consort or dowager, by all peeresses by birth, and peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband. Ibid. 265; Com. Dig. Dignity, F. 1.

This privilege cannot, according to Coke, be waived by the peer indicted.-3 Inst. 30.

But Hawkins says, if he be indicted and arraigned as a commoner and plead not guilty, and put himself upon the country, he cannot afterwards suggest that he is a peer and pray a trial by his peers.-2 Hawk. c. 44, s. 19.

If the indictment be for any other crime than those abovementioned, the peer cannot claim the privilege, but must be tried by jury.-2 Inst. 49; 3 Inst. 28, 30; 2 Hawk. c. 44, s. 13.

For the greater regularity and dignity of the proceedings a lord high steward is appointed as speaker, pro tempore, or chairman of the court, but he is not properly the judge. -4 Bl. C. 263.

The collective body of the peers are the judges both of law and fact, and the high steward has a vote with the rest in right of his peerage.—Ibid.

By 7 Will. 3, c. 3, s. 11, upon all trials of peers for treason or misprision, all the peers who have a right to sit and vote in parliament shall be summoned at least twenty days before such trial to appear and vote therein; and every lord appearing shall vote in the trial of such peer, first taking the oaths of allegiance and supremacy, and subscribing the declaration against popery.-Ibid.

There is no instance of the bishops sitting in the court of parliament on trials for capital offences, whether the proceeding is by impeachment or on an indictment. The usual practice is for them to withdraw voluntarily after entering a protest declaring their right to stay.-Ibid. 264; Fost. 248.

It seems to be agreed, however, that a bishop has a right to be tried by the high court of parliament in like manner and in the same cases as a peer.-2 Hawk. c. 44, s. 12; 1 St. Tr. 374.

2. The Court of the Lord High Steward. This is a court instituted for the trial of peers indicted for treason or felony, or for misprision of either.-4 Bl. C. 261.

Properly speaking, the court of the lord high steward exists only during the recess of parliament, for in the session of parliament the trial is always in the court of parliament. Ibid. 263.

The proceeding is upon indictment in the King's Bench or at the assizes, which, when found, is removed by certiorari into this court, in the manner before described in the case of the court of parliament.—Ibid. 262.

For the purpose of receiving and trying the indictment, the king creates a lord high steward, pro hac vice, by commission under the great seal.-Ibid. 262.

In this court the lord high steward is sole judge of matters of law, as the lords triors are of matters of fact, and he has no right to vote.-Ibid. 263.

The lord high steward directs a precept to a serjeant at arms to summon the lords to attend and try the indicted peer.-Ibid.

The 7 Will. III. c. 3, (above cited) as to the manner of summoning the peers in cases of treason or misprision, applies to this court as well as the court of parliament.

On trials of peers for other felonies, the number of peers to be summoned does not seem to be regulatad by law, except that it is the course to summon not less than twentythree. Ibid. 262.

The decision is by a majority, but a majority cannot convict unless it consists of twelve or more.--Ibid. note by Ch. No bishop can be summoned to the court of the lord. high steward.-Ibid. 264.

Nor have the bishops the privilege of being tried there. -Ibid. and 265; 2 Hawk. c. 44. s. 12.

3. The Court of King's Bench.

The court is divided into a crown side and a plea side.— 4 Bl. C. 265.

On the crown side it takes cognizance of all criminal causes.-4 Bl. C. 265.

The judges of this court are the supreme coroners of the kingdom.—Ibid.

All offences committed in Middlesex, where the court sits, may be originally prosecuted in this court by indictment therein; and misdemeanors committed in any county in England may be prosecuted by information therein, filed by the attorney-general ex officio, or at the instance of a private individual prosecuting in the crown office, by leave of the court. And by different acts of parliament some offences committed out of the kingdom are here cognizable. -Chitty's Criminal Law, vol. i. 156.

Indictments from all inferior courts may be removed into the King's Bench by certiorari.-4 Bl. C. 265.

All indictments in the King's Bench, whether originally instituted there or removed by certiorari, and all informations there, are tried in that court, either at bar, or at nisi prius, by a jury of the county where the indictment was found.-4 Bl. C. 265.

4. The Court of Chivalry.

This is a court having jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it.--4 Bl. C. 267.

It is held before the lord high constable of England jointly with the earl marshal.-Ibid.

But it has fallen into entire disuse.-Ibid.

5. The Court of Admiralty.

This court has both a civil and crimimal jurisdiction.— Ibid. 268.

As to its jurisdiction and constitution in criminal cases, vide sup. Piracy, Chap. V. 3.

6, 7. The Courts of Oyer and Terminer, and General Gaol Delivery at the Assizes.

At the assizes the judges sit by virtue of five several

authorities--the commission of assize and its attendant jurisdiction of nisi prius, (which are principally of a civil nature,) the commission of the peace, the commission of oyer and terminer, and the commission of general gaol delivery.-- Ibid.

The commission of oyer and terminer is under the great seal, and directed to the lord chancellor, lord president of the council, lord privy seal, several noblemen, two judges of the courts at Westminster, king's counsel, serjeants and associates, or any two of them.-1 Chit. Cr. Law, 143; 1 Bl. C. 270.

But the judges, king's counsel or serjeants, only, are of the quorum, so that the rest cannot act without the presence of one of them, and there must be four of the persons named in the commission, present.-Ibid.

Under the commission of oyer and terminer there can be no proceeding, except upon an indictment found at the same assizes; for they must first " inquire" (in the words of the commission) by means of the grand jury, before they are empowered to "hear and determine" by the help of a petit jury.-4 Bl. C. 269.

But under this commission persons may be tried whether they be in gaol or at large.-1 Chit. Cr. Law, 144.

The commission of general gaol delivery is directed to the judges, serjeants, king's counsel, and clerk of assize and associates, constituting them the king's justices, and commanding them, four, three or two of them, (of which number there must be one at least, of the judges, king's counsel, and serjeants, specified,) to deliver the gaol at a particular town, of the prisoners therein.-Ibid. 145.

Under this commission, the justices cannot, except in some special cases, try any persons who are not in actual or constructive custody. But a person admitted to bail, is in constructive custody.-2 Hale, P. C. 34, 35; 1 Chitty's Cr. Law, 146.

The justices of gaol delivery may proceed upon any indictment of felony or trespass found before other justices

Q

against any person in the gaol, and not determined, as well as upon indictment found before themselves.-2 Hale, P. C. 32, 34.

They may discharge not only prisoners acquitted, but also those against whom, upon proclamation made, no evidence shall appear to indict them.-Ibid. 34.

By 14 Geo. III. c. 20, persons charged with felony, or other crime, before any court holding criminal jurisdiction in England and Wales, against whom no indictment shall be found, or who on trial shall be acquitted, or who shall be discharged by proclamation for want of prosecution, shall be immediately set at large without payment of any fee.

By 3 Geo. IV. c. 10, it is provided, that where commissions shall not be opened and read in the presence of one of the quorum commissioners at any place specified on the day named therein, the same may be opened and read on the following day, or if such following day shall be Sunday, or other day of public rest, then on the succeeding day; and that where commissions are opened pursuant to the provisions of that act, the cause of delay shall be certified by such quorum commissioner to the Lord Chancellor and enrolled.

Under these commissions of oyer and terminer and general gaol delivery, the gaols are in general cleared and all offenders tried, punished or delivered twice in every year; on the home circuit three times a year.

By 3 & 4 Will. IV. c. 71, the king in council may from time to time direct at what place or places in any county these commissions of gaol delivery, &c. shall be held.

Sometimes on urgent occasions, when some offence has been committed, standing in need of immediate inquiry and punishment, the king issues a special or extraordinary commission of oyer and terminer and gaol delivery, out of the common course, for the special trial of such offence; upon which the course of proceeding is much the same as upon general and ordinary commissions. 4 Bl. C. 270.