[he knows to be common barrators; 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 recogniz ances (r). 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 (s); and will also further swear that he does not require such surety out of malice, or for mere vexation (t). This is called swearing the peace against another; and if the party does not find such sureties, he may immediately be committed till he does (u).] It is however provided by 16 & 17 Vict. c. 30, s. 3, that no person committed to prison for such cause, under any warrant or order of one justice of the peace, shall be detained there for a longer period than twelve calendar months.

[Such recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault, or menace, to the terror of him who demanded it, -if it be a special recognizance. And, if the recognizance be general, then by any unlawful action whatever, that either is or tends to be 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 tenth chapter of this Book; or by any private violence, committed against any of the subjects of the Crown. But a bare trespass upon the lands or goods of another,which is a ground for a civil action,-unless accompanied

(r) Hawk. P. C. ubi sup. s. 1.
(s) See Ex parte Hulse, 21 L. J.,
M. C. 21.

(t) Hawk. P. C. ubi sup. s. 8.

(u) Ibid. s. 9. See Prickett v. Gratrex, 8 Q. B. 1020.

[with a wilful breach of the peace, is no forfeiture of the recognizance (x). 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 unmeaning passion and heat,) unless they amount to a challenge to fight (y).

2. The other species-viz. a recognizance, with sureties, for the good abearance or good behaviour, includes security for the peace and somewhat more; we will therefore examine it, in the same manner as the other.

First, then, the justices are empowered by the statute, 34 Edward III. c. 1, to bind over to the good behaviour towards the sovereign and his people, all them that be not of good fame, wherever they be found: to the intent that the people be not troubled or 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. 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 home: 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; eaves-droppers; 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, whore masters; cheats; idle vagabonds; and other persons whose misbehaviour 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 discretion of the magistrate himself. But if he commits a man. for want of sureties, he must express the cause thereof (x) Hawk. P. C. ubi sup. s. 25. (y) Ibid. s. 22.

[with convenient certainty; and take care that such cause be a good one (z).] And a similar limitation as to the time of detention under the warrant or order of a single justice, is prescribed by 16 & 17 Vict. c. 30, s. 4, as just mentioned in reference to binding over to keep the peace.

[A recognizance for the good behaviour may be forfeited by all 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 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 (a); 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 suspicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance.]

Such are the doctrines laid down in the books with respect to recognizances for good behaviour. In what manner, however, and to what extent the provisions of the 34 Edward III. ought at the present day to be enforced, may be doubtful and justices, even at sessions, are recommended, by a learned writer on the subject, to refrain from acting under this statute, where no complaint, requiring such recognizance to be taken, has been made: except only in cases where a conviction for some offence of a dangerous kind has taken place; and the circumstances are such as to render a repetition of it, by the same offender, probable (b).

In reference to cases of conviction, additional facilities for the prevention of crime, by the use of recognizances for the peace and good behaviour, have been now afforded by the legislature. For a provision has been inserted in each of the Criminal Law Consolidation Acts of the year (b) 2 Arch. Just. 454.

(z) Hawk. P. C. b. 1, c. 62, s. 4.
(a) Ibid. s. 5.

1861, to the following effect (c); viz., that whenever any person shall be convicted of any indictable misdemeanor, punishable under any of those statutes respectively, the court may, if it shall think fit, in addition to or in lieu of any of the punishments authorized by the Act, fine the offender and require him to enter into his own recognizances and to find sureties (both or either), for keeping the peace and being of good behaviour; and in case of any felony, punishable under any of them respectively, may require the offender to enter into such recognizances and to find sureties (both or either), in addition to any punishment authorized by the Act under which he has been convicted. There is however a proviso that no person is to be imprisoned under this clause, for not finding sureties, for any period exceeding one year.

It is also enacted by 24 & 25 Vict. c. 100, s. 43, that on a summary conviction for an aggravated assault on any female or male child under the age of fourteen (d), the offender may be bound over by the justices convicting, to keep the peace or to good behaviour, for the period of six months after the expiration of his sentence.

(c) See 24 & 25 Vict. c. 96, s. 117; c. 97, s. 73; c. 98, s. 51; c.

99, s. 38; c. 100, s. 71.

(d) Vide post, p. 413.

CHAPTER XIV.

OF COURTS OF A CRIMINAL JURISDICTION.

[THE sixth and last object of our inquiries (a) will be the method of inflicting those punishments, which the law has annexed to particular offences; and which, in this treatise, have been constantly subjoined to the description of the crime itself.] In the discussion of which, we shall, in the first place, point out the several courts of criminal jurisdiction wherein offenders may be prosecuted to punishment: and then explain the several proceedings which may be had therein. And [in reckoning up the several courts of criminal jurisdiction, we shall 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.

First. As to the criminal courts of public and general jurisdiction;—with regard to which we shall, in one respect, pursue a different order, from that in which we 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 inferior,—it seemed proper to begin with the lowest, and to ascend gradually to the courts of appeal, or those of the most extensive powers (b). But as it is contrary to the genius and spirit of the law of England to suffer any man twice to be tried for

(a) Vide sup. p. 86.

(b) Vide sup. vol. 111. p. 389 et seq.