[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 (g). And what makes their exclusion more reasonable is, that they have no right to be tried themselves in the court of the Lord 66 (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 [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. (i) The reader will bear in mind that on the commencement of the Judicature Act, 1873, on the 2nd of November, 1874, the Court of Queen's Bench will form a division of the High Court of Justice thereby established. To this division is assigned all causes and matters (criminal as well as civil) which are at present within the exclusive cognizance of the Court of Queen's Bench (36 & 37 Vict. c. 66, s. 34). And, subject to any rules of court to be made under that Act, the practice and procedure in all criminal causes and matters, in the Supreme Court of Judicature (that is to say, X 2 .... in the High Court of Justice and in the Court of Appeal) are to be the same as at present (sect. 71). As to the Supreme Court of Judicature, vide sup. vol. III. p. 318. (k) Accordingly a grand jury of the county of Middlesex may be summoned in the course of cach Term, to attend the Queen's Bench, in order to dispose of any indictments which may be preferred therein; but this summons takes place only where the master of the crown office has received due notice of some business to be brought before the court. (35 & 36 Vict. c. 52.) 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 (2) 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, either 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 (q); 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 (4) This is said (Lamb. Arch. 154) to have been so called, either from the Saxon word steoɲan, to steer or govern; or from its punishing the crimen stellionatus, or cozenage; or because the room wherein it sat, the old council chamber of the Palace of Westminster (Lamb. 148), was full of windows; or (to which Sir Edward Coke, 4 Inst. 66, accedes) because haply the roof thereof was at first furnished with gilded stars. As all these (says Blackstone, vol. iv. p. 266, in notis,) are merely conjectures (for no stars are now in the roof, nor are any said to have remained there so late as the reign of Elizabeth), it may be allowable to propose another conjectural etymology, as plausible perhaps as any of them. It is well known that, before the banishment of the Jews under Edward the first, their contracts and obligations were denominated in our antient records starra or starrs, from a corruption of the Hebrew word shetar, a covenant (Tovey'sAngl.Judaic.32; Seld. Tit. of Hon. ii. 34; Uxor. Ebraic. i. 14). These starrs, by an ordinance of Richard the first, preserved by Hovenden, were commanded to be enrolled, and deposited in chests under three keys in certain places: one, and the most considerable, of which was in the King's Exchequer at Westminster; and no starr was allowed to be valid, unless it was found in some of the said repositories (Memorand. in Scacc. P. in the sixth year of Edward the first, prefixed to Maynard's Year Book of Edward the second, fol. 8; Madox, Hist. Exch. c. 7, ss. 4, 5, 6). The room at the Exchequer where the chests containing these starrs were kept, was probably called the starrchamber; and, when the Jews were expelled the kingdom, was applied to the use of the king's council, sitting in their judicial capacity. To confirm this, the first time the starchamber is mentioned in any record, it is said to have been situated near the receipt of the Exchequer at Westminster; (the king's council, his chancellor, treasurer, justices and other sages, were assembled "en la chambre des esteilles pres la resceipt al Westminster"— Claus. 41 Edw. 3, m. 13). For in process of time, when the meaning of the Jewish starrs was forgotten, the word star-chamber was naturally rendered in law French la chambre des esteilles, and in law Latin camera stellata; which continued to be the style in Latin, till the dissolution of that court. It is remarked by Mr. Christian (Bl. Com. vol. iv. p. 267), in reference to the above note of Blackstone, that in one of the statutes of the University of Cambridge (De computatione procuratorum, Stat. Acad. Cant. p. 32), the antiquity of which is not known, the word starrum is twice used for a schedule or inventory. (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 66 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). 66 (s) 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. Fœd. 192, &c. Hudson's Treatise of the Court of Star-chamber, is now published at the beginning of the second volume of Collectanea Juridica. |