the king may send a writ to the high-sheriff, commanding him, as far as in him lies, to remove such persons from their offices till such inquiries be made. Sect. 28. Fifthly, For inquiring into the want of reparations Reg. 127, 128. of sea-walls, ditches, gutters, sewers, bridges, &c. Sect. 29. Sixthly, For hearing and determining the right and title of certain persons claiming an office, &c. Yet we find in 4 Burn, 196. F. N. B. 113. 1 Bac. Ab. 654. Dyer, that the defendant sued before such commissioners de- Crom. Jur. 132. murred to the jurisdiction of the court; and it seems not to be Dyer, 175. clearly settled there whether such commission be good. Sect. 30. It is observable, that some of these special commis- 2 Inst. 419. sions are mentioned to be granted at the complaint of the parti- Reg. 123. 125. cular persons supposed to be aggrieved; others at the complaint 127. of divers persons in general, without naming them, and others without any complaint at all. Sect. 31. Also there are precedents of other commissions of like nature granted on particular occasions; but such special commissions having been of late much disused, I shall refer the reader for a more exact knowledge of them to The Register and Fitzherbert's Natura Brevium. As to the SECOND POINT, viz. To what cases the jurisdiction given by the commission of oyer and terminer doth extend. Sect. 32. It is generally said, that the justices have no power B. Commiss. from it to proceed against any persons, but those who are 24. indicted before themselves; because the words of it are, that 4 Inst. 164. they shall" inquire, hear, and determine;" by which it seems to 12 Co. 32. Summary, 161. be implied, that they must inquire of an offence before they pro- 2 Hale, 21. 27. ceed to hear and determine it: But this reasoning, depending Skin. 32. wholly on the wording of general commissions, which are made in such form, doth by no means prove that a special commission of oyer and terminer, reciting an indictment of a particular person, and authorizing the justices to send for and proceed upon it to try the offender, is not good: and accordingly we find, that the attainder of Dudley, afterwards Earl of Liecester, by virtue Crom. Jur. 131, of such a commission, was not objected against on this account, 132. in the arguments concerning it, reported in Plowden's Commen- 386, &c. taries. Plow. 385, 4 Inst. 164. C. Jac. 538. Sect. 33. It seems to be (a) agreed, that where a statute pro- (a) Dy. 236. hibits a thing, and doth not appoint in what court it shall be Crom. Jur. 382. punished, the offender may be indicted before justices of oyer and terminer, because the king hath a prerogative of suing in what court he will. But it hath been (b) adjudged, that if such (b) Dy. 236. statute appoint that the offence shall be determined in any of the 6 Co. 19. 30. king's courts of record, it can be proceeded against only in one Cro. El. 737. of the courts of Westminster-hall; because those being the C. Car. 146. highest courts of record, shall be intended to be only spoken of Salk. 176. secundùm excellentiam; and if the act should be taken literally to intend any court of record whatsoever, the sheriff's tourn, court leet, and pie-powders, and all other inferior courts of record, would be within the purview of it: and it is farther reasonable to 4 Inst. 164, 165. Summary, 161. 2 Hale, 29, 30. contra. to construe the statute to extend to the said courts of Westminster only, because the king's attorney always attends there, whose office it is, if the defendant plead a special plea, to make a replication; yet both Sir Edward Coke and Sir Matthew Hale seem to be of opinion, that on a statute so worded, the prosecution may be in any court of oyer and terminer. And indeed, seeing the above-mentioned limitation of such suits to courts of record is no more than the law would have implied if it had not been expressed, it is agreed, that if it had not been expressed the suit might be in any court of oyer and terminer, it may be reasonably argued, that it may be brought in any such court notwithstanding F. Essoin, 173. such limitation, according to the common maxim, quòd expressio eorum que tacitè insunt nihil operatur; especially considering that the court holden before justices of oyer, &c. is a court of record of a very high nature, and much regarded by the law. As to the objection, that the construction contended for would extend such suits to all inferior courts of record, it may be answered, that it would only extend them to such courts of a general jurisdiction wherein suits of like nature may properly be brought, and not to courts of a limited authority, instituted for special purposes, and confined either to offences at the common law, as the court-leet and the sheriff's tourn are, or to contracts of a special nature, as the court of pie-powders is. As to the objection, that it is most reasonable to construe the statute to intend only such courts wherein the king's attorney attends, the same may be said in relation to prosecutions on statutes which mention no court at all wherein they shall be brought; and yet it seems to be certain, that such prosecutions may be brought in any court of oyer and terminer. Neither do I find any reason assigned, why the king's prerogative, of choosing in what court he will commence a suit, should be restrained without express words in this case, where courts are mentioned in general, more than in the others, where they are not mentioned at all. Besides it ought to be considered, that if such prosecutions are to be confined to the courts of Westminster, no offence against any such statute in any county but that wherein the King's Bench sits, could be indicted at all; for it is certain, that no offence can be inquired of out of the county wherein it was committed. Also since 21 Jac. 1. c. 4. set forth more at large in the chapter concerning Informations, which restrains all prosecutions whatsoever on penal statutes to their proper counties (as the construction of the said statutes is now settled), if suits on such statutes could be brought only in Westminster-hall, no offences out of Middlesex could be prosecuted at all. Dy. 236. As to the THIRD POINT, viz. To what persons, and on what occasions, commissions of oyer and terminer are grantable. Sect. 34. It is enacted by the statute of Westminster the Second, c. 29. " that a writ of trespass (ad audiendum et termi"nandum) from henceforth shall not be granted before any jus tices, except justices of either bench, and justices in eyre, "unless it be for a heinous trespass, where it is necessary to "provide speedy remedy, and our lord the king of his special "grace hath thought it good to be granted." Sect. Sect. 35. And it is further enacted by 2 Edw. 3. c. 2. " that "oyers and terminers shall not be granted but before justices of "the one bench or the other, or the justices errants, and that for "great hurt or horrible trespasses, and of the king's special grace, after the form of the statute above-mentioned." 66 Sect. 36. Also it is enacted by 34 Edw. 3. c. 1. " that writs "of oyer and terminer be granted according to the statute "thereof made, and that the justices which shall be thereto assigned, be named by the court and not by the party." 66 Sect. 37. It may perhaps be argued from the general words of these statutes, that no commission of oyer and terminer ought to be granted to any, but such justices as therein mentioned, and on such special occasions. And Sir Edward Coke, in his com- 2 Inst. 418. ment on the said statute of Westminster the Second, does not shew whether all such commissions in general are meant to be restrained by it, or such only as are of a particular nature; yet if the intention of the said statutes be fully examined, it seems reasonable to confine the purview of them to special commissions of oyer and terminer, granted at the complaint of particular persons, upon some great injury suggested to have been done to them; not only for that such special commissions, for redressing Thel. Dig. 1, 2. of a particular grievance at the suit of the party, seem to come Ante, s. 1. more properly and generally under the notion of writs, than 2 Inst. 419. general commissions issued by the king as the common dispenser of justice to his people, without any particular application from, or regard to, any particular person; but also because there may be a mischief to the subject from such special commissions, which cannot be feared from general ones; for the party who sues out such a special commission, may thereupon take out a writ to the sheriff, commanding him to arrest the goods supposed to be taken wrongfully away, and to keep them in safe custody Reg. 126. 177. till some order be made concerning them by the justices assigned 2 Inst. 419. to determine the matter, which may be very inconvenient to the person complained of. Neithes can it be imagined, that the statute intended to restrain general commissions to enormous trespasses, which could not but hinder the due execution of justice, which requires the punishment of all kinds of misdemeanors, of which such commissioners are the usual and proper judges. But it is reasonable indeed, that such special commissions should not be granted but upon urgent occasions; and accordingly we Reg. 124, 125. find precedents for the superseding of them, where the king has 12 Ass. 21. been informed, that he was imposed upon in granting them on a suggestion that the injury complained of was of a heinous nature, where in truth it was but a slight inconsiderable trespass. For other particulars concerning the proceedings of justices of oyer and terminer, see the chapter concerning Approver, and the chapter concerning Process against the Jury. F. N. B. 112. CHAP. CHAP. VI. OF THE COURT OF GOAL DELIVERY. 4 Comm. 267. FOR the better understanding of the nature of the commission of Gaol-delivery, I shall consider, Ch. 1. 4 Inst. 168. Crom. Jur. 125. 2 Hale, 32. FIRST, What ought to be the form of it. SECONDLY, What jurisdiction the justices authorized by it have by the common law. THIRDLY, What by statute. FOURTHLY, In what place they ought to hold their sessions. Sect. 1. As to the FIRST POINT. Having already shewn that all judicial commissions must be agreeable to ancient precedents, I shall only shew in this place, the purport of the most usual commission of gaol-delivery, which is a patent in nature of a For the form of letter from the king to certain persons, appointing them his justhe commission tices, or two or three of them, of which number either such or of gaol-delivery, vide Appendix such a particular person among them is specially required to be, to 4th Commen- and authorizing them to deliver his gaol, at such a place, of the prisoners in it; for which purpose it commands them to meet at such place, at the time which they themselves shall appoint, and informs them, that for the same purpose the king hath commanded his sheriff of the same county to bring all the prisoners of the gaol, and their attachments, before them, at such day to be appointed by them. tary, sect. 1. Sum. 158. As to the SECOND POINT, viz. What jurisdiction justices of gaol-delivery have by the common law. Sect. 2. It seems to be clear, that they may by common law 2 Hale, 32, 33. proceed upon any indictment of felony or trespass, found before 4 Inst. 168, 169. B. Cor. 179. 12 Co. 32. (a) Cro. Eliz. 90. 179. 1 And. 111. other justices, against any person in the prison mentioned in their commission, and not determined; and therefore these words in the statute of 4 Edw. 3. c. 2. " that the justices assigned to "deliver the gaols shall have power to deliver the same gaols of "those that shall be indicted before justices of the peace," seem only to be in affirmance of the common law. And herein the authority of these justices differs from that of justices of oyer and terminer; who regularly can proceed only against persons indicted before themselves, as hath been more fully shewn in the precedent chapter, section 32. Sect. 3. But it is said in some (a) books, that justices of gaoldelivery, as such, have no power to take any indictment. But B. Commiss. 24. the common opinion, that they have such power, seems much more agreeable to reason; for (b) surely it cannot but be implied in their commission to deliver prisons of their prisoners, that they must have authority to make such deliverance by due course of law, which cannot be without a proclamation if there be no prosecution, or a proper trial if there be one, in order to which F. Cor. 47. there there must be an accusation of record, without which the prisoner cannot be arraigned or tried. 2 Roll. 12. Sect. 4. Also it hath been (a) holden, that justices of gaol- (a) S. P. C. 183. delivery, as such, have no power to deliver the gaol of persons Crom. Jur. 28. committed for high-treason, perhaps for this reason, because this F. Cor. 47. being a crime of so high a nature, and against the king himself, 1 And. 111. shall not be included in the general words of a commission, nor tried without the king's special direction. And this opinion seems to be much favoured by the preamble of the statute of 3 Hen. 5. c. 7. wherein it is recited, That the punishment of "counterfeiting money (which is a species of treason) pertaineth "not to any judges of the realm, but to the king's justices be"fore himself, or to special commissioners thereto assigned;" and thereupon it is enacted, "That justices of assize shall have "power by the king's commission to hear and determine the "offence above-mentioned." Yet the contrary opinion is not only warranted by very great (b) authorities, but also it seems (b) 4 Inst. 169. more agreeable to reason; for since the words of the commission Sum. 159. ? Hale, 35. are general, and include all prisoners alike without any exception, 1 why should those who are accused of treason be construed to be out of the meaning of them more than others? especially considering, that the greater the crime is for which a man is imprisoned, the greater hardship it is for him to lie under the terror of a prosecution for it, without being admitted to an opportunity of clearing his innocence; and the statute of 1 Edw. 6. c. 7. which authorizes subsequent commissioners of gaol-delivery to give judgment of death against such as were found guilty before other commissioners of gaol-delivery, of treason, &c. and reprieved before judgment, clearly supposes such justices to have power in treason as well as in other cases. And. 112. Part sect. 4. S. P. C. 64. Sect. 5. It seems clear, from the words of the commission, F. Cor. 77. that these justices have nothing to do with any persons not in custody of the prison mentioned in it, except in some special cases; for if part only of those who were accomplices to the same felony be in such prison, and other part of them out of it; such justices, for the necessity of the case, may receive an appeal against those who are out of the prison, as well as those who 9 H. 4. 1. are in it, which appeal, after the trial of such prisoners, shall be 4 Co. 47. removed into the King's Bench, and process shall issue from thence against the rest. But if those out of prison should be omitted in such appeal, they could never be put into any other, because there can be but one appeal for one felony. Also it is said both by (c) Staunford and (d) Hale, that such justices may (e) S. P. C. 64, receive an appeal by bill against one let to bail. But I cannot 65. 159, 160. (d) Sum. 179. find any authority in the (e) books cited by them for that purpose, Dyer, 201. to warrant this opinion (1); for although it be true, that the Qu. 4 Inst. 169. court of King's Bench may receive an appeal by bill, against one (e) 32 H. 6. 4. for whom bail is filed, as being in custodiâ mareschalli, yet this 9 H. 4. 2. seems to depend on the particular usage of that court. And I 13 H. 4. 10. (1) It is said, 2 Hale, 35. that justices of gaoldelivery may receive an appeal by bill against a person being in custody; and take an indictment do against one admitted to bail, for which 21 Hen. 7. |