averse to act, it may be granted by a mandatory writ, called a supplicavit, issuing out of the court of king's bench or chancery; which will compel the justice to act, as a ministeral and not as a judicial officer: and he must make a return to such writ, specifying his compliance, under his hand and seal (g). But this writ is seldom used: for, when application is made to the superior courts, they usually take the recognizances there, under the directions of the statute 21 Jac. I. c. 8. And indeed a peer or peeress [254] cannot be bound over in any other place than the courts of *king's bench or chancery (4): though a justice of the peace has a power to require sureties of any other person, being compos mentis and under the degree of nobility, whether he be a fellew-justice or other magistrate, or whether he be merely a private man (h). Wives may demand it against their husbands; or husbands, if necessary, against their wives (i). But feme coverts, and infants under age, ought to find security by their friends only, and not to be bound themselves: for they are incapable of engaging themselves to answer any debt; which, as we observed, is the nature of these recognizances or acknowledgments.

3. A recognizance may be discharged, either by the demise of the king, to whom the recognizance is made; or by the death of the principal party bound thereby, if not before forfeited; or by order of the court to which such recognizance is certified by the justices (as the quarter sessions, assises, or king's bench), if they see sufficient cause; or in case he at whose request it was granted, if granted upon a private account, will release it, or does not make his appearance to pray that it may by continued (k).

Thus far what has been said is applicable to both species of recognizances, for the peace, and for the good behaviour: de pace, et legalitae, tuenda, as expressed in the laws of king Edward. But as these two species of securities are in some respects different, especially as to the cause of granting, or the means of forfeiting them, I shall now consider them separately and first, shall shew for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited.

1. Any justice (5) of the peace may, ex officio, bind all those to keep the peace, who in his presence make any affray; or threaten to kill or beat

another; or contend together with hot and angry words; or go [*255] about with unusual weapons *or attendance, to the terror of the people; and all such as he knows to be common barretors; and such as are brought before him by the constable for a breach of peace in his presence; and all such persons, as, having been before bound to the peace, have broken it and forfeited their recognizances (1). Also, wherever any private man hath just cause to fear that another will burn his house, or do him a corporal injury, by killing, imprisoning, or beating him; or that he will procure others so to do; he may demand surety of the peace against such person: and every justice of the peace is bound to grant it, if he who demands it will make oath, that he is actually under fear of death or bodily harm; and will shew that he has just cause to be so, by reason of the other's menaces, attempts, or having lain in wait for him; and

(g) F. N. B. 80. 2 P. Wms. 202.

(h) 1 Hawk. P. C. 127.

(i) Stra. 1207.

2

(4) A peeress may demand surety of the peace against her husband. Fost. 359. Stra. 1202. 13 East, 171. N. Cas. T. Hard. 74.

(k) 1 Hawk. P. C. 129.
(1) Ibid. 126.

1 Burr. 631, 703. 1 T. R. 696.

(5) See note 29. p. 350, book 1, as to law of New-York, and 2 R. S. 704.

:

will also farther swear, that he does not require such surety out of malice, or for mere vexation (m) (6). This is called swearing the peace against another and, if the party does not find such sureties, as the justice in his discretion shall require, he may immediately be committed till he does (n). 2. Such recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault, or menace, to the person of him who demanded it, if it be a special recognizance; or, if the recognizance be general, by any unlawful action whatsoever, that either is or tends to a breach of the peace; or more particularly, by any one of the 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 lands 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 (o). 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 merely the effect of unmeaning heat and pas- [*256] sion), unless they amount to a challenge to fight (p).

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 34 Edw. 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 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 (7). 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 goverment, or in abuse of the officers of justice, especially in the execution of their office. Thus also a justice may bind over all night-walkers; 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 statues, 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

(m) 1 Hawk. P. C. 127. (n) Ibid. 128.

(6) The surety of the peace will not be granted but where there is a fear of some present or future danger, and not merely for a battery or trespass, or for any breach of the peace that is past. Dalt. c. 11.

The articles to entitle a party to have sureties of the peace must be verified by the oath of the exhibitant. 1 Stra. 527. 12 Mod. 243. The truth of the allegations therein cannot be controverted by the defendant, and if no objections arise to the articles exhibited, the court or justice will order securities to be VOL. II.

76

(0) Ibid. 131.
(p) Ibid. 130.

taken immediately. 2 Stra. 1202. 13 East, 171, n. If the articles manifestly appear to contain perjury, the court will refuse the application, and even commit the exhibitant. 2 Burr. 806. 3 Burr. 1922. The articles will not be received if the parties live at a distance in the county, unless they have previously made application to a justice in the neighbourhood, 2 Burr. 780; unless the defendant be very old, &c. 2 Stra. 835. 2 Burr. 1039. Bla. Rep. 233. S. C.

1

(7) See note (1), ante, 253.

sureties, he must express the cause thereof with convenient certainty; and take care that such cause be a good one (9).

[*257] *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 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 (8).

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION (1).

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 reform

(2) 1 Hawk. P. C. 132.

(8) See 7 Geo. IV. c. 64, 31, and 3 Geo. IV. c. 46, 37; also 1 R. S. 632.

(1) In New-York, the lowest criminal court is the special sessions, which consists of three justices of the peace, or a judge of the county and two justices; and has cognizance of all cases of petit larceny charged as a first offence, and of other smaller offences. (See 2 R. S. 711, 1.) The trial is by jury. In the city of New-York, the court consists of any three of the judges of the common pleas, of whom the first judge, the major, or recorder must be one; and there is no jury: but the accused may, when sentence is pronounced, appeal, and then the sentence is void. There

(r) Ibid. 133.

is also a court of general sessions in each county, which has cognizance of all offences not punishable with death or imprisonment in the state-prison for life, and of other matters. (See 2 R. S. 208, § 4.) In each county twice every year the court of oyer and terminer sits, and has cognizance of the greatest of fences. (2 R. S. 201, § 4, and 205, § 29.) Bills of exceptions may be taken to the decisions of these courts and carried to the supreme court. (Id. 736, § 21, &c.) Writs of error also lie on their judgments, (Id. 740, ◊ 14,) but proceed. ings are not stayed of course. (Id. 736, § 23 : 740, 16, &c.)

ing 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 [*259] 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 (2). 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 impeached before the lords for any capital offence, but only for high misdemeanors (b): a peer may be impeached for any crime [260] (3), (4). And they usually (in case of an impeachment of a peer

(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

(2) The house of representatives of the U. S. has the sole power of impeachment, (Const. Art. 1. sect. 2, 5,) the senate the sole power of trying impeachments, and two thirds of the members must concur. (Id. sect. 3. §6.) The like provision exists in New-York, as to the impeachment of the civil officers of the state (Const. New-York, Art. 5, sect. 1, 2.) A judgment on impeachment in either case does not extend further than to removal and disqualification from offices: but this does not prevent an indictment for the same crime.

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

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 charg ed 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 Ed. III. n. 2 & 6. 2 Brad. Hist. 190. Selden. judic. in parl. ch. 1.)

viz. in treason, 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 Rex v. Loid Vaux, 1 Bulstr. 197.

(4) But according to the last resolution of

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 misdemeanors 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 accusations 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 adminis

tration of public affairs, may infringe the rights of the people, and [*261] 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, 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 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,

(c) 1 Hal. P. C. 350.

(d) Lords' Journ. 12 May, 1679. Com. Journ. 15 May, 1679. Fost. 142, &c.

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 indict ment, 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 convict ed and executed. But on the 26th of June, 1689, sir Adam Blair and four other commoners were impeached for high treason, in hav

(e) Tacit. de mor. Germ. 12.
(f) See Book. II. page 269.
(g) Montesq. Sp. L. xi. 6.

ing 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 it self, 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 ca. pital 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 Lord's Journ. p. 260. But the impeachment was not prosecuted with ef fect, on account of an intervening dissolution of parliament.