circuit, but the number is still unaltered (a). At first, three jus- THE ASSIZES, tices itinerant or in eyre were appointed for each circuit, to whom our modern commissioners have succeeded (b). These now sit by virtue of five commissions-the commission of the peace, which we have already considered-a commission of oyer and terminera commission of general gaol delivery-and the commissions of assize, and of nisi prius, which, though in general of a civil nature, give, in some cases, an extended criminal jurisdiction to the judges (c). Accompanied with these, are the patent of assize, the patent of association, the writ of assize, and the writ of si non omnes (d). Before we particularly consider these several authorities, it may be proper to premise, that the same persons being intrusted with them all, may proceed by one where they have no jurisdiction by another, and may execute them at the same time (e). Thus under the commission of Oyer and Terminer, as the judges are directed to inquire as well as to hear and determine the same, they can only proceed upon an indictment found at the same assizes, and before themselves; for they must first inquire by means of the grand jury or inquest, before they are empowered to hear and determine by the intervention of the petit jury (f). And, therefore, the second commission of general gaol delivery, empowers the judges to try and deliver every prisoner who shall be in the gaol when they arrive at the circuit town, whenever or by whomsoever indicted, or for whatever crime (g). The commissions of assize and nisi prius, are principally of a civil nature, but the justices have also under them by virtue of several statutes, a criminal jurisdiction, and where an indictment of treason, felony, or misdemeanor is removed out of the county by certiorari, the record is sent down by nisi prius to be tried; and the judges of nisi prius may, upon that record, proceed to trial, judgment, and execution, as if they were jus (a) 1 Woodes. 112. (b) 1 Woodes. 111. (c) 3 Bla. Com. 58. 4 Bla. Com. 269. 1 Woodes. 110, 12. See the forms of all these commissions in all their varieties with explanatory notes, post, last vol. (d) Id. ibid. See forms with notes, post, last vol. (e) 2 Hale, 34. Hawk. b. 2. (f) 2 Hale, 27. Hawk. b. 2. [ 143 ] a Commission of oyer and termi ner tices of gaol delivery by virtue of the statute 14 H. 6. c. 1(a). With respect to the commission of the peace, we have considered the jurisdiction of the justices at sessions, and it may suffice here to observe, that this commission usually accompanies that of oyer and terminer (b). We will proceed now to consider more particularly the jurisdiction under these several commissions. The commission of oyer and terminer is the largest of all these five commissions (c). The commission is under the great seal directed to the chancellor, president of the council, lord president of the council, lord privy seal, several noblemen, two judges of the courts at Westminster, king's council, serjeants, and associates; but the judges, serjeants at law, and king's council therein mentioned, are to be of the quorum, so that the rest cannot act without the presence of one of them (d); and there must be four of the persons named in the commission present (e). The words of the commission, as already observed, are " to inquire, hear, and determine," so that by virtue of this commission, they can only proceed upon an indictment found at the same assizes, and not [344] upon an indictment taken before others than themselves (ƒ). They have by the terms of the commission, jurisdiction to inquire the truth of all treasons (g), misprisions of treasons, felonies, and misdemeanors therein specially mentioned (h); and of all others in the counties named in the commissiou, and to hear and determine the same at certain days and places to be appointed by themselves; for which purpose the king acquaints them that he has sent a writ to the sheriffs of the counties where their sittings are to be held, commanding them to return a jury before them, at such days and places as shall be notified by them, in order to make in * See the form, post, last vol. Hawk. b. 2. c. 5. 8. 22. Bac. Abr. Court of Justices of Oyer, A. OYER AND TERMINER. quiry of such offences (a). Under this commission, persons may CoмMISSION OF be tried whether they be in gaol or at large, and it seems agreed, that where a statute prohibits any thing, and does not appoint in what court it shall be punished, the offender may be indicted before justices of oyer and terminer; because the king has a prerogative of suing in that court which he prefers (b). It is said, that at the Old Bailey, there is a commission of oyer and terminer for London only, but no commission of oyer and terminer ever for Middlesex, and the commission of gaol delivery which is to deliver the gaol of Newgate (c). At common law, the commissions of oyer and terminer, as well as that of gaol delivery, were suspended by the Court of King's Bench, sitting in the same county (d); but this has been rectified by the statute 25 Geo. 3. c. 18, which enacts, that the session of oyer and terminer and gaol delivery of the gaol of Newgate, for the county of Middlesex, should not be discontinued on account of the commencement of the term and the sitting of the Court of King's Bench at Westminster, but may be continued till the business is concluded. And where an offence has been committed within the county of any city or town corporate, the prosecutor may prefer his indictment to the jury of the next adjoining county at any sessions of oyer and terminer, or general gaol delivery; and the finding of such a bill will be valid except in London and Westminster, and some other excepted jurisdictions, if the prosecutor has first entered into a recognizance to pay the extra costs, in case it shall be ordered that he shall defray them (e). The commission of general gaol delivery is directed only to the Commission of general gaol dejudges themselves, the serjeants, king's council, and the clerk of livery.* the assize and associate (f). It is a patent in nature of a letter from the king to certain persons constituting them his justices, (a) Hawk. b. 2. c. 5. s. 22; see form, post, last vol. (b) Hawk. b. 2. c. 5. s. 38. C. C. 13, 14. (d) 9 Co. 118 b. 4 Inst. 163. Bac. Abr. Court of Justice of (e) 38 Geo. 3. c. 32. ss. 2, 10, (f) See form, post, last vol. 1 As to this court and commission in general, see Cro. C. C. 2. Williams, J. and Burn, J. Assizes. Com. Dig. Justices, H. GENERAL GAOL DELIVERY. COMMISSION OF and commanding them, four, three, or two of them, of which number there must be one at least of the judges and serjeants specified, and authorizing them to deliver his gaol at a particular town of the prisoners in it; for which purpose, it commands them to meet at such place, at the time which they themselves shall appoint, and informs them that, for the same purpose, the king has commanded his sheriff of the same county, to bring all the prisoners of the gaol and their attachments before them, at the time they shall appoint pursuant to the discretion given them (a). And a recent act enables, in certain cases, the opening and reading of commissions under which the judges sit upon their circuit, after the day appointed for holding assizes (b). Every description of offence, even high treason, is cognizable under this commission (c), and the justices may proceed upon any indictment of felony or trespass found before other justices (d), [146] or may take an indictment originally before themselves (e); and, they have power to discharge, not only prisoners acquitted, but also such against whom, upon proclamation made, no evidence shall appear to indict them, which cannot be done either by justices of oyer and terminer, or of the peace (ƒ). It is not imperative on a commissioner of gaol delivery to discharge all the pri soners in the gaol who are not indicted; but it is discretionary in him to continue on their commitments such prisoners as appear to him committed for trial, but the witnesses against whom did not appear, having been bound over to the sessions (g). But it seems clear from the words of the commission, that these justices cannot try any persons, except in some special cases, who are not in actual or constructive custody of the prison specifically named in the commission (h). But it is not necessary that the party should custody, for if a person be admitted to bail, always be in actual (a) Hawk. b. 2. c. 6. s. 1. 4 Bla. Com. 270. Bac. Abr. Court of Justices of Oyer, &c. A, (b) 3 Geo. 4. c. 10. (c) 2 Hale, 35. Hawk. b. 2. c. 6. s. 4. Bac. Abr. Court of Justices of Oyer, &c. B. (d) 2 Hale, 32. Hawk. b. 2. c. 6. s. 2. Bac. Abr. Court of Justices of Oyer, &c. B. Cro. (e) Hawk. b. 2. c. 6. s. 3. 2 Hale, 34. (f) Hawk. b. 2. c. 6. s. 6. 2 Hale, 34. (g) Russ. & Ry. C. C. 173. (h) Hawk. b. 2. c. 6. s. 5. Bac. Abr. Court of Justices of Oyer, &c. B. yet he is in law, in prison, and his bail are his keepers, and CoMMISSION OF justices of gaol delivery may take an indictment against him, as GAOL DELIVERY. well as if he were actually in prison (a). The commissions of gaol delivery are the same on all the circuits. Unlike the commission of oyer and terminer, in which the same authority suffices for every county, there is a distinct commission to deliver each particular gaol, of the prisoners under the care of its keeper. The course of proceeding before the commissioners of gaol delivery will more properly be considered hereafter. Here, however, we may in general observe, that, previous to the arrival of the judges, a precept is issued commanding the sheriffs to return juries to try the prisoners at the assizes (b). The panels being thus made up, and promptly returned, the court has only, when it sits, to call a jury without writ or precept, and it is immediately returned from the jurymen in readiness. And this court being instituted for the speedy delivery of the prisoners, and this preparation being made for its session, it is fully empowered to inquire and try without the lapse of any intermediate time (c). The court of general gaol delivery has jurisdiction to order that the proceedings on a trial from day to day, shall not be published till all the trials against different prisoners shall be concluded; and the violation of such orders is a contempt of court, punishable by fine or imprisonment; and if the party refuse to attend, to answer for such contempt, he may be fined in his absence (d). The commission of assize is a mandate of the king, directed to two of the judges and several serjeants, commanding them "to take all the assizes, juries, and certificates before whatever justices arraigned," at a day to be fixed by themselves, and informing them that, for that purpose, juries are to be returned by the respective sheriffs (e). That of nisi prius is annexed to the office of justices appointed under this commission by 13 Edw. 1. c. 30, (a) 2 Hale, 34, 35. (b) See form of general precept, Rast. Ent. 384, 5. post, last vol. 4 Harg. St. Tr. 744, 5. 68. (c) See more fully post. (e) See form, post, last vol. GENERAL |