Imágenes de páginas
PDF
EPUB

gery; 9, unlawfully and maliciously setting fire to crops of corn, grain, or pulse, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern; 10, bigamy, and offences against the laws relating to marriage; 11, abduction of women and girls; 12, endeavouring to conceal the birth of a child; 13, offences against the bankrupt laws; 14, composing, printing, or publishing blasphemous, seditious, or defamatory libels; 15, bribery; 16, unlawful combinations and conspiracies, except conspiracies or combinations to commit offences which such justices or recorder may have jurisdiction to try when committed by one person; 17, stealing, or fraudulently taking, injuring or destroying, records, or documents belonging to any court of law or equity, or relating to any proceeding therein; and 18, stealing or fraudulently destroying or concealing wills or testamentary papers, or any document or written instrument being or containing evidence of the title to any real estate, or any interest in lands. Also, by the 24 & 25 Vict. c. 96, s. 87, no misdemeanor against any of the preceding twelve sections (x) of that act shall be prosecuted or tried at quarter sessions. And by the 9 Geo. 4, c. 69, s. 9, the offence of entering into or being in land by night armed, for the purpose of taking game (y), is cognisable only by the justices of gaol delivery of the county or place in which the offence is committed, and the justices in sessions have no jurisdiction over it.

*Notwithstanding the restrictions which have been thus wisely [*356] imposed by the legislature on the judicial powers exercisable by justices at quarter sessions, there are still many ordinary offences and particular matters which belong properly to this jurisdiction, and ought to be prosecuted in this court (z). Some of these are proceeded upon by indictment; and others in a summary way by motion and order thereupon; which order may for the most part, unless guarded against by particular statutes, be removed into the court of queen's bench, by writ of certiorari facias, and be there either quashed or confirmed. The court of quarter sessions has also an appellate jurisdiction, which has been entirely conferred by statute, in relation to summary convictions and orders made by justices.

The records or rolls of the sessions are committed to the custody of a special officer denominated the custos rotulorum, who is always a justice of the peace; and among his fellow justices of especial consequence and standing (a). The nomination of the custos rotulorum (who is the principal civil officer in the county, as the lord lieutenant is the chief in military command) is by the queen's sign manual: and to him belongs the nomination of the clerk of the peace (b), who acts ministerially at quarter sessions and is removable for misconduct by the justices (c).

Even prior to the statute 5 & 6 Will. 4, c. 76, there were in most cities and towns corporate quarter sessions held before the mayor and justices for the trial of minor offences committed within the municipal boundaries; and, in performing their judicial duties, these magistrates were usually assisted by a

(x) See these sections, ante, pp. 303–7. (y) Ante, p. 292.

(2) As to the jurisdiction of the quarter sessions in cases of bastardy, see now the 4 & 5 Will. 4, c. 76, ss. 72-75, and 2 & 3 Vict. c. 85.

(a) Lambard, Eirenarcha, bk. 4, c. 3.

(b) Stat. 37 Hen. 8, c. 1, s. 3; 1 W. & M. sess. 1, c. 21, s. 4.

(c) 1 Will. & M. sess. 1, c. 21. s. 6, extended by 27 & 28 Vict. c. 65, of which s. 3 gives a right of appeal to the lord chancellor.

[*357]

barrister, who acted as assessor * to the mayor (d). But by the act just named (amended by the 6 & 7 Will. 4, c. 105, and 6 & 7 Vict. 3. 89), important alterations have been made in the constitution of borough courts of quarter sessions. The 103rd section of this act empowers the crown, on the petition of the council of any borough, setting forth the matters therein mentioned, to grant that a separate court of quarter sessions of the peace shall be thenceforward held therein presided over by a barrister of not less than five years' standing, as recorder, who is to be ex officio a justice of the peace for the said borough; and sect. 105 directs that such recorder shall hold, once in every quarter of a year at least, a court of quarter sessions of the peace for the borough; and enacts, that his court shall be a court of record, and shall have cognizance of all offences and matters cognizable by any court of quarter sessions of the peace for counties; except that the recorder may not make a county rate, nor grant alehouse licences, nor exercise any of the powers specially vested by the act in the council of the borough. A subsequent statute, 1 Vict. c. 78, s. 49, empowers the crown to grant a charter of incorporation to any town or borough not previously incorporated, and to extend to the inhabitants thereof all the powers and provisions of the 5 & 6 Will. 4, c. 76.

VIII Court of the coroner.

VIII. The court of the coroner (e) is a court of record, to inquire, when any one dies in prison, or comes to a violent or sudden death, by what manner he came to his end. And this the coroner is only entitled to do super visum corporis (f). Of the coroner and his office we treated at large in a former volume (g), among the public officers * and [* 358] ministers of the kingdom; and therefore shall not here repeat our inquiries; only mentioning his court, by way of regularity, among the criminal courts of the nation.

Although the three courts next specified have ceased to be of practical importance, they may be thought to deserve notice in this list of our criminal tribunals.

IX. Sheriff's tourn.

IX. The sheriff's tourn (h), or rotation, was a court of record, held twice every year within a month after Easter and Michaelmas, before the sheriff, in different parts of the county; being indeed only the "turn" of the sheriff to keep a court leet in each respective hundred (i): this therefore was the great court-leet of the county, as the county court was the court-baron: for out of this, for the ease of the sheriff, was taken:

(d) Dickinson's Quarter Sess. (edit. by Talfourd), p. 4.

As to the petty sessions and stipendiary magistrates, post.

(e) 4 Inst. 271; 2 Hale, P. C. 53; 2 Hawk. P. C. 42.

(f) As to the power of the coroner to hold inquests where the cause of death arose out of his jurisdiction, and the proceedings in case of a verdict of murder or manslaughter found thereon, see stat. 6 & 7 Vict. c. 12. (g) Ante, vol. i.

(h) 4 Inst. 259; 2 Hale, P. C. 69; 2 Hawk. P. ('. 55.

(i) Mirr. c. 1, s. 13, 16. In Colebrooke v. Elliott, 3 Burr. 1860, Ld. Mansfield says: "The tourn and the leet derived out of it were anciently the principal courts of criminal jurisdiction; coeval with the establishment of the Saxons here. There were no traces of them, either amongst the Romans or Britons, but the activity of those courts is marked very visibly both amongst the Saxons and the Danes."

X. The court-leet, or view of frankpledge (k), being a court of record, held once in the year and not oftener (7), within a particular hundred, lordship, or manor before the steward of the leet: a court granted by charter from the crown to the lord of such hundred or manor.

X. Court-leet or view of frankpledge.

Its

original intent was to view the frank pledges, that is, the freemen within the liberty; who, according to the institution of the Anglo-Saxons, were all mutually pledges for the good behaviour of each other. Besides this, the preservation of the peace, and the chastisement of divers minute offences against the public good, were the objects both of the court-leet and the sheriff's tourn; which had exactly the same * jurisdiction, one being [* 359] only a larger species of the other, extending over more territory, but not over more causes. All freeholders within the precincts, and all persons commorant therein, with certain exceptions, were obliged to attend them, to appear upon the jury, if required, and to make their due presentments. It was also anciently the custom to summon all the king's subjects, as they respectively grew to years of discretion and strength, to come to the courtleet, and there take the oath of allegiance to the king. The other general business of the leet and tourn, was to present by jury all crimes whatsoever that happened within their jurisdiction; and not only to present, but also to punish, trivial misdemeanors, as trivial debts were recoverable in the court baron, and county court: justice, in these minuter matters of both kinds, being brought home to the doors of every man by our ancient constitution. Thus in the Gothic constitution, the hæreda, which answered to our court-leet, "de omnibus quidem cognoscit, non tamen de omnibus judicat” (m). The objects of their jurisdiction were therefore unavoidably very numerous: being such as in some degree, either less or more, affected the public weal, or good governance of the district in which they arose; from common nuisances and other material offences against the king's peace and public trade, down to eaves-dropping, waifs, and irregularities in public common. But both the tourn and the leet have been for a long time in a declining way: a circumstance, owing in part to the discharge granted by the statute of Marlbridge, 52 Hen. 3, c. 10, to all prelates, peers, and clergymen, from their attendance upon these courts; which occasioned them to grow into disrepute. And hence it is that their business has for the most part gradually devolved upon the quarter sessions; which it is particularly directed to do in some cases by statute 1 Edw. 4, c. 2.

[* 360]

* XI. The court of the clerk of the market (n) was formerly incident to every fair and market in the kingdom, to punish misdemeanors therein; as a court of pie poudre was to determine all disputes relating to private or civil property. The object of this jurisdiction (0) was principally the cognizance of weights and measures, to try whether they were according to the true standand thereof, or no: a matter which, as formerly mentioned (p), is now within the province of

XI. Court of clerk of the market.

other officers.

(k) 4 Inst. 261; 2 Hawk. P. C. 72.

() Mirror, c. 1, s. 10.

(m) Stiernh. de Jur. Goth, 1. 1, c. 2. (n) 4 Inst. 273.

(0) See stat. 17 Car. 2, c. 19; 22 Car. 2, c.

8; 23 Car. 2, c. 12.

(p) Ante, vol. i.

Other criminal courts (q) of greater dignity than some of those [*361] already noticed, but of a more confined and partial jurisdiction, formerly existed in this country, which now possess merely historic interest; reference may however properly be made to

XII., the courts of the universities of Oxford and Cambridge, which exerXII. Courts of cise a certain criminal jurisdiction in regard respectively to their the universities. own members, and of which each is, in the absence of the vicechancellor, presided over by an assessor learned in the law (r).

Courts for ad

*

Courts for administering criminal justice are, in accordance with our law, public and open courts (s),-this rule being subject to some ministering jus- few qualifications which on grounds of decency or extice are public and open. pediency have been admitted. Judges, for example, when holding the assizes, have a discretionary power to order that women

(q) Of which may be mentioned :

a

1. The court of chivalry, which was military court, or court of honour, when held before the earl marshal only, was also a criminal court, when held before the lord high constable of England jointly with the earl marshal. And then it had jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it. But the criminal, as well as civil part of its authority, is fallen into entire disuse: there having been no permanent high constable of England (but only pro hac vice at coronations and the like) since the attainder and execution of Stafford, Duke of Buckingham, in the thirteenth year of Henry VIII.; the authority and charge, both in war and peace, being deemed too ample for a subject: so ample, that when the chief justice Fineux was asked by King Henry VIII., how far they extended, he declined answering; and said, the decision of that question belonged to the law of arms, and not to the law of England. (4 Inst. 123; 2 Hawk. P. C. 9. Duck de Authorit. Jur. Civ.)

2. The court of the lord steward, treasurer, or comptroller of the king's household, was instituted by statute 3 Hen. 7, c. 14, to inquire of felony by any of the king's sworn servants, in the cheque roll of the household, under the degree of a lord, in confederating, compassing, conspiring, and imagining the death or destruction of the king, or any lord or other of his majesty's privy council, or the lord steward, treasurer, or comptroller of the king's house. The inquiry, and trial thereupon, was by a jury according to the course of the common law, consisting of twelve sad men (that is, sober and discreet persons) of the king's household. 4 Inst. 133. The stat. 3 Hen. 7, c. 14, was repealed by the 9 Geo. 4, c. 31, and the jurisdiction of this court has accordingly become obsolete.

3. The court of the lord steward of the king's household, or (in his absence) of the treasurer, comptroller, and steward of the marshalsea, were erected by stat. 33 Hen. 8,

[*362]

c. 12, with a jurisdiction to inquire of, hear, and determine, all treasons, misprisions of treason, murders, manslaughters, bloodshed, and other malicious strikings; whereby blood might be shed in, or within the limits (that is, within two hundred feet from the gate) of any of the palaces and houses of the king, or any other house where the royal person should abide. The proceedings in this court also were by jury, both a grand and a petit one, as at common law, taken out of the officers and sworn servants of the king's household. The form and solemnity of the process, particularly with regard to the execution of the sentence for cutting off the hand, which was part of the punishment for shedding blood in the king's court, are minutely set forth in the said statute of 33 Hen. 8, and the several offices of the servants of the household in and about such execution are described: from the serjeant of the woodyard, who furnished the chopping-block, to the serjeant farrier, who brought hot irons to sear the stump. (4 Inst. 133; 2 Hale, P. C. 7.) The statute of 33 Hen. 8 was, so far as concerns the punishment specified, repealed by the 9 Geo. 4, c. 31, and the jurisdiction of the court last mentioned has fallen into desuetude.

(r) The Chancellor's Court of the University of Oxford is now regulated under the provisions of the stats. 17 & 18 Vict. c. 45; 25 & 26 Vict. c. 26, s. 12.

As to the criminal jurisdiction of the ViceChancellor of Cambridge, see Kemp v. Neville, 10 C. B. N. S. 523.

(8) Sir John Hawles (S. G. temp. Will. III.) in his remarks upon the trial of Cornish (11 St. Tr. 455, 460), says the reason why "all matters of law are or ought to be transacted publicly" is that any person may as amicus curie inform the court concerning the matter to be tried, in order that justice may be done and truth may be discovered. Hence, he adds, there is an invitation given to all persons who can give such information to come forward and they shall be heard.

and children shall leave the court pending the investigation of certain cases; or that persons who have been subpoenaed as witnesses shall, until summoned or called for, absent themselves from court to prevent collusive evidence being given and perjury perhaps being committed.

The question whether the court of the coroner is to be regarded as an open and public court, has been solemnly discussed, and it has been judicially observed (t) that the inquiry concerning the death of a person "ought for the purposes of justice in some cases to be conducted in secresy; it is a preliminary inquiry which may or may not end in the accusation of a particular individual. It may be requisite that a suspected person should not in so early a stage be informed of the suspicion that may be entertained against him, and of the evidence on which it is founded, lest he should elude justice by flight, by tampering with witnesses, or otherwise." Who, then, is to decide whether privacy be necessary or proper? The coroner alone; and even in cases where absolute privacy may not be required, the exclusion from the room in which the inquest is held of particular persons, may be necessary or proper (u).

In answering the question, however, whether a particular court is to be deemed a public and open court, not only general considerations of expediency, but express enactments may have to be noticed; for instance, the legislature has thought fit to require publicity where a justice is engaged in an investigation with a view to summary conviction (x), but not so where the investigation is preliminary merely to commitment. For by the 11 & 12 Vict. c. [*363] 43, s. 12 (an act to facilitate the performance of the duties of justices of the peace out of sessions with respect to summary convictions and orders), it is enacted as follows:-That the room or place in which the justice shall sit to hear any such complaint or information as in that statute specified "shall be deemed an open and public court to which the public generally may have access, so far as the same can conveniently contain them;" and under the 18 and 19 Vict. c. 126, every petty sessions for the purposes of that act shall be an open public court (y). On the other hand, by the 11 & 12 Vict. c. 42, s. 19, it is enacted that the room or building in which the examination of witnesses is taken preliminary to the commitment of an accused person under the provisions of that statute, "shall not be deemed an open court for that purpose, and it shall be lawful for the justice in his discretion" to order that no person shall have access to, or be, or remain in such room or building without the consent or permission of the justice, "if it appear to him that the ends of justice will be best answered by so doing." The legislature thus enacting have done so conformably to the above views judicially expressed, for in preliminary investigations as to the commission of crime publicity may often defeat the very end in view; although where investigation is to be immediately followed by adjudication, the court in which such inquiry is conducted ought clearly to be an open and a public court. (725)

(t) Per Lord Tenterden, C. J., Garnett v. Ferrand, 6 B. & C. 611.

(u) Judgm. 6 B. & C. 626-8.

(x) Post, chap. xvii.
(y) Sect. 9.

(725) In the United States, when the offense is against the general government, the Constitution provides thnt the trial shall be "public." U. S. Const. Amend., art. 6. And there is a similar provision in the Constitutions of several of the States, as to crimes against the State

« AnteriorContinuar »