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 recognizance, being looked upon to be merely the effect of unmeaning heat and passion, unless they amount to a challenge to fight. The other species of recognizance, with sureties, is for the good abearance, or good behaviour. This includes security for the peace, and somewhat more; we will therefore examine it in the same manner as the other. 1. First, then, the justices are empowered by the statute 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 endangered, 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 held that a man may be bound to his good behaviour 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; whore-masters; cheats; idle vagabonds; and other persons whose misbehaviour 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. 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: 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. 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 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 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, 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. 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. commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanors; a peer may be a To this statement Sir Wm. Blackstone adds in a note that' when, in 4 Edw. III., the king demanded the earls, barons, and peers to give judg ment 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 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 and 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, a A "or shall be in time to come, be not "bound or charged to render judgment 66 '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. Mr. Christian, commenting on Blackstone, says that, "according to the last resolution of the House of Lords, a commoner may be impeached for a capital offence. On the 26th of March, 1680, Edward Fitzharris, a commoner, was impeached by the Commons of high treason. Upon which the attorney-general acquainted the peers that he had an order from the king to prosecute Fitzharris by indict 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 crown; but it has been strenuously maintained, that the appointment of a 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 concilium accusare quoque, et discrimen capitis intendere." 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 ment; and the question thereupon was put whether he should be proceeded against according to the course of the common law or by way of impeachment, and it was resolved against proceeding in the impeachment; 13 Lords' Jour. p. 755. Fitzharris was afterwards prosecuted by indictment, and he pleaded in abatement that there was an impeachment pending against him for the same offence; but this plea was overruled, and he was convicted and executed. But on the 25th of June, 1689, Sir Adam Blair and four other commoners were impeached for high treason, in having published a proclamation of James II. On the 2nd July a long report of precedents was produced, and a question was put to the judges whether the record, 4 Edw. III. No. 6, was a statute. They answered, as it appeared to them And b Lords' Jour. 12 May, 1679; Com. Jour. 15 May, 1679; Fost. 142, &c. Tacit. de Mor. Germ. 12. |