mation and complaint, and to be further dealt with according to law. And be you then there, to certify what you shall have done in the premises. Herein fail not. Given under my hand and seal, the day of in the year of our Lord To the constable of Summons for a witness. county to wit. To the constable of Whereas information hath been made before me, JP, one of the commonwealth's justices of the peace for the said county, that (here recite the offence) and that A W, of in the said county, is a material witness to be examined concerning the same. These are therefore to require you to summon the said A W to appear before in the said county, on me, at in the the day of at the hour of noon of the same day, to testify his knowledge concerning the premises. Herein fail not. Given un der my hand and seal, the day of in the year of our Lord SUNDAY. See SABBATH. SURETY FOR THE PEACE. SURETY for the peace is one of the branches of preventive justice, and consists in obliging those persons whom there is probable ground to suspect of future misbehaviour to stipulate with, and give full as: surances to the public, that such offence as is apprehended shall not, happen, by finding pledges or securities for keeping the peace. 4 Bl. Com. 248. 1. In what cases surety of the peace ought to be taken ex officio. II. For and against whom it ought to be granted. III. For what cause it may be granted. IV. In what manner it shall be granted. V. How a peace warrant should be executed. VI. Form of a recogni zance of the peace. VII. How such recognizance may be forfeited. VIII. How such recognizance may be discharged. IX. Various precedents. J. IN WHAT CASES SURETY FOR THE PEACE OUGHT TO BE TAKEN EX OFFICIO. Any justice of the peace [or conservator of the peace, Leach's Hawk. (7th edit.) vol. ii. p. 4.] may, according to his discretion, bind all thos to the peace, who, in his presence shall make any 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 people; and also all such persons as shall be known to him to be common barrators; and also all those who shall be brought before him by a constable, for a breach of the peace in presence of such constable; and all such persons, who, having been before bound to keep the peace, shall be convicted of having forfeited their recognizance. Haw, B. 1, c. 60, sect. 1. II. FOR AND AGAINST WHOM IT OUHGT TO BE GRANTED. 1. It seems agreed at this day, that all persons whatsoever, under the protection of the commonwealth, being of sane memory, whether they be natural and good citizens, or aliens, or attainted of treason, &c. have a right to demand surety of the peace. Ibid. sect. 2. It is certain that a wife may demand it against her husband, threatening to beat her outrageously, and that a husband may also have it against his wife. Ibid. sect. 4. And if the marriage be disputed, the court will order the recognizance to be drawn so as to suit the fact of the case. 2 Stra. 1231. According to Mr. Dalton, an infant under the age of fourteen years is entitled to this surety. But a person of non sane memory shall neither have it granted for him nor against him upon his own request; but the justice ought to provide for his safety. Dalt. c. 117. 2. There seems to be no doubt, but that it ought, upon just cause of complaint, to be granted by any justice of the peace, against any person whatsoever, being of sane memory, whether he be a magistrate or private person, and whether he be of full age, or under age, &c. Haw. B. 1, c. 60, sect. 5. But feme coverts, and infants under age, ought to find surety by their friends only, and not to be bound themselves; for they are incapable of answering any debt, which is the nature of these recognizances or acknowledgments. 4 Bl. Com. 248. III. FOR WHAT CAUSE IT MAY BE GRANTED. Wherever a person has just cause to fear that another will burn his house, or do him corporal hurt, as by killing or beating him, or that he will procure others to do him such mischief, he may demand the surety of the peace against such person, and that every justice of the peace is bound to grant it, upon the party's giving him satisfaction upon oath, that he is actually under such fear, and that he has just cause to be so, by reason of the other's having threatened to beat him, or laid in wait for that purpose; and that he doth not require it out of malice, or for vexation. Haw. B. 1, ch. 60, sect. 6. Also, it seems the better opinion, 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 imprisonment; and yet there is no doubt, but that one threatened to be beaten may demand the surety of the peace. Ibid. sect. 7. Mr. Dalton recommends great caution in granting surety for the peace, especially where the application seems to arise from malice. He also says, that surety for the peace shall not be granted merely because the applicant is at variance, or in suit, with another: and both Lambard and Dalton think it is not grantable for fear of danger to the complainant's servants or cattle. See Lamb. 83. Dalt. ch. 116. Mr. Dalton thinks, that if a man threatens to beat the wife or child of another, he may demand surety of the peace against him. Dalt. ch. 116. But surety for the peace is grantable only on an apprehension of present or future danger, not for a battery, &c. that is past; in this last case the offender may be indicted. See Dalt. ch. 116. Surety of the peace may be granted to a person, for dread of damage to him and his men, by such as have discord with him. 4 Comy. Dig. 215. IV. IN WHAT MANNER IT SHALL BE GRANTED. It seemeth certain, that if the person to be bound be in the presence of the justice, he may be immediately committed, unless he offer sureties; and from hence it follows a fortiori, that he may be commanded by word of mouth to find sureties, and committed for his disobedience; but it is said, that if he be absent, he cannot be committed without a warrant from some justice of the peace, in order to find sureties, and that such warrant ought to be under seal, and to shew the cause for which it is granted, and at whose suit, and that it may be directed to any indifferent person. Haw. B. 1, ch. 60, sect. 9. The warrant may direct the party to be brought either before the justice himself, who granted it, or before any other justice; but it is most usual to direct the party to be brought before him only; for it is presumed that he has the best knowledge of the fact. 5 Co. 59. The issuing the writ of supplicavit not being among the powers of a justice of the peace (for whose information this work is intended) nothing need here be said of it. See 4 Comy. Dig. 215. V. HOW A PEACE WARRANT SHOULD BE EXE CUTED. 1. It can only be executed by some one of the officers, or persons, to whom it is directed. Haw. B. 1, ch. 60, sect. 11. 2. It seems generally agreed, that where a person authorised by warrant of a justice of the peace to compel a man, who is sheltered in an house, to find sureties for the peace, or good behaviour, is denied quietly to enter into it, he may justify breaking open the doors, in order to take him; but he must first signify to those in the house the cause of his coming, and request them to give him admittance. 2 Hawk. 86. Fost. 321. 3. If the warrant specially direct that the party be brought before the justice who made it, the officer ought not to carry him before any other; but if the warrant be general, to bring him before any justice of such place, the officer has his election to bring him before what jus tice he pleaseth. Haw. B. 1, ch. 60, sect. 12, 13. 4. It is said by Hawkins, Dalton, and Hale, that if the party refuse to go before a justice, or to find sureties, the constable may commit him to jail. See I Hawk. 128. Dalt. ch. 118. 2 H. H. 112. But with due submission to those great authorities, I apprehend that no such power as that contemplated by this kind of warrant is given to constables, either in England or America. For, if it be admitted that he may commit the offender to prison, for a refusal to find sufficient sureties, we must also grant him the power of judging what acts will constitute such refusal, as well as to administer an oath to the securities, in order to judge of their sufficiency or insufficiency; the former might be made an engine of oppression; the latter would evidently be illegal. 5. If the officer do arrest the party, and do not carry him before the justice to find sureties; or if he neglect any part of his duty arising under the warrant, he is punishable by indictment and fine, by the court, and also liable to the action of the party for false imprisonment; for where an officer doth not pursue the effect of his warrant, his warrant will not excuse him for what he hath done. Dalt. c. 118. 6. When the party cometh before the justice, he must offer sureties, or else the justice may commit him: for the justice needeth not demand surety of him. (Dalt. c. 118, 169.) But it is said by Pratt, in the case of the king v. Wilkes, that a justice cannot commit for not finding security, until the party has been required, and has refused so to do. 2 Leach's Hawk. 7. note (6). 7. If the justice was deceived in the sufficiency of the securities, he or any other justice may afterwards compel the party to find and put in other sufficient securities, and may take a new recognizance for the same. Dalt. c. 116, 119. 8. But if the sureties die, the party principal shall not be compelled to find new sureties. Ibid. 119. 9. Also, if a man that was bound to keep the peace hath broken his bond, the justices ought of discretion to bind him anew. Lamb. 78. But not until he be thereof convicted by due course of law; for before conviction he standeth indifferent whether he hath forfeited his recognizance or not. Crompt. 125. VI. FORM OF A RECOGNIZANCE OF THE PEACE. It seems that a recognizance of the peace may be regulated by the discretion of the justice, both as to the number and sufficiency of the sureties, and the largeness of the sum, and the continuance of the time for which the party shall be bound. And it hath been said, that a recognizance to keep the peace, as to a person, for a year, or for life, or without expressing any certain time (in which case it shall be intended for life) or without fixing any time or place for the party's appearance, or without binding him to keep the peace, against all the citizens of the commonwealth in general, is good. Dalt. c. 119, 120. Haw. B. 1, c. 60, sect. 15. 1 Term Rep. 696. However it seems to be the safest way to bind the party to appear at the next sessions of the peace, and in the mean time to keep the peace as well towards all the citizens of the commonwealth, as particularly to the party praying it, according to the common form of precedents. Haw. B. 1, c. 60, sect. 16. VII. HOW SUCH RECOGNIZANCE MAY BE FORFEITED. 1. The recognizance is forfeited, if the party make default of appearance, and the same default shall be recorded. 3 Haw, 7, c. 1. If the party have any excuse for not appearing, it seems the court is not bound peremptorily to record his default, but may equitably consider of the reasonableness of such excuse. Harv. B. 1, c. 60, sect. 18. And Mr. Dalton says, in case of the sickness of the party, so that he cannot appear, he has known that the justices, upon due proof thereof, have forborne to certify or record such forfeiture or default; and that they have taken sureties of the peace, from some friend of his present in court, until the next court, for that the principal intent of the recognizance was but the preservation of the peace. Dalt. c. 120. 2. Also there is no doubt but that it may be forfeited by any actual violence to the person of another, whether it be done by the party himself, or by others through his procurement; as manslaughter, rape, robbery, unlawful imprisonment, and the like. Haw. B. 1, c. 60, sect. 20. 3. Also it hath been holden, that it may be forfeited by any treason against the commonwealth, and also by any unlawful assembly in terror of the people, 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. Haw. B. I, c. 60, sect. 21. Otherwise it is, if the party be absent; and yet if the party so bound shall threaten to kill or beat another who is absent, and after shall lie in wait for him, to kill or beat him, this is a forfeiture of his recognizance. Dalt. c. 121. 4. However, it seems that it shall not be forfeited by bare words of heat and choler, as the calling a man a knave, teller of lies, rascal, or drunkard; for though such words may provoke a choleric man to break the peace, yet they do not directly challenge him to do it, nor does it appear that the speaker intended to carry his resentment any further. And it is said, that even a recognizance for the good behaviou shall not be forfeited for such words; from whence it follows, a fortiori, that a recognizance for the peace shall not. Haw. B. 1, ch. 60, sect. 22. 5. Also there are some actual [justifiable] assaults on the person of another, which do not amount to a forfeiture of a recognizance for the peace: As if an officer, having a warrant against one who will not suffer himself to be arrested, beat or wound him in the attempt to take him; or if a parent, in a reasonable manner, chastise his child, or a master his servant, being actually in his service at the time; or a schoolmaster his scholar; or a jailor his prisoner; or even a husband his wife, as some say; or if one confined a friend who is mad, and bind and beat him, &c. in such a manner as is proper in his circumstances; or if a man force a sword from one who offers to kill another |