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2 Arrests by officers without warrant may be executed,-1. By a just we of the peace, who may himself apprehend, or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence. 2. The sheriff," and, 3. The coroner, may apprebend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke,(m) hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace committed in his view, and carry him before a justice of the peace. And in case of felony actually committed, or a dangerous wounding, whereby felony is likely to ensue, he may upon probable suspicion arrest the felon,.? and for that purpose is authorized (as upon a justice's warrant) to break open doors, and even to kill the felon, if he cannot otherwise be taken; and if he or his assistants be killed in attempting such arrosts, it is murder in all concerned.(n) 5. Watchmen, either those appointed by the statute of Winchester, 13 Edw. I. c. 4, to keep watch and ward in all towns from sunsetting to sunrising, or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning."

12

) i Hal. P. C. 86.

(**) See book i.

page 355.

(*) 2 Hal. P. C. 88, 89.

( 2 Hal. P. C. 98.

colonies, and he escapes into the United Kingdom, it shall be lawful for a secretary of state to endorse such warrant. And a still more important power has been given by two acts passed in the same session of parliament, (6 & 7 Vict. c. 75, 76,) which provides for the arrest of certain offenders who have escaped from France and the United States of America into this country. Under the former of these acts, (giving effect to a convention for that purpose,) persons accused of murder, forgery, or fraudulent bankruptcy tre to be delivered up by the proper authorities in this country to the proper authorities of France; and by the latter, (giving effect to an article for this purpose in the Washington treaty,) persons charged with murder, or assault with intent to commit murder, piracy, arson, robbery, or forgery, are to be delivered up to the United States. Corresponding laws have been passed by the legislatures of both these countries for giving the same powers as against offenders escaping from this country to France and the United States. -Stewart. See Act of Congress, 12 Aug. 1818. 9 Stat. at Large, 302.—SHARSWOOD.

11 And the sheriff may arrest though the party be merely suspected of a capital offence, (2 Hale, 87;) and if the sheriff be assaulted in the execution of his office he inay arrest the offender. 1 Saund. 77. 1 Taunt. 146.—Chitty.

12 A constable may justify an imprisonment without warrant on a reasonable charge of felony made to him, although he afterwards discharges the prisoner without taking him before a magistrate, and although it turn out that no felony was committed by any one, (Holt, C. N. P. 418. Cald. 291.;) and the charge need not specify all the particulars neCessary to constitute the offence. R. & R. C. C. 329. In general, however, a constable cannot, without an express charge or warrant, justify the arrest of a supposed offender upon suspicion of his guilt unless some actual felony has been committed and there is reasonable cause for the suspicion that the party imprisoned is guilty, (4 Esp. Rep. 80. Holt, C. N. P. 478. Hawk. b. 2, c. 12, s. 16. 2 Hale, 92, 89, n. f. Cald. 291;) and a constable is not justified in apprehending and imprisoning a person on suspicion of having recvived stolen goods on the mere assertion of one of the principal felons. 2 Stark. 167. There are, however, authorities in favour of an exception to this rule in the case of nightwalkers and persons reasonably suspected of felony in the night. 3 Taunt. 14. 1 East, P. (. 303. Hawk, b. 2, c. 12, s. 20. 2 Hale, 89. 5 Edw. III. c. 14. 2 Inst. 52. Bac. Abr. sit Constable, G. And, by a modern act of parliament, an express power is given to constables and other peace-officers, when on duty, to apprehend every person who may reasonably be suspected of having, or carrying, or by any ways conveying, at any time after sunsetting and before sunrising, goods suspected to be stolen. 22 Geo. III. c. 58, s. 3. 5+ Geo. III. c. 57, ss. 16, 17, 18. And other statutes (32 Geo. III. c. 53, s. 17. 51 Geo. III. c. 119, ss. 18, 24) authorize constables and other peace-officers to apprehend evil-disposed and suspected persons and reputed thieves. Thus, by the 32 Geo. III. c. 53, s. 17, constables, headboroughs, patrols, and watchmen are empowered to apprehend reputed thieves frequenting the streets, highways, and avenues of public resort, and convey them before a proper magistrate. And in order to give more effect to the public office at Bow street, the 51 Geo. III. c. 119, s. 24, and 54 Geo. III. c. 37, s. 16, 17, 18, direct two magistrates of that office (of whom the chief magistrate must be one) to swear in men to act as constables for Middlesex, Surrey, Essex, Kent, and Westminster, and enable the persons so sworn to apprehend offenders against the peace, both by night and by day, with all the powers which other constables possess.--Cutty. 13 But at common law no peace-officer is justified in taking up a night-walker unless he

3. Any private person (and a fortiori a peace-officer) that is present when any

felony is committed is bound by the law to *arrest the felon, on pain of *293] fine and imprisonment if he escapes through the negligence of the standers-by:(p) And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavouring to make such arrest it is murder.(9) Upon probable suspicion, also, a private person may arrest the felon or other person so suspected, (n)4 but he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more.(s) It is no more, because there is no malicious design to kill; but it amounts to so much, because it would be of most pernicious consequence if, under pretence of suspecting felony, any private person might break open a house or kill another, and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed.

4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is upon a hue and cry raised upon a felony committed. A hue, (from huer, to shout and cry,) hutesium et clamor, is the old common-law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another.(t) It is also mentioned by statute Westm. 1, 3 Edw. I. c. 9, and 4 Edw. I., de officio coronatoris. But the principal statute relative to this matter is that of Winchester, 13 Edw. I. c. 1 and 4, which directs that from thenceforth every county shall be so well kept, that immediately upon robberies and felonies committed, fresh suit shall be made from town to town and from county to county, and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town and the towns near, and so hue and cry shall be made from town to town until they be taken and delivered to the sheriff. And, that

such hue and cry may more effectually be made, the *hundred is bound

by the same statute, cap. 3, to answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the hundred(u) in case of any loss by robbery. By statute 27 Eliz. c. 13, no

*294]

(P) 2 Hawk. P. C. 74.
(8) 2 Hal. P. C. 77.
() Stat. 30 Geo. II. c. 24.

(*) 2 Hal. P. C. 82, 83,
(9) Bracton, 1. 3, tr. 2, c. 1, 2 1. Mirr. c. 2, 26.
() See book iii. page 161.

has committed some disorderly or suspicious act. Bac. Abr. Trespass, D. 3. 2 Ld. Raym. 1301.-Chitty.

14 Where a felony has been actually committed, a private person acting with a good intention, and upon such information as amounts to a reasonable and probable ground of suspicion, is justified in apprehending without a warrant the suspected person in order to carry him before a magistrate. Cald. 291. 4 Taunt. 34, 35. Price, 525. But where a private person had delivered another into the custody of a constable, upon a suspicion which appeared afterwards to be unfounded, it was held that the person so arrested might maintain an action of trespass for an assault and false imprisonment against such private person, although a felony had been actually committed. 6 T. R. 315.-CHRISTIAN.

With respect to interference and arrests in order to prevent the commission of a crime, any person may lawfully lay hold of a lunatic about to commit any mischief which, if committed by a sane person, would constitute a criminal offence, or any other person whom he shall see on the point of committing a treason or felony, or doing any act which will manifestly endanger the life or person of another, and may detain him until it may be reasonably presumed that he has changed his purpose; but where he interferes to prevent others from fighting he should first notify his intention to prevent the breach of the peace. Hawk. b. 2, c. 12, s. 19. 1 Hale, 589. 2 Rol. Abr. 559, E. pl. 3, n. 8. Selw. 3d ed. 830. Com. Dig. Pleader, 3 M. 22. Bac. Abr. Trespass, D. 3. I East, P. C. 304. Thus, any one may justify breaking and entering a party's house and imprisoning him, to prevent him from murdering his wife, who cries out for assistance. 2 B. & P. 26.). Selw. 3d ed. 830. Bac. Abr: Trespass, D. 3. And the riding in a body to quell a riot is lawful; and no information will be granted for small irregularities in the pursuit of such a design. 1 Bla. Rep. 47. 1 B. & P. 264, n. a. 1 East, P. C. 304. If a man be found attempting to commit a felony in the night, any one may apprehend and detain him *ill he be carried before a magistrate. 1 R. & M. C. C. 93.-Chitty.

hue and cry is sufficient unless made with both horsemen and footmen. And, by statute & Geo. II. c. 16, the constable or like officer refusing or neglecting to make hue and cry forfeits 51.; and the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein and the felon escapes :15 an institution which hath long prevailed in many of the Eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century, which is said to have effectually delivered that vast territory from the plague of robbers, by making in some places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts.(w) Hue and cry(x) may be raised either by precept of a justice of br peace, or by a peace-officer, or by any private man that knows of a felony The party raising it must acquaint the constable of the vill with all the circumstances which he knows of the felony and the person of the felon, and thereupon the constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection, and indemnification as if acting under a warrant of a justice of the peace. But if a man wantonly or maliciously raises a hue and cry without cause, he shall be severely punished as a disturber of the public peace.(y)

In order to encourage further the apprehending of certan. *cons, rewards and immunities are bestowed on such as bring them to justice by divers acts of parliament. The statute 4 & 5 W. and M. c. 8 enacts that such as apprehend a highwayman and prosecute him to conviction shall receive a reward of 401. from the public, to be paid to them (or, if *killed in the endeavour to

[*295 take him, their executors) by the sheriff of the county, besides the horse, furniture, arms, money, and other goods taken upon the person of such robber, with a reservation of the right of any person from whom the same may have been stolen; to which the statute 8 Geo. II. c. 16 superadds 101. to be paid by the hundred indemnified by such taking. By statutes 6 & 7 W. III. c 17 and 15 Geo. II. c. 28, persons apprehending and convicting any offender against those statutes respecting the coinage shall (in case the offence be treason or felony) receive a reward of forty pounds, or ten pounds if it only amount to counterfeiting the copper coin. By statute 10 & 11 W. III. c. 23, any person apprehending and prosecuting to conviction a felon guilty of burglary, housebreaking, horse-stealing, or private larceny to the value of 58. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And, by statute 5 Anne, c. 31, any person so apprehending and prosecuting a burglar or felonious house-breaker (or, if killed in the attempt, his executors) shall bu entitled to a reward of 401.(z) By statute 6 Geo. I. c. 23, persons discovering, apprehending, and prosecuting to conviction any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statuto 14 Geo. II. c. 6, explained by 15 Geo. II. c. 34, any person apprehending and prosecuting to conviction such as steal, or kill with an intent to steal, any sheep or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statutes 16 Geo. II. c. 15 and 8 Geo. III. c. 15, persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds.16 (*) Mod. Un. Hist. vi. 383, vii. 156.

(*) The statutes 4 & 5 W. and M. c. 8, 6 & 7 W. III. c. 17, and 5 Anne, c. 31 (together with 3 Geo. I. c. 15, 4, which to the county-palatine of Durbam, by stat. 14 Geo. III. C. 46.

(*) 2 Hal. P. C. 100-104.
( 1 Hawk. P. C. 75.

directs the method of reimbursing the sheriffs) are extended

15 These acts are all repealed, by 7 & 8 Geo. IV. c. 27.-Cutty.

16 The above acts are repealed, by 7 & 8 Geo. IV. c. 22, 27, 64, and 58 Geo. III. c. 70; and costs are allowed to prosecutors in certain cases.-Cutty.

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OF COMMITMENT AND BAIL.

*296]

*When a delinquent is arrested by any of the means mentioned in the

preceding chapter, he ought regularly to be carried before a justice of the peace;' and how he is there to be treated I shall next show under the second head of commitment and bail.

The justice before whom such prisoner is brought is bound immediately to examine the circumstances of the crime alleged;' and to this end, by statute 2 & 3 Ph. and M. c. 10, he is to take in writing the examination of such prisoner and the information of those who bring him: which, Mr. Lambard observes,(a) was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men. If upon this inquiry it manifestly appears that either no such

a

(a) Eirenarch. b. ii. c. 7. See page 357.

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? In a late case, where it was stated the party behaved improperly in a church, it was held that though a constable might be justified in removing him from the church and detaining him till the service was over, yet he could not legally detain him afterwards to take him before a magistrate. 2 B. & C. 699.

A watchman should deliver the supposed offender over to a constable, or take him before a magistrate. Dalt, J., c. 104.

A private person may do the same as a watchman. In a late case it was held that & private person when he took a party endeavouring to commit a felony might detain bim in order to take him before a magistrate. 1 R. & M. C. C. 93.—Chitty.

? A constable arresting a man on suspicion of felony is bound to take him before a magistrate as soon as he reasonably can; and he has no right to detain a prisoner three days without taking him before a magistrate, in order that evidence may be collected in support of a felony with which he is charged. Wright vs. Court, 6 D. & R. 623. And see 2 Hawk. P. C. 117.

It is the duty of the magistrate to take and complete the examination of all concerned, and to discharge or commit the individual suspected, as soon as the nature of the case will admit. Fost. 142, 143. But he is allowed a reasonable time for this purpose before he makes his final decisions. It seems to have been formerly considered that the law intends three days to be sufficient, and that a magistrate cannot justify the detainer of a party eighteen days under examination. Scavage vs. Tateham, Cro. Eliz. 829. 1 Hale, P. C. 585, 586. 2 id. 120, 121.2 Hawk. P. C. c. 16, s. 12. 1 Chitt. C. L. 72. This point was considered in a very recent case, - Davis vs. Capper, King's Bench, sittings in banc before Easter Term, 1829. That was an action against a magistrate for false imprisonment. The plaintiff had been brought before the defendant upon suspicion of felony, and was committed by him for further examination for fourteen days. The court, without giving judgment upon the whole case, which comprehended other questions, expressed a strong opinion that fourteen days was not a reasonable period for commitment for re-examination, and that a warrant for such commitment was bad for not setting forth full and satisfactory reasons for committing for so long a period; and they referred to the case of Scavage vs. Tateham (Cro. Eliz. 829) as justifying that opinion. Ed. MS.-Cutty.

3 The prisoner's examination must not be upon oath: that of the witnesses must be. 2 Hale, P. C. 52. 1 id. 585. 1 Phil. Ev. 106. Where magistrates first took the examination of witnesses, not on oath, in support of a conviction, and afterwards swore them to the truth of their evidence, the court of King's Bench expressed their disapprobation of the practice. Rex vs. Kiddy, 4 D. & R. 734. The prisoner has no right to the assistance of an attorney when under examination on a charge of felony: the privilege, when allowed, is entirely a matter of discretion in the magistrate. Cox vs. Coleridge, 2 D. & R. 86. 1 P. & C. 37. 1 M. C. 142. See, however, an elaborate note on this important subject, Paley on Convictions, 2d ed. by Dowling, 28, et seq., where the propriety of that decision is considered.-Cutty.

* But the statute of Philip and Mary was repealed, by statute 7 Geo. IV. c. 64, and other provisions introduced. And now the statute 11 & 12 Vict. c. 42, s. 17 provides that in all cases where any person shall appear or be brought before any justice or justices of the peace, charged with any indictable offence, whether committed in England or Wales,

crime was committed or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must either be committed to prison or give bail; that is, put in securities for his appearance to answer the charge against him. This commitment, therefore, being only for safe custody, wherever bail will answer the same intention it ought to be taken, as in most of the inferior crimes; but in felonies and other offences of a *capital nature no bail can be a security

[*297 equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit to save his own life? and what satisfaction or indemnity is it to the public to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which the Athenian magistrates, when they took a solemn oath never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money or been guilty of treasonable practices.(b) What the nature of bail is hath been shown in the preceding book,(c) viz., a delivery or bailment of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance; he being supposed to continue in their friendly custody, instead of going to gaol. In civil cases we have seen that every defendant is bailable ; but in criminal matters it is otherwise. Let us therefore inquire in what cases the party accused ought or ought not to be admitted to hail. (6) Pott. Antiq. b. i. c. 18.

() See book iii. page 200.

3

or upon the high seas, or on land beyond the sea, or whether such person appear volun. tarily upon summons, or have been apprehended with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit him to prison for trial or before admitting him to bail, shall in the presence of such accused person, who is at liberty to put questions to the witnesses, take the statement on oath or affirmation of the witnesses and reduce such statement to writing. And after such examination is completed, their depositions are to be read over to the accused, and the justices, or one of them, shall say to him these words, or words to the like etfect:

Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say any thing unless you desire to do so; but whatever you say will be taken down in writing, and may be given in evidence against you upon the trial.” And if the accused then makes a statement, it is to be taken down accordingly. The place where the examination is taken is not to be deemed an open court, but such examination may be conducted privately; and (unlike cases of summary conviction) it is discretionary with the justices to allow the accused the assistance of an attorney or counsel.---STEWART.

Recognizance to Prosecute.—Besides this commitment and bail, the magistrate should take the recognizance of the prosecutor to appear and prefer an indictment and give evidence at the next sessions of the peace, or general gaol-delivery, as the case may require, and in case of refusal may commit him to gaol. 1 Hale, 586. 2 Hale, 52, 121. 3 M. & S. 1. See further, Burn, J., Recognizance. Williams, J., Recognizance. 1 Chitt. C. L. 90.

Recognizance to give Evidence.-When it appears that a person brought before the magistrate as a witness may probably be able to give material evidence against the prisoner, he has, in the cases of manslaughter and felony, by the express provisions of the statutes 1 & 2 Ph. and M. c. 13, s. 5 and 2 & 3 Ph. and M. c. 10, s. 2, authority to bind such witness by recognizance or obligation to appear at the next general gaol-delivery, to give evidence against the party indicted ; and infants and married women, who cannot legally bind rhemselves, must procure others to be bound for them. And if the witness refuse to give such recognizance, the magistrate has power to commit him, this being virtually included in his commission, and, by necessary consequence, upon the above-mentioned statutes. 3 M. & S. 1. 1 Hale, 586. This doctrine was confirmed in a late case where a married woman refused to enter into a recognizance for her appearance at sessions, to give evidence against a felon, and the magistrate committed her, and the court of King's Bench held that the commitment was legal. 3 M. & S. 1. But a justice of the peace is not authorized by law to commit a witness willing to enter into a recognizance for his appearance to give evidence against an offender, merely because such witness is unable to find a surety to join him in such recognizance, nor ought the justice to require such surety: the party's own recognizance (at the peril of commitment) is all that ought w be required. Per Graham, B., Bodmin Sum. Ass. 1817. 1 Burn, J., 24th ed. 1013.-CH-ITY. VOL. II.-35

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