NOTE: 3. Misdemeanor. This is the third and lowest class of offences, and embraces all those of a public nature, which are excluded from the two former. Every offence which is prejudicial to, or tends to the prejudice of, public justice, peace, health, decency, or morals, if not otherwise provided against, is punishable as a misdemeanor, and may be proceeded against either by indictment or criminal information. 2 Hawk. c. 3, ss. 3, 4, and c. 25, s. 4; R. v. Moore, 3 B. & Ad. 184; Williams v. E. I. Co. 3 East. 201; R. v. Friend, R. & R. 20; R. v. Bykerdike, I Moo. & Rob. 179. Disobedience of the letter or manifest intention of a statute which simply enjoins or prohibits certain things immediately concerning the public good, is also a misdemeanor. 2 Hawk. c. 25, s. 4; R. v. Davis, Say. 133, Burr. 803. An attempt, solicitation, or incitement to commit a felony or misdemeanor, is itself a misdemeanor. R. v. Vaughan, 4 Burr. 2494; R. v. Higgins, 2 East. 5; Russ. & Ry. C. C. R. 107, n.; R. v. Scholfield, Cald. 397, unless by positive statute the offence be raised to a felony, as attempts or solicitations to commit murder are by the 10 Geo. 4, c. 34, ss. 9, 14, ante 84. To this head also is to be referred that class of offences called Misprisions or contempts, 1 Hale, 371, 375. These are either negative, as the concealing treason or felony when committed; or positive, as the maladministration of public offices,—refusing to aid the king when called on, for advice, or in war,-asserting falsely that the king labours under mental derangement,— attempting to alienate the affections of the people by bringing the government into disesteem, or the like. 4 Bl. Com. 119; 3 D. & Ry. 464. The common law punishment of all misdemeanors, is fine and imprisonment, or both. Barl. 370. Persons charged with misdemeanor, may insist on being admitted to bail, unless bail be ousted by a special statute. 2 Hale, 127. Upon trial they may in the King's Bench have a special jury, and may appear by attorney. Ch. C. L. 522. No person need submit to be tried for any misdemeanor, except those relating to the forging and counterfeiting foreign securities and copper money, under the 43 Geo. 3, c. 139, or those which are to be tried under the 5 & 6 Will. 4, c. 48, ante 169, unless he has been made amenable twenty days before the first day of the sessions or assizes. 60 Geo. 3, c. 4, s. 7. A misdemeanor is merged by a statute making an offence felony, Lord Raym. 711. In misdemeanors there can be no accessories, for all those who in felony would be accessories before the fact, are in the same degree as principals; and those who would be accessories after the fact, by receiving the offenders, incur no penalties, unless the statute regarding the offence specially extend to receivers and comforters. 4 Bl. Com. 36; 1 Hale 613. BOOK II. OF PUNISHMENTS. PART I. OF THE COURTS FOR THE PUNISHMENT OF OFFENDERS. CHAPTER I. OF THE CONSTITUTION AND AUTHORITY OF CRIMINAL COURTS 9 Hen. III: (Magna Charta) c. 17, Eng. No sheriff, constable, escheator, coroner, nor any other our bailiffs shall hold pleas of our crown. by their c. 29. No freeman shall be taken or imprisoned, or be All subjects disseised of his freehold, or liberties, or free customs, or be shall be tried outlawed or exiled, or any otherwise destroyed, nor we will peers. not pass upon him nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right. NOTE. courts. A court of justice, in the most general aeceptation of the The different term, is a place where justice is judicially administered. Cow. kinds of Interp. "Court.” And all such courts are classed under two heads, viz. courts of record, and courts not of record. They are also divided into superior courts and inferior courts. A third division, however, may properly be made, with a view to criminal proceedings, viz. into courts of preliminary inquiry, and of determination, as they may be called. The courts of criminal jurisdiction in this country are, the court of King's Bench, Oyer and Terminer and General Gaol Delivery, Assize and Nisi Prius, NOTE. Courts of record. Superior and inferior courts. Admiralty, Sessions of the Peace, Court of the Coroner, and Court of Petty Sessions; upon the peculiar jurisdiction of each of which, we shall hereafter offer some observations. A court of record is one in which the proceedings are conducted according to the course of the common law, and are duly enrolled. Jacob's L. D." Court." Such courts owe their origin to acts of parliament, letters patent, or prescription. Co. Litt. 260, a. and are all, properly speaking, called the King's Courts, to whomsoever the profits may belong. 1 Bac. Abr. 559. The records or parchment rolls of these courts are of such high authority, that no proof will be admitted against them, and they are only triable by themselves. A writ of error lies not on the judgment of a court not of record: the remedy is by writ of false judgment. 2 Saund. 101. All courts of record have power to protect from arrest in any civil suit, the persons who have occasion to resort thereto, whether as parties or as witnesses, regularly summoned to give evidence, eundo, morando, et redeundo. 1 Bac. Abr. 565. They may also impose reasonable fines, not only on such as shall be convicted before them of any crime on a formal prosecution, but also on those who may be guilty of a contempt in the face of the court, as by giving opprobrious language to the judge, or obstinate refusal to perform their duty as officers of the court; and they may be immediately ordered into custody. 2 Hawk. c. 1, 6. 15. A court of common law which has power given to it to fine and imprison is thereby made a court of record. 2 Hawk. c. 1, s. 14; 12 Mod. 388; 1 Ld. Ray. 468; 1 Salk. 200. A court which is not of record cannot impose a fine, or commit to prison, unless specially authorized by statute, Beecher's case. 8 Co. 60, b. Where there are divers judges of a court of record, the act of any one of them is effectual, if their commission do not expressly require more. 2 Hawk. c. 1, s. 10. Such judges are not punishable in any way, for a mere error of judgment, whatever may be its consequences; but for wilful corruption, they are liable to be called to account in parliament. 1 Bac. Abr. 555. They must all exercise their office in person, and cannot appoint a deputy, 2 Hawk. c. 1, s. 9, unless expressly authorized thereto by act of parliament. It seems that no court in this country has authority to try a foreigner, for an offence committed abroad against a subject of this country, although such foreigner may, at the time of the offence, have been a prisoner of war, actually employed on board an English ship. R. v. Depardo, R. & Ry. 134; 1 Taunt. 26. The superior courts, which are all courts of record, are those whose authority extends over all Ireland, and are familiarly known as the Four Courts at Dublin. Of these, the King's Bench alone is conversant with criminal matters. Inferior courts are those whose jurisdiction is limited to a particular county or district, and in some instances, to particular persons or matters. Lucking v. Denning, 1 Salk. 201. Every thing is supposed to be done within the jurisdiction of a superior court, unless the contrary especially appear; whereas, nothing shall be intended within the jurisdiction of an inferior court, but what is expressly alleged. 1 Bac. Abr. 559. And if an inferior court adjudicate upon matters which are beyond its local jurisdiction, the whole proceedings are void, having been taken coram non judice; but it is otherwise where its jurisdiction is limited to persons; for there, if the defendant does not plead to it he is estopped. Lucking v. Denning, 1 Salk. 201. The proceedings of an inferior court of record are removeable only by writ of certiorari before judgment, and by writ of error after judgment. 1 Bac. Abr. 559. NOTE. inquiry and determina The distinction of courts into those of preliminary inquiry, Courts of and of determination, has been fully recognized in The King v. Borron, 3 B. & Ald. 432; Cox v. Coleridge, 1 B. & Cr. 37; ton. and Duncan v. Thwaites, 3 B. & Cr. 556. In the former, the rights of parties are not finally adjudicated upon; but such inquiry is instituted, as may facilitate proceedings in the court of determination. Another leading distinction recognized by the above cases is, that advocates have no right to interfere for a party upon a preliminary investigation. The ordinary courts of preliminary inquiry in criminal matters, are the court of the Coroner, the Petty Sessions, and the tribunal of the single magistrate. The courts of determination are the King's Bench, Oyer and Terminer and General Gaol Delivery, Admiralty, Quarter Sessions of the Counties, Courts of the Recorders &c., of Corporations, and, upon summary conviction, the courts of Petty Sessions or the single Magistrate. Courts may be held on the Inns Quay, in Ďublin. 35 Geo. 3, c. 25, s. 1. Whereas a new building hath lately been erected, and is now nearly finished, situated on the Inns Quay, in the county of the city of Dublin, wherein it is intended that the King's Courts of Justice, called the Four Courts, shall The King's hereafter be holden; therefore be it &c., that on the first day of the next law term, after the said new building shall be finished, so as to be fit for holding the said King's Courts therein, the place for holding the same shall be, and from thenceforth shall continue to be the King's Courts of Justice, and it shall and may be lawful to hold the King's Courts of Justice, called the Four Courts, Dublin, and each and every of them therein, as fully and in like manner, and with all jurisdictions, powers, privileges, and authorities, and with all matters and things incident and relative thereto, and dependant thereon, in like manner, to all intents and purposes, as the King's Courts of Justice, and each of them now are, or heretofore have been holden, at their present site at Dublin aforesaid. The King's Courts shall be both in the county and city of Dublin. 2. That the said new building so intended for holding therein the said Four Courts, and the whole site and area thereof, shall, from and after the time when the same shall be finished, so as to be fit for holding the said courts therein, for ever thereafter be, and taken and deemed to be, and are hereby declared and enacted to be situate, lying, and being, both in the county of the city of Dublin, and county of Dublin, to and for all intents and purposes whatsoever. NOTE The court of King's Bench is the highest court of ordinary justice in criminal cases within the realm, and exercises whatever authority was lawfully exercised in the star chamber. 10 Mod. 187; Holt 361. Its judges are the sovereign justices of Gaol Delivery, and of Oyer and Terminer, 9 Co. 118; and therefore, when proceedings are limited to justices of Oyer and Terminer, the court of King's Bench has an implied jurisdistion. 2 Hale, 4. They are also by virtue of their office, justices and conservators of the peace in every county of |