On the subject, concerning principals and accessories, as well as on the former, concerning the incapacity of guilt, I cannot now enter into a detail: suffice it here, as it sufficed there, to mention the general principles which will govern and illustrate the particular instances.

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 appre-hending, 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 behavior; and the peaceful, but active and authoritative interposition of every citizen, much more of every public 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.1

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 1 Haw. 129. 4 Bl. Com. 249.

demanding it is, and has just reason to be, under such fear; and that the security is not demanded from malice, nor for vexation.1 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 terror of the citizens.2

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.3

The obligation or recognizance 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 terror 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 behavior includes security for the peace and more; but they are of great affinity with each other and both may be contained in the same recognizance. 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

1 1 Haw. 127.

2 Id. 126.

44 Id. 130, 131.

* Id. 128.

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 behavior, will be a good cause likewise to forfeit his recognizance 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 recognizance, however, may certainly be broken by the commission of any actual misbehavior, for the prevention of which it was taken. 1

3. I have mentioned the peaceful, but active and authoritative interposition of every citizen, much more of every public 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 public officer of peace and justice, the whole authority of the law is vested -to every citizen, much more to every public 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 public 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 favored 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 behavior 11 Haw. 129, 131.

of all, was well adapted to the age of the great Alfred, when commerce was little known, and the habits and rulesof 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 regu lations upon this subject; but they were regulations for enforcing the "ancient police" of the kingdom;1 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.2

The hue and cry was an institution of the common law : the Mirror, 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 2 St. 13 Ed. 1, c. 4.

11 Reev. 442.

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