« EdellinenJatka »
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,10
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 *270] *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 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 misdemeanours. 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 gaol delivery,(o) 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,
() 4 Inst. 162, 168. 2 Hal. P. C. 22, 32. 2 Hawk. P. C. 14,
(*) See book iii. p. 60.
() 2 Hal. P. C. 39. 2 Hawk. P. C. 28.
See book i. page 351.
dicted in the county where the party died. So the courts of common law have concur rent jurisdiction with the admiralty in murders committed in Milford Haven and in all other havens, creeks, and rivers in this realm. 2 Leach, 1093. 1 East, P. C. 368. R. & R. C. C. 243, S. C. Piratically stealing a ship's anchor and cable is a capital offence by the marine laws, and punishable under the 28 Hen. VIII. c. 15,-the 39 Geo. III. c. 37 not extending to this case. R. & R. C. C. 123. The 1 Geo. IV. c. 91, s. 1 provides that the crimes and offences mentioned in 43 Geo. III. c. 58, which shall be committed on the high seas, out of the body of any county, shall be liable to the same punishment as if committed on land in England or Ireland, and shall be inquired of, &c. as treasons, &c. are by 28 Hen. VIII. R. & R. C. C. 286.-CHITTY.
10 The Central Criminal Court, which has jurisdiction to hear and determine all treasons, murders, felonies, and misdemeanours committed within the city of London and the county of Middlesex and certain parts of the counties of Essex, Kent, and Surrey, and also all offences committed on the high seas and other places within the jurisdiction of the admiralty. This court was established in 1834, by the statute 4 & 5 Ŵ. IV. c. 36, and sits twelve times (and oftener if necessary) every year, under commission of over and terminer and gaol-delivery. The judges or persons named in the commission consist of the lord mayor, for the time-being, of the city of London, the lord chancellor, all the judges, for the time-being, of the courts of Queen's Bench, Common Pleas, and Exchequer, the judges of the Court of Bankruptcy, the judge of the Admiralty, the Dean of the Arches, the aldermen of the city of London, the Recorder and Common Serjeant of the city of London, the judge of the Sheriff's Court of the city of London, and ex-chancellors and ex-judges of the superior courts; but in practice the trials are generally presided over by two judges of the superior courts (who sit by rotation) and the law-officers of the city of London.-Kerr.
or for whatever crime committed. It was antiently 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 [*271 use and excellence." 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 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 misdemeanours 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() 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." 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
(P) 2 Inst. 43.
(9) 4 Inst. 170. 1 Hal. P. C. 42. 2 Hawk. P. C. 32.
"The 3 Geo. IV. c. 10 enables in certain cases the opening and reading of commissions under which the judges sit upon their circuit after the day appointed for holding assizes.
Every description of offence--even high treason-is cognizable under this commission, (2 Hale, 35. Hawk. b. ii. c. 6, s. 4. Bac. Abr. Court of Justices of Oyer, &c. B. ;) and the justices may proceed upon any indictment of felony or trespass found before other justices, (2 Hale, 32. Hawk. b. ii. c. 6, s. 2. Bac. Abr. Court of Justices of Oyer, &c. B. Cro. C. C. 2,) or may take an indictment originally before themselves, (Hawk. b. ii. c. 6, s. 3. 2 Hale, 34;) and they have power to discharge, not only prisoners acquitted, bu also such against whom, upon proclamation made, no parties shall appear to indict them. -which cannot be done either by justices of oyer and terminer, or of the peace. Hawk. b. ii. c. 6, s. 6. 2 Hale, 34. It is not imperative on a commissioner of gaol-delivery to discharge all the prisoners in the gaol who are not indicted; but it is discretionary in him 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. & 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. ii. c. 6, s. 5. Bac. Abr. 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 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 imprisonment; and if the party refuse to attend, he may be fined in his absence. 4 B. & A. 218. 11 Price, 68.-CHITTY.
12 The Michaelmas quarter-sessions must now be holden in the first week after the 11th October. 54 Geo, III. c. 84. If the feast-day fall on Sunday, the sessions are to be holden in the week following. 2 Hale, 49.—CHITTY.
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 assize. And therefore *272] murders and other capital felonies are usually remitted, for a *more solemn trial, to the assizes. 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 this jurisdiction, and ought to be prosecuted in this court; as the smaller misdemeanours against the 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.(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 statute 8 & 9 W. III. c. 30. In both corporations and counties at large there is sometimes kept a special or *273] *petty session, by a few justices, for despatching smaller business in the neighbourhood between the times of the general sessions: as for li censing 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 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 courtleet in each respective hundred :(w) this therefore is the great court-lect 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 lcet: being the king's court, granted by charter to the lords of those hundreds or manors. Its original intent was to view the frank pledges, that is, the freemen 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
(r) 4 Mod. 379. Salk. 406. Lord Raym. 1144.
(*) Stat. 37 Hen. VIII. c. 1. 1 W. and M. st. 1, c. 21.
Mirror, c. 1, 213, 16.
4 Inst. 261. 2 Hawk. P. C. 72.
() See book iii. page 113.
years old, peers, clergymen, women, and the king's tenants in antient 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 antiently 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 [*274 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 misdemeanours, as all trivial debts were recoverable in the court-baron and countycourt; justice, in these minuter matters of both kinds, being brought home to the doors of every man by our antient 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 statute 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 misdemeanours therein, as a court of pie poudre is, to determine all disputes relating to private or civil property. The object of this jurisdiction(ƒ) is principally the recognizance of weights and measures, to try whether they be according to the true standard thereof or no; which standard was antiently 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 mar ket.(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 burned. 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. 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
() Stiernh. de jure Goth. l. 1, c. 2.
(2) 4 Inst. 271. 2 Hal. P. C. 53. 2 Hawk. P. C. 42. (4) See book i. page 349.
() 4 Inst. 278.
(f) See stat. 17 Car. II. c. 19. 22 Car. II. c. 8. 23 Car. II (✔) Bacon of English Govt. b. x. c. 8.
13 The finding of such inquest is equivalent to the finding of a grand jury; and a woman tried on the coroner's inquest for the murder of her bastard child may be found guilty, under 43 Geo. III. c. 58, s. 4, of endeavouring to conceal its birth, there being no distinction in this respect between the coroner's inquisition and a bill of indictment returned by the grand jury, (2 Leach, 1095. 3 Camp. 371. Russ. & Ry. C. C. 240, S. C. ;) but, in order to found an indictment on a coroner's inquest, the jurors, and not merely the coroner, must have subscribed it. Imp. Cor. 65.-CHITTY.
punishment of crimes and misdemeanours 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 *money to the officers of the court by way of commutation of penance. *276] 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 bartering 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 check-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 a 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 shall 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 offices of the servants of the household in and about such execution are *described, from the sergeant of the wood*277] yard, who furnishes the chopping-block, to the sergeant-farrier, who brings hot irons to sear the stump."
3. As in the preceding 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 misdemeanours 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 universityjurisdiction in another court, namely, the court of the lord high steward of the university.
For, by the charter of 7 Jun. 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
14 The 3 Hen. VII. c. 14 18 wholly repealed by the 9 Geo. IV. c. 31, as is also the 33 Hen. VIII. c. 12, part of s. 6 to s. 18, relating to this subject. The two courts mentioned in the text may now, therefore, be considered as no longer existing. They had for many years been utterly disused.-CHITTY.