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obligation shall be void, if the party shall, during the time limited, keep the peace towards all the citizens, and particularly towards him, on whose application the security is taken. a
Whenever a person has just cause to fear that another will kill, or beat, or imprison him, or burn his house, or will procure others to do such mischief to his
person or habitation; he may, against such person, demand security for the peace; and every justice of the peace is bound to grant it, when he is satisfied, upon oath, that the party demanding it is, and has just reason to be, under such fear; and that the security is not demanded from malice, nor for vexation. Upon many occasions, a justice of the peace may officially take security for the peace, though no one demand it. He may take it of those who, in his presence, shall make an affray, or shall threaten to kill or beat any person, or shall contend together with hot words, or shall go about with unusual weapons or attendants, to the terrour of the citizens.
If the party to be bound is in the presence of the justice, and will not find such sureties as are required; he may be immediately committed for his disobedience, and until he find them : but if he is absent, he cannot be committed without a warrant to find sureties. This warrant should be under seal, and should mention on whose application, and for what cause, it is granted. d
The obligation or recognisance to keep the peace may be forfeited by any actual violence to the person
1. Haw. 129. 4. Bl. Com. 249.
b 1. Haw. 127.
other, whether done by the party himself, or by others through his procurement : it may be forfeited by any unlawful assembly to the terrour of the citizens; and even by words tending directly to a breach of the peace, as by challenging one to fight, or, in his presence, threatening to beat him. But it is not forfeited by words merely of heat and choler; nor by, a bare trespass on the lands or goods of another, unaccompanied with violence to his person.
2. Security for the good behaviour includes security for the peace and more; but they are of great affinity with each other; and both may be contained in the same recognisance. It is not easy, upon this subject, to find precise rules for the direction of the magistrate : much is left to his own discretion. It seems, however, that he may be justified in demanding this security from those, whose characters he shall have just reason to scandalous, quarrelsome, or dangerous.
It has been said, that whatever is a good cause for binding a man to his good behaviour, will be a good cause likewise to forfeit his recognisance for it. But this rule is too large. One is bound, to prevent what may never happen: he is bound for giving cause of alarm ; not for having done any mischief. His recognisance, however, may certainly be broken by the commission of any actual misbehaviour, for the prevention of which it was taken, f
3. I have mentioned the peaceful, but active and authoritative interposition of every citizen, much more of every publick officer of the peace, as a means for preventing the commission of threatened, and the completion of inchoate crimes. This subject has not received the attention, which it undoubtedly merits ; nor has it been viewed in that striking light, in which it ought to be considered.
c 1. Haw. 130. 131.
f Id, 129. 131.
In every citizen, much more in every publick officer of peace and justice, the whole authority of the law is vested—to every citizen, much more to every publick officer of peace and justice, the whole protection of the law is extended, for the all-important purpose of preventing crimes. From every citizen, much more from every publick officer of peace and justice, the law demands the performance of that duty, in performing which they are clothed with legal authority, and shielded by legal protection.
The preservation of the peace and the security of society has, in every stage of it, been an object peculiarly favoured by the.common law. To accomplish this object, we can trace, through the different periods of society, regulations suited to its different degrees of simplicity, or of rudeness, or of refinement.
The much famed law of decennaries, by which, in small districts, all were reciprocally bound for the good behaviour of all, was well adapted to the age of the great Alfred, when commerce was little known, and the habits and rules of enlarged society were not introduced.
In times more turbulent, precautions for the security of the citizens were taken, more fitted to those turbulent times. The statute of Winchester, made in the thirteenth year of the reign of Edward the first, contains many regulations upon this subject; but they were regulations for enforcing the “ancient police” of the kingdom;; and their design is expressly declared to have been, to prevent the increase of crimes; or, in the language of that day, “to abate the
For the purposes of prevention, it was directed, that, in great walled towns, the gates should be shut from the setting to the rising of the sun : that, during that time, watches, as had been formerly used, should, in proportion to the number of inhabitants, watch continually: that if any stranger passed by, these watches should arrest and detain him till the morning: and that if any one resisted the arrest, hue and cry should be raised; and those, who kept watch, should follow the hue and cry from town to town, till the offender was taken. Every week, or at least every fifteenth day, the bailiffs of towns were obliged to make inquiry concerning all who lodged in the suburbs; and if they found any who lodged or received persons, of whom it was suspected that they were “persons against the peace," they were to do what was right in the matter. h
The hue and cry was an institution of the common law : the Mirrour, speaking of the ancient laws before the conquest, makes express mention of pursuit from town to town at the hue and cry. The
remark, able, and deserves, on many accounts, to be transcribed at large. It is a part of that section which has for its title" the first constitutions ordained by the ancient kings, from King Alfred.” Among others are introduced the following articles—“Every one of the age of fourteen years and upwards shall be ready to kill capital offenders in their notorious crimes, or to pursue them from town to town at hue and cry.” “If they can neither kill nor apprehend them, they shall take care to have them put in the exigent, in order that they may outlaw or banish them in the following manner,” &c. i
1. Reev. 442.
l St. 13. Ed. 1. C. 4.
If a man, who is under a recognisance to keep the peace, beat or fight with one who attempts to kill any stranger; it is not a forfeiture of his recognisance.
If, as we have seen upon a former occasion,k a person who interposes to part the combatants in a sudden affray, and gives notice to them of his friendly intention, be assaulted by them or either of them, and, in the struggle, should happen to kill ; this will be justifiable homicide. On the other hand, if this person be killed by the combatants, or either of them, it will be murder. To preserve the publick peace, and to prevent mischief, it is the duty of every man, in such cases, to interpose.
When the law enjoins a duty, it both protects and authorizes the discharge of it. Ministers of justice, it will be admitted on all hands, are, while in the execution of their offices, under the peculiar protection of the law. Without such protection, the publick peace and tranquillity could not, by any means, be preserved. But this peculiar protection of the law is not confined personally to one, who is a minister of justice: it is extended to all those who come in aid of him, and afford their assistance for the preservation of the peace. Even all those who attend for that purpose are under the same protection. It
i 4. Cou. Ang. Norm. 487.
j 1. Haw. 131.
k Ante. p. 85.86.
i Fost. 272.