at the day named, and if the complainant do not appear, and there is no charge of any breach, he is then entitled to his discharge; 1 and when a party is committed for default of finding sureties, he is not entitled to demand a copy of the examination, for the purpose of bringing an action for malicious prosecution, for that right is confined to cases where he is about to be tried for a specific offence.2

Surety of the peace required in some cases by statute.-For the reasons afterwards stated it is not now usual for justices to entertain an application to swear a party to his good behaviour as a substantive proceeding; nevertheless there are exceptions, where by some statute the court is authorised in substitution for, or in addition to, some other punishment, to compel the party to enter into a recognisance to be of "good behaviour." Those words are often added to the words "to keep the peace," as if they were intended to bear the same meaning. In all such cases, the statute will serve as the justification for requiring the security. Thus, where a person has been convicted of an indictable misdemeanour under the Criminal Consolidation Acts, the court may compel him to enter into recognisance to keep the peace and be of good behaviour." In those statutes the legislature seems plainly to have viewed the words "good behaviour," as having a meaning almost identical with "keeping the peace."

In aggravated assaults on any male child under fourteen or any female, express power is given to the justices on conviction of the offender to bind him over to keep the peace and be of good behaviour for six months after the expiration of the sentence passed. And even in dismissing a charge for a common assault, the justices may see sufficient ground in the evidence for binding over the defendant to keep the peace, though he was not summoned for that matter. Moreover, in all misdemeanours punishable by imprisonment, the rule is laid down, that on conviction the court may order the defendant to give security to keep the peace. And this is frequently added to the other punishment for a riot, a rout, an unlawful assembly, or an affray.6

1 Dalt. c. 120. 2 R. v Herefordshire. 1 Sess. C. 179. 3 24 & 25 Vic. c. 100, § 43. N. S. 547. 5 Dunn v R. 12 Q. B. 1026.

4

L. M. P. 323; 4 New

Exp. Davis, 24 L. T., 6 See post, those heads.

How far surety for good behaviour may be ordered.-The proceeding of binding over a party to keep the peace towards some individual is an intelligible and necessary remedy or precaution, because it points to a definite and precise mischief which it is designed to avert. It is founded on the oath of an individual, that already some overt act or disposition towards personal violence has been manifested, and that if the party is not restrained or cautioned in an emphatic manner, he may do irreparable mischief. But when in somewhat similar circumstances it is thought to extend such jurisdiction into a wider sphere, and to demand "sureties for good behaviour," this involves so vague and shadowy an imputation on the party aimed at, that courts might well hesitate to act upon it. Good behaviour in the view of the law can only mean conduct flowing from a general disposition to observe its directions in their full latitude and detail; and indeed such a frame of mind ought to be frankly expected and presumed in all citizens whatever. If any person manifests a proclivity towards any specific crime, there are, or ought to be, appropriate modes of punishing not only the crime, but any attempt to commit it. All kinds of threats of violence towards the person are fully disposed of, as already described, in the application to swear the peace. To go beyond that and exact sureties for being a good citizen, without reference to any overt step towards a breach of the law, is to travel beyond the proper province of the law into the region of morals, and to seek a kind of specific performance of good conduct, which comes neither within. the category of crime nor any attempt or threat to commit it. It would be time enough to interfere when something has been done sufficiently definite to disturb the general security, which the law throws round every subject of the realm.

Nevertheless, the commission of the peace, under which justices act, in terms authorised the justices to exact sureties for good behaviour as something separate from keeping the peace. It might, indeed, have been excusable for the legislature in the reign of Edward III. to expect some practical value from overawing turbulent characters by enforcing a solemn covenant with the sovereign to be of good behaviour. The primitive usages of life in an age when a police code was

vaguely conceived, when population was scanty, and crimes were only sketched out in outline, and the general sense of security was weak might have allowed of this kind of rude justice. But such a practice is scarcely consistent with modern civilisation, for no punishment or remedy is now left to the arbitrary or paternal discretion of a judge or ministerial officer, and everything which the subject is to avoid, or to be punished for not avoiding, is clearly laid out before his eyes, so that he who runs may read. When the words in the commission of the peace, and the statute of 34 Ed. III., c. 1, on which such commission is founded, are examined, it would rather appear to be the correct construction, that the words "good behaviour" were meant to be merely synonymous with security for the peace. The criminals indicated as then dangerous and of evil fame were rioters, rebels, robbers, and idle vagabonds, and these are so alluded to as to suggest violence to the person as the imminent danger to be apprehended; and all these can be kept under by swearing the peace.

In the time of Lord Coke the judges had arrived at the view, that nothing was included in " good behaviour" which was not included in "keeping the peace," and that whatever tended immediately to the breach of the peace was the test of what was provided against by swearing to good behaviour, as well as swearing the peace. For where a man had been bound by surety for good behaviour, and afterwards said to his complainant "thou art a liar,” “thou art a drunken knave "-these words were deemed not necessarily to import any design to break the peace, and SO were held no breach of good behaviour. Nevertheless, it seems to have been the practice of justices of the peace during some centuries to interpret more or less liberally their powers of imprisoning the subject until he found sureties for good behaviour, and to extend this kind of vigilant repression to persons whose conduct did not cause any breach of the peace, though in other respects suspicious and reprehensible.2 Dalton says that he had as justice once ordered sureties for good behaviour from a man who bought ratsbane and mixed it with corn to poison his neighbour's fowls, and "the whole bench" held

14 Inst. 181; Lamb. 115. 2 Crompt. 121, 126; Fitz. 7.

it a very good reason, and so did the judges of assize in like cases. And the same authority thought this remedy was peculiarly wholesome and suitable against all who resorted to houses of evil-fame or associated with bad Women. At that time, however, a constable, on seeing a man and woman go into a house of ill-fame, was entrusted with such large powers that he could "take company with him and search the house," and if found, could carry both parties to prison or before a justice to find sureties for good behaviour.2 And common haunters of ale-houses, drunkards, gamesters, and nightwalkers could be treated in the same rough fashion, unknown in modern times.

While, therefore, there are old authorities which show, that the justices of the peace magnified very trifling irregularities into serious crimes, and went the length of exercising this delicate jurisdiction against frequenters of houses of ill fame, putative fathers of bastard children, libellers, gamesters, vagabonds, eavesdroppers, and other evil-doers, without respect, apparently, to whether their conduct caused a breach of the peace or not,3 this extreme pressure, whether it was ever justifiable or not, cannot now safely be brought to bear, seeing the policy of the law is to discountenance everything like vague accusation and suspicion as a ground for interfering with the liberty of any man.1 And though so late as the time of Hawkins (in 1716), after some misgivings about the extent

1 Dalt. c. 124.

2 Ibid. 3 Lamb. 115; Pulton, 18; Dalton, c. 123; 1 Hawk. c. 61.

4 A respectable justice of the peace of the early part of James 1. thus discourses complacently on his power of repressing misbehaviour, and advises his brother justices how to act: "You may see admitted by the court (13 Hen. VII.) that if a man in the night season haunt a house that is suspected for bawdry, or use suspicious company, then may the constable arrest him to find surety for his good abearing; for bawdry is not merely a spiritual offence, but mixed and sounding somewhat against the peace of the land. And therefore it shall not be amiss at this day, in my slender opinion, to grant surety of the good abearing against him that is suspected to have begotten a bastard child, to the end that he may be forthcoming when it shall be born; for otherwise there will be no putative father found, when the justices shall, after the birth, come to take order for his punishment."-Lambard, 119. This last crucial difficulty as to putative fathers has been got over tolerably well, but in a different way.--See post, ch. ix.

of the justices' powers, he went the length of saying that he was inclined to think that a justice had a discretionary power to take surety for good behaviour of all those whom he had just cause to suspect to be "dangerous, quarrelsome, or scandalous," it is equally clear in the present day, that if such a doctrine ever was correct, it has long ceased to be so, and the less this ancient process is resorted to in any case whatever, the better, seeing that there is abundance of regular remedies available on all hands for all the pressing evils that can arise, and remedies too, in course of which both sides can be heard fairly out.

Yet

Another reason why this jurisdiction should no longer be exercised is, that when such a recognisance is taken, it is difficult to define what would be a breach of it, and this increases that uncertainty which is justly odious to the law. All the laws must be equally obeyed by a good citizen, and any one breach must be a misbehaviour. it would be impossible to hold that each deviation from the duties of a good citizen was to be visited by double punishment, namely, the forfeiture of the recognisance and the penalty assigned by another procedure to the commission of the illegal act. Justices and offenders would be equally harassed by waging this incessant warfare with an uncertain enemy.

If security for good behaviour can be enforced against libellers.-Much discussion arose towards the end of the last century (as it did also in the matter of surety of the peace) as to the power of courts to enforce sureties for good behaviour against those who publish libels, it being argued that this savoured of tyranny, and was against the liberty of the press. But in 1808, when the question was raised and argued, it was said that the House of Lords had consulted the judges, who unanimously gave their opinion that on judgment for a misdemeanour the court might adjudge the defendant to give security for his good behaviour for a reasonable time.1 In proceedings before judgment there is more doubt. Pratt, C. J., declared that it was unlawful for justices to require sureties for good behaviour from libellers, but this was probably founded on the other part of the case then in question, namely, that

1 R. v Hart, 30 St. Tr. 1131, 1344; 47 Lords J. 271; Dunn v R., 12 Q. B. 1041.