2. A recognizance for the good behaviour may be forfeited 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 [257] 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: (r) 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.

CHAP. XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

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.

I. 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 most extensive powers. But as it is contrary to the genius and spirit of the [259] 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.

r Ibid. 133.

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) A commoner cannot however be im

peached before the lords for any capital offence, but only for high [260] misdemesnors: (b) a peer may be impeached for any 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; (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 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 ancient Germans who in their great councils sometimes tried capital accu

a 1 Hal. P. C. * 150,

b When in 4 Edw. III. the king demanded the earls, barons, and peers, to give judgment against Simon de Bereford, who had been a notorious accomplice in the treasons of Roger earl of Mortimer, they came before the king in parliament, and said all with one voice, that the said Simon was not their peer; and therefore they were not bound to judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect of the notoriety and heinousness of his crimes, to receive the charge, and to give judgment against him, the following protest and proviso was entered in the parliament-roll. And it is assented and accorded by our lord the king, and all the great men in full parliament, that albeit the peers, as judges of the parliament, have taken upon them, in the presence of our lord the king, to make and render the said judgment; yet the peers who now are, or shall be in time to come, be not bound or charged to render judgment upon others than peers; nor that the peers of the land have power to do this, but thereof ought ever to be discharged and acquitted; and that the aforesaid judgment now rendered be not drawn to example or consequence in time to come, whereby the said peers may be charged hereafter to judge others than their peers, contrary to the laws of the land, if the like case happen, which God forbid." (Rot. Parl. 4 Edw. III. n. 2, & 6. 2 Brad. Hist. 190. Selden. Judic. in Parl. ch. 1.)

c 1 Hal. P. C. 350. d' Lords' Journ. 12 May, 1679. Com. Journ. 15 May, 1679. Fost. 142, &c.

(1) But according to the last resolution 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 treason. 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 over-ruled, 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. But the impeachment was not prosecuted with effect, on account of an intervening dissolution of parliament.-Christian's noto."

sations relating to the public: "licet apud consilium accusare quoque et discrimen capitis intendere." (e) And it has a peculiar propriety in the English constitution; which has much improved upon the ancient model imported hither from the continent. For, though in general the union of the legislative and judicial powers ought to be more carefully avoided, (f) 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 cannot punish. Of these the representatives of the people, or house of commons, can. [261] not 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 accuser. Reason therefore will suggest, that this branch of the legislature, which represents the people, must bring its charge before the other branch, which consists of the nobility, who have neither the same interests nor the same passions as popular assemblies. (g) This is a vast superiority, which the constitution of this island enjoys, over those of the Grecian or Roman republics; where the people were at the same time both judges and accusers. It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people should accuse, to insure justice to the commonwealth. And therefore, among other extraordinary circumstances attending the authority of this court, there is one of a very singular nature, which was insisted on by the house of commons in the case of the earl of Danby in the reign of Charles II.; (h) and it is now enacted by statute 12 & 13 W. III. c. 2. that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament. (¿)a

2. The court of the lord high steward of Great Britain (k) is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either. (1) The office of this great magistrate is very ancient; and was formerly hereditary, or at least held for life, or dum bene se gesserit: but now it is usually, and hath been for many centuries past, (m) granted pro hac vice only; and it hath been the constant practice (and therefore seems now to have become necessary) to grant it to a lord [262] of parliament, else he is incapable to try such delinquent peer. (n) When such an indictment is therefore found by a grand jury of freehold. ers in the king's bench, or at the assises before the justices of oyer and terminer, it is to be removed by a writ of certiorari into the court of the lord high steward, which only has power to determine it. A peer may plead a pardon before the court of king's bench, and the judges have power to allow it; in order to prevent the trouble of appointing an high stewf See Book II. pag. 269. g Montesq. Sp. L. xi. 6. k 4 Inst. 58. 2 Hawk. P. C. 5. 421. 2 Jon. 54. m Pryn. on 4 Inst. 46.

e Tacit. de Mor. Germ. 12. h Com. Journ. 5 May, 1679,

i See ch. 31. I 1 Bulstr. 198.

n Quand un seigneur de parlement serra arrein de treason ou felony, le roy par ses lettres patents fera un grand et sage seigneur d'estre le grand seneschal d'Angleterre qui doit faire un precept-pur faire venir Ir seigneurs, ou rviii. &c. (Yearb. 13 Hen. VIII. 11.) See Staundf. P. C. 152. 3 Inst. 23. 4 Inst. 59. 2 Hawk. P. C. 5. Barr. 234.

(2) In the impeachment of Warren Hastings, esq. it was confidently advanced, that the lords are not bound to observe the same rules of evidence in an impeachment as are admitted in criminal trials in the inferior courts. The high reputation of those, who strenuously maintained this doctrine, induced the editor to endeavour to prove that it was not only contrary to all precedent and authority, but repugnant to the first and great principles both of the English law and constitution, in a pamphlet entitled, "A Dissertation, shewing that the house of lords in cases of judicature are bound by precisely the same rules of evidence as are observed by all other courts."— Christian. See further, 399. post.

VOL. II.

74

ard, merely for the purpose of receiving such plea. But he may not plead, in that inferior court, any other plea; as guilty, or not guilty, of the indictment; but only in this court: because, in consequence of such plea, it is possible that judgment of death might be awarded against him. The king therefore, in case a peer be indicted for treason, felony, or misprision, creates a lord high steward pro hac vice by commission under the great seal; which recites the indictment so found, and gives his grace power to receive and try it, secundum legem et consuetudinem Angliae. Then, when the indictment is regularly removed, by writ of certiorari, commanding the inferior court to certify it up to him, the lord high steward directs a precept to a serjeant at arms, to summon the lords to attend and try the indicted peer. This precept was formerly issued to summon only eighteen or twenty, selected from the body of the peers: then the number came to be indefinite; and the custom was for the lord high steward to summon as many as he thought proper (but of late years not less than twenty-three), (0) and that those lords only should sit upon the trial: 3 which threw a monstrous weight of power into the hands of the crown, and this its great officer, of selecting only such peers as the then predominant party should most

approve of. And accordingly, when the earl of Clarendon fell into [263] disgrace with Charles II., there was a design formed to prorogue

the parliament, in order to try him by a select number of peers; it being doubted whether the whole house could be induced to fall in with the views of the court. (p) But now by statute 7 W. III. c. 3. upon all trials of peers for treason or misprision, all the peers who have a right to sit and vote in parliament shall be summoned, at least twenty days before such trial, to appear and vote therein; and every lord appearing shall vote in the trial of such peer, first taking the oaths of allegiance and supremacy, and subscribing the declaration against popery.

During the session of parliament the trial of an indicted peer is not properly in the court of the lord high steward, but before the court last mentioned, of our lord the king in parliament. (q) It is true, a lord high steward is always appointed in that case, to regulate and add weight to the proceedings: but he is rather in the nature of a speaker pro tempore, or chair. man of the court, than the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high steward has a vote with the rest, in right of his peerage. But in the court of the lord high steward, which is held in the recess of parliament, he is the sole judge of matters of law, as the lords triors are in matters of fact; and as they may not interfere with him in regulating the proceedings of the court, so he has no right to intermix with them in giving any vote upon the trial. (r) Therefore, upon the conviction and attainder of a peer for murder in full parliament, it hath been holden by the judges, (s) that in case the day appointed in the judgment for execution should lapse before execution done, a new time of execution may be appointed by either the high court of parliament during its sitting, though no high steward be existing; or, in the recess of parliament, by the court of king's bench, the record being removed into that court.

[264]

It has been a point of some controversy, whether the bishops • Kelynge, 56.

p Carte's Life of Ormonde, Vol. II.

r State Trials, Vol. IV. 214. 232, S.

q Fost. 141. s Fost. 139.

(3) The decision is by a majority, but a majority cannot convict, unless it consists of twelve or more. See ante, 3 vol. p. 376. n. 38.

have now a right to sit in the court of the lord high steward, to try indictments of treason and misprision. Some incline to imagine them in. cluded under the general words of the statute of king William, "all peers, who have a right to sit and vote in parliament;" but the expression had been much clearer, if it had been, "all lords," and not, “all peers ;" for though bishops, on account of the baronies annexed to their bishopricks, are clearly lords of parliament, yet, their blood not being ennobled, they are not universally allowed to be peers with the temporal nobility; and perhaps this word might be inserted purposely with a view to exclude them. However, there is no instance of their sitting on trials for capital offences, even upon impeachments or indictments in full parliament, much less in the court we are now treating of; for indeed they usually withdraw voluntarily, but enter a protest declaring their right to stay. It is observable that, in the eleventh chapter of the constitutions of Clarendon, made in parliament 11 Hen. II., they are expressly excused, rather than excluded, from sitting and voting in trials, when they come to concern life or limb: " episcopi, sicut caeteri barones, debent interesse judiciis cum baronibus, quousque perveniatur ad diminutionem membrorum, vel ad mortem :" and Becket's quarrel with the king hereupon was not on account of the exception (which was agreeable to the canon law), but of the general rule, that compelled the bishops to attend at all. And the determination of the house of lords in the earl of Danby's case, (t) which hath ever since been adhered to, is consonant to these constitutions; "that the lords spiritual have a "right to stay and sit in court in capital cases, till the court proceeds to the "vote of guilty, or not guilty." It must be noted, that this resolution extends only to trials in full parliament: for to the court of the lord high steward (in which no vote can be given, but merely that of guilty, or not guilty), no bishop, as such, ever was or could be summoned ; and though the statute of king William regulates the proceedings in that court, as well as in the court of parliament, yet it never intended to new-model or alter its constitution; and consequently does not give the lords spiritual any right in cases of blood which they had not before. (u) And what makes their exclusion more reasonable is, that they have no right to be tried themselves in the court of the lord high steward, (w) and therefore [265] surely ought not to be judges there. For the privilege of being thus tried depends upon nobility of blood, rather than a seat in the house : as appears from the trial of popish lords, of lords under age, and (since the union) of the Scots' nobility, though not in the number of the sixteen ; and from the trials of females, such as the queen consort or dowager, and of all peeresses by birth; and peeresses by marriage also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband.5

(5) But peeresses by marriage cannot be said to be ennobled by blood; for after the death of their husbands they have even a less estate in their nobility than bishops, it being only durante viduitate. See the editor's conjecture how the notion was originally introduced that bishops were not entitled to a trial by the peers in parliament. Book I. p. 401. n. Since that note was written, the editor has been happy in finding what he suggested only as a conjecture drawn from general principles, confirmed by the more extensive learning of the late Vinerian professor Mr. Wooddeson, who not only has adopted the same opinion, but has adduced in confirmation of it several instances of bishops, who, being arraigned before a jury, demanded the privileges of the church, and disclaimed the authority of all secular jurisdictions. 2 Woodd. 585.-Mr. Chris

tian's note.