JUSTICES of oyer and terminer are of two kinds, viz. Justiciarii ordinarii, such is the court of king's bench, the supreme ordinary court of oyer and terminer, and is comprised within the statutes, that give power to justices of oyer and terminer, as hath been already said.

The delegate or commissionate justices of oyer and terminer are those, who are by commission, which usually is granted in the circuits directed to justices of assise and divers others, or any three of them, whereof commonly one of the justices of assise is of the quorum; and it is ad inquirendum per sacramentum proborum & legalium hominum of the [ 23 ] several counties de quibuscunque proditionibus, &c. and divers other offenses therein mentiond, ac de ominibus injuriis & malefactis quibuscunque in comitatibus Bucks, &c. eaque omnia audiendum & terminandum, facturi inde quod ad justitiam pertinet secundum legem & consuetudinem regni Angliæ, &c. and this to be done tàm infra libertates quàm extra.

This commission is specially called a commission of oyer and terminer; and therefore, altho justices of peace have a clause in their commission ad audiendum & terminandum felonies, &c. yet justices of peace come not under the name of justices of oyer and terminer within those acts of parliament, that mention justices of oyer and terminer; as upon the statute of 5 Eliz. cap. 14. for forgery, as shall be said farther hereafter in the chapter of justices of peace. 9 Co. Rep. 118. b. lord Sunchar's case, Co. P. C. cap. 41. p. 103.

But the justices of the court of king's bench are the sovereign ordinary commissioners of oyer and terminer, as hath been before said.

My lord Coke in his 4 Instit. cap. 28 & 30. hath laid together the learning of the courts of oyer and terminer and gaol-delivery, whose method I shall follow.

Commissioners of oyer and terminer before their sessions, issue a precept to the sheriff much of the same form as commissioners of gaol-delivery do; see the form thereof, Rast. Entries 443. b. title oyer and terminer. 1 E. 3.

1. The justices of oyer and terminer in criminal causes cannot be by writ, but must be by commission under the great seal; otherwise their proceedings are void. 42 Assiz. 12.

2. Both in commissions of oyer and terminer and of gaoldelivery, and other commissions of like nature directed to one or more, there may be additional commissions of association, and thereupon writs are to issue to the former commissioners de admittendo in societatem; and if all cannot attend the session, a writ of Si omnes interesse non positis, tunc vos tres vel duo vestrum, quos præsentes esse contigerit, (quorum aliquem vestrúm, A. B. vel C. D. unum esse volumus,) ad præmissa faciend' intendatis. &c. Vide F. N. B. p. 111, 112.

3. Justices of oyer and terminer or gaol-delivery, if [24] they once sit without adjournment, their commission is determined; but tho they be appointed only pro hâc vice, yet they may continue their sessions from day to day by adjournment; the like for all other commissions.

But it is not always necessary nor usual to enter their adjournment on record, (tho it might be fit in many cases,) and then if it be not entered on record, their session always relates to the first day, and so are their records entered as of the first day of the session.

But in some cases it is absolutely necessary to enter their adjournments on record, as where an indictment is taken the first day of the session before justices of oyer and terminer, and they make a precept to the sheriff to return a jury the next day, or at any following day, upon the prisoner's plea of not guilty, there must be a record made of the adjournment of the sessions to that day, otherwise it will be erroneous, (because without such entry the whole sessions will be supposed in law to be held the first day,) and out of the sessions; the like for justices of peace.

So if after the first day of the sessions either of oyer and terminer, or gaol-delivery, there be a felony committed, and the party indicted for it, there must be an entry of the adjournment, at least till the day of the indictment taken, because otherwise the felony will be supposed in law to be committed after the determination of the sessions. 14 Car. 1. Sampson's case. (a)

4. Commissions of oyer and terminer, gaol-delivery, and regularly all other commissions are determined by one of these four ways. 1. By a session and non-adjournment, as before. 2. By the king's death: yet it is held, tho in strictness of law the commissions be determined by the king's death, so as no proclamation without an act of parliament can give them continuance, but they must have new commissions, Croke, 1 Car. 1. p. 1. yet the acts they do by virtue of these commissions after the king's death, and before notice thereof, stand good. M.

(a) W. Jones, 420.

3 Car. O. B. Croke, p. 97, 98. in Sir Randolph Crew's case.(*) 3. By express Supersedeas by a writ; but this Supersedeas by writ, tho it be a Supersedeas omnino, yet [25] is not an absolute repeal of the commission, but only

a suspension, for it may be renewed again by a writ of Procedendo, 12 Assiz. 21. adjudged. 4. By the issuing a new commission of the same nature in the same county, and notice thereof.

And therefore before the former commission be determind, there must be notice, which is, of three kinds. 1. By shewing the new commission; this determines the former, as to all those and those only to whom it is shewn. 2. By a proclamation of the latter commission in the county; this determines the former commission, wholly. 3. By a session in the county by force of the latter commission in the county. Coke, 4 Instit. cap. 28. p. 165.

If a general commission of oyer and terminer, gaol-delivery, or the peace, issue for the county at large; and afterwards a special commission of the like nature for one town, or for the loca maritima of that county, this new commission, with notice as before, doth determine the general commission pro tanto. 25 Eliz. Lacie's case, 1 Leon, n. 363. p. 270. & supra, cap. præcedente.

And so è converso, if a special commission of oyer and terminer, gaol-delivery, or the peace, issue for a particular town or city, not being a county, or for the loca maritima, a general commission of the like nature in the county, with such

a notice as before, determines the special commission: [ 26 ] But by the statute of 2 & 3 P. & M. cap. 18. this is helped as to special commissions in cities and towns corporate, as hath been before said; but that statute is to be intended only of towns or cities, as it seems, (quæré) and extends not to com

(*) But now by 7 & 8 W. 3. cap. 27. and 1 Ann. cap. 8. it is enacted, “That no commission either civil or military, That no patent or grant of any office or imployment either civil or military, That no commission of assise, oyer and terminer, general gaol-delivery, or of association, writ of admittance, writ of si non omnes, writ of assistance, or commission of the peace shall be determind by the demise of any king or queen of this realm, but shall continue in full force for six months next ensuing notwithstanding such demise, unless superseded and determind by the next successor: And also no original writ, writ of Nisi prius, commission, process, or proceedings whatsoever in, or issuing out of any court of equity, nor any process or proceeding upon any office or inquisition, nor any writ of Certiorari, or Habeas Corpus in any matter or cause either criminal or civil, nor any writ of attachinent, or process for contempt, nor any commission of delegacy, or review for any matters ecclesiastical, testimentary, or maritime, or any process thereupon shall be determind, abated or discontinued by the demise of any king or queen of this realm, but shall remain in full force, as if such king or queen had lived."

missions of oyer and terminer. 4 Co. Instit. p. 165. in margine.

But if there be a general commission of oyer and terminer, or gaol-delivery, or peace for the whole county, and a special commission of the same nature to a liberty, hundred, or other precinct, as in a hundred, liberty, or franchise within the county, and both bear teste the same day, they all stand. Thus it is in Suffolk, where there have been always three commissions of gaol-delivery to the justices of assize, one for the county at large, another for the franchise, another for the town of Bury, and they impanel several grand juries, and sit and act respectively by each commission.

And the justices of gaol-delivery in the franchise must sit in the franchise by the statute of 27 H. 8. cap. 24. and the reason is, because antiently the abbots of St. Edmund's-Bury did by virtue of the king's letters patent, constitute their own justices of gaol-delivery in the franchise and town; and therefore the sessions of gaol-delivery is fittest to be held at Bury; but the commission of oyer and terminer extends tàm infra libertates, quàm extra; but of this vide cap. prox.

But a commission of one nature doth not supersede a commission of another nature, as a commission of oyer and terminer is not repealed by a subsequent commission of gaol-delivery or the peace, nor è converso, for they are of several natures. 3 Mar. B. Commission 24.

These things before-mentiond are common to all judiciary commissions; these that follow, more particularly concern general commissions of oyer and terminer.

1. Regularly upon the commission of oyer and terminer there should issue a precept to the sheriff in the name of three commissioners at least, whereof one of the quorum, and under their particular seals, bearing date fifteen days at least before their session, to the sheriff to return twenty-four for a grand

inquest ad inquirendum, &c. at such a day; and the [27] sheriff is to return his panel annexed to the precept.

2. Regularly the commissioners of oyer and terminer cannot proceed upon any indictment taken before others than themselves. 3 Mar. B. Commission 24. And therefore they cannot proceed upon the coroner's inquest, or upon an indictment of felony before justices of peace.

But this rule hath two exceptions. 1. That it is only intended of a general commission of oyer and terminer, for, as hath been shewn, there may be a special commission to determine a treason or felony taken before other commissioners of oyer and terminer, Plowd. Com. p. 390. Casus com' Leicest.; nay, or by the coroner or justices of the peace. 2. That it doth not

extend to an inquisition taken before other commissioners of oyer and terminer; for it is and always hath been the constant practice to take indictments before commissioners of oyer and terminer, as for highways, barretry, forgery, perjury, &c. and to try them before other commissioners of oyer and terminer at another subsequent sessions; and if there were any doubt of that at common law, yet the statute of 1 E. 6. cap. 7. hath settled it, viz. "That no process or suit made before the justices of assise, gaol-delivery, oyer and terminer, justices of peace, or any the king's commissioners, shall be in any wise discontinued by making or publishing any new commission or association, or by altering the names of the justices; but the new justices of assise, gaol-delivery, and the peace, or other commissioners may proceed in every behalf, as if the old commissions, justices and commissioners had still remaind and continued not alterd."

And this gives power to the justices of oyer and terminer, &c. to proceed upon indictments taken by former justices of oyer and terminer, as well in cases of treason or felony, as other misdemeanors.

3. In case where a felon or traitor, &c. pleads to an indictment taken before justices of oyer and terminer, they ought not, (as in case of justices of gaol-delivery,) to award a precept ore tenus to the sheriff to return a jury, but it must be

by precept in the names and under the seals of the [ 28 ] commissioners, or three of them, whereof one of the

quorum. 4 Co. Instit. cap. 30. p. 168. & ibidem cap. 28. p. 164. and the sheriff ought to return the pannel filed to the precept.

4. But the indictment may be preferred, issue joined, precept made and returned, and prisoner tried the same day before commissioners of oyer and terminer: see the precedents cited 4 Co. Instit. cap. 28. p. 164. P. 16 Car. 1. B. R. Croke 583. resolved per omnes Justiciarios Angliæ, altho there were no commission of gaol-delivery in that case, but only of oyer and terminer. Accords H. 9 Car. B. R. Chapman's case for barretry before justices of oyer and terminer. 2 Roll. Abr. p. 96. And the same law is questionless for justices of gaoldelivery. T. 9 Car. B. R. Croke 315.

But in cases of justices of the peace it hath been held, that they cannot try the same session that the party pleads to the indictment, much less the same he is indicted. 22 E. 4. Coron. 44. H. 11 Car. 1. B. R. Croke, p. 438 & 448. adjudged in cases not capital, Bumsted's case in an indictment of extortion, and accordingly ruled T. 23 Car. B. R. Pue's case for seditious words. 2 H. 8. Kelw. 259.