chopping-block, to the serjeant farrier, who brings hot irons, to sear the stump (34). the universities, 3. As in the preceding book (1) we mentioned the courts of 3. The courts of the two universities, or their chancellor's courts, for the redress of civil injuries; it will not be improper now to add a short word concerning the jurisdiction of their criminal courts, which is equally large and extensive. The chancellor's court of Oxford, (with which university the author hath been chiefly conversant, though probably that of Cambridge hath also a similar jurisdiction,) hath authority to determine all causes of property, wherein a privileged person is one of the parties, except only causes of freehold; and also all criminal offences or misdmesnors under the degree of treason, felony, or mayhem. The prohibition of meddling with freehold still continues: but the trial of treason, felony, and mayhem, by a particular charter is committed to the university jurisdiction in another court, namely, the court of the lord high steward of the university. cognizance of For by the charter of 7 Jun. 2 Hen. IV., confirmed among which have the rest, by the statute 13 Eliz. c. 29, cognizance is granted all indictments to the university of Oxford of all indictments of treasons, in- lars, &c.; surrections, felony, and mayhem, which shall be found in any of the king's courts against a scholar or privileged person (35); and they are to be tried before the high steward of the university, or his deputy, who is to be nominated by the chancellor of the university for the time being. But, when his office is called forth into action, such high steward must be approved by the lord high chancellor of England; and a special commission under the great scal is given to him, and others, to try the indictment then depending, according to the law of the land and the privileges of the said university. When therefore an indictment is found *at the assizes, or elsewhere, (t) See vol. III. page 83. (34) The 3 Hen. VII. c. 14, is wholly repealed by the 9 Geo. IV. c. 31, as is also the 33 Hen. VIII. c. 12, part of § 6 to § 18, relating to this subject. The two courts mentioned in the text may now, therefore, be considered as no longer existing. They had for many years been utterly disused. (35) A college barber at Oxford, though he resides out of college in the next note. [*278] against any scholar of the university, or other privileged person, the vice-chancellor may claim the cognizance of it; and when claimed in due time and manner, it ought to be allowed him by the judges of assize: and then it comes to be tried in the high steward's court. But the indictment must first be found by a grand jury, and then the cognizance claimed: for I take it that the high steward cannot proceed originally ad inquirendum; but only, after inquest in the common law courts, ad audiendum et determinandum (36). (36) As to the time at which the claim of cognizance is to be made, see Rei v. Agar, 5 Burr. 2820, where Lord Mansfield is reported to have said, "the established rule of law is, that cognizance must be claimed in the first instance, or at the first day." As to the mode in which the claim of cognizance is to be made, see Kendrick v. Kynaston, 1 Bla. Rep. 454. In Hayes v. Long, 2 Wils. 310, a claim of cognizance was refused to the university of Oxford, because the party, although a member, was not resident. In Leasinghy v. Smith, 2 Wils. 406, a claim of cognizance was refused to the same university, because it was neither claimed in due form, nor in due time. In the report of that case, to which the student is referred, much curious and interesting information upon this subject is to be found. Claim of cognizance by the univer sity of Oxford was allowed in an action of trespass against a proctor, a proproctor, and the marshal of the university, though the affidavit of the latter, describing him as of a parish in the suburbs of Oxford, only verified that he was then, and had been for fourteen years, a common servant of the university, called marshal, and that he was sued for an act done by him in discharge of his duty, and in obedience to the orders of the other two defendants, without stating that he resided in the university, or was matriculated; Thornton v. Ford, 15 East, 634. Cognizance of a plea of trespass sued against a resident member of the university of Cambridge, Much in the for a cause of action verified by affidavit to have arisen within the town and suburbs of Cambridge, over which the university court had jurisdiction, was allowed upon the claim of the vicechancellor, on behalf of the chancellor, masters, and scholars of the university, entered on the roll in due form, setting out their jurisdiction under charters confirmed by act of parliament, and averring that the cause of action arose within such jurisdiction; Brown v. Renourd, 12 East, 12. A claim of cognizance made by the vice-chancellor of the university of Oxford, in the vacancy of the office of chancellor by death, on behalf of the university, was allowed in a plea of trespass; Williams v. Brickenden, 11 East, 543. A member of the university of Oxford cannot be arrested by civil process out of the court of the chancellor of the university, unless such process issues in a suit commenced against him while resident within the precincts of the university; Perrin v. West, 5 Nev. & Man. 291. Upon the return to a habeas corpus cum causá to remove the body of a defendant, in custody under a warrant of the chancellor of the university of Oxford, the defendant will be discharged, unless it appears distinctly, and not merely by inference, that he was resident within the jurisdiction of the chancellor's courts at the commencement of the suit; Id. Ibid. Whether a defendant can be arrested out of the precincts of the university of Oxford, upon the warrant of the chancellor, quære; Id. Ibid. same manner, as when a peer is to be tried in the court of the lord high steward of Great Britain, the indictment must first be found at the assizes, or in the court of King's Bench, and then, in consequence of a writ of certiorari, transmitted to be finally heard and determined before his grace the lord high steward and the peers. a jury de me. When the cognizance is so allowed, if the offence be inter the trial is by minora crimina, or a misdemesnor only, it is tried in the dietate; chancellor's court by the ordinary judge. But if it be for treason, felony, or mayhem, it is then, and then only, to be determined before the high steward, under the king's special commission to try the same. The process of the trial is this: The high steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedels of the university, who thereupon return a panel of eighteen matriculated laymen, "laicos privilegio universitatis gaudentes:" and by a jury formed de medietate, half of freeholders and half of matriculated persons, is the indictment to be tried; and that in the Guildhall of the city of Oxford. And if execution be necessary to be awarded, in consequence of finding the party guilty, the sheriff of the county must execute the university process; to which he is annually bound by an oath. [*279] these courts used since the I have been the more minute in describing these proceedings, as there has happily been no occasion to reduce them have been disinto practice for more than a century past; nor will it per- reign of Car. I. haps ever be thought advisable to revive them: though it is not a right that merely rests in scriptis or theory, but has formerly often been carried into execution. There are many instances, one in the reign of queen Elizabeth, two in that of James the first, and two in that of Charles the first, where indictments for murder have been challenged by the vicechancellor at the assizes, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff's and bedel's panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that university. in criminal mary, and regulur. The proceedings WE are next, according to the plan I have laid down, to take Courts are, sum into consideration the proceedings in the courts of criminal jurisdiction, in order to the punishment of offences. These are plain, easy, and regular; the law not admitting any fictions, as in civil causes, to take place where the life, the liberty, and the safety of the subject are more immediately brought into jeopardy. And these proceedings are divisible into two kinds; summary, and regular: of the former of which I shall briefly speak, before we enter upon the latter, which will require a more thorough and particular examination. Summary proeerdings are by statute the common law is a stranger to them; they are oat a jury, and are dangerous accordingly. By a summary proceeding I mean principally such as is directed by several acts of parliament, for the common law is a stranger to it, unless in the case of contempts, for the conlucted with conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge: an institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent [*281] and troublesome attendances to try every minute *offence. These are, cise and revenue But it has of late been so far extended as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases. For, I. Of this summary nature are all trials of offences and frauds contrary to the laws of the excise, and other branches of the revenue which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the country; officers, who are all of them appointed and removable at the discretion of the crown. And though such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expence and delay of frequent prosecutions by action or indictment; and though such has usually been the conduct of the commissioners, as seldom, if ever, to afford just grounds to complain of oppression; yet when we again (a) consider the various and almost innumerable branches of this revenue: which may be in their turns the subjects of fraud, or at least complaints of fraud, and of course the objects of this summary and arbitrary jurisdiction; we shall find that the power of these officers of the crown over the property of the people is increased to a very formidable height (1). before justices II. Another branch of summary proceedings is that before II. Convictions justices of the peace, in order to inflict divers petty pecu- of the peace ; niary mulets, and corporal penalties, denounced by act of parliament for many disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justicebooks formerly cited (b), and which used to be formerly punished by the verdict of a jury in the court-leet. This change in the administration of justice hath however had some mischievous effects; as, 1. The almost entire disuse and contempt of the court-leet, and sheriff's tourn, the king's ancient courts of common law, formerly much revered and respected. *2. The burthensome increase of the business [282] of a justice of the peace, which discourages so many gentlemen of rank and character from acting in the commission; from an apprehension that the duty of their office would take up too much of that time, which they are unwilling to spare from the necessary concerns of their families, the improvement of their understandings, and their engagements in other services of the public. Though if all gentlemen of fortune had it both in their power, and inclinations, to act in this capacity, the business of a justice of the peace would be more divided, and fall the less heavy upon individuals which (a) See vol. I. page 319, &c. (b) Lambard and Burn. (1) For full particulars of the statutes relating to this subject, and the decisions thereon, (far too numerous for insertion here,) sec Paley on Convic tions, 2d ed. by Dowling, index, titles, Customs, Excise. And as to convictions generally, see the same work, and 2 Harrison's Digest, 1379 et seq., where |