peerefs cannot be bound over in any other place, than the courts of king's bench or chancery: though a justice of the peace has a power to require fureties of any other perfon, being compas mentis and under the degree of nobility, whether he be a fellow justice or other magiftrate, or whether he be merely a private man. Wives may demand it against their husbands; or hufbands, if neceffary, against their wives j. But feme-coverts, and infants under age, ought to find fecurity by their friends only, and not to be bound themselves; for they are incapable of engaging themselves to answer any debt; which, as we obferved, is the nature of these recognizances or acknowlegements.

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 fuch recognizance is certified by the juftices (as the quarter feffions, affifes, or king's bench) if they see sufficient caufe: or if 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 i.

THUS far what has been faid is applicable to both species of recognizances, for the peace, and for the good behaviour; de pace, et legalitate, tuenda, as expreffed in the laws of king Edward. But as these two species of securities are in some respects different, efpecially as to the cause of granting, or the means of forfeiting them; I shall now confider them separately: and first, shall shew for what cause such a recognizance, with fureties for the peace, is grantable; and then, how it may be forfeited.

1. ANY juftice 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 such as he knows to be common barretors; and fuch as are brought before him by the constable for a breach of the peace in his prefence; and all fuch perfons, as, having been before bound to the peace, have broken it and forfeited their recognizances. Alfo, wherever any private man hath just cause to fear, that another will burn his house, or do him a corporal injury, by killing, imprifoning, or beating him; or that he will procure others so to do; he may demand furety 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 shew that he has just cause to be fo, by reason of the other's menaces, attempts, or having lain in wait for him; and will also farther fwear, that he does not require fuch furety out of malice or for mere vexation'. This is called fwearing the peace against another: and, if the party does not find such sureties, as the justice in his discretion fhall require, he may immediately be committed till he does m

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 fpecial 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 fpecies 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 ". Neither are mere reproachful words, as calling a man knave or liar, any breach of the peace, fo as to forfeit one's recognizance

(being looked upon to be merely the effect of heat and paffion) unless they amount to a challenge to fight o.

THE other species of recognizance, with fureties, is for the good abearance, or good behaviour. This includes fecurity for the peace, and somewhat more : we will therefore examine it in the fame manner as the other..

I. FIRST then, the juftices 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, paffing by the highways of the realm, be disturbed nor put in the peril which may happen by fuch offenders. Under the general words of this expreffion, that be not of good fame, it is holden that a man may be bound to his good. behaviour for caufes of fcandal, contra bonos mores, as well as contra pacem; as, for haunting bawdy houses with women of bad: fame; or for keeping fuch women in his own houfe; or for words tending to scandalize the government, or in abuse of the officers of justice, especially in the execution of their office. Thus alfo a justice may bind over all night-walkers; eaves-droppers ; ; fuch as keep fufpicious company, or are reported to be pilferers or robbers; such as sleep in the day, and wake on the night; common drunkards; whoremasters; the putative fathers of bas- tards; cheats; idle vagabonds; and other persons, whose misbehaviour may reasonably bring them within the general words of the statute, as perfons not of good fame: an expreffion, 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 fureties, he must express the cause thereof with convenient certainty; and take care that such cause be a good one.

2. A RECOGNIZANCE for the good behaviour may be forfeited by all the fame means, as one for the fecurity of the peace may be; and also by fome 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 : for, though it is just to compel fufpected perfons to give fecurity to the public against misbehaviour that is apprehended; yet it would be hard, upon fuch fufpicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance.

91 Hawk. P. C. 133.

CHAPTER THE

NINETEENTH.

OF COURTS OF A CRIMINAL JURISDICTION.

TH

HE fixth, and laft, object of our enquiries will be the method of inflicting those punishments, which the law has annexed to particular offences; and which I have conftantly fubjoined to the description of the crime itself. In the difcuffion of which I shall pursue much the fame general method, that I followed in the preceding book, with regard to the redress of civil injuries: by, first, pointing out the feveral courts of criminal jurisdiction, wherein offenders may be profecuted to punishment; and by, fecondly, deducing down in their natural order, and explaining, the feveral proceedings therein.

FIRST then, in reckoning up the feveral courts of criminal jurisdiction, I fhall, as in the former cafe, begin with an account of such, as are of a public and general jurisdiction throughout the whole realm; and, afterwards, proceed to fuch, as are only of a private and Special jurisdiction, and confined to fome particular parts of the kingdom.

I. IN our enquiries into the criminal courts of public and general jurifdiction, I must in one respect pursue a different order from that in which I confidered the civil tribunals. For there, as the feveral courts had a gradual fubordination to each

other,