CHAPTER THE EIGHTEENTH.
OF THE MEANS OF PREVENTING OFFENCES.

WE are now arrived at the fifth general branch or head, under which I propofed to confider the fubject of this book of our commentarie; viz. the means of preventing the commiffioin of crimes and mifdemefnors. And really it is an honour, and almoft a fingular one, ot our Englifh laws, that they furnifh a title of this fort: fince preventive juftice is upon every principle, of reafon, of humanity, and of found policy, preferable in all refpects to punifhing juftice^a ; the execution of which, though neceffary, and in it's confequences a fpecies of mercy to the commonwealth, is always attended with many harfh and difagreeable circumftances.

THIS preventive juftice confifts in obliging thofe perfons, whom there is probable ground to fufpect of future mifbehaviour, to ftipulate with and to give full affurance to the public, that fuch offence as is apprehended fhall not happen; by finding pledges or fecurities for keeping the peace, or for their good behaviour. This requifition of fureties has been feveral times mentioned before, as part of the penalty inflicted upon fuch as have been fuilty of certain grofs mifdemefnors: but there alfo it muft be underftood rather as a caution againft the repetition of the offence, than any immediate pain or punifhment. And

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^a Beccar. ch. 41.
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indeed,
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indeed, if we confider all human punifhments in a large and extended view, we fhall find them all rather calculated to prevent future crimes, than to expiate the paft: fince, as was obferved in a former chapter^b , all punifhments inflicted by temporal laws may be claffed under three heads; fuch as tend to the amendment of the offender himfelf, or to deprive him of any power to do future mifchief, or to deter others by his example: all of which conduce to one and the fame end, of preventing future crimes, whether that be effected by amendment, difability, or example. But the caution, which we fpeak of at prefent, is fuch as is intended merely for prevention, without any crime actually committed by the party, but arifing only from a probable fufpicion, that fome crime is intended or likely to happen; and confequently it is not meant as any degree of punifhment, unlefs perhaps for a man's imprudence in giving juft groud of apprehenfion.

By the Saxon conftitution thefe fureties were always at hand, by means of king Alfred's wife inftitution of decennaries or frankpledges; wherein, as has more than once been obferved^c , the whole neighbourhood or tithing of freemen were mutually plegdes for each others good behaviour. But, this great and general fecurity being now fallen into difufe and neglected, there hath fucceeded to it the method of making fufpected perfons find particular and fpecial fecurities for their future conduct: of which we find mention in the laws of king Edward the confeffor^d ; “tradat fidejuffores de pace et legalitate tuenda.” Let us therefore confider, firft, what this fecurity is; next, who may take or demand it; and, laftly, how it may be difcharged.

1. THIS fecurity confifts in being bound, with one or more fureties, in a recognizance or obligation to the king, entered on record, and taken in fome court or by fome judicial officer; whereby the parties acknowlege themfelves to be indebted to the crown in the fum required; (for inftance 100 l.) with condition

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^b See pag. 11.
^c See Vol. I. pag. 113.
^d Cap. 18.
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to be void and of none effect, if the party fhall appear in court on fuch a day, and in the mean time fhall keep the peace: either generally, towards the king, and all his liege people; or particullarly alfo, with regard to the perfon who craves the fecurity. Or, if it be for the good behaviour, then on condition that he fhall demean and behave himfelf well, (or be of good behaviour) either generally or fpecially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a juftice of the peace, muft be certified to the next feffions, in purfuance of the ftatute 3 Hen. VII. c. 1. and if the condition of fuch recognizance be broken, by any breach of the peace in the one cafe, or any mifbehaviour in the other, the recognizance becomes forfeited or abfolute; and, being eftreated or extracted (taken our from among the other records) and fent up to the exchaquer, the party and his fureties, having now become the king's abfolute debtors, are fued for the feveral fums in which they are refpectively bound.

2. ANY juftices of the peace, by virtue of their commiffion, or thofe who are ex officio confervators of the peace, as was mentioned in a former volume^c, may demand fuch fecurity according to their own difcretion: or it may be granted at the requeft of any fubject, upon due caufe fhewn, provided fuch demandant be under the king's protection; for which reafon it hath been formerly doubted, whether Jews, Pagans, or perfons convicted of a praemunire, were intitled thereto^f . Or, if the juftice is averfe to act, it may be granted by a mandatory writh, called a fupplicavit, iffuing out of the court of king's bench or chancery; which will compel the juftice to act, as a minifterial and not as a judicial officer: and he muft make a return to fuch writ, fpecifying his compliance, under his hand and feal^g . But this writ is feldom ufed: for, when application is made to the fuperior courts, they ufually take the recognizances there, under the directions of the ftatute 21 Jac. I. c. 8. And indeed a peer or

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^e See Vol. I. pag. 350.
^f 1 Hawk. P. C. 126.
^g F. N. B. 80. 2 P. W^ms . 202.
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peerfs
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peerefs cannot be bound over in any other place, than the courts of king's bench or chancery: though a juftice of the peace has a power to require fureties of any other perfon, being compos mentis and under the degree of nobility, whether he be a fellow juftice or other magiftrate, or whether he be merely a private man^h . Wives may demand it againft their hufbands; or hufbands, if neceffary, againft their wives^j. But feme-coverts, and infants under age, ought to find fecurity by their friends only, and not to be bound themfelves: for they are incapable of engaging themfelves to anfwer any debt; which, as we obferved, is the nature of thefe recognizances or acknowlegements.

3. A RECOGNIZANCE may be difcharged, either by the demife 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 fuch recognizance is certified by the juftices (as the quarter feffioins, affifes, or king's bench) if they fee fufficient caufe: or if he at whofe requeft it was granted, if granted upon aprivate account, will releafe it, or does not make his appearance to pray that it may be continuedⁱ .

THUS far what has been faid is applicable to both fpecies of recognizances, for the peace, and for the good behaviour; de pace, et legalitate, tuenda, as expreffed in the laws of king Edward. But as thefe two fpecies of fecurities are in fome refpects different, efpecially as to the caufe of granting, or the means of forfeiting them; I fhall now confider them feparately: and firft, fhall fhew for what caufe fuch a recognizance, with fureties for the peace, is grantable; and then, how it may be forfeited.

1. ANY juftice of the peace may, ex officio, bind all thofe to keep the peace, who in his peace, who in his prefence make any affray; or threaten to kill or beat another; or contend together with hot

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^h 1 Hawk. P. C. 127.
^j 2 Stra. 1207.
ⁱ 1 Hawk. P. C. 127.
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and angry words; or go about with unufual weapons or attendance, to the terror of the people; and all fuch as he knows to be common barretors; and fuch as are brought before his by the conftable for a breach of the peace in his prefence; and all fuch perfons, as, having been before bound to the peace, have broken it and forfeited their recognizances^k . Alfo, wherever any private man hath juft caufe to fear, that another will burn his houfe, or do him a corporal injury, by killing, imprifoning, or beating him; or that he will procure others fo to do; he may demand furety of the peace againft fuch perfon: and every juftice 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 fhew that he has juft caufe to be fo, by reafon of the other's menaces, attempts, or having lain in wait for him; and will alfo farther fwear, that he does not require fuch furety out of malice or for mere vexation^l. This is called fwearing the peace againft another: and, if the party does not find fuch fureties, as the juftice in his difcretion fhall require, he may immdiately be committed till he does^m .

2. SUCH recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an affault, or meance, to the perfon of him who demanded it, if it be a fpecial recognizance: or, if the recognizance be general, by any unlawful action whatfoever, that either is or tendsto a breach of the peace; or, more particularly, by any one of the many fpecies of offences which were mentioned as crimes againft the public peace in the eleventh chapter of this book; or, by any private violence committed againft any of his majefty's fubjects. But a bare trefpafs upon the lands or goods of another, which is a ground for a civil action, unlefs accompained with a wilful breach of the peace, is no forfeiture of the recognizanceⁿ . Neither are mere reproachful words, as calling a man knave or liar, any breach of the peace, fo as to forfeit one's recognizance

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^k 1 Hawk. P. C. 126.
^l Ibid. 127.
^m Ibid. 128.
ⁿ Ibid. 131.
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(being
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(being looked upon to be merely the effect of heat and paffion) unlefs they amount to a challenge to fight^o .

THE other fpecies of recognizance, with fureties, is for the good abearance, or good behaviour. This includes fecurity for the peace, and fomewhat more: we will therefore examine it in the fame manner as the other.

1. FIRST then, the juftices are empowered by the ftatute 34 Edw III. c. 1. to bind over 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 toubled nor endamaged, nor the peace diminifhed, nor merchants and others, paffing by the highways of the realm, be difturbed nor put in the peril which may happen by fuch offenders. Under the general words of this expreffion, that be not of good fame, it is holden that a man may be bound to his good behaviour for caufes of fcandal, contra bonos mores, as well as contra pacem; as, for haunting bawdy houfes with women of bad fame; or for keeping fuch women in his own houfe; or for words tending to fcandalize the government, or in abufe of the officers of juftice, efpecially in the execution of their office. Thus alfo a juftice may bind over all night-walkers; eaves-droppers; fuch as keep fufpicious company, or are reported to be pilferers or robbers; fuch as fleep in the day, and wade on the night; common drunkards; whoremafters; the putative fathers of baftards; cheats; idle vagabonds; and other perfons, whofe mifbehaviour may reafonably bring them within the general words of the ftatute, of fo great a latitude, as leaves much to be determined by the difcretion of the magiftrate himfelf. But, if he commits a man for want of fureties, he muft exprefs the caufe thereof with convenient certainty; and take care that fuch caufe be a good one^p .

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^o 1 Hawk. P. C. 130.
^p Ibid. 132.
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2. A RE-
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2. A RECOGNIZANCE for the good behaviour may be forfeited by all the fame means, as one for the fecurity of the peace may be; and alfo by fome others. As, by going armed with unufual attendance, to the terror of the people; by fpeaking words tending to fedition; or, by committing any of thofe acts of mifbehaviour, which the recognizance was intended to prevent. But not by barely giving frefh caufe of fufpicion of that which perhaps may never actually happen^q : for, though it is juft to compel fufpected perfons to give fecurity to the public againft mifbehaviour that is apprehended; yet it would be hard, upon fuch fufpicion, without the proof of any actual crime, to punifh them by a forfeiture of their recognizance.

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^q 1 Hawk. P. C. 133.
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