week after the translation of St. Thomas the Martyr, or the seventh of July. It is held before two or more justices of the peace, one of whom must be of the quorum. (9) 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; that 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 assize. And, therefore, murders, and other capital felonies, are usually remitted for a more solemn trial to the assizes. (10) They cannot also try any new created offence, without express power given them by the statute which creates it. (7) But there are many offences and particular matters, which by particular statutes belong properly to the jurisdiction, and ought to be prosecuted in this [*272 ] court: as, the smaller misdemeanors against the public or commonwealth, not amounting to felony; and, especially, offences relating to the game, highways, ale-houses, bastard children, the settlement and provision for the poor, vagrants, servants' wages, apprentices, and popish recusants. (8) 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) 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 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 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 twice [*273] every year, within a month after caster 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 view of frankpledge, (x) which is a court of record, held once in the year, and not oftener, (y) within a particuliar hundred, lordship, or manor, before the steward of the leet: being the king's court, granted by charter rì 4 Mod. 379. (t) B. 4, c. 3. Salk. 406. Lord Raym. 111. (8) See Lambard eirenarcha and Burn's Justice. (u) Stat. 37 Hen. VIII, c. 1. 1 W. and M. st. 1, c. 21. (v) 4 Inst. 259. 2 Hal. P. C. 69. 2 Hawk. P. Ć. 55. (w) Mirr. c. 1, §§ 13, 16. (x) 4 Inst. 261. 2 Hawk, P. C. 72. (y) Mirror, c. 1, 10. (9) The commission so runs, but it is made immaterial by statute. The terms of the court are also now altered by statute. (10) Since the statute 5 and 6 Vic. c. 38, this court cannot try any person for treason or murder, or for any felony which, when committed by a person not previously convicted of felony, is punishable by transportation for life; and its jurisdiction is still further restricted by subsequent statutes. 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 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 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 [ *274 ] 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." (b) The 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. 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. The court of the clerk of the market (e) is incident to every fair [ *275 ] 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. (z) See book III, p. 113. (a) Part 2. c. 19. (c) 4 Inst. 271. 2 Hal. P. C. 53. 2 Hawk. P. C. 42. (b) Stiernhook, de jure Goth. l. 1, c. 2. 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 anima; or, which is looked upon as equivalent to all the rest, by a sum of [ *276] *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, (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 a 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. (11) 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 houses of the king, or any other house where the royal person still 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 solemaity of the process, particularly with regard to the execution of the sentence for utting 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 execution are described; from the sergeant of the wood-yard, who furnishes [*277] the chopping-block, to the sergeant-farrier, who brings hot irons to sear the stump. (12) 3. As in the preceeding 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. (h) See book III, p. 61. (i) 4 Inst. 133. (k) 4 Inst. 133. 2. Hal. P. C. 7. (7) See book III, page 83. (11) The statute 3 Hen. VII, c. 14, was repealed by the 6 Geo. IV, c. 31, and the jurisdiction of this court has accordingly become obsolete.] (12) That part of statute 33 Hen. VIII, c. 12, relating to this subject, was repealed by 9 Geo. IV, c. 31, and this court is therefore become obsolete. 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 scholar of the university, or other privileged person, the vice-chancellor may [*278] 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; 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 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. same 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 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:" 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 proceedings, as there has happily been no occasion to reduce them into practice for more [*279] than a century past; nor will it perhaps 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 vicechancellor 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. 4 469 CHAPTER XX. OF SUMMARY CONVICTIONS. 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, 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 shall briefly speak, before we enter upon the latter, which will require a more thorough and particular examination. By a summary proceeding (1) I mean principally such as is directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person, only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute offence. But it has of late been so far extended, as, [*281] if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases. (2) For, I. Of this summary nature are all trials of offences and frauds contrary to the laws of the excise, and other branches of the revenue: which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the country; officers, who are all of them appointed and removable at the discretion of the crown. And though such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expense and delay of frequent prosecutions by action or indictment; and though such has usually been the conduct of the commissioners, as seldom (if ever) to afford just grounds to complain of oppression; yet when we again (a) consider the various and almost innumerable branches of this revenue; which may be in their turns the subjects of fraud, or, at least, complaints of fraud, and, of course, the objects of this summary and arbitrary jurisdiction; we shall find that the power of these officers of the crown over the property of the people is increased to a very formidable height. II. Another branch of summary proceedings is that before justices of the peace, in order to inflict divers petty pecuniary mulets, and corporal penalties denounced by act of parliament for many disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited, (b) and which used to be formerly punished by the verdict of a jury in the court-leet. This (1) As to summary proceedings in general, and the dispositions of the courts, especially where no appeal is given, to require a stricter accuracy than is essential in other cases where there is a trial by jury, see 1 Stra. 67; Burn, J., tit. Convictions: 1 East, 649, 655; 5 M. and S. 206; 1 Chitty on game laws, 189 to 223; Bracy's Case, 1 Salk. 348.] (2) [See observations, Burn, J., tit. Convictions; 1 East, 649. Hence, it has been a doctrine that a different rule of evidence, as to the strictness of proof, should be required in the case of proceedings on a summary information than in an action: see 1 East, 649; but that doctrine now seems to have been properly overruled: 1 East, 655; 1 M. and S. 206; for if the legislature has thought fit to intrust magistrates or other inferior jurisdictions with the deci sion in certain matters, their proceedings ought to be governed by the same rules of evidence as affect superior courts.] |