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many species of offences which were mentioned as crimes against the public peace in the eleventh chapter of this book : or, by any private violence committed against any of his Majesty's subjects. But a bare trespass upon the land or goods of another, which is a ground for a civil action, unless accompanied with a wilful breach of the peace, is no forfeiture of the recognizance (n). Neither are mere reproachful words, as calling a man knave or liar, any breach of the peace, so as to forfeit one's recognizance, (being looked *upon to be [*256] merely the effect of unmeaning heat and passion,) unless they amount to a challenge to fight(o) (7).

The other species of recognizance, with sureties, is for the good abearance, or good behaviour. This includes security for 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 Who may be 34 Edw, III. c. 1, to bind over to the good behaviour the good betowards 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 nor 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 expres

bound over to

haviour.

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(7) The demise of the king is a discharge of a recognizance for keeping the peace ; for the condition being, servare nostrum pacem, his successor can not take advantage of a breach thereof; Bro. Abr. Peace, Pl. 15; 1 Hawk. P.C. c. 60. A recognizance for keeping the peace may be forfeited by any actual violence to the person of another, whether it be done by the party bound, or others by his procurement; Lamb. 115, 127; Bro. Abr. Peace, Pl. 2; 1 Hawk. P. C. c. 60. In support of a rule to stay proceedings in a scire facias upon a recognizance for keeping the peace, it was said that the assault, which had been made, was not upon him at whose request the surety of the peace was granted, but upon another person. It

was held that this made no difference, and the rule was discharged; Rea v. Stanley, MS. Trin. 27 Geo. II. But a recognizance for keeping the peace is not forfeited, where an officer, having a warrant against one who will not suffer himself to be arrested, beats or wounds him in the attempt to take him; Lamb. 128; 1 Hawk. P. C. c. 60. So, it is not forfeited, if a parent in a reasonable manner chastiscs his child; a master his servant, being actually in his service at the time; a schoolmaster his scholar; a gaoler his prisoner; a hus. band his wife; 1 Sid. 176-7; Lamb 127-8; Hetl. 149-50; 1 Hawk. P. C. c. 60; F. N. B. 80; Jacob, L. D. Surety of the leace. And see 5 Chit. Barn, Recognizance, Surety of the Pouce.

sion, 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 ; eavesdroppers; 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 statute, 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). 5*2577 2. A recognizance for the good behaviour may be forfeited By what means 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 (9): 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 (8).

the recogni. zances may be forfeited.

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(8) See generally, on this subject, 5 Chit. Burn, tit. Recognizance, Surety

of the Peace.

258

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

courts and their

The sixth, and last, object of our inquiries will be the me- Of criminal thod of inflicting those punishments, which the law has annexed proceedings. 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.

I. In our inquiries into the criminal courts of public and 1. Those of a general jurisdiction, I must in one respect pursue a different neral jurisdicorder from that in which I considered the civil tribunals, independent of 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 to ascend gradually to the courts of appeal, or those of "the most extensive powers. But, as it is contrary [*259] 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

public and ge

tion, which are

each other.

ecuting laws

moners may be impeached in parliament, a pardon under the great seal

to an impeach. ment by the commons.

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 Parliament

1. The high court of parliament ; which is the supreme the supreme court in the

court in the kingdom, not only for the making, but also for kingdom, for making and er. the execution, of laws; by the trial of great and enormous peers and come 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 is not pleadable 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 natá, 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). A commoner cannot, however, be impeached before the lords for any capital offence, but only

for high misdemesnors (6): a peer may be impeached for any [*260) *crime (1) (2). And they usually (in cases of an impeach(a) I Hal. P. C.* 150.

men, in full parliament, that albeit the (6) When, in 4 Edw. III. the king peers, as judges of the parliament, have demanded the carls, barons, and peers, taken upon them in the presence of our to give judgment against Simon de lord the king to make and render the Bereford, who had been a notorious said judgment; yet the peers who now accomplice in the treasons of Roger are, or shall be in time to come, be earl of Mortimer, they came before the not bound or charged to render judgking in parliament, and said all with ment upon others than peers; nor that one voice, that the said Simon was not the peers of the land have power to do their peer; and therefore they were not this, but thereof ought cver to be disbound to judge him as a peer of the charged and acquitted; and that the land. And when afterwards, in the aforesaid judgment now rendered be same parliament, they were prevailed not drawn to example or consequence upon, in respect of the notoriety and in time to come, whereby the said peers heinousness of his crimes, to receive the may be charged hereafter to judge charge and to give judgment against others than their peers, contrary to the him, the following protest and proviso laws of the land, if the like case happen, was entered in the parliament roll: which God forbid.” (Rot. Parl. 4 " And it is assented and accorded by Edw. III. n. 2 & 6. 2 Brad. Hist. our lord the king, and all the great 190. Selden. judic. in parl. ch. I.)

(1) For misdemeanors, as libels, riots, moners, by a jury, for, " at the common &c., peers are to be tried, like com law, in these four cases only, a peer

ment 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 (c); but it hath of late years been strenuously maintained (d), 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 bill 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 ancient Ger

Fost.

(C) I Hal. P. C. 350.
(d) Lords' Journ. 12 May, 1679.

Com. Journ. 15 May, 1679.
142, &c.

shall be tried by his peers, viz., in trcason, felony, misprision of treason, and misprision of felony; and the statute law which gives such trial, hath reference unto these, or to other offences made treason or felony ; his trial by his peers shall be as before; and to this effect are all these statutes, viz. 32 H. VIII. c. 4, Rastall, 404, pl. 10; 33 H. VIII. c. 12, Rastall, 415; 35 H. VIII. c. 2. Rastall, 416; and in all these express mention is made of trial by peers. But in this case of a præmunire, the same being only in effect but a contempt, no trial shall be here in this of a peer by his peers." Per Fleming, C. J., assented to by the whole court, in Rer v. Lord Vaur, I Bulstr. 197.

(2) But according to the last reso lution of the house of Lords, a commoner may be impeached for a capital offence. On the 26th of March, 1680, Edward Fitzharris, a commoner, was impeached by the commons of high trcason, upon which the attorney-general acquainted the peers that he had an order from the king to prosecute Fitzharris by indictment, and a question thereupon was put, whether he should be proceeded against according to the course of the common law or by way of

impeachment, and it was resolved against proceeding in the impeachment; 13 Lords' Journ. p. 755. Fitzharris was afterwards prosecuted by indictment, and he pleaded in abatement that there was an impeachment pending against him for the same offence; but this plea was overruled, and he was convicted and executed. But on the 26th of June, 1689, Sir Adam Blair and four other commoners were impeached for high treason, in having published a proclamation of James the second : on the 2d of July a long report of precedents was produced, and a question was put to the judges whether the record 4 Edw. III. No. 6, was a statute: they answered, as it appeared to them by the copy, they believed it to be a statute; but if they saw the roll itself, they could be more positive. It was then moved to ask the judges, but the motion was negatived, whether by this record the lords were barred from trying a commoner for a capital crime upon an impeachment of the commons. And they immediately resolved to proceed in this impeachment, notwithstanding the parties were commoners and charged with high treason. 14 Lords' Journ, p. 260. The impeachment, however, was not proceeded in.

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