[*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 proof of any actual crime, to punish them by a forfeiture of their recognizance.

CHAPTER 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 [*259] to the genius and spirit of the law of England to suffer any man to be tried twice for the 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. (1) As for acts of parliament to attaint particular

(r) 1 Hawk. P. C. 133.

(1) In the United States, as well as in the several states of the Union, the senate tries in:peachments, while the lower house prefers the charges. The whole law of impeachment was very fully considered on the trial of President Johnson, to the report of which the reader is referred. See also 6 Am. Law Reg. N. S. 257 and 641.

Special acts imposing punishments on particular persons, cannot be passed in the United States. Const. of the U. S. art. 1, §§ 9 and 10; Cuminings . Missouri, 4 Wal. 277; Ex parte Garland, id. 333.

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. (2)

And they usually (in case of an impeachment of a peer for treason) [*260] 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, () 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 [*261]

Not

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? 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

(a) 1 Hal, P. C. 150.

(b) When in 4 Edw. III. the king demanded the earls, barons, and peers to give judgment against Simou 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 pcer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect to 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 Ed. III. n. 2 and 6. 2 Brad. Hist. 190. Selden, Judic. in Parl. c. 1. (d) Lords' Journ. 12 May, 1879. Com. Journ. 15 May, 1679. Fost. 142, &c. (e) Tacit. de mor. Germ. 12. (f) See book I, page 269. (g) Montesq. Sp. L. xi, 6.

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

(2) [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, 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. Per Fleming, C. J., assented to by the whole court, in Rex v. Lord Vaux, 1 Bulstr. 197.]

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 and 13 Wm. III, c. 2, that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament. (i)

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 nec[*262] essary to grant it to a lord of parliament, else he is incapable to try such delinquent peer. (2) When such an indictment is therefore found by a grand jury of freeholders in the king's bench, or at the assizes 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 steward, 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 Angliæ. 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 the 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 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 twentythree, (o) 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 predominate party should most approve of. And accordingly, when the Earl of Clarendon fell in disgrace with Charles II, *there was a design formed to prorogue the parliament, in order to try

[*263] 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 Wm. 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.

(h) Com. Journ. 5 May, 1679. (7) 1 Bulstr. 198.

(i) See c. 31. (m) Pryn. on 4 Inst. 46.

(k) 4 Inst. 58. 2 Hawk. P. C. 5, 421. 2 Jon. 54.

2

(n) Quand un seigneur de parlement serra arrein de treason ou felouy, le roy par ses lettres patents fera un grand et sage seigneur d'estre legrand seneschal d'Angleterre : qui-doit faire un precept-pur faire venir xx seigneurs, ou xviii, fc. (Yearb. 13 Hen. VIII, 11.) See Standf. P. C. 152. 3 Inst. 25. 4 Inst. 59. Hawk. P. C. 5. Barr. 234. (0) Kelynge, 56.

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

(3) [The decision is by a majority, but a majority cannot convict, unless it consists of twelve

or more.

A peer cannot have the benefit of a challenge like a commoner. 1 Harg. St. Tr. 198, 388.] The right of challenge was somewhat discussed in the case of the impeachment of President Johnson.

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 chairman 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 the 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, (8) 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.

*It has been a point of some controversy, whether the bishops have

now a right to sit in the court of the lord high steward, to try indict- [*264]
ments of treason and misprision. Some incline to imagine them included
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 and 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 cæteri barones, debent interesse judiciis cum baronibus,
quosque 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 sum-
moned; and though the statute of King William *regulates the pro- [265]
ceedings 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
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: aз appears
from the trials 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;

(7) Fost. 141.
(r) State Trials, vol. iv, 214. 232, 233.
(i) Lords' Journ. 15 May, 1679.
(u) Fost. 218.

(s) Fost. 139.
(w) Bro. Abr. t. Trial. 142.

and peeresses by marriage, also, unless they have, when dowagers, disparaged themselves by taking a commoner to their second husband. (4)

3. The court of king's bench, (x) concerning the nature of which we partly inquired in the preceding book, (y) was (we may remember) divided into a crown side and a plea side. And on the crown side, or crown office, it takes cognizance of all criminal causes, from high treason down to the most trivial misdemeanor or breach of the peace. Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar, or at nisi prius, by a jury of the county out of which the indictment is brought. The judges of this court are the supreme coroners of the kingdom. And the court itself is the principal court of criminal jurisdiction (though the two former are of greater dignity) known to the laws of England. For which reason by the coming of the court of king's bench into any county (as it was removed to Oxford on account of the sickness in 1665), all former commissioners of oyer and terminer, and general gaol delivery, are at once absorbed and determined ipso facto (5) *in the same manner as by the old Gothic and Saxon consti[*266] tutions, "jure vetusto obtinuit, quievisse omnia inferiora judicia, dicente jus rege." (z)

Into this court of king's bench hath reverted all that was good and salutary of the jurisdiction of the court of star-chamber, camera stellata; (a) which was a court of very ancient original, (b) but new-modeled by statutes 3 Hen. VII, c. 1, and 21 Hen. VIII, c. 20, consisting of divers lords, spiritual and temporal, being privy counsellors, together with two judges of the courts of common law, without the intervention of any jury. Their jurisdiction extended legally over riots, perjury, misbehaviour of sheriffs, and other notorious *misde[*267] meanors, contrary to the laws of the land. Yet, this was afterwards (as Lord Clarendon informs us) (c) stretched "to the asserting of all proclamations and orders of state: to the vindicating of illegal commissions, and grants of monopolies; holding for honorable that which pleased, and for just that which profited, and becoming both a court of law to determine civil rights, and a court of revenue to enrich the treasury; the council table by proclamations enjoining to the people that which was not enjoined by the laws, and prohibiting that which was not prohibited; and the star-chamber, which consisted of the same persons in different rooms, censuring the breach and disobedience to those proclamations by very great fines, imprisonments, and corporal severities: so that any disrespect to any acts of state, or to the persons of statesmen, was in no time

(x) 4 Inst. 70. 2 Hal. P. C. 2. 2 Hawk, P. C. 6. (y) See book 3, page 41. (z) Stiernhook, l. 1, c. 2. (a) This is said (Lamb. Arch. 154) to have been so called, either from the Saxon word peoɲan to steer or govern ;-or from its punishing the crimen stellionatus, or cosenage-or because the room wherein it sat, the old council-chamber of the palace of Westminster (Lamb. 148), which is now converted into the lottery office, and forms the eastern side of New Palace-yard, was full of windows; or (to which Sir Edward Coké, 4 Inst. 66, accedes) because haply the roof thereof was at the first garnished with gilded stars. As all these are merely conjectures (for no stars are now in the roof, nor are any said to have remained there so late as the reign of Queen Elizabeth), it may be allowable to propose another conjectural etymology, as plausible perhaps as any of them. It is well known that before the banishment of the Jews under Edward I. their contracts and obligations were denominated in our ancient records starra or starrs, from a corruption of the Hebrew word shetar, a convenant. Tovey's Angl. judaic, 32. Selden, tit. of hon. ii, 34. Uzor, ebraic. i. 14. These starrs, by an ordinance of Richard the First, preserved by Hoveden, were commanded to be enrolled and deposited in chests under three keys in certain places; one, and the most considerable, of which was in the king's exchequer at Westminster; and no starr was allowed to be valid unless it were found in some of the said repositories. (Memorand in Scacc. P. 6 Edw. I. prefixed to Maynard's year-book of Edw. II. fol. 8. Madox. hist. exch. c. vii, § 4, 5, 6.) The room at the exchequer, where the chests containing these starrs were kept, was probably called the starr-chamber; and when the Jews were expelled the kingdom, was applied to the use of the king's council, sitting in their judicial capacity. To confirm this, the first time the starr-chamber is mentioned in any record, it is said to have been situated near the receipt of the exchequer at Westminster; the king's council, his chancellor, treasurer, justices, and other sages, were assembled en la chaumbre des esteilles pres la resceipt la Westminster. Claus, 41. Edw. III, m. 13. For in process of time, when the meaning of the Jewish starrs was forgotten, the word starr-chamber was naturally rendered in law-French, la chaumbre des esteilles and in law-latin camera stellata; which continued to be the style in latin till the dissolution of that court. (b) Lamb. Arch. 156. (c) Hist. of Reb., books i and 3.

(4) [See, for instance, the Dutchess of Kingston's Case, 20 St. Tr. 355.

Upon conviction for felony a peer is now liable to the same punishment as any other subject of the crown (statute 4 and 5 Vic. c. 22), and for a misdeameanor, as libel, he is liable in like manner as a commoner. Case of Lord Vaux, 1 Bulstr. 197.]

(5) This is now otherwise by statute.