may, in the discretion of the court, be substituted for it in all cases.'

It would be useless to attempt to wade through all the statutes relating to forgeries in particular cases, for not a session passes without some document being protected by provisions rendering its fabrication highly penal. The offence of forgery, however, as brought before our criminal courts, generally falls within one or other of the sections of the statute 11 Geo. IV. and 1 Will. IV. c. 66, already enumerated.'

These are the principal infringements of the rights of Conclusion. property which were the last species of offences against individuals or private subjects, which the method of our 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 these 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.

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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; 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 the repetition of the offence than any immediate pain [252] or punishment. And indeed, if we consider all human punish

ments in a large and extended view, we shall find them all rather calculated to prevent future crimes than to expiate the past: since, as we observed in a former chapter, 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 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 apprehen

sion.

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, 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; "tradat fidejussores de pace et legalitate tuendâ." Let us therefore consider, first, what this security is; next, who may take or demand it; and lastly, how it may be discharged.

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1. This security consists in being bound, with one or more 1. Of what this sureties, in a recognizance or obligation to the Crown, entered security is. 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; either generally, towards the sovereign 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, 'may be certified to the next sessions in pursuance of the statute; 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

a

Willis v. Bridges, 2 B. & Ald. 287.

2. Who may demand or take it.

among the other records) and sent up to the Exchequer, the party and his sureties, having now become absolute debtors of the Crown, 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, 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 protection of the Crown; for which reason it has been formerly doubted, whether Jews, pagans, or persons convicted of a præmunire, were entitled thereto. 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 Queen'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. 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 [254] courts of Queen's Bench or Chancery, 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 merely a private Wives may demand it against their husbands, or husbands, if necessary, against their wives. But femecoverts, 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."

man.

b See vol. i., ch. 9. A secretary of state or privy councillor cannot bind to keep the peace or good behaviour. (11 St. Tri. 317.)

1 Hawk. P. C. 126.

a F. N. B. 80; Mr. Clavering's case, 2 P. Wms. 202.

1 Hawk. P. C. 127.

12 Stra. 1207; Rex v. Bowes, 1 T. R. 696.

An infant, however, of 16 years of age may enter into a recognisance to prosecute a criminal charge.' Exp. Williams, M'Clel. 493.

be discharged.

3. A recognizance may be discharged, either by the demise 3. How it may of the sovereign, 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 Queen'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.1

with sureties for

Thus far what has been said is applicable to both species Recognizances of recognizances, for the peace, and for the good behaviour: de the peace. 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.

able.

1. Any justice of the peace may, ex officio, bind all those to 1. When grantkeep the peace who in his presence make any affray; or threaten to kill or beat another; or contend together with hot angry words; or go about with unusual weapons or attendance, to the terror of the people; and all such as he knows to [255] be common barretors; and such as are brought before him by the constable for a breach of the 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 has 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 farther swear that he does not require such surety out of malice, or for mere vexation. This is called swearing the peace against another;

h1 Hawk. P. C. 129.

i 1 Hawk. P. C. 126.

1 Hawk. P. C. 127.