306 



\s--l/hs. 



the three highest courts in England, the king's 

 bench, the court of common pleas, ;>nd the court of ex- 

 ch'i|iier, tliricc in (very year, perform a circuit into 

 .,11 tin- counties (being .|(i) into which the kingdom is 

 divided, to hold these assi/.es, \vitli tlie exception of 

 liie four nortliern counties, when- they are held only 

 . nre a year, and London and Middlesex, where they 

 re held eight times. (Bl. Comm. iv. 269.) Eight 

 other judges, api>oinlcd for the purpose, who are call- 

 d Welsh judges, do the same duty for Wale*. At 

 these assizes, all the justices of the peace of the county 

 are bound to attend, or else are liable to a fine ; and 

 rlso all the persons who have been summoned as 

 irrand jurymen or petit jurymen by the sheriff, l'pon 

 'lies,, occasions, the court is opened with considerd)le 

 pomp. The judges are conducted to their seats at 

 Uie lolling of a public bell, and divine service is per 

 formed in theirpn sencc. The presiding judge directs 

 the court to be opened, and, when the grand jury is 

 Inly ini|iiinelletl and sworn, which is generally com- 

 posed of ilie most respectable men of the county, he 

 makes a public address to them respecting the duties 

 of their office, and the crimes which are to come 

 before them for consideration. At these assizes, 

 the judges sit under five separate commissions, some 

 of which relate to civil and some to criminal causes 

 or business. The first is the commission of assize, 

 from which the session derives its name, by which 

 they are authorized to take assizes in the several 

 counties ; that is, to take the verdict of a peculiar 

 sort of jury called an assize, and summoned to de 

 cide certain cases respecting the titles to land. 

 This class of causes is now obsolete, the trial of such 

 land titles being now had in other and more modern 

 forms of action. 2. The commission of nisi priiis as 

 it is called, which empowers them to try all questions 

 or issues of fact, issuing out of the courts in Westmin- 

 ster liall and which must be tried by a jury from thnt 

 county wherein the cause of action arises. These 

 issues are, strictly, triable in the courts at Westminster, 

 by a jury returned there from the county. But there 

 is a proviso, nisiprius, "unless, before'' the term as- 

 signed for trial at Westminster, the judges of assize 

 come (as they were sure to do) into the county in 

 question, and then the commission authorizes such 

 trial by the judges of assize. (BL Comm. iii. GO.) 

 These commissions are of a civil nature ; but the 

 judges of assize have also, by virtue of several statutes, 

 a criminal jurisdiction in certain special cases. 3. 

 The commission of oyer and terminer, to hear and 

 determine all treasons, felonies, and misdemeanours 

 committed within the county. By virtue of this com- 

 mission, they can proceed only upon an indictment 

 found at the same assizes by the grand jury. 4. On 

 this account, they have another commission, of general 

 jail delivery, which empowers them to try and deliver 

 every prisoner, who shall be in jail when the judges 

 arrive at the circuit town, whenever or before whom- 

 soever indicted, or for whatever crime committed. 

 (Bl. Comm. iv. 270.) 5. The commission of the peace, 

 by which they are empowered to do all things neces- 

 sary or proper, according to the English laws, to pre- 

 serve public tranquillity, to suppress crimes, and to 

 airest offenders. (Bl. Comm. i. 350, 351.) In this 

 manner, and by these means, the jails are, in general, 

 cleared, and offenders tried and convicted, or acquit- 

 ted, at least every half year. In America, there are 

 no courts, or sessions of courts, which are technically 

 called assizes. The judges, however, perform the 

 same duties in the counties, within their respective 

 circuits and jurisdictions, as the English judges, and, 

 generally, in the same manner, that is to say, accord- 

 ing to the course of the common law. The Ameri- 

 can judges have not, like the English, any special 

 -^nwiissimv Their commission is sinele, and ap- 



points them to the tillice. Itnl the general and. pub- 

 lic laws mark out and define their duties and autho- 

 rities, whether general or special, and these diuie- 

 and authorities are generally subject, to be altered and 

 changed by the legislative authority. In general, 

 however, the duties and authorities of the judges ( ,t 

 the higher courts are very similar to those of the 

 judges in England. The, manner of proceeding, ex- 

 cept that it is more simple and unostentatious, resem- 

 bles very much that of the English courts. Matt* rs 

 of fact, in criminal cases, are tried by a jury, upon an 

 indictment found by a grand jury. And in civil c.is. j, 

 also, matters of fact, in common law suits, are tried 

 in the same manner. The sessions of the courts are 

 usually called terms, and, generally speaking, the 

 causes are tried before the courts of the county in 

 which they are commenced, without having been 

 sent there by a record from a court sitting in another 

 county. Since 1808, there have been assize courts 

 in the judicial system in France. With the English 

 institutions, however, they have scarcely any tiling in 

 common but the name. The administration of the 

 penal laws belongs to the worst part of the ancient 

 constitution. It united the two opposite evils of tor- 

 ture, which is often applied only to make the punish- 

 ment of death more severe, and of capital punish- 

 ment, inflicted upon suspicion. The higher and lower 

 courts of France were distinguished from those of 

 every other country by a spirit of dark and thoughtless 

 cruelty, of which the 1 8th century presents a series 

 of the most shocking instances. One of the first labours 

 of the constitutional government, in the revolution, 

 was a reform of this part of the constitution. The 

 British institutions, particularly that of trial by jury, 

 were taken for precedents. The administration of 

 justice, in civil causes, was committed to circuit courts 

 and courts of appeal (on the abolition of the ancient 

 institutions) ; and, for the disposal of criminal cases, 

 a law was enacted, Feb. 25, 1791, establishing, in 

 every department, a criminal court, which consisted 

 of a president and three other judges. No one of 

 these officers was appointed by the executive govern- 

 ment, but an attorney of the crown was attached to 

 every court. The president and the public prosecu- 

 tor were chosen by the electors of the department, 

 and the members of the district courts performed, in 

 succession, the duties of judges, this system re- 

 mained substantially the same till the introduction of 

 the consular government : the right of appointing 

 these officers was then transferred to the first consul. 

 By the constitution of the criminal courts, adopted in 

 1808 (Code d' Instruction Criminelle), permanent cri- 

 minal courts were again abolished, and the adminis- 

 tration of the penal laws was committed to the courts 

 of appeal, who are to decide upon the propriety of 

 having a trial in any given case. The public hearing 

 and decision are referred to a special court (cours 

 d"assises) and a jury. This latter tribunal is to con- 

 sist of a judge of the high court, who shall act as pre- 

 sident, and the four senior members of the district or 

 county court (a court of original jurisdiction), in 

 whose precinct-the cause originated. Inferior viola- 

 tions of the police regulations are tried before the 

 mayors (maires) and the justices of the peace, and 

 those involving some penal law, before the district 

 courts. The process, in the French assizes, is as fol- 

 lows: Every French tribunal of original jurisdiction 

 has ajuge d'instruction, so called. It is his business to 

 examine into the circumstances of every crime ot 

 which he is informed by the state advocate (see A d- 

 vocate of the Crown), the police officers, or private in- 

 dividuals. He traces out the act and the perpetra tor 

 amid every winding, summons witnesses, examin es 

 documents, brings forward and records the testimony. 

 Finally, he refers the cause, verbally, to the tr'bunal 



