3. As in the preceding book' we mentioned the courts of the two universities, or their chancellors' courts, for the redress of civil injuries: it will not be improper now to add a short word concerning the jurisdiction of their criminal courts, which is equally large and extensive. The chancellor's court of Oxford (with which university the author hath been chiefly conversant, though probably that of Cambridge hath also a similar jurisdiction) hath authority to determine all causes of property, wherein a privileged person is one of the parties, except only causes of freehold; and also all criminal offences or misdemeanors under the degree of treason, felony, or mayhem. (16) The prohibition of meddling with freehold still continues: but the trial of treason, felony, and mayhem, by a particular charter, is committed to the university-jurisdiction in another court, namely, the court of the lord high steward of the university.

FOR by the charter of 7 Jun. 2 Hen. IV. (confirmed, among the rest, by the statute 13 Eliz. c. 29.) cognizance is granted to the university of Oxford of all indictments of treasons, insurrections, felony, and mayhem, which shall be found in any of the king's courts against a scholar or privileged person; and they are to be tried before the high steward of the university, or his deputy, who is to be nominated by the chancellor of the university for the time being. But when his office is called forth into action, such high steward must be approved by the lord high chancellor of England; and a special commission under the great seal is given to him, and others, to try the indictment then depending, according to the law of the land, and the privileges of the said univer[278]sity. When therefore an indictment is found at the assises, or elsewhere, against any scholar of the university, or other privileged person, the vice chancellor may claim the cogniz1 See Vol. III. pag. 83.

wholly taken away by the 1&2 Ph. & M. c. 10. ; and also that the act being affirmative, neither excluded the jurisdiction of the king's bench, or of the ordinary commissioners of oyer and terminer, or of the commissioners of oyer and terminer specially appointed for felonies and treasons within the verge. In consequence of all which, he says, he had never heard of a single session under the statute until the very year in which he was writing. 2 H.P.C. p. 9.

(16) See Vol. III. p. 85. n. 11.

ance of it; and (when claimed in due time and manner) it ought to be allowed him by the judges of assise: and then it comes to be tried in the high steward's court. But the indictment must first be found by a grand jury, and then the cognizance claimed: for I take it that the high steward cannot proceed originally ad inquirendum; but only, after inquest in the common law courts, ad audiendum et determinandum. Much in the same manner, as when a peer is to be tried in the court of the lord high steward of Great Britain, the indictment must first be found at the assises, or in the court of king's bench, and then (in consequence of a writ of certiorari) transmitted to be finally heard and determined before his grace the lord high steward and the peers.

WHEN the cognizance is so allowed, if the offence be inter minora crimina, or a misdemesnor only, it is tried in the chancellor's court by the ordinary judge. But if it be for treason, felony, or mayhem, it is. then, and then only, to be determined before the high steward, under the king's special commission to try the same. The process of the trial is this: The high steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedells of the university, who thereupon return a panel of eighteen matriculated laymen, "laicos privilegio universitatis gaudentes:" and by a jury formed de medietate, half of freeholders and half of matriculated persons, is the indictment to be tried; and that in the Guildhall of the city of Oxford. And if execution be necessary to be awarded, in consequence of finding the party guilty, the sheriff of the county must execute the universityprocess; to which he is annually bound by an oath,

I HAVE been the more minute in describing these proceed- [ 279 ] ings, as there has happily been no occasion to reduce them into practice for more than a century past; nor will it perhaps ever be thought advisable to revive them: though it is not a right that merely rests in scriptis or theory, but has formerly often been carried into execution. There are many instances, one in the reign of queen Elizabeth, two in that of James the first, and two in that of Charles the first, where indictments for murder have been challenged by the vice-chancellor

at the assises, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff's and bedell's panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that university.

CHAPTER THE TWENTIETH.

OF SUMMARY CONVICTIONS.

WE

E are next, according to the plan I have laid down, to take into consideration the proceedings in the courts of criminal jurisdiction, in order to the punishment of offences. These are plain, easy, and regular; the law not admitting any fictions, as in civil causes, to take place where the life, the liberty, and the safety of the subject are more immediately brought into jeopardy. And these proceedings are divisible into two kinds; summary and regular: of the former of which I shall briefly speak, before we enter upon the latter, which will require a more thorough and particular examination.

By a summary proceeding I mean principally such as is directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute of fence. But it has of late been so far extended, as, if a check [ 281 ] be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases. For,

I. Or this summary nature are all trials of offences and frauds contrary to the laws of the excise, and other branches

of the revenue which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the country; officers, who are all of them appointed and removable at the discretion of the crown. And though such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expence and delay of frequent prosecutions by action or indictment; and though such has usually been the conduct of the commissioners, as seldom (if ever) to afford just grounds to complain of oppression; yet when we again consider the various and almost innumerable branches of this revenue; which may be in their turns the subjects of fraud, or at least complaints of fraud, and of course the objects of this summary and arbitrary jurisdiction; we shall find that the power of these officers of the crown over the property of the people is increased to a very formidable height. (1)

a

II. ANOTHER branch of summary proceedings is that before justices of the peace, in order to inflict divers petty pecuniary mulcts, and corporal penalties denounced by act of parliament for many disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited, and which used to be formerly punished by the verdict of a jury in the court-leet. This change in the administration of justice hath however had some mischievous effects; as, 1. The almost entire disuse and contempt of the court-leet, and sheriff's tourn, the king's antient courts of [282] common law, formerly much revered and respected. 2. The

(1) Formidable as the summary power is, which the legislature has entrusted to commissioners and justices of the peace, in respect of the excise and other revenue laws, this sentence overstates it considerably, being so expressed as to convey an idea that all offences against those laws are within this summary jurisdiction. The fact is, that a very large number of offences against them are triable only upon information and indictment before the constitutional tribunal of the jury; and I believe (though in such a number of statutes it is not safe to speak with too much confidence), that no offence is triable summarily, of which the direct punishment can be corporal, imprisonment, or transportation.