3. s. 10.

(b) Reg. 124,

(a) See ante ch. for which they are commissioned during the time of such sitting, especially if they have notice thereof, as hath been before shewn(a); and it seems that their jurisdiction is revived of course, when the said court no longer sits there, without any writ of procedendo, &c. Their authority (6) may be also suspended by a writ of supersedeas, which is grantable on proof that their commission was unduly granted; in which case their power may be restored by a writ of procedendo, without any new commission. But a commission once determined cannot be revived by any writ of procedendo, nor the justices authorized anew without another commission.

125.

12 Ass. 21. 4 Inst. 163. Sum. 162. Strange, 832.

865.

4 Inst. 163.

Ch. 1. s. 11, 12, 13.

B. Commis. 4. 22.

Cro. Car. 104. Lit. Rep. 81.

Crom. Jur. 125. b.

Summary, 161. 4 Inst. 165.

Sect. 4. Such commissions may be determined expressly or impliedly. Expressly, by an absolute repeal or countermand from the king. Impliedly, several ways.

Sect. 5. First, By the demise of the king by whom they were granted. But this mischief is in a great measure obviated by late statutes, as hath been more fully shewn.

Sect. 6. Secondly, According to some opinions, by the justice's acceptance of any new name of dignity, as that of duke, knight, serjeant, &c. But this is remedied by 1 Edw. 6. c. 7. which enacts, "That if any person, being in any of the king's commis"sions whatsoever, shall fortune to be made or created duke, "archbishop, marquess, earl, viscount, baron, bishop, knight, jus"tice of the one bench or of the other, or serjeant at law, or "sheriff, yet that notwithstanding he shall remain commissioner," &c. But it hath been questioned, whether the dignity of a baronet, which has been created since that statute, be within the equity of it.

Sect. 7. Thirdly, by holding a session without adjourning it, if the commission have no time limited for its continuance; as where it is appointed pro hac vice only: but if it be granted for a B. Commiss. 12. certain time, or quamdiu nobis placuerit, it does not necessarily Dalis. 24, 25. require any adjournment; and therefore, if the court holden by virtue of such commission break up without any adjournment, or upon a void one, as being made without the consent of the majority of the commissioners, yet it may be holden again on a new

Dyer, 205. 4 Inst. 165.

1 Leon. 270. 10 Ed. 4.7.

(a) Brooke, Commission, pl. 7.

(b) Ibid. 8. 24.

(c) Ibid. 8.

summons.

Sect. 8. Fourthly, By granting a new commission to other persons of the same nature with the former, though but for part of the district for which the former was granted, as some say. And whether (a) such new commission be for a certain time, or pro hac vice only, yet the former commissions shall remain (b) in force, so far as they are consistent with the latter; and therefore it seems certain that a commission of the peace is not determined, as to its authority relating to the peace, by a new commission to hear and determine felonies. But it hath been (c) holden, that it is determined as to its authority relating to felonies; but this seems justly questionable, not only as being contrary to common practice, but also because justices of peace, as such, seem to have authority by 34 Edw. 3. to hear and determine felonies, without any special clause in their commission for that purpose, as will more fully be shewn in chapter the eighth. But it seems cer

Commiss. 24.

tain that a commission of (d) gaol-delivery shall not be determined (d) Brooke, by a new commission of oyer and terminer, because they are of different natures. (e) Also it seems to be clear, not only from 2 (e) Ibid. 5. and 3 Ph. and Mary, c. 18. set forth more at large section twelfth, but also in cases not within the statute, that a commission of the peace for a certain town determines not the authority () Summary, of the corporation having a grant from the king that the mayor 1 Hale, 499. and his successors shall be justices of the peace within its limits, 2 Hale, 25. because such a grant is irrevocable. (f) Also it seems certain, 34 Ass. 8. that no new commission doth determine an old one, unless the B. Commiss. 6. former commissioners have notice of it.

Sect. 9. Such notice may be given expressly or impliedly. Expressly, by (g) shewing the new commission to the former commissioners, which certainly determines the power of all those to whom it is shewn. Impliedly, two manner of ways.

162.

4 Inst. 165.

14.

(g) Summary,

162.
4 Inst. 165.

Keilw. 116.

Crom. Jur. 125.'

Sect. 10. First, By (a) holding a session by force of the new (a) 34 Ass. 8. b. commission, which seems to be agreed to be a matter so noto- Commiss. 14. rious, that the first justices shall be presumed to have notice Moor, 186.

of it.

Sect. 11. Secondly, According to the general opinion, by pro- 2 Hale, 25. claiming the new commission in the county.

Dyer, 355. 4 Inst. 165. B. Commiss. 6. Keilw. 116.

discontinue

Sect. 12. As the authority of the justices appointed by any Process shall not former commission is determined by a grant of a new one in the upon supersesmanner abovementioned, so likewise were all proceedings before sion of the comsuch justices discontinued at the common law. To remedy mission under which inconvenience it was enacted by 1 Edw. 6. c. 7. s. 6. which it was That no manner of process or suit made, sued, or had before

68

made.

B. Cor. 178.

"any justice of assize, gaol-delivery, oyer and terminer, justices 1 Sid. 348. of the peace, or other of the king's commissioners, shall in any 2 Keb. 292. "wise be discontinued by the making and publishing of any new "commission or association, or by altering the names of the justices of assize, gaol-delivery, oyer and terminer, justices of peace, or other the king's commissioners, but that the new "justices of assize, gaol delivery, and of the peace, and other commissioners, may proceed in every behalf as if the old com"missions, justices, and commissioners had still remained and "continued not altered."

County, not be

Sect. 13. And it is further enacted by 2 and 3 Ph. and Mary, Commissions c. 18. "That all commissions granted to any city or town corpoof the peace and gaol-delivery for "rate, not being a county in itself, for the keeping of their peace a county shall " and delivery of the prisoners remaining in the gaol of any such not vacate such "city or town-corporate, shall stand, remain, and be good and commissions to a "available and effectual in the law, to all intents, constructions city within the "and purposes; the granting of any like commission of peace or ing a county in "gaol-delivery to any commissioner or commissioners for the itself. "conservation of the peace, or delivery of the prisoners remaining in the gaol of any shire, lathe, rape, riding, or wapentake, "within the realm of England, bearing date after the said com"mission or commissions granted as is aforesaid to any such city

"or

12 Ass. 21.

or town corporate, not being, as aforesaid, a county in itself, to "the contrary notwithstanding."

As to the THIRD POINT, viz. How far the precise letter of such Crom. Jur. 126. commissions must be observed by the justices.

L. Quinto. E. 4.
193.
Dalis. 25.

3 Inst. 31.
2 Hale, 24.

Summary, 160.
B. Commis. 18.
Kelynge, 57.

Sec. 6 and 13.

^(a) Raym. 115.

(b) 1 Sid. 348.

2 Keb. 284. 292.

2 Hale, 23.

Reg. 124.

F. N. B. 111.

Sum. 159. 162. 4 Inst. 165.

Sect. 14. It is said to be agreed, That if a commission of oyer and terminer, &c. be awarded to certain persons to inquire at such a place, they can neither open their commission at another, nor adjourn it thither, or give judgment there; and that if they do, all their proceedings shall be esteemed as coram non judice. Yet it is agreed, that justices appointed by commission pro hac vice, may adjourn their commission from one day to another, though there be no words in their commission to such purpose; for nothing can be more reasonable, than to intend that a general commission authorizing persons to do a thing, does implicitly allow them convenient time for doing of it.

As to the FOURTH POINT, viz. What form is to be observed in the adjournment of such commissions.

Sect. 15. Having already, in the foregoing part of this chapter, incidentally treated of the principal questions relating to this matter, I shall only take notice in this place, that it seems most proper (a) to enter all such adjournments in the present tense; yet it is said, that the entry of them in the present tense, is made good by the multitude of precedents (b): however, it is said, that this court will never intend that there was an adjournment, if no entry at all were made of it.

As to the FIFTH POINT, viz. How far the power given by such commissioners may be extended by new ones to other justices, or committed by fewer than were appointed by the former.

Sect. 16. It is certain, that new commissioners of this kind may be added to the former by a writ or commission of association, which, setting forth the purport of the former commission, declares the king's pleasure to associate to the persons appointed by the first, those to whom such new writ or commission is directed, provided that such new justices attend at the times and places appointed by the former; and it is usual to direct another writ to the former justices, commanding them to admit such new Finch, 318,319. justices as their associates, with the proviso above-mentioned; and the writ to the persons so associated is always patent, and that to the other justices to admit them is close. But it hath (c) L. Quinto, been (c) resolved, that the first justices are not bound by such writ to admit the persons named in it as their associates, unless they produce such patent of association as is above-mentioned directed to themselves, as hath been more fully shewn in the first section of this chapter. And it hath been (d) questioned, whether a special commission of association, relating only to a particular cause, can associate the persons named in it to justices appointed by a general commission. Also it hath been holden, That the king can grant but one patent of association to one commission.

E. 4. 137.

(d) L. Quinto,
E. 4. 111, 112.

130, 131.
F. Assize, 17.

3 H. 62. 10.

Sect. 17. If any justices have sat by virtue of a commission,

and

F. N. B. 111.

113, 114.

and taken divers indictments, and awarded process thereon, and Reg. 128. they shall all, or some of them, die, the king may grant a new commission to those who are living only, or to others, commanding them to continue the proceedings begun, and to proceed upon such process, and to hear and determine all the offences in the former commission: and thereupon the king shall send a writ unto the executors of the justices who are dead, to send the rolls, records, and processes touching the premises, before the new commissioners, &c.

2 Hale, 23.

Sect. 18. After a writ of association, it is usual to make out a Reg. 124. writ of si non omnes, directed both to the first justices, and also F. N. B. 111. to those who are so associated to them; which, reciting the pur-port of the two former commissions, commands the justices, that if all of them cannot conveniently be present, such a number of them may proceed, &c.

As to the SIXTH POINT, viz. Whether such justices may sit in one county, to try offences in another.

Sum. 162, 163.

292.

Sect. 19. It seems agreed, that regularly all offences are to be 2 Hale, 21, 22. inquired of, heard, and determined in the county wherein they 3 Inst. 27. were committed, and that the king cannot authorize the taking Dyer, 286. of them in another. Yet it was adjudged in the case of the Pop. 16, 17. City of Gloucester, that if the king grant to a city the privilege 1 And. 291, of being a county of itself, distinct from the county within which Douglas, 795. it lies, with a salvo or reservation, that the justices of oyer and 796. terminer, &c. for the county at large may still sit in such city, such reservation makes the city still remain part of the county for such purpose, and consequently that an indictment found within such city, of an offence in the county at large, is good. (a) Also (a) Rex and it is certain, That, by a special custom, indictments of offences Gough, Trin. within a county may be taken in a place out of it; as they are in Dougl. 760. fact taken both for Middlesex and London at the Sessions-hall Raym. 193. at Newgate, which stands in London; for it shall be intended, that at the original division of London from Middlesex there was a special provision made for this purpose. Also it is certain, that the Cro. Eliz. 137. king may grant a special commission of oyer and terminer to sit Plow. 390. in one county for hearing and determining offences, whereof in- Quare; vide dictments have been found in another: but it is agreed, that the Douglas, 796. trial must be by the jurors of the proper county.

21 Geo. 3.

"Wood, 619.

Post. 22. 220.

As to the SEVENth Point, viz. Where the records of such 2 Hale, 31. 36. justices are to be kept after they are determined.

Sect. 20. It is enacted by 9 Edw. 3. c. 5. "That justices of "assize, gaol-delivery, and of oyer and terminer, shall send all "their records and processes determined and put in execution "to the exchequer at Michaelmas, every year once, to be deli"vered there; and the treasurer and chamberlains which for the "time shall be, having a sight of the commissions of such justices, "shall receive the same records and processes of the said jus"tices under their seals, and keep them in the treasury, as the "manner is, so that the justices always do first take out the "estreats of the said records and processes against them, to send "to the exchequer as they were wont before."

As

14 H. 7. 15.

9 H. 7.9.

B. Commiss.

17. 24.

Crom. Jur. 126. b.

2 Hale, 34. 166.

As to the EIGHTH POINT, viz. Whether the same justices at the same time may execute both the commission of oyer and terminer, and also that of gaol-delivery.

Sect. 21. It seems certain at this day, that the same persons being authorized by both these commissions, may proceed by Summary, 160. virtue of the one in those cases wherein they have no jurisdiction

F. Cor. 47.

9 H. 7. 9.

4 Inst 162, 163.

Crom. Jur. 131.

Plow. 384. 2 Inst. 419.

2 Hale, 22, 23.

Reg. 123.

34 Ass. 8.
42 Ass. 5.
2 Inst. 419.

2 Hale, 10 to 22.

Reg. 123.

F. N. B. 110.

Reg. 125. 127.
F. N. B. 112,

113.

Reg. 126.

F. N. B. 112.

Reg. 126.

F. N. B. 112.

by the other, and execute both at the same time, and make up their records accordingly. But this doth not seem to have been clearly agreed in former times.

AND now I am to consider the nature of each of the abovementioned commissions in particular; and first of that of oyer and terminer, concerning which I shall endeavour to shew, FIRST, Its several kinds. SECONDLY, To what cases the jurisdiction given by it doth extend. THIRDLY, To whom, and on what occasions it is grantable.

As to the FIRST POINT. and gaol-delivery are of two

Commissions of oyer and terminer kinds: General and Special.

Sect. 22. At this day the common form of such a general commission is, to authorize the persons to whom it is directed, or three or four of them, of which number either such or such particular persons among them are specially appointed to be, to inquire by the oaths of lawful men, and by other means, of all treasons, felonies, and misdemeanors, being specially mentioned, and of all others, in such and such counties, and to hear and determine the same at certain days and places to be appointed by them, &c. For which purpose the king acquaints them, that he hath sent a writ to the sheriffs of such counties, commanding them to return a jury before them, at such days and places as shall be notified by them, in order to make inquiries of such offences, &c.

Sect. 23. It is observable, that the above-mentioned commission makes no mention of the suit of the party; but it seems to have been anciently the most common form of such commission to direct the justices to hear and determine offences, as well at the suit of the party as of the king.

Of special commissions of oyer and terminer, there are many precedents in our ancient law-books; as,

Sect. 24. First, For the inquiring and determining of some particularly enormous violence done to the party at whose complaint the commission is sued.

Sect. 25. Secondly, For inquiring and determining of trespasses done to the possessions of a bishopric while the temporalties were in the king's hands.

Sect. 26. Thirdly, For inquiring and determining of injuries offered to merchants, &c. under pretence that their ships were wrecked.

Sect. 27. Fourthly, For inquiring and determining of oppressions of under-sheriffs and bailiffs and other officers; after which

the