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sory, or accessories, upon the circumstance of statute, was, If the (i) justices of the King'ssuch matter before the justices of the peace, or bench are within these words, justices of Gaolother justices or comniissidners, to enquire of delivery, or Oyer and Terminer? And it was felonies, where such otlence of accessory or objected, That the King's-Bench is the highest accessories in any manner of wise shall be com court of ordinary justice in criminal causes mitted or done, shall be as good and effectual within the realm, and paramount the authority in law, as it the principal ottence had been of justices of Gaol-delivery, and commissioners committed or done within the same county of Oyer and Terminer ; and as it is held in 27 where such indictment shall be found : and Ass. 1. is (k) more than the eyre; for they that the justices of gaol-delivery, or oyer and shall examine the errors of the justices in eyre, terminer, or two of them, of or in such county gaol-delivery, and oyer and terminer; and where the olence of any such accessory shall therefore inasmuch as the justices of the King's be hereafter committed and done, upon suit to bench are paramount and superiors over all them made, shall write to the Custos Rotu- the others, they cannot be included within their lorum, or keepers of the Records, where such inferiors, viz. justices of gaol-delivery, or af principal shall be hereafter attainted or con- oyer and terminer. Also the justices of the victed, to certify them whether such principal King's-bench have a distinct and supreme be attainted, convicted, or otherwise discharged court; and the justices of gaol-delivery, and of such principal felony; who upon such writ- oyer and terminer, other distinct and subordi. ing to them, or any of them directed, shall nate courts. And therefore it was adjudged, make sufficient certificate in writing, under Hill. 30 El. Reg. in the King's-bench, that their seal or seals, to the said justices, whether where R. (1) Smith was indicted of forgery of such principal be attainted, convicted, or other- a false deed at the sessions of (m) peace in the wise discharged or not. And after they that so county of Oxford; and the statute of 5 El. c. shall have the custody of such records, do cer-14, which inflicts the punishinent, and upon tity that such principal is attainted, convicted, which act the indictment was grounded, proor otherwise discharged of such offence hy the vides, that the indictment shall be taken before law; that then the Justices of gaol-delivery or of justices of assize, and justices of oyer and teroyer and terminer, or other there authorised, miner : and although the justices of peace by shall proceed upon every such accessory, in the their commission liave power to hear and decounty or counties where such accessory or ac- termine felonies, trespass, &c. and have an excessories became accessory, in such manner press clause ad audiendum et terminand so and form as if both the said principal offence that they are, as it was urged, justices of over and accessory had been committed and done in and terminer; yet it was resolved per tot curl the said county where the offence of the ac- that because there was a commission of oyer cessory was or shall be committed or done. and terminer known distinctly by that name, And that every such accessory, and other of- and the commission of the peace known disfenders above expressed, shall answer upon tinctly by another name, that the said indicttheir arraignments, and receive such trial, judg- ment was not well taken, and therefore was ment, order, and execution, and suffer such for- quashed. But it was resolved, that the (n) feitures, pains and penalties, as is used in other justices of the King's-bench are the sovereign cases of felony: any law or custom to the con- justices of gaol-delivery, and of oyer and tertrary heretofore used in any wise notwithstand- miner; and therefore they are included within ing. And upon this statute, divers (h) ques. the said words: and therefore it is held in 7 E. tions were moved; 1. If the indictment in the 4, 18. a. & 4 H. 7, 18. that if an indictment of county of Middlesex of the accessory should forcible entry be removed into the King's-bench, recite, that the principal was indicted before the justices of the King's (o) bench shall award Commissioners of oyer and terminer in the restitution ; and yet the statute of 8 H. 6. c. 9, city of London (as in truth he was) or if the indictment should recite in facto, that the prin (i) 3 Inst. 103, 3 Mar. Br. Oyer and Tercipal committed the murder in London, &c.? min. 8, 4 Inst. 73, Cowley, 66, Postea 118, b. And it was resolved, that the indictment in (k) Stanf. Cor. 35, a. 4 Inst. 73, Fitz. AsMiddlesex should recite, de facto, that the sise 246, Br. Escape 21, Br. Jurisdict. 66, Posprincipal committed the murder in London. tea 118, b. Br. Judges, Justices, &c. 16. For the recital, that the principal is indicted (1) Cro. El. 78, 697, 3 Iust. 103, Cawl. of murder in London, is no direct affirmation 258, 259. that the principal committed the murder; for (m) Cr. El. 601, 697, Cawl. 258, 259, Savil the indictment is but an accusation, and in lieu 134, H. P. C. 165. of the king's Declaration, which may be true (n) H. P. C. 165, Cawley 66, 3 Inst. 103, or false; and this agrees with former prece- Antea 118, a. 3 Mar. Br. Oyer et Terminer 8, dents. And accordingly the indictment was 4 Inst. 73. drawn ; upon wbich the accessory was con (0) Kelw. 159, a. b. Dy. 187, pl. 6, 11 Co. victed, as appears before by the indictment' it- 59, a. b. 65, a. i Roll. Rep. 92, B. forcible self.
Entre 27, Dall. 25, pl. 8, Dall
. in Kelw. 204, 2. The second question moved upon the pl. 2 Dall, in Nash. pl. 2, Fitz. Entre 44, Br.
Restitut, 11 Dall. Just. C. 314, Jenk. Cent. (h) 3 Inst. 48, 49.
speaks only of justices of the peace; but the ' upon appeal of commandment, force, aid, or reason is, because they have the sovereign and receit, until, be that is appealed of the deed be supreme authority in such cases. And accord- ; auainted, so that one like law be used therein ing to this resolution, the justices of the king's through the realm : which is but an affirmance bench wrote according to the said act to the of the common law : for there cannot be an justices of gaol-delivery in London, before accessary unless there be a principal, no more whom the principal was, &c. wbo certified the than there can be a shadow unless there be a record, &c. as appears before at large. body. But this word Appeal has two significa
3. It was proved, if the lord Sanchar could tions in law; one general, and that is taken for not in term-time be indicted, arraigned, and an accusation, generally, and accusatio est duconvicted, at Newgate before commissioners pler, either by inquisition, i. e. by indictment, of (p) over and terminer for the county of and that is at the suit and in the name of the Middlesex, and it was resolved he could not; king; or by the party, and in his name, as in for the King's-bench, as bath been said, is (9) appeal by writ or bilt: or by appeal, i. e. accumore tban eyre, and therefore in ( 1 ) term-time sation of an approver; and therewith agree all no commissioner of oyer and terminer, or gaol- our books, and Stamf. I. 2. de Plac' cur' c. 52. delivery, by the common law, can sić in the f. 142. b. where he saith, after the confession same county where the king's-bench sits ; of the crime, the felon may appeal, s. accuse for (s) in præsentia inajoris cessat polest mi- others coadjutors with him to do the felony: noris, and therewith agrees 27 Ass. p. 1. But and in this particular sense for accusation of the Carliel and Irweng were indicted and attainted party it is oftner taken. And as there are two in London, where the murder was committed, manner of accusations, so there are two manner before justices of oyer and terminer in the (1) of attainders of felony, s. by judgment given, term-time, because in another county than s. one at the king's suit, and the other at the where the King's-bench sits.
suit of the party; and both these attainders 4. It was moved, if the lord Sanehar being are id two manners, one after appearance, and indicted in the king's-beoch, if there must be the other upon detault after appearance, two (iv) fifteen days for the return of the ve, fa. ways, s. either by verdict or contession; and for it fifteen days are requisite, he cannot be at the suit of the party, a third tray, s. by jarraigned this term. And it was resolved not, batue, upon detault by process of outlawry, because the offence was committed in Middle where judgment is given by the (a) coroners, sex, where the court sits; but is the indictment or by those whom an act of parliament and had been taken in any other county, and re custom have enabled. And in the statute of moved thither, there ought to be 15 days, &c. W. (6) 1. these words, upon appeal of comand therewith agree the precedents, and the mandment, &c. are to be iotended of an accucontinual usage of the same court.
sation generally, s. by indicun.ent, as by writ 5. It was resolved, that forasmuch as there or bill, &c. and these words, until he that is was not any direct proof, that James Irw eng appealed of the decd be attainted, are ineant was comminanded or procured by the lord San- of all manner of attainders, either at the char to commit the murder, but that he asso- king's suit, or at the suit of the party, and ciated himself to Robert Carliel who was pro- either upon appearance or upon default. And cured by him, that the (7) best way is to in- afterwards in the same act, provision is made dict the lord Sanchar, as accessory to Robert for the appeal of the party, which implies that Carliel only: for indictments which concern the word appeal siiall be iaken in the general the life of men ought to be framed as near the sense. truth as may be, et co potius because they are 6. It was resolved, that if the principal is (c) to be found by the oath of the grand inquest, erroneously attainted, either for error in the which finding is called (x) veredictum, quasi process, or because the principal being out of dictum veritatis : and yet it was resolved, that the realm, &c. is outlawed, or that he was in if one is indicted as accessory to (y) iwo, and prison at the time of the outlawry, &c. yet the he is found accessory to one, the verdict is accessory shall be attainted, for the attainder gooil. Vide the statute of W. 1. c. (2) 14. by against the principal stands tili it is reversed; which it is enacted, what none be ootlawed and therewith agrees (d) 2 R. 3, 12, the reso
lution of all the justices in the King's-beneh, (P) H. P. C. 156, 3 Inst. 27, 4 Inst. 73. And in 18 E. 4, 9. b. the (c) principal was
(9) Stanf. Cor. 35, a. 4 Inst. 73, Fitz. As- erroneously outlawed for felony, and the acsise 246, Br. Escape 21, Br. Jurisdiction €6, cessory taken, indicted, arraigned, convicted, 27, Ass. pl. 1, Bi. Judges, Justices, &c. 16, attainted, and hanged; and afterwards the Antea 118, i.
principal reversed the outlawry, and was in(7") 10 Co.73, h. 3 Inst. 27.
dicted and arraigned of the said felony, and (3) 10 (0.73, b. 2 Inst. 20, 166.
found not guilty, by which lie was acquitted; (7) Post. 121, .
(u) 2 Inst. 550, 568, H. P. c. 157, Co. Lt. (a) 4 Co. 32. b. Co. Lit. 288. b. Cr. El. 50. 134, b.
(b) W. 1. c. 14, 2 Inst. 182, 183, 184. (2) 2. Inst. 183. (8) Co. Lit. 226. a. (c) Ant. 68. a. b. 2 R. 3, 21. b. (y) 2 Inst. 133. H. P.C. 265.
pat Ant. 68. b. 2 R. 2, 21. b. (7) 2 Inst. 182, 138. 3 Iust. 183.
() Br. Cor. 165.
and all this appears in the said book; then it | pened that Turner in playing struck out the will be demanded, that forasmuch as there baron's eye with his foil ; upon which the baron, cannot be an accessory unless there is a prin finding himself impatient under so great an cipal, and in case there is no principal, how the atiront, and not able to bear the loss of his eye heir of the accessory shall be restored to the without having his revenge, resolved to procure land which his father bad forfeited by the said somebody to kill Turner; and among his other unjust attainder ? To that it is to be answered servants, he prevailed upon Gilbert Gray and that the heir may enter, or have his action; Robert Carliel, Scotchmen, two of his folfor now upon the matter by act in law, the at lowers, to shoot Turner upon the first appostainder against his father is without any writ tunity that should offer. These two then onof error utterly annulled, for by the reversal of dertook to accomplish this design, and industhe attainder against the principal, the at- triously endeavoured to execute it; but the tainder against the accessory, which depends ninth day of May last, Gray repenting of a purupon the attainder of the principal, ipso facto | pose and act so barbarous, vile and bloody, is utterly deleated and annulled; and this no- being touched with the motion of the Iloly tably appears in an ancient book, in the time Ghost, resolved to proceed no further ; which of £. 1, tit. Mort-dauncest, 46. where the case the baron of Sanchar being ivforined of, and is, A was indicted of felony, and B. of the re- that Gray slackened in bis promise, Robert ceipt of A.
A. eloined himself (and is ont- Carliel, as is aforesaid, undertook to execute lawed): B. was raken, and put himself upon what he had promised: who, the eleventh of inquest, and found guilty, for which B. was May following, associating himself with James attainted, and hanged, and the lord entered as Irweny a Scotchman, of the frontiers, about into his escheat; and afterwards A. came, and seven o'clock in the eveniog came to a house reversed the outlawry, and pleaded to the te- in the Friars, which Turner used to frequent as lony, and was found not guilty, by which he he came from his school, which was near that was acquitted; whereupon the heir of B. place; and finding Turner there, they saluted brought a (1) Mortdauncester against the lord one another; and Turner with one of his by escheat, who came and shewed all this mat- friends sat at the door asking them to drink; ter, and there was a demur upon it; and it was but Carliel and Irweng turning about to cock awarded, that the heir of B. should recover the pistol, came back immediately, and Carliel seisen of the land ; for if B. was now alive, he drawing it from under his coat, discharged it should go quit by the acquittal of A. because upon Turner, and gave him a mortal wound he could not be receiver of a felon, when A. is near the left pap; so that Turner, after having no felon; and all this appears in the said book said these words, Lord have mercy opon me! I Vide 4. E. 3, 36. b. iv Dower 43 E. 3, 3. a. in am killed; immediately fell down. WhereAssise et Reides. 8 H. 4, 4. 11 H. 4, 4. 4 E. 4. upon Carliel and Irweng fled, Carliel to the 20.6 E. 1, 9. 13 E, 4, 4.9 H. 6, 38. b. 8 H. 7, town, and Irwong towards the river ; but mis10. et vide the case of sentence (!) of depri- taking his way, and entering into a court where vation of one, and presentment, institution, they sold wood, which was no thorough-fare, and induction of another; and after by relation he was taken. Carliel likewise fied, and so of a general pardon, ipso fueto, all are restored did also the baron of Sanchar. The ordinary without appeal, or new presentation, admission, officers of justice did their utmost, but could or institution, qd' vide (h) Dy. Nota reader, to not take them : for in fact, as appeared afteroust all quest. to what gaol offenders shall be wards, Carliel Aled into Scotland, and Gray tocommitted, it is enacted by the statute of (i) wards the sea, thinking to go to Sweden, and 5 H. 4, c. 10. that none shall be imprisoned by Sanchar bid himself in England. any justice of the peace, but only in the com The impediments of justice, difficulties of mon gaol, saving to lords and others, who have law, and impossibilities of legal proceeding to gaols, their franchises in that case. By which take Carliel, the principal, which were in this it appears, how justices of peace oflend, who case, are remarkable, and worthy of considercommit felons, &c. to either of the Counters in ation. The cure and remedy of the whole London, and other prisons, which are not com- ought to be only and wholly attributed to the mon gaols.
great care of his most excellent majesty, and to But forasmuch as several persons have ear- his perpetual love and zeal for justice, as will nestly desired to know the circumstances, as clearly appear by what follows. well of the proceeding, as of the fact itself, I The impediments of justice were two : The will comply with their request.
truth of this fact, touching the baron of San. Robert Creighton, baron of Sanchar, a char, could not appear, because it consisted Scotchman, about five years ago played at foils only in the words of his mouth by incitation and with John Turner a fencing-master, and it hap- procurement ; but hy Gray and Carliel, who
were fled, or by bimself; and he was likewise (f) H. P. C. 270. 1 Rol. 777.
gone.-2. It was not as yet known whither (%) 6 Co. 13. b. 14. Co. Inst. 238. Hob. 82. they were fled, and it could not be found out 293. Cr. El. 41. 789: Moor 132. Owen 87. by all the search and diligence which was used Latch. 22. 141. 1 Sid. 164, 168. Palm. 412. by the officers and magistrates of justice. (h) Dy. 235. pl. 19. 6 Co. 13. b.
The difficulties of law are manifest by the (i) 2 Brou 41, 2 lug 43. Cor. El, 830. foregoing resolutions.
Impossibilities of legal proceeding.-1. It wise attainted and convicted at the King's was impossible by legal process to apprehend Bench in full term; and in a short time after, the body of Carliel, being in Scotland. - It was to accomplish bis majesty's zeal for justice, the impossible also to proceed against the baron of baron Sanchar was (1) hanged publickly in Sanchar, who was but an accessory, before term-time at the palace of Westininster, acthe principal was attainted ; a thing which cording to the judgment and sentence he had would have required a very long proceeding, if | before received. he had not been taken.--Now therefore let us I have reported this case with all the cirbehold here the love and zeal which his ma- cumstances, because this example has not its jesty always had for justice, who being informed parallel : for although it is true, that the late by some of his principal judges, with whom queen Mary is very famous on account of the he had consulted touching the nature of this examplary justice which she caused to be present case, and finding it this fact should be executed upon baron Sturton, for the barbaleft to the ordinary proceeding of the law, rous murder of Harquil; yet this present exCarliel the assassin could not be taken, and ample of the baron of Sanchar very much surthat no ordinary power had been able to find | passes that of the baron of Sturton, and that Gray the witness, nor Sanchar the author; lo ! for many considerations. 1. Because the the 'king by proclamation gives authority to any baron of Sturton was taken by the ordinary person whatsoever to apprehend these three, course of the law, even within the kingdom; with a promise of great reward.
but the principal in this case could not be Upon this, the baron of Sanchar, well know taken by any common power, but by the means ing that the principal assassin and the witness of bis majesty's royal and absolute power only. were fled, surrendered himself, and denied that 2. The baron of Sturton's offence was very aphe incited or procured the fact : wherefore his parent, and without any difficulty of law : on majesty sent post to the sea-ports (the gates the contrary, this of Sanchar was thereof (as of the kingdom), as also into Scotland, and appears) very full; but by his majesty's comother places of his dominions, where his admir- mand, all these difficulties, with the conference able prudence had hopes of finding thein ; and and grave consideration of his principal judges, the Lord so crowned his royal thoughts, and after search of cases precedent, were resolved gave such a blessing to his zeal for justice, that and cleared up, and notwithstanding the impesome of his couriers took Gray at the port of diments, difficulties and impossibilities in legal Harwich, ready to imbark for Sweden; and proceeding, greater expedition was used in this Carliel in Scotland, thinking to cross the sea case than in that. In short, the accomplishfor his greater safety. Gray then, being by bis ment of the whole, the clearing up the truth of majesty's command examined, confessed the the fact in the case of the baron of Sanchar, whole truth of the fact against the baron of must be attributed to the great wisdom, power Sanchar, who likewise by his majesty's direction and vigilance of his majesty, as appears by that being confronted .with Gray, and particularly which has been thereof said before. examined touching certain articles, special and The baron of Sanchar was a man of a very pertinent sayings by his majesty himself, con- ancient and noble family in Scotland; he was lessed by writing under his own hand, that he a inan of great courage and wit, endowed with had incited and procured this assassination; many excellent gifts, as well natural as acand being pressed thereupon by the questions, quired. The eloquence of his discourse, with he discovered a long and inveterate malice the civility and discretion of bis behaviour, which he had had, with all the occasions and when he came before and went from the judges, material circumstances of this murder.
compelled the people (who honoured him on His majesty having regard to that which the account of his moral virtues, and those for his Holy Ghost admonishes us of (* quia nan pro- sake) to bewail his fall with great grief (although « fertur cito contra malos sententia, absque the occasion of it was this base and barbarous ótimore ullo filii homium perpetrans mala' (k) assassination, premeditated for five years togegave orders two days after, thac Carliel the prin- ther with a malice bloody and inveterate) : cipal should be brought to London ; that he this extraordinary affection of the people was, and James Irweng, in full term, (a thing not as he himself confessed, a very great consolausual) might be carried before the justices at tion to him in his last troubles and afflictions. Newgate, and attainted and convicted. And But at last their compassion abated, because a few days after the baron of Sanchar was like they perceived he died a true Catholíck. (k) Ecclesiast. 8. 11, Antea 118. b.
(1) 3 Iust. 13.
93. Proceedings against Mr. James WHITELOCKE, in the Star
Chamber, for a Contempt of the King's Prerogative:
11 JAMES I. 1613. [“ Mr. Whitelocke, the subject of this Prosecu. acts of the crown on which a lawyer could
tion, is supposed to have been the same gentle safely give an opinion. Particular delicacy inan, as afterwards became sir James White and caution certainly ought to be used, where locke, the judge of that name, and father of the prerogative of the crown is drawn into. Mr. Balstrude Whitelocke, the famous writer question; and it may be possible for a lawyer of the Memorials. See the note in vol. 3, of to exercise the right of giving Opinions so lord Bacon's Works, 4to ed. p. 471. He indecently and licentiously, as to render himappears to bave been prosecuted simply for self responsible criminully. But then the giving a private verbal Opinion as a barrister, crime arises from the abuse, not from the on a point of Prerogative, against the crown, want of the right. It may also be possible to sir Robert Mansell; who, being Treasurer to put a case so strong, as to be beyond the of the Navy and Vice-Admiral, had consult line of a professional Opinion. Thus if a td Mr. Whitelocke, on the legality of a com private lawyer should be consulted, whether inission issued by king James for examining the king bad a right to the crown, who can into and reforming the Disorders and Abuses doubt that he would answer such a question of the Navy. Ibid. At the same time, sir as his peril? But the question, on which Mr. Robert Mansell was himself charged, for Whitelocke gave his opinion, was not of this questioning the prerogative of the crown, and kind, being on a commission from the crown, aninating the lord-admiral agaiost the coin the legality of which it was competent to the mission. Ibid. same page, and the note in p. subject to controvert, and consequently to 472. The hearing was at Whitehall before take legal advice about. On the whole, the the Lords of the Council, with the interven true rule seems to be, that a barrister may tion of lord chief justice Coke, lord chief give bis opinion on every question, however baron Tanfield, and the Master of the Rolls ; relative to the king or his prerogative, which the king's Attorney and Solicitor speaking the subject may contest with the crown in a against Wr. Whitelocke, and Mr. Henry court of justice; but that in exercising this Montagu, the king's serjeant, against sir Ro right he must keep so within the bounds of bert Mansell. Ibid. Both humiliated them an opinion, as not under the color of it to selves; in consequence of which they were obtrude either private or public scandal. In recommended to the crown as proper objects respect to Mr. Wbitelocke's particular case, of pardon, and were accordingly enlarged on the subject of the Opinion he gave seems the terms of subscribing a submission. Ibid. perfectly unexceptionable; nor could it be & Reliq. Wotton, p. 421. 3rd ed. there cited. an offence, that his Opinion was against the The following Speech of lord Bacon, who extent of the prerogative, or that it was was at this time Attorney-General, is the erroneous. The only ground tben, on which only remnant we meet with of the proceed he could be criminally responsible, was for ings in the Case, exclusive of the circum some licentious and extraneous inatter instances before-mentioned.
The Speech troduced into the Opinion; in respect to seems imperfect, it ending abruptly. What which no judgment can now be decisively there is of it, though not without passages formed, as the words of the Opinion do not characteristic of lord Bacon's nervous elo appear; though as far as a conjecture may quence and curiosity of argument, is in our be made from lord Bacon's manner of ob. opinion far from stating any thing like a just serving on the Opinion, it was equally innoground of prosecution. In the present age cent both in subject and language." Harit would be deemed a monstrous doctrine to assert, that lawyers were not at liberty to give Opinions to their clients on questions of Speecu of the Attorney-General sir Francis prerogative. Little apology can be made for
Bacon, from the 3d volume of the last 410 such a doctrine even in lord Bacon's time;
edition of his Works, p. 171. for it was ever lawful for the subject to con- My Lords; The offence wherewith Mr. test questions of prerogative is the king's Whitelocke is charged, (for as to sir Robert courts; and if it was so, how could it be Mansell, I take it to my part only to be sorry contrary to law to take the advice of council for his error) is a Contempt of a high nature, on such subjects? Indeed lord Bacon pro- and resting upon two parts : on the one, a prefesse, not to controvert the right of asking sumptuous and licentious censure and defying and giving counsel in law. But then be of his majesty's prerogative in general; the qualities this right by a distinction; for he other, a slander and traducement of one act or exempts and gives a privilege to high com- emanation hereof, containing a commission of missions of regimen and cases of state; a survey and reformation of abuses in the office description so large and indefinite, that, if it of the navy.—This offence is fit to be opened should be acquiesced in, it would leave few and set before your lordships, as it hath been