CHAPTER THE NINETEENTH. OF COURTS OF A CRIMINAL THE 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. I. In our inquiries into the criminal courts of public and general jurisdiction, I must in one respect pursue a different order from that in which I 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, I thought it best to begin with the lowest, and so ascend gradually to the courts of appeal, or those of the 259 most extensive powers. 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, 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 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 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, 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 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 commoner cannot however be impeached before the lords for any capital offence, but only for high misdemesnors: a peer may be impeached for any 1 Hal. P. C. *150. b When, in 4 Edw. III., 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 to 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 crime. And they usually (in case of an impeachment 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; but it hath of late years been strenuously maintained, 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 bills 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 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 relating to the public: "licet apud consilium accusare quoque, et discrimen "capitis intendere." And it has a peculiar propriety in the English constitution; 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 more 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 such crimes, as the ordinary magistrate either dares not or [261] cannot punish. Of these the representatives of the people, or house of commons, cannot properly judge; because their constituents 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 swayed by the authority of so powerful an ac "the presence of our lord the king to "charged hereafter to judge others than "their peers, contrary to the laws of the "land, if the like case happen, which "God forbid." (Rot. Parl. 4Ed. III. n. 2. & 6. 2 Brad. Hist. 190. Selden. judic. in parl. ch.1..) 1 Hal. P. C. 350. Lords' Journ. 12 May 1679. Com. cuser. Reason therefore will suggest, that this branch of the legislature, which represents the people, must bring it's charge before the other branch, which consists of the nobility, who have neither the same interests nor the same passions as popular assemblies. This is a vast superiority, which the constitution of this island enjoys, over those of the Grecian or Roman republics; where the people were at the same time both judges and accusers. It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people should accuse, to insure justice to the commonwealth. And therefore, among 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."; and it is now enacted by statute 12 & 13 W. III. c. 2. that no pardon under the great seal shall be pleadable to an impeachment by the commons of Great Britain in parliament'. (3) 8 Montesq. Sp. L. xi. 6. h Com. Journ. 5 May 1679. 1 See ch.31. (3) In the case of the impeachment of Warren Hastings, it was determined that an impeachment did not abate by a dissolution of parliament. The high court of parliament was affirmed to exist at all times, and although from a dissolution or other causes it might not always be sitting to do justice, it was always open for the reception of appeals and writs of error. The peers, who were the judges (it was said), had their authority inherent in their order, and independent of the actual sitting of parliament; and the prosecutors were not merely the members of the house of commons, but all the commons of England, who though they might be deprived of their organ by a dissolution, did not thereby lose their right of acting, and might resume the exercise of that right as soon as they were furnished with a new organ by the assembling of a new parliament. It cannot be denied, on the one hand, that there are some difficulties in coming to this conclusion; but, on the other, it is certain that the right of impeachment would have lost half its value, if a contrary determination had been come to; and it seems also certain that, in former times, when the duration of a parliament seldom exceeded a month, impeachments must have been absolutely nugatory, if a dissolution had abated them. The debates on this interesting subject, which were very learned and able, may be seen very well summed up, and the determination itself learnedly advocated, in the Ann. Reg. for 1791. vol. xxxiii. The student will not understand the stat. of W.III. as restraining the prerogative of the crown as to pardoning after judgment on an impeachment. 2. THE Court of the lord high steward of Great Britain is a court instituted for the trial of peers, indicted for treason or felony, or for misprision of either'. The office of this great magistrate is very antient; and was formerly hereditary, or at least held for life, or dum bene se gesserit: but now it is usually, and hath been for many centuries past", granted pro hac vice only; and it hath been the constant practice (and therefore seems now to have become necessary) to grant it to [262] a lord of parliament, else he is incapable to try such delinquent peer". When such an indictment is therefore found by a grand jury of freeholders in the king's bench, or at the assises before the justices of oyer and terminer, it is 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 king's bench, and the judges have power to allow it; in order to prevent the trouble of appointing an high steward, merely for the purpose of receiving such plea. But he may not plead, in that inferior court, any other plea; as guilty or not guilty, of the indictment; but only in this court: because, in consequence of such plea, it is possible that judgment of death might be awarded against him. The king therefore, in case a peer be indicted for treason, felony, or misprision, creates a lord high steward pro hac vice by commission under the great seal; which recites the indictment so found, and gives his grace power to receive and try it, secundum legem et consuetudinem Angliae. Then, when the indictment is regularly removed, by writ of certiorari, commanding the inferior court to certify it up to him, the lord high steward directs a precept to a serjeant at arms, to summon the lords to attend and try the indicted peer. This precept was formerly issued to summon only eighteen or twenty, selected from the body of the peers: then the number came to be indefinite; and the custom was, for the lord high steward to summon as many as he thought proper, (but of * 4 Inst. 58. 2 Hawk. P. C. c. 2. § 1. sage seigneur d'estre le grand seneschal c. 44. § 1. 2 Jon. 54. d'Angleterre; qui doit faire un precept -pur faire venir xx seigneurs, ou rvin, &c. (Yearb. 13 Hen. VIII.11.) See Staundf. P. C. 152. 9 Inst. 28. 4 Inst. 59. 2 Hawk. P. C. c. 2. § 1. Barr. 234. 287. 4th Ed. contra. |