58.60.

(b) Co. Ent. 354, 355, 356. 358.

(c) Co. Ent. 52,

58. 60. (d) Co. Ent.

S52, 353. 361.

"Westminster, or elsewhere in the said 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 such judgments, had, made, and "done at such session, so continued to be holden after the essoin day of any term, or the sitting of the said court of King's "Bench at Westminster, or elsewhere in the county of Middlesex, shall be good, valid, and effectual in law, and deemed, reputed, and taken to be so, to all intents and purposes whatso"ever."

66

66

Sect. 13. And by the 32 Geo. 3. c. 48. "The justices of the peace for the county of Middlesex are enabled to continue a "session of the peace, and of oyer and terminer, begun to be "holden before the essoin day of term and sitting of the King's "Bench at Westminster, notwithstanding the happening of such "essoin day, or the sitting of the said court of King's Bench at Westminster, or elsewhere in the county of Middlesex."

Sect. 14. As to THE FOURTH POINT, viz. What rules are to be (a) Co. Ent. 57, observed in the form of the proceedings of this court-It seemeth that all process upon writs of appeal, (a) and also all process upon indictments (b) removed hither by certiorari, from a foreign county, ought to be made returnable coram nobis ubicunque fuerimus; but that all process upon bills (c) of appeal against one in custodia mareschalli, and perhaps also upon indictments (d) commenced in the King's Bench, ought to be returnable coram nobis apud Westmonasterium. Also it has been resolved, (e) That where the court proceeds on an offence committed in the same county wherein it sits, the process may be made returnable immediately; but that where it proceeds on an offence 2 R. Abr. 626. removed by certiorari from another, there must be fifteen days 2 Inst.550.568. between the teste and return of every process. (1)

Con. Co. Ent. 360.363.

(e) 9 Co. 118. Co. Lit. 134. 1 Lev. 61.

1 Sid. 72.

4, 5.

(1) The justices of this court are the sovereign judges of gaol-delivery and of oyer and terminer, 9 Co. 118. and therefore, where proceedings are limited to justices of oyer and terminer, the court of King's Bench has an implied jurisdiction, 2 Hale, 4. They are also conservators of the peace, 4 Inst. 73. throughout the whole realm, 2 Rol. Abr. 558. and supreme coroners of all England, 4 Co. 57; and therefore, where the sheriff or coroners may receive appeals by bill, this court may, à fortiori, do the same, 4 Inst. 73. 4 Co. 57. This court during the term, and any judge thereof during vacation, may admit persons committed for any crime to bail, according to their discretion, Skin. 683. Salk. 105. Strange, 911. 1 Com. Digest. 497. be it treason, murder, or any other offence, 2 Inst. 189. Latch. 12. Vaughan, 157. Comb. 111. 298. 1 Com. Digest. 495. except persons committed by either

house of parliament during the sessions, Wilson, 299. and persons committed for contempts by any of the king's supreme courts of justice, 4 Comm. 300. Also where the body of an offender attainted in the country is removed by habeas corpus, and the record by certiorari, into this court, it may award execution, Cro. Con. 176. to be done by the marshal, 2 Hale, 5. or it may issue a mandate to the sheriff to perform it as the marshal's assistant, 1 Hale, 464. And where persons put in feigned bail, so as not to be reached by 21 Jac. 1. this court may order all the parties concerned to be set in the pillory, Strange, 384. This court also has power to compel the production of examinations, papers, books, &c. and to do whatever may be necessary to the attainment of justice, Strange, 384.

954.

CHAP.

CHAP. IV.

OF THE COURT OF THE CONSTABLE AND

MARSHAL.

FOR the better understanding the nature of this court, it may 2 Com. Digest, not be improper to premise some general considerations concern- 599. ing the ancient jurisdiction of those high officers before whom it is holden.

Sect. 1. As to the office of High Constable of England, which Dyer, 285. anciently was hereditary, the same being esteemed of too high 4 Inst. 127. authority to be safely intrusted with any subject, but only pro hac Farresley, 125. Spel.Gloss. 146. vice, since the reign of King Henry the Eighth; and there being Madox, 27, 28, very little to be found in our ancient records and histories con- 29. cerning the particular power or authority of this high office, our most learned antiquaries seem to be able to give us little more than their own conjectures concerning this matter. However, there is no doubt but that he was an officer of very great power both in war and peace; and indeed his very name imports no less; for the word "Constable" signifying in general a commander or officer, he who was called constable of England, or the king's constable, or sometimes, by the way of eminency, the constable, without any other addition, cannot but be thought to have been a person of the highest command and authority; and the statute of 13 Rich. 2. (which is at large set forth in the following part of this chapter,) restraining his jurisdiction to things touching war not determinable by the common law, in relation to which it requires him to proceed according to ancient usage, clearly supposes him to have an ancient established authority concerning these matters; and it seems to have been somewhat doubtful, before the making of the said statute, whether the constable and the marshal had not a general jurisdiction over all contracts whatso- 48 E. 3. 3. ever made beyond sea.

13 H. 4. 4, 5.

Sect. 2. Neither do there seem to be any greater footsteps in antiquity of the original institution of the office of the Lord Marshal, or of his power or authority; for anciently there were several officers of the king's household who were called marshals, as the marshals of his horses, of his birds, (a) and of his measures, (a) Madox, 30. who had certain salaries allotted them for the management or well-ordering of the things committed to their charge. And in the ancient records relating to those officers, there seems no more to be meant by having the marshalsy of a thing, than to

have the oversight, or charge, or ordering of it: also, in our old Madox, 30, 31. records, there are some officers taken notice of by the name of marshals, who are mentioned only in general to have been servants of the king's household, without any further account of

the nature of their office or duty in particular. However, we find Madox, 20.30. that in the twenty-second year of King Edward the Third, the 1 R. Ab. 527. parliament granted fifteenths on divers conditions, one of which was, that there shall be no mareschalsy in England except the mareschalsy of the king, and of the guardian of England when the king shall be out of England. And it seems clear that there

was

33.

(a) Fleta, 1. 2.

C. 4.

Co. Lit. 74.

was one marshal superior to the rest, who was sometimes called the master-marshal, at other times the king's marshal, the marMadox, 31, 32, shal of England, or the earl-marshal, being an officer of very great authority both in war and peace, whose principal office in time of war (a) was to regulate the encampments of the army, and to assign to the troops their respective posts in the day of battle; () Madox, 33. and in the time of peace (b) to provide for the security of the king's person in his palace, to distribute the lodgings there, and to preserve peace and order in the king's household, and to be assistant to the constable in determining causes, and also to execute the orders (c) both of the court of the constable, wherein he himself sat as judge, and of the court of the high steward, (d) to which he seems to have been only an officer.

(c) 4 Inst. 123. Cas. in Parl. 60. (d) Fleta 1. 2.

c. 3.

Madox, 29.

4 Inst. 193.

Sect. 3. But whatever might be the original institution of these officers, or the nature of their authority, it is certain their jurisdiction is at present declared, limited, and restrained, by certain acts of parliament, before the making whereof we have scarce any thing memorable on record concerning this matter.

Sect. 4. And FIRST by 8 Rich. 2. c. 5. "Because divers pleas concerning the common law, and which by the common law ought to be examined and discussed, are of late drawn before the constable and marshal of England, to the great damage and disquietness of the people:" it is agreed and ordained, "That all "pleas and suits touching the common law, and which ought to "be examined and discussed at the common law, shall not here"after be drawn or holden by any means before the aforesaid "constable and marshal, but that the court of the same constable "and marshal shall have that which belongeth to the same court, "and that the common law shall be executed and used, and have "that which to it belongeth, and the same shall be executed and "used, as it was accustomed to be used in the time of King "Edward."

Sect. 5. And it is further declared by 13 Rich. 2. c. 2. in the following words:-" Because that the commons do make a grievous complaint, that the court of the constable and marshal hath incroached to him, and daily doth incroach, contracts, covenants, trespasses, debt, and detinues, and many other actions pleadable at the common law, in great prejudice of the king, and of his courts, and to the great grievance and oppression of the Co. Lit. 391. people: our lord the king, willing to ordain a remedy against the prejudices and grievances aforesaid, hath declared in this parliament, by the advice and assent of the lords spiritual and temporal, the power and jurisdiction of the said constable, in the form that followeth:-"To the constable it pertaineth to have cognizance of contracts touching deeds of arms and of war out of "the realm, and also of things that touch war within the realm "which cannot be determined nor discussed by the common law, "with other usages and customs to the same matters pertaining, "which other constables heretofore have duly and reasonably " used in their time; joining to the same, that every plaintiff shall "declare plainly his matter in his petition, before that any man "be sent for to answer thereunto. And if any will complain that any plea be commenced before the constable and marshal that

66

"might

might be tried by the common law of the land, the same plain

"tiff shall have a privy seal of the king without difficulty, directed

to the said constable and marshal, to surcease in that plea until 1 Show. 353. "it be discussed by the king's council, if that matter ought of right

"to pertain to that court, or otherwise to be tried by the com

66

mon law of the realm of England, and also that they surcease " in the mean time."

Sect. 6. And it is further enacted by 1 Hen. 4. c. 14. as followeth ::-"For many great inconveniences and mischiefs that often have happened by many appeals made within the realm of England before this time," it is ordained and established from henceforth, "That all the appeals to be made of things done "within the realm, shall be tried and determined by the good "laws of the realm, made and used in the time of the king's no"ble progenitors; and that all the appeals to be made of things "done out of the realm, shall be tried and determined before the "constable and marshal of England for the time being: and "moreover, it is accorded and assented, that no appeal be from "henceforth made, or in any wise pursued, in parliament in time "to come."

For the better understanding of the construction of these statutes, and the nature of this court, I shall examine the following particulars:

FIRST, How far the said court hath conusance of points of honour in general.

SECONDLY, Whether it can punish private persons for marshalling funerals.

THIRDLY, Whether it can be holden by a lord-marshal alone, without a constable.

FOURTHLY, Whether its power, as to appeals of treason, be superseded by 26 or 35 Hen. 8; or 5 and 6 Edw. 6. c. 11; or 1 and 2 Ph. and Mary, c. 10.

FIFTHLY, By what law, and in what manner it proceeds.

SIXTHLY, Whether it may be prohibited if it exceed its jurisdiction.

SEVENTHLY, Whether it can be holden by commission.

Sect. 7. As to THE FIRST POINT, It is observable, that the above-mentioned statute of 13 Rich. 2. c. 2. declares the jurisdiction of this court, in relation to things done within the realm, in these words, "To the constable pertaineth conusance, &c. of 1 Hale, 500. things that touch war within the realm, which cannot be deter"mined nor discussed by the common law;"-from whence it seems to follow, that this court has nothing to do with a mere civil matter, no way relating to war; and therefore the proceedings of the court of the lord-marshal, in the time of King Charles the First, for bare scandalous words reflecting on the honour (a) (a)7 Mod. 128. or gentility of families, seem no way to be maintained. Yet it 2 Rushworth, seems to be taken for granted in some books, (b) that disputes 1055, 1056. concerning (6) Hob. 121.

Salk. 55.

1 Rol. 87.

2 Lev. 134. Shower, 353. 1 Sid. 353. 1 Lev. 230.

(a) 2 Rushworth, 1055, 1056.

(b) Shower's

Parl, Cas. 64, 65.

(c) 1 Rol. 87.

concerning precedency, and points of honour, and satisfaction therein, are proper for this court. Neither do I find, that the proceedings therein against persons for falsely assuming the name and arms of honourable families, were censured or disallowed by the learned (a) members of the committee of the House of Commons, in the year 1639, who were appointed to inquire into the abuses of this court. And it seems to be admitted (b) in the argument of Oldis's case, that all matters of this nature are proper for this court: yet it seems to be a large interpretation to make these things relate to war, so as to come within the declaration above-mentioned; and the rule laid down in Roll's Reports, (c) that the marshal has power given him where the common law gives no remedy, seems no way maintainable from the statute; for it doth not say in general, "That to the "constable pertaineth conusance of things which cannot be de"termined by the common law," but of " things of war, &c. (d) 13 Hen. 4. " which cannot be thereby determined:"(d) neither is it a conclusive argument, that a matter which is remediless by the common law, must have a remedy from some other law; yet inasmuch as by the preamble of the said statute, its chief intention appears to be to prevent incroachments on the common law, and such proceedings in matters whereof the common law hath no conusance, it cannot be said any way to incroach upon it. And inasmuch as the said statute is wholly declarative, and hath no negative words; and the constant practice, which is the best interpreter of laws, and the general opinion of lawyers, seem to countenance such proceedings; I shall not take upon me to determine how far they may be warrantable.

4, 5.

1 Lev. 230. 1 Sid. 353.

Shower, 353. 7 Mod. 128.

Sect. 8. As to THE SECOND POINT, viz. Whether this court can punish private persons for marshalling funerals. Though it should be granted, that the marshalling of public funerals belongs to the heralds, who are attendants on this court, and that no other persons without their licence can lawfully intermeddle therein; yet it does by no means follow, that the marshal has power to punish those who shall be guilty of any such incroachment; but the proper remedy seems to be by action on the case at common law, and not by a suit in this court, which by the above-mentioned statute of 8 and 13 Rich. 2. has cognizance only of such matters which cannot be determined nor discussed Cases in Parl. by the common law. And this seems to be the principal reason of

58, &c.

Dr. Oldis's case, wherein a suit in the marshal's court against one Domville, for taking upon him, without license, to paint arms and escutcheons, and causing them to be fixed to hearses, and providing and lending palls for funerals, and painting arms for one who had no right to their use at the funeral, and marshalling several funerals, &c., was prohibited by the court of Exchequer, upon great deliberation, with the advice of the rest of the judges, and the judgment was afterwards confirmed by the House of Lords.(1)

(1) In Hill v. Ann, Lord Holt said, "The minis"ters of this court would have the words of 13 "Rich. 2. to mean coats of arms and escutcheons, "matters which they very well understand; and if "they find people assume arms to whom arms do

Sect.