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CHAPTER III.

THE PRELIMINARY PROCEEDINGS AT SESSIONS.

Of the Matters over which the Courts of Quarter Session have

a legal, or a customary, Jurisdiction ; and the order of proceeding therein respectively. The Duties of the Chairs man, and other Parties, preliminary to the making of presentments, the trials of offenders, the hearing motions, and

the determination of appeals, &c. Authority of By virtue of their commission, it is perfectly clear that the Sessions,

justices of the peace may execute all statutes made for the keeping of the peace, as well those made before the institution of their office, as since. *

But they have also, by several particular statutes, authority given them over offences, created, described, prohibited, or punished, by those statutes respectively, which

are not comprised in their commission. Justices of the The justices of the peace are not, in general, emphatipeacent de-cally, justices of oyer and terminer, for there is a distinct justices of Oyer commission of that description; therefore statutes which and Terminer. limit an offence to be tried before such justices, do not com

prehend justices of the peace. On this ground, although before judges of assize popular actions, and indictments for misdemeanours, may be presented and tried at the same session, they cannot be before justices of the peace, but by consent; although felonies may be, I and generally are.

In as general terms, then, as brevity recommends; but as comprehensive, at the same time, as precision seems to require; the authority of justices extends not to hear and determine treasons or præmunire, although they may apprehend and examine the offenders, as they may do in every case

Felonies.

2 Hawk. c. 8.

+ Hale, 165.

1 2 Hale, 48.

of felony whatever (of which these are but particular instances) and commit them for trial ; * nor forgery, nor perjury at common law, but to the saine extent, + because they have no tendency to a breach of the peace; nor usury, because it is an offence of modern creation, and no special jurisdiction over it is given to them.

Although the commission doth not mention murders and Murder and manslaughters by express name, but only felonies generally, Manslaughter. yet by such general word they have power to hear and determine murder and manslaughter, and also may take an indictment of se defendendo. I

But though justices of peace, by force of their commission, may have a general authority to hear and determine felonies, Fet it has been usually thought advisable for them to proceed no farther than as above, in relation to murder or manslaughter; nor indeed in any other crimes from which the benefit of the clergy is taken, and only in inferior offences, as petty larceny, misdemeanours, and such, to bind over to the sessions; but this is merely a point of discretion and convenience, not because they have not jurisdiction of the crimes ;ş nor is the practice unusual, for beside many sessons holden under charters, by which the power of life and death, according to the familiar expression, is specifically entrusted, there are others wherein the justices ordinarily try larcenies of every description and quality, and some other of the more aggravated offences.

By the stat. of Edw. 3. c. 1. and also by the express words Trespasses, of their commission, justices of the peace may hear and determine all, and all manner of, trespasses.

This is a word of very general extent, and in a large sense not only comprehends all inferior offences, which are properly and directly against the peace, as assaults and batteries, and the like, but also all others which are so only by construction, as all breaches of the law in general are said to be.

2 Hawk. c. 8.

+ Ibid.

* 2 Hale, 46. $ Ibid.-Pract. Expos. title Peace, Justices of, sect. 1.

Ibid.

ble before courts of session.

Yet, like perjury and forgery at common law, any of fences which do not directly tend to cause a personal wrong, or open violence, are not cognizable by them, unless it be by

the express words of their commission, or some statute. Subjects com- Assaults and batteries, barretry, cheats or obtaining money monly cogaiza

&c. under false pretences, combinations, conspiracies, embezzlements, engrossing, extortions, forestalling, gaming, larceny, lewdness, libels, nuisances, riots, the dissolution of apprenticeships, the disposal of vagrants, the whole system of the highway, and poor-laws, are among the subjects either expressly mentioned in their commission, or specially entrusted to them by statutes, and most commonly cognizable in some shape or other before courts of quarter session. Perjury is also made cognizable before them by statute,t but the offence is more commonly tried at common law

before the higher tribunals. Assembling of The court being assembled, (which must be before twelve the court.

of the clock at noon of the day for which it has been summoned, in order that such persons who have to take the Oaths of Office, of Supremacy, Abjuration, &c. may comply with the statutes which enjoin them,) the usual course is first to proclaim the session, which is done by a bailiff of the court in the following form:

Proclamation.

Oyez, O yez, O yez,– The King's justices do strictly charge and command all manner of persons to keep silence, while the King's commission of the peace for this county of .... is openly read, upon pain of imprisonment.

Then the commission, the King's proclamation against profaneness, &c. and the several statutes which are severally directed to be read at the sessions, ought so to be by the clerks of the peace, and town clerks respectively, in an audible voice. These were principally the following :-5 Eliz. c. 1. against popery; 30 Car. 2. c. 3. as to burying in woollen; 11 & 12 Will. 3. c. 15. as to ale measures; 1 Geo. 1. c. 5. as to riots; and the black act, 9 Geo. 1. c. 22. which have been required to be given in charge at every quarter

Statutes to be read.

* Salk 406.

+ 5 Eliz. c. 9.

disuse.

session; and the 4 & 5 Will. & Mar. c. 24. 7 & 8 Will. 3. c. 32. 3 & 4 Ann. c. 18. and 3 Geo. 2. c. 25. concerning jurors, which are to be read in Midsummer sessions yearly; and 2 Geo. 2. c. 24. for preventing bribery and corruption in the election of members of parliament, which is to be read at every Easter session.

Some of these have been repealed, or are to all intents Fallen into and purposes become obsolete, and a reasonable apology may be made for the general disuse into which the practice of reading others of them is fallen, from the notoriety which is attached to many of them that are still in full force, as well as from the pressure of business, which is of late prodigiously augmented, by recent statutes having thrown such a variety of additional burdens on justices, both in, and out of, sessions; an augmentation fully recognized by the legislature itself in express terms, in the preamble to the statute* hereinafter more particularly to be noticed, for enabling every quarter session of the peace to divide itself into two courts.

The persons who attend to take the several oaths are Oaths to be next called, and such oaths are administered to them by the clerk of the peace.t

Those of allegiance, supremacy, &c. themselves have been already given in a former chapter, and require no repetition : but it is necessary to notice two statutes passed in this King's reign, relative to the oaths to be taken by persons dissenting from the established church. The former of these relates to papists, who laboured under various disabilities, and were liable to numerous penalties, by previous statutes, but were relieved by the 31st of

taken.

59 Geo. 3. c. 28. † Persons qualifying for offices are directed to take the oaths between the hours of nine and twelve in the forenoon, and not otherwise; 25 Car. 2. c. 2.- Geo. 1. st. c. 13. But the oaths of allegiance, supremacy, &c. may be taken between the hours of one and two; it has been held a sufficient compliance with the statute however, if the ceremony of administering the oaths of qualification for offices be commenced previous to the last of the hours of limitation appointed by the statute, and continued till all are sworn.

Geo. 3. c. 32. on taking the oath therein prescribed as follows. *

“ It shall be lawful for persons professing the Roman Catholic religion, personally to appear in the Court of Chancery, King's Bench, Common Pleas, or Exchequer, at Westminster, or in any court of general quarter session of, and for, the county, city, or place where such person shall reside, and there in open court, take, make, and subscribe the declaration and oath."

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Papists' oath.

I, A. B. do hereby declare, that I do profess the Roman Catholic religion.

I, A. B. do sincerely promise and swear that I will be faithful, and bear true allegiance to his Majesty King George the Third, and him will defend, to the utmost of my power, against all conspiracies and attempts whatever that shall be made against his person, crown, or dignity ; and I will do my utmost endeavour to disclose and make known to his Majesty, his heirs and successors, all treasons and traiterous conspiracies which may be formed against him or them; and I do faithfully promise to maintain, support, and defend, to the utmost of my power, the succession of the crown, which succession by an Act, entitled, • An Act for the further limitation of the crown, and better securing the rights and liberties of the subject, is and stands limited to, the Princess Sophia, electress and duchess dowager of Hanover, and the heirs of her body, being protestants ; hereby utterly renouncing and abjuring any obedience or allegiance unto any other person claiming, or pretending a right to, the crown of these realms; and I do swear that I do reject and detest as an unchristian and impious position, that it is lawful to murder or destroy any person or persons whatsoever, for or under the pretence of, their being heretics or infidels; and also that unchristian and impious principle, that faith is not to be kept with heretics or infidels; and I further declare, that it is not an article of my faith, and that I do renounce, reject, and abjure the opinion, that princes excommunicated by the Pope and Council, or any authority of the See of Rome, or by any authority whatsoever, may be deposed or murdered by their subjects, or any person whatsoever; and I do promise that I will not hold, maintain, or abet, such opinion, or any other opinions contrary to what is expressed in this declaration ; and I do declare that I do not believe, that the Pope of Rome, or any other foreign prince, prelate, state, or potentate, hath, or ought to have, any temporal or civil jurisdiction, power, superiority, or

This oath is directed to be taken between nine in the morning and iwo in the afternoon.

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