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(being looked upon to be merely the effect of heat and paffion) unless they amount to a challenge to fight°.

THE other fpecies of recognizance, with fureties, is for the good abearance, or good behaviour. This includes fecurity for the peace, and fomewhat more : we will therefore examine it

in the fame manner as the other.

I. FIRST then, the justices are empowered by the ftatute 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, paffing 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 expreffion, that be not of good fame, it is holden that a man may be bound to his good behaviour for caufes of fcandal, contra bonos mores, as well as contra pacem; as, for haunting bawdy houses with women of bad fame; or for keeping fuch women in his own houfe; or for words tending to fcandalize the government, or in abuse of the officers of justice, especially in the execution of their office. Thus alfo a juftice may bind over all night-walkers; eaves-droppers ; fuch as keep fufpicious company, or are reported to be pilferers or robbers; such as sleep in the day, and wake on the night; common drunkards; whoremasters; the putative fathers of baftards; cheats; idle vagabonds; and other perfons, whose misbehaviour may reasonably bring them within the general words of the statute, as perfons not of good fame: an expreffion, it must be owned, of so great a latitude, as leaves much to be de-termined by the discretion of the magistrate himself. But, if he commits a man for want of fureties, he must express the cause thereof with convenient certainty; and take care that such cause be a good one.

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2. A RECOGNIZANCE for the good behaviour may be forfeited by all the fame means, as one for the fecurity of the may be; and also by fome others. As, by going armed with unusual attendance, to the terror of the people; by speaking words tending to fedition; or, by committing any of thofe acts of mifbehaviour, 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 fufpected perfons to give fecurity to the public against misbehaviour that is apprehended; yet it would be hard, upon fuch fufpicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance.

91 Hawk. P. C. 133.





"HE fixth, and laft, object of our enquiries will be the method of inflicting those punishments, which the law has annexed to particular offences; and which I have constantly fubjoined to the defcription of the crime itself. In the difcuffion of which I fhall purfue much the fame general method, that I followed in the preceding book, with regard to the redress of civil injuries: by, first, pointing out the feveral courts of criminal jurisdiction, wherein offenders may be profecuted to punishment; and by, fecondly, deducing down in their natural order, and explaining, the several proceedings therein.

FIRST then, in reckoning up the several courts of criminal jurisdiction, I fhall, as in the former cafe, begin with an account of fuch, as are of a public and general jurifdiction throughout the whole realm; and, afterwards, proceed to fuch, as are only of a private and Special jurisdiction, and confined to fome particular parts of the kingdom.

I. IN our enquiries into the criminal courts of public and general jurifdiction, I must in one refpect purfue a different order from that in which I confidered the civil tribunals. For there, as the feveral courts had a gradual fubordination to each


other, the fuperior correcting and reforming the errors of the inferior, I thought it beft to begin with the lowest, and so ascend gradually to the courts of appeal, or those of the most extenfive powers. But as it is contrary to the genius and spirit of the law of England, to fuffer any man to be tried twice for the fame 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 reverfed by the highest jurisdiction in the kingdom, unless for error in matter of law, apparent upon the face of the record; though fometimes causes may be removed from one to the other before trial. And therefore as, in these courts of criminal cognizance, there is not the fame 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 fupreme 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 perfons 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 profecution of the already known and established law, and has been frequently put in practice; being a prefentment to the most high and fupreme court of criminal jurifdiction by the most folemn grand inqueft of the whole kingdom. A commoner cannot however be impeached before the lords for any capital offence,

1 Hal. P. C. * 150.


but only for high mifdemefnors: a peer may be impeached
for any crime. And they ufually (in cafe 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 pro-
ceedings; which high steward was formerly elected by the peers
themselves, though he was generally commiffioned by the king;
but it hath of late years been ftrenuously maintained, that the
appointment of an high steward in such cases is not indifpen-
fably neceffary, 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 cafes of misdemefnors confidered not only as
their own peers, but as the peers of the whole nation. This is
a custom derived to us from the conftitution of the antient Ger-
who in their great councils fometimes tried capital accu-
fatons relating to the public: "licet apud concilium accufare quo-
que, et difcrimen capitis intendere.”
And it has a peculiar pro-
priety in the English constitution; which has much improved
upon the antient model imported hither from the continent.

When, in 4 Edw. III. the king de. manded the earls, barons, and peers, to give judgment againft Simon de Bereford, who had been a notorious accomplice in the treafons of Roger earl of Mortimer, they came before the king in parliament, and faid all with one voice, that the faid 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 fame parliament, they were prevailed upon, in refpect of the notoriety and heinoufnefs of his crimes, to receive the charge and to give judgment against him, the following proteft and provifo was entered on the parliamentroll."And it is affented 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 them in the prefence of our lord the VOL. IV.

"king to make and render the faid judg-
"ment; yet the peers who now are, or
"fhall 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 difcharged and acquitted: and
"that the aforefaid judgment now rendered.
"be not drawn to example or confequence
"in time to come, whereby the faid peers.

may be charged hereafter to judge others
"than their peers, contrary to the laws of
"the land, if the like cafe happen, which
"God forbid." (Rot. Parl. 4 Edw. III.
n. 2 6. 2 Brad. Hift. 190. Selden. ju-
dic. in parl. ch. 1.)

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