of the peace, and kept to hard labour in the interim: and may be further punished, if convicted at the sessions, with imprisonment and hard labour for one year, and with whipping, except in the case of females (e). 66 even formidable, to most of the "states of Europe. Hence they 66 were expelled from France in the 'year 1560, and from Spain in 1591 "And the government in England "took the alarm much earlier; for "in 1530 they are described by "statute 22 Hen. 8, c. 10, as out"landish people calling themselves "Egyptians, using no craft nor feat "of merchandize, who have come "into this realm, and gone from "shire to shire, and place to place, "in great company, and used great "subtle and crafty means to deceive "the people; bearing them in hand, "that they by palmestry could tell men and women's fortunes; and 66 so, many times, by craft and sub"tilty have deceived the people of "their money; and also have com"mitted many heinous felonies and "robberies." Much more recent information, however, as to the origin and history of the Gypsies, will be found in the work of Mr. Borrow, called "Zincali," published in 1841. (e) By 5 Geo. 4, c. 83, s. 13, houses of reception for travellers, may be searched for vagrants, &c. and the suspected parties may be carried before a magistrate. VOL. IV. BB CHAPTER XIII. OF THE MEANS OF PREVENTING OFFENCES. も } [WE are now arrived at the fifth general branch or head, under which we were to consider the subject of this Book of our Commentaries (a); viz., the means of preventing the commission of crimes and misdemeanors: 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 (b); the execution of which, though necessary, and in its consequence a species of mercy to the commonwealth, is always attended with many harsh and disagreeable cir cumstances. This preventive justice consists of 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 peace; or for their good behaviour.] [By the Saxon constitutions these sureties were always at hand, by means of King Alfred's wise institution of decennaries or frank pledges; wherein, as has more than once been observed, the whole neighbourhood, or tything, of freemen were mutually pledges for each other's good behaviour (c). 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 (a) Vide sup. p. 36. (c) Vide sup. vol. 1. p. 127. [and special securities for their future conduct; of which we find mention in the laws of King Edward the Confessor; "tradet fidejussores de pace et legalitate tuendâ (d)."] This security is either for keeping the peace, or for good behaviour; and [consists in being bound with one or more securities in a recognizance or obligation] to the Crown, [and taken in some court, or by some judicial officer (e); whereby the party acknowledges himself to be indebted to the Crown in the sum required, (for instance 1001.,) with condition to be void and of none effect if he shall appear in court on such a day, and in the mean time shall keep the peace either generally, towards the sovereign and all his liege people; or particularly also, with regard to the person who craves the security.] Or, on condition so to keep the peace for a certain period, not dependant on any appearance in court (g). [Or, if it be (d) Cap. 18. It is said in Willis v. Bridges, 2 B. & Ald. 287, that the authority of a justice of the peace, to take security for the peace, appears to have had its origin in stat. 1 Edw. 3, st. 2, c. 16; and that this authority is more fully set forth in 34 Edw. 3, s. 1. (e) As to recognizances generally, vide sup. vol. II. p. 142. It may be remarked here, that in all cases where a justice of the peace is authorized to bind a person, or make him give security, he may do so by recognizance. (2 Arch. Just. 350.) And such cases may arise, under other circumstances than those mentioned in the text. Thus, the justice or justices before whom any person has been charged with any indictable offence, and witnesses in support of such charge have been examined, may bind, by recognizance, the prosecutor and every such witness to prosecute and give evidence. (See 11 & 12 Vict. c. 42, ss. 20, 21, 22, 23, 34.) And in the case of any charge or complaint of any offence punishable by way of summary conviction, the justices may also so bind over the defendant to appear at the hearing. (See 11 & 12 Vict. c. 43, ss. 3, 9, 13, 16, 20.) See also 19 & 20 Vict. c. 16, ss. 8-10, 22, 23, and 25 & 26 Vict. c. 65, ss. 9, 17, as to recognizances in cases where an indictment or inquisition has been removed for trial to the Central Criminal Court. Et vide post, p. 377, as to recognizances after conviction for felony or misdemeanor. As to the forfeiture of recognizances, the following statutes and cases may be consulted, 3 Geo. 4, c. 46; 4 Geo. 4, c. 37; 7 & 8 Geo. 4, c. 64, s. 31; 3 & 4 Will, 4, c. 99; 2 & 3 Vict. c. 71, s. 45; 20 & 21 Vict. c. 43, s. 13; R. v. Justices of West Riding, 7 A. & E. 583; R. v. Twyford, 5 B. & Ad. 430. (g) Where taken for appearance [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 (h): and if the condition of such recognizance be broken, by any breach of the peace in the one case; or by any misbehaviour, in the other; the recognizance becomes forfeited or absolute;] and the party and his sureties become the Crown's absolute debtors, for the several sums in which they are respectively bound. [Any justices of the peace, by virtue of their commission (and also those ex officio conservators of the peace, mentioned in a former volume,) may demand such security according to their own discretion (i): or it may be granted at the request of any subject, upon due cause shown,-provided such demandant be under the Crown's protection for which reason it has been formerly doubted whether Jews, pagans, or persons convicted of a præmunire, were entitled thereto (k). 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 Queen'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 of such writ, specifying his compliance, under his hand and seal (1). 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 in this case, as well as where application is made to the court of quarter sessions, it is founded upon articles first exhibited in court, and in court (as it usually is), the jus- 15. (i) As to ex officio conservators of the peace, vide sup. vol. 11. p. 663. A secretary of state or privy councillor, however, cannot bind to keep the peace or good behaviour. (11 St. Tr. 317.) (k) Hawk. P. C. b. 1, c. 60, s. 3. (2) F. N. B. 80; Clavering's case, 2 P. Wms. 202. supported by the oath of the exhibitant (m); the truth of which articles cannot be controverted (n). But where the parties live in the country at a distance from London, the Court of Queen's Bench will not in general entertain an application of this description; which it is usual, in such case, to make to a justice of the peace in the neighbourhood, or to the court of quarter sessions (o). A peer or peeress, however, [cannot be bound over in any other place than the Courts of Queen's Bench or Chancery; though a justice of the peace has a power to require 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 private man (p). Wives may demand it against their husbands, or husbands (if necessary) against their wives (q). But femes covert, and infants, 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.] Thus far, what has been said is applicable to both species of recognizances: for the peace, and for the good behaviour. [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,-it may be useful next to consider them separately. 1. Any justice of the peace may ex officio bind] by recognizances, with sureties to keep the peace, all [who in his presence make any affray, or theaten to kill or beat one another; or who contend together with hot and angry words; or go about with unusual weapons or attendance, to the terror of the people. He may also bind all such as (m) See Ex parte Williams, M'Clel. 493; 12 Price, 673; Re. gina v. Mallinson, 1 L. M. & P. 619. (n) R. v. Doharty, 13 East, 171. (0) R. v. Waite, 2 Burr. 780; Chitty's Burn, Surety of the Peace. (p) Hawk. P. C. b. 1, c. 60, s. 5. (2) Sim's case, 2 Stra. 1207. |