256 Courts of Criminal Jurisdiction. [Book IV. 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. (q) (3) r^qnn *2> A recognizance for the good behaviour may be forfeited by all *■ J 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: (r) for, though it is just to compel suspected person* to give security to the public against misbehaviour that is apprehended; yet it would be hard, upon such suspicion, without proof of any actual crime, to punish them by a forfeiture of their recognizance. CHAPTER XIX. OF COURTS OF A CRIMINAL JURISDICTION. Thb 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. L In our inquiries into the criminal courts of public and general jurisdic tion, I must, in one respect, pursue a different order from that in which I con sidered the civil tribunals. For there, as the several courts had a gradual sub ordination 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 gradu- t0 ^>Q courts of or those of *the most extensive r*2B91 a^ appeal powers. >- J 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,espe- cially 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 jurisdic tion 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.: (a) 1 Hawk. P. 0. 182. (r) 1 Hawk. P. C. 133. (8) The subject of this chapter will be found covered by statutes in the several state* of the American Union, and treated of in the treatises published for the guide of magistrates in criminal casts, and also in some of the works on criminal law. 43fi Chap. 19.] Courts of Criminal Jurisdiction. 259 1. The high court of parliament; which is the supreme court in the king dom, 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. (1) As for acts of parliament to attaint par ticular 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 prosecu tion 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 crimi nal jurisdiction by the most solemn grand inquest of the whole kingdom, (o) A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanors: (b) a peer may be impeached for any *crime. And case of an of a (2) they usually (in impeachment peer r*2(.0n 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 commis sioned 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 im peachment 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, con sidered 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 pub lic: "licet apud consilium accusare quoque, et discrimen capitis intendere." {e) 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 more carefully avoided, (f) 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 r»o«ii not or cannot punish. Of these the representatives of the people, or *■ * house of commons, cannot properly judge; because their constituents are the (a) 1 Hal. P. C. ISO. (M When In 4 Edw. in. the Icing demanded the earls, barons, and peers to (rive 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, m the same parliament, they were prevailed upon, in respect to the notoriety and heiiiousness of his crimes, to re ceive the charge, and give judgment against him, the following protest and proviso was entered in the parliament-roll: "And it is assented 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 upon them in the presence of our lord the king, to make and render the said judgment, yet the peers who now are, or shall 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 discharged and acquitted; and that the afore said 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/1' (Rot Pari. 4 Ed. III. n. 2 and 6. 2 Bred. Hist. 190. Sclden, Judic. in Pari. o. U (c) 1 Hal. P. C. 850. (<I) Lords' Journ. 12May, 1679. Com. Journ. 15May, 1679. Fost. 142,&c. (e) Tacit, de mor. derm. 12. (/) See book L page 289. (1) In the United States, as well as in the several states of the Union, the senate tries im peachments, while the lower house prefers the charges. The whole law of impeachment was very fully considered on the trial of President Johnson, to the report of which the reader is referred. See also 6 Am. Law Reg., N. S., 257 and 641. The constitution of the United States forbids the passage of bills of attainder, by either the national or state governments. Const. U. S., art. 1, §§ 9 and 10. This precludes spe cial acts imposing punishments on particular persons or classes of persons by lesislative authority. For a full discussion of these provisions, see Cummings v. Missouri, 4 Wall., 277; Bxpart* Garland, 4 Wall., 883; Drehman v. Stifle, 8 Wall., 595. (2) On charges of misdemeanor, however, peers are tried, like commoners, by jury. R. v. Lord Faux, 1 Bulstr., 197. 437 261 Courts of Criminal Jurisdiction. [Book IV. parties injured, and can therefore only impeach. Bnt before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser.