Dalt. c. 1. duty as officers of the court; and it is said, that all such courts, except the court-leet, may also imprison all such offenders. Also it seems, (a) that even a court-leet is so far intrusted with the (a) F. N. B. 82. keeping of the peace within its own precinct, that the steward of Lamb. c. 3. it may, by recognizance, bind any person to the peace, who shall 10 H. 6. 10. make an affray in his presence, sitting the court, or may commit Crom. 7. him to ward, either for want of sureties, or by way of punishment, without demanding any sureties of him; in which case he may afterwards impose a fine according to his discretion; from whence it follows, à fortiori, that other superior courts of record have the like power. 11 Co. 43. seems con. Sect. 16. THIRDLY, That no judge of any such court is com- 1 H. 7. 26. pellable to deliver his opinion before-hand, in relation to any S Inst. 29. question which may after come judicially before him. 27 Ass. 23. Sect. 17. That no such judge is any way punishable for a mere 2 R. Ab. 77. error of judgment, as hath been more fully shewn in the first B. Indict. 17. Cromp.121,122. book, chap. 17. sect. 6. Salk. 201. 1 Brown, 15. Sect. 18. It is questioned, whether all courts of record may Lamb. 403. not discharge any person arrested during his journeying to or Qu. 1 Keb. 845. from such courts, or necessary attendance there, by process from 1 Lev. 159.any other court: however, it seems to be agreed, that any such Raym. 100. court may discharge a person who shall be so arrested in the face of it. (b) B. Priv. 35. Crom. 180. 2 Stra. 987. 6 Mod. 66. 10 Mod. 333. 1 Bar. K. B. 251. Cooke's Bank. Laws, 291. 2 Black. 1113. 1 Black. 410. (b) But this privilege does not extend to capital crimes, and therefore a defendant may, on appearing on a recognizance, be arrested on a new warrant for treasonable practices, Rex v. Kelly, Stra. 530. CHAP. II. OF THE COURT OF THE HIGH STEWARD OF ENGLAND. AND now I am to consider the nature of the principal courts of 13 H. 8. 11. criminal jurisdiction in particular. FIRST, The court of the high steward of England. Prynne on the 4 Institutes, 46. SECONDLY, The court of king's bench. THIRDLY, The court of the constable and marshal. FOURTHLY, The court of the justices of oyer and terminer. SEVENTHLY, The court of conservators; justices of the peace; and the sessions. EIGHTHLY, The court of the coroners. NINTHLY, The sheriff's tourn. TENTHLY, The court leet. Sect. 4 Inst. 58, 59. 4 Comm. 259. Sect. 1. The office of HIGH STEWARD OF ENGLAND was anciently hereditary, not having been granted to any one since the reign of King Henry the Fourth, but only pro hac vice, either for the trial of a peer on an indictment for a capital offence, or for the determination of the pretensions of those who claim to hold by grand serjeanty, to do certain honourable services to the king Fleta, 1. 2. c. 2, at his coronation. Barr. 234. Crom. of Courts, 84. 3. 2 Hale, 7. 1 Hale, 350. Foster, 142. Lords Journ. 12th May, 1679. Com. Journ. 15th May, 1679. S. P. C. 152. It seems needless to make a particular inquiry concerning the authority of the court of this high officer, of which very little mention is made in our ancient records or law books; and therefore I shall content myself with remarking, in this place, in general, that anciently the duty of this office consisted in supervising and regulating, next under the king, the administration of justice, and all other affairs of the realm, whether civil or military, and that no one under the degree of nobility is capable of so honourable a post; and for the particular manner of executing this office in the trial of a peer, I shall refer the reader to the chapter concerning the Trial of Peers.(1) Ante, 2. Mad. 19.21. 1 R. A. 94, 95. Vide Introduction to Cromp. Pract. passim. 3 Comm. 41. 4 Comm. 262. Reeves's His. Madox, 543. 2 Inst, 21, 22. CHAP. III. OF THE COURT OF KING'S BENCH. THE whole jurisdiction which is now distributed among the several courts of Westminster-Hall, seems, in the first reigns after the conquest, to have been lodged in one court, commonly called The King's Court, wherein justice is said to have been administered sometimes by the king himself in person, and sometimes by the high justicier, who was an officer of very great authority, and used, in the king's absence beyond sea, to govern the realm as vice-roy. Sect. 2. Out of this court the courts of Common Pleas and Exchequer seem to have been derived, some time before the making of the statute of Magna Charta; the former of which courts properly determines pleas merely civil, and the latter those relating to the revenue of the crown. After the erection of these courts, the supreme court seems, by degrees, to have obtained the name of The Court of King's Bench, and hath always retained (1) There are two distinct and independent courts in which a lord high steward is occasionally appointed to preside. First, the court of the lord high steward. Secondly, the court of our lord the king in parliament. The first court is instituted, by commission, for the trial of peers indicted for treason, felony, or misprision thereof during the recess of parliament; in which the high steward sits as sole judge in matters of law: and the lords triors as judges in matters of fact. They cannot, therefore, interfere with him in regulating the modes of proceeding, nor ought he to intermix with them upon the decision of facts.-Foster, 233. 4 Comm. 260. The second court is the house of peers acting in its judicial capacity, founded in immemorial usage and the law and custom of parliament; and all proceedings, whether upon a writ of error, impeachment, or indictment removed by certiorari, are in contemplation of law proceedings before the king. In the trial of a peer, indeed, for a capital offence, it hath been usual to appoint a lord high steward during the trial, and until judgment is given, for the sake of order, regularity, and dignity; but this appointment does not alter the nature and constitution of the court: and in this court every temporal peer hath a right to be present during every part of the proceeding, and to vote upon every question both of law and fact; decision of which is guided by the majority, and in which decision the lord high steward mixes merely as a peer, and in no other right.-Foster, 141, 142, 143. the tained a supreme jurisdiction in all criminal matters, and also in certain personal causes, and is still supposed to have always the king himself in person sitting in it. For the better understanding the nature of this court, I shall consider the following particulars:-FIRST, In what manner it corrects all kinds of misdemeanors of all persons in general. SECONDLY, How far it reforms inferior courts. THIRDLY, How far its presence suspends the power of all other courts, FOURTHLY, What rules are to be observed in the form of its proceedings. Sect. 3. As to THE FIRST POINT, It is certain, that this court is intrusted with the highest jurisdiction, not only over all capital offences, but also all other misdemeanors whatsoever of a public nature, tending either to a breach of the peace, or to the oppression of the subject; or to the raising of faction, controversy, 4 or debate; or to any manner of misgovernment: so that whatsoever crime is manifestly against the public good, it comes within the conusance of this court, though it do not directly injure any particular person; neither can any private subject, who has not forfeited his right to the protection of the law, suffer any kind of unlawful violence or gross injustice against his person, liberty, or possessions, from any person whatsoever, without a proper remedy from this court, not only for satisfaction of the private damage, but also for the exemplary punishment of the offender. 2 Hale, c. 1. 13. 11 Co. 98. 1 Roll. 225. Ray. 103. 4 Inst. 71. Comm. 262. 1 Sid. 211. Sect. 4. Neither is it necessary in a prosecution of any such 1 Sid. 168.. offence in this court, to shew a precedent of the like crime for- 35 Ruff. S. 133. merly punished here, agreeing with the present in all its circumstances; for this court being the custos morum of all the subjects of the realm, wherever it meets with an offence contrary to the first principles of common justice, and of dangerous consequence to the public, if not restrained, will adapt such a punishment to it as suitable to the heinousness of it. Sect. 5. And so high a trust doth the law repose in the justice and integrity of this court, as generally to leave it to the discretion of its judges to inflict such fine and imprisonment, and even infamous punishment, on offenders, as the nature of the crime, considered in all its circumstances, shall require; neither doth it So they may confine them to make use of their own prison, but leaves them at direct their warliberty to commit offenders to any prison in the kingdom which rant to all the they shall think most proper, and doth not suffer any other court England. to remove or bail any persons condemned to imprisonment by The King v. them. constables of White, B. R. H. 37. Moor, 666. 1 Sid. 145. 1 Mod. 35. Sect. 6. Also this court hath such a sovereign jurisdiction in Dalis. 25. criminal matters, that it may proceed as well on indictments Carth. 6. found before other courts, and removed into this by certiorari, as 2 Hale, 3. on indictments or informations originally commenced in it, whe- 44 E. 3. 31. ther the courts before whom such indictments were found be de- Cromp. Jur. termined, or suspended, or still in esse, and whether the proceedings be grounded on the common law, or on some statute making a new law concerning an old offence, and appointing certain jus (a) 9 Co. 113. tices to execute it, as the statutes of forcible (a) entries, and the 131. Book 1. 2 Lev. 179. 2 Mod. 128, 129, 130. (b) 3 Keb. 75. 94. 106. 273. (a) C. Car. 465. the statute (a) of Philip and Mary against persons taking away females under the age of sixteen from their guardians, (b) &c. Neither doth a statute which appoints, that all crimes of a certain denomination shall be tried before certain judges, exclude the jurisdiction of this court, without express negative words; upon which ground it has been resolved, That (c) 33 Hen. 8. c. 12. which enacts, That all "treasons, &c. within the king's house "shall be determined before the lord steward of the king's house, "&c." does not restrain this court from proceeding against such offences. But where a statute creates a new offence, (d) which was not taken notice of by the common law, and erects a new jurisdiction for the punishment of it, and prescribes a certain method of proceeding, it seems questionable how far this court has an implied jurisdiction in such a case. (c) 2 Inst. 549. (d) 1 Sid. 296. 2 Hale, 5. (e) 22 E. 3. 6. 2 Hale, 3. 29 Ass. 43. 40 Ass. 29. 534. 4 Inst. 73. S. P. C. 158. (f) 1 Rol. 85. Sect. 7. But it is certain that the law has so high a regard to this court, that it will not suffer a record (e) regularly removed into it from an inferior one, to be remanded (f) after the term in which it came in (except in some few (g) special cases); yet if the 1 R. Ab. 492. justices perceive that there is any practice in endeavouring to remove any such record, or that the sole intention of such removal is the delay of justice, they may, on their discretion, refuse to receive such record, and may, before it is filed, remand it back (g) C. Car. 297. again, for the expedition of justice; and upon this ground, (h) as I suppose, where one (who had pleaded not guilty to an appeal below, and at his trial had challenged so many of his jury that the inquest could not be taken for want of jurors, whereupon a new distringas was awarded) removed himself into the court of King's Bench, he was ordered to be remanded. Also by the construction of the statutes which impower the common-law courts of Westminster to grant a nisi prius (i) for the trial of issues joined in those courts, the justices of the King's Bench may grant such trial, as well in cases of treason and felony as in other common cases; because, for such trial, not the record itself is sent down, but only the transcript of it. (k) 1 Saund. 97.99. Strange, 440. (i) 4 Inst. 74. (k) Cowp. 843. Crom. Jur. 213. 2 Hale, 3, 4. 41. Sect. 8. And by 6 Hen. 8. c. 6. it is recited, "That divers felons and murderers, upon feigned and untrue surmises, had oftentimes removed as well their bodies as their indictments, by writ and otherwise, before the king, in his bench, and could not by the order of the law be remitted and sent down to the justices of gaol-delivery, or of the peace, nor other justices, nor commissioners, to proceed upon them after the course of the common law:" and thereupon it is enacted, "That the justices of the "King's Bench have full authority by their discretions, to remand " and send down as well the bodies of all felons and murderers, brought or removed before the king, in his bench, as their indictments, into the counties where the same murders or felonies "have been committed and done; and to command all justices of gaol-delivery, justices of peace, and all other justices and commissioners, and every of them, to proceed and determine 66 upon all the aforesaid bodies and indictments so removed, after "the course of the common law, in such manner as the same justices of gaol-delivery, justices of peace, and other commissioners, or any of them, might or should have done, if the said 66 66 "prisoners "prisoners or indictments had never been brought into the said King's Bench." Sect. 9. In the construction of this statute it seems to have Ray. 367 been holden, That it shall not be extended by equity to High Treason. 1 Salk. 396. Sect. 10. As to THE SECOND POINT, viz. How far the court of Sayer, 26. 217. King's Bench reforms inferior courts-There is no doubt but that 243. 267. this court, being the highest court of common law, hath not only Burr. 556. 785. power to reverse erroneous judgments given by inferior courts, 1162. but also to punish all inferior magistrates, and all officers of jus- Loft. 55. tice, for all wilful and corrupt abuses of their authority against Term Rep. 653. the known, obvious, and common principles of natural justice, but not for mere mistakes, which an honest well-meaning man may innocently fall into. Rex v. Jackson, 2 9 Co. 118. Sect. 11. As to THE THIRD POINT, viz. How far the presence of this court suspends the power of all other courts-It is cer- (a) Sum. 156. tain, that this being the supreme (a) court of oyer and terminer, gaol-delivery, and eyre, doth so far suspend the power of all other of all other 27 Ass. 1. justices of this kind, in the county wherein it sits, during the time 3 Inst. 27. of its sitting in it, (if such justices have notice (b) of its sitting 45 there, and even without such notice,(c) as some say,) that all pro- B. Commis, 10. (b) 21 H. 7. 29. ceedings commenced before any such justices during such time Port. 16. are void. Yet it seems (d) that such justices may proceed upon (c) Inst. 73. indictments taken in a foreign county and removed before them, Dy. 286. because the court of King's Bench have nothing to do with such indictments unless they be removed into it. Also there seems to be the same reason that such justices may proceed upon indictments taken before them of offences in the same county before the term; for it is said in Keilway, (e) that if an appeal be com- (e) Keilw. 152. menced before justices in eyre, and afterwards another appeal be brought in the King's Bench, it will be a good plea that another appeal is depending; which shews that the King's Bench ought not, without a certiorari, &c. to intermeddle in an appeal whereof another court is legally possessed before; and the reason seems to be the same as to indictments: and it is said in the same book, that if the King's Bench and justices in eyre are in one county, yet this shall not change the power of the justices in eyre; but that if the king will make process for any thing not commenced before the justices of eyre, as to such thing their power is ceased; by which it seems to be implied, that as to what was commenced before them, their power continues. However, it is certainly the 3 Inst. 24. safest way for any of the justices above-mentioned proceeding on 4 Inst. 73. any such indictment, to have a special commission for that purpose, and it is most advisable that such commission bear teste in the term. Sum. 156, 157. gate shall not Sect. 12. But it is enacted by 25 Geo. 3. c. 18. "That when The gaol deli"any session of oyer and terminer and gaol-delivery of Newgate, very of New"in the county of Middlesex, shall have been begun to be holden be suspended "before the essoin day of any term, the same session shall and by the sitting of the King's may be continued to be holden, and the business thereof finally Bench, &c. "concluded, notwithstanding the happening of such essoin day "of any term, or the sitting of the said court of King's Bench at "Westminster, |