Imágenes de páginas

it was pronounced. But after the decree is once signed and enrolled, it cannot be reheard, or rectified, but by bill of review, or by appeal to the house of lords. As for appeals from the master of the rolls and vice-chancellor to the lord chancellor, their decrees are the decrees of the lord chancellor, and therefore such appeals are, strictly speaking, regarded as rehearings, and consequently cannot be brought when onee the decree has been signed by his lordship.1 A bill of review may be had upon error apparent on the face of the decree, or on new facts, or facts discovered which could not possibly be had or used at the time when the decree passed ;2 and it is compared, by lord chief baron Gilbert, to an appeal in the canon or civil law, to the prince pronouncing a definitive sentence uninformed to the prince better informed.3 An appeal to parliament, that is, to the house of lords, is the dernier rasort of the subject who thinks himself aggrieved by an interlocutory order or final determination in this court; and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law: and the party feeling himself aggrieved by a decree or order of the master of the rolls or of the vice-chancellor, may have either an appeal, in the nature of a rehearing, to the lord chancellor, or directly to the house of lords. But in the latter case the decree must, it seems, previously be adopted and recognised by the lord chancellor, which is done without a hearing, by the decree or order being signed by him and enrolled.4 But no new evidence is admitted in the house

1 Smith, Chanc. Pract, vol. ii. p. 18, 26, 27, 82. East Into Company v. Boddan, 13 Vesey, 423.

- Blackst . Com- b. iii. c. xxvii. p. 496. Smith, Chanc. Pract vol. ii. c. vi. 3 Gilbert, For. Rom. 183.

4 Smith, Chanc. Pract. vol. ii. c. v. p. 39, 40. But see Daniel, Chanc. Pract. vol. ii p. 675.

of lords upon any account; this being a distinct jurisdiction,1 which differs very considerably from those instances wherein the same jurisdiction revises and corrects its own acts, as in rehearings and bills of review. For it is a practice unknown to our law (though constantly followed in the spiritual courts), when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence that was never produced below.2

The reader now has before him an outline of the ordinary administration of civil justice by the common law, as well as of that supplementary and corrective system of judicature, whereby its defects and omissions are remedied, or filled up. And the general adaptation of this judicial polity to the nature of our constitution is very striking. The common law, on which the liberties and civil rights of the subject mainly depend, is administered by judges of great dignity, whose characters bear a kind of sacredness in the eyes of the nation, irremovable from their offices unless by the united consent of the three branches of the legislature, and assisted in their judicial functions by jurors taken from the middle classes of the community. And thus the mixture of the aristocratical and the democratical principle is visible in this branch, as in the general construction of the constitution. In the court of equity in chancery, the case is somewhat different; for there the chief presiding magistrate is a minister of state, removable at the pleasure of the crown, and trial by jury is not admitted: but that court is only called upon to decide questions of property; and an appeal lies directly from its decrees to the house of peers, where any unconstitutional

1 Gilb. Rep. 155, 156.

2 Blackst. Com. b. iii. c. xxvii. p. 497.

or oppressive act of the lord chancellor would infallibly be corrected and relieved against . Thus, what may appear at first sight somewhat anomalous is prevented from producing in practice any consequences at variance with the rights of the subject, and the principles of the constitution.



It has been shewn1 that jurisdiction extends not only to apply, in particular cases, the laws intended for the maintenance of civil or natural rights, by determining the controversies which arise from time to time as to their meaning and application, but also to the examination of accusations, by deciding on the application, in each particular instance, of laws enacted for the punishment of offenders and the protection of society.2 The exercise of that jurisdiction, instituted for the punishment of offences, is a criminal trial or judgment, more particularly defined to be a series of acts, which, according to the order and method prescribed by the law, determine the existence and nature of some fact that may be an offence or crime, and the author of that fact, as well as his guilt or innocence.3

And criminal causes have this in common with civil causes, namely, that they consist in three persons,—actor, reus, and judex. We will therefore examine the polity of the criminal jurisdiction in this country in the same order

1 Chapter XV.

2 Cremani De Jur. Crim. vol. iii. p. 212. lib. iii. c. i. § 1. As to the distinction between the nature of criminal and civil jurisdiction, see Caravita, Inst. Crim. lib. i. § 1. n. 26 et seq.; and Julius Claras, Op. p. 207, 208; Pract . Crim. Quest. i n. 1.

3 Cremani, lib. iii. c. i. § 3. Those who wish to understand the science of criminal law, independently of positive enactments in particular countries, and that also which is founded on the Roman law, should diligently study the work of this learned author, where they will And that subject treated with profound judgment and learning, and in most elegant language.

in which the administration of civil justice has been considered, beginning with judges and courts. And, first, of those that are of a public and general jurisdiction throughout the whole realm; after which we will proceed to notice such as are only of a private and special jurisdiction, and confined to some particular parts of the kingdom.

I. The supreme court of the kingdom is the high court of Parliament, to which belongs not only the making, but also the execution of the laws, by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachments. An impeachment before the lords, by the commons of Great Britain in parliament, is not like bills of attainder or of pains and penalties, which are new laws made pro re nata, but a prosecution of the already known and established law, being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom.1 Blackstone holds that a commoner cannot be impeached before the lords for any capital offence, but only for high misdemeanours: that position, however, seems to be somewhat more than doubtful. Blackstone, in a note, cites the case of Simon de Beresford, from the rolls of parliament, in the 4th Ed. III., in which the lords, being required by the king to give judgment against that person, said that he was not their peer, and therefore they were not bound to judge him as a peer of the land. However, they subsequently gave judgment of death against Simon de Beresford, though under a protest that they might not be required to judge others than their peers in future. But this was a case of prosecution at the suit of the king, and therefore stands upon a different ground from an impeachment; for Coke, in commenting on the words of Magna Charta, Nullus liber homo capietur, &c., nut per

1 Blackst . Com. b. iv. c. zix. p. 259. 1 Hale, F. C. 150. 4 Inst 23.

« AnteriorContinuar »