Malicious Mischief.

II. Malicious mischief, or damage, is the next species of injury to private property which the law considers as a public crime. This is such as is done, not animo furandi, or with an intent of gaining by another's loss, which is some, though a weak, excuse, but either out of a spirit of wanton cruelty or black and diabolical revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property, of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now by a multitude of statutes made penal in the highest degree. Forgery.

III. Forgery, or the crimen falsi, is an offence which was punished by the civil law with deportation or banishment, and sometimes with death. It may with us be defined at common law to be "the fraudulent making or alteration of a writing to the prejudice of another man's right," for which the offender may suffer fine, imprisonment, and pillory. And also, by a variety of statutes, a more severe punishment is inflicted on the offender in many particular cases, which are so multiplied of late as almost to become general.

Chapter XVIII.

OF THE MEANS OF PREVENTING OFFENCES.

Preventive Justice.

251-257.

Preventive justice consists in obliging those persons whom there is 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.

The Security.

This security consists in being bound, with one or more sureties, in a recognizance or obligation to the king, entered on record, and taken in some court or by some judicial officer; whereby the parties acknowledging themselves to be indebted to the crown in the sum required (for instance, 100l.), 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 king 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.

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 king's protection.

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 sessions, assizes, or king'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.

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.

1. Any justice 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 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 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 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 further swear that he does not require such surety out of malice, or for mere vexation. This is called swearing the peace against another; and if the party does not find such sureties as the justice in his discretion shall require, he may immediately be committed till he does.

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 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 offence 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.

I. 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, 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 house; 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; whoremasters; the putative fathers of bastards; 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 to leave 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 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 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: 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.

Chapter XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

High Court of Parliament.

258-280.

I. The high court of parliament is the supreme court in the kingdom, not only for the making, but also for the execution of laws, by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment. As for acts of parliament to attaint particular persons of treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose, I speak not of them, being to all intents and purposes new laws, made pro re nata, and by no means an execution of such as are already in being. But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom. A commoner cannot, however, be impeached before the lords for any capital offence, but only for high misdemeanours. A peer may be impeached for any crime. The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords, who are, in case of misdemeanours, considered not only as their own peers, but as the peers of the whole nation.

Court of Lord High Steward.

2. The court of the lord high steward of Great Britain is a court instituted for the trial of peers indicted for treason or felony, or for misprision of either.

Court of King's Bench.

3. The court of king's bench, concerning the nature of which we partly inquired in the preceding book, was (we may remember) divided into a crown side and plea side. And on the crown side or crown office it takes cognizance of all criminal causes, from high treason down to the most trivial misdemeanour or breach of the peace. Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar or at nisi prius by a jury of the county out of which the indictment is brought. The judges of this court are the supreme coroners of the kingdom, and the court itself is the principal court of criminal jurisdiction (though the two former are of greater dignity) known to the laws of England.

Court of Chivalry.

4. The court of chivalry, of which we also formerly spoke as a military court or court of honour, when held before the earl marshal only, is also a criminal court when held before the lord high constable of England jointly with the earl marshal. And then it has jurisdiction over pleas of life and member, arising in matters of arms and deeds of war, as well out of the realm as within it.

Court of Admiralty.

5. The high court of admiralty, held before the lord high admiral of England or his deputy, styled the judge of the admiralty, is not only a court of civil but also of criminal jurisdiction. This court hath cognizance of all crimes and offences committed either upon the sea or on the coasts out of the body or extent of any English county, and, by statute 15 Ric. II. c. 3, of death and mayhem happening in great ships being and hovering in the main streams of great rivers, below the bridges of the same rivers, which are then a sort of ports or havens.

These five courts may be held in any part of the kingdom, and their jurisdiction extends over crimes that arise throughout the whole of it, from one end to the other. What follow are also of a general nature, and universally diffused over the nation, but yet are of a local jurisdiction, and confined to particular districts. Of which species are,

Courts of Oyer and Terminer.

6, 7. The courts of oyer and terminer and the general gaol delivery, which are held before the king's commissioners, among whom are usually two judges of the courts at Westminster, twice in every year in every county of the kingdom except the four northern ones, where they are held only once, and London and Middlesex, wherein they are held eight times.

Court of Quarter Sessions.

8. The court of general quarter sessions of the peace is a court that must be held in every county once in every quarter of a year. It is held before two or more justices of the peace, one of which must be of the quorum. The jurisdiction of this court, by statute 34 Edw. III. c. 1, extends to the trying and determining all felonies and trespasses whatsoever, though they seldom if ever try any greater offence than small felonies within the benefit of clergy.

Sheriff's Tourn.

9. The sheriff's tourn, or rotation, is a court of record held twice every year, within a month after Easter and Michaelmas, before the sheriff, in different parts of the county; being indeed