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 the several heads comprehend the whole circle of crimes and misdemeanors, with the punishment annexed to each, that are cognizable by the laws of England.

[*251]

*CHAPTER XVIII.

OF THE MEANS OF PREVENTING OFFENCES.

We are now arrived at the fifth general branch, or head, under which I propose 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 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 misdemeanors; but there, also, it must be understood rather as a caution against a 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 [*252] them 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

(b) See page 11.

(a) Beccar. ch. 41. ficiently appear that the prisoner had not gone by the name of S before the time of accepting the bill, or that he had assumed the name for the purpose of fraud. R. v. Boutien, R. & R. 260. By false representations and using an assumed name, the defendant had defrauded another. Held, that when his real name appeared he must show that

he had used this assumed name for other purposes, and before the fraud, and that when proved to have assumed a name for fraudulent purposes, the drawing the instrument in that name was a forgery. R. v. Peacock, R. & R. 278. See R. v. Marshall, R. & R. 75; State v. Givens, 5 Ala. 747.

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 that 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 or 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 him deliver sureties for maintaining peace and good behaviour). Let us, therefore, consider, first, what this security is; next, who may take or demand it; and, lastly, how it may be discharged.

I. Binding with sureties. 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 *party shall appear in court on such a day, and in the mean time shall [*253] 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, 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.

(d) Cap. 18.

(c) See book I, page 114. 1 There must be a limit to the time of imprisonment in default of finding sureties. Prickett v. Gratrex, 8 Q. B. 1020. But one may be bound over for a longer time than till the next ses

sions. Willes v. Bridger, 2 B. & Ald. 278, where the imprisonment was for two years. See R. v. Bowes, 1 T. R. 696. See next note.

2. Who may require recognizance.- Any justices of the peace, by virtue of their commission, or those who are ex officio (officially) conservators of the peace, as was mentioned in a former volume, (e) may demand such security according to their own discretion; or it may be granted at the request of any subject, upon due cause shown, 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 pramunire were entitled thereto. Or, if the justice is averse to act, it may be granted by a mandatory writ, called a supplicavit (he hath supplicated), issuing out of the court 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. L, 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 [*254] peace has a power to require sureties 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. (2) 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.1

3. How discharged. 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, assizes, 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 recognizance, 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 show for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited.

1. To keep the peace.- 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 contend together with hot and angry words; or go about with unusual weapons

(e) See book I, page 350. (h) 1 Hawk, P. C. 127.

(g) F. N. B. 80. 2 P. Wms. 202. (k) 1 Hawk. P. C. 129.

(f)1 Hawk. P. C. 126. (i) 2 Stra. 1207.

gle magistrate for more than twelve calendar months. Statute 16 and 17

In default of giving security, the party is committed to prison, but is not to be detained on the warrant of a sin-Vic., c. 30, § 3.

*or attendance, to the terror of the people; and all such as he knows to be common barretors; and such as are brought [*255] 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. () 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 show 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 further swear, that he does not require such surety out of malice, or for mere vexation. (m) 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. Forfeiture of recognizance. 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. (o) Neither are mere reproachful words, as calling a man a 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 passion), unless they amount to a challenge to fight. (p)

[*256]

Recognizance for good behaviour.-The other species of recognizance, with sureties, is for the good abearance or good behav iour. 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 of them that be not of good fame, wherever they be found; to the intent that the people be not troubled or 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 (against the peace): 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 govern

(1) 1 Hawk, P. C. 126. (p) Ibid. 130.

ment, or in abuse of the officers of justice, especially in the execution of their office. Thus, also, a justice may bind over all nightwalkers; 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 statute, 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)1

[*257] *2. Forfeiture.- 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 going armed, with unusual attendance, to the terror of the people; 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: (r) 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 proof of any actual crime, to punish them by a forfeiture of their recognizance.

[*258]

*CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

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

(g) 1 Hawk. P. C. 132.

(r) 1 Hawk. P. C. 133.

1 The subject of this chapter will be found covered by statutes in the several states of the American Union, and treated of in the treatises published for

the guide of magistrates in criminal cases, and also in some of the works on criminal law.