The statute contains a general provision that no security to keep the peace, or to be of good behavior, shall be required, nor any person be committed to prison for not giving the same, in any case except such as are prescribed or authorized by statute. (w) This section defines, with accuracy and precision, the powers possessed by justices of the peace, in requiring sureties of the peace; which powers were previously rather vague and uncertain.

Surety of the peace is also sometimes authorized by way of punishment for offences already committed. Thus, the revised statutes provide that every court of criminal jurisdiction, before which any person shall be convicted of a criminal offence, not punishable with death or imprisonment in the state prison, shall have power, in addition to such sentence as may be prescribed or authorized by law, to require such person to give security to keep the peace, or to be of good behavior, or both, for any term not exceeding two years, or to stand committed until such security be given. But this provision does not extend to convictions for writing or publishing any libel; nor shall any such security be hereafter required by any court, upon any complaint, prosecution, or conviction, for any such writing or publishing. No recognizance given under this section of the statute is to be deemed to be broken, unless the principal therein be convicted of some offence amounting, in judgment of law, to a breach of such recognizance. (x) But where surety of the peace is directed to be given, as a part of the penalty for the commission of an offence, it is said it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment in itself.(y)

All persons whatsoever, being of sane memory, whether natural born citizens or aliens, have a right to demand surety of the peace. Wives may demand it against their husbands, and husbands against their wives.(z) "In the latter case," (as Dr. Burn quaintly says,) "Master Crompton observeth, that if the wife cannot find sureties, she shall be committed, and so a man may be rid of a shrew."(a) Where a woman exhibits articles of the peace against a man whom she calls her husband, and he disputes the fact of the marriage, the magistrate should order the recognizance to be worded so as not to admit the fact. (b) Married women, and infants under age, ought to find security by their friends only,

(w) 2 R. S. 705, § 14.

(x) Id. 737, §§ 1, 2. See also 4 Black.

Com. 253.

(y) 4 Black. Com. 253. 2 Deacon's Dig. Cr. L. 1271.

(z) 1 Hawk. P. C. ch. 60, s. 2, 4. (a) Burn, J. “Surety of the P." II. Cromp. 118.

(b) 2 Str. 1231.

and not to be bound themselves; for they are incapable of engaging themselves to answer any debt. (c)

The recognizance may, as we have seen, be discharged by the court of general sessions if the complainant does not appear. So it may be discharged by the court upon the death of the principal party bound thereby, if not before forfeited, or upon the death of the complainant.(d) Surety for the good behavior, is of near affinity to surety for the peace; but it includes the latter kind of surety and something more; for he that is bound to the good behavior is therein also bound to keep the peace. (e) The duty of a justice in requiring surety for the good behavior, will be stated hereafter, in the chapter relative to " Summary Convictions."

As to who may enter complaints; what persons may be complained of; and the duty of the justice as respects complaints generally, see the next chapter.

CHAPTER II.

Of the arrest and examination of offenders, committing them for trial, and letting them to bail.

The various subjects embraced in this chapter will be treated of in the following order:

I. Complaints.

II. Warrants.

III. Arrests; and the execution of process.

IV. Examination of offenders.

V. Committing offenders for trial.

VI. Letting offenders to bail.

I. COMPLAINTS.

The initiatory step to be taken, in order to procure the arrest and examination of persons charged with having committed offences, is to make a complaint to any officer authorized by law to receive it, showing that

(c) 4 Black. Com. 254.

(d) Id. ib. Dalt. ch. 18, 274. 1 Hawk.

ch. 60, § 17.

(e) Dalt. ch. 122. p. 286.

a criminal offence has been committed. The following points respecting complaints, are to be noticed: 1st. The persons to whom complaints may be made; 2d. The complainant; 3d. Who may be complained of; and 4th. The duty of the magistrate.

1st. Of the persons to whom complaints may be made.] In this state the following officers, and no others, are authorized to hear complaints in criminal cases, viz: the chancellor; the judges of the supreme court; judges of the superior court of law of the city and county of New-York; circuit judges; judges of county courts; mayors, recorders and aldermen of cities; and justices of the peace generally.(1)

2d. Of the complainant.] When a person competent to enter a complaint knows that another has committed an offence he should see that measures are taken to bring the offender to justice. In point of morals, this duty is quite plain; and it is especially so with regard to those more aggravated crimes which strike at the foundations of public tranquility, or endanger the lives and property of individuals. No one can be said to have fully discharged his obligations to society who, under such circumstances, should remain silent and inactive and allow the culprit to escape. In England, this duty is expressly enforced by statute; and the neglect of it is, in many cases, rendered criminal, and visited with exemplary punishment. It is stated, moreover, to be an offence at common law for one who knows that felony or treason has been committed, wilfully to omit informing against the offender.(c)

We have no statutory provisions on this subject, however, nor are we aware that an indictment merely for not complaining has ever been sustained upon common law principles, either in this state or in this country.(d) Our law, however, as well as that of England, encourages the performance of this duty by ensuring to the complainant all due protection in the discharge of it. It would indeed be a great hindrance to public justice were he liable to an action whenever he was mistaken in the object of his suspicions; and, accordingly, it is the settled doctrine that a person cannot be sued for complaining of or indicting a party, unless his proceedings were both actuated by malice and entirely destitute of any probable foundation.(e) And the rule is quite as strict if not more

(1) 2 R. S. 706, § 1. id. 704, § 1.

(c) See 1 Russ. on Cr. 43. 3 Inst. 138, 140. 1 Hale, 431, 448, 553, 371, 375. Bract. 118. Roscoe's Cr. Ev. 311. Hawk. P. C. ch. 56, sec. 2, and n. Black. Com. 121.

1

4

(d) See 4 Black. Com. 120, n. 1, Am. ed. 1836.

(e) 2 Stark. Ev. 492, 5th Am. ed. 2 Brown's kep. App'x 69. id. 42. 3 Wash. C. C. Rep. 31. Cooke's Rep. 90. Gilmer's Rep. 9. 1 Nott & McCord, 278. 4 Mass. R. 433. 17 id. 190. 10 John. 106. 1 T. R. 520. 1 Salk. 14, 15, 21. 5 Mod. 394, 405. 1 Vent. 86. Carth. 415.

so, in shielding him from an action of slander for the charges made in the form of complaints. (f)

But where the law is made the engine of oppression, or the occasion is used by the prosecutor merely to gratify his malice, and the complaint is entered without probable cause, the party injured has his redress by action.(g) And where several conspire in order to institute a groundless and malicious prosecution, they may be indicted and punished.(h)

In regard to causes tried before a court of special sessions, there is a still further check upon groundless complaints. If the defendant is acquitted, and the court certify, in their minutes, that the complaint was wilful and malicious, and without probable cause, the complainant must then pay all the costs that shall have accrued to the court or constable, or give security that he will pay them in thirty days. If he neglects to pay them or give security, judgment may be entered for the amount, by the court, and the complainant committed to jail as upon a justice's execution in a civil cause, and for the like period, until he shall satisfy the judgment, with the costs of the commitment, or until he shall be discharged by due course of law. (i)

Offences ordinarily affect some persons more than others; and it is, therefore, usual for such as are immediately injured to complain. As a general rule, however, every man is, of common right, entitled to prefer a complaint. (k) And so far has this rule been carried in its construction for the public benefit, that even an individual who has, for the purpose of detecting a suspicious person, afforded him an opportunity to commit a particular crime, is not thereby precluded from becoming a prosecutor, and instituting proceedings against him.(7)

On an application for criminal process against any person, the complainant is to be examined on oath or affirmation ;(m) and, therefore, it is sometimes laid down that none are qualified to act as complainants save such as are competent to give testimony as witnesses. (n) In Massachusetts, it has been stated, broadly, that no complaint ought to be received upon the oath of a person who is by law disqualified from supporting it by his testimony on the trial of the party accused. (o) As to who are competent witnesses, see ante, p. 378, et seq.

(f) 2 Stark. Ev. 462, 5th Am. ed. See 12 Pick. 163, 164, 165. 4 Barn. & Cress. 247.

(g) 1 Chit. Cr. L. 10. 2 Stark. Ev. 492, et seq. 2 John. R. 203. 4 Barn. & Cress. 247. 12 Pick. 163, 164, 165.

(h) 2 R. S. 691, § 8. (i) Id. 714, §§ 20, 21. (k) 1 Chit. Cr. L. 1.

(1) 2 Taunt. 234. 2 Bos. & Pul. 508. 1 Chit. Cr. L. 2.

(m) 2 R. S. 706, § 2. id. 407, § 84. id. 408, § 90.

(n) 1 Chit. Cr. L. 2, 3.

(0) Per Parsons, Ch. J. in a charge to the grand jury, quoted in Davis' Just. p. 8.

Those who are incompetent to complain in person, are at liberty, it is said, to disclose the circumstances to others, and thus enable them to bring the offender to justice.(p)

On this subject, however, we apprehend that no rule of a practical nature can be laid down, except such as submits the question of the competency or incompetency of complainants, in a great measure, to the sound discretion of the magistrate. For if he receives a complaint from one who is incompetent to testify as a witness, we know of no authority for dismissing it, on that ground merely, after having once issued his warrant. He ought not, in any case, to proceed upon a complaint solely because such complaint has been made; for though there be a positive charge on oath by a competent witness, if the justice sees that no credit is to be given to it, he may, and should doubtless, decline acting upon it. (q) Especially ought he to do so, where he has personal knowledge that, in addition to the complainant being a man of abandoned character, he is incompetent as a witness. Even in respect to such persons, however, cases may arise where a magistrate might feel himself bound to consider their complaints; as where they are corroborated by circumstances, or are asking merely for sureties of the peace; so, perhaps, in many other instances. Thus, where a defendant in a civil cause had been arrested pursuant to an order founded on an affidavit made by one convicted of conspiracy, and therefore incompetent as a witness, in England, the court refused to set aside the proceedings; and Abbott, Ch. J. said: "I am by no means prepared to say that a person convicted of conspiracy is precluded from obtaining that justice which the law of the country affords to all his majesty's subjects."(r) So, where the reading of an affidavit was objected to, because the person making it had stood in the pillory, Holt, Ch. J. in answer to the objection, asks: "Must he, therefore, suffer all injuries and have no way to help himself?" (s)

In general, the presumption is in favor of competency, as well as credibility.(t)

A justice, however, should in no case receive a complaint upon the oath of persons who at the time are disqualified from being witnesses, by insanity or drunkenness ;(u) or want of age; though, as to infants, if they understand the nature and obligations of an oath, they may be sworn, no matter how young; and their credit is left to the magistrate to deter

(p) 1 Chit. Cr. L. 2, 3. Davis' Just. 8, 9.

(q) Id. 32. Dick. Just. 458, 459. Hawk. P. C. ch. 13, § 18.

(r) 4 Dowl. & Ryl. 144.

2

(s) 2 Salk. 461.

(t) See 7 Barn. & Cress. 815. 1 Man. & Ryl. 669. 3 Gill & John. 355.

(u) See 10 John. 362. 16 id. 143. 15 Serg. & Rawle, 235. Ante, 379.