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many species of offences which were mentioned as crimes against the public peace in the eleventh chapter of this book : or, by any private violence committed against any of his Majesty's subjects. But a bare trespass upon the land or goods of another, which is a ground for a civil action, unless accompanied with a wilful breach of the peace, is no forfeiture of the recognizance (n). 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 [*256] merely the effect of unmeaning heat and passion,) unless they amount to a challenge to fight (o) (7).

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 Who may be 34 Edw. III. c. 1, to bind over to the good behaviour the good betowards 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, 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 expres


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c. 60.


(7) The demise of the king is a dis- was held that this made no difference, charge of a recognizance for keeping and the rule was discharged; Rei v. the peace; for the condition being, Stanley, MS. Trin. 27 Gco. II. But a servare nostram pacem, his successor can. recognizance for keeping the peace is not take advantage of a breach thereof; not forfeited, where an officer, having a Bro. Abr, Peace, Pl. 15; 1 Hawk. P.C. warrant against one who will not suffer

A recognizance for keeping the himself to be arrested, beats or wounds peace may be forfeited by any actual him in the attempt to take him; Lamb. violence to the person of another, whc- 1 Hawk. P. C. c. 60. So, it is ther it be done by the party bound, or not forfeited, if a parent in a reasonothers by his procurement; Lamb. 115, able manner chastiscs his child; a mas127; Bro. Abr. Peace, Pl. 2; I Hawk. ter his servant, being actually in his P. C. c. 60. In support of a rule to service at the time; a schoolmaster his stay proceedings in a scire facias upon scholar; a gaoler his prisoner; a husa recognizance for keeping the peace, band his wife; I Sid. 176-7; Lamb it was said that the assault, which had 127-8; Hetl. 149-50; I Hawk. P. C. been made, was not upon him at whose C. 60; F. N. B. 80; Jacob, L. D. request the surety of the peace was Surety of the l'ence. And see 5 Chit. granted, but upon another person. It Barn, Recognizance, Surely of the Peace.

sion, that be not of good fame, it is holden 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 nightwalkers ; eavesdroppers; 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; whoremasters; the putative fathers of bastards; 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 (p).

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 (9): 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 (8).


By what means the recognizances may be forfeited.

(p) I Hawk. P. C. 132.

(q) I Hawk. P. C. 133.

(8) See generally, on this subject, 5 Chit. Burn, tit. Recognizance, Surely

of the Peace.




The sixth, and last, object of our inquiries will be the me- of criminal thod of inflicting those punishments, which the law has annexed proceedings. 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 J. Those of a general jurisdiction, I must in one respect pursue a different heral jurisdic order from that in which I considered the civil tribunals. independent of For there, as the several 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

[*259] 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

each other.

1 Parliament the supreme court in the kingdom, for


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 making and ex. the execution, of laws; by the trial of great and enormous peers and come offenders, whether lords or commoners, in the method of

be impeached in parliamentary impeachment. As for acts of parliament to parliament; a pardon under attaint particular persons of treason or felony, or to inflict the great seal is not pleadable pains and penalties, beyond or contrary to the common law, to an impeach ment by the to serve a special purpose, I speak not of them; 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 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). A commoner cannot, however, be impeached before the lords for any capital offence, but only

for high misdemesnors (6): a peer may be impeached for any [*260) *crime (1) (2). And they usually (in cases of an impeach(a) 1 Hal. P. C.* 150.

men, in full parliament, that albeit the (b) When, in 4 Edw. III. the king peers, as judges of the parliament, have demanded the earls, barons, and peers, taken upon them in the presence of our to give judgment against Simon de lord the king to make and render the Bereford, who had been a notorious said judgment; yet the peers who now accomplice in the treasons of Roger are, or shall be in time to come, be earl of Mortimer, they came before the not bound or charged to render judgking in parliament, and said all with ment upon others than peers; nor that one voice, that the said Simon was not the


of the land have power to do their peer; and therefore they were not this, but thereof ought ever to be disbound to judge him as a peer of the charged and acquitted; and that the land. And when afterwards, in the aforesaid judgment now rendered be same parliament, they were prevailed not drawn to example or consequence upon, in respect of the notoriety and in time to come, whereby the said peers heinousness of his crimes, to receive the may be charged hereafter to judge charge and to give judgment against others than their peers, contrary to the him, the following protest and proviso laws of the land, if the like case happen, was entered in the parliament roll : which God forbid." (Rot. Parl. 4 “And it is assented and accorded by Edw. III. n. 2 & 6. 2 Brad. Hist. our lord the king, and all the great 190. Selden. judic. in parl. ch. 1.)

(1) For misdemeanors, as libels, riots, &c., peers are to be tried, likc com.

moners, by a jury, for, " at the common law, in these four cases only, a peer

ment 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 (c); but it hath of late years been strenuously maintained (d), 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 bill 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


of the whole nation. This is a custom derived to us from the constitution of the ancient Ger

(c) 1 Hal. P. C. 350.
(d) Lords' Journ. 12 May, 1679.

Com. Journ. 15 May, 1679. Fost. 142, &c.

shall be tried by his peers, viz., in impeachment, and it was resolved against treason, felony, misprision of treason, proceeding in the impeachment; 13 and misprision of felony; and the sta- Lords' Journ. p. 755. Fitzharris was tute law which gives such trial, hath afterwards prosecuted by indictment, reference unto these, or to other of- and he pleaded in abatement that there fences made treason or felony ; his trial was an impeachment pending against by his peers shall be as before; and to him for the same offence; but this plea this effect are all these statutes, viz. was overruled, and he was convicted 32 H. VIII. c. 4, Rastall, 404, pl. 10; and executed. But on the 26th of 33 H. VIII. c. 12, Rastall, 415; 35 June, 1689, Sir Adam Blair and four H. VIII. c. 2. Rastall, 416; and in all other commoners were impeached for these express mention is made of trial high treason, in having published a by peers. But in this case of a præ- proclamation of James the second: on munire, the same being only in effect the 2d of July a long report of precebut a contempt, no trial shall be here dents was produced, and a question was in this of a peer by his peers.” Per put to the judges whether the record Fleming, C. J., assented to by the 4 Edw. III. No. 6, was a statute: they whole court, in Rex v. Lord Vaur, 1 answered, as it appeared to them by Bulstr. 197.

the copy, they believed it to be a sta(2) But according to the last reso- tute; but if they saw the roll itself, lution of the house of Lords, a com- they could be more positive. It was moner may be impeached for a capital then moved to ask the judges, but the offence. On the 26th of March, 1680, motion was negatived, whether by this Edward Fitzharris, a commoner, was record the lords were barred from tryimpeached by the commons of high ing a commoner for a capital crime treason, upon which the attorney-gene- upon an impeachment of the commons. ral acquainted the peers that he had an And they immediately resolved to proorder from the king to prosecute Fitz- ceed in this impeachment, notwithharris by indictment, and a question standing the parties were commoners thereupon was put, whether he should and charged with high treason. 14 be proceeded against according to the Lords' Journ, p. 260. The impeachcourse of the common law or by way of ment, however, was not proceeded in.

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