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 (82) See a complete collection of the Acts of Parliament relating to the crime of forgery, (too numerous even to abstract here,) in Collyer's Crim. Sta. 142, et seq., with the notes thereon. (83) In New-York, the Revised Statutes contain the following provisions as to forgery. Falsely altering or counterfeiting the inspection bill or receipt for duties of an inspector of salt, with intent to defraud the state: or falsely altering or counterfeiting his brand, or aiding in such crime, is felony, punishable by imprisonment in the state-prison for not less than 3 nor more than 6 years. (1 R. S. 271, § 115.) Forging the name of a manufacturer on any barrel or cask of salt, subjects the of fender to a fine of 25 dollars, and damages to the party aggrieved. (Id. 273, 128.) Altering or counterfeiting brands on a flour barrel, causes a forfeiture of 100 dollars for every cask so branded: (Id. 539, 21.): branding casks of beef or pork without authority, is punishable by a fine of 15 dollars per cask: (Id. 546, § 57.): counterfeiting the brand of an inspector of pot and pearl ashes, is punishable by a fine of 500 dollars. (Id. 549, § 78.) Counterfeiting the brand of an inspector of fish oil, is punishable by a fine of 25 dollars. (Id. 555, § 168.) Forging, altering, or counterfeiting any marks, or numbers, or weigh-note of an inspector of tobacco, is a misdemeanor. Id. 569, 181.) Counterfeiting or fraudulently altering or defacing the brands or other marks of any inspector, is also punishable by fine not exceeding 2000 dollars, and imprisonment not exceeding 3 years. Counterfeiting or fraudulently altering or defacing the marks put by the owner on a hogshead, barrel or half-barrel, of flour, meal, beef, pork, pot or pearl ashes, fish, fish oil, liver oil, or distilled spirits, is punishable by fine not exceeding 500 dollars, or imprisonment not exceeding one year. (Id. 572, 193, 194.) Falsely making, altering, forging, or counterfeiting, any lottery ticket, or aiding therein, or uttering the same with intent to defraud, subjects the offender to impriBonment. (Id.671, 53.) Forging, &c. any will of real or personal property, or any instrument purporting to affect real estate, or any certificate of acknowledgment or proof of any instrument which may be recorded; or any certificate purporting to be issued by the state for the payment of money, or to acknowledge the receipt of property; or any certificate of any interest in a public stock created by any law of the state or any other evidence of any liability of the state, purporting to be issued by a public officer; or any indorsement or other instrument purporting to transfer the right of any holder of such certificate, with intent to defraud, is forgery in the first degree. (2 R. B. 70, § 22, 23.) Tergery in the second degree, is the forging, kr. of the great or privy seal, or the seal of any public office authorized by law, or any court of record, or of any company incorporated by this state, or the impression of any such seal. 2. The altering, destroying, corrupting, or falsifying with intent to defraud, any record that is evidence, or any record of any judgment or enrolment of a decree, or the return of any officer, court, &c. to any process of any court. 3. The falsely making, forging. or altering any entry in any book of records, or any instrument purporting to be any record or return specified in the last section. 4. Wilfully and falsely certifying, by an officer authorized to take the proof or acknowledment of any instrument that may be recorded, that the same has been acknowledged or proved. 5. Counterfeiting any gold or silver coins current by custom or usage within this state. (2 R. S. 671. ◊ 24, &c.) 6. Making or engraving, or causing to be made or engraved, any plate in the form of any evidence of debt, &c. issued by any bank incorporated by any state of this, or any other country, without the authority of such bank. 7. Having any such plate, or impression from it, without the authority of such bank, with the intent of having any impression made and passed off, or of hav ing the impression filled up to be passed off. 8. Making, or causing to be made, or having, any plate upon which are engraved any figures or words, which may be used to falsely alter any evidence of debt issued by such bank, with intent so to use the same. (2 R. S. 672, § 30.) 9. Selling, &c. or offering or receiving, for any consideration, any forged evidence of debt, knowingly, and with intent to have the same passed. (Id. 32.) 10. Having any forged evidence of debt of any such bank as above specified, with intent to utter the same and to defraud. (Id. 36.) Forgery in the third degree is, I. Counterfeiting the gold and silver coin of a foreign government, with intent to export it and defraud the foreign government or its sub jects. (Id. ◊ 29.) II. Forging, &c. with intent to defraud, and so that any one may be injured in his person or property: 1st. Any instrument purporting to be any process, or any certificate, order, or allowance of any competent court or officer; or to be any pleading or proceeding filed or entered in any court: or to be any license or authority authorized by any statute. 2. Any instrument purporting to be the act of another, by which any pecuniary demand or rights of property may be affected, and for which a punishment is not before provided. III. Making a false entry, or falsely alter ing an entry, with intent to defraud, in any book of accounts kept in the office of the comptroller, or of the treasurer or surveyor general of the state, or of any county treasur er, by which any demand, right, or claim may be affected; or in any book of acruvnts kepi "T" (6) Se Ho n (65) at the end of the Vol R CHAPTER XVIII. OF THE MEANS OF PREVENTING OFFENCES. WE are now arrived at the fifth general branch, or head, under which 1 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 aud 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 (6), 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 ore dealing with such corporation, and by which any pecuniary claim may be affected. (Id. 34, 35.) Forgery in the fourth degree is: 1. Having any forged or counterfeited instrument, the forgery of which is above (i. e. in 2 R. S. 670, &c.) declared to be punishable, (except trose evinerated 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. (Id. ◊ 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 c: 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. (Id. § 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 corporation, though such person was not such officer, or was not in existence. Forgery in the first degree, is ounished by imprisonment in the state-prison for no less than 10 years in the second degree, for not less than 5 nor more than 10 in the third de gree, for not more than 5: in the fourth degree, by like imprisonmer: for not more than 2 years, or by imprisonmer in a county jail for n more than 1 year. (2 R. S 675, 642 ) an be effected by amendment, disability, or example. But the caution. which we speak of at present, is such as is intended merely tor prevention, without any crime actually committed by the party, out 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 frankpledges; wherein as has more than once been observed (c), the whole neighbourhood or :ithing 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 us 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 (ƒ). 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 1. page 350. of the peace must be exhibited. 5 Burn J 24 ed. 304. 1 T. R. 696. (2) But by 1 and 2 Ph. & M. 13. in cases of felony, the recognizances are to be certified to the general gaol delivery. (3) A secretary of state o pri -counseles cannot bind to keep the peace o good beha viour. 11 St. Tri. 317. averse to act, it may be granted by a mandatory writ, called a supplicavi: 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 (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 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 gran1 ing, or the means of forfeiting them, I shall now consider them separate ly 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 (g) F. N. B. 80. 2 P. Wms. 202. (A) 1 Hawk. P. C. 127. () Stra. 1207. 2 (4) A peeress may demand surety of the peace against her husband. Fost. 359. ta. 1202. 13 East, 171. N. Cas. T. Hard. 74. (k) 1 Hawk. P. C. 129. 1 Burr. 631, 703. 1 T. R. 696. (5) See note 29. p. 350, book as to > New-York, and 2 R. S. 704 : will also farther swear, that he does not require such surety out of malice or for mere vexation (m) (6). 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 forfeit ed by any actual violence, or even an assault, or menace, to the person of Im 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 spe cies 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 upon to be merely the effect of unmeaning heat and pas- [*256] sion), 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 (7). 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; or for words tending to scandalize the goverment, 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 statues, 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 (m) 1 Hawk. P. C. 127. (a) Ibid. 128. (6) 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 obections arise to the articles exhibited, the ourt or justice will order securities to be VOL. II 76 (0) Ibid. 131. taken immediately. 2 Stra. 1202. (7) See note (1), ante, 253. |