marking, in this place, in general, that anciently the duty of Lords Journ. this office confifted in fupervifing and regulating, next under 12th May 1679 Com. Journ. the king, the administration of justice, and all other affairs of 15th May 1679. the realm, whether civil or military, and that no one under Inft. 28. the degree of nobility is capable of fo honourable a poft; and 13 H. 8. 11. for the particular manner of executing this office, in the trial of 4 Inft. S. P. C. 152. a peer, I fhall refer the reader to the chapter concerning the poft 421. trial of peers. 3 59. THERE are two diftinct and independant courts, in which alord high steward is occasionally ap pointed to prefide, Firft, the court of the lord high fteward. Secondly, the court of our lord the king in parliament. The first court is inftituted, by commiffion, for the trial of peers, indicted for treason, felony, or misprifion thereof during the recefs of parliament; in which the high steward fits as fole 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 decifion of facts. Fofter, 233. 4 Comm. 260.-The fecond court is the house of peers acting in its judicial capacity, founded in immemorial usage and the law and cuftom of parlia ment: 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 fake of order, regularity, and dignity; but this appointment does not alter the nature and conftitution of the court: And in this court every temporal peer hath a right to be prefent du. ring every part of the proceeding, and to vote upon every question both of law and fact; the deci fion of which is guided by the majority, and in which decifion the lord high steward mixes merely as a peer, and in no other right. Fofter 141, 142, 143. CHAPTER THE THIRD. OF THE COURT OF KING'S BENCH. TH 135. R. A. 94, 95. HE whole jurifdiction which is now diftributed among Ante 2. the feveral courts of Westminster-Hall, feems in the firft Mad, 19. st. reigns after the conqueft, to have been lodged in one court, commonly called the King's Court, wherein juftice is faid to have been administered fometimes by the king himself in perfon, and fometimes by the high jufticier, who was an officer of very great authority, and used in the king's absence beyond fea to govern the realm as vice-roy. 2 Vide Introduction to Cromp. Pract. paffim. 3 Comm. 41. Comm. 262. 23. Sect. 2. Out of this court the courts of common pleas and Madox 543exchequer feem to have been derived, fometime before the Co. Lit. 71. making of the ftatute of Magna Charta; the former of which 2 Inft. 21, 22, courts properly determines pleas merely civil, and the latter Dyer 187. thofe relating to the revenue of the crown. And after the Cromp. C. 78. erection of these courts, the fupreme court feems by degrees 12 Co. 64. to have obtained the name of the court of king's bench, and hath always retained a fupreme jurifdiction in all criminal matters, and alfo in certain perfonal caufes, and is ftill fuppofed to have always the king himself in person fitting in it. 2 Hale c. 1. 13. 1 Roll. 225. 4 Inft. 71. I Sid, 211. For the better understanding the nature of this court, Ifhal confider the following particulars :-Firft, In what manner it corrects all kinds of mifdemeanors of all perfons in general. Secondly, How far it reforms inferior courts.-Thirdly, How far its prefence fufpends the power of all other courts.Fourthly, What rules are to be obferved in the form of its proceedings. Sect. 3. As to the first point, it is certain, That this court is intrusted with the highest jurifdi&tion, not only over all capital offences, but alfo all other misdemeanors whatfoever of a publick nature, tending either to a breach of the 4 Comm. 262. peace, or to the oppreffion of the fubject, or to the railing of faction, controversy, or debate, or to any manner of mifgovernment; fo that whatfoever crime is manifeftly against the publick good, it comes within the conufance of this court, though it do not directly injure any particular person; neither can any private fubject, who has not forfeited his right to the protection of the law, fuffer any kind of unlawful violence or grofs injuftice against his perfon, liberty, or poffeffions, from any perfon whatsoever, without a proper remedy from this court, not only for fatisfaction of the private damage, but also for the exemplary punishment of the offender. Sid. 168. Sect. 4. Neither is it neceffary in a profecution of any fuch 3 Ruf S. 133. offence in this court, to fhew a precedent of the like crime formerly punished here, agreeing with the prefent in all its circumstances; for this court being the cuflos morum of all the fubjects of the realm, wherever it meets with an offence. contrary to the first principles of common juftice, and of dangerous confequence to the publick, if not restrained, will adapt fuch a punishment to it as is fuitable to the heinousness of it. So they may di rant to all the conftables of England. . Sect. 5. And fo high a truft doth the law repofe in the ret their war juftice and integrity of this court, as generally to leave it to the difcretion of its judges to inflict fuch fine and imprisonment, and even infamous punishment on offenders, as the nature of the crime, confidered in all its circumftances, fhall require; neither doth it confine them to make ufe of their own prifon, but leaves them at liberty to commit offenders to any prifon in the kingdom, which they fhall think most proper, and doth not fuffer any other court to remove or bail any perfons condemned to imprisonment by them. White, B. R. H. 37. Moor 666. 1 Sid. 145. Dalif. 25. St. 6. Alfo this court hath fuch a fovereign jurifdiction in criminal matters, that it may proceed as well on indiements found before other courts, and removed into this by certiorari, as on indictments or informations originally com Cromp. Jur. 131. menced in it, whether the courts before whom fuch indict Carth. 6. 2 Hale 3. I Mod. 35. 44 E. 3. 31. ments S. 51. C. 129, 130. ments were found be determined or fufpended, or fill in effe, and whether the proceedings be grounded on the common law, or on some statute making a new law concerning an old of- (4) 9 Co. 118. fence, and appointing certain justices to execute it, as the B. 1. c. 6. ftatutes of (a) forcible entries, and the (b) ftatute of Philip and (b). Car. 465. Mary, against perfons taking away females under the age of fix 2 Lev. 179. teen years from their (c) guardians, &c. neither doth a ftatute 2 Mod. 123, which appoints, That all crimes of a certain denomination shall (c)3Keb. 75.94. be tried before certain judges, exclude the jurifdiction of this 106. court without exprefs negative words; upon which ground it (d) 2 Inft. 549. 2 Junes 53. hath been refolved, That (d) 33 Hen. 8. c. 12. which enacts, 1 Mod. 45. That all treasons, &c. within the king's houfe, fhall be de- Burr. 1042. termined before the lord steward of the king's house, &c. doth Vent. 66. not restrain this court from proceeding against fuch offences: 2 Hale 5. 9. but where a ftatute creates a (e) new offence, which was not 10 Rep. 73. taken notice of by the common law, and erects a new jurif- 13 Rep. 64. diction for the punishment of it, and prefcribes a certain (e) 1 Sid. 196. method of proceeding, it feems questionable, how far this 2 Hale 5. Cro. Jac. 643. court has an implied jurifdiction in fuch a cafe. Strange 302. 1 Rul. 92. 29 Alf. 43. 29. 4 Inft. 73. S. P. C. 158. (g) 1 Rol. 85. Saund. 97, 99 (b) C. Car. 297. Lev. 223. Sid. 329. Sec. 7. But it is certain, That the law has fo high a regard to this court, that it will not fuffer a (f) record regularly removed () 22 E. 3. 6. into it from an inferior one, to be remanded (g) after the term in 2 Hale 3. which it came in (except in fome few (b) fpecial cafes); yet if the 40 A 23 juftices perceive, that there is any practice in endeavouring to R. Ab. 534. remove any fuch record, or that the fole intention of fuch 492. removals is the delay of juftice, they may on their difcretion refuse to receive fuch record, and may before it is filed remand it back again, for the expedition of juftice; and upon this (i) ground, as I fuppofe, where one who had pleaded not guilty to an appeal below, and at his trial had challenged fo many of his jury, that the inqueft could not be taken for want of jurors, whereupon a new diftringas was awarded, removed 5 Com. Dig.397. himself in the court of King's Bench, he was ordered to be re- 16 E. 4, 5. manded: alfo by the construction of the ftatutes, which impower the common law courts of Westminster, to grant a (k) (*) 4 Inft. 74. nifi prius for the trial of iffues joined in thofe courts, the juftices Ray. 364. of the King's Bench may grant fuch trial, as well in cafes of treafon and felony as in other common cafes; because, for fuch trial, not the record itfelf is fent down, but only the transcript of it. Sect. 8. And it is recited by 6 Hen. 8. c. 6. "That divers felons and murderers, upon feigned and untrue furmifes, had oftentimes removed as well their bodies as their indictments, by writ and otherwife, before the king in his bench, and could not by the order of the law be remitted and fent down to the juftices of gaol delivery, or of the peace, nor other juftices, nor commiffioners, to proceed upon them after the courfe of the common law:" And thereupon it is enacted, (i) 4 Inft. 74, 75. Strange 440. B. Com, 162. 231. Crom. Jur. 213. enacted, "That the juftices of the King's Bench have full 2 Hale 3, 4. "authority by their difcretions, to remand and fend down, as 41. Ray, 367. Sayer 26, 217. 7162. Loft 55. (a) Sum. 156. a Hale C. 4. 9 Co. 118. 27 Aff. J. 3 Inft. 27. 4 Inft. 73. well the bodies of all felons and murderers, brought or re"moved before the king in his bench, as their indictments, "into the counties where the fame murders or felonies have "been committed and done; and to command all juftices of "gaol-delivery, juftices of peace, and all other justices and "commiffioners, and every of them, to proceed and deter"mine, upon all the aforefaid bodies and indictments fo re"moved, after the courfe of the common law, in fuch man66 ner as the fame juftices of gaol delivery, juftices of peace, "and other commiffioners or any of them, might or should "have done, if the faid prifoners or indictments had never "been brought into the said King's Bench." B. Commif. 10. Port 16. () Inft. 73. (d) 4 Init. 73. Dy. 286. Sect. 9. In the conftruction of the ftatute it seems to have been holden, That it fhall not be extended by equity to high treafon. Sect. 10. As to the fecond point, viz. How far the court of King's Bench reforms inferior courts; There is no doubt, but that this court, being the highest court of common law, hath not only power to reverfe erroneous judgments given by "inferior courts, but also to punish all inferior magiftrates, and all officers of juftice, for all wilful and corrupt abuses of their authority, against the known, obvious, and common principles of natural juftice, but not for mere miftakes, which an honeft-well meaning man may innocently fall into. Sect. 11. As to the third point, viz. How far the presence of this court fufpends the power of all other courts, it is certain, That this being the (a) fupreme court of Oyer and Terminer, Gaol-delivery, and Eyre, doth fo far fufpend the power of all other juftices of this kind, in the county wherein it fits, during the time of its fitting in it (if fuch justices have (b) notice of its fitting there, and even without fuch notice (c), as (6) 21 H, 7: 19: fome fay), that all proceedings commenced before any fuch juftices during fuch time are void; yet it (d) feems, That fuch juftices may proceed upon indictments taken in a foreign county and removed before them, because the court of King's Bench hath nothing to do with fuch indictments, unless they be removed into it. Alfo there feems to be the fame reason, that fuch juftices may proceed upon indictments taken before them, of offences in the fame county before the term; for it (4) Keilw. 152, is faid in (e) Keilway, That if an appeal be commenced before juftices 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 fhews that the King's Bench ought not without a certiorari, &c. to intermeddle in an appeal, whereof another court is legally poffeffed before; and the reafon feems to be the fame as to indictments; and it is faid in the fame book, That if the King's Bench and juftices in Eyre are in one county, yet this fhall not change the power of the juftices in Eyre, but that if the king will make process for any thing not commenced before the juftices of Eyre, as to fuch thing their power is ceafed; by which it feems to be implied, that as to what was commenced before them, their power continues: 3 Inft. 24. however, it is certainly the fafeft way for any of the juftices 4 Inft. 73. above mentioned proceeding on any fuch indictment, to have Sum. 156, 157. a fpecial commiffion for that purpose, and itis most advisable that fuch commiffion bear tefte in the term. "That N. B. This is + But it is enacted by 25 Geo. 3. c. 18. "when any feffion of oyer and terminer and gaol-de- declared to be a "livery of Newgate, in the county of Middlesex, fhall have publick a "been begun to be holden before the effoin day of any term, "the fame feffion fhall and may be continued to be holden, "and the bufinefs thereof finally concluded, notwithstanding "the happening of fuch effoin day of any term, or the fitting "of the faid court of King's Bench at Weftminster, or elfe<< where in the faid county of Middlesex, and that all trials, ❝ judgments, proceedings, acts, deeds, matters, and things "whatsoever, and all proceedings, acts, deeds, matters, and "things in pursuance of fuch judgments had, made, and ❝ done at fuch feffion, fo continued to be holden after the "effoin day of any term, or the fitting of the faid court of "King's Bench at Westminster, or elsewhere in the faid "county of Middlefex, fhall be good, valid, and effectual in « law, and deemed, reputed, and taken to be so, to all in❝tents and purposes whatsoever." Sect. 12. As to the fourth point, What rules are to be obferved in the form of the proceedings of this court, it () Co. Ent. 575 feemeth, That all process upon (a) writs of appeal, and alfo all 58. 60. process upon (b) indictments removed hither by certiorari from a (6) Co. Ent.354, foreign county, ought to be made returnable coram nobis ubi- 355 356. 358. (c) Co. Ent. 5a. cunque fuerimus, but that all procefs upon (e) bills of appeal against 58. 60. one in cuftodia Marefchalli, and perhaps alfo upon (d) indictments Co. Ent. 352, 353. 361. commenced in the King's Bench, ought to be returnable coram con. Co. En. nobis apud Weftmonafterium: also it has been (e) refolved, That 360. 363. where the court proceeds on an offence committed in the fame ()9 Co. 118. county wherein it fits, the procefs may be made returnable 1 Lev. 61. immediately; but that where it proceeds on an offence re- 1 Sid. 72. moved by certiorari from another, there must be fifteen days 4, 5. between the tefte and return of every process. Co. Lit. 134. 2 R. Abr. 626. 2 Inft. 550.568. THE JUSTICES of this court are the fovereign judges of Ġaol-delivery and of Oyer and Terminer, 9 Co. 118. and therefore, where proceedings are limited to juftices of Oyer and Terminer, the court of King's Bench has an implied jurisdiction, 2 Hale 4. They are alfo confervators of the peace, 4 Inft. 73. throughout the whole realm, 2 Rol. Abr. 558. and fupreme coroners of all England, 4 Co. 57.: and, therefore, where the sheriff or coroners may receive appeals by bill, this court may, a fortieri, do the fame, 4 Inft. 73. 4 Co, 57. This court during the term, and any |