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OF THE MEANS OF PREVENTING OFFENCES.
E are now arrived at the fifth general branch or head, under which I proposed to confider the subject of this book of our commentaries; viz. the means of preventing the commiffion of crimes and misdemefnors. And really it is an honour, and almost a fingular one, to our English laws, that they furnish a title of this fort: fince preventive justice is upon every principle, of reason, of humanity, and of found policy, preferable in all refpects to punishing justice; the execution of which, though neceffary, and in it's confequences a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances.
THIS preventive justice confifts in obliging those perfons, whom there is probable ground to fufpect of future misbehaviour, to stipulate with and to give full affurance to the public, that fuch offence as is apprehended shall not happen; by finding pledges or fecurities for keeping the peace, or for their good behaviour. This requifition of fureties has been several times mentioned before, as part of the penalty inflicted upon fuch as have been guilty of certain grofs misdemefnors: but there alfo it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment. And
a Beccar. ch. 41.
indeed, if we consider all human punishments in a large and extended view, we fhall find them all rather calculated to prevent future crimes, than to expiate the past: fince, as was observed in a former chapter, all punishments inflicted by temporal laws may be claffed under three heads; fuch 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 fame end, of preventing future crimes, whether that be effected by amendment, difability, or example. But the caution, which we speak of at prefent, is such as is intended merely for prevention, without any crime actually committed by the party, but arifing only from a probable fufpicion, that some crime is intended or likely to happen; and confequently it is not meant as any degree of punishment, unless perhaps for a man's imprudence in giving just ground of apprehenfion.
By the Saxon conftitution these fureties were always at hand, by means of king Alfred's wife inftitution of decennaries or frankpledges; wherein, as has more than once been obferved, the whole neighbourhood or tithing of freemen were mutually pledges for each others good behaviour. But, this great and general fecurity being now fallen into disuse and neglected, there hath fucceeded to it the method of making suspected perfons find particular and special securities for their future conduct: of which we find mention in the laws of king Edward the confefford; "tradat fidejuffores de pace et legalitate tuenda." Let us therefore confider, firft, what this fecurity is; next, who may take or demand it; and, laftly, how it may be discharged.
1. THIS fecurity confifts in being bound, with one or more fureties, in a recognizance or obligation to the king, entered on record, and taken in fome court or by fome judicial-officer; whereby the parties acknowlege themselves to be indebted to the crown in the fum required; (for instance 1007.) with condition
to be void and of none effect, if the party fhall 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 behaviour, then on condition that he shall demean and behave himself well, (or be of good behaviour) either generally or fpecially, for the time therein limited, as for one or more years, or for life. This recognizance, if taken by a juftice of the peace, must be certified to the next feffions, in pursuance of the ftatute 3 Hen. VII. c. 1. and if the condition of fuch recognizance be broken, by any breach of the peace in the one cafe, or any misbehaviour in the other, the recognizance becomes forfeited or absolute; and, being eftreated or extracted (taken out from among the other records) and fent up to the exchequer, the party and his fureties, having now become the king's abfolute debtors, are sued for the several fums in which they are respectively bound.
2. ANY juftices of the peace, by virtue of their commiffion, or those who are ex officio confervators of the peace, as was mentioned in a former volume, may demand fuch fecurity according to their own discretion: or it may be granted at the request of any subject, upon due caufe fhewn, provided fuch demandant be under the king's protection; for which reason it hath been formerly doubted, whether Jews, Pagans, or perfons convicted of a praemunire, were intitled thereto. Or, if the juftice is averse to act, it may be granted by a mandatory writ, called a fupplicavit, iffuing 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 fuch writ, fpecifying his compliance, under his hand and feal. But this writ is feldom ufed: for, when application is made to the fuperior courts, they ufually take the recognizances there, under the directions of the ftatute 21 Jac. I. c. 8. And indeed a peer or
• See Vol. I. pag. 350.
f 1 Hawk. P. C. 126.
F. N. B. 80. 2 P. Wms, 202.
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 fureties of any other perfon, being compos mentis and under the degree of nobility, whether he be a fellow justice or other magiftrate, or whether he be merely a private man h. Wives may demand it against their husbands; or hufbands, if neceffary, against their wives. But feme-coverts, and infants under age, ought to find fecurity by their friends only, and not to be bound themselves: for they are incapable of engaging themselves to answer any debt; which, as we obferved, is the nature of these recognizances or acknowlegements.
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 feffions, affifes, or king's bench) if they fee fufficient caufe: 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 i.
THUS far what has been faid is applicable to both fpecies of recognizances, for the peace, and for the good behaviour; de pace, et legalitate, tuenda, as expreffed in the laws of king Edward. But as these two species of fecurities are in fome refpects different, especially as to the cause of granting, or the means of forfeiting them; I fhall now confider them separately and first, shall shew for what cause fuch a recognizance, with fureties 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 prefence make any affray; or threaten to kill or beat another; or contend together with hot
h 1 Hawk. P. C. 127.
j 2 Stra. 1207.
ii Hawk, P. C. 129.
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 him by the constable for a breach of the peace in his presence; and all fuch perfons, as, having been before bound to the peace, have broken it and forfeited their recognizancesk. Alfo, 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 fo to do; he may demand furety 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 fo, by reason of the other's menaces, attempts, or having lain in wait for him, and will also farther fwear, that he does not require fuch furety out of malice or for mere vexation'. This is called fwearing the peace against another: and, if the party does not find fuch fureties, as the justice in his discretion shall require, he may immediately be committed till he does ".
2. SUCH recognizance for keeping the peace, when given, may be forfeited by any actual violence, or even an assault, or menace, to the perfon of him who demanded it, if it be a fpecial 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 fpecies 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, fo as to forfeit one's recognizance