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ficers of the court by way of commutation of penance. Of these. we discoursed sufficiently in the preceding book ". I am now speaking of fuch courts as proceed according to the course of the common law; which is a ftranger to fuch unaccountable barterings of public juftice.

I. AND, first, the court of the lord fteward, treasurer, or comptroller of the king's houshold, was inftituted by statute 3 Hen. VII. c. 14. to enquire of felony by any of the king's fworn fervants, in the checque roll of the houshold, under the degree of a lord, in confederating, compaffing, conspiring, and imagining the death or deftruction of the king, or any lord or other of his majesty's privy council, or the lord steward, treafurer, or comptroller of the king's house. The enquiry, and trial thereupon, must be by a jury according to the course of the common law, confifting of twelve fad men (that is, fober and discreet perfons) of the king's houfhold.

2. THE Court of the lord fteward of the king's houshold, or (in his absence) of the treasurer, comptroller, and steward of the marshalsea, was erected by ftatute 33 Hen. VIII. c. 12. with a jurisdiction to enquire of, hear, and determine, all treafons, mifprifions of treafon, murders, manslaughters, bloodshed, and other malicious strikings; whereby blood shall be shed in any of the palaces and houses of the king, or in 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 fworn fervants of the king's houfhold. The form and folemnity of the process, particularly with regard to the execution of the fentence for cutting off the hand, which is part of the punishment for fhedding blood in the king's court, is very minutely fet forth in the said statute 33 Hen. VIII. and the feveral offices of the fervants of the houshold in and about fuch execution are de

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fcribed; from the ferjeant of the wood-yard, who furnishes the chopping-block, to the ferjeant farrier, who brings hot irons. to fear the ftump.

3. As in the preceding book' we mentioned the courts of the two universities, or their chancellor's courts, for the redress of civil injuries; it will not be improper now to add a short word concerning the jurifdiction of their criminal courts, which is equally large and extenfive. The chancellor's court of Oxford (with which university the author hath been chiefly converfant, though probably that of Cambridge hath also a fimilar jurisdiction) hath authority to determine all caufes of property, wherein a privileged perfon is one of the parties, except only causes of freehold; and alfo all criminal offences or misdemefnors, under the degree of treafon, 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.

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, infurrections, felony, and mayhem, which shall be found in any of the king's courts against a scholar or privileged perfon; 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 univerfity for the time being. But, when his office is called forth into action, fuch high steward must be approved by the lord high chancellor of England; and a special commiffion under the great feal is given to him, and others, to try the indictment then depending, according to the law of the land and

1 See Vol. III. pag. 83.


the privileges of the said university. When therefore an indictment is found at the affifes, or elsewhere, against any scholar of the univerfity, or other privileged perfon, the vicechancellor may claim the cognizance of it; and (when claimed in due time and manner) it ought to be allowed him by the judges of affife: and then it comes to be tried in the high fteward'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 fteward cannot proceed originally ad inquirendum; but only, after inqueft in the common law courts, ad audiendum et determinandum. Much in the fame manner, as, when a peer is to be tried in the court of the lord high fteward of Great Britain, the indictment muft first be found at the affifes, or in the court of king's bench, and then (in confequence of a writ of certiorari) transmitted to be finally heard and determined before his grace the lord high steward and the peers.

WHEN the cognizance is so allowed, if the offence be inter minora crimina, or a misdemefnor 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 commiffion to try the fame. The process of the trial is this. The high fteward iffues one precept to the fheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedells of the univerfity, who thereupon return panel of eighteen matriculated laymen, "laicos privilegio univerfitatis gaudentes:" and by a jury formed de medietate, half of freeholders, and half of matriculated perfons, is the indictment to be tried; and that in the guildhall of the city of Oxford. And if execution be neceffary to be awarded, in confequence of finding the party guilty, the fheriff of the county muft execute the university procefs; to which he is annually bound by an oath.

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I HAVE been the more minute in describing these proceedings, as there has happily been no occafion to reduce them into practice for more than a century paft; though it is not a right that merely rests in fcriptis 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 firft, and two in that of Charles the firft, where indictments for murder have been challenged by the vice-chancellor at the affises, and afterwards tried before the high steward by jury. The commiffions under the great feal, the sheriff's and bedell's panels, and all the other proceedings on the trial of the feveral indictments, are ftill extant in the archives of that university.



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E are next, according to the plan I have laid down, to take into confideration the proceedings in the courts of criminal jurisdiction, in order to the punishment of offences. Thefe are plain, eafy, and regular; the law not admitting any fictions, as in civil causes, to take place where the life, the liberty, and the fafety of the subject are more immediately brought into jeopardy. And these proceedings are divisible into two kinds; fummary, 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 fummary proceeding I mean principally fuch as is directed by feveral acts of parliament (for the common law is a ftranger 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 there is no intervention of a jury, but the party accufed is acquitted or condemned by the fuffrage of such person only, as the statute has appointed for his judge. An institution designed profesfedly for the greater ease of the subject, by doing him speedy justice, and by not harraffing the freeholders with frequent and troublesome attendances to try every minute offence. But it


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