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made to the superior courts, they usually take the recognizances there, under the direction of the statute 21 Jac. I., c. 8. And, indeed, a peer or peeress can not be bound over in any other place than the Courts of King's Bench or Chancery; though a justice of the peace has a power to require sureties [254] of any other person being compos mentis, and under the degree of nobility, whether he be a fellow-justice or other magistrate, or merely a private man.h Wives may demand it against their husbands; or husbands, if necessary, against their wives. 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."

may be dis

3. A recognizance may be discharged either by the demise 3. How it of the king, to whom the recognizance is made, or by the death charged. 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, Assizes, 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 be continued.k

zances with

Thus far what has been said is applicable to both species of Recognirecognizances, for the peace, and for the good behavior; de pace, sureties for et legalitate, tuenda, as expressed in the laws of King Edward. the peace. 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 show for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited.

grantable

1. Any justice of the peace may, ex officio, bind all those to 1. When 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 about with unusual weapons or at- [255 ] tendance, 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 the peace in his presence; and all such persons as, having been before bound to the peace, have broken it and forfeited their recognizances. Also, wherever any private man hath just cause to fear that another will burn his house, or do him a corporeal injury, by killing, impris

à 1 Hawk., P. C., 127.
i 2 Stra., 1207.

(5) A peeress may demand surety of the peace against her husband. Fost., 359; 2 Stra., 1202; 13 East, 171; N. Cas. T. Hard., 74; 1 Burr., 631, 703; 1 T. R., 696.-[CHITTY.]

k 1 Hawk., P. C., 129.
1 Ibid., 126.

(6) An infant of 16 years of age is competent to enter into a recognizance to prosecute a criminal charge. M-Clel., 483; 12 Price, 673.

oning, 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 show that he has just cause to be so, by reason of the other's menaces, attempts, or having lain in wait for him; and will, also, further swear that he does not require such surety out of malice, or for mere vexation. 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."

2. How such recogniz

2. Such recognizance for keeping the peace, when given, ance may be may be forfeited by any actual violence, or even an assault, or

forfeited.

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 offenses 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 willful breach of the peace, is no forfeiture of the recognizance.° Neither are mere reproachful words, as calling a man knave or liar, any breach of the peace, so as to forfeit one's recog[256] nizance (being looked upon to be merely the effect of unmean

m 1 Hawk., P. C., 127.

(7) The surety of the peace will only be granted 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.

n Ibid., 128.

• Ibid., 131.

*

171, n.' If the articles manifestly ap pear to contain perjury, the court will refuse the application, and even commit the exhibitant. 2 Burr., 806; 3 Burr.. 1922. [So, if the applicant be indicted for and convicted of perjury, the court will discharge the security. 13 East. 171.] 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 neighborhood, 2 Burr., 780; unless the defendant be very old, &c. 2 Stra., 835: 2 Burr., 1039; 1 Bla. Rep., 233.-[CHITTY.]

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 can not be controverted by the defendant, and, if no objections arise to the articles exhibited, the court or justice will order securities to be taken immediately. 2 Stra., 1202; 13 East,

Surety of the peace is granted upon a complaint made in writing, and upon oath that one person has threatened to commit an offense against the person or property of another. If the magistrate to whom the application is made be of opinion that there is just reason to fear the commission of the offense, he issues his warrant, has the individual brought before him, and commits him to prison, unless he enters into a recognizance, with sureties, in a sum not exceeding $1000, to appear at the next court of general sessions, and not depart without leave; and, in the mean time, keep the peace toward the people of the state, and particularly the person requiring the security. So, in case of an affray, or a contention with hot and angry words, or a threat to commit an injury to the person or property of an individual, in the presence or hearing of a magistrate, such magistrate, without any other proof, may require sureties for the peace.-(2 R. S., 704, 5.)

ing heat and passion), unless they amount to a challenge to

fight.p

zance with

The other species of recognizance, with sureties, is for the Recogni good abearance, or good behavior. This includes security for sureties for the peace, and somewhat more; we will, therefore, examine it good behav. in the same manner as the other.

10r.

grantable.

1. First, then, the justices are empowered by the statute 34 1. When Edw. III., c. 1, to bind over to the good behavior toward 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 expression, that be not of good fame, it is holden that a man may be bound to his good behavior 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 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 misbehavior 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.

forfeited.

2. A recognizance for the good behavior may be forfeited by 2. When all the same means as one for the security of the peace may [257] 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 misbehavior 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 misbehavior 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., 130.

a Ibid., 132.

Ibid., 133.

297

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258

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

SIXTH.

MODE OF

PUNISH

MENTS.

THE sixth and last object of our inquiries will be the method INFLICTING of inflicting those punishments which the law has annexed to particular offenses, 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.

Courts of criminal

First, then, in reckoning up the several courts of criminal jujurisdiction. risdiction, 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, afterward, proceed to such as are only of a private and special jurisdiction, and confined to some particular parts of the kingdom.

1. High Court of Parliament.

I. In our inquiries into the criminal courts of public and general jurisdiction, I must, in one respect, pursue a different order GENERAL from that in which I considered the civil tribunals. For there,

1. CRIMINAL
COURTS OF
PUBLIC AND

JURISDIC-
TION.

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 [259] 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 offense 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 parliament

ary 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 can not, however, be impeached before the lords for any capital offense, but only for high misdemeanors; a peer may be impeached for any crime.' And they usually (in [260]

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 afterward, 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 on 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 hereaf
ter to judge others than their peers, con-
trary to the laws of the land, if the like
case happen, which God forbid." (Rot.
Parl., 4 Edw. III., n. 2 and 6; 2 Brad.,
Hist., 190; Selden, Judic. in Parl., ch.
1.)

impeached for high treason, in having
published a proclamation of James the
Second. On the 2d of July a long re-
port of precedents was produced, and a
question was put to the judges whether

(1) But, according to the last resolu-
tion of the House of Lords, a commoner
may be impeached for a capital offense.
On the 26th of March, 1680, Edward
Fitzharris, a commoner, was impeached
by the Commons of high treason. Upon the record, 4 Edw. III., No. 6, was a
which the attorney-general acquainted statute. They answered, as it appeared
the peers that he had an order from the to them by the copy, they believed it
king to prosecute Fitzharris by indict- to be a statute; but if they saw the roll
ment, and a question thereupon was put itself, they could be more positive. It
whether he should be proceeded against was then moved to ask the judges, but
according to the course of the common the motion was negatived, whether by
law or by way of impeachment, and it this record the lords were barred from
was resolved against proceeding in the trying a commoner for a capital crime
impeachment. 13 Lords' Journ., p.755. upon an impeachment of the Commons.
Fitzharris was afterward prosecuted by And they immediately resolved to pro-
indictment, and he pleaded in abate- ceed in this impeachment, notwithstand-
ment that there was an impeachment ing the parties were commoners and
pending against him for the same of charged with high treason. 14 Lords'
feuse; but this plea was overruled, and Journ., p. 260. But the impeachment
he was convicted and executed. But was not prosecuted with effect, on ac-
on the 26th of June, 1689, Sir Adam count of an intervening dissolution of
Blair and four other commoners were Parliament.-[CHRISTIAN.]*

* In this country none other than officers of the government can be tried on an

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