1819. WILLES against BRIDGER. excessive in duration as well as in amount. In Rex v. Bowes (a), it was doubted, whether even the Court of King's Bench could bind for more than one year: yet if a single justice of the peace could bind for life, it would be very strange that any such doubt could be entertained. The warrant, therefore, was in this case, illegal. On the second point, he cited Morgan v. Hughes. (b) Taddy Serjt., for the defendant. This case depends on the authority given to justices by their commission, by which they are empowered to cause to come before them all those who to any of the people concerning their bodies or burning of their houses have used threats to find sufficient security for the peace or their good behaviour, and unless they do so to commit them to prison. The power is general to cause them to find sufficient security. The question, therefore, of the sufficiency both as to the sum and the duration must be left in their discretion. And it is to be observed that in all the precedents the commitment is general, viz. that he be committed till he willingly do the same. It is true there is also a clause so that he may appear at the next sessions to answer for the contempt, but he is not committed to the next sessions. Besides, it is to be observed, that the conclusion of the warrant in the case of the writ of supplicavit is precisely the same, and yet in that case it is clear that the time for which the party may be bound may exceed the next session, for from the form of the writ, as given Reg. Brev. fol. 9., it appears that the power to commit is there general. The (a) 1 Term Rep. 696. (b) 2 Term. Rep. 225. prece precedents, therefore, are not of great authority, and are rather useful for safe conduct than for establishing any point of law. Then Marrow's authority, which is copied into all the text writers, is uncontradicted and express on the point. And the circumstance of Lambard's differing with him in the passages cited rather strengthens it. For from this opinion Lambard does not express any dissent at all. As to the statute 3 Hen. 7. c. 1. it is to be observed it is merely directory; and Dalton (a) says, that if the recognizance be to appear at any other sessions after, (and not at the next,) it is good. The same law is laid down in Crompton, p. 141. b. Now if the party may pass over the first sessions the whole argument on the other side falls to the ground. With respect to the dictum of Marrow that it may be for life, it is to be observed Lambard does not state it so: he only says, that according to Marrow the time is in the discretion of the justice; and that limitation of Marrow's opinion will be quite sufficient for the defendant in this case. On the second point he cited Ackerley v. Parkinson. (b) Cur. adv. vult. ABBOTT C. J. now delivered the judgment of the Court. This case was very ably argued at Sergeants' Inn Hall before my Brothers Bayley and Holroyd and myself. Two questions were raised upon the facts stated, but as we are of opinion that the warrant upon which the plaintiff was committed was a legal warrant, it is not necessary for us to give any opinion upon the other question, or to say whether or no the defendant 1819. WILLES against BRIDGER. (a) Country Justice, c. 119. (b) 3 Maule & Sel. 411. could 1819. WILLES against BRIDGER. could have resisted this action upon the ground of his official character, if the warrant had not been consonant to law. The present action is an action of trespass, in which the plaintiff complains simply of the fact of his arrest and imprisonment. He does not complain of any harsh, undue, or oppressive exercise of a legal authority, for which, if any such had existed, though none at present appears, the remedy would have been of a different nature; but he complains of the act alone and rests his case upon the supposed illegality of the warrant under which he was committed. The authority of a justice of the peace to require, upon due complaint made to him in his judicial character, suretics for the keeping of the peace, and to commit a person to prison for want of such sureties, is not nor could be denied; but it is contended on the part of the plaintiff, that the surety can only be required for appearance at the next sessions, and for keeping the peace in the mean time, and consequently that the commitment for want of surety can only be until such surety be given as the justice might in the first instance require and take, that is, for appearance at the next sessions, and for keeping the peace in the mean time; 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 argument in support of this proposition rested mainly upon the provisions of the statute 3 Hen. 7. c. 1. at the close of which statute after several enactments relating to the duties of coroners and to appeals in cases of murder 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 same recognizance to the next sessions of the peace, that the party so bound may be called; and if the party make default, then the recognizance and the record of the default are to be certified into the Chancery, King's Bench, or Exchequer. 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, which appears to have had its origin in the statute 1 Edw. 3., stat. 2. 6. 16., by which it is enacted only in very few and general words that person's shall be assigned by the king in every county to keep the peace. The authority to be given to these magistrates is more fully set forth in the statute 34 Edw. 3. c. 1., by which they are to have power to restrain offenders, and to arrest and chastise them, and cause them to be imprisoned, and punished according to law; to arrest all those that they may find by indictment or suspicion, and to put them in prison; to take of all them that be not of good fame, where they shall be found sufficient surety and mainprize of their good behaviour towards the king and his people; and also to hear and determine, at the king's suit, all manner of felonies and trespasses: and writs of oyer and terminer are to be granted, according to the statutes. Upon the first of these statutes, it may be observed, that the power to keep the peace seems necessarily to imply an authority to take surety from persons who have manifested an intention to break it; for otherwise such persons could only be restrained from the accomplishment of their intention, by the actual restraint or imprisonment of their persons. And, upon the latter statute, it may be observed, that the clause relating to surety and mainprize of good behaviour to be taken of persons of evil fame, 1819. WILLES against BRIDGER. 1819. WILLES against BRIDGER. is distinct from the clause relating to persons found by indictment or suspicion, which must be meant of persons charged with the actual commission of some offence, for which an indictment hath been or may be found. Those two clauses, however, appear to have been considered together, by Sir M. Hale, in 2 Pl. C. 136., a passage which was much relied upon in the argument for the plaintiff. "The statute 34 Edw. 3. c. 1.," says the learned writer, "gave them power to apprehend malefactors, and to commit them to custody, or to bind them to their good behaviour, which was not intended perpetual, but in nature of bail, viz. to appear at such a day at their sessions, and in the mean time to be of good behaviour." This passage is found in a chapter treating of the bailment of prisoners and not of surety for the peace, and it is plain from the other parts of the chapter, that the persons who are the subject of it are persons charged with offences, for which it is supposed they are to be brought to trial. With regard to such persons, the surety or mainprize must necessarily be taken for appearance at some definite time and place, at which an indictment may be preferred or brought to trial against them; and it is proper, that the surety should also extend to their good behaviour in the mean time. The statute 3 Hen. 7. c. 1. appears also to contemplate persons of this description, that is, persons against whom an indictment may be expected to be preferred. It is perfectly reasonable, that such persons should be bound to appear at the next sessions, in order that they may be forthcoming to answer to an indictment. Many of those against whom surety of the peace is required are of this description; persons supposed to have actually committed, and not merely 14 |