The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER IX.

Of the Direct Means Used by the Law to Prevent Offences.

I should now, according to my general plan, “point out the different steps, prescribed by the law, for apprehending, detaining, trying, and punishing offenders.” But it will be proper first to consider a short, though a very interesting, title of the criminal law—the direct means which it uses to prevent offences.

These are, security for the peace; security for the good behaviour; and the peaceful, but active and authoritative interposition of every citizen, much more of every publick officer of peace, to prevent the commission of threatened, or the completion of inchoate crimes.

1. Security for the peace consists in being bound, alone, or with one or more sureties, in an obligation for an ascertained sum, with a condition subjoined that the 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.b 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.c

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 of another, 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.e

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 suspect as 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.

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;g 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 power of felons.”

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 passage is very remarkable, 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

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.j

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.l

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 is immaterial whether they were or were not commanded to render their service upon the occasion. This peculiar protection of the law extends still farther. It reaches to private persons who, though no minister of justice be present, interpose for preventing mischief in the case of an affray. They are in the discharge of a duty which the law requires. The law is their warrant; and they may justly be considered as persons employed in the publick service, and in the advancement of justice.m

If so, in the case of an affray, in which, on each side, the same disposition is shown; much more so, in a case of premeditated, concerted, planned, prepared, riotous, felonious, and treasonable outrage, on one side—connived at, perhaps countenanced, by those in the administration of the government. In such a case, the legal duty, the legal authority, and the legal protection operate with tenfold energy and force. In such a case, the law may well be said to throw herself, without reserve, upon the arms of the citizens. In such cases, the citizens, with open arms, are bound to receive her, and to give her that protection, which, in return, she confers upon them.

The application of this important principle of preventive justice is admirably fitted to small, as well as to the greatest occasions. If it was strictly made upon all occasions, the benefits redounding to society would be immense. The petulant ill nature of the boy, the quarrelsome temper of the man, the rapacious aim of the robber, and the malignant disposition of the assassin, would be immediately checked in their operations. The principles themselves, unsupplied with fuel to inflame them, would, at last, be extinguished.

Thus much for the means, which the law employs directly for the benevolent purpose of preventing crimes.

[a. ]1. Haw. 129. 4. Bl. Com. 249.

[b. ]1. Haw. 127.

[c. ]Id. 126.

[d. ]Id. 128.

[e. ]1. Haw. 130. 131.

[f. ]Id. 129. 131.

[g. ]1. Reev. 442.

[h. ]St. 13. Ed. 1. c. 4.

[i. ]4. Cou. Ang. Norm. 487.

[j. ]1. Haw. 131.

[k. ]Ante. p. 1143.

[l. ]Fost. 272.

[m. ]Fost. 309.