gery, that tends to defraud, whether in the name of a real or fictitious son, (f) is not made a capital crime." f Fost. 116, &c. per (76) Besides these instruments mentioned by the learned commentator, it is felony without benefit of clergy to forge or counterfeit receipts for contributions raised towards the Irish loan or debentures, 42 Geo. III. c. 53. Contracts and certificates for the sale and redemption of the land-tax, 42 Geo. III. c. 116. 52 Geo. III. c. 143. Quarantine certificates, 46 Geo. III. c. 98. s. 8. Slave trade, certificates relating to, 47 Geo. III. st. 1. c. 36. Certificates, bills of exchange, &c. used in drawing for half-pay pensions, &c. Excise and customs, stamp or seal, &c. of the commissioners of, 52 Geo. III. c. 143.; or the name or hand-writing of the receiver-general of the customs or supervisor, 46 Geo. III. c. 150.; or excise permits, or frames for making paper with excise office" visible thereon, 23 Geo. III. c. 70. s. 9, 10. 52 Geo. III. c. 143. s. 9.; or debentures or certificates for the return of money from duties of, 52 Geo. III. c. 143. s. 10.; but forging the name or hand-writing of the receiver-general of the excise, or of the comptroller or persons duly authorised, to any draft or writing, for the receiving of money, is within clergy, 46 Geo. III. c. 75. 52 Geo. III. c. 14. Post office, name or hand-writing of receiver-general of, or his clerk, &c. 46 Geo. III. c. 88. 47 Geo. III. sess. 2. c. 59. Woods and forests, name or handwriting of surveyor general of, 45 Geo. III. c. 142. Board of ordnance, name or hand-writing of treasurer of board of, or his deputy, 40 Geo. III. c. 46. Militia, name or hand-writing of general agent for volunteers, &c. 54 Geo. III. c. 51. Offenders guilty of the following forgeries, are entitled to benefit of clergy; Forging or counterfeiting the name or hand of the registrar of the court of admiralty, or of appeal for prize, or the cashier of the bank, to any certificate for obtaining suitors' money, &c. in the court. 53 Geo. III. c. 151. Franks.-By 24 Geo. III. stat. 2. 37. s. 9., forging franks on letters, to avoid payment of postage, is made a single felony, and punished with transportation for seven years. And by 42 Geo. III. c. 63. s. 14., forging or counterfeiting the superscription, or the date upon the superscription, of a letter, to avoid payment of postage, or writing or sending such letter, knowing such forgery, is a felony, punishable with seven years' transportation. And by 54 Geo. III. c. 169. s. 14., forging post-office marks, to avoid payment of the postage, is punishable as a misdemeanor by fine and imprisonment; and the 55 Geo. III. c. 103., for regulating the postage of ship letters to and from Ireland, contains a similar enactment as to letters thereby authorized to be marked. By the 3 Geo IV. c. 77. s. 2., forging or receiving money for ale-house certificates, is a misdemeanor. Forging licences grantable to hawkers and pedlars, is subject to a penalty of 300L. 50 Geo. III. c. 41. Forging any declaration of return of the premium on a policy of insurance, is subject to a penalty of 5001. for the first offence; the second is a felony, and subject to transportation for seven years. But to utter a feigned order on a banker with whom the person whose name is used has no cash, as a valid draft, is capital, 1 Leach, 94. In further illustration of this distinction, a request counterfeited as by a customer to let the bearer have articles of merchandize, does not amount to felony; but is a mere obtaining goods under false pretences. 1 Leach, 114. 2 East P. C. 937. and see 1 Leach, 323. 2 East P. C. 938. So also the order must not merely be imperative in its terms, but it must be counterfeited in the name of one who assumes to have the disposing power over the things to be transferred; and not of a son or agent, unless expressly averred to have the controul over the property in question. 1 Leach, 540. The order must be directed to a specific person, who may be presumed by those to whom it is uttered to have the possession of the things to which it relates, and not a mere desire that the party should have them, without, on the instrument itself, specifying the individual to whom it is addressed. 1 Leach, 540. But it is not necessary that the goods should be specified in the order; so that to forge a paper in the name of a silversmith, for the re-delivery of plate from Goldsmith's-hall, in the words," Please to deliver my work to the bearer," is capital. 1 Leach, 53. Nor is it requisite that the order should be such a one as a statute requires; for to counterfeit a paper in the name of a seaman, for the payment of prizemoney, by a seaman, which is invalid, as not being framed according to the directions of 32 Geo. III. c. 34. s. 2. is felony, 2 Leach, 883. As to the forging of a justice's order, see Russ. & Ry. C, C. 389. 1 Brod. & Bing. 300. 3 J. B. Moore, 645. S. C. Russ. & Ry. C. C. 317. 1 Stark. Ć. N. P. 396. S. C. It is not necessary that the instrument should be such as is commonly termed a warrant or order for the payment of money, but it will suffice if that be in reality its effect: so that a bill of exchange may be laid in these terms, though to call it by its usual denomination seems more accurate. 1 Leach, 226. 2 East P. C. 944. It is also clear, that the statute is as has been objected, confined to orders made in the course of commercial transactions. 2 Leach, 883. 2 East P. C. 942. 945. FOREIGN BILLS, &c.-As these acts seem only to have extended to inland bills of exchange, the 43 Geo. III. c. 139. made the counterfeiting or uttering any foreign bill, promissory note, or order for payment of money a single felony, and punished it with transportation for fourteen years, s. 1. And by the same act, engraving, or by any device making plates for the fabrication of any of the above instruments, for the first offence is made a misdemeanor, punishable with imprisonment for any time not exceeding six months, fine, pr whipping, and for the second offence, transportation for fourteen years is directed, s. 2. The forgery of a Prussian treasury These are the principal infringements of the rights of property which were the last species of offences against individuals or private subjects, which the method of distribution has led us to consider. We have before examined the nature of all offences against the public, or commonwealth; against the king or supreme magistrate, the father and protector of that community; against the universal law of all civilized nations, together with some of the more atrocious offences, of publicly pernicious consequence, against God and his holy religion. And these several heads comprehend the whole circle of crimes and misdemesnors, with the punishment annexed to each, that are cognizable by the laws of England. CHAP. XVIII. OF THE MEANS OF PREVENTING We are now arrived at the fifth general branch, or head, under which I proposed to consider the subject of this book of our commentaries; viz. the means of preventing the commission of crimes and misdemeanors. And really it is an honour, and almost a singular one, to our English laws, that they furnish a title of this sort: since preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice; (a) the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances.* This preventive justice consists in obliging those persons, whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good behaviour. This requisition of sureties has been several times mentioned before, as part of the penalty inflicted upon such as have been guilty of certain gross misdemesnors: but there also it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment. And indeed, if we consider all human punishments in a large and extended view, we shall find them [252] all rather calculated to prevent future crimes, than to expiate the past since, as was observed in a former chapter, (b) all punishments inflicted by temporal laws may be classed under three heads; such as tend to the amendment of the offender himself, or to deprive him of any power to do future mischief, or to deter others by his example; all of which conduce to one and the same end, of preventing future crimes, whether that can be effected by amendment, disability, or example. But the caution, b See page 11. a Beccar. ch. 41. note for one dollar, is within this act. 3 Brod. & Bing, 201. R. & R. C. C. 473. 7 J. B. Moore, 1. S. C. Chitty. * We have seen, that in general a court of equity, except for the protection of an infant, has no jurisdiction to restrain the publication of a libel, or the commission of any other crime. See ante, 2 book, 407. in note; Eden. on Injunctions, 41. which we speak of at present, is such as is intended merely for prevention, without any crime actually committed by the party, but arising only from a probable suspicion, that some crime is intended or likely to happen and consequently it is not meant as any degree of punishment, unless perhaps for a man's imprudence in giving just ground of apprehension. By the Saxon constitution these sureties were always at hand, by means of king Alfred's wise institution of decennaries of frankpledges: wherein, as has more than once been observed, (c) the whole neighbourhood or tithing of freemen were mutually pledges for each other's good behaviour. But this great and general security being now fallen into disuse and neglected, there hath succeeded to it the method of making suspected persons find particular and special securities for their future conduct of which we find mention in the laws of king Edward the Confessor; (d)" tradat fidejussores de pace et legalitate tuenda." Let us therefore consider, first, what this security is; next, who may take or demand it; and lastly, how it may be discharged. : 1. This security consists in being bound, with one or more securities, in a recognizance or obligation to the king, entered on record, and taken in some court or by some judicial officer : whereby the parties acknowledge themselves to be indebted to the crown in the sum required, (for instance 1 1007.) with condition to be void and of none effect, if the party shall [253] appear in court on such a day, and in the mean time shall keep the peace; either generally, towards the king, and all his liege people; or particularly also, with regard to the person who craves the security. Or, if it be for the good behaviour, then on condition that he shall demean and behave himself well, (or be of good behaviour) either generally or specially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a justice of the peace, must be certified to the next sessions, in pursuance of the statute 3 Hen. VII. c. 1, and if the condition of such recognizance be broken, by any breach of the peace in the one case, or any misbehaviour in the other, the recognizance becomes forfeited or absolute; and, being estreated or extracted (taken out from among the other records) and sent up to the exchequer, the party and his sureties, having now become the king's absolute debtors, are sued for the several sums in which they are respectively bound. 2. Any justices of the peace, by virtue of their commission, or those who are ex officio conservators of the peace, as was mentioned in a former book, (e) may demand such'security according to their own discretion; or it may be granted at the request of any subject, upon due cause shewn, provided such demandant be under the king's protection; for which reason it has been formerly doubted, whether Jews, pagans, or persons convicted of a praemunire were entitled thereto. (f) Or, if the justice is averse to act, it may be granted by a mandatory writ, called a supplicavit, issuing out of the court c See Book I. page 114. d Cap. 18. e See Book I. page 350. f 1 Hawk. P. C. 126. (1) It is now settled that a justice of the peace is authorized to require surety to keep the peace for a limited time, as two years, according to his discretion, and that he need not bind the party over to the next sessions only, 2 B. & A. 278.; but if a recognizance to appear at the sessions be taken, and an order of court for finding sureties applied for, articles of the peace must be exhibited. 5 Burn J. 24 ed. 304 1 T. R. 696. (2) But by 1 and 2 Ph. & M. c. 13. in cases of felony, the recognizances are to be certified to the general gaol delivery. (3) A secretary of state or privy-counsellor cannot bind to keep the peace or good behaviour. 11 St. Tri. 317. of king's bench or chancery; which will compel the justice to act, as a ministerial and not as a judicial officer: and he must make a return to such writ, specifying his compliance, under his hand and seal. (g) But this writ is seldom used for, when application is made to the superior courts, they usually take the recognizances there, under the directions of the statute 21 Jac. I. c. 8. And indeed a peer or peeress cannot be bound over in any other place, than the courts of king's bench or chancery though a justice of the peace has a power to require sure- [254] ties of any other person, being compos mentis and under the degree of nobility, whether he be a fellow-justice or other magistrate, or whether he be merely a private man. (h) Wives may demand it against their husbands; or husbands, if necessary, against their wives. (i) 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. 3. A recognizance may be discharged, either by the demise of the king, to whom the recognizance is made; or 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 quarter sessions, assises, or king's bench), if they see sufficient cause; or, 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. (k) 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, tuenda, 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 shew 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 continue 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 barretors; and such as are [255] brought before him by the constable for a breach of peace in his presence; and all such persons, as having been before bound to the peace, have broken it and forfeited their recognizances. (1) Also, wherever any private man hath 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 shew 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 farther swear, that he does not require such surety out of malice, or for i 2 Stra. 1207. 1 Ibid. 126. g F. N. B. 80. 2 P. Wms. 202. h1 Hawk. P. C. 127. (4) A peeress may demand surety of the peace against her husband. Fost. $59. 2 Stra. 1202. 13 East, 171. N. Cas. T. Hard. 74. 1 Burr. 631. 703. 1 T. R. 696. mere vexation. (m) 5 This is called swearing the peace against another : 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. (n) 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 eleventh chapter of this book: or, by any private violence committed against any of his 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. (0) Neither are mere reproachful words, as calling a man knave or liar, any breach of the peace, so as to forfeit one's recognizance (being looked [256] upon to be merely the effect of unmeaning heat and passion), unless they amount to a challenge to fight. (p). The other species of recognizance, with sureties, is for the good abearance or 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. III. c. 1. to bind over to the good behaviour towards the king and his 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 diminished, 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 holden that a man may be bound to his good behaviour for causes of scandal, contra bonos mores, as well as contra pacem: as, for haunting bawdy-houses with women of bad fame; or for keeping such women in his own house; of for words tending to scandalize the government, or in abuse of the of ficers 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 statutes, 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. 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) m Ibid. 127. n 1 Hawk, P. C. 128. o Ibid. 131. p Ibid. 130, q 1 Hawk. P. C. 132. (5) The surety of the peace will not be granted but where there is a fear of some present or future danger, and not merely for a battery or trespass, or for any breach of the peace that is past. Dalt. c. 11. The articles to entitle a party to have sureties of the peace must be verified by the oath of the exhibitant. 1 Stra. 527. 12 Mod. 243. The truth of the allegations therein cannot be controverted by the defendant, and if no objections arise to the articles exhibited, the court or justice will order securities to be taken immediately. 2 Stra. 1202. 13 East, 171, n. If the articles manifestly appear to contain perjury, the court will refuse the application, and even cominit the exhibitant. 2 Burr. 806. 3 Burr. 1922. The articles will not be received if the parties live at a distance in the county, unless they have previously made application to a justice in the neighbourhood, 2 Burr. 780.; unless the defendant be very old, &c. 2 Stra. 835. 2 Burr. 1039. 1 Bla. Rep. 233. S. C. Chitty (6) See note (1), ante, 253. |