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Justices of assize shall
*Read being whereby such transgressors not replevisable* be let out, and so reple to deliver them deceitfully before the coming of the justices vied, do, in order de- errant, or other assigned for their deliverance,t they procure ceitfully to by themselves, and by their friends jurors of the county, and obtain their some they threat, whereby as well for fear of the sheriff, delivery. and other that let them at large by plevin, as for fear of the + Procure thieves being so delivered before the justices assigned for by their gaol deliveries, such felonies and murthers are concealed, friends the and so being concealed, remain still unpunished: we, for jurors of the county, the utility of our realm, and for the more assured conserand threat- vation of our peace, have provided and ordained, that jusen others. tices assigned to take assizes in every county where they do take assizes, as they be appointed, incontinent after the assizes taken in the shires, shall remain both together if they be lay; and if one of them be a clerk, then one of the most discreet knights of the shire being associate to him, that is a layman, by our writ shall deliver the gaols of the shires, as well within liberties as without, of all manner of prisoners, after the form of the gaol deliveries of those Punishment shires before time used. And the same justices shall inquire then if sheriffs, or any other, have let out by replevin prisoners not replevisable, or have offended in any thing contrary to the form of the foresaid statute lately made at Westminster; and whom they shall find guilty, they shall chasten and punish in all things according to the form of the statute aforesaid.
be also justices of gaol delivery.
for their of
Note.-Justices of nisi prius have not any original power of hearing and determining indictments of felony, without a special commission for that purpose. By virtue, how
ever, of this act, and of the 14 Hen. 6, they have a power to determine such felonies as are sent down for trial before them: 2 H. P. C. 40.
2 Ed. 3, c. 2.
Item, whereas offenders have been greatly encouraged, cases only because the charters of pardon have been so easily granted the king's pardon shall in times past, of manslaughters, robberies, felonies, and be granted. other trespasses against the peace; it is ordained and
enacted, that such charter shall not be granted but only where the king may do it by his oath, that is to say, where a man slayeth another in his own defence, or by misfortune. And also they have been encouraged because that the justices of gaol delivery, and of oyer and terminer, have been procured by great men against the form of the statute made in the 27th year of the reign of King Edward, grandfather to our lord the king that now is, wherein is contained, that justices assigned to take assizes, if they be laymen, shall make deliverance; and if the one be a clerk and the other a layman, that the lay-judge, with another of the country associate to him, shall deliver the gaols; wherefore it is enacted, that such justices shall not be made
against the form of the said statute; and that the assizes, Who shall be justices attaints, and certifications be taken before the justices comof assizes monly assigned, which should be good men and lawful, and gaol having knowledge of the law, and none other, after the delivery. form of another statute made in the time of the said King Edward the First. And that the oyers and terminers shall To whom not be granted but before justices of the one bench or the oyers and other, or the justices errants, and that for great hurt, or shall be horrible trespasses, and of the king's special grace, after granted, and the form of the statute thereof ordained in time of the said for what grandfather, and none otherwise.
4 Ed. 3, c. 2.
Item, it is ordained, that good and discreet persons, other than of the places, if they may be found sufficient, shall be assigned in all the shires of England, to take assizes, juries, and certifications, and to deliver the gaols and that the said justices shall take the assizes, juries, and certifications and deliver the gaols at the least three times a year, and more often if need be. Also there shall be assigned good and lawful men in every county to keep the peace. And at the time of the assignments, mention shall be made that such as shall be indicted, or taken by the said keepers of the peace, shall not be let to mainprise by the sheriffs, nor by none other ministers, if they be not mainpernable by the law; nor that such as shall be indicted, shall not be delivered but at the common law. And the justices assigned to deliver the gaols, shall have power to deliver the same gaols of those that shall be indicted before the keepers of the peace; and that the said keepers shall send their indictments before the justices, and they shall have power to inquire of sheriffs, gaolers, and other in whose ward such indicted persons shall be, if they make deliverance, or let to mainprise any so indicted, which be not mainpernable, and to punish the said sheriffs, gaolers, and others, if they do any thing against this act.
Note. The commission of general gaol delivery is directed only to the judges themselves, the serjeants, king's counsel, and the clerk of the assize and associate. For the form, see 4 Chit. Cr. L. It is a patent in nature of a letter from the king to certain persons, constituting them his justices, 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 directions given them: 2 Haw. P. C. c. 6, s. 1. Justices of gaol delivery may, it seems, by the common law, and indepen
dently of the statute of 4 Ed. 3, c. 2, proceed, upon any indictment of felony or trespass, found before other justices, against any person in the prison mentioned in their commission, and not determined; in this respect their authority differs from that of justices of oyer and terminer, who regularly can proceed only against persons indicted before themselves: 2 Haw. P. C. c. 6, s. 2. They have power, also, to discharge not only those who have been acquitted, but also those against whom, upon proclamation made, no evidence shall appear to indict them, which neither justices of peace nor justices of over and terminer can do: id. s. 6; see 14 Geo. 3, c. 20. It appears from the words of the commission, that justices of gaol delivery cannot, except in some special cases, try any persons who are not in actual or constructive custody of the prison specifically named in the commission: 2 Haw. P. C. c. 6, s.5; but bail is constructive custody: 2 H. P. C. 35. 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: 1 Chit. Cr. L. 146. The commission of oyer and terminer 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 court at Westminster, king's
counsel, serjeants, and associates ; but the judges, serjeants at law, and king's counsel therein mentioned, are to be of the quorum, so that the rest cannot act without the presence of one of them: 2 H. P. C. 23. And there must be four of the persons named in the commission present: 1 Saun. 249, a. The commission authorizes the person to whom it is directed, or three or four of them, to enquire of all treasons, felonies, and misdemeanors therein specially mentioned, and of all others in such and such counties, and to hear and determine the same at certain days and places to be appointed by them, &c. For which purpose the king acquaints them, that he hath sent a writ to the sheriff of such counties, commanding them to return a jury before them, at such days and places as shall be notified by them, in order to make enquiries of such offences: 2 Haw. P. C. c. 5, s. 22. Under this commission, persons may be tried, whether they be in gaol or at large: 1 Chit. Cr. L. 144. 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 may sue in that court which he prefers: 2 Haw. P. C. c. 5, s. 33. But the words of their commission being, "To enquire, hear, and determine,' justices of oyer and terminer cannot proceed upon an indictment taken before others than themselves: 2 H. P. C. 27.
20 Ed. 3, c. 3.
Item, We have ordained, that all they which shall be justices assigned by commission to hear and determine, and such as shall be associated to them, and also justices of assizes to be taken in the country, and of gaol delivery, and such as shall be assigned and associated to them, shall
make first an oath in certain points, according as to them shall be enjoined by our council in our chancery, before that any commission be to them delivered,
20 Ed. 3, c. 6.
Item, We will and have ordained, that the justices assigned to take assizes shall have commissions sufficient to inquire in their sessions of sheriffs, escheators, bailiffs of franchises, and their under ministers, and also of maintainers, common embraceors, and jurors in the country, and of the gifts, rewards, and other profits which the said ministers do take of the people to execute their office, and that which pertaineth to their office, and for making the array of pannels, putting in the same suspect jurors, and of evil fame, and of that maintainors, embraceors, and jurors do take gifts and rewards of the parties, whereby losses and damages do very grievously come daily to the people, in subversion of the law, and disturbance of common right.
6 Ric. 2, st. 1, c. 5.
Item, It is ordained and accorded, that the justices assigned and to be assigned to take assizes and deliver the gaols, shall from henceforth hold their sessions in the principal and chief towns of every of the counties, where the shire courts of the same counties be holden, and hereafter shall be holden.
8 Ric. 2, c. 2.
Item, It is ordained and assented
the chief justice of the common bench be assigned amongst other to take such assizes and deliver goods.
11 Ric. 2, c. 11.
Item, Whereas late in a statute made at Westminster, in the sixth year of the king's reign that now is, amongst other things it was ordained and accorded, that the justices assigned and to be assigned to take assizes and deliver gaols, should hold their sessions in the chief and principal towns of every county, that is to say, where the shire courts of the same counties be or hereafter shall be holden; our lord the king, considering how the said statute is in part prejudicial and grievous to the people of divers counties of England, will and grant of the assent aforesaid, at the request of the said Commons, that the Chancellor of England for the time being shall have power thereof to make and provide remedy, by advice of the justices from time to time, when need shall be, notwithstanding the said statute.
No person shall make justices but the king.
17 Ric. 2, c. 10.
Item, Forasmuch as thieves notoriously defamed, and others taken with the maner, by their long abiding in prison, after that they be arrested, be delivered by charters, and favourable inquests procured, to the great hindrance of the people, it is accorded and assented, that in every commission of the peace through the realm, where need shall be, two men of law of the same county where such commission shall be made, shall be assigned to go and proceed to the deliverance of such thieves and felons, as often as they shall think it expedient.
20 Ric. 2, c. 3.
Item, The king doth will and forbid, that no lord, nor other of the country, little nor great, shall sit upon the bench with the justices to take assizes, in their sessions in the counties of England, upon great forfeiture to the king, and hath charged his said justices that they shall not suffer the contrary to be done.
14 Hen. 6, c. 1.
1. Our lord the king hath ordained, by the authority of the said Parliament, that the justices before whom inquisitions, inquests, and juries, from henceforth shall be taken by the king's writ called nisi prius, according to the form of the statute thereof made, shall have power of all the cases of felony and of treason, to give their judgments, as well where a man is acquit of felony or of treason, as where he is thereof attainted, at the day and place where the said inquisitions, inquests, and juries, he so taken, and then from thenceforth to award execution to be made by force of the same judgments. (See the note, ante, p. 266.)
27 Hen. 8, c. 24.
II. Be it also enacted, &c. that no person or persons, of what estate, degree, or condition soever they be, from the said first day of July, shall have any power or authority to make any justices of eyre, justices of assize, justices of peace, or justices of gaol delivery; but that all such officers and ministers shall be made by letters patent under the king's great seal, in the names and by authority of the king's highness and his heirs, kings of this realm, in all shires, counties, counties palatine, and other places of this realm, Wales, and the marches of the same, or in any other his dominions, at their pleasure and wills, in such manner and form as justices of eyre, justices of assize, justices of peace, and justices of gaol delivery, be commonly made in