the proper limits of his office and jurisdiction in holding
an inquest upon a fire. We have the authority of three
of the very greatest expositors of the law of England, to
the effect that the power of a coroner to hold inquests is
limited to cases of homicide, or violent death, and that
the inquest must be held super visum corporis. This
is clearly laid down both by Lord Coke and by Lord
Hale, in the plainest terms; and is adopted by Chief
Baron Comyns without the expression of the slightest
doubt on the subject. In the absence of an express
enactment to the contrary, these authorities are amply
sufficient to shew that a coroner does not possess the
jurisdiction which has been contended for. Besides,
there appears to have been, from the time of Edward I.,
certainly, if not from an earlier period, down to within
the last few years, a uniform abstinence by coroners from
the exercise of such a jurisdiction. Had its exercise
formed part of their duties, they would surely not have
allowed it thus to fall into abeyance. Independently of
these considerations, the Acts of the Legislature from time
to time, with reference to coroners, must be regarded as,
to some extent, an exposition of the law on the subject.
For instance, coroners were at first prohibited from
taking fees; but in process of time, when men of lower
position than had theretofore been the case, came to fill
the office, the Legislature, by several statutes, com-
mencing with stat. 3 H. 7. c. 1., provided for their
remuneration by fees. In each of these statutes (a)
the fees authorized to be taken are limited to cases of
inquests on the view of a dead body. Hence it may be
inferred that, in the opinion of the Legislature, coroners

(a) See these statutes enumerated in Bac. Abr., tit. "Coroners," (G).

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possessed no jurisdiction to hold any other inquests: for otherwise it is reasonable to suppose that Parliament would have permitted them to take fees in cases of arson, for instance, as well as in cases of death. The only difficulty arises upon the statute de officio coronatoris, and the passages in Bracton and Britton which have been referred to. The statute in question says that the coroner is to go, not only to the places where any are slain, or suddenly dead, or wounded, but also "where houses are broken." This might seem to imply that he is to hold inquests in cases of burglary and housebreaking. Mr. Mellish has however, I think, removed this difficulty by shewing that the statute was more or less an abridgment of the common law on the subject, as propounded by Bracton; for on reference to that author we find that when he says that the coroners "accedere debent ad" "domorum fractiones" he has in his mind either a case of appeal, or the case of an inquest to be held upon the body of a man killed when the house was broken into. I think, also, that Mr. Mellish has satisfactorily explained the meaning of the statute of Marlebridge, 52 H. 3. c. 24., so far as language so obscure is capable of explanation. I do not say that the question is altogether free from difficulty: but when we find that, from the time of Edward I. to the present, the alleged jurisdiction has never been exercised; that the contemporaneous exposition of stat. 4 E. 1. stat. 2. is consistent with its non-exercise; and that great authorities, Hawkins alone excepted, are unanimously against its existence; I think that our course is clear, to the decision that the jurisdiction never did exist. I give no opinion whether or not it is desirable that coroners should have such a jurisdiction. That is a question for the Legislature, not for us, to determine.

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WIGHTMAN J. The question before us is one of very general importance; and as I understand that it has The QUEEN become the practice of late years to hold inquests in like cases, and it does not appear that there has ever been an express decision on the point, I could have wished for more time to look closely into the authorities, but for the clear opinion which the Lord Chief Justice has expressed, and with which I am disposed to agree. Whatever the original jurisdiction of the coroner may have been, it was, clearly, very considerably limited by Magna Charta, c. 17, and has been, since the statute de officio coronatoris, confined to the matters therein. mentioned; the principal of which is the holding inquests on the death of man super visum corporis, and the remainder of which must have reference not to inquests but to appeals. The principal ground upon which I rely is that, since that statute, there has been, till quite recently, no recorded instance of an exercise by a coroner of the jurisdiction now attempted to be established. Lord Coke, in 2 Inst. 32, where he contrasts the power of the sheriff and of the coroner, gives a precise opinion that the latter has no authority to hold any other inquest than one on a death, and that super visum corporis. This opinion is fortified by the very high authority of Lord Hale. It is true that there is a dictum to the contrary in Hawk. P. C., Lib. II., c. 9, sect. 21, p. 79 (ed. 1824, by Curwood), where it is said, "This statute" (de officio coronatoris) "being wholly directory, and in affirmance of the common law, doth neither restrain the coroner from any branch of his power, nor excuse him from the execution of any part of his duty, not mentioned in it, which was incident to his office before; and from hence it follows, that though

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the statute mention only his taking inquiries of the death of persons slain or drowned, or suddenly dead; yet he may and ought to inquire of the death of all persons whatsoever who die in prison, &c." Again, in sect. 35 of the same chapter, p. 83, the same author says: "It is expressly said in some books that a coroner hath no power ex officio to inquire of any felony, but only of the death of a man upon view. And both Staundford and Hale seem to speak doubtfully of this matter upon the authority of those books; and Sir Edward Coke seems expressly to declare his opinion, that a coroner hath no power to take an indictment in any other case. Yet since it is expressly declared by the above mentioned statute" (de officio coronatoris) "that a coroner ought to inquire of the breakers of houses; and it is said by Britton that he may inquire of rape, and of the breach of a prison; and such power hath never been expressly taken from him; it seems hard to say that he may not still make such inquiries, if he please." "As to the authority of 27 Ass. 55 and 35 H. 6, pl. 27 b. (a), which are cited for the maintenance of the contrary opinion, it may be answered that this point is not resolved in either of those books, but only spoken of incidentally: for the very point resolved in the Book of Assizes seems to be no more than this, that a coroner hath no power to take an indictment of an accessary after the fact; and that which is said in the Year Book of H. 6. concerning this matter, is only brought in by way of argument concerning a point of a quite different nature." These passages, however, amount to no more than an expression of opinion, based upon a comparison of the ancient authorities; which, it must be remembered, are

(a) Apparently a misprint for pl. 33 [B].

always obscure and often vague. The best guide to the discovery of the duties of an ancient office is custom ; and in the present case the custom is opposed to the existence of any such jurisdiction as that which has been claimed before us for the coroner.

(CROMPTON J. had left the Court.)

BLACKBURN J. I am of the same opinion. We are called upon to prohibit the coroner from further holding this inquest; on the ground that, in holding it, he is acting beyond his jurisdiction. As to the question whether this is a case in which prohibition lies, I think it sufficiently appeared, in the course of the argument, that it is. The question, then, is, has the coroner this particular jurisdiction? It is said that he has it at common law; and that his common law powers in this respect were left untouched by Magna Charta. Now there are two methods of shewing that a jurisdiction exists at common law; namely, either by proof that it has been actually exercised, or by the citation of passages from leading authorities, decidedly asserting its existence. But in the present case not only can no instance of the exercise in fact of the jurisdiction in question be adduced, but Coke, Hale and Comyns, following Staundford, a great authority on such a point, all agree that the coroner can hold no other inquest than that on view of a dead body. The only two recorded instances in which a coroner has exercised any other jurisdiction were, both of them, cases in the city of London; brought in the Court of the sheriff and coroner by way of appeal, and not before the coroner alone by way of inquisition. Mr. Mellish has explained

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