The Courts of the Commissioners of Assize, Oyer and Terminer, and Gaol Delivery. 2 The Central Criminal Court. 3 The Court of the Lord High Admiral of England. ARTICLE 17. THE HOUSE OF LORDS. 4 The House of Lords is a Court of Justice of which all the Peers of Parliament, including the Bishops, are Judges (though the Bishops are excused from voting in capital cases), and of which the Lord High Steward, 5 if a Lord High Steward is appointed for that purpose by her Majesty, is the President. The Lords who take part in the proceedings are judges both of the law and of the fact. ARTICLE 18. THE COURT OF THE LORD HIGH STEWARD. The Court of the Lord High Steward is a Court which may be convened when Parliament is not sitting. It consists of the Lord High Steward and as many Peers of Parliament as are summoned and appear. The Lord High Steward is judge of the law, and the other Lords, who are called Lords Triers, are judges of the facts. ARTICLE 19. TRIALS FOR TREASON AND MISPRISION IN THE HOUSE OF LORDS AND THE COURT OF THE LORD HIGH STEWARD. "Whenever any person is to be tried for high treason or for misprision of treason, either by the House of Lords or in the Court of the Lord High Steward, all the Peers who have a right to sit and vote in Parliament must be summoned, 11 Hist. Cr. Law, 97. 32 Hist. Cr. Law, 16-26. 4 4 Ste. Com. 296; 2 Hawk. 580. 1 Hist. Cr. Law. ch. v. p. 145. 5 This is always done in practice. 62 Hawk. 580, &c. 1 Hist. Cr. Law. ch. v. 7 7 & 8 Will. 3, c. 3, s. 10. twenty days at least before the trial, and every Peer so summoned and appearing at the trial must vote. It is not certain how many Peers ought to be summoned to sit as Lords Triers if the trial is to be for any offence other than treason or misprision of treason. The Lord High Steward is appointed by Commission from the Crown for each occasion on which his services are required. ARTICLE 20. EXCLUSIVE JURISDICTION OF HOUSE OF LORDS IN RESPECT OF PERSONS AND OFFENCES. 1The House of Lords has during the Session of Parliament exclusive jurisdiction over all Lords of Parliament, including such Bishops as are such Lords, and Peeresses in their own right or in the right of their husbands, and over all Scotch and Irish Peers and Peeresses in their own right or in the right of their husbands, in cases of treason and misprision of treason and felony, whether upon impeachment or upon an indictment. 2 When Parliament is not sitting the Court of the Lord High Steward has the same jurisdiction over the same persons (except Bishops being Lords of Parliament), for the same offences upon an indictment therefor. ARTICLE 21. JURISDICTION OF HOUSE OF LORDS ON IMPEACHMENT BY THE HOUSE OF COMMONS. 3 The House of Lords has jurisdiction over all persons impeached by the House of Commons for any misdemeanor. ARTICLE 22. THE HIGH COURT OF JUSTICE (QUEEN'S BENCH DIVISION). The High Court of Justice (Queen's Bench Division) is 12 Hawk. P. C. 580-5. As to Bishops, see p. 584; as to Peeresses by marriage, 20 Hen. 6; for an instance of such a trial see Duchess of Kingston's Case, 20 St. Tr. 385. As to Scotch Peers, 6 Anne, c. 11, Article 23. As to Irish Peers, 39 & 40 Geo. 3, c. 67, Article 4. 1 Hist. Cr. Law, 161–6. 24 Ste. Com. 296. 3 4 Ste. Com. 293. 1 Hist. Cr. Law, ch. v. p. 146. constituted by the Supreme Court of Judicature Act, 36 & 37 Vict. c. 66, and consists of the Lord Chief Justice of England, who is President thereof, and such other Judges as are members of the said division. ARTICLE 23. 2 THE CROWN COURTS AT THE ASSIZES. The Crown Courts at the Assizes are Courts held by one or more Commissioners sitting under one or more of the Commissions hereinafter mentioned. All or any of the said Commissions may be issued to any part of England, and at any time when her Majesty thinks proper. 3 The said Commissions are: (a.) A Commission of Oyer and Terminer, by which the Commissioners, or any two of them, of whom one of certain persons named must be one, are commanded to make diligent inquiry into all treasons, felonies, and misdemeanors whatever, committed within certain counties specified in the Commission, and to hear and determine the same according to law. (b.) A Commission of Gaol Delivery, by which the Commissioners, or any two of them, of whom one of certain persons named must be one, are commanded to deliver a gaol or gaols specified in the said Commission. (c.) A Commission of Assize and Nisi Prius, by which * the Commissioners are commanded to take all the assizes, juries, 136 & 37 Vict. c. 66, s. 31 (2). 21 Hist. Cr. Law, 85. 3 The Commission of Oyer and Terminer applies only to cases where the indictment is found before the Commissioners. The Commission of Gaol Delivery enables them to try all persons in prison or on bail. The Commissions of Assize and Nisi Prius appear to apply only to nisi prius records. The Commission of the Peace seems to be superfluous, as it is to the same effect as the Commission of Oyer and Terminer, except that it is narrower. As to all these commissions see 1 Chitty Crim. Law, 141–151; and see the forms in 4 Chitty, 128-170. For the History of the Courts see 1 Hist. Cr. Law. ch. iv. pp. 75–144. Nothing is said as to a quorum. 4 Chitty, 137; but the writ of 'si non omnes,' mentioned in the last paragraph of Art. 24, meets this. and certificates, before whatsoever justices arraigned,1 since a time specified in the Commission, in certain counties specified in the Commission. 2 Such Commissioners have power to try all offences whatever which are sent down by the High Court to be tried before them as such Commissioners. (d.) A Commission of the Peace, by which any two or more of the Commissioners are commanded amongst other things to inquire into, hear, and determine certain felonies and misdemeanors specified in the said Commission. ARTICLE 24. 3 OF THE PERSONS TO WHOM THE SAID COMMISSIONS ARE ISSUED. COMMISSIONS AND WRITS OF ASSOCIATION AND SI NON OMNES. The said Commissions are issued upon fiats under her Majesty's sign-manual specifying the persons to whom they are to be issued on each circuit. The Commission of Oyer and Terminer is issued to the Lord Chancellor, the Lord President of the Council, the Lord Privy Seal, and certain noblemen resident in the counties on the circuit, and in the case of each of the English circuits to two Judges, and in the case of each of the Welsh circuits to one Judge of the Supreme Court of Justice (liable to go circuit), and to all the Queen's Counsel and Serjeants-atLaw practising on the circuit, and to the Clerk of Assize, Clerk of Arraigns, Associate and Clerk of Indictments, who are collectively called the Associates. The Commission directs that the matters mentioned in it shall be inquired into, heard, and determined by two at In the form given in 4 Chitty, 136, the Commission is to take all assizes since the reign of Queen Anne, the date of the form being 1802. I think it is now usual to date back to the end of the reign of George 3. 2 This is the interpretation put by Hale (2 P. C. 40) on the statutes 27 Edw. 1, c. 3, and 14 Hen. 6, c. 1. As to the Commission of Nisi Prius, it is said in 1 Chitty Crim. Law, 146, to be annexed to the office of justices appointed under the Commission of Assize by 13 Edw. 1, c. 30. The old statutes have become very obscure, and the matter is only of antiquarian interest. See 1 Hist. Cr. Law. 34 Chitty Crim. Law, pp. 130a-139. least of the persons named, of whom one of the Judges, Queen's Counsel, and Serjeants aforesaid must be one [1and one of the Associates another]. The Commissions of Assize and Gaol Delivery are addressed to the same Judges, Queen's Counsel, and Serjeants, as the Commissions of Oyer and Terminer, together with those whom her Majesty has associated with them. The persons so associated are the same as those named in the Commission of Oyer and Terminer, and a Commission called a Commission of Association is issued to the Associates commanding them to associate themselves to the Commissioners of Gaol Delivery and Assize, and a writ of association is directed to the Commissioners of Gaol Delivery and Assize commanding them to admit into their society the persons to whom the said Commission of Association is issued. A writ called a writ of si non omnes is also issued to the Commissioners of 2 Assize, and to the Associates, commanding the said Commissioners and Associates, if they cannot all conveniently be present at the execution of the Commission, then that any two of them who shall happen to be present, and of whom one of the Commissioners of Assize must be one [and one of the Associates the other], shall execute the Commission. ARTICLE 25. THE CENTRAL CRIMINAL COURT. 3 The Central Criminal Court is a Court of which the following persons are the Judges; that is to say, the Lord Mayor for the time being of the City of London, the Lord Chancellor or Lord Keeper of the Great Seal,* all the Judges for the 1 This is not stated in the Commission, but is a necessary consequence of the merely complimentary nature of the appointment of the Chancellor, &c., and of the practice of one commissioner sitting in each Court. There must be two to make a quorum, and the circuit officers are the only persons left for the purpose. 2 No mention of gaol delivery in Chitty. 3 4 & 5 Will. 4, c. 36, s. 1; 1 Hist. Cr. Law, 118. 4 I suppose this is the effect of the Judicature Act of 1873. Till that Act was passed the judges of the Court of Equity were not in the Commission of the Central Criminal Court; the Judge of the Admiralty and the Dean of the Arches were, Under 37 & 38 Vict. c. 85, s. 85, the judge appointed under the Public Worship Regulation Act is ex officio Dean of the Arches. |