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for one year, or until such sureties are found (t). And if he shall offend a third time, he is guilty of a misdemeanor; and he is then liable to penal servitude for not more than seven or less than three years, or to be imprisoned, with hard labour, for any time not exceeding two years (u). It is moreover provided, that when any person shall be found committing such offence, it shall be lawful for the owner or occupier of the land; or for any person having a right of free warren or free chase therein; or for the lord of the manor; or for the gamekeeper or servant of such persons or their assistants;-to seize and apprehend any person so offending: and in case he shall assault or offer any violence with any offensive weapon, towards any person so authorized to apprehend him, he is guilty of a misdemeanor; and he is, in that case, liable to penal servitude for not more than seven or less than three years, or to be imprisoned, with hard labour, for any term not exceeding two years(x).

It is further enacted by sect. 9 of the same Act, that if any persons, to the number of three or more, shall, by night, unlawfully enter such lands or roads, for the purpose of taking or destroying game or rabbits (any of them being armed with any gun or other offensive weapon), each of such persons shall be guilty of a misdemeanor: and be liable to penal servitude for any term not more than fourteen years, or less than three years; or to be imprisoned, with hard labour, for not more than two years (y).

XII. Lastly, under the general head of vagrancy and

(t) 9 Geo. 4, c. 69, s. 1.

(u) Ibid.; 7 & 8 Vict. c. 29; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3. (x) 9 Geo. 4, c. 69, s. 1; 7 & 8 Vict. c. 29; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3.

(y) 9 Geo. 4, c. 69, s. 9; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3. See the following cases as to the construction of

9 Geo. 4, c. 69, s. 9: R. v. Dowsell, 6 Car. & P. 398; R. v. Gainer, 7 Car. & P. 231; R. v. Kendrick, ibid. 184; R. v. Davis, 8 Car. & P. 759; R. v. Fry, 2 M. & Rob. 42; Fletcher v. Calthrop, 6 Q. B. 880; R. v. Jones, 2 Cox's Cr. C. 185; R. v. Merry, ibid. 240; R. v. Whitaker and others, 17 L. J., M. C. 127; R. v. Uezzell and others, 20 L. J., M. C. 192.

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other disorderly conduct, may be classed a variety of offences against the public economy (a). [The civil law expelled all sturdy vagrants from the city (b). And, in our own law, idle persons and vagabonds,-whom our antient statutes describe to be," such as wake on the night and sleep on "the day, and haunt customable taverns and alehouses, "and routs about; and no man wot from whence they come, ne whither they go;"] and who are more particularly described by statute 5 Geo. IV. c. 83 (c), and there divided into three classes, idle and disorderly persons, rogues and vagabonds, and incorrigible rogues ;—are all [offenders against the good order, and blemishes in the government, of any kingdom.] They are therefore all punished by the above statute (d): that is to say, idle and disorderly persons, with one month's imprisonment, and hard labour: and rogues and vagabonds with three months' imprisonment, and hard labour: while incorrigible rogues (e), may be committed to the next sessions

(a) Vide sup. vol. 111. p. 224, as to the disposal of children under the age of fourteen found vagrant, &c. (b) Nov. 80, c. 5.

(c) This Act is amended by 1 & 2 Vict. c. 38.

(d) By other Acts, also, persons committing particular offences of various kinds are to be deemed idle and disorderly persons, &c. within the statute referred to in the text, and punished accordingly.

(e) In 5 Geo. 4, c. 83, ss. 3, 4, 5, the species of offenders comprised in the three general appellations of idle and disorderly persons, rogues and vagabonds, and incorrigible rogues, are particularly defined. But the enumeration is too long for insertion. We may remark that under it, two classes of offenders seem to be now punishable, who were formerly treated by our law with much more

severity. 1. Idle soldiers and marines, or persons pretending to be soldiers or marines, wandering about the realm. Such persons were deemed under the statute 39 Eliz. c. 17, (repealed by 52 Geo. 3, c. 31,) to be ipso facto guilty of a capital felony. 2. Outlandish persons calling themselves Egyptians or Gypsies. Against these, provisions were made by 1 & 2 Ph. & M. c. 4, and 5 Eliz. c. 20; by which if the gypsies themselves, or if any person, being fourteen years old, who had been seen or found in their fellowship, or had disguised himself like them, remained in this kingdom one month, it was felony ; and we are informed by Sir M. Hale (1 Hale, P. C. 671), that at one Suffolk assizes, no less than thirteen gypsies were executed upon these statutes. But they are now repealed by 23 Geo. 3, c. 51, and 1 Geo. 4,

of the peace, and kept to hard labour in the interim: and may be further punished, if convicted at the sessions, with imprisonment and hard labour for one year, and with whipping, except in the case of females (e).

c. 116. (See also 19 & 20 Vict. c. 61.) Blackstone remarks (vol. iv. p. 165), as to gypsies, that " they "are a strange kind of common"wealth among themselves of wan. "dering impostors and jugglers, who "were first taken notice of in Ger"many about the beginning of the "fifteenth century, and have since "spread themselves all over Europe. "Munster, who is followed and re"lied upon by Spelman and other "writers, fixes the time of their first

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were expelled from France in the

year 1560, and from Spain in 1591 "And the government in England "took the alarm much earlier; for "in 1530 they are described by statute 22 Hen. 8, c. 10, as out"landish people calling themselves Egyptians, using no craft nor feat "of merchandize, who have come "into this realm, and gone from "shire to shire, and place to place, "in great company, and used great "subtle and crafty means to deceive "the people; bearing them in hand, "that they by palmestry could tell "men and women's fortunes; and

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VOL. IV.

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CHAPTER XIII.

OF THE MEANS OF PREVENTING OFFENCES.

[WE are now arrived at the fifth general branch or head, under which we were to consider the subject of this Book of our Commentaries (a); 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 (b); the execution of which, though necessary, and in its consequence a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances.

This preventive justice consists of 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.]

[By the Saxon constitutions 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, the whole neighbourhood, or tything, of freemen were mutually pledges for each other's good behaviour (c). 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

(a) Vide sup. p. 36. (b) Beccar. ch. 41.

(c) Vide sup. vol. 1. p. 127.

[and special securities for their future conduct; of which we find mention in the laws of King Edward the Confessor; "tradet fidejussores de pace et legalitate tuendâ (d).”]

This security is either for keeping the peace, or for good behaviour; and [consists in being bound with one or more securities in a recognizance or obligation] to the Crown, [and taken in some court, or by some judicial officer (e); whereby the party acknowledges himself to be indebted to the Crown in the sum required, (for instance 1007.,) with condition to be void and of none effect if he 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, on condition so to keep the peace for a certain period, not dependant on any appearance in court (g). [Or, if it be

(d) Cap. 18. It is said in Willis v. Bridges, 2 B. & Ald. 287, that the authority of a justice of the peace, to take security for the peace, appears to have had its origin in stat. 1 Edw. 3, st. 2, c. 16; and that this authority is more fully set forth in 34 Edw. 3, s. 1.

(e) As to recognizances generally, vide sup. vol. II. p. 142. It may be remarked here, that in all cases where a justice of the peace is authorized to bind a person, or make him give security, he may do so by recognizance. (2 Arch. Just. 350.) And such cases may arise, under other circumstances than those mentioned in the text. Thus, the justice or justices before whom any person has been charged with any indictable offence, and witnesses in support of such charge have been examined, may bind, by recognizance, the prosecutor and every such witness to prosecute and give evidence. (See 11 & 12 Vict. c. 42,

ss. 20, 21, 22, 23, 34.) And in the case of any charge or complaint of any offence punishable by way of summary conviction, the justices may also so bind over the defendant to appear at the hearing. (See 11 & 12 Vict. c. 43, ss. 3, 9, 13, 16, 20.) See also 19 & 20 Vict. c. 16, ss. 8-10, 22, 23, and 25 & 26 Vict. c. 65, ss. 9, 17, as to recognizances in cases where an indictment or inquisition has been removed for trial to the Central Criminal Court. Et vide post, p. 377, as to recognizances after conviction for felony or misdemeanor. As to the forfeiture of recognizances, the following statutes and cases may be consulted, 3 Geo. 4, c. 46; 4 Geo. 4, c. 37; 7 & 8 Geo. 4, c. 64, s. 31; 3 & 4 Will. 4, c. 99; 2 & 3 Vict. c. 71, s. 45; 20 & 21 Vict. c. 43, s. 13; R. v. Justices of West Riding, 7 A. & E. 583; R. v. Twyford, 5 B. & Ad. 430.

(g) Where taken for appearance

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