peace has a power to require sureties of any other person, being compos mentis and under the degree of nobility, whether he be a fellow justice or other magistrate, or merely a private man (s). Wives may demand it against their husbands; or husbands, if necessary, against their wives (t). But feme-coverts, and infants under age, ought to find security by their friends only, and not to be bound themselves: for they are incapable of engaging themselves to answer any debt; which, as we observed, is the nature of these recognizances or acknowledgments.

In default of finding sureties when required, the party against whom the application for them is made may be sent to prison, subject to the restriction imposed by the stat. 16 & 17 Vict. c. 30, s. 3, which enacts that "no person, committed to prison under any warrant or order of one justice of the peace for or on account of not entering into recognizances, or finding sureties to keep the peace, or to be of good behaviour, shall be detained under such warrant or order for more than twelve calendar months from the time of such commitment."

3. A recognizance duly given may be discharged, either by the death of the principal party bound thereby, if not before forfeited; or by order of the court to which such recognizance is certified by the justices (as the quar- [*329] ter sessions, assizes, or queen's bench), if they see sufficient cause; or

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in case he at whose request it was granted, if granted upon a private account, will release it, or does not make his appearance to pray that it may be continued (u).

Thus far what has been said is applicable to both species of recognizances, for the peace, and for the good behaviour, de pace, et legalitate, tenendá, as expressed in the laws of king Edward. But as these two species of securities are in some respects different, especially as to the cause of granting, or the means of forfeiting them, I shall now consider them separately: and first, shall show for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited.

1. Any justice of the peace may, ex officio, bind all those to keep the peace, who in his presence make any affray, or threaten to kill or beat another; or contend together with hot and angry words; or go about with unusual weapons or attendance, to the terror of the people; and all such as he knows to be common barrators; and such as are brought before him by the constable for a breach of the peace in his presence; and all such persons, as, having been before bound to the peace, have broken it and forfeited their recognizances (x). Also, wherever any private man has just cause to fear that another will burn his house, or do him a corporal injury, by killing, imprisoning, or beating him; or that he will procure others so to do; he may demand surety of the peace against such person: and every justice of the peace is bound to grant it, if he who demands it will make oath, that he is actually under fear of death or bodily harm; and will show that he has just cause to be so, by reason of the other's menaces, attempts, or having lain in wait for him; and will also further swear, that he does not require such surety out of malice, or for mere vexation (y). This is called swearing the peace against another;

(8) 1 Hawk. P. C. 127.

(t) 2 Stra. 1207; Fost. 359; Lord Vane's case, 13 East. 171.

(u) 1 Hawk. P. C. 129; 3 Geo. 4, c. 46, s. 6.

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(x) 1 Hawk. P. C. 126.
(y) 1 Hawk. P. C. 127.

[*330]

The surety of the peace will only be granted where there is a fear of some pres

and if the party does not find such sureties, as the justice in his discretion shall require, he may immediately be committed till he does (z).

2. Such recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault, or menace, to the person of him who demanded it, if it be a special recognizance; or, if the recognizance be general, by any unlawful action whatsoever, that either is or tends to a breach of the peace; or, more particularly, by any one of the many species of offences which were mentioned as crimes against the public peace in the tenth chapter of this Book; or, by any private violence committed against any of her majesty's subjects. But a bare trespass upon the lands 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 (a). Neither are mere reproachful words, as calling a man a 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 (b).

The other species of recognizance, with sureties, is for 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. 3, c. 1, to bind over to the good behaviour towards the queen and her 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 dimin[* 331] ished, 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: or for a libel calculated to cause a breach of the peace (c); 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; 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 (d). 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 (e).

2. A recognizance for the good behaviour may be forfeited by 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

ent or future danger, and not merely for a battery or trespass, or for any breach of the peace that is past. Dalt. c. 11.

(2) 1 Hawk. P. C. 128; ante, p. 328. (a) Ibid. 131.

(b) Ibid. 130.

(c) Haylock v. Sparke, 1 E. & B. 471.

(d) Generally as to the jurisdiction (which is by no means well defined) of a magistrate in regard to requiring sureties for good behaviour, see judgment, Haylock v. Sparke, 1 E. & B. 485-488.

(e) 1 Hawk. P. C. 132.

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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 (ƒ): for, though it is just to compel suspected persons to [* 332] 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.

III. Criminal

III. The third head under which preventive justice may be treated of, necessitates a reference to statutory provisions, rendering illegal, unless satisfactorily accounted for, the possession of certain things presumpossession. ably for the commission of crime. In the recent Consolidation and Amendment Acts, many such provisions, of which some have been already noticed, are contained. To the constitution of such an offence, a criminal intent, or guilty knowledge, is sometimes made essential, whilst at other times it is not so (g). Clauses such as now alluded to are distinguishable from those which render the possession of property, if unexplained, presumptive evidence of antecedent crime.

IV. A warrant may in some cases be granted by a justice of the peace to search for and seize property suspected to have been stolen, sufficient ground IV. Searching for for suspicion having been shown (h). The searching for stolen stolen goods, &c. goods under the warrant of a justice is said by Lord Camden (i) to have "crept into the law by imperceptible practice," and to be "guarded with much circumspection." A justice of the peace may also, under some other circumstances, in virtue of express enactment, exercise a like power, ex. gr., he may issue a warrant to search for and seize explosive substances under the 24 & 25 Vict. c. 100, s. 65 (k)—and if any credible witness prove * 333 ]

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upon oath before him a reasonable cause to suspect that any person [*

has in his possession or on his premises any property whatsoever, with respect to which an offence punishable under the Larceny Act has been committed, a warrant may be granted to search for such property, as in the case of stolen goods, and any person to whom such property is offered to be sold, pawned, or delivered, is required, having reasonable ground of suspicion, to apprehend the party offering the same, and to take him, together with the property, before a justice of the peace. A warrant may also be issued by a justice under the Forgery Act (24 & 25 Vict. c. 98, s. 46), to search for paper or implements employed in forging, and for forged instruments, and, under the act relating to coinage offences (24 & 25 Vict. c. 99, s. 27), for the discovery and seizure of counterfeit coin and coining tools (7). In the above as well as in other cases, which cannot here be particularised (m), a search warrant is allowed to be issued with a view to the prevention of crime, and the detection, perchance, of criminals. (722)

(f)1 Hawk. P. C. 133.

(g) Compare 24 & 25 Vict. c. 100, s. 64; c. 99, ss. 5, 11; c. 98, ss. 10, 11, 13, 16, 17, 18, 19; c. 99, s. 23.

(h) See Else v. Smith, 1 D. & R. 97.
(i) Entick v. Carrington, Broom, Const. L.

600.

(k) See also 24 & 25 Vict. c. 97, s. 55. () As to the illegality of general warrants, see Broom, Const. L. pp. 525-623.

(m) See Burn, Justice of the Peace, tit. "Search Warrant."

(722) The subjects treated of in the foregoing chapter are matters of statutory regulation in the several States of the Union; and a knowledge of them is, therefore, to be sought in the statute book, and in works professedly treating of criminal law.

[* 334]

*CHAPTER XVI.

COURTS OF 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. In the Mode of inflicting discussion of which I shall, first, specify the several courts of punishments. criminal jurisdiction, wherein offenders may be prosecuted to punishment; and secondly, mention, in their natural order, and explain, the proceedings therein respectively.

In this inquiry, concerning courts of criminal jurisdiction, which will be Courts of crim- very brief, I shall rank them according to their dignity, and inal jurisdiction. begin with the highest of all; viz.:

parliament.

I. 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 I. High court of 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. (723) 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 [* 335] grand inquest of the kingdom (a). A commoner (b) as well as a peer may be impeached for any crime. And the lords usually, in case of the impeachment of a peer for treason, address the crown to appoint a lord high steward, for the greater dignity and regularity of their proceedings, who is commissioned accordingly by the crown (c). The articles of impeachment are prepared and agreed to by the house of commons, and afterwards tried by the lords; who are in such cases considered not only their own peers, but as the

(a) 1 Hale, P. C. 150.

(b) On the 26th 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 of July a long report of precedents was produced, and a question was put to the judges whether the record, 4 Edw. 3, No. 6, was a statute. They answered, as it appeared to them by the copy, they believed it to be a statute; but if they saw the roll itself, they could be more positive. It was then moved to ask the judges, but the motion 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 resolved to proceed in this impeachment, notwithstanding the parties were commoners and charged with high treason. 14 Lords' Journ. p. 260. The impeachment was not prosecuted with effect, on account of an intervening dissolution of parliament, but the right of the commons to impeach a commoner was thus formerly recognized.

As to the proceedings in such a case, see the Introduction to the Speeches delivered at the impeachment of Warren Hastings, A. D. 1788, edited by Mr. Bond. (c) 1 Hale, P. C. 350.

(723) As to the trial of impeachments, see ante, 394, note 647.

Special acts imposing punishments on particular persons are prohibited in the United States by the provisions of the national constitution. Const. U. S., art. 1, §§ 9, 10. See Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, id. 277.

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peers of the whole nation. This is a custom apparently derived to us from the ancient Germans; who in their great councils sometimes tried capital accusations relating to the public: "licet apud concilium accusare quoque, et discrimen capitis intendre" (d). 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 carefully avoided (e), yet it may happen that a subject, intrusted with the administration of public affairs, [* 336] 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; they can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which might be swayed by the authority of so powerful an accuser. That branch of the legislature, therefore, which represents the people, brings its charge before the other branch, which consists of the nobility, who have neither the same interests nor the same passions as popular assemblies (f). Our constitution deems it proper that the nobility should judge, to insure justice to the accused; that the people should accuse to insure justice to the commonwealth. And hence, besides other extraordinary circumstances attending the authority of this court, there is one of a very singular nature, which was insisted on by the house of commons in the case of the earl of Danby in the reign of Charles II. (g)-and it is now enacted by statute 12 & 13 Will. 3, c. 2,-that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament.

high steward.

II. The court of the lord high steward (h) is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either (i). The II. Court of lord office of this great magistrate is very ancient; and was formerly hereditary, or at least held for life, or dum bene se gesserit: but now it is and has been for centuries past (k), granted pro hac vice only; and it has been the constant practice (and therefore seems now to have become necessary) to grant it to a lord of parliament, else he is incapable to try the * delinquent peer (1). When, therefore, such an indictment is found [*337] by a grand jury of freeholders in the queen's bench, or at the assizes before the justices of oyer and terminer, it has to be removed by a writ of certiorari into the court of the lord high steward, which only has power to determine it. A peer may plead a pardon before the court of queen's bench, and the judges have power to allow it; in order to prevent the trouble of appointing a high steward, merely for the purpose of receiving such plea. But the accused may not plead, in that inferior court, any other plea: as "guilty," or "not guilty," but only in this court: because, in consequence of such plea, it is possible that judgment of death might be awarded against

(d) Tacit. de Mor. Germ. 12.

(e) Ante, vol. 1, p. 173.

(f) Montesq. Sp. L. xi. 6.

(g) Com. Jour. 5 May, 1679.

(h) 4 Inst. 58; 2 Hawk. P. C. 5, 421; 2 Jon. 54.

(i) 1 Bulstr. 198.

(k) Pryn. on 4 Inst. 46.

(1) Quand un seigneur de parlement serra arrein de treason ou felony, le roy par ses lettres patents fera un grand et sage seigneur d'estre le grand seneschai d'Angleterre: qui

doit faire un precept-pur faire venir xx seigneurs, ou xviii, &c. (Yearb. 13 Hen. 8, 11.) See Staundf. P. C. 162; 3 Inst. 28; 4 Inst. 59; 2 Hawk. P. C. 5; Barr. 234.