at any season by those who have not common of pasture (p), and of the misconduct of regarders or other officers of the forest (q). For such misdoings pecuniary penalties may be inflicted by the court. The verderors also fine persons having rights of turbary for taking turf from pasture land instead of from the heath ground, and for cutting the turves in an improper manner and contrary to the forest rule. Persons charged with damaging trees or with poaching being generally sent before the magistrates (r). Besides the above courts some others deserve to be noticed by reason of their antiquity, or as possessing jurisdiction of more or less Other courts. [* 471] local importance; amongst them may, in the first place, be specified the courts of the counties palatine of Durham and LanStannary court. caster (8); and the stannary court in Devonshire and Cornwall, for the administration of justice among the miners there, which is a court of record of a special nature, exercising a jurisdiction in part equitable and in part legal, and not superseded by that of the county court (u). The stannary courts were originally held, in virtue of a privilege granted to the workers in the tin mines, in the counties named to sue and be sued only in their own courts, that they might not be drawn from their business by having to attend law suits in other courts (x). The privileges of the tinners were confirmed by a charter, 33 Edw. 1., and fully expounded by a private statute (y) 50 Edw. 3., which was subsequently explained by a public act, 16 Car. 1, c. 15. The effect of these, so far as relates to our present purpose, was: that all tinners and labourers in and about the stannaries should, during the time of their working therein bona fide, be privileged from suits of other courts, and be only impleaded in the stannary court in all matters, excepting pleas of land, life, and member. In each of the stannaries of Cornwall there was formerly a court called the steward's court, in which he exercised a common law jurisdiction, and the vice-warden of the stannaries exercised in his court an original equitable jurisdiction (z). These jurisdictions were confined to cases wherein tin or tinners were concerned, and did not extend to matters relating to lead, copper, or other metals, which in modern times have been * discovered in the [* 472] county. By various statutes, however, below cited (a), the jurisdiction of the stannary court has been amplified, and the procedure in it has been revised. The stannaries of Cornwall and Devon now form one entire district. The vice-warden has jurisdiction in actions of contract or tort to the extent of 50%., and his equitable jurisdiction extends to cases arising with respect to the operations of any mine worked for lead, copper, or any metallic mineral, as (p) See 59 Geo. 3, c. 86, ss. 1-4. (g) 59 Geo. 3, c. 86, s. 6. (r) In Dean Forest the court of attachments, composed of the verderors, is still held every forty days, with a jurisdiction in regard to trespassers similar to that above set forth, and power to inflict fines not exceed ing 20%. in amount. It also has some criminal jurisdiction. In Waltham Forest courts have not been held for some years; they could however at any time be revived. (8) As to which see vol. i. p. 142. (t) From the Latin, stannum, tin. (u) 9 & 10 Vict. c. 95, s. 141 (as to the precise effect of which see Newton v. Nancarrow, 15 Q. B. 144); 18 & 19 Vict. c. 32, s. 17. (x) 4 Inst. 232. (y) See this at length in 4 Inst. 232. (2) As to the former equitable jurisdiction of the court, see, however, Bainbridge's Law of Mines, 3rd ed. 696. (a) 6 & 7 Will. 4, c. 106; 2 & 3 Vict. c. 58; 11 & 12 Vict. c. 83; 18 & 19 Vict. c. 32; 32 & 33 Vict. c. 19, which amends the law relating to mining partnerships within the stannaries and to the court of the vice-warden. fully as with respect to tin or tin-mines (b). It extends also to non-metallic minerals found in the same mine and worked by the same adventurers (c). From the decisions of the vice-warden, both in equity and at common law, an appeal lies to the lord warden, assisted by two or more members of the judicial committee of the privy council, or judges of equity, or courts of law at Westminster; and every judgment of the lord warden is subject to an appeal to the house of lords. Courts of The courts within the city of London (d), and other cities and boroughs throughout the kingdom, held by prescription, charter, or act of parliament (e), are to be included in our present list. It would, [* 473] indeed, exceed the design and compass of our present inquiries, if we were to enter into a particular detail of these local tribunalsto examine the nature and extent of their several jurisdictions, and the mode of procedure observed in them. It must in general suffice to say, that these special jurisdictions arose originally from the favour of the crown to those particular districts, wherein we find them erected, upon the same principle that hundred-courts, and the like, were established; for the convenience of the inhabitants, that they might prosecute their suits, and receive justice at home: that, for the most part, the courts at Westminster Hall have a concurrent jurisdiction with these, or else a superintendency over.them: and that the proceedings in these special courts ought to be according to the course of the common law, unless otherwise ordered by parliament; for though the king may erect new courts, yet he cannot alter the established course of the law. Here, also, may be mentioned the chancellor's courts of the universities of Oxford and Cambridge, which, besides taking cognisance of criminal acts as hereafter mentioned (f), possess a civil jurisdiction (g). privilege of Cambridge in this particular has Courts of the [* 474] universities. The (b) Bainbridge, Law of Mines, 3rd ed. 696. (c) lb. (d) These courts are the court of hustings, held before the mayor, recorder, and sheriffs; the Lord Mayor's court, as to which see Mayor, &c. of London v. Cox, L. R. 2 H. L. 239, cited ante, p. 459, 20 & 21 Vict. c. clvii.; and the City of London court, which is now included in the county courts, 30 & 31 Vict. c. 142, s. 35. The customs of the city of London are tried or made known in a superior court by the certificate of the mayor and aldermen, certified by the mouth of their recorder. But this rule admits of an exception, where the corporation of London is party, or interested in the suit; for there the reason of the law will not endure so partial a trial; and such a custom is to be determined by a jury, and not by the mayor and aldermen, certifying by the mouth of their recorder. Co. Litt. 74; Bro. Abr. tit. Trial, pl. 96; Hob. 85. (e) See, as to inferior courts of record, 1 & 2 Vict. c. 110, s. 22. By the 15 & 16 Vict. c. 54, s. 7, the jurisdic tion of any local court having concurrent jurisdiction with a county court, may, on petition to the queen in council, "be excluded in any causes whereof the county court hath cognisance." () Vol. iv. p. 361. (g) Which was granted in order that the students might not be distracted from their studies by legal process from distant courts, and other forensic avocations. Privileges of this kind are of very high antiquity, and were generally enjoyed by foreign universi ties, as well as by our own. (See, for instance, Cod. 4, 13.) In England, the oldest charter containing this grant to the university of Oxford, was 28 Hen. 3, A. D. 1244. And the same privileges were confirmed and enlarged by almost every succeeding prince, down to king Henry VIII.; in the fourteenth year of whose reign the largest and most extensive charter of all was granted. One similar to which was afterwards granted to Cambridge in the third year of queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature, that they were held to be invalid; for though the king might erect new courts, yet he could not alter the course of law by his letters patent. Therefore, in the reign of queen Elizabeth, an act of parliament was obtained (13 Eliz. c. 29) confirming all the charters of the two universities, and those of 14 Hen. 8 and 3 Eliz. by name, which "blessed act," as sir Edward Coke entitles it (4 Inst. 227), established this high privilege without any doubt or opposi Commissioners of sewers COMMISSIONERS OF SEWERS. been restricted by a recent enactment (h), and formerly differed from that of Oxford: extending only to causes of action accruing in the town and its suburbs; whereas the jurisdiction of the chancellor's court at Oxford extended, and still extends, to all personal causes anywhere arising (i). The respective jurisdictions of these courts are not affected by the county courts acts (k). The last species of courts to be here mentioned is that of commissioners of sewers. This was formerly a temporary tribunal erected by virtue of a commission under the great seal; which used to be granted pro re natá at the pleasure of the crown, but afterwards at the discretion and nomination of the lord chancellor, lord treasurer, and chief justices, pursuant to the statute 23 Hen. 8, c. 5. The jurisdiction of the commissioners being to overlook the repairs of sea banks and sea walls: and the cleansing of rivers, public streams, ditches, and other conduits, whereby any waters are carried off: and being confined to such county or particular district as the commission expressly named. The court of the old commissioners of sewers [*475] was a court of record (); and in the execution of their duty the commissioners might proceed by jury, or upon their own view, and might take order for the removal of annoyances, or the safeguard and conservation of the sewers within their commission, either according to the laws and customs of Romney Marsh (m), or otherwise at their own discretion. They were also to assess such rates upon the owners of lands within their district, as they should judge necessary; and if any person refused to pay them, the commissioners were empowered to levy the same by distress of his goods and chattels; or they might by statute 23 Hen. 8, c. 5, sell his freehold lands (and by the 7 Ann. c. 10, his copyhold also) in order to pay such assessments. their conduct was under the control of the court of king's bench (n). But The law relating to sewers was materially improved by the statute 3 & 4 Will. 4, c. 22 (amended by subsequent enactments (o)), which contains provisions as to the qualification of the commissioners, their meetings and mode of procedure, the laying of rates, the making of new works, and purchase of land by them for the purposes of the act; the vesting of property in the commissioners, the levying of fines and penalties by them, and other matters. The statute 24 & 25 Vict. c. 133, also empowers the crown on the recommendation of the inclosure commissioners to issue commissions of sewers tion; or, as sir Matthew Hale observes (Hist. C. L. 33), "Although king Henry the Eighth, 14 anno regni sui, granted to the university a liberal charter, to proceed according to the use of the university, viz., by a course much conformed to the civil law, yet that charter had not been sufficient to have warranted such proceedings without the help of an act of parliament. And therefore in 13 Eliz. an act passed, whereby that charter was in effect enacted; and it is thereby that at this day they have a kind of civil procedure, even in matters that are of themselves of common law cognisance, where either of the parties is privileged." (h) 19 & 20 Vict. c. xvii. () The privilege of the university of Oxford is fully stated in Re The Chancellor, &c. of the University of Oxford and John Taylor, 1 Q. B. 952. (k) 9 & 10 Vict. c. 95, s. 140. VOL. II.-42 (1) Vide per Willes, J., 19 C. B. N. S. 497. (m) A tract of land in the county of Kent, containing 24,000 acres, governed by certain ancient and equitable laws of sewers, composed by Henry de Bathe, a judge, temp. king Henry III. 4 Inst, 276. (n) Hetley v. Boyer, Cro. Jac. 336. And yet in the reign of king James I. (A. D. 1616) the privy council took upon them to order that no action or complaint should be prosecuted against the commissioners, unless before that board: and committed several persons to prison who had brought such actions at common law, till they should release the same; and one of the reasons for discharging sir Edward Coke from his office of lord chief justice may have been for countenancing those actions. Moor, 825, 826. (0) Of which may be specified 4 & 5 Vict. c. 45; 12 & 13 Vict. c. 50; 24 & 25 Vict. c. 133. *for new areas in all parts of England, inland as well as maritime, [*476] with power not merely to maintain existing but to erect new works (p). In reference generally to courts, such as above noticed, of limited and special jurisdiction, an observation of sir Edward Coke (q) may properly be cited that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended further than the express letter of their privileges will most explicitly warrant. (p) See particularly ss. 4, et seq. (g) 2 Inst. 548. BOOK THE FOURTH. PUBLIC WRONGS. CHAPTER I. THE NATURE OF CRIME; AND PUNISHMENT. Public wrongs and punishments. [*1] We are now arrived at the fourth and last branch of these Commentaries; which treats of public wrongs, or crimes. For we may remember that, in the beginning of the preceding volume (a), wrongs were divided into two species: the one private, and the other public. Private wrongs, which are frequently termed civil injuries, were in part the subject of that book: we are now therefore, lastly, to proceed to the consideration of public wrongs, or crimes; with the means of their prevention and punishment. In the pursuit of which subject I shall consider, in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals, or accessories; fourthly, the [*2] several species of crimes, with the punishment annexed to each by the laws of England; fifthly, the means of preventing their perpetration; and, sixthly, the method of inflicting those punishments, which the law has annexed to each several offence. Division of the subject. First, general * First, as to the general nature of crime and punishment; the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us in England, the docnature of crime trine of the "pleas of the crown;" so called, because the sovereign, and punishment. in whom centres the majesty of the whole community, is supposed by law to be the person injured by an infraction of the public rights belonging to that community, and is therefore the proper prosecutor for a public offence (b). Importance of The knowledge of this branch of jurisprudence, which teaches the nature, extent, and degree of every crime, and adjusts to it its adequate and necessary penalty, is of the utmost importance to every individual in the knowledge state. For (as a great master of the crown law (c) has observed) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude, that he may not at some time or other, be deeply interested in these researches. The thereof. (a) Book iii, ch. 1. (b) Ante, vol. i. p. 320. (c) Sir Michael Foster, Pref. to Rep. |