CHAPTER THE NINETEENTH. OF COURTS OF A CRIMINAL JURIS- HE sixth, and last, object of our inquiries will be the 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 casc, 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 order from that in which I considered the civil tribunals. For there, as the civil 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 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, espe cially if acquitted upon the first trial; therefore these crimi nal 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. [ 259 ] the high court of of commoners for by impeachment of 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 high misdemeanors) offenders, whether lords or commoners, in the method of the commons; 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 Bri- tain, 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 commoner cannot however be impeached before the lords for any capital offence, but only for (a) 1 Hal. P. C.* 150. high 177. [ 260 ] high misdemesuors: 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 but it hath of late years been strenuously maintained, 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 antient Germans; who in their great councils sometimes tried capital accusations relating to the public: "licet apud consilium accusare quoque, et discrimen capitis intendere." And it has a peculiar propriety in the English constitution; which has much improved upon the antient model imported hither from the continent. For, though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of pub lic (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 parlia ment, 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 parlia ment, 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. (e) Tacit. de Mor. Germ. 12. 66 15 May, 1679. Fost. 142, &c. lic 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, 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. 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.; 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 1. [261] no pardon is plead able to an impeachment. or misprision of either, upon indict ment found by a 2. THE Court of the lord high steward of Great Britain The court of the is a court instituted for the trial of peers, indicted for treason for the trial of peers lord high steward, or felony, or for misprision of either'. The office of this for treason, felony, great magistrate is very antient; 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, 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 of parliament, else he is incapable to try such (g) Montesq. Sp. L. xi. 6. (i) See chap. 31. (I) 1 Bulstr. 198. VOL. IV. delinquent (h) Com. Journ. 5 May, 1679. (k) 4 Inst. 58. 2 Hawk. P. C. 5. 421. 2 Jon. 54. (m) Pryn. on 4 Inst. 46. T grand jury, and re- [ 262 ] 178 [263] delinquent peer". 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 censuetudinem 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°) and that those lords only should sit upon the trial: which threw a monstrous weight of power into the hands of the crown, and this its greatest officer, of selecting only such peers as the then predominant party should most approve of. And accordingly, when the earl of Clarendon fell into 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 (n) Quand un seigneur de parlement serra arrein de treason on felony, le roy par ses lettres patents fera un grand et sage seigneur d'estre le grand sineschal d'Angleterre : qui-doit faire un precept―pur faire venir xx seigneurs, ou xviii, &c. (Year-b. 13 Hen. VIII. 11.) See Staundf. P. C. 152. 3 Inst. 28. 4 Inst. 59. 2 Hawk. P. C. 5. Barr. 234. lynge, 56. (0) Ke |