CHAPTER I. PROTECTION OF THE BODY AGAINST THREATS AND Redress of intended or apprehended wrongs.-The weakness of the law is nowhere more conspicuous than in its feeble powers of preventing the commission of wrong. In this respect, as has been already observed, it differs essentially from the moral or divine law, which is directed towards controlling the conduct of man by intercepting evil at its source, and changing the secret thought before it ripens into action. To the law is assigned the narrower province of redressing wrongs only after they have been committed, and when the mischief can seldom be undone.1 Nearly all the ancient legislators tried to make the law an engine of more ambitious range, akin to the divine, but that dream of empire has long been relinquished by modern legislatures. There is now no division of the law which supplies any machinery worthy of the name for directly preventing wrong, for this could only be done effectually by imprisoning men, and so keeping them physically incapable of evil-a remedy worse than the disease. It is true that one or two instances of preventive justice 1 XENOPHON praised the laws of the ancient Persians for being directed rather to the prevention of crime than its mere punishment after it was committed.-Xen. Cyrop. BECCARIA also says it is better to prevent crimes than to punish them; that this is the fundamental principle of good legislation, which is the art of conducting men to the maximum of happiness and to the minimum of misery.-Becc. ch. 41. But it will be found that modern governments find it impracticable to achieve this prevention of crime by any direct method, though they ought never to lose sight of it as a consummation and final conclusion of their efforts. remain, but they practically amount to little else than making the remedy more prompt than it would otherwise be, if brought to bear in the ordinary course and at a later stage. In stating, therefore, what provision the law has made to secure the body, it is proper to begin with those that aim at the prevention or anticipation of wrongs of that class, or, in other words, the redress of wrongs, which are merely intended, but have not yet been accomplished. A threat is a very common and familiar way of dealing with certain persons, and is often little more than an impressive mode of speech. It is obviously no part of the policy of the law to restrict this natural tendency. If it is vague and general, it may amount to no more than salutary advice, but if it is so used as to operate on a person of ordinarily firm mind, and produce an interruption to business or occupation, some reasonable check is required upon any excessive resort to such a mode of address. What kind of remedy it is against threats of personal injury. -The legislature has not thought fit to treat as an actual crime, either the verbal threat to murder or kill, or even a written threat to do any personal injury short of killing, probably from the difficulty of distinguishing mere violence and heat of language from that settled malice, which is of the essence of most of the crimes known to the law. Where, however, threats, more or less specific, have been indulged in, sufficient to cause serious annoyance and fear of personal injury to a person of firm mind, the law provides a remedy which somewhat resembles an injunction in equity, namely, the binding over of the threatening party to keep the peace and be of good behaviour. This is further enforced by his finding sureties, and, in case the threat is carried out, the guilty party as well as his sureties are bound to pay a sum of money specified in the recognisance, which is only a species of bond or contract with the crown, binding the parties to pay a sum, if the condition of the bond be forfeited. It will be necessary to state by whom, for what causes, in what manner, and with what results this remedy of swearing the peace, as it is called, against another, is administered. Any threat or menace to injure the person, even though it is not followed up by any actual bodily injury, or even by an assault, which is an imminent attempt to commit such injury, is nevertheless at common law a ground of action, provided some interruption to one's business or occupations is the immediate result. And all the reason given is, that as it is an inchoate though not an absolute violence, it is in the eye of the law a trespass, for which pecuniary damages may be recovered. This is, however, not the whole of the law, for, owing to the vagueness of most threats and the difficulty of reducing their harm to a definite point, actions as a means of redress are scarcely practicable, and moreover would probably often fail altogether when brought to a hearing, for a hearing could not usually be brought about till long after the heat and irritation of the moment had disappeared, and the memory of incidents had grown dull. And what most men are contented with is a smaller and feebler, though an instant remedy of a negative character, namely, what is usually called articles of the peace-a species of swearing the peace against the offender and binding him not to carry out his threat, or if it has once been acted on, not to repeat it. It is said to be called surety of the peace, because the party that was in fear is thereby the more secure and safe.” What is a threat of personal violence. In exercising this jurisdiction of enforcing sureties of the peace, a delicate duty is imposed on the justices of the peace and the courts, for the primary object of this remedy has been at last defined to be the protection of the applicant against imminent danger to the person, only in those cases where the danger is such as will seriously affect a mind of ordinary firmness. Every idle apprehension of weak and timid minds is not to be made a pretext for this proceeding, but only such circumstances as tend immediately in the judgment of reasonable persons to interfere with personal security. In this, and in many other departments, the law is obliged to adapt its remedy to the standard of the normal man, or man of average sense, judgment, and feeling. And the remedy is based entirely on the assumption that the danger apprehended is in the future, for however wickedly and violently the party complained against may have conducted himself in the 23 Bl. Com.120. 1 Finch, L. 202; Regist. 104, 27, ass. 11. 3 Dalt. J. P. c. 116. 2 3 past, this alone will be no sufficient reason for thinking that he will continue to act in the same way; and yet, past conduct is generally a very safe guide as to the future, and is not to be entirely overlooked.1 The cases, therefore, in which the law interferes to require security for the peace are such as the following. Where a threat to do bodily injury has been made to one if he go to a particular place, for example, a place he has been frequenting by way of business: a threat to arrest by force a wife who has, by articles of separation, availed herself of the right to live separate: a threat to burn one's dwelling, or put one in prison, or beat, or otherwise hurt one's body, or even to procure others to do the act: a threat, or even a challenge or invitation to fight a duel.5 And the same protection is extended when the threat assumes the form of injuring one's wife or child; though if the threat is made to one's servant, this is deemed too remote, and it is enough for the servant in that case, to apply for the like protection to himself. Again, though the threat be qualified as to time and place, as, for example, if the threatened person go to a particular house, or write to a particular female member of the family, the remedy will be granted. And the taking part in a prize-fight by attending it, being an implied breach of the peace, and, indeed, all being guilty of an assault, it also justifies the justices in binding all such persons over to keep the peace.9 Threat to do only moderate harm.-Sometimes the party, with a view to elude this remedy against him, studiously guards his threat by expressing it moderately, as for example, thus: that he will do everything in his power to annoy the complainant "short of actual violence;" but this show of moderation will be treated as no bar to the remedy, seeing that it is impossible for an angry or spiteful man to keep within the strict line he has laid down for his own conduct.10 Threatening looks and conduct.-And a threat of this kind may be made by looks, tones, and gestures, as well as by express words; indeed, the one may often be more eloquent and cogent than the other, provided the justices see, that the complainant has acted reasonably in construing in the right way these inarticulate signs. Thus, where an importunate lover had been forbidden by the mother of a young lady to address the object of his affections, but, nevertheless, he followed the family to the same inn, and pushed past the mother in an eager manner towards the daughter's chamber, he was made to give this security.1 And in another like case, where the gentleman had been rejected as a suitor over and over, but had, nevertheless, for 'many months been writing to the lady letters of courtship, and pursuing her from hotel to hotel, and town to town, and looking over hedges, waving his handkerchief, and making gestures to her at unexpected moments, the court held that the lady would be well entitled to this remedy, if she could swear to her belief from those acts and behaviour, that he was likely to do to her some personal violence.2 In all such cases the court or justice must not he critical, but must give ear in a great degree to the apprehensions of the party seeking the protection, and must enter, to some extent, into his or her feelings and convictions. Whether one who libels another can be made to give security of the peace. It was once keenly debated, especially towards the end of last century, whether a libel was such a threat or provocation of violence and injury as to entitle the libelled person to demand security of the peace against his detractor, for it was urged that a libel at the utmost only tends to a breach of the peace, and so does not come within the ordinary province of the justice, who deals with, or ought to be confined to, acts which are imminent breaches of the peace. On this point a great judge, Pratt, C. J., once said: "I cannot find that a libeller is bound to find surety of the peace in any book whatever, nor ever was in any case except one, viz., the case of the Seven Bishops, where three judges said that surety of the peace was required in the case of a libel. Judge Powell, 1 Dennis v Lane, 12 Mod. 132. 2 R. v Dunn, 12 A. & E. 599; 4 P. & D. 415. |