to whom it is given, as they can obtain HO certain subsistence from it, a great fraud upon the townships through which they travel, a fraud upon the place to which they are sent, and the greatest possible nuisance to the kingdom at large; for these poor creatures, if they cannot procure relief, must subsist by theft, robbery, burglary, or perhaps murder. Many of them are the most debauched, profligate, and desperate characters, and it is well known, are frequently the emissaries and messengers of treason and rebellion.

I am obliged to say, that every Justice of the Peace who signs such a paper is guilty of a great misdemeanor, great misconduct in his office, for which he might be very severely punished by an indictment or a criminal information. Sometimes an apology is made for the Justices by saying, that it is nothing more than a friendly letter of recommendation; this might be some defence for one vagrant doing to another such an act of kindness: but every Magistrate is bound to act according to the clear and express directions of the law; and his maxim ought ever to be," let the track of the law be pursued, though it should lead over burning plough-shares."

From the number of these unwarrantable instruments issued from certain places, it is impossible not to suspect that they are the fruitful sources of illicit revenue.

I am perfectly convinced that no such lawless and unjustifiable papers were ever signed by any Justice within this Isle, and I most earnestly exhort you that will do all in your power you to put a stop to them in future.

I consider it quite clear, that a man wandering abroad and begging of constables or parish officers in every township, is as much a vagrant as he who begs relief of any other individual.

I should therefore advise, that you apprehend all persons with such passes, and punish them as vagrants, and convey them afterwards, by a constable, to their place of settlement, and send back the pass by post, with an admonition, that if another comes from the same person it will be laid before the Lord Chancellor, or serious notice will be taken of it.

Constables, you, and every man, who take up a vagrant with a walking pass, and carry him before a Justice of the Peace, are entitled to a reward of 10s. for each such vagrant, which I trust

every Justice of the Peace within this Isle will immediately order to be paid to you.

This may, for a while, throw a bur den upon the rate of the Isle, but I am quite convinced, by a perseverance in this conduct you will soon be infinitely benefitted, and set a most laudable example to the rest of the kingdom.

I think it my duty to state, that the Lord Mayor of London wrote to me a polite letter upon the subject, stating, that he was convinced of the illegality of the practice, and that he would exert his influence to prevent the issuing of such papers in the city of London.

Yesterday morning,as I passed through Cambridge, I met, one after the other, the Mayor of the Town, and the Chair

man of the Quarter Sessions for the County; they both began, of their own accord, to complain to me of the horrid state of the country, arising from this misconduct of the Magistrates: and the latter concluded by saying, that “if you could put an end to it, you would deserve a statue of gold."

Gentlemen, in my humble endeavours to secure obedience to the laws, I am a candidate for no reward but the approbation of my own conscience, and the approbation of honourable men; he who seeks for more is not deserving even of that, and will probably fail to obtain it.

Upon this occasion also, I think it my duty to give you my opinion respecting a subject of great importance to the public security, viz. whether a Magistrate can commit an offender charged with a misdemeanor, before an indictment is found against him at the Assize or Sessions. You know, Gentlemen, it has been the constant practice as long as any of you have been in the commis sion of the Peace, and I can assure you, that it has been the practice of several centuries before that time.

But we have lately been assured that several eminent Gentlemen at the Bar, and other learned persons, who have investigated the subject, have discovered, that in every instance in which an offender guilty of a misdemeanor not a breach of the peace, has been committed for want of bail, before an indictment was found, the prisoner was illegally confined, and ought to have been set at liberty by a habeas corpus. I was astonished when I read that proposition; and as I never take the law from any man living without fully in

vestigating the subject myself, especially when a doubt is suggested, I can confidently state to you that the proposition is erroneous.

I was not a stranger to the subject, because within my practice it has fallen to my lot to extend the limits of the law of misdemeanor. If any one advises another to commit a crime either felony or misdemeanor, if the crime is not committed, the adviser is guilty of a misdemeanor; it is not an actual breach of the peace, yet it is the duty of every Justice, if the offender cannot find sufficient bail, to commit him either to the Sessions or the Assizes for trial. Sixteen years ago, when I attended the Sessions at Manchester, an Attorney brought me a brief, requesting that I would prosecute with as much severity as I could, a man, who had advised a servant to steal the property of his master from a cotton manufactory, and to bring cotton to him and he would reward him liberally. The servant seemed to listen to him, but he was honest and immediately told his master, and in order to get further evidence, the master gave the servant a bundle of cotton to take to him, and the prisoner gave the servant three shillings, and requested him to bring more as often as he had an opportunity. A constable soon afterwards entered the house, to whom he denied having any cotton, but he found it concealed under a pot; this was a confirmation of the young man's evidence.

I could not indict the prisoner for stealing, because the young man did not steal; I could not indict him for receiving stolen goods, because the goods were not stolen; but I indicted him for inciling, and soliciting a servant to steal and embezzle the goods of his master. He retained two very eminent Counsel to defend him, who contended that to advise a crime, which was not committed, was not an indictable offence, but I was so fortunate as to prevail upon the Magistrates, by a majority of one only to proceed in the trial. He was sentenced to two years imprisonment, and to stand in the pillory at the end of the time. The case was afterwards twice argued in the Court of King's Bench, when Lord Kenyon and the Court held that it was now and had always been a misdemeanor to advise a crime, though it was not committed. The King v. Higgins,

2 East 5.

Europ. Mag. Vol. LXXII. Sept. 1817.

This is not an actual breach of the peace, but every Justice is bound to commit such an offender, or admit to bail, to the Assizes or Sessions.

Some time afterwards I was consulted by Mr. Price, an active Magistrate at Birmingham, what he was to do with a man, who was apprehended with a box of counterfeit money, which he was going to send by a carter to Manchester, but there was no evidence of the delivery of the box, or that he had uttered any base money; I advised him to commit him, or admit him to bail to the Assizes, and to prefer an indictment against him for procuring counterfeit money with an intent to utter, or to defraud the King's subjects. He was told by the officers of the Mint, their Counsel, and many others, that he could not possibly succeed; the indictment was ready for trial before Mr. Justice Bailey, at Warwick Assizes, who said as it was a new case, he would respite his recognisance to the next Assizes, and in the interval would conconsult the other Judges, who were unanimously of opinion that it was, and had always been a misdemeanor by the common law. This is not a breach of the peace, but it is the duty of every Magistrate, when such a case is brought. before him, to commit him to the next Sessions or Assizes, if he cannot find sufficient bail.

The public money is now in an excellent state, and in order to preserve a confidence in it, whenever you apprehend such an offender within this jurisdiction, I should recommend you to commit him to the Assizes, that the example may have more effect from the greater degree of notoriety.

Every attempt to commit a crime, if the crime is not fully perpetrated, is a misdemeanor. Lord Coke has advanced for this one general comprehensive maxim; viz. Quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud; or, when any thing is prohibited, every thing is prohibited which leads to it, or every step to the commission of a crime is a crime.

There are many shocking indecent misdemeanors of this nature, which frequently are brought before Courts of Justice, and I will confidently pro nounce to you, that it is equally your duty to commit, or bail, for trial, whether they are accompanied with an assault or breach of the peace, or where all the parties concerned are consenting.

li

It is not necessary at present to be more explicit respecting that class of misdemeanors; but I shall state to you three of a different kind with more particularity.

If a man lays a train of gunpowder to your stacks of corn, your barns, or your dwelling-houses, with touchwood on. fire, which will not cause an explosion for several hours or several days, and if he is discovered practising this wickedness in a variety of instances, we are now told that the law of England will not permit us to touch his person before the fire actually takes effect, because till then there is no felony or breach of the peace. And I shall suppose again, that a wretch is carrying through the country poisons, which he advises parents to give to their children, or which he himself actually throws into wells or tea-kettles, still till the poison is administered to, or taken by some human being, he is not guilty of felony under Lord Ellenborough's Act, and he is only guilty of a misdemeanor, which could not be considered an actual breach of the peace: and if another wretch still perhaps more criminal, should carry round and disperse every where publications full of sedition, blasphemy, and indecency, with intent to poison and corrupt the minds of our innocent and virtuous children and domestics, still we are told that a Justice of the Peace has no jurisdiction over him, before an indictment is found by a Grand Jury, and thus these horrid monsters may triumphantly march from one end of the kingdom to the other, casting firebrands, arrows, and death, and nothing can arrest their career, but a thunderbolt from the avenging arm of the Almighty.

Surely the wisdom of our ancestors could never leave such a blank in the Constitution which they have transmitted for our security and happiness. Thank God, there is no such defect at present, and has not been for many centuries in our system of laws.

All that is to be found in the books which have been written within the last 2 or 800 years, by Lord Coke, Lambard, Crompton, Pulton, Dalton, Lord Hale, Hawkins, Burn, and Blackstone, is the following sentence:

"Justices of Peace may also issue their warrants within the precincts of their Commission for apprehending persons charged of crimes within the cognisance of the Sessions of the Peace,

and bind them over to appear at the Sessions, and this though the offender be not yet indicted.—1 HALE, 579.

But it is urged by some, who will not admit this to be a decisive authority, that Lord Hale meant here by crimes, such crimes as were of the rank of felony, because this sentence is found in a chapter which professes to treat only of felonies.-Lord Chief Justice Hale was not used to express himself so inaccurately, if that was his meaning.

It may be observed, that it is impossible to give a certain opinion upon a doubtful question of law, without possessing a clear knowledge of its history and progress.

A slight, gentle deviation, consistent with the principles and rules of law, gradually produces an effect or a practice, which superficial observers cannot reconcile with ancient authorities, and therefore rashly conclude that what has heen sanctioned by a practice for ages, never had a legal origin.

This is precisely that case.

The good and ancient practice by Magistrates of binding offenders to their good behaviour, and to appear at the next Sessions or Assizes, and there to receive and perform the further orders of the Court, has long been disused; and when the latter half is separated from the former, it is not known again, and escapes abservation, though all the authors I have enumerated are full of it.

Lord Chief Justice Hale said

"The statute 34 Ed. III. c. 1. gave Justices of the Peace power to apprehend malefactors, and to commit them to custody, or to bind them to their good behaviour, which was not intended perpetual, but in nature of bail; viz. to appear at such a day at their Sessions, and in the mean time to be of good behaviour."-2 Hale, 136.

This was an excellent mode of preventing a repetition of the crime, and also the commission of any other crime of the same rank, or even any breach of the peace; for if he was guilty of any such crime before he appeared at the Sessions or Assizes, the recognizance was forfeited, and he and his bail would then have been compelled to pay the sum specified in it, and it also secured his attendance at the Assizes or Sessions, when he would be detained till be pleaded to an indictment, if any was found against him; if such an indictment was found, he either was detained

in custody by order of the Court, or entered into a fresh recognizance to appear at the next Assizes or Sessions to try his traverse, that is, the charge in the indictment to which he had pleaded not guilty.

The binding to the good behaviour has probably been disused from a respect to the personal liberty of the subject, and from pity and compassion to the defendant, who, perhaps, could find friends who would be sureties for the event of his appearance in the Court to answer to an indictment, but who would not risk their money upon the failure of that condition, and also upon any one of the infinite conditions, which were included in his being of good behaviour to the King and to all his liege subjects.

For seditious and blasphemous words uttered, the offender might always have been bound to his good behaviour, and therefore, it would follow for a much stronger reason, that the authors of all seditious and blasphemous libels might be so bound.

An indecent libel is now punishable like all other libels against the government and against religion; but it was once thought that that species of crime was punishable only in the Ecclesiastical Courts, till Sir Philip Yorke, afterwards the illustrious Lord Hardwicke, when he was Attorney-General, prosecuted a man for an indecent publication, and the Court of King's Bench unanimously held it was a libel and a temporal crime, and the prisoner was set in the pillory, and Sir John Strange, the Reporter, adds, as he well deserved. 2 Stra. 788.

In that case it is well explained by the learned Attorney-General, that the Christian Religion and sound morality are the two main pillars of the British Government, and he who writes in derogation of either, is an immediate libeller of the government of his country.

But Hawkins, who wrote before that case was decided, though he says that the author of a book full of ribaldry cannot be prosecuted for a libel, yet adds, the author may be bound to his good behaviour as a scandalous person of evil fame.- Leach, Hawk. 355.

I have not had the misfortune to see any of those blasphemous publications, which the itinerant scandalous persons of evil fame are employed to disperse throughout the kingdom; but i am informed that they are of so diabolical a

nature, that they must cause the blood of every one not familiarized to them to run cold with horror.

If any of them should be brought within the jurisdiction of this Isle, I most earnestly exhort the Magistrates to apprehend the offender by their warrant, and to proceed according to the mode prescribed by Lord Hale, Hawkins, and all the authors upon the subject; viz. to bind them over with sufficient sureties to appear at the next Assizes to be held for this Isle, and in the mean time to be of good behaviour to the King and to all his liege people. There are forms in abundance. Every lawyer, I think, must admit, this is a mode of proceeding both legal and constitutional.

You, Gentlemen Magistrates, at your Quarter Sessions, have precisely the same jurisdiction over libel, as the four Judges of the Court of King's Bench; so also I alone presiding in this Court have the same power; but as such prosecutions in the country are rare, if you should have occasion to commit or bind over any one in the manner des cribed, I should recommend you to commit him, or bind him in the recog nizance to appear at the Assizes rather than the Sessions.

I do not recommend this from any apprehension that you would not do full Justice in the case as substantially and effectually as myself; but it may be presumed, that, from the babits of my life, I am better acquainted with the forms of proceeding; and it might be objected, though the same objection may be made to every commitment to the Sessions, that the party is in some degree prejudged by the committing Magistrate or Magistrates. The law in this case affords abundant protection to the liberty of the subject; for, besides the commitment of the Magistrate, which ought to be founded upon an honest investigation and correct know ledge of law, three further decisions, perfectly independant of each other, inust concur before the party accused can suffer the slightest punishment; the Grand Jury must find a true bill perfectly uninfluenced by the commitment of the Magistrate; the Petty Jury must fully try him without the least bias from any previous investigation, and if they, as they are now authorized by a late Statute, should give a general verdict of guilty, the Judge is bound diligently to examine