to take order for

chancellor to take order for the safe custody of such If found insane, person so long as there shall be reason to apprehend that c. chancellor the person of his majesty may be endangered, &c; and his safe custody. if it shall afterwards appear that such person shall have recovered the use of his reason, so that there shall be no longer any reason to apprehend any danger to his majesty's person, &c. it shall be lawful for the lord chancellor to inquire into the fact by such means as to him shall seem proper; and if it shall appear to his satis- Such person to faction that such person has so far recovered the use of be discharged only by chancelhis reason that there is no ground for apprehending any lor. danger to his majesty's person, &c. it shall be lawful for the lord chancellor to direct such person to be discharged from custody, either absolutely or conditionally, or ander restrictions, as to him shall seem meet. there is no corresponding act in Ireland.

To which

CHAP. XVI.

Of Courts of a Criminal Jurisdiction.

I SHALL reserve for the subsequent pages of this §. 1. 2 & 3. digest, the clause of the act of settlement 12 & 13 W. 3. c. 2. Eng. which respects impeachments in the high court of parliament; as also the clause of the 7 W. 3.

oyer

ner, &c. may

dlesex, notwith

c. 3. Eng. which not only respects the court of the high Commission of steward, but relates to all trials of peers for treason or and termimisprision of treason. But with respect to the court of be held for Midking's bench the 25 Geo. 3. c. 18. Eng. is to be here standing the sitting of the king's stated which recites, that the authority of justices under bench, c any commission of oyer and terminer or gaol delivery 25 Geo. 3.c.18. awarded into any county or place was suspended by the Eng. coming and sitting of the king's bench in such county, &c. and enacts, that when any session of oyer and termi

ner

38 Geo. 3.c.38.

Ir.

So for county and city of Dublin.

§. 4.

committed upon

how tried.

28 Hen. 8.c. 15.

Eng.

ner and gaol delivery of the gaol of Newgate for the county of Middlesex, shall have been begun to be holden before the essoign day of any term, the same session shall and may be continued to be holden, and the business thereof finally concluded, notwithstanding the happening of such essoign day of any term, or the sitting of the said court of king's bench at Westminster, or elsewhere in said county of Middlesex; and all trials, judgments, proceedings, &c. and all proceedings, &c. in pursuance of such judgments, had, made, and done at such session so continued to be holden after the essoign day of any term, &c. shall be good to all intents. And the 38 Geo. 3. c. 38. Ir. in a similar manner provides, that it shall be lawful for commissioners of oyer and terminer, and general or special gaol delivery, in and for the county of Dublin, and the county of the city of Dublin, respectively, to commence, hold, and continue their sessions during the time of term, and notwithstanding the court of king's bench may be sitting in the said counties respectively. And by s. 2. all precepts for holding any such sessions during term shall be valid.

IV. The 15 Ric. 2. c. 3. E. & I. which concerns the Treasons, &c. jurisdiction, criminal as well as civil, of the court of the sea, c. admiralty, has been already stated ante p. 57. But it was reserved for this place to state the following provisions of the 28 Hen. 8. c. 15. Eng. which enacts, that all treasons, felonies, robberies, murders, and confederacies, to be committed in or upon the sea, or in any haven, river, creek, or place, where the admiral or admirals have or pretend to have jurisdiction, shall be inquired, tried, heard, determined, and judged, in such shires and places in the realm as shall be limited by the king's commission to be directed for the same, as if such offence had been committed upon land; and such commissions shall be had under the king's great seal, directed to the admiral or his lieutenant,* deputy and here added in deputies, and to 3 or 4 such substantial persons as shall be appointed by the lord chancellor, from time to time,

"General"

11 12&13Jac.1

c. 2. Ir.

to

s. 2.

Commissioners

to hear and determine such offences after the common course of the laws of this realm used for treasons, &c. committed upon land. And by s. 2. such persons to whom such commissions shall be directed, or 4 of them at the least, shall have authority to inquire of such of- how to proceed. fences, by the oaths of 12 good and lawful inhabitants in the shire limited in their commission, in like manner as if such offences had been committed upon land within the shire; and every indictment found and presented before such commissioners of any treasons, felonies, robberies, murders, manslaughters, or such other offences, being committed upon the seas, or in or upon any haven, river, or creek, shall be good in law; and if any person be indicted for any such offence done upon the seas, &c. then such order, process, judgment and execution, shall be used, had, &c. to and against every such person so indicted, as against traitors, &c. for treason, felony, robbery, murder, or other such offence done upon the land is accustomed; and the trial of such offence, if it be denied by the offender, shall be had by 12 lawful men inhabiting in the shire limited within such commission; and no challenge to be had for the hundred; and such as shall be convict of any such offence Such offences by verdict, confession, or process, by authority of any how punished. such commission, shall suffer such pains of death, losses of lands, goods and chattels, as if they had been attainted and convicted of any treasons, &c. done upon the land. Provided (s. 5.) that whensoever any such commission shall be directed to any place within the jurisdiction of the five ports, such commission shall be Proviso as to the directed unto the lord warden of the said ports, or to his deputy, and unto 3 or 4 such other persons as the lord chancellor shall appoint. And by s. 6. whensoever any -commission shall be so directed unto the five ports, the inquisition and trial by virtue of such commission, shall be by the inhabitants of the said five ports. And the 39 Geo. 3. c. 37. Eng. recites the 28 Hen. 8. supra, and that it is expedient to declare that other offences s. 1. Eng. committed on the seas may be inquired of, &c. in like manner; and therefore enacts, and declares, that

s. 5.

cinque ports.

39 Geo. 3.c.37.

Provisions of the every 28 Hen. 8. extended to all ofoffence fences.

s. 2.

Manslaughter how punished.

11.12&13Jac. 1 c. 2. Ir.

offence which shall be committed upon the high seas out of the body of any county, shall be an offence of the same nature, and liable to the same punishments, as if committed upon the shore; and shall be inquired of, &c. in the same manner as treasons, &c. are directed to be by said act. And by s. 2. when any person shall be tried for murder or manslaughter committed upon the sea, by virtue of any commission directed under said act, and shall be found guilty of manslaughter only, such person shall be entitled to benefit of clergy, and be subject to the same punishment, as if he had committed such manslaughter upon the land. The 11. 12 & 13 Jac. 1. c. 2. Ir. contains clauses corresponding to the 28 Hen. 8. c. 15. s. 1 & 2. Eng. supra. And the 23 & 23 & 24 Gieo.3. 24 Geo. 3. c. 14. Ir. further enacts (s. 4.) that all commissions to be issued in virtue of the 11. 12 & 13 Jac. 1. c. 2. supra, shall be directed to the judge of the court of admiralty to be appointed as by s. 1. (vol. 1. p. 159.) is provided, and to 3 or 4 such other discreet persons as shall be appointed by the ford chancellor, pursuant to said act; and such commissioners, or any 2 of them, and none other, shall and may hear, &c. every offence named in said recited act, and shall have all powers which any justices of oyer and terminer, or gaol-delivery, may exercise in respect to said offences when committed upon the land within this realm. But the 39 Geo. 3. c. 67. Eng. supra, has not been followed by any similar statute in Ireland.

c. 14. s. 4. Ir.

What commis. sioners to try sich offences in Letand.

§. 5.

Who to be commissioners of oyer and terminer, &c.

c. 29. E. & 1.

V. With respect to the courts of oyer and terminer, and general gaol delivery, it was provided by the 13 Edw. 1. st. 1. c. 29. E. & I. that a writ of trespass (ad audiendum et terminandum) shall not be granted before 13 Edw. 1.st.1. any justices except justices of either bench, and justices in eyre, unless it be for a heinous trespass where it is necessary to provide speedy remedy, and the king shall 2 Fdw. 3. c. 2. thing it good to be granted. And the 2 Edw. 3. c. 2. E. & I. also enacts, that oyers and terminers shall not be granted but before justices of the one bench or the other, or the justices errant, and that for great hurt or horrible 3+ Elw. 3. c.1. trespasses, and of the king's special grace. And the 34 Edw. 3. c. 1. E. & I. further enacts, that writs of oyer

E. & 1.

L. & 1.

and

E. & I.

assizes, Justices of gaoldelivery how of

gaols at ten to sit, and And the what authority they shall have.

and terminer shall be granted according to the statutes thereof made, and that the justices thereto assigned shall be named by the court, and not by the party. And with respect to the justices of gaol delivery in particular, it was enacted by the 4 Edw. 3. c. 2. E. & I. that good and 4 Edw. 3. c. 2. discreet persons (other than of the place) shall be assigned in all the shires of England, [to take juries, and certifications,] and to deliver the least 3 times a year, and oftener if need be. 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 the said keepers shall send their indictments before the justices, and they shall have power to inquire of sheriffs, gaolers, and others, in whose ward such indicted persuns shall be, if they make deliverance or let to mainprize any so indicted which be not mainpernable, and to punish the said sheriffs, &c. And by the 4 Edw. 3. c. 10. E. & I. 4 Edw. 3. c.10. the sheriffs and gaolers shall receive and safely keep in E. & I. prison such thieves and felons as shall be delivered to Justices of gaolthem by the constables and townships, without taking delivery to inquire of defaults any thing for the receipt of prisoners. And the justices of sheriffs, &c. assigned to deliver the gaol shall have power to hear complaints against the sheriffs and gaolers in such case, and to punish such sheriffs and gaolers if they be found guilty. By the 3 Hen. 7. c. 3. E. & I. every sheriff, bailiff of franchise, and every other person E. & 1. having the authority of keeping of gaol, or of prisoners for felony, are required to certify the names of Sheriffs, &c. every such prisoner in their keeping, and of every pri- dar of prisoners to justices of soner to them committed for any such cause, at the next gaol-delivery. general gaol delivery in every county or franchise where such gaol shall be, there to be calendared before the justices of the deliverance of the same gaol, whereby they may, as well for the king as for the party, proceed to make deliverance of such prisoners according to law, upon pain to forfeit unto the king for every default thereof 100s. The 1 Edw. 6. c. 7. s. 5. Eng. is to be 1 Edw. 6. c. 7. here also stated, which provides, that where any person s. 5. Eng. shall be found guilty of any treason, murder, man

VOL. II.

AC

slaughter

in respect to pri

soners.

3 Hen. 7. c. 3.

to certify calen