tuary, and to take the inquests of felonies happening within their bailiwics." Again, at page 42, it is stated: "Also, they used to inquire of burnings, and who put to the fire, and how; and whether it were by felony or mischance; and if of felony, of whose felony, and who were the principal, and who the accessaries, and who were the threateners thereof." [Blackburn J. Can you produce any reported instance of an inquest held on a fire by a coroner?] No such instance has been discovered; probably because coroners, since the creation of justices of the peace by stat. 1 Edw. 3. c. 16., allowed the justices to exercise their functions in this respect. Mere disuse, however, would not deprive the coroners of their jurisdiction. The next authority in point of time is Bracton, who, in lib. 3, folio 121, cap. 5, "De officio coronatorum soprà homicidium," says, "Cum autem contingat homicidium fieri quandoque in domibus, quandoque in villis, quandoque in vicis, quandoque in campis extrà villam, et etiam in nemoribus, et ad coronatores pertineat de hujusmodi occisis cognoscere et de interfectore, quis ille fuerit, si nesciatur, diligentem facere inquisitionem : ideo bonum est videre quale sit eorum officium in hâc parte. Est igitur eorum officium quòd quàm citò habuerint mandatum a ballivo domini regis, vel a probis hominibus illius patriæ: accedere debent ad occisos vel vulneratos, sive ad submersos vel subitò mortuos, et ad domorum fractiones, et ad locum ubi dicitur thesaurum fuisse inventum, et hoc facere debent statim et sine morâ aliquâ." So Fleta, lib. 1, c. 18, § 5, p. 20 (ed. 1647, by Selden), "De coronatoribus," writes, "Imprimis fideliter præsentent de omnibus murdris, homicidiis, feloniis, per quem, quando, et ubi, in terrâ videlicet, vel in aquâ, bosco, placio, vel marisco, 1860. The QUEEN V. HERFORD. 1860. V. HERFORD. vel in villâ, vel extrà." Of the work of Fleta, Reeve The QUEEN (History of the English Law, vol. 2, p. 279 (ed. 2),) says, that it is "a treatise upon the whole law, as it stood at the time this author wrote," and that he "followed Bracton in the manner and matter of" the work, having adopted his plan, and, in many instances, transcribed whole pages from him. "He did not, however, confine himself to Bracton as his sole guide, but had also an eye to Glanville. Many obscure passages in those writers are illustrated by Fleta." Again, in Britton, c. 1, sect. 3, p. 11 (Kelham's translation, 1762), it is said: "Also, it is our pleasure, that as soon as any felony or misadventure has happened, or treasure be found designedly concealed underground, or in case of the rape of women, or of the breaking of our prison, or of a man wounded almost to death, or of other accident happening, that the coroner, as soon as ever he has notice of it, issue his precept to the sheriff, or the bailiff of the place where the accident happened, that at a certain day he cause to appear before him at the place where the accident happened, the four adjacent townships, and more if need be, by whom he may inquire of the truth of the casualty." And, in sect. 32 of the same chapter, p. 25: "And whereas we have declared above, that coroners ought to make inrollments of appeals of felonies, of the death of a man; let them have the like power in appeals of rape, robbery, larceny, and in appeals of every other kind of felony." These authorities shew that Lord Coke did not accurately state the law when he laid down, in 4 Inst. 271, that " the coroner can inquire of no felony but of the death of man, and that super visum corporis." [Blackburn J. In the Liber Assisarum, 27 Edw. 3., fol. 141, pl. 55, it was held that the coroner has no 1860. V. HERFORD. power to entertain any indictment except super visum corporis. And in Yearb. 35 H. 6. pl. 33. [B], fol. 27, The QUEEN the law is stated to the like effect as to all coroners, except those in Northumberland, by the custom of which county the coroners may take cognizance of all felonies.] In Garnett v. Ferrand (a) Bayley J. said, "At common law the coroner had power to hear and determine felonies," "therefore his Court was analogous to the ordinary Courts of law, but his powers were abridged by Mag. Car. c. 17." At page 32 of Jervis On the Office of Coroners, the author says: "It would seem, from the statute de officio coronatoris, that the authority of coroners with respect to felony was not limited to inquests of death only; for by that statute they are directed to inquire of breakers of houses; and Britton, in his paraphrase upon that statute, treats of their duty with reference to inquiries concerning rape and prisonbreach. It is, however, said, and supported by great authority, that coroners have no power ex officio to inquire of any felony, but only of the death of a man upon a view, and cannot take an indictment in any other case. But this is doubted by Hawkins, who contends that coroners may still, if they please, inquire of rape, prison-breach, and house breaking, their powers in that respect never having been expressly taken from them. For the maintenance of this opinion he relies upon the words of the statute de officio coronaexpress toris, and upon the commentary of Britton before alluded to, and argues, that the authorities, 27 Ass. 55 and 35 H. 6, pl. 27 b. (6), upon which the contrary doctrine is founded, do not decidedly resolve the point, this question having (a) 6 B. & C. 611. 620. (6) Apparently a misprint for "pl. 33 [B]." 1860. The QUEEN V. HERFORD. there arisen incidentally merely, and by way of argu ment, upon a collateral discussion." Hawkins's is the coroner of the jurisdic Mellish and Fearnley, contrà. The question is concluded by authority. Coke, Hale, and all subsequent writers on the subject, except Hawkins, are clearly of opinion that a coroner has no jurisdiction to inquire into anything except the death of man, and that super visum corporis. Lord Coke, in his comment on cap. 17 of Magna Charta, clearly implies that, in his opinion, the (a) See Stat. Westm. 1. c. 10., declared by Lord Coke (2 Inst. 176) to be in affirmance of the common law. XXIII. VICTORIA. coroner had no further jurisdiction, even before that 1860. V. HERFORD. statute. His words are (a): "But what authority had The QUEEN the sheriffe in pleas of the Crown before this statute? This appeareth by Glanvill, that the sheriffe in the tourn (for that is to be intended) held plea of theft, for he saith; excipitur crimen furti, quod ad vice-comitem pertinet, et in comitatibus placitatur; but he may inquire of all felonies by the common law, except the death of man. And what authority had the coroner? The same authority he now hath, in case when any man come to violent, or untimely death, super visum corporis, &c. Abjurations and outlawries, &c., appeales of death by bill, &c. This authority of the coroner, viz., the coroner solely to take an indictment, super visum corporis; and to take an appeale, and to enter the appeale, and the count remaineth to this day. But he can proceed no further, either upon the indictment, or appeale, but to deliver them over to the justices. And this is saved to them by the statute of W. 1. c. 10. And this appeareth by all our old books, book cases and continuall experience." There is some difficulty in distinguishing between the ancient jurisdiction of the coroner in appeals and in indictments. The probability, however, is, that appeals were not brought in the Court of the coroner, but in the county Court, which was distinct from it, and of which both the sheriff and the coroner were members; and that in the county Court appeals of all other felonies than the death of a man were taken before the sheriff; and appeals of felonies relating to the death of a man, before the coroner. Inquests on the dead, on the other hand, were taken in the coroner's separate Court only. It is also extremely (a) 2 Inst. 32. |