Page images

the peace, and somewhat more: we will therefore examine it in the same manner as the other.

1. First, then, the justices are empowered by the statute 84 Ed. III. c. 1. to bind over to the good behaviour towards the king and his people, all them that be not of good fame, wherever they be found; to the intent that the people be not troubled or endamaged, nor the peace diminished, nor merchants and others, passing by the highways of the realm, be disturbed nor put in the peril which may happen by such offenders. Under the general words of this expression, that be not of good fame, it is holden that a man may be bound to his good behaviour for causes of scandal, contra bonos mores, as well as contra pacem; as, for haunting bawdy-houses with women of bad fame; or for keeping such women in his own house ; or for words tending to scandalize the government, or in abuse of the officers of justice, especially in the execution of their office. Thus also a justice may bind over all nightwalkers; eaves-droppers; such as keep suspicious company, or are reported to be pilferers or robbers; such as sleep in the day, and wake in the night; common drunkards; whoremasters; the putative fathers of bastards ; cheats ; idle vagabonds; and other persons whose misbehaviour may reasonably bring them within the general words of the statutes as persons not of good fame: an expression, it must be owned, of so great a latitude, as leaves much to be determined by the discretion of the magistrate himself. But if he commits a man for want of sureties he must express the cause thereof with convenient certainty; and take care that such cause be a good one P.

2. A RECOGNIZANCE for the good behaviour may be for[ 257 ] feited by all the same means, as one for the security of the

peace may be ; and also by some others. As, by going armed with unusual attendance, to the terror of the people; by speaking words tending to sedition; or by committing any of those acts of misbehaviour, which the recognizance was intended to prevent. But not by barely giving fresh cause of suspicion of that which perhaps may never actually happen! : for, though it is just to compel suspected persons to give security to the public against misbehaviour that is apprehended; yet it would be hard, upon such suspicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance.

P 1 Hawk. P.C. c. 61. $2, 3, 4.

4 Ibid. $ 5,6.




THE sixth, and last, object of our inquiries will be the

method of inflicting those punishments, which the law has annexed to particular offences; and which I have constantly subjoined to the description of the crime itself. In the discussion of which I shall pursue much the same general method that I followed in the preceding book, with regard to the redress of civil injuries : by, first, pointing out the several courts of criminal jurisdiction, wherein offenders may be prosecuted to punishment; and by, secondly, deducing down, in their natural order, and explaining, the several proceedings therein.

First, then, in reckoning up the several courts of criminal jurisdiction, I shall, as in the former case, begin with an account of such, as are of a public and general jurisdiction throughout the whole realm ; and, afterwards, proceed to such, as are only of a private and special jurisdiction, and confined to some particular parts of the kingdom.

1. In our inquiries into the criminal courts of public and general jurisdiction, I must in one respect pursue a different order from that in which I considered the civil tribunals. For there, as the several courts had a gradual subordination to each other, the superior correcting and reforming the errors of the inferior, I thought it best to begin with the lowest, and

so ascend gradually to the courts of appeal, or those of the ( 259 ) most extensive powers. But as it is contrary to the genius

and spirit of the law of England, to suffer any man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial; therefore these criminal courts may be said to be all' independent of each other; at least so far, as that the sentence of the lowest of them can never be controlled or reversed by the highest jurisdiction in the kingdom, unless for error in matter of law, apparent upon the face of the record ; though sometimes causes may be removed from one to the other before trial. And therefore as, in these courts of criminal cognizance, there is not the same chain and dependence as in the others, I shall rank them according to their dignity, and begin with the highest of all; viz.

1. THE high court of parliament; which is the supreme court in the kingdom, not only for the making, but also for the execution of laws; by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties, beyond or contrary to the common law, to serve a special purpose, I speak not of them; being to all intents and purposes new laws, made pro re nata, and by no means an execution of such as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known: and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom'. A commoner cannot however be impeached before the lords for any capital offence, but only for high misdemesnorsb: a peer may be impeached for any

i i Hal, P. C. *150.

And when afterwards, in the same paro When, in 4 Edw.III., the king de- liament, they were prevailed upon, in remanded the earls, barons, and peers, to spect of the notoriety and heinousness of give judgment against Simon de Bere- his crimes, to receive the charge, and to ford, who had been a notorious accom- give judgment against him, the following plice in the treasons of Roger earl of protest and proviso was entered in the Mortimer, they came before the king Parliament-roll: -“ And it is assented in parliament, and said all with one is and accorded by our lord the king, and voice, that the said Simon was not " all the great men, in full parliament, their peer ; and therefore they were not « that albeit the peers, as judges of the bound to judge him as a peer of the land. iv parliament, haře taken upon them in

crime. And they usually in case of an impeachment of a peer for treason) address the crown to appoint a lord high steward for the greater dignity and regularity of their proceedings; which high steward was formerly elected by the peers themselves, though he was generally commissioned by the king o; but it hath of late years been strenuously maintained", that the appointment of an high steward in such cases is not indispensably necessary, but that the house may proceed without one. The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; who are in cases of misdemesnors considered not only as their own peers, but as the peers of the whole nation. This is a custom derived to us from the constitution of the antient Germans; who in their great councils sometimes tried capital accusations relating to the public: “ licet apud consilium accusare quoque, et discrimen s6 capitis intendere.” And it has a peculiar propriety in the English constitution ; which has much improved upon the antient model imported hither from the continent. For though in general the union of the legislative and judicial powers ought to be more carefully avoided', yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of

such crimes, as the ordinary magistrate either dares not or [ 261 ) cannot punish. Of these the representatives of the people,

or house of commons, cannot properly judge ; because their constituents are the parties injured : and can therefore only impeach. But before what court shall this impeachment be tried ? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an ac

“ the presence of our lord the king to “ charged hereafter to judge others than
“ make and render the said judgment, « their peers, contrary to the laws of the
" yet the peers who now are, or shall be « land, if the like case happen, which
“ in time to come, be not bound or charge " God forbid.” (Rot. Parl. 4 Ed. III.
" ed to render judgment upon others n. 2. &6. 2 Brad. Hist. 190. Selden.
“ than peers ; nor that the peers of the judic. in parl. ch. 1.)
“ land bave power to do this, but thereof C1 Hal. P.C. 350.
“ ought ever to be discharged and ac, Lords' Journ. 12 May 1679. Com.
“ quitted; and that the aforesaid judg. Journ, 15 May 1679. Fost. 142, fc.
“ ment now rendered be not drawn to • Tacit. de mor. Germ. 12.
" example or consequence in time to See Vol. I. pag.269,
"come, whereby the said peers may be

« PreviousContinue »