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CHAPTER THE EIGHTEENT
OF THE MEANS OF PREVENTING
W E 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 misdemesnors. And really it is an honour, 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; 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 a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges or securities for keeping the peacë, or for their good behaviour. This requisition of sureties has been several times mentioned before, as part of the penalty inflicted úpon such as have been guilty of certain gross inisdemesnors : but there also it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment. And indeed, if we consider all human pu: " 23 nishments in a large and extended view, we shall find them 2527 all rather calculated to prevent future crimes, than to expiate the past : since, as was observed in a former chapter...all.pu
• Beccar. ch. 41. :::." See pag. 11.
nishments 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 can 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, the whole neighbourhood or tithing of freemen were mutually pledges for each other's good behaviour. 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 confessord;(1) “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 securities, 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 1001.) 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 shell keep the ( 253 ) peace; either generally, towards the king and all his liege
people; or particularly also, with regard to the person, who See Vol. I. pag. 114.
(1) See Vol. I. p. 66.
craves the security. Or, if it be for the good behaviour, then on condition that he 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. 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 misbehaviour in the other, the recognizance, becomes forfeited or absolute; and being estreated or extracted (taken out 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 volume, may demand such security according to their own discretion; or it may be granted at the request of any subject, upon due cause shewn, 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 præmunire were entitled thereto. 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 8. 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 re- [ 254 ) quire 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 privatę man ". Wives may demand it against their husbands : or husbands,
• See Vol. I. pag. 350.
& F. N.B. 80. 2 P.Wms. 202.
i Hawk. P.C. c. 60. $5.
if necessary, against their wives. 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. (2)
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 in case 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 k.
Thus far what has been said is applicable to both species of recognizances, for the peace, and for the good behaviour : 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 shew 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 presence make any affray; or
threaten to kill or beat another; or contend together with [ 255 ) 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 1 2 Stra. 1207.
* 1 Hawk, P.C. c.60. $17.
(2) The truth of the facts stated in the application is taken for granted, unless upon the face of it they appear manifestly to be false, and the party who is applied against is not at liberty by his own affidavit, or those of other persons, to contradict them and prove their falsehood. But as the application must be verified by oath, he has an opportunity of indicting the applicant for perjury, and if he succeeds in that prosecution, this will be a ground for the court to discharge the security. R. v. Doherty, 13 Easi's R. 171.
before him by the constable for a breach of peace in his presence; and all such persons as, having been before bound to the peace, have broken it and forfeited their recognizances k. Also, wherever any private man hath 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 shew 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 further swear, that he does not require such surety out of malice or for mere vexation?. 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 be immediately committed till he does m.
2. Such recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault, or menace, 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 offences 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". 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 heat and passion,) unless they amount [ 266 1 to a challenge to fight .
· The other species of recognizance, with sureties, is for the good abearance or good behaviour. This includes security for * -1.Hawk. P.C. c. 60. $ 1..
Ibid. $ 25. Ibid. $ 6, 7.
• Ibid. $ 22. m Ibid. $ 9. ,