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 gaol delivery, are at once absorbed and determined ipso facto: in the same manner as by the old Gothic [266] and Saxon constitutions, "jure vetusto obtinuit, quievisse omnia "inferiora judicia, dicente jus rege." (7) INTO this court of king's bench hath reverted all that was good and salutary of the jurisdiction of the court of starchamber, camera stellataa; which was a court of very antient z Stiernhook, l. 1. c.2. a This is said (Lamb. Arch. 154.) to Elizabeth,) it may be allowable to propose another conjectural 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 antient records starra or starrs, from a corruption of the Hebrew word shetar, a covenant, (Tovey's Angl. judaic. 32. Selden, tit. of hon. ii. 34. Uror. Ebraic. i. 14.) These starrs, by an ordinance of Richard the first, pre. served 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 un (7) Lord Hale observes, that the king's bench by coming into any county does not determine any other commission, but suspends its session during the term, and that in vacation-time the commissioners may proceed again upon their former commission. A special commission, he observes also, may sit in term-time in the county where the king's bench sits, but then the king's bench must adjourn during its session. 2 Hal. P. C. 4. See also 2 Hawk. P. C. c. 5. s. 3. to the same effect. And the 25 G. 3. c. 18. has provided that the session of oyer and terminer and gaol delivery of the gaol of Newgate, for the county of Middlesex, shall not be discontinued by the sitting of the king's bench at Westminster in term. The 32 G. 3. c. 48. has made a similar provision for the sessions of the peace and of oyer and terminer, before the justices of the peace for the same county. original, 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, without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour of sheriffs, and other notorious misdemesnors, contrary to the laws of the land. Yet, this was afterwards, (as lord Clarendon inform us) 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 reasons it was finally abolished by statute 16 Car. I. c. 10. to the general joy of the whole nation". less it were found in some of the said repositories. (Memorand. in Scacc. P. 6 Edw. I. prefixed to Maynard's yearbook of Edw. II. fol. 8. 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 the kingdom, was applied to the use of the king's council, sitting in their judicial capacity. To confirm this, the first time the starrchamber 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 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. b Lamb. Arch. 156. Hist. of Reb., book 1 and 3. The just odium into which this tribunal had fallen before it's dissolu tion, has been the occasion that few me morials have reached us of it's 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 it's proceedings in Dyer, Croke, Coke, and other reporters of that age, and some in ma 4. THE Court of chivalry, of which we also formerly spoke 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 it's 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. 5. THE high court of admiralty1, held before the lord high admiral of England, or his deputy, stiled 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, 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 nuscript, 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. N° 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 practitioner h 4 Inst. 184. 147. (8) This is now published in the second volume of the Collectanea Juridica, 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 [269] 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 offence to the English nation; and therefore in the eighth year of Henry VI. it was endeavoured to apply a remedy in parliament: 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 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, as the lord mayor is the president of the session of oyer and terminer in London. (9) 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 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, 6, 7. THE courts of oyer and terminer, and general gaol delivery which are held before the king's commissioners, i 4 Inst. 162. 168. 2 Hal. P. C. pp. 22. 32. 2 Hawk. P. C. cc. 5, 6. (9) The 27 H. 8. c. 4. extended only to the offences of piracy, robbery, murder, and manslaughter; the 28 H. s. c. 15. embraces treasons, felonies, robberies, murders, and confederacies; but the 39 G. 3. c.37. enacts, that all offences committed on the high seas out of the body of any county, shall be enquired of under the commission described in the text. And the 46 G.3. c. 54. enables the king to issue a similar commission to any such four persons as the lord chancellor shall approve of for trying such offences, in the same manner, in any of his majesty's islands, plantations, colonies, dominions, forts, or factories. 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 they are held only once, and London and Middlesex, wherein they are held eight times. (10) These were slightly mentioned in the preceding book *. We then observed, that, at what is usually called the assises, the judges sit by virtue of five several authorities : two of which, the commission of assise and it's attendant juris[270] diction 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'. The third, which is the commission of the peace, was also treated of in a former volume", 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 assises 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", to hear and determine all treasons, felonies, and misdemesnors. 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 assises; 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; which empowers them to try and deliver every prisoner, who shall be in the gaol n See Appendix, § 1. • Ibid. * See Vol. III. pag. 60.、 12 Hal. P. C. 39. 2 Hawk. P. C. c.7. (10) It has been usual lately to hold the courts of oyer and terminer and general gaol delivery twice in the year in the four northern counties, and three times in the counties which form the home circuit. |