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.

A recognizance for 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; especially 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; 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 suspicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance.

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

I. High Court of Parliament-Court of Lord High Steward-Exchequer Chamber-Queen's Bench-High Court of Admiralty-Assizes-Quarter Sessions: Recorder: Petty Sessions: Stipendiary Magistrates-Coroner— II. Central Criminal Court-Courts of Universities.

THE last object of our inquiries will be the method of inflicting those punishments which the law has annexed to particular offences; in the discussion of which I shall pursue the same 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; and by, secondly, deducing down, in their natural order, and explaining, the several proceedings therein.

And in reckoning up the several courts of criminal jurisdiction, I shall begin with an account of such as are of a public and general jurisdiction throughout the whole realm; and mention afterwards those of a private and special jurisdiction, which are now confined to London and the two universities.

I must, in one respect, however, 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 the errors of the inferior, I thought it best to begin with the lowest, and so ascend gradually to those of the most extensive powers. But as it is contrary to the spirit of the law of England, to suffer any man to be tried twice for the same offence; 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 reversed by the highest jurisdiction in the kingdom, unless for error in law, 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 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 for the execution of laws; by the trial of great offenders whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, I speak not of them, as they are to all intents and purposes new laws. But an impeachment before the lords by the commons, in parliament, is a prosecution of the established law, 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 high misdemeanors; a peer may be impeached for any crime.

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. 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 most 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 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 might possibly 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 may for this purpose be assumed to have neither the same interests nor the same passions as popular assemblies. 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 is now enacted by the Act of Settlement, that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in Parliament.

2. The court of the Lord High Steward of Great Britain is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either. When such an indictment is found, 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; the sovereign in such a case creating 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 certiorari, 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 such peers as he thought proper. 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 of the court. But now, by 7 Will. III. c. 3, all the peers who have a right to sit and vote in parliament shall be summoned; and every lord appearing, shall vote in the trial of such peer.

3. The court of Exchequer Chamber has no original jurisdiction over crimes or offences, but only upon writs of error, to rectify any injustice or mistake of the law, committed by,

4. The court of Queen's Bench, concerning the nature of which we partly inquired in the preceding book, and which, we may remember, was 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; or by order of the court in the case of certain offenders, at the Central Criminal Court. The judges of this court are the supreme coroners for the kingdom. And the court itself is the principal court of criminal jurisdiction known to the laws of England. For which reason, by the coming of the court of Queen's Bench into any county, as it was removed to Oxford on account of the sickness in 1665, all former commissions of oyer and terminer, and general gaol delivery, are at once absorbed and determined ipso facto, unless preserved by

special statutes, as in the case of the Central Criminal Court, and the sessions of the peace, held before the justices of Middlesex.

5. The High Court of Admiralty is a court not only of civil but also of criminal jurisdiction. It has cognizance of all crimes and offences committed either upon the sea, or on the coasts, out of the body or extent of any English county. But, as this court proceeded without a jury, in a method much conformed to the civil law, the exercise of a criminal jurisdiction there was contrary to the genius of the law of England; inasmuch as a man might be there deprived of his life by the opinion of a single judge, without the judgment of his peers. This was always a great offence to the English nation; and, therefore, in the reign of Henry VI. it was endeavoured to apply a remedy in parliament: which then miscarried for want of the royal assent. However, by a statute of Henry VIII., it was enacted, that these offences should be tried by commissioners of oyer and terminer, under the great seal; and that the course of proceedings should be according to the law of the land. And this was long the only method of trying marine felonies in the court of Admiralty: the judge of the Admiralty presiding therein, as the lord mayor is the president of the session of oyer and terminer in London. But this court has now been superseded by others; as all offences formerly triable there are within the jurisdiction of the Central Criminal Court; and the justices of assize have all the powers given to commissioners of oyer and terminer by the statute of Henry VIII.

These courts may be held in any part of the kingdom, and their urisdiction extends over crimes that arise throughout the whole of it, from one end to the other.* What follow are also of a general nature, and universally diffused over the nation, but yet are of a local jurisdiction, and confined to particular districts. Of which species are,

6. The courts of oyer and terminer, and general gaol delivery: which are held before the Queen's commissioners twice, and sometimes thrice in every year in every county of the kingdom, except London and Middlesex, wherein they were formerly held eight, and are now held twelve times. I have already observed that what is usually called the assizes, the judges sit by virtue of five several authorities: two of which, the commission of assize and its attendant jurisdiction of nisi prius, are of a civil nature, as was then explained at large; to which I shall now add, that these justices have, by virtue of several statutes, a criminal jurisdiction, also, in certain special cases. The third, which is the commission of the peace, was also treated of in the first book of these commentaries, when we

The Court of Chivalry, before referred to, p. 282, has a criminal as well as a civil jurisdiction; but, as already stated, it is entirely obsolete.

inquired into the office of a justice of the peace. The fourth authority is the commission of oyer and terminer, to hear and determine all treasons, felonies, and misdemeanors. The words of the commission are, "to inquire, hear, and determine:" so that by virtue of this commission they can only proceed upon an indictment found at the same assizes; for they must first inquire by means of the grand jury or inquest, before they are empowered to hear and determine by the help of the petit jury. Therefore they have, besides, fifthly, a commission of general gaol delivery; which empowers them to try and deliver every prisoner, who shall be in the gaol when the judges arrive at the circuit town, whenever or before whomsoever indicted, or for whatever crime committed. So that, one way or other, the gaols are in general cleared, and all offenders tried, punished, or delivered, twice, and latterly, in the populous districts, thrice in every year.

7. The court of general quarter sessions of the peace is a court that must be held in every county once in every quarter of a year, before two or more justices of the peace, whose jurisdiction by the statute 34 Edw. III. c. 1, extended to the trying and determining all felonies and trespasses whatsoever: though they seldom, if ever, tried any greater offence than small felonies within the benefit of clergy; their commission providing, that if any case of difficulty arises, they shall not proceed to judgment, but in the presence of one of the justices of the courts of King's Bench or Common Pleas, or one of the judges of assize.

The jurisdiction of the Quarter Sessions is now, however, much better defined by the statute 5 & 6 Vict. c. 38, which prohibits the courts from taking cognizance of any charge of treason, murder, blasphemy, or offence against religion; perjury; forgery; wilful fireraising; bigamy; abduction; concealment of birth; libel; bribery; and other offences of a heinous nature. By other statutes, the quarter sessions have no jurisdiction over the offence of entering into or being in land by night armed, for the purpose of taking game, nor over offences committed by fire, or by explosive or destructive substances.

But there are many offences and particular matters, which by particular statutes belong properly to this jurisdiction, and ought to be prosecuted in this court: as the smaller felonies and misdemeanors against the public or commonwealth, and certain matters rather of a civil than a criminal nature, such as the regulation of weights and measures; questions relating to the settlement of the poor; and appeals against a multitude of orders or convictions, which may be made in petty sessions, within the laws relating to the revenue, the highways, and other matters of a local nature. In