Recognizance for the peace may be taken by a single justice period. of premium; but it seems they have the same power so to order which by 32 Geo. 3. c. 57. is expressly given to justices out of session; (i) and such is the general practice. The order made in session must be under the hands and seals of at least four of the justices. (j) The sessions under this act have power, on proof of the misbehaviour of an apprentice, to order him to be corrected by corporal punishment, or by imprisonment and hard labour in the house of correction. (k) §3. OF ARTICLES OF THE PEACE. The consideration of articles of the peace may either come before the sessions on a complaint originally made in court, or in consequence of the party being previously bound by a magistrate to appear at the sessions. It was once contended that a recognizance taken by a single justice to keep the peace, or be of good behaviour, for any certain period, or for life, or without expressing any for an indefinite specific time, and without fixing any certain period for the offender's appearance, was not legal and sufficient; (1) but it appears on all hands to have been the ancient practice, (m) and is supported by the greatest authorities. (n) It is true that it has of late been the more usual, and is considered as the better way, except under very special circumstances, to bind the party against whom the peace is required, to appear at the next session of the peace, and in the mean time to keep the peace to the King and all his liege people, especially to the party claiming the security; and though the recognizance for keeping the peace should be removed by certiorari, it is no discharge of the obligation to appear. (0) The right, however, in an individual magistrate to require securities without restriction as to time, and the other circumstances above referred to, has recently received the most decided confirmation from a decision of the Court of King's Bench. (p) That was an action for assault and false imprisonment of the plaintiff by the defendant, a justice of the peace for the county of Sussex, (i) The King v. Annes, 1 Bott, 574; the King v. Vandeleer, 1 Stra. 69. contra. (j) The King v. Cately, Carth. 198. (k) Hawkesworth v. Hillary, 1 Saund. 313, 4. (1) Even Hawkins speaks doubtfully, Hawk. b. 1. c. 60; the King v. Bowes, 1 T. R. 696. (m) Dalt. c. 119; 2 Hale, c. 136. (n) 4 Bla. Com. 253. (0) Hawk. b. 2. c. 27. (p) Willes v. Brudger, 1 Chit. Rep. 273. tried at Sussex assizes, 1817, and, on a case reserved, afterwards (January, 23d, 1818) argued at Sergeant's Inn Hall, before the judges. The warrant of commitment (on failure of finding sureties) to the house of correction, ran"him safely to keep for the space of two years, unless he shall in the mean time find sureties, &c. for keeping the peace towards our Lord the King, and all his liege people, and especially towards James Martyn Lloyd, (the party demanding sureties,) for the space of two years from the date hereof." The only question raised in this case, with which we have any concern in this place, was contained in the words distinguished by italics; and on that subject, Abbot, C.J., with whom the other judges concurred, delivered his opinion to the following effect: "The authority of a justice of the peace to require, upon due complaint made to him in his judicial character, sureties for the keeping of the peace, and to commit a person to prison for want of such sureties, is not, nor could it be, denied; but it is contended for the plaintiff, that surety can only be required for appearance at the next session, and for keeping the peace in the mean time, &c. whereas the warrant under which the plaintiff was committed, commands his imprisonment for two years, unless in the mean time he shall find sureties for two years from the date of the warrant. The arguments in support of the limited power of justices to bind are principally founded upon stat. 3 Hen. 7. c. 1. at the close of which, after several enactments relating to the duty of coroners, &c. it is ordained that every justice of the peace who shall take any recognizance for the keeping of the peace, do certify, send, or bring, the said recognizance to the next session of the peace, that so the party bound may be called, &c. But the authority of a justice to take surety for the peace, existed long before this statute, and is derived from the commission of the peace, 1 Edw. 3. c. 16; the authority under which is more fully set forth in 34 Edw. 3. c. 1. by which they are to have power to restrain offenders, to arrest and chastise them, and cause them to be imprisoned, &c. according to law; to arrest all that they may find by indictment or suspicion, and to put them in prison; and to take of all them that be not of good fame, sufficient surety and mainprize of their good behaviour towards the King, and his people, &c. These two clauses are perfectly distinct; the former of them relating to persons charged with the actual commission of some offence, when the recognizance is only in the nature of bail, to appear at the session, and answer to any charge that may be preferred Power of jus against them, and in the mean time to keep the peace; but the latter is for taking sureties for such time, and in such sum as the justice shall think (in the exercise of a sound and legal, and not a wilful and arbitrary, discretion) fit and proper. "The power of the justices in session to take surety tices in session. for the peace is derived from the first clause of the commission, by which the power is given to any one justice, and not from the second clause, which relates to the taking and trial of indictments, &c.; therefore, if a single justice cannot take security for a longer period than till the next session, it will be difficult to show that a number of justices assembled in session may take it for a longer time. Better course to the next session; Court to proceed. "". It may in some cases be expedient that the time and amount of the security should be settled by the concurrent sentiments of several persons, rather than by the single opinion of an individual; and therefore we would by no means be understood to disapprove of the usual practice, which is to take security till the next session only. On the other hand, expence and trouble are saved by an adjustment of the whole matter in the first instance; and therefore there may be other cases in which this may be the more convenient course. The present case turns simply upon the legality of the warrant, and we are of opinion that it is legal." After this determination, the authority of a justice to take the recogni- take sureties of the peace out of sessions, can be no longer zance only till doubtful; but, nevertheless, if there be no particular cirand then for the cumstances to make such a private proceeding desirable, the more usual, and apparently the better mode, is to take the recognizance for the appearance of the person complained against at the next general, or general quarter, session of the peace; and in the mean time, for his keeping the peace to the King, and all his Majesty's liege subjects, especially to the complainant." It has been said, that, if the offender be a dangerous person, the binding him only to the next session, is insufficient security; and if he be then called upon anew to give a security for further keeping the peace on account of the original offence, it is punishing a person twice for one offence. But first, it may be answered, that finding sureties of the peace, is merely a proceeding of precaution against the future, and not a punishment for the past, although it be true, that breaches already committed form the ground of apprehension for the future; secondly, even if it be taken in the light of a punishment, the penalty is likely rather to be diminished, than augmented, by this practice; because it gives the prosecutor the option of being satisfied with a security of shorter duration than would otherwise have been, in all probability, required. On the presumption, then, that the course last men- Applicant called tioned has been pursued, the person bound must now be in sessions. called upon his recognizance before the justices in session; the Court may make proclamation, that "if any man can show cause why the peace granted against such a one shall be continued, he shall speak;" and, if no person come to demand the peace against him, or to show cause why it should be continued, then the Court may discharge him. (q) But if a man be bound as aforesaid, and especially to May be conkeep the peace towards a certain person, then, though tinued though such person come not to desire the the party grieved peace may be con- do not appear. tinued, yet the Court, by their discretion, may bind him over till the next session, and that may be to keep the peace against that person only, if they shall think good; for it may be, that the person who first craved the peace is sick, or otherwise prevented, so as he cannot come to that session to demand the continuance of the peace further. If the applicant appear, however, he may then move the Further binding Court to receive articles of the peace against the offender by exhibition of (with which articles, ready drawn on parchment, he should articles. come prepared, in order that they may be delivered to the clerk of the peace), and further to bind him by recognizance to the next session; and so on from session to session, so long as he shall be able to make it appear that his reasonable apprehensions continue. Or the justices may bind him for a certain definite period without reference to any succeeding session, at their discretion, as the individual justice might have done in the first instance. Here let it be observed that a person demanding sureties of the peace (whether it be in the first instance before a single justice for immediate security, or by exhibiting articles before the justices in session) swears only to his Swears only to own apprehensions, of which no other persons can form his own apprean adequate judgment; from which it has been deduced hension. by the judges, in many cases, as a general rule, that articles of the peace cannot be resisted on any ground, except by shewing direct evidence of express malice; such as declarations to that effect; and not implied malice, supported by general reasoning or collateral circumstances; and moreover, that wherever particular facts of violence. are stated by the complainant, it is not permitted for the (1) Dalt, 120. For what cause to be granted. defendant to controvert them; for they must be taken to be true, till negatived through the medium of an appropriate prosecution. (r) Here it will be proper to introduce some notice of what provocations are deemed sufficient cause for demanding sureties of the peace, as well as respecting the persons at whose suit, and against whom they ought to be granted, since these considerations are equally applicable to such demand before justices out of session, and by articles exhibited in session. By the commission of the peace, one or more justices have power "to cause to come before them all those who, to any of the King's people concerning their bodies, or the firing of their houses, have used threats, to find sufficient security for the peace, or their good behaviour, towards the King and his people; and, if they shall refuse to find such security, to cause them in the King's prisons to be safely kept, until they shall find such security." Fear of corporal It seems clear that wherever a person has just cause to hurt, or burning fear that another will burn his house, or do him a corporal the house of ap- hurt, or that he will procure others to do So, he de plicant. may mand the surety of the It also seems that he who is threatened to be imprisoned by another has a right to demand the surety of the peace ; for every unlawful imprisonment is an assault and wrong to the person of a man. And the objection that one wrongfully imprisoned may recover damages in an action, and therefore needs not the surety of the peace, is as strong in the case of battery, as in that of imprisonment; and yet there is no doubt, but that one threatened to be beaten may demand the surety of the peace. (t) But if the justice shall perceive that surety is demanded merely of malice, or for vexation only, without any just cause of fear, it seems he may safely deny it; here, however, the justice shall do well to persuade him, and to shew him the danger of his oath which he is to take; but yet if he will not be persuaded, but will take his oath that he is in fear, where indeed he neither doth fear, nor hath (r) 13 E. R. 171. The three cases from which this doctrine is deduced, are those of Lady Vane, 2 Str. 1202; the Countess of Strathmore's case, 1 T. R. 606; and the King v. Dogherty, 13 East. R. 171. (t) Id. s. 7. (s) Hawk. b. 1. c. 60. s. 6. |