TITLE CXL. Stat. 1804, c. 133. SODOMY AND BESTIALITY. By statute it is enacted, that if any man shall commit the crime against nature with a man or male child, or any man or woman shall have carnal copulation with a beast, every such offender, being duly convicted thereof in the supreme judicial court, shall be punished by solitary imprisonment, for such term not exceeding one year, and by confinement afterwards to hard labour, for such term, not exceeding ten years, as the justices of the said court, before whom the conviction may be, shall sentence and order. TITLE CXLI. SUPREME JUDICIAL COURT. Stat. 1782, c. 9, s. 1. Const. c. 2, s. 1, a. 9. Ibid. c. 3, a. 1. THE supreme judicial court consists, of a chief jus- Stat. 1804, c. 105, s. 1. tice, and four associate justices. The law requires that they be inhabitants of the commonwealth, of sobriety of manners, and learned in the law. They are appointed by the governor with the advice and consent of the council, and hold their offices during good behaviour. It is however provided by the constitution, that the governor, with consent of the council, may remove them upon the address of both houses of the legislature. The salary of the chief justice is three thousand five hundred dollars per annum, and that of the associate justices is three thousand dollars per annum, respectively. This court has all the powers of the courts of king's bench, common pleas, and exchequer, in England; and is authorized to keep, within legal and constitutional limits, all inferior courts and magistrates. It has cognizance of actions real, personal, and mixed; and has jurisdiction of offences and misdemeanors, whether capital or otherwise. It has also appellate jurisdiction of causes originally cognizable by the courts of common pleas. Appointment and qualification of the judges, and the tenure of their office. Jurisdiction of the court Per Sedgwick, J. in Mountfort v. Hall, 1 Mass. Rep. 458. Stat. 1782, c. 9, s. 1. Cognizances of actions and offences. Ibid c. 11, s. 2. Ibid. c. 9, s. 1, and 2. Writs of error and So it has jurisdiction of writs of error; and may, by certiorari and other legal methods, cause to be brought before them as well indictments or other criminal pro- certiorari. secutions pending in, as the records of sentences, orders, decrees, and judgments of, any court of inferior criminal jurisdiction; and may proceed, order, and award thereon, as shall be, by law, provided and directed. Writs of mandamus and prohibition. Ibid. s. 2. Stat. 1785, c. 69, s. 7. So it has power to issue all writs of prohibition and mandamus, according to the law of the land, to all courts of inferior judiciary powers, and all processes necessary to the furtherance of justice, and the regular execution of the laws. So, all questions of divorce and alimony shall be heard and tried by this court, holden for the county where the Divorce and alimony. parties live; and the decree of the same court shall be Stat. 1783, c. 46, s. 3. Supreme court of probate. Stat. 1784, c. 72, s. 1, and 2. Habeas corpus and admission to bail. Stat. 1782, c. 9, s. 4. Establishment of rules, admission of attorneys, and appointment of clerks. Ibid. s. 5. final. This court is also, the supreme court of probate; and, as such, has the appellate jurisdiction of all matters determinable by the judges of probate in their respective counties; and have also cognizance, in the first instance of all matters wherein the judge of probate of any county, is interested. This court may also, in term time, or any one or more of the judges thereof, in vacation, issue the writ of habeas corpus; and may also bail any person wherever and for whatever offence committed, at their discretion, whenever the circumstances of the case shall appear to require it; except persons committed by the governor and council, senate, and house of representatives, agreeable to, and for the causes mentioned, in the constitution. So this court may, from time to time, make, record, and establish all such rules and regulations with respect to the admission of attorneys, ordinarily practising in said court, and the creating of barristers at law, and all other rules respecting modes of trial, and conducting of business, as the discretion of the same court shall dictate, provided such rules and regulations be not repugnant to the laws of the commonwealth. So the appointment of clerks is vested in this court;(1) which clerks shall be duly sworn to the faithful performance of their office, and shall hold the same during the pleasure of the court. (1) The establishment of rules, admissions of attorneys, and appointment of clerks, must be, at the terms, at which three justices are required. Sec. 9. Ibid. s. 3. All writs and processes of this court shall be in the name of the commonwealth of Massachusetts, bear teste of the first justice, who is not a party to the suit, be under ties of processes. the seal of the court, and signed by the clerk thereof. To enable the court to perform the increased business thereof, the commonwealth, (except the county of Suffolk,) was divided into two circuits, called the Eastern and Western circuits; the former comprehends the county of Essex, and all the counties in the district of Maine; the latter comprehends all the other counties in the commonwealth, except the county of Suffolk. There are certain terms of this court, at which the law requires the attendance of, at least, three judges. There are other terms at which only one judge is required. Forms and solemni Stat. 1799, c. 52, s. 2. Circuits, Terms. All indictments which may be found for any capital Stat. 1804, c. 105, s. 9. offence, all motions and petitions for new trials, all ap- Jurisdiction of three peals from judgments or decrees of judges of probate, all or more justices. questions of divorce and alimony, all questions of law on statements of facts agreed by the parties, or special verdicts, and all issues in law, shall be heard, tried and determined exclusively at the terms, at which three justices are required: (2) and all other actions, processes, matters and things, civil and criminal, of which the court has single justice. cognizance, may be heard, tried and determined, at the terms at which only one justice is required. Jurisdiction of a Ibid. Courts held by three If, however, at any term, at which one justice only is required, the court should be held by three or more justices, the court, in such case, has the same jurisdiction justices, where one as it has at the terms at which three justices are required. Whenever the court shall be holden by any one of the justices thereof, it shall be lawful for any party, thinking himself aggrieved by any opinion, direction or judgment of the said justice, in any action or process of a civil or (2) One capitally indicted, cannot be arraigned, unless three justices of the court be present. VOL. IV. Commonwealth v. Hardy, 2 Mass. Rep. 303. 2 justice only is required. Ibid. s. 5. Bill of exceptions. Ibid. When to be allowed. Ibid. Process, etc. to be con tinued. Execution to be stayed. Ibid. Trial by jury not to be delayed. Ibid. criminal nature, to allege exceptions to the same, at the term of said court, when such opinion, direction, or judg ment shall be given or pronounced. And such exceptions, being reduced to writing, in a summary mode, and presented to the court before the adjournment thereof, without day, and found conformable to the truth of the case, shall be allowed and signed by the justice holding said court. And thereupon all such action or process, in or upon which judgment shall not have been rendered, at the time of allowing such exceptions, shall be continued to the next term of said court, to be holden in the same county, and at which the attendance of at least three justices is required. And such action or process, wherein exceptions shall be alleged to the final judgment of the court thereon, shall likewise be continued in the same manner, and execution thereon shall be stayed, but without prejudice to any attachment made on the original writ in any civil action. However no trial by jury shall be delayed or prevented, by the making or filing of exceptions to the opinion or judgment of the court, upon any dilatory plea, or upon any question of law arising during the trial. And whenever it shall appear to the court, that the exceptions made in or after the trial of any cause, are Frivolous exceptions. frivolous, immaterial, or intended for delay, judgment Ibid. Power of the court who try the excep tions. may be entered, and execution awarded or stayed, on such conditions as the court may deem reasonable, notwithstanding the allowance of the proceedings. (3) And the courts to which actions may be continued, upon exceptions filed and allowed, shall have cognizance thereof, and shall do therein what to law and justice shall appertain. (3) For further information on this subject, see title BILL OF EXCEPTIONS. Vol. I, page 244. |