peeress 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 sureties of any other person, being compas mentis and under the degree of nobility, whether he be a fellow justice or other magistrate, or whether he be merely a private manh. Wives may demand it against their husbands; or hufbands, if necessary, against their wives. 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 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 such recognizance is certified by the justices (as the quarter feffions, afsises, or king's bench) if they see sufficient cause: 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. 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 confider them separately: and first, shall shew for what cause such a recognizance, with sureties for the peace, is grantable; and then, how it may be forfeited. I. ANY justice of the peace may, ex officio, bind all those to keep the peace, who in his prefence 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 fuch as he knows to be common barretors; and such as are brought before him by the conftable for a breach of the peace in his prefence; and all such perfons, 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 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 will also farther swear, that he does not require such surety 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 difcretion shall 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 affault, 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 ". 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 heat and paffion) unless they amount to a challenge to fight o. THE other species of recognizance, with sureties, is for the good abearance, or good behaviour. This includes security for the peace, and fomewhat more : we will therefore examine it in the fame 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, paffing 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 fcandalize 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; eaves-droppers ;; such as keep suspicious company, or are reported to be pilferers or robbers; such as fleep in the day, and wake on the night; common drunkards; whoremasters; the putative fathers of baf- tards; cheats; idle vagabonds; and other persons, whose mifbehaviour 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 difcretion 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 fuch cause be a good one P. • 1 Hawk. P. C. 130. • Ibid. 132. 2. A RE 2. A RECOGNIZANCE for the good behaviour may be forfeited by all the fame 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 mifbehaviour, which the recognizance was intended to prevent. But not by barely giving fresh cause of fufpicion of that which perhaps may never actually happen: 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 fufpicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance. 91 Hawk. P. C. 133. CHAPTER R THE NINETEEΝΤΗ. OF COURTS OF A CRIMINAL JURISDICTION. HE fixth, and last, object of our enquiries 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 jurifdiction, wherein offenders may be profecuted 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 jurifdiction throughout the whole realm; and, afterwards, proceed to such, as are only of a private and special jurifdiction, 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 several courts had a gradual fubordination to each other, |