooms, censuring the breach 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

(x) 4 Inst. 70. 2 Hal. P. C. 2. 2 Hawk, P. C. 6. (y) See book 3, page 41. (z) Stiernhook, l. 1, c. 2. (a) This is said (Lamb. Arch 151) to have been so called, either from the Saxon word propan 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) because 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 in our ancient records starra or starrs, from a corruption of the Hebrew word shetar, a convenant. Tovey's Angl. judaic, 32. Selden, tit. of hon. ii, 34. Uxor, ebraic, 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 most considerable, of which was in the king's exchequer at Westminster; and no starr was allowed to be valid unless it were found in some of the said repositories. (Memorand in Scucc. P. 6 Edw. I, prefixed to Maynard's year-book of Edw. II. fol. S. Madox, hist. exch. c. vii, §§ 4. 5, 6.) The room at the exchequer. where the chests containing these starrs were kept, was probably called the starr-chamber; and when the Jews were expelled the kingdom, was applied to the use of the king's council, sitting in their judicial capacity. To confirm this. the first time the starr-chamber is mentioned in any record, it is said to have been situated near the receipt of the exchequer at Westminster; the king's council, his chancellor, treasurer, justices, and other sages, were assembled en la chaumbre des esteilles pres la resceipt la Westminster. Claus. 41. Edw. III, m. 13. For in process of time, when the meaning of the Jewish starrs was forgotten, the word starr-chamber was naturally rendered in law-French, la chaumbre des esteilles and in law-latin camera stellata; which continued to be the style in latin till the dissolution of that court. (b) Lamb. Arch. 156. (c) Hist. of Reb., books i and 3.

(4) [See, for instance, the Dutchess of Kingston's Case, 20 St. Tr. 355.

Upon conviction for felony a peer is now liable to the same punishment as any other subject of the crown (statute 4 and 5 Vic. c. 22), and for a misdeameanor, as libel, he is liable in like manner as a commoner. Case of Lord Vaux, 1 Bulstr. 197.]

(5) This is now otherwise by statute.

more penal, and the foundations of right never more in danger to be destroyed." For which reasons it was finally abolished by statute 16 Car. I c. 10, to the general joy of the whole nation. (d) (6)

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 England 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 But the criminal, as well as civil part of its authority,

is fallen into entire disuse: there having been no permanent high con[*268] stable of England (but only pro hac vice at coronations and the like,) since the attainder and execution of Stafford, duke of Buckingham, in the thirteenth year of Henry VIII; the authority 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, styled 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 jurisdiction 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 the English nation: and therefore in the eighth year of Henry VI it was endeavoured to apply *a

remedy in parliament: which then miscarried for want of the royal assent. [*269] 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

(d) The just odium into which this tribunal had fallen 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 the histories of the times. There are, however, to be met 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. No, 1226) a very full. methodical, and accurate account of the constitution and course of this court, compiled by William Hudson of Gray's Inn, an eminent practitioner therein, and a short account of the same, with copies of all its process, may also be found in 18 Rym. Foed. 192. &c.

(e) 4 Inst. 123. 2 Hawk. P. C. 9. (h) 4 Inst. 134, 147.

(f) See book III, page 68.

(g) Duck. de authorit. jur. civ.

(6) In this place should be mentioned the court of criminal appeal, established by 11 and 12 Vic. c. 78.

It consists of the judges of the superior courts of common law, any five of whom, including one of the chief justices, or the chief baron, shall constitute a quorum. On a conviction before a court of oyer and terminer, gaol delivery or quarter sessions, the judges before whom the cause was tried, may reserve the questions of law for the consideration of this court. The court, after argument, may make such order in the premises as justice may require, and may either pionounce the proper judgment themselves, or remit the record for that purpose.

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. (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 universally 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. These were slightly mentioned in the preceding book. (k) We then observed that, at what is usually called the assizes, the judges sit by virtue of five several authorities: two of which, the commission of assize 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 commission of the [*270] 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 assizes 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

(i) 4 Inst. 162, 168. 2 Hal. P. C. 22, 32. 2 Hawk. P. C. 14, 23. (k) See book III, p. 60. (1) 2 Hal. P. C. 39. 2 Hawk, P. C. 28. (m) See book 1, p. 351. (n) See Appendix, § 1.

(7) [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. 1 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 died 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, P. C. 365, 366. And, it being doubtful whether it could be tried at common law, the statute 2 Geo. II, c. 21, provides that the offender may be indicted in the county where the party died. So the courts of common law have concurrent jurisdiction with the admiralty, in murders committed in Milford Haven, and all other havens, creeks, and rivers in this realm. 2 Leach, 1093; 1 East, P C. 368; R. and R. C. C. 243, S. C.]

By 4 and 5 Wm. IV, c. 36 and 7 Wm. IV and 1 Vic. c. 77, the central criminal court was created, with a distriet composed of London, and Middlesex, and parts of Kent and Surrey. It is composed of the lord mayor of London, the lord chancellor, the common law judges, the judges of the courts of bankruptcy and admiralty, the dean of the arches, the aldermen of London, the recorder and common sergeant of London, the judge of the sheriff's court of London, and the ex-chancellors and ex-judges of the superior courts. Any two or more may hold the court, and, in practice, it is generally presided over by two judges of the superior courts and the law officers of the city of London. It has jurisdiction of offences committed within the district, and also of all offences committed on the high seas and other places within the jurisdiction of the admiralty.

By 7 and 8 Vic, c. 2, after reciting that the issuing of a special commission in the manner prescribed by 28 Hen. VIII, c. 15, was found inconvenient, it is enacted that her majesty's justices of assize, or others, her majesty's commissioners, by whom any court shall be holden under any of her majesty's commissions of oyer and terminer, or general gaol delivery, shall have the powers which by any act are given to any commissioners named in any commission of over and terminer, for the trying of offences committed within the jurisdiction of the admiralty, and to deliver the gaol, &c., of any person therein for any offence alleged to have been committed on the high seas and other places within the jurisdiction of the admiralty. See, also, 18 and 19 Vic. c. 91, s. 21. And several subsequent statutes declare that offences committed within the jurisdiction of the admiralty shall be deemed offences of the same_nature and liable to the same punishments, as if committed upon land within England or Ireland, and may be tried in any county or place in which the offender may be apprehended or in custody.

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 assizes; 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 good 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 are 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. (8) Sometimes, also, upon urgent occasions, the king issues a 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. Formerly it was held, in *pursuance of the statutes 8 Ric. II, c. 2, and 33 Hen. VIII, c. 4, that no judge or other lawyer [*271] 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 assize 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 (0) See Appendix, § 1.

(p) 2 Inst. 43.

(q) 4 Inst. 170. 2 Hal. P. C 42. 2 Hawk. P. C. 32.

(8) [Every description of offence, even high treason, is cognizable under this commission; and the justices may proceed upon any indictment of felony or trespass found before other justices; 2 Hale, 32; Hawk. b. 2, c. 6, s. 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, no parties shall appear to indict them, which cannot be done either by justice 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 gaol delivery 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. and 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 gaol delivery may take an indictinent against him, as well as if he were actually in prison. 2 Hale, 34, 35. The commissions of gaol delivery are the same on all the circuits. Unlike the commission of oyer and terminer, in which the same authority suffices for every county, there is a distinct commission to deliver each particular gaol of the prisoners under the care of its keeper.

The court of general gaol delivery has jurisdiction 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 imprison ment, and if the party refuse to attend, he may be fined in his absence. 5 B. and A. 218. 11 Price, 68.]

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