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[once been observed, the whole neighbourhood, or tything, of freemen were mutually pledges for each other's good behaviour (d). But this great and general security being now fallen into disuse and neglected, there hath succeeded to it the method of making suspected persons find particular and special securities for their future conduct; of which we find mention in the laws of King Edward the Confessor; "tradet fidejussores de pace et legalitate tuendâ" (e).

This security is either for keeping the peace, or for good behaviour; and consists in being bound with one or more securities in a recognizance or obligation to the Crown, and taken in some court, or by some judicial officer (f); whereby the party bound acknowledges himself to be indebted to the Crown in the sum required, (for instance 1007.,) with condition to be void and of none effect if he shall appear in court on such a day, and in the mean time shall keep the peace either generally, towards the sovereign and all his liege people; or particularly also, with regard to the person who craves the security. Or, the condition

(d) Vide sup. vol. I. p. 126.

(e) Cap. 18. It is said in Willis v. Bridges, 2 B. & Ald. 287, that the authority of a justice of the peace, to take security for the peace, appears to have had its origin in stat. 1 Edw. 3, st. 2, c. 16, and that this authority is more fully set forth in 34 Edw. 3, st. 1.

(f) It may be remarked that in all cases where a justice of the peace is authorized to bind a person, or make him give security, he may do so by recognizance. (2 Arch. Just. 350.) And such cases may arise under other circumstances than those mentioned in the text. Thus, the justice or justices before whom any person has been charged with any indictable offence, and before whom witnesses in support of such charge

have been examined, may bind, by recognizance, the prosecutor and every such witness to prosecute and give evidence. (See 11 & 12 Vict. c. 42, ss. 20, 21, 22, 23, 24.) And in the case of any charge or complaint of any offence punishable by way of summary conviction, the justices may also so bind over the defendant to appear at the hearing. (See 11 & 12 Vict. c. 43, ss. 3, 9, 13, 16, 20.) See also 19 & 20 Vict. c. 16, ss. 8-10, 22, 23, and 25 & 26 Vict. c. 65, ss. 9, 17, as to recognizances where an indictment or inquisition has been removed for trial to the Central Criminal Court. Et vide post, p. 297, as to recognizances after a conviction for felony or misdemeanor.

[of the recognizance may be to keep the peace for a certain period, not dependant on any appearance in court (g). Or if it be for the good behaviour, then on condition that the party bound 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 (h): and if the condition of such recognizance be broken, by any breach of the peace in the one case; or by any misbehaviour, in the other; the recognizance becomes forfeited or absolute; and the party and his sureties become the Crown's absolute debtors, for the several sums in which they are respectively bound (¿).

Any justices of the peace, by virtue of their commission (and also those ex officio conservators of the peace, mentioned in a former volume,) may demand such security according to their own discretion (k): or it may be granted at the request of any subject, upon due cause shown,— provided such demandant be under the Crown's protection for which reason it has been formerly doubted whether Jews, pagans, or persons convicted of a præmunire, were entitled thereto (1). Or if the justice is averse to act, it may be obtained by a mandatory writ, called a supplicavit,—which will compel the justice to act as a ministerial, and not as a judicial, officer; and he must make a return of such writ, specifying his compliance, under his hand and seal (m). But this writ is seldom

(g) Where taken for appearance in court (as it usually is), the justice must, by 3 Hen. 7, c. 1, certify the recognizance to the next session, there to remain of record. See Willis v. Bridges, 2 B. & Ald. 287.

(h) Hawk. P. C. b. 1, c. 60, s. 15. (i) As to the forfeiture of recognizances, the following statutes and cases may be consulted: 3 Geo. 4, c. 46; 4 Geo. 4, c. 37; 7 & 8 Geo. 4, c. 64, s. 31; 3 & 4 Will. 4, c. 99; 2 & 3 Vict. c. 71, s. 45; 20 & 21

Vict. c. 43, s. 13; R. v. Justices of
West Riding, 7 A. & E. 583; R. v.
Twyford, 5 B. & Ad. 430.

(k) As to ex officio conservators of the peace, vide sup. vol. II. p. 642. A secretary of state or privy councillor, however, cannot bind to keep the peace or good behaviour. (11 St. Tr. 317.)

(2) Hawk. P. C. b. 1, c. 60, s. 3. (m) F. N. B. 80; Clavering's case, 2 P. Wms. 202.

[used; for when application is made to the superior courts, they usually take the recognizances there, under the directions of the statute 21 Jac. I. c. 8.] And in this case, as well as where application is made to the court of quarter sessions, it is founded upon articles first exhibited in court, and supported by the oath of the exhibitant (n); the truth of which articles cannot be controverted (o). But where the parties live in the country at a distance from London, the Queen's Bench will not in general entertain an application of this description; which it is usual, in such case, to make to a justice of the peace in the neighbourhood, or to the court of quarter sessions (p). [A peer or peeress, however, cannot be bound over either by a justice or at quarter sessions; though a justice of the peace has power to require sureties of any person under the degree of nobility,-whether he be a fellow justice or other magistrate, or whether he be merely a private man (7). Wives may demand it against their husbands, or husbands (if necessary) against their wives (r). But infants ought to find security by their friends only, and not to be bound themselves; for they are incapable of engaging themselves to answer any debt; which, as we have observed, is the nature of these recognizances or acknowledgments.

Thus far, what has been said is applicable to both species of recognizances: for the peace, and for the good behaviour. But as these two species of securities are in some respects different,-especially as to the cause of granting or the means of forfeiting them,-it may be useful next to consider them separately.

1. Any justice of the peace may ex officio bind by recognizances, with sureties to keep the peace, all who in his presence make any affray, or threaten to kill or beat

(n) See Ex parte Williams, M'Clel. 493; 12 Price, 673; Regina v. Mallinson, 1 L. M. & P. 619.

(0) R. v. Doharty, 13 East, 171.

(p) R. v. Waite, 2 Burr. 780; Chitty's Burn, Surety of the Peace. (2) Hawk. P. C. b. 1, c. 60, s. 5. (r) Sim's case, 2 Stra. 1207.

and

[one another; or who contend together with hot and angry words; or go about with unusual weapons or attendance, to the terror of the people.. He may also bind all such as 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 recognizances (s). 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 every justice of the peace is bound to grant such surety, 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 (t); and will also further swear that he does not require such surety out of malice, or for mere vexation (u). 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 (x).] 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,—provided 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

(8) Hawk. P. C. b. 1, c. 60, s. 1. (t) See Ex parte Hulse, 21 L. J. (M. C.) 21.

(u) Hawk. P. C. ubi sup. s. 8. (a) Ibid. s. 9. See Prickett v. Gratrex, 8 Q. B. 1020.

[species of offences which were mentioned as crimes against the 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 with a wilful breach of the peace, is no forfeiture of the recognizance (y). 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 (z).

2. The other species-viz. a recognizance, with suretics, 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 are 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

(y) Hawk. P. C. b. 1, c. 60, s. 25.

(~) Ibid. s. 22.

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