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[trials for capital offences, even upon impeachments and indictments in full parliament, much less in the court we are now treating of: for indeed they usually withdraw voluntarily, but enter a protest declaring their right to stay. It is observable, that in the eleventh chapter of the Constitutions of Clarendon, made in the parliament of the eleventh year of Henry the second, they are expressly excused, rather than excluded, from sitting and voting on trials, when they come to concern life or limb: “episcopi, sicut cæteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem :” and Becket's quarrel with the king hereupon, was not on account of the exception, (which was agreeable to the canon law,) but of the general rule, which compelled the bishops to attend at all. And the determination of the house of lords in the Earl of Danby's case (e), which has ever since been adhered to, is consonant with these constitutions : “ that the lords spiritual “ have a right to stay and sit in court in capital cases, “ till the court proceeds to the vote of guilty, or not “ guilty" (f). It must be noted that this resolution extends only to trials in full parliament; for to the court of the Lord High Steward, (in which no vote can be given, but merely that of guilty or not guilty,) no bishop, as such, ever was or could be summoned ; and though the statute of King William regulates the proceedings in that court as well as in the court of parliament, yet it never intended to new-model or alter its constitution : and consequently does not give the lords spiritual any right in cases of blood, which they had not before(9). And what makes their exclusion more reasonable is, that they have no right to be tried themselves in the court of the Lord
(e) Lords' Journ. 15 May, 1679.
(f) This applies, it will be observed, only to judicial proceedings. Where the proceeding is a legislative one, as in the case of a bill of
attainder, the bishops are entitled to remain till the end. (See May, Pr. Parl. 484.)
(9) Fost. 248.
[High Steward; and therefore, surely, ought not to be judges there (h). For the privilege of being thus tried depends upon nobility, rather than a seat in the house; as appears from the trial of popish lords, while incapable of a seat there; of lords under age; and of the Scots nobility, though not in the number of the sixteen representative peers: and from the trial of females; such as the queen consort or dowager, and of all peeresses by birth ; and of peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband.]
3. The Queen's Bench on its Crown side takes cognizance of all criminal causes-from treason, down to the most trivial misdemeanor or breach of the peace (i). And not only may indictments be found therein by a grand jury and other presentments made (k), but hither also may indictments from all inferior courts be removed by writ of certiorari: though (under the provisions of the statute 16 & 17 Vict. c. 30) the removal can only take place where the indictment is against a body corporate not authorized to appear by attorney in the court below, or else where it
(h) See Bro. Ab. tit. Trial, 142. in the High Court of Justice and in
(i) The reader will bear in mind the Court of Appeal) are to be the that on the conimencement of the same as at present (sect. 71). As Judicature Act, 1873, on the 2nd to the Supreme Court of Judicature, of November, 1874, the Court of vide sup. vol. III. p. 318. Queen's Bench will form a division (k) Accordingly a grand jury of of the High Court of Justice thereby the county of Middlesex may be established. To this division is summoned in the course of cach assigned all causes and matters Term, to attend the Queen's Bench, (criminal as well as civil) which in order to dispose of any indictare at present within the exclusive ments which may be preferred cognizance of the Court of Queen's therein ; but this summons takes Bench (36 & 37 Vict. c. 66, s. 34). place only where the master of the And, subject to any rules of court crown office has received due notice to be made under that Act, the prac- of some business to be brought tice and procedure in all criminal before the court. (35 & 36 Vict. causes and matters, in the Supreme c. 52.) Court of Judicature (that is to say,
is made to appear to the Queen's Bench, by the party applying for the writ, that a fair and impartial trial cannot be had in the court below; or that a question of law of more than usual difficulty and importance is likely to arise upon the trial; or that a view of premises, or a special jury, may be required for the satisfactory trial of the case (1). The manner of trial in the Queen's Bench is, in felony or treason, at bar, that is, before the judges of the court sitting in banc (m); and in misdemeanors, it is at bar (in cases of sufficient consequence) or else at nisi prius (n). [The judges of the Queen's Bench are the supreme coroners of the kingdom: and it is the principal court of criminal jurisdiction, which is known to the laws of England; though the High Court of Parliament and the Court of the Lord High Steward, of which we have already spoken, are of greater dignity. For which reason, by the coming of the Queen's Bench into any county, (as it was removed to Oxford on account of the sickness in 1665,) all former commissions of oyer and terminer, and general gaol delivery, are at once absorbed and determined ipso facto (o): in the same manner as by the old Gothic and Saxon constitutions, “obtinuit quievisse omnia inferiora judicia, dicente jus rege” (p).
Into the Queen's Bench hath reverted all that was good and salutary of the jurisdiction of the court of
(1) 16 & 17 Vict. c. 30, s. 4. As to the leave and recognizance required before the writ is allowed, see also post, c. XIX.
(m) Woolrych's Crim. Law, p. 162.
(n) Where the record is in the Queen's Bench, cither prosecutor or defendant may apply for a special jury. This, however, can only be in cases of misdemeanor, and not of
treason or felony (6 Geo. 4, c. 50, s. 30). It may be remarked that, in certain cases, the trial is neither at bar nor at nisi prius, but at the Central Criminal Court, under the provisions of 19 & 20 Vict. c. 16 (vide post, c. xix).
(0) But sec 25 Geo. 3, c. 18; 32 Geo. 3, c. 48, and 9 Geo. 4, c. 9.
(P) Stiernh. 1. 1, c. 2.
[Star-chamber, camera stellata (9); which was a court of very antient original (r);-re-modelled by statutes 3 Henry VII. c. 1, and 21 Henry VIII. c. 20,-consisting of divers lords spiritual and temporal, (being privy councillors,) together with two judges of the courts of
(9) This is said (Lamb. Arch. the sixth year of Edward the first, 154) to have been so called, either prefixed to Maynard's Year Book of from the Saxon word szeoran, to
Edward the second, fol. 8; Madox, steer or govern ; or from its punish- Hist. Exch. c. 7, ss. 4, 5, 6). The ing the crimen stellionatus, or co- room at the Exchequer where the zenage; or because the room wherein chests containing these starrs were it sat, the old council chamber of kept, was probably called the starrthe Palace of Westminster (Lamb. chamber; and, when the Jews were 148), was full of windows; or (to expelled the kingdom, was applied which Sir Edward Coke, 4 Inst. 66, to the use of the king's council, sitaccedes) because haply the roof ting in their judicial capacity. To thereof was at first furnished with confirm this, the first time the stargilded stars. As all these (says chamber is mentioned in any reBlackstone, vol. iv. p. 266, in notis,) cord, it is said to have been situated are merely conjectures (for no stars near the receipt of the Exchequer are now in the roof, nor are any at Westminster; (the king's counsaid to have remained there so late cil, his chancellor, treasurer, justices as the reign of Elizabeth), it may and other sages, were assembled be allowable to propose another con- en la chambre des esteilles pres jectural etymology, as plausible per- la resceipt al Westminster"haps as any of them. It is well Claus. 41 Edw. 3, m. 13). For in known that, before the banishment process of time, when the meaning of the Jews under Edward the first, of the Jewish starrs was forgotten, their contracts and obligations were the word star-chamber was natudenominated in our antient records rally rendered in law French la starra or starrs, from a corruption chambre des esteilles, and in law of the Hebrew word shetàr, a cove- Latin camera stellata; which connant( Tovey's Angl.Judaic.32; Seld. tinued to be the style in Latin, till Tit. of Hon. ii. 34; Uxor. Ebraic. i. the dissolution of that court. 14). These starrs, by an ordinance It is remarked by Mr. Christian of Richard the first, preserved by (Bl. Com. vol. iv. p. 267), in referHovenden, were commanded to be ence to the above note of Blackenrolled, and deposited in chests stone, that in one of the statutes of under three keys in certain places: the University of Cambridge (De one, and the most considerable, of computatione procuratorum, Stat. which was in the King's Exchequer Acad. Cant. p. 32), the antiquity at Westminster; and no starr was of which is not known, the word allowed to be valid, unless it was starrum is twice used for a schefound in some of the said reposi- dule or inventory. tories (Memorand. in Scacc. P. in (r) Lamb. Arch. 156.
[common law; without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour of sheriffs, and other notorious misdemeanors, contrary to the laws of the land. Yet this was afterwards, as Lord Clarendon informs us, stretched “ to the “ asserting of all proclamations and orders of state; to “the vindicating of illegal commissions, and grants of “ monopolies; holding for honourable that which pleased, “ and for just that which profited; and becoming both a “court of law to determine civil rights, and a court of
revenue to enrich the treasury ; the council table by
proclamations enjoining to the people that which was “not enjoined by the laws, and prohibiting that which “ was not prohibited ; and the Star-Chamber, which con“ sisted of the same persons in different rooms, censuring “ the breach and disobedience to those proclamations by
very great fines, imprisonments, and corporal severities; so that any disrespect to any acts of state, or to the
persons of statesmen, was in no time more penal, and “ the foundations of right never more in danger to be
destroyed ” (s). For which reasons it was finally abolished by statute 16 Car. I. c. 10, to the general joy of the whole nation (t).
(8) Hist. of Rebellion, b. 1 and 3.
(t) The just odium into which this tribunal had fallen before its dissolution has been the occasion that few memorials have reached us of its nature, jurisdiction and practice; except such as, on account of their enormous oppression, are recorded by the historians of the times. There are, however, to be met with some reports of its proceedings in Dyer, Croke, Coke, and other reporters of that age; and some in manuscript, of which Sir W. Blackstone possessed two: one from the fortieth year of Elizabeth,
to the thirteenth of James the first; the other for the first three years of King Charles. And there is in the British Museum (Harl. MS. vol. 1, no. 1226) a very full, methodical and accurate account of the constitution and course of this court, compiled by William Hudson, of Gray's Inn, an eminent practitioner therein; and a short account of the same, with copies of all its process, may also be found in 18 Rym. Foed. 192, &c. Hudson's Treatise of the Court of Star-chamber, is now published at the beginning of the second volume of Collectanea Juridica.