Ch. 19. CHAPTER THE NINETEENTH, OF COURTS OF A CRIMINAL THE HE fixth, 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 conftantly fubjoined to the defcription of the crime itself. In the difcuffion of which I fhall purfue much the fame general method that I followed in the preceding book, with regard to the redress of civil injuries: by, first, pointing out the feveral courts of criminal jurisdiction, wherein offenders may be profecuted to punishment; and by, fecondly, deducing down, in their natural order, and explaining, the several proceedings therein, FIRST, then, in reckoning up the feveral courts of criminal jurisdiction, I fhall, as in the former case, begin with an account of fuch, as are of a public and general jurisdiction throughout the whole realm; and, afterwards, proceed to fuch, as are only of a private and special jurisdiction, and confined to fome particular parts of the kingdom. I. IN our inquiries into the criminal courts of public and general jurifdiction, I must in one respect pursue a different order from that in which I confidered the civil tribunals. For there, as the feveral courts had a gradual fubordination to each other, the fuperior correcting and reforming the errors of the inferior, I thought it best to begin with the lowest, and fo afçend gradually to the courts of appeal, or those of X 2 the BOOK IV. the most extensive powers. But as it is contrary to the genius and spirit of the law of England, to fuffer any man to be tried twice for the fame offence in a criminal way, efpe cially if acquitted upon the first trial; therefore these cririnal courts may be faid to be all independent of each other: at leaft fo far, as that the fentence of the loweft of them can never be controlled or reverfed by the highest jurifdiction in the kingdom, unless for error in matter of law, apparent upon the face of the record; though fometimes caufes may be removed from one to the other before trial. And therefore as, in these courts of criminal cognizance, there is not the fame chain and dependence as in the others, I fhall rank them according to their dignity, and begin with the highest of all; viz. 1. THE high court of parliament; which is the fupreme 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 perfons of treafon or felony, or to inflict pains and penalties, beyond or contrary to the common law, to ferve a special purpose, I speak not of them; being to all intents and purposes new laws, made pro re nata, and by na means an execution of fuch as are already in being. But an impeachment before the lords by the commons of Great Bri tain, in parliament, is a profecution of the already known and established law, and has been frequently put in practice; being a prefentment to the most high and fupreme court of criminal jurifdiction by the most folemn grand inqueft of the whole kingdom. A commoner cannot however be impeached before the lords for any capital offence, but only for high mifdemefnors: a peer may be impeached for any 1 Hal. P. C. i 50. When, in 4 Edw. III. the king demended the earls, barons, and peers, to give judgment against Simon de Bere. ford, who had been a notorious accom plice in the treafons of Roger earl of Mortimer, they came before the king in parliament, and said all with one voice, that the faid Simon was not their peer; and therefore they were not bound to judge crime (1). And they usually (in cafe of an impeachment of a peer for treafon) addrefs the crown to appoint a lord high fteward, for the greater dignity and regularity of their proceedings; which high steward was formerly elected by the peers themselves, though he was generally commiffioned by judge him as a peer of the land. And when afterwards, in the fame 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 provifo was entered in the parliament-roll. And it is affented " and accorded by our lord the king, fhall 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 aforefaid "judgment now rendered be not drawn "to example or confequence in time to "come, whereby the faid peers may be " and all the great men, in full parlia-charged hereafter to judge others than ❝ment, that albeit the peers, as judges "of the parliament, have taken upon them in the prefence of our lord the "king to make and render the faid judgment; yet the peers who now are, or "their peers, contrary to the laws of the "land, if the like cafe happen, which "God forbid." (Rot. Parl. 4 Edw. III n. 26. 2 Brad. Hift. 190. Selden. judic. in parl. ch. 1.) (1) But according to the last refolution of the house of lords, a commoner may be impeached for a capital offence.-On the 26th of March 1680, Edward Fizharris a commoner was impeached by the commons of high treafon. Upon which the attorney general acquainted the peers that he had an order from the king to profecute Fitzharris by indictment, and a queftion thereupon was put, whether he fhould be proceeded against according to the courfe of the common law or by way of impeachment, and it was refolved against proceeding in the impeachment. 13 Lords' Journ. p. 755Fitzharris was afterwards profecuted by indictment, and he pleaded in abatement that there was an impeachment pending against him for the fame offence; but this plea was overruled, and he was convicted and executed. But on the 26th of June 1689, Sir Adam Blair and four other commoners were impeached for high treafon, in having published a proclamation of James the fecond. On the 2d of July a long report of precedents was produced, and a queftion was put to the judges whether the record 4 Edw. III. N° 6. was a ftatute. They answered, as it appeared to them by the copy, they believed it to be a statute; but if they faw the roll itself, they could be more pofitive. It was then moved to ask the judges, but the motion X 3 wag the king; but it hath of late years been strenuously maintained, that the appointment of an high fteward in fuch cafes is not indifpenfably neceffary, 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 cafes of mifdemefnors confidered not only as their own peers, but as the peers of the whole nation. This is a cuftom derived to us from the conftitution of the antient Germans; who in their great councils fometimes tried capital accufations relating to the public: "licet apud confilium accufare quoque, et diferimen "capitis intendere." And it has a peculiar propriety in the English conftitution; which has much improved upon the antient 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 fuch crimes, as the ordinary magiftrate either [261] dares not or cannot punish. Of these the reprefentatives of the people, or house of commons, cannot properly judge; because their conftituents are the parties injured and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be fwayed by the authority of fo powerful an accufer. Reason therefore will fuggeft, that this branch of the legislature, which represents the people, I Hal. P. C. 350. : Lords' Journ. 12 May 1679. Com. e Tacit. de mor. Germ. 12. was negatived, whether by this record the lords were barred from trying a commoner for a capital crime upon an impeachment of the commons. And they immediately refolved to proceed in this impeachment, notwithstanding the parties were commoners and charged with high treafon. 14 Lords' Journ. p. 260. But the impeachment was not profecuted with effect, on account of an intervening diffolution of the parliament. must must bring it's charge before the other branch, which confifts of the nobility, who have neither the fame interests, nor the fame paffions as popular affemblies . This is a vast fu periority, which the conftitution of this ifland enjoys, over thofe of the Grecian or Roman republics; where the people were at the fame time both judges and accufers. It is proper that the nobility should judge, to insure justice to the accufed; as it is proper that the people fhould accufe, to infure juftice to the commonwealth. And therefore, among other extraordinary circumstances attending the authority of this court, there is one of a very fingular nature, which was infifted on by the house of commons in the case of the earl of Danby in the reign of Charles II.; and it is now enacted by ftatute 12 & 13 W. III. c. 2. that no pardon under the great feal fhall be pleadable to an impeachment by the com'mons of Great Britain in parliament 1 (2). 2. THE Court of the lord high fteward of Great Britain k is a court inftituted for the trial of peers, indicted for treafon or felony, or for mifprifion of either'. The office of this great magiftrate is very antient; and was formerly hereditary, or at least held for life, or dum bene fe gefferit: but now it is ufually, and hath been for many centuries paft", granted (2) In the impeachment of Warren Haftings, Efq. it was con fidently advanced, that the lords are not bound to obferve the fame rules of evidence in an impeachment, as are admitted in criminaltrials in the inferior courts. The high reputation of thofe, who ftrenuously maintained this doctrine, induced the editor to endeavour to prove, that it was not only contrary to all precedent and authority, but repugnant to the firft and great principles both of the English law and conftitution, in a pamphlet, entitled "A Differtation, fhewing "that the house of lords in cafes of judicature are bound by pre"cifely the fame rules of evidence, as are observed by all other "courts." See more upon impeachments in page 399. X 4 pro |