the officers of the forest, and all those that claim liberties or franchises there. 2 Inst. 291.

Before the st. de ch. foresta, all earls, barons, and others, in the county where the forest is, ought to appear at the general summons: but by that st. c. 2. homines qui manent extra forestam non veniant de cætero. Manw. 495.

And therefore, all out of the forest, if they have no suit or claim, nor are pledges for others, need not appear. Ibid.

Or, if they have no lands, nor are officers there. Manw. 497.

So, barons of the realm, persons spiritual, women, servants, infants under twelve, sick men, or men above seventy, need not appear upon the general summons, though they are within the forest, if they have no claim, and their free tenants appear. Manw. 498. Cont. Jon. 278. So, a man may make a claim, or traverse an indictment against him by attorney. Manw. 500.

So, if an officer make a deputy, he may appear by his deputy.

Jon. 278.

If an officer of the forest does not appear, his office shall be seized for the king. Jon. 266. Manw. 497.

So, if he does not bring in his rolls. Manw. 506.

So, if a free tenant within the forest does not appear, his land shall be seized into the king's hands. Manw. 500.

If four men and the reeve of any town do not appear, the whole town shall be amerced; but for a default afterwards every one shall answer for himself. Jon. 279.

Every forester upon his appearance delivers his horn upon his knees to the justice in eyre, and pays 6s. 8d. for the re-delivery; and every woodward delivers his hatchet. Jon. 266.

(G) Justices of oyer and terminer.

(G 1.) How appointed.

Justices of oyer and terminer are by a general commission, or assigned for a special purpose. 2 Inst. 419. 4 Inst. 162.

(C 2.) Prærogative, (D 28, 29.)

Vide ante,

And ought to be appointed by commission, and not by writ. 4 Inst. 164. H. P. C. 161.

And the commission ought to be in Latin, not in English. R. 12 Co. 31. (b).

And ought to contain the offences within the commission itself, and not in a schedule annexed. R. 12 Co. 31.

But others may be joined by a writ of association, admittance, and si non omnes. F. N. B. 111. B. 4 Inst. 165. H. P. C. 161. Vide Assise, (B 22.)

And if any of the commissioners or associates die, there may be another writ of association for others. F. N. B. 111. D.

(G 2.) Who shall be.

By the st. 34 Ed. 3. 1. justices of oyer and terminer ought to be named by the court., and not by the party.

And, by the st. 2 Ed. 3. 2. and W. 2. 29., they shall be justices of the one bench, or the other, or justices errant.

(6) But now all commissions shall be in English. Stat. 4 Geo. 2. c. 26. s. 1.

Pp 3.

And

And therefore, justices of assise are usually provided with a general commission of oyer and terminer.

But justices of peace, though by the st. 18 Ed. 3. 2. 34 Ed. 3. 1. and 17 R. 2. 10. they have power to hear and determine, are not intended by a statute which gives authority to justices of oyer and terminer. 2 Rol. 96. 1. 25. H. P. C. 165. (c)

(G 3.) In what cases.

By the st. W. 2. 29. and 2 Ed. 3. 2. commissioners of oyer and terminer for grievous trespasses ought to be of the king's special grace. 4 Inst. 163. Reg. 123.

And the general commission is, for all treasons, felonies, riots, trespasses, and other offences. 2 Inst. 419.

And regularly, it shall be granted, when a great assembly, insurrection, or a heinous trespass is committed. F. Ñ. B. 110. B.

So, it may be granted for a special purpose, as upon a rescous made upon the king's bailiff. F. N. B. 112. A.

Upon a seizure of goods for wreck by malefactors, which are not wreck. F. N. B. 112. C. 4 Inst. 163. Reg. 126.

Upon extortions, or oppressions by under-sheriffs, bailiffs, or other officers. F. N. B. 112. D. 4 Inst. 163. Reg. 126.

Hunting in the parks of a bishop in time of vacation. F. N. B. 112. G. Reg. 125. 127.

Defaults in sewers or walls against the sea. F. N. B. 113. A. Reg. 127. Sewers (A).

Collecting of toll, &c. by misdoers, when due to a corporation. F. N. B. 114. C. 119. F.

But it ought not to be granted in cases not usual, or allowed by parliament. Ibid. Vide Prærogative, (D 29.)

And it may be superseded, quia non enormis. 2 Inst. 419, 420. 4 Inst. 163.

Though it may be afterwards revived by procedendo if it appears to be enormis. Ibid.

(G 4.) Their authority.

Justices of oyer and terminer have authority of all offences within their commission.

Or, which by statute are to be determined in any court of record, or the king's court of record. 4 Inst. 164. Qu. H. P. C. 161.

Or, which are prohibited by statute, but nothing said, in what court to be punished. Dal. 24. 4 Inst. 164.

They may determine the same day in which the inquiry is taken. Ibid.

And they ought to send a precept to the sheriff for a jury, under hand and seal. Ibid.

But commissioners of oyer and terminer cannot proceed upon an indictment not taken before themselves. Ibid.

So, they cannot assign a coroner to an approver. 4 Inst. 165.

(c) By 12 Geo. 2. c. 27. any person appointed may act as justice of oyer and terminer, or gaol-delivery, in his own county, notwithstanding st. 8 R. 2. and 33 II. 8.

So, the commission of oyer and terminer will be determined, if there be no adjournment. 4 Inst. 165.

So, if a new commission be granted and shewn to them. Ibid. Or, a new commission be proclaimed, or the sessions held by it. Ibid.

But by the st. 1 Ed. 6, 7. the commission shall not be determined by making or publishing a new commission or association, or altering the names of any of the justices or commissioners. Ibid. (d)

(H) Justices of gaol-delivery.

By the st. 27 Ed. 1. de finibus levatis, justices of assise shall deliver the gaols of all prisoners, within liberties, or without.

And by the st. 4 Ed. 3. c. 2. good and discreet persons shall be assigned to deliver gaols thrice a year, or oftener if need be.

And therefore, justices of assise have usually a commission ad gaolas in com. A. de prisoner' in eá existen. hac vice deliberand'. 4 Inst. 168. And by some, they may do it virtute officii, without commission. H. P. C. 164.

So, others may be associated to them by writ of association, and admittance. 4 Inst. 169.

Or, they may be enabled by a writ si non omnes, &c. to act, though some be absent. Ibid.

But if there be a charter to bailiffs and recorder, cum aliis quos the king shall appoint, to deliver the gaol, &c. it will be void; for they can act only with others who cannot act but by commission, and so their authority is founded upon the commission, and the charter is void, for the king was deceived. R. 1 And. 296. (e)

(I) The duty of judges.

(I 1.) They ought to do justice according to law.

A judge ought to act conformably to law, and not according to dis

cretion.

By the st. 20 Ed. 3. 1. All our justices we command to do equal right and law to all our subjects, rich and poor, without regard to any person, or for letter or command from us, or any other, or for any other cause.

By the same statute, justices shall be sworn to take no fee, gift, reward, &c., to give no council, &c. Vide Officer, (I).

(d) The same of justices of gaol-delivery by the same statute. (e) 1. Justices of gaol-delivery may arraign any man imprisoned in that gaol on an indictment before justices of peace, though not found before themselves, which justices of oyer and terminer camot do. 2. They may take a panel of a jury returned by the sheriff without making any precept to him. 3. They may discharge prisoners by proclamation, may assign a coroner to an approver, and make process against the appellee in a foreign county; may award execution against a prisoner, who had been indicted before justices of peace, and thereupon outlawed; and may deliver the gaol of prisoners committed for high treason. 4 Inst. 169.-4. They may give judgment of death against any person found guilty of treason, &c. before former commissioners, and reprieved. St. 1 Ed. 7. c. 7. s. 5. 5. They, as well as justices of oyer and terminer, must send their records and process determined, and put in execution to the exchequer at Michaelmas every year, to be kept by the treasurer and chamberlains in the treasury. 4 Inst. 165. 169. Pp 4

Though

Though there be a letter from the king, no regard shall be had to it. Hob. 16. (f)

(I 2.) Ought to do it without delay.

By the st. 20 Ed. 3. 2. We have charged the barons of the exchequer that they do right to all our subjects, great and small, without delay, &c. (I 3.) Shall not be judge, and party.

But none can be a judge in his own cause.

If there be an action in the court of mayor and aldermen upon a byelaw, where the penalty is given to the mayor, it is error. 398. Vide Courts, (P. 16.)

R. 1 Sal. Though the court be held by the recorder, and the mayor is absent; for it is the court of the mayor and aldermen, and the recorder acts for him. R. 1 Sal. 398.

So, if the chief justice of C. B. sues there before himself, et sociis suis. Ibid.

So, a judge of C. B. cannot take a fine from himself. 1 Sal. 398. So, a justice of peace being concerned, an order at the sessions before him, et aliis sociis suis, is bad. R. Sal. 607. (g)

So, if any judge has an interest, he or his deputy cannot hear the cause, or sit in court; and if he does in Chester, &c. a prohibition. goes. R. Hard. 503.

So, if A. sues an assise before M. and W. justices of assise, and M. dies, and by writ of association A. is associated with W. to be judge of assise; the suit by A. shall cease, for he cannot be judge in his own cause, and W. cannot proceed without him. R. 45 Ass. 3. 8 H. 6. 20.

Yet, a judge of court may sue before the other judges of the same court, if the court can be held without him: as, the chief justice of C. B. may sue there, if the entry be coram J. Blencowe, &c. 1 Sal. 398. So, an alderman in the court of aldermen in London, by custom. R. Sal. 425. 2 Lev. 200.

So, in an action by A. who is mayor, &c. before himself, it is no error, if he does not appear by the record to be mayor. 2 Rol. 93. 1. 27. 1 Sal. 398.

(K) High treason; what shall be.

(K 1.) If one compass the death of the king, queen, or their eldest son.

High treason (h) is the greatest and most heinous (i) offence against the king. St. P. C. 1.

By

(ƒ) If a cause has been argued, and stands over on an ulterius concilium, and a new judge is made since the former argument, it must be argued by new counsel; if it stands over for the opinion of the court, and it is argued again only for the information of the new judge, it may be argued by the former counsel. West v. Morris. M. 11 G. 2. Andr. 5.

(g) On an appeal to the sessions against an order of removal, those justices who are rated to the relief of the poor in either of the contending parishes cannot vote. 4 T. R. 71.

(h) 1. Treason, proditio, in its very name (which is borrowed from the French trahir,' imports a betraying, treachery, or breach of faith. 4 Com. 75.-2. It therefore hap

pens

By the common law, divers offences were treason, which now are not. (k)

But by the st. 25 Ed. 3. 2. Pur ceo que divers opinions ount estre en que case doit estre dit treason, en que nemy, (l) le royal re

pens only between allies: for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation: and the inferior so abuses that confidence, so forgets the obligations of duty, subjection and allegiance, as to destroy the life of any such superior or lord. Ibid. LL. Aelfredi. c. 4. Aethelst. c. 4. Canuti, c. 54. 61. Mirr. c. 1. s. 7.—3. This is looked upon as proceeding from the same principle of treachery in private life, as would have urged him who harbours it to have conspired in public against his liege lord and sovereign; and therefore for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary; these being breaches of the lower allegiance, of private and domestic faith, are denominated Petit treasons. But when disloyalty so rears its crest, as to attack even majesty itself, it is called, by way of eminent distinction, High treason, Alta Proditio; being equivalent to the crimen læsæ majestatis of the Romans, as Glanvil denominates it also in our English laws. 1. 1. c. 2. 4 Com. 75.

(i) Our sympathy with the calamities of others, is in proportion to their condition in life; and every injury done to kings excites in our hearts ten times more resentment, than had the same things happened to other men. In spite of all that reason and experience can tell us to the contrary, the prejudices of the imagination attach to this state a happiness superior to any other; to disturb, therefore, such perfect enjoyment, seems to be the most atrocious of injuries. All the innocent blood that was shed in the civil wars and French revolution, provoked less indignation than the deaths of Charles and Louis. Views of utility, too, strengthen these sentiments; the consequences of treason being of all the most prejudicial.

(k) 1. That is to say, by the antient common law, there was a great latitude left in the breast of the judges, to determine what was treason, or not so; whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons; that is, to raise, by forced and arbitrary constructions, offences into the crime and punishment of treason, which never were suspected to be such. 4 Com. 75.-2. Thus the accroaching, or attempting to exercise royal power (a very uncertain charge) was in the 21 Edw. 3, held to be treason in a knight of Hertfordshire, who forcibly assaulted and detained one of the king's subjects till he paid him 907.; a crime, it must be owned, well deserving of punishment; but which seems to be of a complexion very different to that of treason. 1 Hale's P. C. 80. 4 Com. 76.-3. Killing the king's father, or brother, or even his messenger, has also fallen under the same denomination. Britt. c. 22. 1 Hawk. c 34.4.-4. The latter of which is almost as tyrannical a doctrine as that of the imperial constitution of Arcadius and Honorius, which determines that any attempts or designs against the ministers of the prince shall be treason. 'Qui de nece virorum illustrium, qui consiliis et consistorio nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujuslibet postremo, qui militat nobiscum, cogitaverit: (eadem enim severitate voluntatem sceleris, quâ effectum, puniri jura voluerunt) ipse quidem, utpote majestatis reus, gladio feriatur, bonis ejus omnibus fisco nostro addictis.' Cod. 9. 8. 5. 4 Com. 76.-5. So it was treason for a subject of this realm to summon another subject to appear before the tribunal of a foreign prince. 3 Inst. 7.

(1) Les loix de la Chine décident, que quiconque manqué de respect a l'Empereur doit être puni de mort. Comme elles ne définissent pas ce que c'est que ce manquement de respect, tout peut fournir un prétexte pour ôter la vie à qui l'on veut, et exterminer la famille que l'on veut. Deux personnes chargées de faire la gazette de la cour, ayant mis dans quelque fait des circonstances qui ne se trouverent pas vraies; on dit que mentir dans une gazette de la cour, c'étoit manquer de respect a la cour; et on les fit mourir. Un prince du sang ayant mis quelque note par mégarde sur un mémorial signé du pinceau rouge par l'Empereur, on décida qu'il avoit. Manqué de respect à l'Empereur; ce qui causa contre cette famille une des terribles, persécutions dont l'histoire ait jamais parté. C'est assez que le crime de lese majesté soit vague, pour que le Gouvernement dégcnere en despotisme.' Montesquicu, De l'Esprit des Loix, 1. 12. c. 7.

quest