Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of the Means of Preventing Offenses
WE are now arrived at the fifth general branch or head, under which I proposed to consider the subject of this book of our commentaries; viz. the means of preventing the commission of crimes and misdemeanors. And really it is an honor, and almost a singular one, to our English laws, that they furnish a title of this sort: since preventive justice is upon every principle, of reason, of humanity, and of sound policy, preferable in all respects to punishing justice;1 the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances.
THIS preventive justice consists in obliging those persons, whom there is probable ground to suspect of future misbehavior, to stipulate with and to give full assurance to the public, that such offense as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good behavior. This requisition of sureties has been several times mentioned before, as part of the penalty inflicted upon such as have been guilty of certain gross misdemeanors: but there also it must be understood rather as a caution against the repetition of the offense, than any immediate pain or punishment. And indeed, if we consider all human punishments in a large and extended view, we shall find them all rather calculated to prevent future crimes, than to expiate the past: since, as was observed in a former chapter,2 all punishments inflicted by temporal laws may be classed under three heads; such as tend to the amendment of the offender himself, or to deprive him of any power to do future mischief, or to deter others by his example: all of which conduce to one and the same end, of preventing future crimes, whether that be effected by amendment, disability, or example. But the caution, which we speak of at present, is such as is intended merely for prevention, without any crime actually committed by the party, but arising only from a probable suspicion, that some crime is intended or likely to happen; and consequently it is not meant as any degree of punishment, unless perhaps for a man’s imprudence in giving just ground of apprehension.
By the Saxon constitution these sureties were always at hand, by means of king Alfred’s wise institution of decennaries or frankpledges; wherein, as has more than once been observed,3 the whole neighborhood or tithing of freemen were mutually pledges for each others good behavior. But, this great and general security being now fallen into disuse and neglected, there has 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;4 “tradat fidejussores de pace et legalitate tuenda.” Let us therefore consider, first, what this security is; next, who may take or demand it; and, lastly, how it may be discharged.
1. 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 acknowledge themselves to be indebted to the crown in the sum required; (for instance 100£) 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 behavior, then on condition that he shall demean and behave himself well, (or be of good behavior) either generally or specially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a justice of the peace, must be certified to the next sessions, in pursuance of the statute 3 Hen. VII. c. 1. and if the condition of such recognizance be broken, by any breach of the peace in the one case, or any misbehavior in the other, the recognizance becomes forfeited or absolute; and, being estreated or extracted (taken our from among the other records) and sent up to the exchequer, the party and his sureties, having now become the king’s absolute debtors, are sued for the several sums in which they are respectively bound.
2. 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 volume5may 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; for which reason it has been formerly doubted, whether Jews, Pagans, or persons convicted of a praemunire, were entitled thereto.6 Or, if the justice is averse to act, it may be granted by a mandatory writ, called a supplicavit, issuing out of the court of king’s bench or chancery; which will compel the justice to act, as a ministerial and not as a judicial officer: and he must make a return to such writ, specifying his compliance, under his hand and seal.7 But this writ is seldom 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 indeed a peer or peeress cannot be bound over in any other place, than the courts of king’s bench or chancery: though a justice of the peace has a power to require sureties of any other person, being compos mentis and under the degree of nobility, whether he be a fellow justice or other magistrate, or whether he be merely a private man.8 Wives may demand it against their husbands; or husbands, if necessary, against their wives.9 But feme-coverts, and infants under age, 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 observed, is the nature of these recognizances or acknowledgments.
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 if 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.10
THUS far what has been said is applicable to both species of recognizances, for the peace, and for the good behavior; de pace, et legalitate, tuenda, as expressed in the laws of king Edward. 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; 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 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 his 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.11 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: 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 farther swear, that he does not require such surety out of malice or for mere vexation.12 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.13
2. SUCH recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault, or meance, 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 offenses 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.14 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 heat and passion) unless they amount to a challenge to fight.15
THE other species of recognizance, with sureties, is for the good abearance, or good behavior. This includes security for the peace, and somewhat more: we will therefore examine it in the same manner as the other.
1. FIRST then, the justices are empowered by the statute 34 Edw III. c. 1. to bind over to bind over to the good behavior towards the king and his people, all them that be not of good same, 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 held that a man may be bound to his good behavior 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 wade on the night; common drunkards; whoremasters; the putative fathers of bastards; cheats; idle vagabonds; and other persons, whose misbehavior may reasonably bring them within the general words of the statute, of so great a latitude, as leaves 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.16
2. A RECOGNIZANCE for the good behavior 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 misbehavior, which the recognizance was intended to prevent. But not by barely giving fresh cause of suspicion of that which perhaps may never actually happen:17 for, though it is just to compel suspected persons to give security to the public against misbehavior 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.
1. Beccar. ch. 41.
2. See pag. 11.
3. See Vol. I. pag. 113.
4. Cap. 18.
5. See Vol. I. pag. 350.
6. 1 Hawk. P. C. 126.
7. F. N. B. 80. 2 P. Wms. 202.
8. 1 Hawk. P. C. 127.
9. 2 Stra. 1207.
10. 1 Hawk. P. C. 127.
11. 1 Hawk. P. C. 126.
12. Ibid. 127.
13. Ibid. 128.
14. Ibid. 131.
15. 1 Hawk. P. C. 130.
16. Ibid. 132.
17. 1 Hawk. P. C. 133.