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 frank pledges, wherein, as has more than once been observed, (c) the whole neighborhood or tithing of freemen were mutually pledges for each other's good behavior. 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."(3) 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 them

selves to be indebted to the crown in the sum required, (for instance, *253] 100l.,) 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, (4) either generally toward the king and all his liege people, or particularly, also, with regard to the person who craves the security. (5) Or, if it be for the good behavior, then on condition that he shall demean and behave himself well, (or be of good behavior,) 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 misbehavior 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,

(3) ["Let him deliver sureties for maintaining peace and good behavior."] (4) 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. I T. R. 696.-CHITTY. By stat. 16 & 17 Vict. c. 30, 3, where the prisoner is committed by the warrant or order of but one justice, his detention shall not be for a longer period than twelve months.

(5) Binns' Justice, 10 ed. (Brightly) 821, 859. State v. Rudowsky, 65 Ind. 389, 392 (1879). "No crime attaches to the recognizors for suffering a forfeiture, any more than in failing to perform any other civil contract; and a court of criminal jurisdiction alone has, in the absence of statutory provisions, no power to issue any process for the sums forfeited." "A recognizance, although complete is not in strictness a record, until made out in form and filed in a court of record." People v. Kane, 4 Denio (N. Y.) 530, 536 (1847). See State v. Walker, 56 N. H. 176, 178 (1875). See State v. Kinne, 39 N. H. 129, 134 (1859). A recognizance is not a perfect instrument, until returned to the court, and no action can be brought upon it until it is so returned. Darling v. Hubbell, 9 Conn. 350, 356 (1832).

having now become the king's absolute debtors, are sued for the several sums in which they are respectively bound. (6)

2. Any justices of the peace, by virtue of their commission, or those who are ex officio (7) conservators of the peace, as was mentioned in a former volume, (e)(8) 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 *king's bench or chancery; (9) [*254 though a justice of the peace has a power to require sureties of any other person, being compos mentis, (10) 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, 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 behavior: 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. (11)

(e) See book i. p. 350.

(f) 1 Hawk. P. C. 126.

(g) F. N. B. 80. 2 P. Wms. 202.

(h) 1 Hawk P. C. 127.
(i) Stra. 1207.

(k) 1 Hawk. P. C. 129.

(6) A recognizance, when forfeited and made absolute, has all the force and effect of a judgment. It is allowed a priority in point of payment, and binds the lands of the cognizor. Andress v. The State, 3 Blackford (Ind.) 108, 109 (1832). A recognizance does not create a new debt, but is the acknowledgment of a precedent one; and when carried into the record becomes a part of it. Gay v. State, 7 Kansas, 394, 402 (1871).

(7) [By virtue of their office.]

(8) A secretary of state or privy-counsellor cannot bind to keep the peace or good behavior. II St. Tr. 317.-CHITTY. Fost. 359.

(9) A peeress may demand surety of the peace against her husband.

Stra. 1202. 13 East, 171. N. Cas. temp. Hard. 74. I Burr. 631, 703. I T. R. 696.

-CHITTY.

(10) [Of sound mind.]

2

(11) Surety of the good behavior includes the peace, and he that is bound to good behavior is therein also bound to the peace. Binns' Justice, 10 ed. (Brightly) 82.

1. Any justice of the peace may, ex officio, (12) 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 *255] 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. (7)(13) 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) (14) 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; (15) or, more particularly, by any one of the many species of offence 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 knave or liar, any *256] 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)

The other species of recognizance with sureties is for the good abearance or good behavior. 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 behavior towards the king and his people all them

(7) 1 Hawk. P. C. 126.

(m) Ibid. 127.

(0) 1 Hawk. P. C. 131.
(p) Ibid. 130.

(n) Ibid. 128.

(12) [By virtue of office.]

(13) Surety for good behavior may be exacted in case of a libel. Territory v. Nugent, I Martin's Condensed Reports (La.) 12 (1810).

(14) 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. II.

The articles to entitle a party to have sureties of the peace must be verified by the oath of the exhibitant. I 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.

I 202. 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 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 neighborhood, (2 Burr. 780;) unless the defendant be very old, etc. 2 Stra. 835. 2 Burr. 1039. I Bla. Rep. 233,

S. C.-CHITTY.

(15) State v. Rudowskey, 65 Ind. 389, 392 (1879).

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. (16) 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 behavior for causes of scandal, contra bonos mores, (17) as well as contra pacem;(18) 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 government, 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; eavesdroppers; 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 misbehavior 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 to leave 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)

*2. A recognizance for the good behavior may be forfeited by all [*257 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 misbehavior 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 misbehavior that is apprehended; yet it would be hard, upon such suspicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance. (19)

CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

THE sixth, and last, object of our inquiries will be the method of [*258 inflicting those punishments which the law has annexed to particular offences; and which I have constantly subjoined to the description of the crime (2) 1 Hawk. P. C. 132.

(r) Ibid. 133.

(16) Justices of the peace in Massachusetts have substantially the same powers as those mentioned in the text, with regard to binding persons over to keep the peace. Commonwealth v. M'Neill. 19 Pick. (Mass.) 127, 140. "The courts of Texas may exercise the power of suspending proceedings upon a scire facias, or remitting or mitigating the forfeiture for sufficient cause. But no court has authority to exercise the power without sufficient cause, to be judged of in the exercise of a sound legal discretion." State v. Warren, 17 Tex. 283, 286, 288 (1856), citing U. S. v. Feely, I Brock. (U. S.) 255. Commonwealth v. Dana, 14 Miss. R. 64.

(17) [Against good manners.]

(18) Against the peace.]

(19) Another mode of preventing offences has been much more recently adopted: it is the regulation and improvement of prisons, which has been of late a fertile source of legislation. The acts on this subject are stat. 5 & 6 W. IV. c. 38, (by which inspectors of prisons are appointed,) 1 & 2 Vict. c. 81. 17 & 18 Vict. c. 115. 26 & 27 Vict. c. 79.

28 & 29 Vict. c. 126. 29 & 30 Vict. c. 100.

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 special jurisdiction, and confined to some particular parts of the kingdom.

I. In our inquiries into the criminal courts of public and general jurisdiction I must in one respect pursue a different order from that in which I considered the civil tribunals. For there, as the several courts had a gradual subordination to each other, the superior correcting and reforming the errors of the in

ferior, I thought it best to begin with the lowest, and so ascend *259] gradually to the courts of appeal, or those of the most extensive

powers. But as it is contrary to the genius and spirit of the law of England to suffer any man to be tried twice for the same offence in a criminal way, especially if acquitted upon the first trial, therefore these criminal courts may be said to be all independent of each other, at least so far as that the sentence of the lowest of them can never be controlled or reversed by the highest jurisdiction in the kingdom; unless for error in matter of law apparent upon the face of the record; though sometimes causes may be removed from one to the other before trial. And therefore, as in these courts of criminal cognizance there is not the same chain and dependence as in the others, I shall rank them according to their dignity, and begin with the highest of all; viz.,

1. The high court of parliament, which is the supreme court in the kingdom, not only for the making but also for the execution of laws, by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose, I speak not of them, being to all intents and purposes new laws, made pro re nata, (1) and by no means an execution of such as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom. (a) A commoner cannot, however, be impeached before the lords for any capital offence, but only for

high misdemeanors. (b)(2) A peer

judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect of the notoriety and heinousness of his crimes, to receive the charge and to give judgment against him, the following protest and proviso was entered in the parliament roll:-"And it is assented and accorded by our lord the king, and all the great men, in full parliament, that albeit the

(1) [For present emergency.] Under the constitution of the United States bills of attainder cannot be passed by either the federal or state governments.

(2) For misdemeanors, as libels, riots, etc., peers are to be tried, like commoners, by a jury; for, "at the common law, in these four cases only, a peer shall be tried by his peers,-viz., in treason, felony, misprision of treason, and misprision of felony; and the statute law which gives such trial hath reference unto these or to other offences made treason or felony. His trial by his peers shall be as before; and to this effect are ali