court of very antient original,(b) but new-modelled 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, with out the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour of sheriffs, and other notorious *misdemeanours *267] 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 honourable 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 more penal, and the foundations of right never more in danger to be destroyed." For which reason it was finally abolished, by statute 16 Car. I. c. 10, to the general joy of the whole nation.(d) *268] 4. *The court of chivalry,(e) of which we also formerly spoke(ƒ) 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 constable 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, to be valid unless it were found in some of the said repositories. Memorand. in Scacc. P. 6 Eiw. I. prefixed to Maynard's Year-book of Edw. II. fol. 8. Madox, Hist. Exch. ch. 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 king. dom, 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 al 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 chaumire des esteilles, and in law-Latin, camera stellata, which continued to be the style in Latin till the dissolution of that court. () Lamb. Arch. 158. () Hist. of Reb., books i. iii. (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 prac titioner therein.8 and a short account of the same, with copies of all its process, may also be found in 18 Rym. Foed 192, &c. (•) 4 Inst. 123. 2 Hawk. P. C. 9. () See book iii. page 68. (9) Duck. de authorit. jur. civ. modum dividendæ, in quo ponentur omnia remanentia in communi cistâ tam pignora quam pecunia, ac etiam arreragia et debita, ita quod omnibus constare poterit evidenter, in quo statu tunc universitas fuerit quoad bona, &c. Stat. Acad. Cant. p. 32. Such inventories would be made at the king's exchequer, and the room where they were deposited would probably be called the Starchamber.-CHRISTIAN. Hudson s Treatise of the Court of Starchamber is now published at the beginning the 2d vol. of Collectanea Juridica.-CHRISTIAN. 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 of [*269 fenders without proof by two witnesses, or a confession of the fact by themselves. This was always a great offence to this English nation; and therefore, in the eighth year of Henry VI., it was endeavoured to apply a remedy in parlia ment, which then miscarried for want of the royal assent. 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 pro ceedings should be according to the law of the land. This is 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." 'The jurisdiction of the commissioners appointed under the 28 Hen. VIII. c. 15 was confined by that statute to treasons, felonies, robberies, murders, and confederacies; and therefore the 39 Geo. III. c. 15 declares that it is expedient that other offences committed on the seas should be tried in the like manner; and it enacts that every offence conimitted upon the high seas shall be subject to the same punishment as if it had been committed upon the shore, and shall be tried in the same manner as the crimes enumerated in the 28 Hen. VIII. c. 15 are directed to be tried. And as persons tried for murder under that statute could not be found guilty of manslaughter, and where the circumstances made the crime manslaughter were acquitted entirely, the 39 Geo. III. 3. 15 expressly enacts that where persons tried for murder or manslaughter committed on the high seas are found guilty of manslaughter only, they shall be subject to the same punishment as if they had committed such manslaughter upon the land. CHRISTIAN. The 46 Geo. III. c. 54 enables the king to issue a similar commission for trying such offences in the same manner in any of his majesty's islands, plantations, colonies, dominions, forts, or factories. The 43 Geo. III. c. 113, ss. 2 & 3 provides that any person wilfully casting away any vessel, &c., or procuring it to be done, shall be guilty of felony without benefit of clergy, and shall, if the offence were committed on the high seas, be tried, &c. by a special commission as directed by stat. 28 Hen. VIII. c. 15. The stat. 11 & 12 W. III. c. 7 contains provisions against accessories to piracies and robberies on the high seas. Accessories before the fact, on shore, to the wilful destruction of a ship on the high seas were not triable by the admiralty jurisdiction under 11 Geo. I. c. 29, s. 7. 2 Leach, 947. East, P. C. Addenda, 26. Russ. & Ry. C. C. 37, S. C. But now this is provided for by the stat. 43 Geo. III. c. 113, which repeals the statutes 4 Geo. I. c. 12, s. 3, and 11 Geo. I. c. 29, ss. 5, 6, & 7. The 28 Hen. VIII. c. 15 merely altered the mode of trial in the admiralty court, and its jurisdiction still continues to rest on the same foundations as it did before that statute. Com. Dig. Admiralty, E. 5. It is regulated by the civil law et per consuetudines marinas, grounded on the law of nations, which may possibly give to that court a jurisdiction with which our common law is not able to invest it. Per Mansfield, C. J., 1 Taunt. 29. The statutes 28 Hen. VIII. c. 15, and 39 Geo. III. c. 37, do not, however, take away any jurisdiction as to the trial of offences which might before have been tried in a court of common law; and therefore an indictment for a conspiracy on the high seas is triable at common law, on proof of an overt act on shore, in the county where the venue is laid. 4 East, 164. 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 stat. 2 Geo. II. c. 21 provides that the offender may be iu These five courts may be held in any part of the kingdom, and their jurisdic tion 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 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 king. dom 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, 23. (4 Inst. 162, 168. 2 Hal. P. C. 22, 32. 2 Hawk. P. C. 14, (*) See book iii. p. 60. (1) 2 Hal. P. C. 39. 2 Hawk. P. C. 28. (m) See book i. page 351. dicted 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 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 W. IV. c. 36, and sits twelve times (and oftener if necessary) every year, under commission of oyer 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.-KERP 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 use and *excellence." Sometimes, also, upon urgent occasions, the king [*271 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 genera! 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(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 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, but 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 kceper. 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 holder in the week following. 2 Hale, 49.-CHITTY. and deter mining all felonies and trespasses whatsoever, thougn 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 murders and other capital felonies are usually remitted, for a *more *272] 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.(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, counte nance, 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 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 particular hundred, lordship, or manor, before the steward of the leet: being the king's court, granted by charter to the lords of those hundreds or manors. Its original intent was to view the frankpledges, that is, the freemen within the liberty; who, (we may remem ber,)(2) 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 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, 13, 16. #) 4 Inst. 261. 2 Hawk. P. C. 72. v) Mirror, c. 1, § 10. () Part 2, c. 19. |
