[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 (a).] And there is a similar limitation as to the period of detention in prison under the warrant of a single justice, as we mentioned in reference to a binding over to keep the peace (6).

[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 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 (c); 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.]

Such are the doctrines laid down in the books with respect to recognizances for good behaviour. In what manner, however, and to what extent the provisions of the 34 Edward III. ought at the present day to be enforced, may be doubtful: and justices, even at sessions, are recommended, by a learned writer on the subject, to refrain from acting under this statute of their own motion, and where no complaint, requiring such recognizance to bo taken, has been made: except indeed where a conviction for some offence of a dangerous kind has taken place, and the circumstances are such as to render its repetition by the same offender a probable event (d).

It is to be observed, moreover, that these

(a) Hawk. P. C. b. 1, c. 62, s. 4. (b) 16 & 17 Vict. c. 30, s. 4; vide sup. p. 291.

(c) Sect. 5.

powers when

(d) See 2 Arch. Just. 454.

exercised by a court of summary jurisdiction upon complaint made must, by 42 & 43 Vict. c. 49, s. 25, be by an order under the provisions of the Summary Jurisdiction Acts; so that the complainant and defendant and witnesses may be called and examined and cross-examined and the parties subject to costs, as in other cases; and the defendant, should he disobey the order, may be imprisoned for six months or fourteen days, according as the court is a petty sessional court or otherwise (e).

In reference to cases of conviction, additional facilities for the prevention of crime, by the use of recognizances for the peace and good behaviour, have been now afforded by the legislature. For a provision was inserted in the Criminal Law Consolidation Acts of the year 1861, to the following effect (f); viz., that whenever any person shall be convicted of an indictable misdemeanor, punishable under any of those statutes respectively, the court may, if it shall think fit, in addition to or in lieu of any of the punishments authorized by the Act, fine the offender and require him to enter into his own recognizances and to find sureties either for keeping the peace or for being of good behaviour, or both; and in the case of a felony punishable under any of such Acts respectively, may require the offender to enter into such recognizances and to find sureties (both or either), in addition to any punishment authorized by the Act under which he has been convicted. There is however a proviso that no person is to be kept in prison under this clause, for not finding sureties, for any period exceeding one year.

(e) A "court of summary jurisdiction," for the purposes of this Act, is by sect. 50 defined as any justice or justices of the peace, or other magistrate, by whatever name called, to whom jurisdiction is given, or who is or are authorized to act under the Summary Jurisdiction Acts. And a "petty sessional court" is (by sect. 20) defined to be

two or more justices when sitting in a place wherein justices are accustomed to assemble, or which has been for the time a place appointed for the purpose of holding special or petty sessions.

(f) See 24 & 25 Vict. c. 96, s. 117; c. 97, s. 73; c. 98, s. 51; c. 99, s. 38; c. 100, s. 71.

CHAPTER X.

OF COURTS OF A CRIMINAL JURISDICTION.

[THE last object of our inquiries will be the method of inflicting those punishments, which the law has annexed to particular offences; and which, in this treatise, have been constantly subjoined to the description of the crime itself (a). In the discussion of these, we shall, in the first place, point out the several courts of criminal jurisdiction wherein offenders may be prosecuted to punishment and then explain the several proceedings which may be had therein. And in reckoning up the several courts of criminal jurisdiction, we shall 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.

First. As to the criminal courts of public and general jurisdiction;-with regard to which we shall, in one respect, pursue a different order, from that in which we considered the civil tribunals.] For there, we began with the lowest and ascended gradually to those of more extensive powers. As, however, up to the present time, there is no gradual increase of dignity in courts of

(a) Vide sup. p. 2.

criminal cognizance (c), we shall begin with the highest of all, viz.

1. [The High Court of Parliament; which is the highest 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,we speak not of them; such being to all intents and purposes new laws, made pro re natâ, 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 into practice,-being a presentment to the most high and supreme court of criminal jurisdiction, by the most solemn grand inquest of the whole kingdom (d). A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanors; a peer may be so impeached, for any crime (e). And it has been

(c) Sentences, however, of the lowest of these courts may be reversed by those of higher jurisdiction for error in matter of law.

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

(e) When, in the fourth year of Edward the third, 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 give judgment against him, a solemn protest and proviso in respect of the offender not being a peer was entered in the parliament roll. (Rot. Parl. 4 Edw. 3, n. 2 and 6; 2 Brad. Hist. 190; Selden, Judic. in Parl. c. 1.) But Mr. Christian says in his edition of Blackstone (vol. iv. p. 260), that, according to the last resolution of the house of lords, a commoner may be impeached for a capital offence. And he mentions, on the authority of the Journals of

[customary, (in the case of an impeachment of a peer for treason,) to address the Crown to appoint a Lord High Steward for the greater dignity and regularity of the proceedings; which High Steward was formerly elected by the peers themselves, though he was generally commissioned by the sovereign. But it hath in modern times been strenuously maintained, that the appointment of a High Steward in such cases is not indispensably necessary, but that the House may proceed without one (ƒ). The articles of impeachment are a kind of bill of indictment, found by the house of commons, and afterwards tried by the house of lords; who are, in cases of misdemeanor, considered not only as their own peers, but as the peers of the whole nation. This is a custom derived to us from the constitutions of the antient Germans; who, in their great councils, sometimes tried capital accusations relating to the public: "licet apud concilium accusare quoque, et discrimen capitis intendere" (g). 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 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 such

the House of Lords, the case of Sir Adam Blair and four other commoners, who, on the 26th June, 1689, were impeached for high treason, in having published a proclamation of James the second. (14 Lords' Journ. p. 260.) Mr. Christian adds that this impeachment was not prosecuted with effect, on account of an intervening dissolution of the parliament. See also Lives of the Chancellors, by Lord Campbell,

vol. iii. p. 357, n.; the observations of Sir Erskine May on this subject, in his Law of Parliament; and the case of The Queen v. Boyes, 1 Best & Smith, p. 324.

(f) As to the appointment of the High Steward, see 1 Hale, P. C. 350; Lords' Journ. 12th May, 1679; Com. Journ. 15th May, 1679; Fost. 142, &c.

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