by intervention We have now to consider the preventive remedies by the inter- 1. Of Prevenvention of some competent legal authority or proceeding, whe- tive Measures ther summary or formal, as distinguished from preventions by of Legal Authothe mere act of parties, considered in the last chapter. (a) We rity in general. have adverted to the legal maxim as declared by North and Tenterden, C. Js. that, "laws for prevention are even prefer (a) See division of the subject, ante, 586, 587. PREVENTION LEGALLY. CHAP. VIII. able to laws for punishment," and upon that principle it was decided that a custom for the homage to choose every year two surveyors, to take care that no unwholesome victuals should be sold within the manor, and with power to destroy whatever corrupt victuals they found exposed to sale, was valid ; (b) and that a custom in a manor for the leet jury to break and destroy measures found by them to be false is also lawful; (c) and on the same principle, the acts were passed relating to weights and measures, giving justices of the peace power to order the destruction of such fraudulent weights and measures, and at the same time preserving and continuing every local custom or usage to the same effect. (d) The same principle induced the passing of the vagrant act, and all the summary powers enabling justices and others to apprehend certain suspicious individuals, to prevent them from committing a crime.(e) II. Imprisonment of a lunatic to prevent mischief. II. The first proceeding of this nature, besides those referred to, is to prevent mischief from a Lunatic. At common law any person might justify confining, and as it has been said beating, (that is restraining,) his friend in such a manner as may be essential under such circumstances; (ƒ) and a private individual may arrest a lunatic who seems disposed to do mischief.(g) But a medical man is not warranted, merely on statements made by the relation of a person supposed to be insane, in sending men to take him into custody and confining him, unless he be satisfied that those statements are true, and that such a step is necessary to prevent some immediate serious injury from the individual either to himself or to other persons; and if access cannot be had for the purpose of proper examination, application should be made to the Lord Chancellor that the party may be taken up under his authority. (h) When there is danger of a lunatic committing any crime or offence or serious mischief, for which if sane he would be criminally punishable, the proper course is to proceed under the 39 & 40 Geo. 3, c. 94, s. 3, which enacts, "that for the better prevention of crimes being committed by persons insane, if any person shall be discovered and apprehended (b) Vaugham v. Attwood and others, 1 Mod. 202. (c) Willcock v. Windsor, 3 Bar. & Adolp. 43; Sheppard v. Hall and others, Id. 433. (d) Id. ibid.; 55 Geo. 3, c. 43, s. 112. (e) See them enumerated, and the powers of the several acts considered, as far as they authorize private individuals to apprehend, &c. ante, 619 to 631. (f) Hawk, P. C. c. 60, s. 23; Burn's J. Arrest. (g) Brookshaw v. Hopkins, Loft, 243; Bac. Ab. Trespass, D. 3. (h) Anderdon v. Burrows and others, 4 Car. & P. 210. PREVENTION LEGALLY. under circumstances that denote a derangement of mind, and a CHAP. VIII. purpose of committing some crime, for which, if committed, he would be liable to be indicted, and any justice before whom such person may be brought shall think fit to issue a warrant for committing such person as a dangerous person suspected to be insane, such cause of commitment being plainly expressed in the warrant, the person so committed shall not be bailed except by two justices, one whereof shall be the justice who issued such warrant, or by the quarter sessions, or by one of the Judges or Lord Chancellor, Lord Keeper or Commissioners of the Great Seal.” (i) Independently of this power, and of the other enactments relating to lunatics, neither a court of common law, nor the judges, have any power to interfere with the person of a lunatic when he has been arrested, so as to take him out of the custody of the sheriff or his officer, (k) either before or after a commission of lunacy has been found. (1) But it should seem that the Lord Chancellor has jurisdiction in any case, even before a commission, upon proper application, to order in whose custody a dangerous lunatic shall be placed ; (m) and after a commission has been established by the verdict of a jury, it is clear that the Chancellor may order that the lunatic shall be delivered to the committee, and that an habeas corpus is unnecessary. (n) If a lunatic be likely to commit any injury, for which he might if sane be indicted, and the immediate interposition of the Lord Chancellor cannot be obtained, then it would be prudent to apply to a justice of the peace under the before mentioned 39 & 40 Geo. 3, c. 94, s. 3, (o) and to make oath of the derangement of mind, and of the apprehended purpose of committing some crime, and thereupon the justice should by warrant commit the party as a dangerous person, suspected to be insane; and as the act enacts, that the person so committed shall not be bailed except by two justices, or by one of the judges, or the Lord Chancellor, it should seem that the party so committed could not be legally removed by the sheriff under bailable process, or even in execution. (p) There is a prescribed form of such a warrant of commitment, and it should seem that it need not (i) This act, it will be observed, extends to every description of deranged persons, whereas the 17 Geo. 2, c. 5, s. 20, only extended to vagrant lunatics, 2 Atk. 52. (k) Nutt v. Verney, 4 Term R. 121; Kernot v. Norman, 2 Term R. 390; Ibhitson v. Galway, 6 T. R. 133; Tidd, 9th ed. 216. (1) Steel v. Alan, 2 Bos. & Pul. 362; (m) See cases in notes (k) and (1); and (p) Semble, sed quære. PREVENTION OF INJURIES CHAP. VIII. state the name of the person towards or upon whom the assault or crime was expected to be committed, nor need it appear on the warrant that the evidence given before the justice was upon oath. (9) LEGALLY. III. Preven cation to a Magistrate or III. In case a felony or a serious breach of the peace, or distions by appli- turbance, or other illegal act constituting a misdemeanor, be expected, then it is advisable, either by application to a magistrate or to a constable, or other peace officer, to cause him to attend, so that if he have information of any felony, or view of any actual breach of the peace, he may immediately interfere and apprehend the wrong-doer; and on any information that a breach of the peace is about or likely to ensue, it is the duty of every justice of the peace and constable within his district to attend and prevent it. (r) The very appearance of a known officer will frequently prevent or at least interrupt the apprehended illegal act. This is also advisable in anticipation of all large and open assemblies of persons of all classes, especially when for convivial sports or amusements, which so frequently lead to extra excitements, quarrels, and breaches of the peace, unless immediately restrained by some legal authority. We have seen some of the cases in which a peace officer may and Appointment stables. ought to interfere without warrant, and others will be found in the books referred to in the notes. (s) Such officers are generally better informed of the powers of interference and arrest and the modes in which it may be made, than any private individual who may call for their assistance, and who may afterwards act with more security and indemnity in the assistance of the constable, for then he has the protection of the statutory provisions, generally extending to all persons bonâ fide acting in aid of a peace officer. (t) On the reasonable expectation of any actual tumult, riot, or of special con- felony, (but of which it is necessary that some person should make oath before a magistrate,) and for prevention thereof, and before the same has actually occurred, or whilst it is in progress, or likely to be repeated, any two justices may appoint special constables for the preservation of the public peace, and (q) Rex v. Gourlay, 7 Bar. & Cres. 669; 1 Man. & Ry. 619, S. C., see form of warrant id. ibid. and 3 Burn's J. 26th ed. 699. (r) Per Bayley, J., in Rex v. Bellingham, 1 M. & R. M. C. 127; 2 Car. & P. 234, S. C. and Rer v. Perkins, 4 Car, & P. 537, ante, 36, note (g). (s) Burn's J. Arrest, Constable, Police, Vagrant; and see Rer v. Perkins, 4 C. & P. 557, ante, 36, note (g). (t) 21 Jac. 1, c. 12, sect. 5; 1 Burn's J. 26 ed. 802 to 806. PREVENTION LEGALLY. the protection of the inhabitants, and the security of property, CHAP. VIII. and who are to perform the same duties as common law constables, and in case of neglect each forfeits £5, and is subject to other liabilities. (u) And it would be an indictable misdemeanor if magistrates should perversely, and after tender of such oath, neglect to appoint them when requisite; (x) but by the above statute, as well as the prior act 1 Geo. 4, c. 37, it is necessary for some person to make oath that a riot is expected before a magistrate can legally appoint or call out special constables. (y) It is the duty of justices of the peace, when they are informed that a breach of the peace is likely to take place, in person to attend, or at least to send peace officers to prevent it; (z) and as all persons present countenancing a prize fight are guilty of an offence, whenever a prize fight is expected, the magistrates ought to cause the intended combatants to be brought before them, and compel them to enter into securities to keep the peace till the assizes or sessions, and if they should refuse to enter into securities, then to commit them. (a) IV. If a magistrate have jurisdiction, his error in issuing a warrant to apprehend, or in committing a person to take his trial for a supposed offence, will not subject him to an action of trespass; (b) and this, although the depositions were improperly taken in the words of the act, and not in those of the witness. (c) But if he had no jurisdiction at all, or if it had ceased, it would be otherwise. (c) And sometimes the proceeding irregularly will in effect be equivalent to the want of jurisdiction; as if a magistrate maliciously issue a warrant, without any information upon oath, when that preliminary is required by law, in that case he might be a trespasser. (d) In general, whether for the purpose of searching for goods supposed to have been stolen, or for apprehending a supposed offender, the safest course is for an injured individual to go before a justice and dispassionately to state the facts of the (u) 1 & 2 Wm. 4, c. 41. (x) The King v. Pinney, Mayor of Bristol, trial at Westminster, K.B., 1 Nov. A. D. 1832. (y) Per Littledale, J. and the whole court, in The King v. Pinney, Esq. Id.ibid. (1) Dalt. J., c. 1; Burn's J. Justice, 26 ed. 448. (a) Per Bayley, J., Rex v. Bellingham, 2 Car. &. P. 234; and 1 M. & R. M.C. (b) Crepps v. Durden, Cowp. 640. (d) Morgan v. Hughes, 2 T. R. 225; IV. Of apprehending supposed offenders under a Warrant of a justice. |