on

penance inflicted upon him by an ecclesiastical court; refusal to do penance he might be excommunicated, and on that the temporal court might direct imprisonment for not more than six months. (0)

Ecclesiastical jurisdiction over laymen has, however, fallen into disuse, though the ecclesiastical courts still enforce propriety of conduct on members of the profession. (p)

The history of heresy is worth consideration. The first writ de hæretico comburendo was issued by the Crown with the consent of the Lords in 1400 for burning one William Sawtre, who had been convicted by the council of being a relapsed. heretic. (q) In the same year a statute was passed (r) providing that all relapsed heretics should be burnt. In 1414 a severer Act was passed and people burnt frequently. In 1539 the Act of the six articles (31 Hen. VIII. c. 14) punished heresy with burning, imprisonment, or execution. Edward VI. repealed these statutes, but preserved the old writ de hæretico comburendo. Mary again revived the heresy laws, which were again repealed by Elizabeth, except with regard to Anabaptists, who were burnt down to 1612 under the old writ. The ecclesiastical courts were abolished in 1640, but on their revival in 1661 the old law of heresy had fallen into oblivion. The writ de hæretico comburendo was finally abolished by a statute of Charles II. (s)

We may note a provision of the Clergy Discipline Act, 1892, (t) which enacts that, with regard to the offences mentioned in the Act, within twenty-one days of a conclusive verdict in a civil court the bishop shall declare the preferment empty. If the bishop will not act, the duty devolves on the archbishop.

By the Benefices Act, 1898, (u) the bishop may refuse to admit to a benefice on the grounds prescribed by the Act. Appeal lies to the archbishop, who sits with a judge nominated by the lord chancellor for the purposes of the Act.

CHAPTER III.

JUDICIAL INSTITUTIONS FROM EDWARD I. TO THE

JUDICATURE ACTS (continued).

The Assizes.

As we have already seen, the circuit system was instituted by Henry I., and improved upon by Henry II. in 1166. It appears that the circuit judges, or judges of assize, eventually superseded the old justices in eyre, who, in the time of Henry II., went through the country once in seven years, inquiring into the system of legal administration. It seems probable, however, that the two systems existed side by side originally.

By a statute of Edward I. (a) the justices or commissioners of assize were to be appointed out of the king's sworn justices, and to act with one or two discreet knights of each shire. Eventually by the Judicature Acts, 1873 and 1875, the Crown was empowered to issue commissions of assize, oyer and terminer, and gaol delivery to any judges of the High Court of Justice, or to serjeants-at-law or king's counsel; (b) and by the Judicature Act, 1884, county court judges may be included in the commission. (c)

At the present day the various circuits are regulated principally by various Orders in Council, made under the authority of the Judicature Acts, 1873, and 1875. (d) To summarize the existing system, which is regulated principally

(a) 13 Ed. I. st. 1, c. 30.

(b) Judicature Act, 1873, s. 37; Judicature Act, 1875, s. 8; and see Appellate Jurisdiction Act, 1876, s. 15. (c) S. 7.

(d) 36 & 37 Vict. c. 66, s. 75; 38 & 39 Vict. c. 77, s. 23; and see the Winter Assizes Act, 1876 and 1877 (39 & 40 Vict. c. 57; 40 & 41 Vict. c. 46), and the Spring Assizes Act, 1879 (42 & 43 Vict. c. 1).

by Order in Council of the 28th of July, 1893, (e) and various amending orders, there are at the present day eight different circuits, viz. the Northern, the South-Eastern, the NorthEastern, the Midland, the Oxford, the North and South Wales, the South-Wales, and the Western. To some of the circuit towns two judges are sent down, to others one only, according to the amount of business to be transacted. On all the circuits summer, autumn, and winter assizes are held, (ƒ) and in Manchester, Liverpool, and Leeds, Easter assizes may also be held. The circuits themselves, or any of them, may be altered or discontinued by Order in Council, as also the towns at which the assizes are held. (g)

The Commissions of Assize.-The various commissions of assize were as follows:

(1) Criminal, viz. of the peace, of oyer and terminer, and of general gaol delivery.

(2) Civil, viz. assize and nisi prius.

Previously to the invention of the nisi prius writ civil causes, triable by the High Court, had to come up to Westminster. The writ of nisi prius provided that it should still do so, unless before (nisi prius) the day appointed for trial the judges of assize should visit the county. By the Common Law Procedure Act, 1852, (h) the trial may be held before the judges of assize without any proviso of nisi prius.

The judges now sit under three commissions: (1) general gaol delivery, under which the gaols are cleared of all persons awaiting trial; (2) oyer and terminer, under which cases in which the grand jury have returned a true bill are tried; (3) assize, under which civil cases are taken, and to this the commission of nisi prius was annexed by the statute of Westminster the second. (i) By a statute of Edward I., justices of assize were also to be commissioners of oyer and

(e) Stat. R. & O. 1893, p. 165.

(f) Some of the circuit towns are, however, only visited at the summer and winter assizes.

(g) Judicature Act, 1875, s. 23. A table printed by Messrs. Waterlow & Sons, Ltd., is appended post, p. 262, showing the arrangements made for the winter assizes, 1914.

(h) 15 & 16 Vict. c. 76.

(i) 13 Ed. I. st. 1, c. 30.

terminer; (k) the commission of assize by itself therefore now includes the other commissions.

By the Judicature Act, 1873, a judge sitting on assize is now to be deemed to constitute a court of the High Court of Justice, () and therefore mandamus no longer lies to him as it did formerly, though a writ of certiorari will issue in criminal cases to remove the cause into the King's Bench Division on the ground that a fair and impartial trial cannot be held elsewhere, or that some difficult question of law or fact is likely to arise. This writ may also issue to remove a cause from the Central Criminal Court into the King's Bench Division.

We may conclude by remarking that the utility of the present system has of recent years been much questioned owing to the want of business in many of the assize towns, the waste of time spent by the various judges in travelling from place to place, and the subsequent congestion and delay of important business in the London courts during their absence. It is possible, therefore, that some alteration or modification of the system as it at present exists may be looked for in the near future. (m)

(k) 2 Ed. III. c. 2. The commission of general good delivery had been previously added (27 Ed. I. st. 1, c. 4).

(1) Judicature Act, 1873, s. 29.

(m) And see the County Courts Act, 1903, extending the jurisdiction of the county courts from £50 to £100 in contract and tort.

C.L.E.

18

CIRCUITS OF THE JUDGES.