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[4. The High Court of Admiralty, held before the judge of the admiralty,—has a criminal as well as a civil jurisdiction (u). In virtue thereof this court originally had cognizance of all crimes and offences committed either upon the sea or on the coasts, out of the body or extent of any English county; and by stat. 15 Ric. II. c. 3, acquired cognizance of death and mayhem happening in great ships being and hovering in the main stream of great rivers, below the bridges of the same rivers, which are then a sort of ports or havens; such as are the ports of London and Gloucester, though they lie at a great distance from the sea. But inasmuch as the Court of Admiralty proceeded without jury, in a method much conformed to the civil law, the exercise of its criminal jurisdiction was contrary to the genius of the law of England: insomuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers. And besides, as innocent persons might thus fall a sacrifice to the caprice of a single man, so very gross offenders might, and did frequently, escape punishment; for by the rule of the civil law no judgment of death can be given against offenders, without proof by two witnesses, or a confession of the fact by themslves. This was accordingly always a great offence to the English nation ; and therefore, in the eighth year of Henry the sixth, it was endeavoured to apply a remedy in parliament; which then miscarried for want of the royal assent.] However, by 28 Hen. VIII. c. 15, it was enacted, that all treasons, felonies, robberies, murders, and confederacies on the sea, or within the jurisdiction of the admiralty, should be tried by commissioners under the Great Seal; viz. the admiral, or his deputy, and three or four more, (among whom two common law judges
(u) 4 Inst. 134, 147. As to the Court thereby established, vide sup. transfer of the jurisdiction of this vol. III. pp. 319, 341. See also, in court, at the commencement of the reference to its criminal jurisdicJudicature Act, 1873, on the 2nd tion, snp. p. 307, n. (i). November, 1874, to the Supreme
were usually appointed;) and that the indictment being first found by a grand jury of twelve men, should be afterwards tried by a petty jury; and that the course of proceedings should be according to the law of the land (x). Afterwards, by 4 & 5 Will. IV. c. 36—which first established the “Central Criminal Court," for offences committed in the metropolis and certain parts adjoining (y),—the judge of the admiralty was placed, (together with the lord mayor of London, the common law judges, and others,) among the judges of the new court: and it was provided, that under any commission of oyer and terminer and gaol delivery, to be issued under the authority of that Act,—such judges, or any two or more of them, might hear and determine any offences committed or alleged to be committed on the high seas, and other places within the jurisdiction of the admiralty; and might deliver the gaol of that court, of any person detained therein for such offence (z). Also by the 7 & 8 Vict. c. 2 (a), reciting that it was expedient that provision should be made for the trial of persons charged with offences committed at sea, or within the admiralty jurisdiction, without issuing any special commission as required by 28 Hen. VIII. c. 15,-it was enacted, that any justices of assize, oyer and terminer, or gaol delivery, might inquire of and determine all offences so committed ; and that all indictments, trials and other proceedings before them in such cases, should be valid (6). And, finally, in each of the statutes of 24 & 25 Victoria, cc. 96, 97, 98, 99, 100, there is contained a clause to the effect that all indictable offences mentioned in those Acts respectively
(which comprise larceny, malicious injuries to property, forgery, coinage offences, and offences against the person), committed within the jurisdiction of the admiralty of England or Ireland,—shall be deemed to be offences of the same nature, and liable to the same punishment, as if they had been committed upon the land in England or Ireland : and may be dealt with and tried in any place in which the offender shall be apprehended or be in custody (c). So that, upon the whole, the jurisdiction of the Court of Admiralty itself, for trial in England of offences committed at sea, or out of the body of an English county (which was once indispensable from the inability of the common law courts to try offences so committed) seems now to have been rendered almost or altogether unnecessary.
[These four courts may be held in any part of the kingdom ; and their jurisdiction extends over crimes that arise throughout the whole of it, from one end to the other. What follow are also of a general nature; but yet are of a local judisdiction, and confined to particular districts. Of which species are,
5. The Courts of Oyer and Terminer and General Gaol Delivery (d); which are held before the royal commissioners, -among whom are usually two judges of the courts at Westminster,—twice at the least in the year in every county of the kingdom (e);] with an exception to
(0) See 24 & 25 Vict. c. 94, s. 9; c. 96, s. 115; c. 97, s. 72; c. 98, s. 50; c. 99, s. 36; and c. 100, s. 68. As to persons charged in any colony with offences committed on the seas, see 12 & 13 Vict. c. 96; 18 & 19 Vict. c. 91, s. 21.
(d) 4 Inst. 152, 168; 2 Halo, P. C. 22, 32; Hawk. P. C. b. 2, c. 5, s. 6. As to the transfer on the 2nd
November, 1874, of the jurisdiction of these courts to the High Court of Justice established by the Judicature Act, 1873, vide sup. vol. III. pp. 347, 349; see also sup. p. 307, n.(i).
(6) Of late years, in certain of the assize towns, there are tried, under commissions issued in the vacation after Michaelmas Term, per
be presently stated, as to the metropolis and parts of the adjacent counties. [These courts were mentioned in the preceding Book: and we then observed, that in what is usually called the assizes, the judges sit by virtue of four several authorities; viz., the commission of the peace, the commission of oyer and terminer, the commission of general gaol delivery, and the commission of nisi prius; one of which, (that of nisi prius,) being principally of a civil nature, was then explained at large. The authority by the commission of the peace has also been treated of, when we inquired into the nature and office of a justice of the peace (f); and in addition to what was there stated we may here remark, that all justices of the peace of any county, wherein the assizes are held, are bound by law to attend them, upon due notice given by the sheriff(g): or else are liable to a fine: in order to return recognizances, &c. : and to assist the commissioners in such matters as lie within their knowledge and jurisdiction, and in which some of them have probably been concerned by way of previous examination. But the commission of oyer and terminer gives the judges authority to hear and determine all treasons, felonies and misdemeanors committed within the county (h). This is directed to the judges and several others, or any two of them (i); but only the judges, or serjeants at law, the queen's counsel, and barristers with a patent of precedence (j), named in the commissions, are of the quorum ; so that the rest cannot act without the
presence of one of them (k). Under the commission of oyer and terminer, persons may be tried whether they are in gaol
sons charged with crimes not triable
(1) Vide sup. vol. II. pp. 648–651.
is directed to any four of them. (4 Chit. Crim. Law, 145; 1 Saund. 249(a).)
(j) 13 & 14 Vict. c. 25.
(k) As to the forms of the commissions and of the writs by which they are accompanied, sec 4 Chit. Crim. Law, 129, &c.
(or at large (m); but the words are to “ inquire, hear, and determine:” so that by virtue of this commission, the judges can only proceed upon an indictment found at the same assizes; for they must first inquire, by means of the grand jury or inquest, before they are empowered to hear and determine by the help of the petit jury (n). Therefore they have besides a commission of general gaol delivery: which empowers them to try, and deliver every prisoner who shall be in the gaol when they arrive at the circuit town (o); whenever or before whomsoever indicted, or for whatever crime committed (p). It was antiently the course to issue special writs of gaol delivery for each particular prisoner, which were called the writs de bono et malo (2); but these being found inconvenient and oppressive, a general commission for all the prisoners has long been established in their stead. So that, one way or other, the gaols are in general cleared, and all prisoners tried, punished, or delivered, at least twice in every year,—a constitution of singular use and excellence. Sometimes, also, upon urgent occasions, the sovereign issues a special or extraordinary commission of oyer and terminer and gaol delivery, confined to those offences which stand in need of immediate inquiry and punishment; upon which the course of proceeding is much the same, as upon general and ordinary commissions.]
What has been stated applies to courts of oyer and terminer and gaol delivery throughout the realm at large; but for the metropolis and adjacent parts, a different constitution is provided. For by 4 & 5 Will. IV. c. 36, a new court was established for trial of offences committed in London, Middlesex, and certain suburban parts of Essex, Kent, and Surrey (r);—-called the Central
(m) 1 Chit. Crim. Law, 144. Crim. Law, 146.)
(0) That is, either in actual cus- (9) 2 Inst. 43. tody or out on bail, and so in gaol (r) Indictments found at the difby construction of law. (1 Chit. ferent sessions of the peace, held