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CHAPTER XII.

THE MEANS OF PREVENTING OFFENCES.

We are now arrived at a very important branch or head of this work, viz.,-the means of preventing the commission of crimes and misdemeanors, and it is an honour 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 principle, preferable in all respects to "punishing justice," the execution of which, though necessary, and in its consequences a species of mercy to the commonwealth, is attended with many harsh and disagreeable circumstances.

In what does Preventive Justice consist?

Preventive Justice consists in obliging those persons whom there is a probable ground to suspect of future misbehaviour to find pledges or securities (commonly called bail) for keeping the peace, or future good behaviour. It may be divided into four heads :

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I. In the apprehending persons at whom suspicious circumstances point as likely to commit crime.

II. In requiring persons to find sureties for keeping the peace, or for their good behaviour.

III. In making criminal the having in possession certain things presumably for the commission of crime.

IV. In searching for the evidences of guilt, and seizing weapons or instruments, the use or possession of which may scarcely be deemed compatible with innocence of unlawful intent.

THE MEANS OF PREVENTING OFFENCES.

Explain the Procedure of Preventive Justice.

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First, then, a constable, or even a private person, seeing another on the point of committing felony, may lawfully lay hold of the individual thus acting; and detain him until it can be presumed that he has changed his purpose; and when a felony is committed, it is the duty of a bystander to arrest the offender. By 24 & 25 Vict., c. 100, s. 66, a constable or peace officer may take into custody, without a warrant, any person whom he shall find lying or loitering in any highway, yard, or other place during the night, whom he shall have good cause to suspect of having committed, or being about to commit, a felony; and shall take such suspected person, as soon as reasonably may be, before a justice of the peace, to be dealt with according to law.*

Secondly, preventive justice obliges those persons whom there is a probable ground to suspect of future misbehaviour to find pledges or bail for keeping the peace, or for their future good behaviour. This security consists in being bound, with one or more sureties, in a recognizance or obligation to the Crown entered on record, whereby the parties acknowledge themselves to be indebted to the Crown in the sum therein stated, with a condition, to be void and of none effect if the party shall appear in court on such a day, and in the meantime 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, if it be for good behaviour, then on condition that he shall behave himself well, or be of good behaviour, either generally or specially for the time therein limited; and if the condition of such recognizance be broken, the recognizance becomes forfeited, and the party and his sureties become the Crown's absolute debtors for the several sums in which they are respectively bound.

The third head renders illegal, unless satisfactorily accounted for, the possession of certain things presumably for the commission of crime.

* See also 24 & 25 Vict., c. 96, s. 104; and c. 97, s. 57.

Fourthly, a search warrant, with a view to the prevention of crime and the detection of criminals, may be granted by a justice of the peace. Also a warrant may be granted to send for and seize property suspected to have been stolen, sufficient ground for suspicion having been shown.*

Justices of the peace, by virtue of their commissions, or those who are ex officio conservators of the peace, may bind all those to keep the peace who make any affray, or threaten to kill or beat another, or contend together with angry words or menaces, or go about with unusual weapons or followers, to the terror of the people.

The justices are also empowered to bind over to good behaviour towards the Queen and her people all who are not of good fame, wherever they are found. "Good fame" is an expression of great latitude, which leaves much to be determined by the discretion of the magistrate himself.

In default of finding sureties when required, the party may be sent to prison, subject to the restriction imposed by stat. 16 & 17 Vict., c. 30, s. 3, which enacts that no person committed to prison under any warrant or order, on account of not entering into recognizances, or finding sureties to keep the peace, or to be of good behaviour, shall be detained under such warrant or order for more than twelve calendar months from the time of such commitment.

A recognizance may be discharged by the death of the party bound thereby; or by order of the court, on sufficient cause being shown.

* For the several cases in which search warrants may be granted for the discovery and seizure of paper and implements employed for forgery, &c., see 24 & 25 Vict., c. 98, s. 46; 24 & 25 Vict., c. 99, s. 27; 24 & 25 Vict., c. 100, s. 65.

CHAPTER XIII.

COURTS OF CRIMINAL JURISDICTION.

The next and last object of our inquiries will be the method of inflicting punishments which the law has annexed to these particular offences; in the discussion of which let us briefly mention the several Courts of criminal jurisdiction wherein offenders may be prosecuted, and explain the proceedings therein respectively.

Mention briefly the several Courts of Criminal Jurisdiction, and Explain the Proceedings.

I. The High Court of Parliament.

The High Court of Parliament is the Supreme Court in the Kingdom for the trial of great offenders, whether Lords or Commoners, by a method called Parliamentary impeachment. The articles of impeachment are prepared and agreed to by the House of Commons, and afterwards tried by the Lords, who are in such cases of misdemeanor considered not only as their own Peers, but as the Peers of the whole nation. A commoner cannot be impeached before the Lords for any capital offence, but only for high misdemeanor; a peer may be impeached for any crime. Our Constitution deems it proper in such cases that the nobility should judge, to insure justice to the accused, and that the people should accuse, to insure justice to the Commonwealth.

II. Court of the Lord High Steward.

This is a court instituted for the trial of peers indicted for treason or felony, or for misprision of either. When, therefore, such an indictment is found by a grand jury of freeholders in the

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Queen's Bench, or at the Assizes before the justices of oyer and terminer, it has to be removed by a writ of certiorari into the Court of the Lord High Steward, which only has power to determine it. When the indictment is regularly removed by writ of certiorari, the Lord High Steward, who is appointed pro hâc vice, by commission under the great seal, directs a precept to the serjeant-at-arms, to summon the lords to attend and try the indicted peer. The decision is by the majority; but a majority cannot convict unless it consist of twelve or more.

During the Session of Parliament, the trial of an indicted peer or peeress is not properly in the Court of the Lord High Steward, but before the Court of our Lady the Queen in Parliament.

Upon conviction for felony or misdemeanor, a peer is now liable to the same punishment as any other subject of the Crown.

III. The Court of Queen's Bench.

This court, which was noticed in a former chapter,* is divided into a Crown side and a plea side. On the Crown side or Crown office it takes cognizance of criminal causes, from high treason down to the most trivial misdemeanor or breach of the peace. Into this court also indictments from all inferior courts may be removed by writ of certiorari, and tried either at bar, which rarely happens, or at nisi prius by a jury out of the county of which the indictment is brought. The removal, however, of an indictment by certiorari into this court can only take place where the indictment is against a body corporate, not authorized to appear by attorney in the court below; or else where it is made to appear to the court or to a judge thereof by the party applying for the writ, that a fair and impartial trial cannot be had in the court below; or that a question of law of more than usual difficulty and importance is likely to arise upon the trial;† or that a special jury may be required for the satisfactory trial of the case.

IV. The High Court of Admiralty.

The High Court of Admiralty, held before the Lord High Admiral, or his deputy, styled the Judge of the Admiralty, is a

* For further particulars, see p. 205. † See 19 & 20 Vict., c. 16, s. 1.

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