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 arrests, it is murder in all concerned. (n) 5. Watchmen, either those ap-. pointed by the statute of Winchester, 13 Edw. I. c. 4. to keep watch and ward in all towns from sun-setting to sun-rising, or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly night-walkers, and commit them to custody till the morning. (o) 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 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. (q) Upon probable suspicion also a private person may arrest the felon, or other person so suspected. (r) 16 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 p 2 Hawk. P. C. 74. q 2 Hal. P. C. 77. s 2 Hal. P. C. 82, 83. n 2 Hal. P. C. 88, 89. o Ibid 98. r Stat. 50 Geo. II. c, 24. on suspicion of having received 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 night-walkers, and persons reasonably suspected of felony, in the night. 3 Taunt. 14. 1 East, P. C. 303. Hawk. b. 2. c. 12. s. 20. 2 Hale, 89. 5 Edw. III. c. 14. 2 Inst. 52. Bac, Ab. tit. 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 sun-setting and before sunrising, goods suspected to be stolen. 22 Geo. III. c. 58. s 3. 54 Geo. III. c. 57. s. 16, 17, 18. And other statutes, 32 Geo. III. c. 53 s 17. 51 Geo. III. c. 119. s. 18 and 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, beadboroughs, patroles, and watchmen, are empowered to apprehend reputed thieves frequenting the streets, hways, 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, Keut, 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. Chitty. (15) But at common law, no peace officer is justified in taking up a night-walker unless he has committed some disorderly or suspicious act. Bac. Ab. Trespass, D. 3. 2 Lord Raym. 1301. (16) 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, 5 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. 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. Ab, 559. E. pl. 3. n. 8. Selw. 3d ed 830. Com. Dig. Pleader, 3 M. 22. Bac. Abr. Trespass, D. S. 1 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. 260. 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 till he be carried before a magistrate, 1 R. & M. C. C. 93. Chitty 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 com mitted. 4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is, upon and hue and cry raised upon a felony committed. An 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 woll 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 [294] 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 hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II. c. 16. the constable or like officer, refusing or neglecting to make hue and cry, forfeits 5l.: 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. 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 officer 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 the 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 an hue and cry, without cause, he shall be severely punished as a disturber of the public peace. (y) In order to encourage farther the apprehending of certain felons, re t Bracton, l. 3. tr. 2 c. 1. § 1. Mirr. c. 2 §6. 17 (17) The pursuers under hue and cry, if the party suspected is actually in a house, have an unquestionable right to break open the outer door to secure him, on previous demand of admittance. 2 Hale, 103.; Burn J. Hue and Cry; Williams J. Hue and Cry, 3. They must, however, ascertain that fact, as if he be not found, they will be trespassers. Id. ibid. 3 B. & P. 223. 1 Marshal, 565. But they may search all suspected places which they can enter without forcing an outer door, whether they succeed or fail. 2 Hale, 163. Barl. J. 316. wards and immunities are bestowed on such as bring them to justice, by divers acts of parliament. The statute 4 & 5 W. & 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, [295] if killed in the endeavour to take him, their executors) by the she riff 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 10l. 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 bur glary, house-breaking, horse-stealing, or private larciny to the value of 5s. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31. any person so apprehending and prosecuting a burglar, or felonious house-breaker, (or, if killed in the attempt, his executors,) shall be entitled to a reward of 401. (*) 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 statute 14 Geo. II. c. 6. explained 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 cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 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.18 The statutes 4 & 5 W. & M. c. 8. 6 & 7 W. III. c. 17. and 5 Ann. c. 31. (together with 3 Geo. I. c. 15. § 4. which directs the method of reimbursing the sheriffs) are extended to the county-palatine of Durham, by stat. 14 Geo. III. c. 46. (18) By the statute 58 Geo. III. c. 70. so much of the above acts of 4 & 5 Will. & Mar. c. 8., 6 & 7 Will. III. c. 17., 5 Ann. c. 31., 14 Geo. II. c. 6., and 15 Geo. II. c. 28. as gives the above rewards are repealed; and by the second section of the same act, the certificates, or Tyburn tickets, grantable under the 10 & 11 Will. III. c. 23. are ordered not to be transferable or assignable, by the person to whom they were originally granted, to any other person. But by the third section, nothing contained in this act shall be construed to deprive the executors or administrators of persons killed in endeavouring to apprehend any robber, of any reward to which they may be entitled by virtue of the recited acts. The act saves, to the party apprehending, the right to the horse, furniture, arms, &c. given by the 4 W. & M. c. 8.; and saves also the pecuniary rewards to the executors of persons killed in endeavouring to apprehend. CHAP. XXII. OF COMMITMENT AND BAIL.' 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 shew, 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 :3 and to this end by statute 2 & 3 Ph. & 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 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 a Eirenarch. b. 2. c. 7. See page 357. (1) See in general, 1 Chit. Crim. L. 2 ed. 72 to 132. (2) A constable having arrested an offender, may, in case of an affray, put him in the stocks, or otherwise confine him till the heat is over; or he may in all cases convey him to the sheriff or gaoler of the county or franchise; but the safest course is to take him before a magistrate. 2 Hale, 95. 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 a private person, when he took a party endeavouring to commit a felony, might detain him, in order to take him before a magistrate. 1 R. & M. C. C. 93. Chitty. (3) It seems the magistrate may, if he think fit, commit the offender from time to time for further examination. 1 Chit. Cr. L. 2 ed. 73, 4. An attorney, or even counsel, for the party accused, has no absolute right to be present at the examination. 1 B. & C. 37. 2 D. & R. 86. 3 B. & A. 432. 1 Chit. Rep. 218. (5) As to the examination of witnesses, accomplices, and the prisoner in general, see 1 Chit. C. L. 2 ed. 77 to 88. Burn J. tit. Examination, Dick. J. tit. Examination; and as to how the examinations are to be kept and used, 1 Chit. C. L. 88, 9.; as to certifying the examination, id. 91. (5) A magistrate is clearly bound, in the exercise of a sound discretion, uot to commit any one unless a primâ facie case is made out against him by witnesses entitled to a reasonable degree of credit. Per Bayley J. 1 Barn. & Cres. 50, 1 Dick. J. Commitment, II. note a. Examination, VIII. In modern practice, though exculpatory evidence is received at the instance of the prisoner, and certified with the other depositions, unless it appear in the clearest manner, that the charge is malicious as well as groundless; it is not usual for the magistrate to discharge him even when he believes him to be altogether innocent. (6) 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 Chit. C. L. 90. 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 [297] other offences of a capital nature, no bail can be a security equi valent 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 satis. faction 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 shewn in the preceding book, (c) viz. a delivery of 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 bail. And, first, to refuse or delay to bail any person bailable, is an offence against the liberty of the subject, in any magistrate by the common law, (d) as well as by the statute Westm. 1. 3 Edw. I. c. 15. and the habeas corpus act, 31 Car. II. c. 2. And, lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute 1 W. & M. st. 2. c. 1. that excessive bail ought not to be required; though what bail should be called excessive, must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal doth not appear. (e) Bail may be taken either in court, or in some particular cases by the sheriff, coroner, or other magistrate: but most usub Pott. Antiq. b. 1. c. 18. 8 c See Book III. page 290. e 2 Hawk. P. C. 39. d 2 Hawk. P. C. 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. & M. c. 13. s. 5. and 2 & 3 Ph. & 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 themselves, 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 confirmned 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 cominitment) is all that ought to be required; per Graham, B. Bodmin Sum. Ass. 1817. 1 Burn J. 24 ed. 1013. The expense and loss incurred by the witnesses, if poor, in afterwards attending to give evidence, is to be repaid them, according to the regula tions contained in the statute 27 Geo. II. c. 3. s. 3. 18 Geo. III. c. 19. s. 8. and 58 Geo. III. c. 70. Cro. C. C. 18. 1 Chit. C. L. 90. a. 91. As to the estreating of recognizances, &c. see 1 Chit. C. L. 92. 13 Price, 299. 23 to 27. Cro. C. C. (7) And even if the criminal does appear, yet, if the bail were taken corruptly, the magistrate would continue liable to an information or indictment. 2 T. R. 190. (8) Sed quære if a sheriff has this power? it seems not. See 4 T. R. 505. 2 H. Bla. 418. Lamb. 15. (9) The court of king's bench, or any judge thereof, in vacation, may at their discretion admit |