sea bonds, &c.; (r) of lottery tickets or orders; (s) of army or navy debentures; (1) of East India bonds; (u) of writings under the seal of the London, or royal exchange assurance; (w) of the hand of the receiver of the pre-fines; (x) or of the accountant-general and certain other officers of the court of chancery; (y) of a letter of attorney or other power to receive or transfer stock or annuities; and on the personating a proprietor thereof, to receive or transfer such annuities, stock or dividends; (z) also on the personating, or procuring to be personated, any seaman or other person, entitled to wages or other naval emoluments, or any of his personal representatives; and the taking or procuring to be taken, any false oath in order to obtain a probate, or letters of administration in order to receive such payments; and the forging or procuring to be forged and likewise the uttering, or publishing, as true, of any counterfeited seaman's *will or power: (a) to which may be added, though not strictly reducible [*249] to this head, the counterfeiting of Mediterranean passes, under the hands of the lords of the admiralty, to protect one from the piratical states of Barbary; (b) the forging or imitating of any stamps to defraud the public revenue (c) and the forging of any marriage register or license; (d) all which are by distinct acts of parliament made felonies without benefit of clergy. By statute 13 Geo. III, cc. 52 and 59, forging or connterfeiting any stamp or mark to denote the standard of gold and silver plate, and certain other offences of the like tendency, are punished with transportation for fourteen years. By statute 12 Geo. III, c. 48, certain frauds on the stamp duties, therein described, principally by using the same stamps more than once, are made single felony, and liable to transportation for seven years. And the same punishment is inflicted by statute 13 Geo. III, c. 38, on such as counterfeit the common seal of the corporation for manufacturing plate glass (thereby erected) or knowingly 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 (r) Stat. 9 Ann. c. 21. 6 Geo. 1 cc. 4 and 11. 12 Geo. I. c. 32. (s) See the several acts for the lotteries. (t) Stat. 5 Geo. I, c. 14. 9 Geo. I, c. 5. (u) Stat. 12 Geo. I, c. 32. (w) Stat. 6 Geo. I, c. 18. (x) Stat 32 Geo. II, c.14. (y) Stat. 12 Geo. I. c. 32. (z) Stat. 8 Geo. c. 22. 9 Geo. I, c. 12. 31 Geo. II, c. 22, § 77. (a) Stat. 31. Geo. II, c. 10. 9 Geo. III, c. 30. (b) Stat, 4 Geo. II, c. 18. (c) See the several stamp acts. (d) Stat. 29 Geo. II, c. 33. To the stamp are concealed; all the parts that are visible being like those of a genuine stamp, Rex v. Callicott, R. and R. C. C. 212. An indictment on 45 Geo. III, c. 89, for uttering forged notes, need not state to whom they were disposed, it is sufficient to state that the prisoner disposed of the notes with intent to defraud the bank, he knowing them at the time to be forged; and although the person to whom they were disposed purchased them as and for forged notes, and purchased them on his own solicitation, and as agent for the bank, for the purpose of bringing the prisoner to punishment. Rex v. Holden, id. 154. Uttering a forged order for the payment of money under a false representation, is evidence of knowing it to be forged. Id. 169. prove the guilty knowledge of an utterer of a forged bank note, evidence may be given of the prisoner's having previously uttered other forged notes, knowing them to be forged. Rex v. Whiley, 2 Leach C. C. 983. So, upon an indictment for uttering a forged note, evidence is admissible of the prisoner's having at a former period, uttered others of a similar manufacture; and that others of similar fabrication had been discovered on the files of the bank with the prisoner's handwriting on the back of them, in order to show the prisoner's knowledge of the note mentioned in the indictment being a forgery. Rex v. Ball. R. and R. C. C. 132. But in order to show a guilty knowledge on an indictment for uttering forged bank notes, evidence of another uttering, subsequent to the one charged, is inadmissible, except the latter uttering was in some way connected with the principal case, or it can be shown that the notes were of the same manufacture; for only previous or contemporaneous acts, can show, quo animo, a thing is done. Rex v. Taverner, Car. C. L. 195. So, if a second uttering be made the subject of a distinct indictment, it cannot be given in evidence to show a guilty knowledge in a former uttering. Rex v. Smith, 2 C. and P. 633. The person whose name is forged was formerly held to be not a competent witness to prove the forgery. Rex v. Russell, 1 Leach, C. C. 8. But he has recently been made competent by the 9 Geo. IV, c. 32, s. 2.] See further as to uttering, Rex v. Anscott, 6 C. and P. 408; R. v. Harris, 7 id. 428; R. v. Page, 8 id. 122; R. v. Cook, 8 id. 582; R. v. Callicott, 4 Taunt. 300; R. v. Radford, 1 C. and K. 707; R. v. Heywood, 2 id. 352: Commonwealth v. Hill, 11 Mass. 136. 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 account*[250] able 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. 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 a real or fictitious person, (f) is not made a capital crime. (19) 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 public pernicious consequences, 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. 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 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 (e) Stat. 31 Geo. II, c. 22, § 78. (f) Fost. 116, &c. (a) Beccar. ch. 41. (13) [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, Id. 355. If a person puts his own name to an instrument, representing himself to be a different person of that name, with 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.] That a party may be convicted of forging an instrument not stamped, see further, Rex v. Teague, Russ. and Ry. 33, Reg. v. Pike, Moody, 70; People v. Frank, 28 Cal. 507. 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 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 all rather calculated to prevent future crimes, [*252] 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 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 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 us, therefore, consider, first, what this security is; next who may take or demand it; and, lastly, how it may be discharged. I. 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 keep the peace; (1) either [ *253] 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 volume, (e) (2) (b) See page 11. (c) See book I, page 114. (d) Cap. 18. (e) See book I, page 350. (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. and A. 278; but if a recognizance to appear at the bessions be taken, and an order of court for finding sureties applied for, articles of the peace must be exhibited. 5 Burn, J., 24th ed. 304; 1 T. R. 696.] See also Prichett v. Greatrex, 8 Q. B. 1020. (2) [A secretary of state or privy counsellor cannot bind to keep the peace or good behaviour. 11 St. Tr. 317.] 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 præmunire 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 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 [*254] *king's bench or chancery: (3) 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 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. (4) 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 recog nizance 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 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 show for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited. 1. Any justices 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 *or attendance, to the terror of the people; and all uch as he knows [*255] 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. (7) 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 (h) 1 Hawk. P. C. 127. (f) 1 Hawk. P. C 126. (i) 2 Stra. 1207. (g) F. N. B. 80. 2 P. Wms. 202. (3) [A peeress may demand surety of the peace against her husband. 1202; 13 East, 171. N. Cas.; T. Hard. 74; 1 Burr. 631, 703; 1 T. R. 696.] Fost. 349; 2 Stra (4) In default of giving security the party is committed to prison, but is not to be detained on the warrant of a single magistrate for more than twelve calendar months. Statute 16 and 1 Vic. c. 30, s. 3. vexatio... (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. 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 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 ] 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: (6) 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: 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 gov ernment, 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 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) (7) (m) 1 Hawk. P. C. 127. (n) 1bid. 123. (0) Ibid. 131. (p) Ibid. 130. (q) Ibid. 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 commit the exhibitant. 2 Burr. 806; 3 id. 1922. The articles will not generally be received if the parties live a distance in the county, unless they have previously made application to a justice in the neighbourhood. 2 Burr. 780.] (6) [See Haylock v. Sparke, 1 E. and B. 471, in which this subject was examined by Lord Campbell, and it was decided that a magistrate might require sureties for good behaviour of a person charged with having published a libel calculated to cause a breach of the peace. See also Butt v. Conant, 1 B. and B. 548. (7) 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. VOL. II.-58. 457 |