REG.

v.

HERFORD,

[120]

[ *121 ]

*

This writer is said, on the title page, to be authenticated by
Selden. The statute "De Officio Coronatoris," 4 Edw. I. stat. 2,
is declaratory, and merely in affirmance of the common law.
It does not specify the particular jurisdiction of the coroner now
in question, to hold inquests on fires; but it mentions as the
duty of these officers, in addition to viewing dead bodies, "quod
accedant ad" "domorum fractores, vel ad locum ubi dicitur
thesaurum esse inventum." Besides, the statute ends very
abruptly, and is probably imperfect; omitting, as it does, to
mention so well defined a part of the coroner's duty as the
holding an inquest on the bodies of those who die in gaol. *
In order therefore, to ascertain what were the power and duties
of the coroner at common law, reference must be made to the
old authorities. First of these, in point of antiquity, is Andrew
Horne's Mirror of Justices.
* In cap. 1, sect. 13, of the
Mirror, translation by Hughes, pages 38 to 48 (ed. 1768), en-
titled "Of the Office of the Coroners," there is a very full account
of the coroner's duties and jurisdiction. The section commences
thus: "To coroners anciently were enjoined the keeping of
the pleas of the Crown, which extend now but to felonies and
adventures. There are two kinds of coroners, general and
special. To the office of general coroners it belongeth to receive
the appeals of all the county, of felonies done within the year.
It then states, that "special coroners are coroners of liberties,
and of privileged places," and proceeds: "To the office of one
and the other it doth belong, to view the carcases of the dead
by felony, or by mischance; or to see the burnings and the
wounds, and the other felonies, that is to say, every one in his
bailiwic; and to see treasure trove and wrecks of the sea, and
to take the acknowledgments of felony, and to give the abjura.
tion to flyers to sanctuary, *and to take the inquests of felonies
happening within their bailiwics." Again, at page 42, it is
stated: "Also, they used to inquire of burnings, and who put
to the fire, and how; and whether it were by felony or mis-
chance; and if of felony, of whose felony, and who were the
principal, and who the accessaries, and who were the threateners
thereof."

(BLACKBURN, J.: Can you produce any reported instance of an inquest held on a fire by a coroner ?)

No such instance has been discovered; probably because coroners, since the creation of justices of the peace by stat. 1 Edw. III. c. 16, allowed the justices to exercise their functions in this respect. Mere disuse, however, would not deprive the coroners of their jurisdiction. [He then cited Bracton, lib. 3, folio 121,

cap. 5; Fleta, lib. 1, c. 18, § 5, p. 20 (ed. 1647, by Selden); and Britton, c. 1, sect. 3, p. 11, and sect. 32, p. 25 (Kelham's translation, 1762), and proceeded:] These authorities show that Lord Coke did not accurately state the law when he laid down, in 4 Inst. 271, that "the coroner can inquire of no felony but of the death of man, and that super visum corporis."

(BLACKBURN, J.: In the Liber Assisarum, 27 Edw. III. fol. 141, pl. 55, it was held that the coroner has no *power to entertain any indictment except super visum corporis. And in Year B. 35 Hen. VI. pl. 33 (B), fol. 27, the law is stated to the like effect as to all coroners, except those in Northumberland, by the custom of which county the coroners may take cognizance of all felonies.)

*

In Garnett v. Ferrand (1) BAYLEY, J. said, "At common law
the coroner had power to hear and determine felonies," "there-
fore his Court was analogous to the ordinary courts of law, but
his powers were abridged by Mag. Car. c. 17."
* Magna
Charta, c. 17, did not, as Lord Coke erroneously supposes, take
it away.
It is thereby enacted, "Nullus vice-comes constabu-
larius coronator vel alii Ballivi nostri teneant placita corona
nostra." But the pleas of the Crown there intended are matters
in which there is both accusation and answer by the accused,
neither of which takes place on an inquisition before the coroner.
The inquisition does not become an indictment until it is signed
and returned.

(BLACKBURN, J.: Does not the fact, that no trace of the exercise by the coroner of the jurisdiction for which you contend can be discovered, tend to show that cap. 17 of Magna Charta, which is certainly capable of such a construction, took it away?) As has been already observed, mere desuetude would not do away with the jurisdiction, nor can that circumstance affect the construction of the statute.

(WIGHTMAN, J.: Could the coroner take any fee for holding an inquest on a fire ?)

Probably not; but when the office was first created, he could take no fees at all (2).

Mellish and Fearnley, contrà:

The question is concluded by authority. Coke, Hale, and all subsequent writers on the subject, except Hawkins, are clearly of opinion that a coroner has no jurisdiction to inquire into. (1) 30 R. R. 467, 474 (6 B. & C. 611, by Lord Coke (2 Inst. 176) to be in 620). affirmance of the common law. (2) See Stat. Westm. 1, c. 10, declared

REG.

ፖ.

HERFORD,

[122]

[ *123]

[ 124 |

anything except the death of man, and that super visum corporis.
Lord Coke, in his comment on cap. 17 of Magna Charta, clearly
implies that, in his opinion, the *coroner had no further juris-
diction, even before that statute (1). *
There is some diffi-
culty in distinguishing between the ancient jurisdiction of the
coroner in appeals and in indictments. The probability, how-
ever, is, that appeals were not brought in the court of the
coroner, but in the county court, which was distinct from it, and
of which both the sheriff and the coroner were members; and
that in the county court appeals of all other felonies than the
death of a man were taken before the sheriff; and appeals of
felonies relating to the death of a man, before the coroner.
Inquests on the dead, on the other hand, were taken in the
coroner's separate court only. It is also extremely *doubtful
whether or not, in appeals of felony, the coroner was assisted
by a jury. The statute De Officio Coronatoris, 4 Edw. I. stat. 2,
perhaps leaves it an open question whether the coroner anciently
had the jurisdiction contended for by the other side. But that
statute is a mere abridgment of so much of Bracton's work as
treats of the coroner's jurisdiction; and Bracton nowhere says
that he has jurisdiction to inquire as to the burnings of houses.
Apparently, therefore, the coroner, in Henry III.'s time, had
no such jurisdiction. It is true that Bracton, in the passage
cited on the other side, says that the coroner is to go
domorum fractiones," as well as to people dead or wounded;
but it is clearly meant that he is to go there merely in order to
see if a death has been thereby caused; and that he is to hold
an inquiry only "de homine occiso," if, when he gets to the
spot, he finds that a man has been killed. The same author,
lib. 3, folio 122, c. 7, “De Officio Coronatorum in raptu virgi-
num," shows that the coroner's jurisdiction in that respect
limited to hearing an appeal, and that he is not to hold an
inquest. The jurisdiction is founded, only, “si quis ab aliquâ
de raptu fuerit appellatus, et factum recens fuerit; " in which
case "attachietur appellatus." Of the same nature is the
coroner's jurisdiction "de pace et plagis; as appears
the following cap. 8. * Fleta, who in other respects agrees
with Bracton, omits to mention a visit ad domorum fractiones as
part of the coroner's duty. Britton's is a very brief work, and
not of such authority as the others. Its language is wider, but
states the law too loosely and generally. The Mirror of Justices
is of no authority whatever. It is not even known with certainty
when it was written; and it is very probably a treatise on the
The book contains so many gross
(1) 2 Inst. 32.

laws of the Saxons.

*

66

from

in

accuracies relating to the jurisdiction of coroners, that no one passage in it can be considered more reliable than another. * * Lord Coke commenting on the Statute of Marlebridge, 52 Hen. III. c. 24, mentions, as one of the mischiefs which it was passed to prevent (1), "That when any robbery, burning of houses, homicide, or other felony, was done, the sheriffe, for so much as pertained to him, or the coroner in case of the death of man, would summon many townships, and sometimes a whole hundred, where twelve would serve to make inquiry." And this construction, reddendo singula singulis, has always been put upon the statute.

COCKBURN, Ch. J.:

*

*

I am of opinion that this rule must be made absolute, for that a coroner acts beyond the proper limits of his office and jurisdiction in holding an inquest upon a fire. We have the authority of three of the very greatest expositors of the law of England, to the effect that the power of a coroner to hold inquests is limited to cases of homicide, or violent death, and that the inquest must be held super visum corporis. This is clearly laid down both by Lord Coke and by Lord Hale, in the plainest terms; and is adopted by Chief Baron Comyns without the expression of the slightest doubt on the subject. In the absence of an express enactment to the contrary, these authorities are amply sufficient to show that a coroner does not possess the jurisdiction which has been contended for. Besides, there appears to have been, from the time of Edw. I., certainly, if not from an earlier period, down to within the last few years, a uniform abstinence by coroners from the exercise of such a jurisdiction. Had its exercise formed part of their duties, they would surely not have allowed it thus to fall into abeyance. Independently of these considerations, the Acts of the Legislature from time to time, with reference to coroners, must be regarded as, to some extent, an exposition of the law on the subject. For instance, coroners were at first prohibited from taking fees; but in process of time, when men of lower position than had theretofore been the case, came to fill the office, the Legislature, by several statutes, commencing with stat. 3 Hen. VII. c. 1, provided for their remuneration by fees. In each of these statutes (2) the fees authorized to be taken are limited to cases of inquests on the view of a dead body. Hence it may be inferred that, in the opinion of the Legislature, coroners *possessed no jurisdiction to hold any other inquests:

(1) 2 Inst. 117.

(2) See these statutes enumerated in Bac. Abr., tit, "Coroners," (G),

REG. 1.

HERFORD.

[133]

for otherwise it is reasonable to suppose that Parliament would
have permitted them to take fees in cases of arson, for instance,
as well as in cases of death. The only difficulty arises upon
the statute De Officio Coronatoris, and the passages in Bracton
and Britton which have been referred to. The statute in ques-
tion says that the coroner is to go, not only to the places where
any are slain, or suddenly dead, or wounded, but also "where
houses are broken.” This might seem to imply that he is to
hold inquests in cases of burglary and housebreaking. Mr.
Mellish has however, I think, removed this difficulty by showing
that the statute was more or less an abridgment of the common
law on the subject, as propounded by Bracton; for on reference
to that author we find that when he says that the coroners
"accedere debent ad" "domorum fractiones" he has in his
mind either a case of appeal, or the case of an inquest to be
held upon the body of a man killed when the house was broken
into. I think, also, that Mr. Mellish has satisfactorily explained
the meaning of the Statute of Marlebridge, 52 Hen. III. c. 24,
so far as language so obscure is capable of explanation. I do
not say that the question is altogether free from difficulty: but
when we find that, from the time of Edw. I. to the present, the
alleged jurisdiction has never been exercised; that the con-
temporaneous exposition of stat. 4 Edw. I., stat. 2, is consistent
with its non-exercise; and that great authorities, Hawkins alone
excepted, are unanimously against its existence; I think that
our course is clear, to the decision that the jurisdiction never
did exist. I give no opinion whether or not it is desirable that
coroners should have such a jurisdiction. That is a
for the Legislature, not for us, to determine.

WIGHTMAN, J.:

question

that

The question before us is one of very general importance; and as I understand that it has become the practice of late years to hold inquests in like cases, and it does not appear there has ever been an express decision on the point, I could have wished for more time to look closely into the authorities, but for the clear opinion which the LORD CHIEF JUSTICE has expressed, and with which I am disposed to agree. Whatever the original jurisdiction of the coroner may have been, it was, clearly, very considerably limited by Magna Charta, c. 17, and has been, since the statute De Officio Coronatoris, confined to the matters therein mentioned; the principal of which is the holding inquests on the death of man super visum corporis, the remainder of which must have reference not to inquests but to appeals. The principal ground upon which I rely is that,

and