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CHAPTER XIX.--COURTS OF CRIMINAL JURISDIC
Jurisdiction. In inquiring the method of inflicting the punishments, which the law has annexed to particular offences, we shall specify the several courts wherein offenders may be prosecuted, and shall explain the proceedings therein. Some of these courts are of a public and general jurisdiction throughout the entire realm, while others are only of a private and special authority, and confined to some localities.
Courts Independent of each Other. As it is contrary to the spirit of English law to suffer any man to be tried twice for the same alleged criminal offence, especially if acquitted upon the first trial; therefore these criminal courts may be said to be independent of each other, at least so far that the sentence of the lowest of them can never be controlled or reversed by the highest in the kingdom, unless for error in matter of law, apparent upon the record; though sometimes cases may be removed from one to the other before trial.
1. Parliament. This is the supreme court, not only for the making, but also for the execution of laws, by the trial of great offenders by the method of impeachment. We shall not here refer to acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties, outside the common law, to serve a special purpose.
Impeachment. An impeachment before the lords, by the commons of Great Britain, in parliament, is a prosecution of the established law, and has been frequently put into practice; being a presentment of the most high and supreme court of criminal jurisdiction, by the most solemn grand inquest of the kingdom. A commoner cannot be impeached before the lords for any capital offence, but only for high misdemeanors; whereas a peer may be impeached for any crime. The articles of impeachment are a species of bills of indictment found by the house of commons, and afterwards tried by the house of lords, who are in cases of misdemeanors, considered as peers of the whole nation.
Official Misconduct Punished. Though in general, the union of the legislative and judicial powers ought to be carefully avoided, yet it may happen, that a subject entrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes such as an ordinary magistrate dares not or cannot punish. Of these official offences, the representatives of the people, or house of commons, cannot properly judge, because their constituents are the parties injured, and can therefore only impeach. It would be unwise to try this impeachment before the ordinary tribunals, which would naturally be influenced by the authority of so powerful an accuser. Reason suggests that this branch of the legislature which represents the people, must bring its charge before the other branch, which consists of the nobility, who have not the same interests as popular assemblies. In this respect, the English constitution is vastly superior to those of the Grecian or Roman republics, where the people were at the same time both judges and accusers.
1 For misdemeanors, peers, like commoners, are to be tried before a jury, but for treason and misprision of treason, felony and misprision of felony, the trial shall be before peers, as heretofore.
Pardon. No pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament.
2, Lord High Steward's Court. This is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either. The office of this great magistrate was formerly hereditary, or at least held for life; but for centuries past, it has been bestowed pro hac vice only, and is granted only to a lord of parliament.
Removal by Certiorari. When such an indictment is found by a grand jury of freeholders in the king's bench, or at the assizes before the justices of oyer and terminer, it is to be removed by a writ of certiorari into the court of the lord high steward, which alone has the power to determine it. In case a peer be indicted, the king creates a lord high steward pro hac vice, by commission under thegreat seal; which recites the indictment so found. The case being removed by certiorari, commanding the inferior court to certify it, the high steward directs a precept to the serjeant at arms to summon all the lords in parliament to try the peer.
Trial of a Peer. During the session of parliament, the trial of an indicted peer is not properly in the court of the lord high steward, but before the court of the king in parliament. The high steward is however appointed to give weight to the case, but he is rather in the nature of a speaker pro tempore, or chairman of the court, than the judge, for the collective body of peers are judges both of law and fact. If held in the recess of parliament, the high steward is the sole judge of matters of law, as the lords are of matters of fact.
Lords Spiritual, The lords spiritual may, if they choose, remain in court in capital cases, till the court proceeds to vote guilty or not guilty. This resolution extends only to trials in full parliament, for in the court of the high steward, no bishops can be summoned ; for they themselves, not being entitled to trial there, surely ought not to be judges there. The privilege of being thus tried depends upon nobility of blood, rather than a seat in the house.
3. King's Bench. The court is divided into a crown side and a plea side. On the crown side, it takes cognizance of all criminal causes, from high treason down to the most trivial misdemeanor. Into this court, also all indictments may be removed by certiorari from all inferior courts, and tried, either at bar or at nisi prius, by ajury of the county, out of which the indictment is brought. It is the principal court of criminal jurisdiction in England, and included all that was good of the jurisdiction of the former court of star-chamber; which was abolished by statute of Charles I, to the joy of the whole nation.
4. Chivalry Court. This was a military court, or court of honor, when held before the earl marshal only, but also a criminal court, when held jointly before him and the lord high constable of England. In took cognizance over pleas of life and limb, arising in matters of arms and war, as well out of the realm as within it. But the criminal as well as the civil part of its authority has fallen into entire disuse, there being now no permanent high constable of England.
5. Admiralty Court. This court is held before the lord high admiral of England, or his deputy, and is both a court of civil and of criminal jurisdiction. It has cognizance of all crimes and offences committed, either upon the sea, or on the coasts of any English country, But as this court proceeded without jury, in a manner similar to the practice under the civil law, but contrary to the spirit of the law of England, which deprives no man of life on the opinion of a single judge, it was enacted by statute of Henry VIII, 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 other judges. The indictment must first have been found by a grand jury of twelve men, and afterwards tried by a petit jury, and the proceedings be conducted according to the law of the land.
Jurisdiction of the above Courts. These five courts may be held in any part of the kingdom, and their jurisdiction extends over crimes arising therein. The following courts, though they are of a general uature, and universally diffused, are of a local jurisdiction, and confined to particular districts.
6. Oyer and Terminer Courts. These 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 in England, except in the four northern ones, where they are held but once, and in London and Middlesex, where they are held eight times. The commissioner of oyer and terminer is to hear and determine all treasons, felonies and misdemeanors. This is directed to the judges to "inquire, hear and determine "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 means of the petit jury.
7. General Gaol Delivery Court. They have besides a commission of general gaol delivery, which empowers them to try and to deliver every prisoner, who shall be in confinement, when the judges arrive at a circuit town, whenever or before whomsoever indicted, or for whatever crime committed. It was anciently the custom to issue special of gaol delivery for each particular prisoner, termed writs de bono et malo, but this being found inconvenient, a general commission for all the prisoners has been substituted. By this means all offenders in the jails are generally tried, punished or delivered at these semi-annual sessions.
Special Commission. Restrictions. Sometimes also, upon urgent occasions, the king issues a special commission of oyer and terminer and gaol delivery, confined to those offences, which require immediate attention. At one time no judge or lawyer could act on the commission within the county, where he was born, or in which he resided, but that restriction no longer exists.
8. Quarter Sessions Court. This is a court, that must be held in every county once in each quarter of the year, which by statute of Henry V is appointed for the week after Michaelmas day; the week after Epiphany; the week after the close of Easter; and the week after the translation of St. Thomas, the martyr, or July 7.
Jurisdiction. The jurisdiction of this court extends to the trying of all felonies and trespasses; though it seldom tries any greater felonies than those within the benefit of clergy. Murders and other capital felonies are usually remitted for trial to the assizes. Smaller misdemeanors, not amounting to felony, are tried here. Some of these are proceeded upon by indictment, and others in a summary way by motion and order thereon, which order may usually be removed into the court of king's bench by writ of certiorari, and be there either quashed or confirmed. In most corporation towns, there are quarter sessions kept before justices of their own, within their respective limits; which courts have the same authority in most cases as the general quarter sessions of the county.
9. Sheriff's Tourn. This is a court of record held twice each year before the sheriff in different parts of the county, and in the court-leet of the county.
10. Court-leet. This court of record is held once a year within a particular hundred or manor before the steward of the leet. Its original intent was to view the frankpledges; the freemen being pledged in each hundred for the good behavior of each other. It is intended to preserve the peace and punish the more minute offences. The business of the sheriff's tourn and of the court-leet now devolves almost entirely upon the court of quarter sessions.
11. Coroner's Court. This is also a court of record, to inquire into cases of violent or sudden death, and of deaths in prison. It must be held super visum corporis.
12. Clerk of the Market's Couri. This is incident to every fair and market in the kingdom, to punish misdemeanors therein; as a court of piepoudre is to determine disputes relating to private or civil property. Its object is principally to take cognizance of weights and measures, to try whether they are according to the true standard.
Courts of Partial Jurisdiction. (1) Court of the lord steward, or comptroller of the king's household. (2) Courts of the two universities. These courts may try all criminal offences
1 This court is abolished.