CRIMINAL LAW. Having thus given an outline of the establishments for relief of the fubject in cafes of property, and a general view of the mode of trial by jury, it remains to defcribe the nature of offences against the well-being of fociety, which are the objects of legal vengeance, with the courts which are formed, and the perfons who are empowered to adminifter this most important office. CRIMES AND MISDEMEANORS. A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and mifdemeanors; which, properly fpeaking, are fynonymous terms; though, in common ufage, the word "crimes" is made to denote fuch offences as are of a deeper and more atrocious dye; while fmaller faults, and omiffions of lefs confequence, are comprised under the gentler names of "mifdemeanors" only. The diftinction of public wrongs from private, of crimes and misdemeanors from civil injuries, it is faid, feems principally to consist in this, that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, confidered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, confidered as a community in its focial aggregate capacity. COURTS. Before the various crimes reftricted by the law of England are described, it is proposed to mention the courts which are empowered to take cognizance of them. PARLIAMENT. The criminal jurifdiction of the high court of parliament has been already treated on at length. COURT OF THE LORD HIGH STEWARD. The former authority, and decline of the office of lord high fteward have already been noticed. Since the office has ceafed to be permanent, the court is also only occafional, being inftituted for the trial of peers indicted for treafon or felony, or for mifprifion of either. When fuch an indictment is therefore found by a grand jury of freeholders in the king's bench, or at the affizes before the juftices of oyer and terminer, it is removed, by a writ of certiorari, into the court of the lord high fteward, which only has the power to determine it; a high fteward is then nominated pro hac vice only, and it has always been cuftomary, and is confidered neceffary, that he fhould be a lord of parliament, as he elfe would would be incapable of fitting in judgment on a delinquent peer. The nobleman accufed may plead a pardon before the court of king's bench, and the judges have power to allow it, in order to prevent the trouble of appointing an high fteward, merely for the purpose of receiving fuch plea. But he may not plead, in that inferior court, any other plea; as guilty, or not guilty, of the indictment: but only in this court of the high fteward; becaufe, in confequence of fuch plea, it is impoffible that judgment of death can be awarded against him. The king therefore in the commiffion under the great feal, which creates a lord high fteward, recites the indictment fo found, and gives his grace power to receive and try it, according to the law and custom of England. Then, when the indictment is regularly removed, by writ of certiorari, commanding the inferior court to certify it up to him, the lord high fteward directs a precept to a ferjeant at arms, to fummon the lords to attend and try the indicted peer. This, precept was formerly iffued to fummon only eighteen or twenty, felected from the body of peers then the number came to be indefinite; and the cuf tom was, for the lord high fteward to fummon as many as he thought proper, (but of late years not lefs than twentythree,) and that thofe lords only should fit upon the trial. This fyftem threw a great power into the hands of the crown, and this its great officer, of felecting only fuch peers as the then predominant party fhould moft approve of; and accordingly when the earl of Clarendon fell into difgrace with Charles II. a defign was formed to prorogue the parliament, in order to try him by a felect number of peers; it being doubted whether the whole houfe could be induced to comply with the views of the court. But now, by ftatute 7 W. III. c. 3. upon all trials of peers for treafon or mifprifion, all the peers who have a right to fit and vote in parliament must be fummoned, at leaf twenty-fix days before, to appear and vote on the trial; and every lord appearing may vote, firft taking the oaths of allegiance and fupremacy, and fubfcribing the declaration against popery, During the fellion of parliament, the trial of an indicted peer is not properly in the court of the lord high fteward, but before the court of our lord the king in parliament. It is true, a lord,high steward is always appointed in that case to regulate and add weight to the proceedings: but he is rather in the nature of a speaker pro tempore, or chairman of the court than the judge of it: for the colle&tive body of the peers are the judges both of law and fact, and the high fteward has a vote with the reft, in right of his peerage. But in the court of the 002 lord lord high fteward, which is held in the recefs of parliament, he is the fole judge of matters of law, as the lords triors are in matters of fact; and as they may not interfere with him in regulating the proceedings of the court, fo he has no right to intermix with them in giving any vote on the trial. Therefore, on the conviction and attainder of a peer for murder in full parliament, it has been holden by the judges, that in cafe the day appointed in the judgment for execution hould lapfe before execution done, a new time of execution may be appointed by either the high court of parliament, during its fitting, though no high fteward be exifting; or, in the recefs of parliament, by the king's bench, the record being removed into that court. COURT OF KING'S BENCH. This court, as already has been faid, is divided into a crown fide, and a plea fide. On the crown fide, or crown office, it takes cognizance of all criminal caufes, from high treafon down to the moll trivial mifdemeanor or breach of the peace. Into this court also indi&ments prefented in inferior courts may be removed by writ of certiorari, and tried either at bar, or at nifi prius, by a jury of the county, out of which the indictment is brought. The judges of this court are the fupreme coroners of the kingdom. And the court itfelf is the principal court of criminal jurifdiction, known to the laws of England. For this reafon, the coming of the court of King's-Bench into any county, (as it was removed to Oxford, on account of the fickness in 1665,) at once absorbs and determines all former commiflions of oyer and terminer, and general jail deli very. COURT OF CHIVALRY. This was alfo a criminal court, when held before the lord high conftable of England jointly, with the earl marshal, but it is now fallen into difufe. COURT OF ADMIRALTY. The high court of admiralty held before the lord high admiral of England or his deputy, Ayled the judge of the admiralty, is not only a court of civil, but alfo of criminal jurifdiction. This court has cognizance of all crimes and offences committed either on the fea, or on the coafts, out of the body, or extent of any English county; and by ftatute 15 Ric. I. c. 3. of death and mayhem happening in great fhips, being and hovering in the main ftream below the bridges, which are then a fort of ports or havens; fuch as are the ports of London and Gloucester, though they lie at a great diftance from the fea. But, as this court proceeded without jury, in a method much conformed to the civil law, the exercife of a criminal jurifdiction there was contrary to the genius of the law of England; in fo much as a man might there be deprived of his life, by the opinion of a fingle judge, without the verdict of his peers. And, befides, as innocent perfons might thus fall a facrifice to the caprice of a fingle man, fo grofs offenders might, and did frequently, efcape punishment: for the rule of the civil law is that no judgment of death can be given against offenders, without proof by two witneffes, or a confeffion of the fact by themfelves. This was always a great offence to the Engfish nation and therefore in the eighth year of Henry VI., it was endeavoured to apply a remedy in parliament: which then mifcarried for want of the royal affent. However, by the ftatute 28 Hen. VIII. c. 15. it is enacted," that all felonies and robberies, &c. upon the fea, or in any haven, river, creek, or place, where the admiral or admirals have, or pretend to have, power, authority or jurifdiction, fhall be inquired, tried, heard, determined, and judged, in fuch fhires and places in the realm, as fhall be limited by the king's commiffion to be directed for the fame, in like form and condition, as if any fuch offences had been committed on the land; and fuch commiflions fhall be had under the king's great feal, directed to the admiral or admirals, or to his or their lieutenant, deputy or deputies, and to three or four fuch other fubftantial perfons as fhall be named or appointed by the lord chancellor of England, as need fhall require, to hear and determine fuch offences after the common courfe of the law, used for felonies committed on the land. And such order, procefs, judgment, and execution fhall be used against fuch perfons, as against felons on the land; and fuch as fhall be convicted of any fuch offence, by verdict, confeffion, or procefs, by authority of any fuch commiffion, fhall fuffer fuch pains of death, loffes of lands, goods, and chattels, as if they had been attainted and convicted of fuch offence on the land; and alfo, that they fhall be excluded from the benefit of the clergy." As this ftatute did not extend to acceffaries, the defect was remedied by fome fubfequent acts. By 1 Anne, feff. 2. cap. 9. captains and mariners belonging to fhips, and deftroying the fame at fea, are to be tried in fuch places as fhall be limited by the king's commiffion, and according to 28 Hen. VIII. cap. 15.; and by 4 Geo. I. cap. 11. all perfons, who fhall commit any offence, for which they ought to be adjudged pirates, felons, or robbers, by 11 & 12 Will. III. cap. 5. may be tried and judged for every fuch offence according to the form of 28 Hen. VIII. cap. 15. and fhall be excluded from their clergy. Indictments for these offences are found by a grand jury, and afterwards tried by a petty jury. The judge of the admiralty ftill prefides in this court, as the 003 lord lord mayor is the prefident of the fession of oyer and terminer in London, COURTS OF OYER AND TERMINER AND GENERAL JAIL DELIVERY. These courts are held before the king's commiffioners, among whom are ufually two judges of the courts at Westminster, twice in every year, in every county of the kingdom; except the four northern ones, where they are held only once, and London and Middlefex, wherein they are held eight times. It has already been obferved, that at what is ufually called the affizes, the judges fit by virtue of five feveral authorities. By virtue of the commission of affize and its attendant jurifdiction of nifi prius, the juftices exercise their power in civil caufes; they have alfo, by virtue of feveral statutes, a criminal jurifdiction in certain fpecial cafes. Their commiffion of the peace gives them authority over the juftices of the peace refiding in the county, who are bound by law to attend them, or elfe are liable to a fine; in order to return recognizances, &c. and to affift the judges in fuch matters as lie within their knowledge and jurifdiction, and in which fome of them have probably been concerned, by way of previous examiation. The fourth authority is the commiffion of oyer and terminer, to hear and determine all treafons, felonies, and mifdemeanors. This is directed to the judges and feveral others, or any two of them; but the judges, or ferjeants at law, only are of the quorum, fo that the reit cannot act without the prefence of one of them. The words of the commiffion are," to inquire, hear, and determine:" fo that, by virtue of it, they can only proceed upon an indictment found at the fame affizes; for they must first inquire, by means of the grand jury or inqueft, before they are empowered to hear and determine by the help of the petit jury. Therefore they have befides, fifthly, a commiffion of general jail delivery; which empowers them to try and deliver every prifoner, who fhall be in the jail when they arrive at the circuit town, whenever or before whomfoever indicted, or for whatever crime committed. It was anciently the courfe to iffue fpecial writs of jail delivery for each particular prifoner, which were called the writs de bons et malo: but thefe being found inconvenient and oppreffive, a general commiffion for all the prifoners has long been established in their ftead. Thus the jails are, in general, cleared, and all offenders tried, punished or delivered, twice in every year: a conftitution of fingular ufe and excellence. Sometimes, alfo, upon urgent occafions, the king iflues a fpecial or extraordinary commiffion of oyer and terminer, and jail delivery, confined to thofe offences which ftand in need of immediate inquiry and punishment: upon |