seemeth the justice may make his liberate or warrant for the delivery of such prisoner, for, after such death, there seemeth no cause to continue the other in prison.

Also, any justice of the peace may, upon the offer of such prisoner, take surety of him for the peace, and may thereupon. deliver him. Dalt. Justice, 389.

9. Of the recognizance of witnesses.

When any person shall be recognized by any judge or justice for keeping the peace, or for good behavior, or committed to jail for neglecting or refusing to give a recognizance with sufficient sureties, such judge or justice of the peace shall also take recognizance for the appearance of all witnesses at the next term of the circuit court in the proper county. Gale's Stat., 237.

2. SURETY FOR THE GOOD BEHAVIOR.

A man may be compelled to find sureties both for the good behavior and for the peace; and yet the good behavior includeth the peace, and he that is bound to the good behavior is therein also bound to the peace. 4 Burn's Justice, 277.

This surety for the good behavior being of near affinity to surety for the peace, both as to the manner in which it is taken, superseded, and discharged, it seems not to require a particular consideration, except as to these two points:

1. For what misbehavior it is to be required; 2. For what it shall be forfeited.

1. For what misbehavior it is to be required.

By the act of January 6, 1827, any judge or justice of the peace is authorized "to cause to come before them or any of them, all persons who shall threaten to break the peace or shall use threats against any person within this state, concerning his or her body, or threaten to injure his or her property, or the property of any person whatever; and also all such persons as are not of good fame, and the said judge or justice of the peace being satisfied by the oath of one or more witnesses of his or her bad character, or that he or she had used threats as aforesaid, shall cause such person or persons to give good security for the peace, or for their good behavior towards all the people in the state, and particularly towards the individual threatened." Gale's Stat., 237.

It doth not appear that the conservators of the peace at common law had any power as touching the good behavior further than as it had a relation to the peace, and not as it is contradistinguished from it. 4 Burn's Justice, 277.

It is upon the broad construction of the statute of 34 Ed. III., which authorizes justices of the peace "to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprize of their good behavior," that the sense of it has been extended not only to offences immediately relating to the peace, but to divers mischiefs not directly tending to a breach of the peace.

In the construction thereof, Mr. Hawkins says: There seem to have been some opinions, that the statutes speaking of those that be not of good fame, mean only such as are defamed and justly suspected that they intend to break the peace, and that it doth not any way extend to those who are guilty of other misbehaviors not relating to the peace. But this seems much too narrow a construction, since the above mentioned expression of persons of evil fame, in common understanding, as properly includes persons of scandalous behavior in other respects, as those who, by their quarrelsome behavior, give just suspicion of their readiness to break the peace; and, accordingly, it seems always to have been the better opinion that a man may be bound to his good behavior for many causes of scandal, which give him a bad fame as being contrary to good manners only, as for haunting bawdy houses with women of bad fame, or for keeping bad women in his own house, or for speaking words of contempt of an inferior magistrate, as a justice of the peace or mayor, though he be not then in the actual execution of his office, or of any inferior officer of justice, or a constable, and such like, being in the actual execution of his office.

However, it seems the better opinion that no one ought to be bound to the good behaviour for any rash, quarrelsome, or unmanly words, unless they either directly tend to a breach of the peace or to scandalize the government by abusing those who are intrusted by it with the administration of justice, or to deter an officer from doing his duty, and, therefore, it seems that he who barely calls another rogue, rascal, or teller of lies, or drunkard, ought not for such cause to be bound to the good behavior.

However, says he, I cannot find any precise rules for the direction of a magistrate in this respect, and, therefore, am inclined to think that he has a discretionary power to take such surety of all those whom he shall have just cause to suspect to be dangerous, quarrelsome, or scandalous; as of those who sleep in the day and go abroad in the night, and of such as keep suspicious company, and of such as are generally suspected to be robbers, and the like, and of eavesdroppers and common drunkards, and all other persons whose misbehavior may reasonably be intended to bring them within the meaning of the statute, as persons of evil fame who, being described by an expression of so great latitude, seem in a great measure to be left to the judgment of the magistrate. But, if he commit one for the want of sureties, he must show the cause with con

venient certainty. 1 Hawk., 132. 4 Bl. Com., 256. 6 Buc. Ab.,

441.

Our statute seems to have conferred upon justices of the peace the power of requiring surety for the good behavior from all such persons as are not of good fame, as distinguished from the common law power of conservators of the peace for requiring surety of the peace.

It appears that the justice of the peace is to cause such person or persons as are not of good fame, on being satisfied by the oath of one or more witnesses of his or her bad character, to give good security of their good behavior towards all the people of this state, and particularly towards the individual threatened. Gale's Stat., 237.

Yet there are many cases which have been held to be within the meaning of the words, not of good fume, where there has been no threat against an individual or his property, or acts directly tending to a breach of the peace. In these cases it was probably intended by the statute that the justice should recognize such persons for their good behavior towards the people of the state generally.

It is said by Mr. Dalton, that the surety of the good behavior is to be granted at the suit of divers, and those being men of credit, and to provide for the safety of many; whereas the surety of the peace is usually granted at the request of one, and for the preservation of the peace chiefly towards one; yet the surety of good behavior may be granted at the suit of some one person. Dalt. Justice, 409.

2. For what it shall be forfeited.

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. 4 Bl. Com., 256.

He who is bound to the good behavior ought to demean himself well in his carriage and in his company, not doing anything which shall be a cause of breach of the peace, or to put the people in fear, dread, or trouble; and so shall be intended of all things which concern the peace, but not in misdoing of other things which touch not the peace. Dalt. Justice, 408. 4 Burn's Justice, 299.

It has been laid down as a general rule, that whatever will be a good cause to bind a man to his good behavior, will forfeit a recognizance for it; yet this has since been denied, and indeed does by no means seem to be maintainable, because the statute, in ordering persons of evil fame to be bound in this manner, seems, in many cases, chiefly to regard the prevention of that mischief which they may justly be suspected to be likely to do, and in that respect require them to secure the public from that danger which may be probably apprehended from their future behavior, whether any actual crime can be

proved upon them or not; and it would be extremely hard, in such cases, to make persons forfeit their recognizance who yet may justly be compellable to give one, as those who keep suspicious company, or those who spend much money idly, without having any visible means of getting it honestly, or those who lie under a general suspicion of being rogues, and the like. 1 Hawk., 132.

However, it seems that such a recognizance shall not only be forfeited for such actual breach of the peace for which a recognizance for the peace may be forfeited; but, also, for going armed with great numbers to the terror of the people, or speaking words tending to sedition: and, also, for all such actual misbehaviors which are intended to be prevented by such a recognizance, but not barely giving cause of suspicion of what perhaps may never happen. 1 Hawk., 133.

Form of warrant for the peace.

State of Illinois,

La Salle county, ss. The people of the state of Illinois to any constable of the said county:

Whereas, A. B. of Ottawa, in the said county, hath this day personally appeared before Jabez Fitch, Esquire, one of the justices of the peace in and for the said county, and made oath that he is afraid that C. D. will beat (wound, maim, or kill) him, for that the said C. D. hath lately assaulted him with a large knife and threatened to plunge it through his heart, and to kill him at any rate, and hath demanded security for the peace against the said C. D., and the said justice of the peace being satisfied by the oath of the said A. B. that the said C. D. has used threats as aforesaid, and that there is just cause to fear the execution thereof by him: we, therefore, command you that, immediately upon the receipt hereof, you bring the said C. D. before the said justice, at his office in Ottawa in said. county, to give good and sufficient security, as well for his personal appearance at the next term of the circuit court to be held in and for said county, on the first day thereof, as also for his keeping the peace in the mean time towards all the people of this state, and particularly towards the said A. B. Witness, the said Jabez Fitch, Esquire, at Ottawa, in the said county, the day of

18

Form of warrant for good behavior.

State of Illinois,

Jabez Fitch.

La Salle county, S ss. The people of the state of Illinois to any constable of the said county:

Whereas, A. B. hath this day personally appeared before Jabez Fitch, Esquire, one of the justices of the peace in and for said county, and made oath that he is afraid that C. D., of

in said county, will burn his house, [or "kill his cattle," or other injury threatened to the property according to the facts,] for that the said C. D. has lately threatened to burn his house, [or "kill his cattle," &c.] and hath demanded security for the good behavior against the said C. D., and the said justice of the peace being satisfied by the oath of the said A. B. that the said C. D. has used threats as aforesaid, and that there is just cause to fear the execution thereof by him:

We, therefore, command you that, immediately upon receipt hereof, you bring the said C. D. before the said justice in Ottawa, in said county, to give good and sufficient security as well for his personal appearance at the next term of the circuit court to be held in said county, on the first day thereof, as also for his being of good behavior in the meantime towards all the people of this state, and particularly towards the said C. D. Witness, the said Jabez Fitch, Esquire, at Ottawa, in the said county, the

day of

18

Jabez Fitch.

Form of warrant for peace or good behavior on oath of two or more

State of Illinois,

witnesses.

La Salle county, ss. The people of the state of Illinois to any constable of the said county:

Whereas, A. B. hath this day personally appeared before Jabez Fitch, Esquire, one of the justices of the peace in and for the said county, and made oath that he is afraid that the said C. D. will beat him, [wound, maim, kill, or do him some bodily hurt,] for that the said C. D. hath lately threatened to beat him, [wound, maim, kill, or do him some bodily hurt,] and hath demanded surety for the peace (or "for the good behavior") against the said C. D; (or "that he is afraid that the said C. D. will "burn his house" or "kill his cattle," for that the said C. D. hath lately threatened to "burn his house" or "kill his cattle," and hath demanded security for the good behavior against the said C. D.") And the said justice of the peace being satistisfied, by the oaths of the said A. B., and of G. H. and I. J., that the said C. D. has used threats as aforesaid, and that there is just cause to fear the execution thereof:

We, therefore, command you that, immediately upon the receipt hereof, you bring the said C. D. before the said justice, at his office in the town of Ollawa, in the said county, or before some other justice of the peace of the said county, to give good and sufficient security, as well for his personal appearance at the next term of the circuit court, to be held in said county, on the first day thereof, as, also, for his keeping the peace, (or "for his being of good behavior,") in the mean time, towards all the people in the state, and, particularly, towards the said A. B. Witness, the said Jabez Fitch, Esquire, at Ottawa, in the said county, the day of

18 Jabez Fitch.