Sivut kuvina

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 within it. 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 ofthe 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 pronounce 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, (1) 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. (7) 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. (1) 2 Hal. P. C. 39. 2 Hawk, P. C. 28.

2 Hawk. P. C. 14, 23.
(k) See book III, p. 60.
(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 district 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 oyer 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 goal 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. (S) Sometimes, alsó, 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.

(g) 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 indiet 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 elear, 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 indictment 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 eircuits. 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 tined in his absence. 5 B. and A. 218. 11 Price, 63.]

VOL. II.-59


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. (r) But there are many offences and particular matters, which by particular statutes belong properly to the jurisdiction, and ought to be prosecuted in this court: as, the smaller misdemeanors against the public or common[ *272 ] wealth, 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. (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)

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.

[ *273] *9. The sheriff's tourn, (v) or rotation, is a court of record, held 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 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

Salk. 406. Lord Raym. 1144.

r) 4 Mod. 379. (8) See Lambard eirenarcha and Burn's Justice. (t) B. 4, c. 3. (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. C. 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. 39, 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


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 sanie 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.

[blocks in formation]

(b) Stiernhook, de jure Goth. l. 1, c. 2.
(d) See book I, page 349. (e) 4 Inst. 273.
(g) Bacon of English Gov. p. x. c. 8

« EdellinenJatka »