of the corporation for manufacturing plate-glass (thereby erected) or know ingly demand money of the company by virtue of any writing under such counterfeit seal.

There are also certain other general laws, with regard to forgery; of which the first is 2 Geo. II. c. 25. whereby the first offence in forging or procuring to be forged, acting or assisting therein, or uttering or publishing as true any forged deed, will, bond, writing obligatory, bill of exchange, promissory note, indorsement, or assignment thereof, or any acquittance or receipt for money or goods, with intention to defraud any person (or corporation) (e), is made felony without benefit of clergy. And by statute 7 Geo. II. c. 22. and 18 Geo. III. c. 18. it is equally penal to forge or cause to be forged, or utter as true, a counterfeit acceptance of a bill of exchange, or the number or principal sum of any accountable [*250] receipt for any note, bill, or any other security for money; or

any warrant or order for the payment of money, or delivery of goods (80). So that, I believe, through the number of these general and special provisions, there is now hardly a case possible to be conceived wherein forgery, that tends to defraud, whether in the name of real or fictitious person (ƒ), is not made a capital crime (81).

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 ·

(e) Stat 31 Geo. II. c. 22, ◊ 78.

(80) See 45 G. III. c. 89; 49 G. III. c. 35; and 8 G. IV. c. 8, respecting widows' pensions, remittance bills, the forging of which, or procuring others to forge them, is made a felony punishable with transportation.

(81) It has frequently been determined, that drawing, indorsing, or accepting a bill of exchange in a fictitious name is a forgery. Bolland's case, &c., Leach, 78, 159, 192; 1 Hen. Black. 588; Fost. 116. It is also forgery to fabricate a will by counterfeiting the name of a pretended testator, who is still living. Cogan's case, ibid. 355.

If a person puts his own name to an instrument, representing himself to be a different person of that name with an intent to defraud, he is guilty of forgery. 4 T. R. 28.

But where a bill of exchange is indorsed by a person in his own name, and another represents himself to be that person, he is not guilty of forgery, but it is a misdemeanor. Hevey's case, Leach, 268.

A bill or note may be produced in evidence against a prisoner prosecuted for the forgery of it; and he may be convicted upon the usual evidence of the forgery, though it has never been stamped pursuant to the Stamp Acts. Hawkeswood's and Reculist's cases, Leach, 292, and 811. For the forgery in such a case is Committed with an intent to defraud; and the legislature meant only to prevent their being given in evidence, when they were proceeded upon to recover the value of the money thereby secured. But Lord Kenyon has declared that he did not approve of the decision of the majority of the judges in these cases. Peake, 168. It has been declared that the forgery of

(f) Fost 116, &c.

a bill of exchange in a form which rendered it void under the 17 Geo. III. c. 30, (see & book, 467,) was not a capital offence, because if real, it was not valid or negotiable. Moffat's case, Leach. 483.

Every indictment for forgery must set out the forged instrument in words and figures. Mason's case, 1 East, 182.

But it is sufficient to set for the receipt a the bottom of an account, without setting ou the account itself. Testick's case, ibid. 181. The word purport, in an indictment for forgery signifies the substance of an instrument as it appears on the face of it; tenor means an exact copy of it. Ibid. 180. Leach, 753.

The most effectual statute for the prevention of the forgery of bank notes, is the 41 Geo. III. c. 41. which enacts that if any one shall knowingly have in his possession, or in his house any forged bank notes, knowing the same to be forged, without lawful excuse, the proof whereof shall lie upon the person accused, he shall be guilty of felony, and shall be transported for fourteen years.

And if any person shall make any plate or instrument for forging bank notes, or any part of a bank note, or shall knowinly have them in his possession without authority in writing from the governor and company of the bank of England, he shall be guilty of felony, and shall be transported for seven years.

But before this statute this must have been an indictable offence as a misdemeanor. See ante, 99, note (7).

By the 45 Geo. III. c. 89, the statutes for the punishment of forgery are extended to every part of Great Britain

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 misdemeanors, with the punishment annexed to each that are cognizable by the laws of England (82), (83).6

(6) See Hov n (6) at the end of the Vol, B. IV.

CHAPTER XVIII.

OF THE MEANS OF PREVENTING OFFENCES.

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 at tended 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 securites 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 misdemeanors: 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 [*252] human *punishments in a large and extended view, we shall find

them all rather calculated to prevent future cimes, 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

(a) Beccar, ch. 41.

by any monied corporation within the state, or kept by such corporation or its officers, and delivered, or intended to be delivered, to any one dealing with such corporation, and by which any pecuniary claim may be affected. (Id. 34, 35.)

Forgery in the fourth degree is: 1. Hav ing any forged or counterfeited instrument, the forgery of which is above (i. e. in 2 R. S. 670, &c.) declared to be punishable, (except those enumerated in the 36th section,) or having any counterfeit of any gold or silver coin current in this state, knowing the forgerv or counterfeiting, and intending to defraud any one and pass the same. (ld. § 37, 38.) The uttering as true a forged instrument or counterfeit coin, the forgery or counterfeiting of which is above (2 R. S. 270, &c.) made an offence, is punishable as such forgery is, unless, 2. The utterer received the instrument or coin in good faith, and for a valuable consideration without circumstances of suspicion, and then it is forgery in the fourth degree. (Id.◊ 39, 40.) Making an instrument in one's own name, and passing it as

(b) See page 11.

the act of another of the same name, with intent to create, discharge, affect, &c. any right or property, is the same offence as forging the name of a person of a different name. (ld. 41.)

Forgery may also be committed by the total erasure or obliteration of an instrument, or by putting together parts of several genuine instruments so as to produce one. And it may be committed though all the instrument but the signature be printed, or by falsely making any evidence of debt purporting to be issued by any corporation having authority for that pur pose, and affixing a pretended signature of any person as an agent or officer of such cor. poration, though such person was not such officer, or was not in existence.

Forgery in the first degree, is punished by imprisonment in the state-prison for not less than 10 years: in the second degree, for not less than 5 nor more than 10: in the third degree, for not more than 5: in the fourth degree, by like imprisonment for not more than 2 years, or by imprisonment in a county jail for not more than 1 year. (2 R. S. 675, 6 42 )

can be effected by amendment, disability, or example. But the caution, 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 punishinent, 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 or frank pledges; 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 1007.), with condition to be void and of none effect, if the *par- [*253] ty shall appear in court on such a day, and in the mean time shall keep the peace (1); 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 (2), 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 volume (e) (3), 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

(c) See Book I. page 114. (d) Cap. 18.

(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, acording 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

(e) See Book I. page 350.
(f) 1 Hawk. P. C. 126.

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 o privy-counsellor cannot bind to keep the peace or good beha viour. 11 St. Tri. 317.

averse to act, it may be granted by a mandatory writ, called a supplicavit issuing out of the court of king's bench or chancery; which will compel the justice to act, as a ministeral and not as a judicial officer: and he must make a return to such writ, specifying his compliance, under nis 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 [*254] cannot be bound over in any other place than the courts of *king's bench or chancery (4): though a justice of the peace has a power to require sureties of any other person, being compos mentis and under the degree of nobility, whether he be a fellew-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 (1). 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 by continued (*).

Thus far what has been said is applicable to both species of recognizances, for the peace, and for the good behaviour: de pace, et legalitae, 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 grant. ing, 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 (5) 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 [255] 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 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 wil 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