« EelmineJätka »
[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 (a).] And there is a similar limitation as to the period of detention in prison under the warrant or order of a single justice, as we mentioned in reference to binding over to keep the peace (6).
[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 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 (c); 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 the proof of any actual crime, to punish them by a forfeiture of their recognizance.]
Such are the doctrines laid down in the books with respect to recognizances for good behaviour. In what manner, however, and to what extent the provisions of the 34 Edward III. ought at the present day to be enforced, may be doubtful: and justices, even at sessions, are recommended, by a learned writer on the subject, to refrain from acting under this statute, where no complaint, requiring such recognizance to be taken has been made: except only in cases where a conviction for some offence
sup. p. 294.
(a) Hawk. P. C. b. 1, c. 62, s. 4.
(c) 16 & 17 Vict. c. 30, s. 5.
of a dangerous kind has taken place; and the circumstances are such as to render probable, a repetition of it by the same offender (d).
In reference to cases of conviction, additional facilities for the prevention of crime, by the use of recognizances for the peace and good behaviour, have been now afforded by the legislature. For a provision was inserted in each of the Criminal Law Consolidation Acts of the year 1861, to the following effect(e); viz., that whenever any person shall be convicted of an indictable misdemeanor, punishable under any of those statutes respectively, the court may, if it shall think fit, in addition to or in lieu of any of the punishments authorized by the Act, fine the offender and require him to enter into his own recognizances and to find sureties (both or either), for keeping the peace and being of good behaviour; and in case of a felony, punishable under any of such Acts respectively, may require the offender to enter into such recognizances and to find sureties (both or either), in addition to any punishment authorized by the Act under which he has been convicted. There is however a proviso that no person is to be imprisoned under this clause, for not finding sureties, for any period exceeding one year.
(d) 2 Arch. Just. 454.
c. 97, s. 73; c. 98, s. 51; c. 99, s. 38; c. 100, s. 71.
OF COURTS OF A CRIMINAL JURISDICTION.
[The last object of our inquiries will be the method of inflicting those punishments, which the law has annexed to particular offences; and which, in this treatise, have been constantly subjoined to the description of the crime itself (a). In the discussion of these, we shall, in the first place, point out the several courts of criminal jurisdiction wherein offenders may be prosecuted to punishment: and then explain the several proceedings which may be had therein. And in reckoning up the several courts of criminal jurisdiction, we shall 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.
First. As to the criminal courts of public and general jurisdiction ;-with regard to which we shall, in one respect, pursue a different order, from that in which we 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,-it seemed proper to begin with the lowest, and to ascend gradually to the courts of appeal, or those of the most extensive powers (6). But as it is contrary to the genius and spirit of the law of England to suffer any man twice to be tried for the same offence in a criminal
(a) Vide sup. p. 2.
(6) Vide sup. bk. V. c. IV.
[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 (c); 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, it is proposed to 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, — we speak not of them ; such being to all intents and purposes new laws, made pro re natá, 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 into practice,- being a presentment to the most high and supreme court of criminal jurisdiction, by the most solemn grand inquest of the whole kingdom (d). A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanors; a peer may be so impeached, for any crime (e). And it has been
(c) As to reserving questions of grieved by their determination in law, arising at assizes or sessions, for point of law, in the exercise of their the consideration of the judges, see summary jurisdiction, see 20 & 21 11 & 12 Vict. c. 78. And as to cases Vict. c. 43, and 35 & 36 Vict. c. 26. stated by justices of the peace, on (d) i Hale, P. C. 150. the application of any person ag- (c) When, in the fourth year of
[customary, (in cases of an impeachment of a peer for treason,) to address the Crown to appoint a Lord High Steward, for the greater dignity and regularity of the proceedings; which High Steward was formerly elected by the peers themselves, though he was generally commissioned by the sovereign ; but it hath in modern times 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 (f ). The articles of impeachment are a kind of bill of indictment, found by the house of commons, and afterwards tried by the house of lords; who are, in cases of misdemeanor, 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
Edward the third, 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 parliament, they were prevailed upon, in respect of the notoriety and heinousness of his crimes, to receive the charge and give judgment against him, a solemn protest and proviso in respect of the offender not being a peer was entered in the parliament roll. (Rot. Parl. 4 Edw. 3, n. 2 and 6; 2 Brad. Hist. 190; Selden, Judic. in Parl. c. 1.) But Mr. Christian says in his edition of Blackstone (vol, iv. p. 260), that, according to the last resolution of the house of lords, a
commoner may be impeached for a capital offence. And he mentions, on the authority of the Journals of the House of Lords, the case of Sir Adam Blair and four other commoners, who, on the 26th June, 1989, were impeached for high treason, in having published a proclamation of James the second. (14 Lords' Journ. p. 260.) Mr. Christian adds that this impeachment was not prosecnted with effect, on account of an intervening dissolution of the parliament. See also Lives of the Chancellors, by Lord Campbell, vol. iii. p. 357, n.; the observations of Mr. May on this subject, in his Practice in Parliament; and the case of The Queen v. Boyes, 1 Best & Smith, p. 324.
(f) As to the appointment of the High Steward, see 1 Hale, P. C. 350; Lords' Journ. 12th May, 1679; Com. Journ. 15th May, 1679; Fost. 142, &c.