Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Courts of a Criminal Jurisdiction
THE sixth, and last, object of our inquiries will be the method of inflicting those punishments, which the law has annexed to particular offenses; and which I have constantly subjoined to the description of the crime itself. In the discussion of which I shall pursue much the same general method, that I followed in the preceding book, with regard to the redress of civil injuries: by, first, pointing out the several courts of criminal jurisdiction, wherein offenders may be prosecuted to punishment; and by, secondly, deducing down in their natural order, and explaining, the several proceedings therein.
FIRST then, in reckoning up the several courts of criminal jurisdiction, I shall, as in the former case, begin with an account of such, as are of a public and general jurisdiction throughout the whole realm; and, afterwards, proceed to such, as are only of a private and special jurisdiction, and confined to some particular parts of the kingdom.
I. IN our inquiries into the criminal courts of public and general jurisdiction, I must in one respect pursue a different order from that in which I considered the civil tribunals. For there, as the several courts had a gradual subordination to each other, the superior correcting and reforming the errors of the inferior, I thought it best to begin with the lowest, and so ascend gradually to the courts of appeal, or those of the most extensive powers. But as it is contrary to the genius and spirit of the law of England, to suffer any man to be tried twice for the same offense in a criminal way, especially if acquitted upon the first trial; therefore these criminal courts may be said to be all independent of each other: at least so far, as that the sentence of the lowest of them can never be controlled or reversed by the highest jurisdiction in the kingdom, unless for error in matter of law, apparent upon the face of the record; though sometimes causes may be removed from one to the other before trial. And therefore as, in these courts of criminal cognizance, there is not the same chain and dependence as in the others, I shall rank them according to their dignity, and begin with the highest of all; viz.
I. THE high court of parliament; which is the supreme court in the kingdom, not only for the making, but also for the execution, of laws; by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties, beyond or contrary to the common law, to serve a special purpose, I speak not of them; being to all intents and purposes new laws, made pro re nata [for the occasion], and by no means an execution of such as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom.1 A commoner cannot however be impeached before the lords for any capital offense, but only for high misdemeanors:2 a peer may be impeached for any crime. And they usually (in case of an impeachment of a peer for treason) address the crown to appoint a lord high steward, for the greater dignity and regularity of their proceedings; which high steward was formerly elected by the peers themselves, though he was generally commissioned by the king;3 but it has of late years been strenuously maintained,4 that the appointment of a high steward in such cases is not indispensably necessary, but that the house may proceed without one. The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; who are in cases of misdemeanors considered not only as their own peers, but as the peers of the whole nation. This is a custom derived to us from the constitution of the ancient Germans; who in their great councils sometimes tried capital accusations relating to the public: “licet apud concilium accusare quoque, et discrimen capitis intendere.”5 [“One may bring accusations before the council, and commence capital prosecutions.”] And it has a peculiar propriety in the English constitution; which has much improved upon the ancient model imported hither from the continent.
For, though in general the union of the legislative and judicial powers ought to be most carefully avoided,6 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 such crimes, as the ordinary magistrate either dares not or cannot punish. Of these the representatives of the people, or house of commons, cannot properly judge; because their constituents are the parties injured: and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason therefore will suggest, 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 neither the same interests, nor the same passions as popular assemblies.7 This is a vast superiority, which the constitution of this island enjoys, over those of the Grecian or Roman republics; where the people were at the same time both judges and accusers. It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people should accuse, to insure justice to the commonwealth. And therefore, among other extraordinary circumstances attending the authority of this court, there is one of a very singular nature, which was insisted on by the house of commons in the case of the earl of Danby in the reign of Charles II;8 and is now enacted by statute 12 & 13 W. III. c. 2. that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament.9
2. THE court of the lord high steward of Great Britain.10 is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either11 The office of this great magistrate is very ancient; and was formerly hereditary, or at least held for life, or dum bene se gesserit [during good behavior]: but now it is usually, and has been for many centuries parft,12 granted pro hac vice [for this time] only; and it has been the constant practice (and therefore seems now to have become necessary) to grant it to a lord of parliament, else he is incapable to try such delinquent peer.13 When such an indictment is therefore found by a grand jury of freeholders in the king’s bench, or at the assizes before the justices of oyer and terminer [hear and determine], it is to be removed by a writ of certiorari [notice given] into the court of the lord high steward, which only has power to determine it. A peer may plead a pardon before the court of king’s bench, and the judges have power to allow it; in order to prevent the trouble of appointing an high steward, merely for the purpose of receiving such plea. But he may not plead, in that inferior court, any other plea; as guilty, or not guilty, of the indictment; but only in this court: because, in consequence of such plea, it is possible that judgment of death might be awarded against him. The king therefore, in case a peer be indicted of treason, felony, or misprision, creates a lord high steward pro hac vice by commission under the great seal; which recites the indictment so found, and gives his grace power to receive and try it secundum legem et consuetudinem Angliae [according to the law and custom of England]. Then, when the indictment is regularly removed, by writ of certiorari, commanding the inferior court to certify it up to him, the lord high steward directs a precept to a sergeant at arms, to summon the lords to attend and try the indicted peer. This precept was formerly issued to summon only eighteen or twenty, selected from the body of the peers: then the number came to be indefinite; and the custom was, for the lord high steward to summon as many as he thought proper, (but of late years not less than twenty three14) and that those lords only should sit upon the trial: which threw a monstrous weight of power into the hands of the crown, and this its great officer, of selecting only such peers as the then predominant party should most approve of. And accordingly, when the earl of Clarendon fell into disgrace with Charles II, there was a design formed to prorogue the parliament, in order to try him by a select number of peers; it being doubted whether the whole house could be induced to fall in with the views of the court.15 But now, by statute 7 W. III. c. 3. upon all trials of peers for treason or misprision, all the peers who have a right to sit and vote in parliament shall be summoned, at least twenty days before such trial, to appear and vote therein; and every lord appearing shall vote in the trail of such peer, first taking the oaths of allegiance and supremacy, and subscribing the declaration against popery.
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 last-mentioned, of our lord the king in parliament.16 It is true, a lord high steward is always appointed in that case, to regulate and add weight to the proceedings; but he is rather in the nature of a speaker pro tempore [temporary], or chairman of the peers are therein the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high steward has a vote with the rest, in right of his peerage. But in the court of the lord high steward, which is held in the recess of parliament, he is the sole judge in matters of law, as the lords triers are in matters of fact; and as they may not interfere with him in regulating the proceedings of the court, so he has no right to intermix with them in giving any vote upon the trial.17 Therefore, upon the conviction and attainder of a peer for murder in full parliament, it has been held by the judges,18 that in case the day appointed in the judgment for execution should lapse before execution done, a new time of execution may be appointed by either the high court of parliament, during its sitting, though no high steward be existing; or, in the recess of parliament, by the court of king’s bench, the record being removed into that court.
IT has been a point of some controversy, whether the bishops have now a right to sit in the court of the lord high steward, to try indictments of treason and misprision. Some incline to imagine them included under the general words of the statute of king William, “all peers, who have a right to sit and vote in parliament:” but the expression had been much clearer, if it had been, “all lords,” and not, “all peers;” for though bishops, on account of the baronies annexed to their bishoprics, are clearly lords of parliament, yet, their blood not being ennobled, they are not universally allowed to be peers with the temporal nobility: and perhaps this word might be inserted purposely with a view to exclude them. However, there is no instance of their sitting on trials for capital offenses, even upon impeachments or indictments in full parliament, much less in the court we are now treating of; for indeed they usually voluntarily withdraw, but enter a protest declaring their right to stay. It is certain that, in the eleventh chapter of the constitutions of Clarendon, made in parliament 11 Hen. II. they are expressly excluded from sitting and voting in trials of life or limb: “episcopi, sicut caeteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem” [“the bishops ought to be present at trials, as well as the other barons, unless they involve the loss of life or limb”]; and Becket’s quarrel with the king hereupon was not on account of the exception, (which was agreeable to the canon law) but of the general rule, that compelled the bishops to attend at all. And the determination of the house of lords in the earl of Danby’s case,19 which has ever since been adhered to, is consonant to these constitutions; “that the lords spiritual have a right to stay and sit in court in capital cases, till the court proceeds to the vote of guilty, or not guilty.” It must be noted, that this resolution extends only to trials in full parliament: for to the court of the lord high steward (in which no vote can be given, but merely that of guilty or not guilty) no bishop, as such, ever was or could be summoned; and though the statute of king William regulates the proceedings in that court, as well as in the court of parliament, yet it never intended to new-model or alter its constitution; and consequently does not give the lords spiritual any right in cases of blood which they had not before.20 And what makes their exclusion more reasonable, is, that they have no right to be tried themselves in the court of the lord high steward,21 and therefore surely ought not to be judges there. For the privilege of being thus tried depends upon nobility of blood, rather than a seat in the house; as appears from the trials of popish lords, of lords under age, and (since the union) of the Scots nobility, though not in the number of the sixteen; and from the trials of females, such as the queen consort or dowager, and of all peeresses by birth; and peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband.
3. THE court of king’s bench,22 concerning the nature of which we partly inquired in the preceding book,23 was (we may remember) divided into a crown side, and a plea side. And on the crown side, or crown office, it takes cognizance of all criminal causes, from high treason down to the most trivial misdemeanor or breach of the peace. Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar, or at nisi prius [unless before], by a jury of the county out of which the indictment is brought. The judges of this court are the supreme coroners of the kingdom. And the court itself is the principal court of criminal jurisdiction (though the two former are of greater dignity) known to the laws of England. For which reason by the coming of the court of king’s bench into any county, (as it was removed to Oxford on account of the sickness in 1665) all former commissions of oyer and terminer, and general jail delivery, are at once absorbed and determined ipso facto: in the same manner as by the old Gothic and Saxon constitutions, “jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege.”24 [“By long custom, all inferior courts of justice adjourn where the king administers justice.”]
INTO this court of king’s bench has reverted all that was good and salutary of the jurisdiction of the court of star-chamber, camera stellata:25 which was a court of very ancient origin26 but new-modeled by statutes 3 Hen. VII. c. 1. and 21 Hen. VIII. c. 20. consisting of diverse lords spiritual and temporal, being privy counselors, together with two judges of the courts of common law, without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehavior of sheriffs, and other notorious misdemeanors, contrary to the laws of the land. Yet this was afterwards (as lord Clarendon informs us27) stretched “to the asserting of all proclamations, and orders of state; to the vindicating of illegal commissions, and grants of monopolies; holding for honorable 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 reasons, it was finally abolished by statute 16 Car. I. c. 10. to the general joy of the whole nation.28
4. THE court of chivalry,29 of which we also formerly spoke30 as a military court, or court of honor, 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.31
5. THE high court of admiralty,32 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 has cognizance of all crimes and offenses 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 of 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 therein 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 offense to the English nation: and therefore in the eighth year of Henry VI a remedy was endeavored to be applied in parliament; but it miscarried for want of the royal assent. However, by the statute 28 Hen. VIII. c. 15. it was enacted, that these offenses should be tried by commissioners, nominated by the lord chancellor; namely, the admiral, or his deputy, and three or four more; (among whom two common law judges are constantly appointed, who in effect try all the prisoners) the indictment being first found by a grand jury of twelve men, and afterwards tried by another jury, as at common law: and that the course of proceedings 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, just as the lord mayor presides at the sessions in London.
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 fellow 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 is,
6. THE court of oyer and terminer, and general jail delivery:33 which is 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 it is held only once, and London and Middlesex wherein it is held eight times. This was slightly mentioned in the preceding book.34 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.35 The third, which is the commission of the peace, was also treated of in a former volume,36 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, etc, 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,37 to hear and determine all treasons, felonies, and misdemeanors. This is directed to the judges and several others; but the judges only are of the quorum, so that the rest cannot act without 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 jail delivery;38 which empowers them to try and deliver every prisoner, who shall be in the jail when the judges arrive at the circuit town, whenever indicted, or for whatever crime committed. It was anciently the course to issue special writs of jail delivery for each particular prisoner, which were called the writs de bono et malo [of good and evil]:39 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 jails are 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 issues a special or extraordinary commission of oyer and terminer, and jail delivery, confined to those offenses which stand in need of immediate inquiry and punishment: upon which the course of proceeding is 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 jail 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 jail delivery within any county of England.
7. THE court of general quarter sessions of the peace40 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 saint Thomas a Becket, 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 and determining all felonies and trespasses whatsoever: though they seldom, if ever, try any greater offense 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 courts 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. They cannot also try any new-created offense, without express power given them by the statute which creates it.41 But there are many offenses, and particular matters, which by particular statutes belong properly to this jurisdiction, and ought to be prosecuted in this court: as, the smaller misdemeanors against the public or commonwealth, not amounting to felony; and especially offenses relating to the game, highways, alehouses, bastard children, the settlement and provision for the poor, vagrants, servants wages, apprentices, and popish recusants.42 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 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 [keeper of the rolls], who is always a justice of the quorum; and among them of the quorum (says Lambard43) 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.44
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 petty session, by a few justices, for dispatching smaller business in the neighborhood alehouses, passing the accounts of parish officers, and the like.
8. THE sheriff’s tourn,45 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.46 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 taken
9. THE court-leet, or view of frankpledge,47 which is a court of record, held once in the year and not oftener,48 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 frank pledges, that is, the freemen within the liberty; who (we may remember49) according to the institution of the great Alfred, were all mutually pledges for the good behavior of each other. Besides this, the preservation of the peace, and the chastisement of diverse minute offenses 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 [residing] therein; which commorancy consists in usually lying there: a regulation, which owes its original to the laws of king Canute.50 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 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 haereda [heirs], which answered to our court-leet, “de omnibus quidem cognoscit, non tamen de omnibus judicat” [“takes cognizance of all offences, but does not give judgment in all”].51 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 offenses 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 has 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.
10. THE court of the coroner52is 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 [on view of the body]. Of the coroner and his office we treated at large in a former volume,53 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.
11. THE court of the clerk of the market54is incident to every fair and market in the kingdom, to punish misdemeanors therein; as a court of pie poudre is, to determine all disputes relating to private or civil property. The object of this jurisdiction.55is 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.56 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 aediles.
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 favor, confirmed by act of parliament, has distinguished by the privilege of having peculiar courts of their own, for the punishment of crimes and misdemeanors 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 fins, rather than temporal crimes, by penance, contrition, and excommunication, pro salute animae [for the good of the soul]: 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. Of these we discoursed sufficiently in the preceding book.57 I am now speaking of such courts as proceed according to the course of the common law; which is a stranger to such unaccountable barterings of public justice.
1. AND, first, the court of the lord steward, treasurer, or comptroller of the king’s household58was 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 trail thereupon, must be by a jury according to the course of the common law, consisting of twelve fad 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,59 was created 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 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 grant 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, is very minutely set forth in the said statute 33 Hen. VIII. and the several offices of the servants so the household in and about such execution are described; from the sergeant of the wood-yard, who furnishes the chopping-block, to the sergeant farrier, who brings hot irons to sear the stump.
3. As in the preceding book60 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 work concerning the jurisdiction of their criminal courts, which is equally large and extensive. The chancellor’s court of Oxford (with which university the author has been chiefly conversant, though probably that of Cambridge has also a similar jurisdiction) has 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 offenses or misdemeanors, 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 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, insurrections, felony, and mayhem, which shall be found in any of the king’s courts against a scholar or privileged person; 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 university for the time being. But, when his office is called forth into action, such high steward must be approved by the lord high chancellor of England; and a special commission under the great seal is given to him, and others, to try the indictment then depending, according to the law of the land and the privileges of the said university. When therefore an indictment is found at the assizes, or elsewhere, against any scholar of the university, or other privileged person, the vice-chancellor may claim the cognizance of it; and (when claimed in due time and manner) it ought to be allowed him by the judges of assize: and then it comes to be tried in the high steward’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 steward cannot proceed originally ad inquirendum [to inquire]; but only, after inquest in the common law courts, ad audiendum et determinandum [to hear and determine]. Much in the same manner, as, when a peer is to be tried in the court of the lord high steward of Grear Britain, the indictment must first be found at the assizes, or in the court of king’s bench, and then (in consequence 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 offense be inter minora crimina [among lesser crimes], or a misdemeanor 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 commission to try the same. The process of the trial is this. The high steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedells [officers] of the university, who thereupon return a panel of eighteen matriculated laymen, “laicos privilegio universitatis gaudentes” [“laymen enjoying university privilege”]: and by a jury formed de medietate, half of freeholders, and half of matriculated persons, is the indictment to be tried; that in the guildhall of the city of Oxford. And if execution be necessary to be awarded, in consequence of finding the party guilty, the sheriff of the county must execute the university process; to which he is annually bound by an oath.
I HAVE been the more minute in describing these proceedings, as there has happily been no occasion to reduce them into practice for more than a century past; though it is not a right that merely rests in scriptis [on paper] 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 first, and two in that of Charles the first, where indictments for murder have been challenged by the vice-chancellor at the assizes, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff’s and bedell’s panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that university.
1. 1 Hal. P. C. 19, 150.
2. When, in 4 Edw. III. the king demanded the earls, barons, and peers, to give judgment against Simon de Bereford, who had been a notorious accomplice in the treasons of Roger earl of Mortimer, they came before the king in parliament, and said all with one voice, that the said Simon was not their peer; and therefore they were not bound to judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect of the notoriety and heinousness of his crimes, to receive the charge and to give judgment against him, the following protest and proviso was entered on the parliament roll. “And it is assented and accorded by our lord the king, and all the great men, in full parliament, that albeit the peers as judges of the parliament, have taken upon them in the presence of our lord the king to make and render the said judgment; yet the peers who now are, or shall be in time to come, be not bound or charged to render judgment upon others than peers; nor that the peers of the land have power to do this, but thereof ought ever to be discharged and acquitted: and that the aforesaid judgment now rendered be not drawn to example or consequence in time to come, whereby the said peers may be charged hereafter to judge others than their peers, contrary to the laws of the land, if the like case happen, which God forbid.” (Rot. Parl. 4 Edw. III. n 2 & 6. 2 Brad. Hist. 190. Selden. Judic. In parl. ch. 1.)
3. 1 Hal. P. C. 350.
4. Lords Journ. 12 May 1679, Com. Journ. 15 May 1679. Fost. 142, etc.
5. Tacit. de mar. Germ. 12.
6. See Vol. I. pag. 269.
7. Montesq. Sp. L. xi. 6.
8. Com. Journ. 5 May 1679.
9. 1 See chap. 31.
10. 4 Inst. 58. 2 Hawk. P. C. 5. 421.
11. 1 Bulstr. 198.
12. Pryn. on 4 Inst. 46.
13. Quand un seigneur de parlement serra arrein de treason ou felony, le roy par ses lettres patents fera un grand et sage seigneur d’estre le grand seneschal d’Angleterre: qui doit faire un precept pur faire venir xx seigneurs, ou xviii, etc. [When a lord of parliament is arraigned on a charge of treason or felony, the king by his letters patent shall create some wise and noble peer Lord High Steward of England, who shall issue out a precept to summon eighteen or twenty lords, etc.] (Yearb. 13 Hen. VIII, 11.) See Staund P. C. 152. 3 Inst. 28. 4 Inst. 59. 2 Hawk. P. C. 5. Barr. 234.
14. Kelynge. 56.
15. Carte’s life of Ormonde. Vol. 2.
16. Fost. 141.
17. State Trials, Vol. 214. 232. 3.
18. Fost. 139.
19. Lords Journ. 15 May 1679.
20. Fost. 248.
21. Bro. Abr. t. Trial. 142.
22. 4 Inst. 70. 2 Hal. P. C. 2. 2 Hawk. P. C. 6.
23. See Vol. III. pag. 41.
24. Stiernhook. l. 1. c. 2.
25. This is said (Lamb. Arch. 154.) to haven been so called, either from the Saxon word steoran, to steer or govern; or from its punishing the crimen stellionatus, or cosenage; or because the room wherein it sat, the old council chamber of the palace of Westminster, (Lamb. 148.) was full of windows; or (to which Sir Edward Coke, 4 Inst. 66. accedes) because haply the roof thereof was at the first garnished with gilded stars. As all these are merely conjectures, (for no stars are said to have remained in the roof so late as the reign of queen Elizabeth) I shall venture to propose another conjectured etymology, as plausible perhaps as any of them. It is well known that, before the banishment of the Jews under Edward I, their contracts and obligations were denominated in our ancient records starra or starrs, from a corruption of the Hebrew word, shetàr, a covenant. (Tovey’s Angl. Judaic. 32. Selden. tit. of hon. ii. 34. Uxor Ebraic. i. 14.) These starrs, by an ordinance of Richard the first, preserved by Hoveden, were commanded to be enrolled and deposited in chests under three keys in certain places; one, and the most considerable, of which was in the king’s exchequer at Westminster: and no starr was allowed to be valid, unless it were found in some of the said repositories. (Madox hist. exch. c. 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 from the kingdom, was applied to the use of the king’s council, when sitting in their judicial capacity. To confirm this; the first time the star-chamber is mentioned in any record, (Rot. claus. 41 Edw. III. m. 13.) it is said to have been situated near the receipt of the exchequer: that the king’s council, his chancellor, treasurer, justices, and other sages, were assembled en la chaumbre des esteilles pres la resceipt al Westminster. For in process of time, when the meaning of the Jewish starrs was forgotten, the word star-chamber was naturally rendered in law-french, la chaumbre des esteilles, and in law-latin, camera stellata; which continued to be the style in latin till the dissolution of that court.
26. Lamb. Arch. 156.
27. Hist. of Reb. Book 1 & 3.
28. 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 manuscript; of which the author has one, 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, complied by William Hudson of Gray’s Inn, an eminent practitioner therein.
29. 4 Inst. 123. 2 Hawk. P. C. 9.
30. See Vol. III. pag. 68.
31. Duck de authorit. jur. civ.
32. 4 Inst. 134. 147.
33. 4 Inst. 162. 168. 2 Hal. P. C. 22. 32. 2 Hawk. P. C. 14. 23.
34. See Vol. III. pag. 58.
35. 2 Hal. P. C. 39. 2 Hawk. P. C. 28.
36. See Vol. I. pag. 351.
37. See appendix, § 1.
39. 2 Inst. 43.
40. 4 Inst. 170. 2 Hal. P. C. 42. 2. Hawk. P. C. 32.
41. 4 Mod. 379. Salk. Lord Raym. 1144.
42. See Lambard’s cirenarcha, and Burn’s justice.
43. b. 4. c. 3.
44. Stat. 37. Hen. VIII. c. 1. 1. W. & M. St. 1. c. 21.
45. 4 Inst. 259. 2 Hal. P. C. 69. 2 Hawk. P. C. 55.
46. Mirr. c. 1. § 13 & 16.
47. 4 Inst. 261. 2 Hawk. P. C. 72.
48. Mirror. C. 1. § 10.
49. See Vol. III. pag. 113.
50. part. 2. c. 19.
51. Stiernh. de jur. Goth. l. 1. c. 2.
52. 4 Inst. 271. 2. Hal. P. C. 53. 2 Hawk. P. C. 42.
53. See Vol. I. pag. 349.
54. 4 Inst. 273.
55. See stat. 17 Car. 11. c. 19. 22 Car. II. c. 8. 23. Car. II. c. 12.
56. Bacon of English Gov. b. 1. c. 8.
57. See V. 4. III. pag. C. 1.
58. 4 Inst. 132.
59. Ibid. 2 Hal. P. C. 7.
60. See Vol. III. pag. 83.