13 Geo. III. c. 31. any warrant for apprehending an English offender, who may have escaped into Scotland, and vice versa, may be endorsed and e>. ecuted by the local magistrates, and the offender conveyed back to tha part of the united kingdoms, in which such offence was committed (12). 2. Arrests by officers without warrant, may be executed, 1 By a justice 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 (1). 2. The sheriff (13), and, 3. The coroner, may apprehend 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 like to ensue, he may upon probable suspicion arrest the felon (14); and for that purpose is authorized (as upon

(2) 1 Hal. P. C. 86.

(12) And now by the 44 Geo. III. c. 92. if any offender has escaped from Ireland into England or Scotland, or vice versa, he may be apprehended by a warrant endorsed by a justice of the peace of the county or jurisdiction within which the offender shall be found; and he may be conveyed to that part of the united kingdom, in which the warrant issued, and the offence is charged to have been committed.

By the 54 Geo. III. c. 186. all warrants is sued in England, Scotland, or Ireland, may be executed in any part of the United Kingdom. Independently of this the secretary of state for Ireland may, by his warrant, remove a prisoner there to be tried in England, for an offence committed in the latter, 3 Esp. Rep. 178; and an English justice may commit a person here who has committed an offence in Ireland, preparatory to sending him thither for trial. 2 Stra. 848. 4 Taunt. 34.

With respect to the time of arresting a person. A person may be apprehended in the night as well as the day, 9 Co. 66; and though the statute 29 Car. II. c. 7. s. 6. prohibits arrests on Sundays, it excepts the cases of treasons, felonies, and breaches of the peace: in these cases, therefore, an arrest may be made on that day. Cald. 291. 1 T. R. 265. Willes,

459.

As to the place in which a party may be arrested. Since the privileges of sanctuary and abjuration were abolished, by 21 Jac. I. c. 28, no place affords protection to offenders against the criminal law. And even the clergy may, on a criminal charge, be arrested whilst in their churches, Cro. Jac. 321. though it is illegal to arrest them in any civil case, whilst in the church to perform divine service, or going

It seems extremely doubtful whether this decision should be followed in the U. S. without a treaty for that purpose; see the case of Carrara, alias Polari, in the New-York Ame-ican for the country, for Oct. 7, 1831, decided by Mr. Recorder Riker, according to the case in Taunton, and in favour of the constitutionality of the law of New-York authorizing the urrender of criminals flying from foreign countri 28. See the cases there referred to, 4

m) See book I. page 355.

to or returning from the same on any day. Bac. Ab. Trespass, D. 3. And if a person having committed a felony in a foreign country comes into England, he may be arrested here, and conveyed and given up to the magistrates of the country, against the laws of which the of fence was committed. 4 Taunt. 34.†

It may be here observed as a general rule, that if the warrant be materially defective, or the officer exceed his authority in executing it, and if he be killed in the attempt, this is only manslaughter in the party whom he en deavoured to arrest, 1 East P. C. 310. 1 Leach, 206. 6 T. R. 122. 5 East. 308. 1 B. & C. 291; and any third person may lawfully interfere to prevent an arrest under it; doing no more than is necessary for that purpose. East, 304, 8. 1 Leach, 206.

5

(13) 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 may arrest the offender. 1 Saund. 77. 1 Taunt. 146.

(14) 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 Johns. Ch. R. 106 (in 1819). 2 Wheeler's R. (in 1823). 5 Wheat. R. note 1. Letter of Mr Jefferson to Mr. Genet, 12 Sept. 1793, (1 Amer State Papers, 176.) Mr. Monroe's instruc tions to the American Comm'rs. id. 9 vol. p 347 (in 1813). Mr. Livingston's letter to Go Throop, 24 Aug. 1831. Amer. Jurist, No. p. 304. See also 1 R. S. 164, § 8, &c.: 2 l 748, ◊ 45. And see note (8), p. 353. Ho

notes, at end.

a justice's warrant) to break open doors, and even to kill the feion if ne cannot otherwise be taken; and, if he or his assistants be killed in attempt ing such arrests, 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 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) (15).

2. Any private person (and a fortiori a peace-officer) that is [*293] 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 (9). 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;

(n) 2 Hal. P. C. 88, 89. (0) Ibid. 98.

(p) 2 Hawk. P. C. 74.

guilty. 4 Esp. Rep. 80. Holt C. N. P. 478. Hawk. b. 2. 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 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. 3. c. 14. 2 Inst. 52. Bac. Ab. tit. Constable, G. And, by a modern act of parliament, an express pow. er 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 sun-rising, 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, headboroughs, patroles, 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.

(15) But at common law, no peace-officer is tified in taking up a night-walker, unless

(q) 2 Hal. P. C. 77.

(r) Stat. 30 Geo. II. c. 24.

he has committed some disorderly or suspicious act. Bac. Ab. Trespass, D. 3. 2 Lord Raym 1301.

(16) Where a felony has been actually com mitted, 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 pri vate person had delivered another into the cus tody 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, al though a felony had been actually committed 6 T. R. 315.

With respect to interference, and arrests in order to prevent the commission of a enme any person may lawfully lay hold of a lunatic about to commit any mischief, which, if com mitted 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 ma nifestly 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. 3. 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. Tres pass, D. 3. And the riding in a body to que" a riot is lawful, and no informatior will ce granted for small irregularities in vry pursuit

and if eitner party kill the other in the attempt, it is manslaughter, and 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 an hue and cry raised upon a felony committed. An hue (from huer, to shout, and cry), hutesium et amor, 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 *hun- [*294] dred 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 (17). 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 ne shall be severely punished as a disturber of the public peace (y).

(a) 2 Hal. P. C. 82, 83.

(t) Bracton, l. 3, tr. 2, c. 1, 1. Mirr. c. 2, ◊ 6. (u) Se Book II. page 161.

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 might, any one may apprehend and detain him

(w) Mod. Un. Hist. vi. 383. vii. 156.
(*) 2 IIal. P. C. 100-104.
(y) 1 Hawk. P. C. 75.

till he be carried before a magistrate. 1 R. &
M. C. C. 93.

(17) These acts are all repealed by 7 and 8 Geo. IV. c. 27.

In order to encourage farther the apprehending of certain felons, rewardı and .mmunities 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 re

ceive a reward of 401. from the public; to be paid to them (or, if [*295] *killed in the endeavour to 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 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 burglary, house-breaking, horse-stealing, or private larceny to the value of 5.s. from any shop, ware-house, 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 40l. (2). 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 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 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).

CHAPTER XXII.

OF COMMITMENT AND BAIL.

WHEN a delinquent is arrested by any of the means mentioned in .he preceding chapter, he ought regularly to be carried before a justice of the peace (1) and how he is there to be treated, I shall next shew, under the second head, of commitment and bail.

:

(1) The statutes 4 & 5 W. & M. c. 8. 6 & 7 W. UI. c. 17. and 5 Ann. c. 31. (together with 3 Geo. I. . 154, which directs the method of reimbursing

(18) The above acts are repealed by 7 and 8 Geo. IV. c. 22. 27. 64. and 58 Geo. III. c. 70; and costs are allowed to prosecutors in Dertain cases.

(1) In a late case, where it was stated the party benared improperly in a church, it was

the sheriffs) are extended to the county-palatine of Durham, by stat. 14 Geo. III. c. 46.

held that though a constable might be justified in removing him from the church, and detain ing 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

The justice before whom such prisoner is brought, is bound immediatery to examine the circumstances of the crime alleged (2): and to this end by statute 2 & 3 Ph. & M. c. 10. he is to take in writing the examination o such prisoner, and the information of those who bring him (3): 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 ms nifestly appears, that either no such crime was committed, or that the sus picion 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 (4). This commitment therefore

(a) Eirenarch. b. 2, c. 7. See page 357.

fender 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. R. & M. C. C. 93.

1

(2) A constable, arresting a man on suspiion of felony, is bound to take him before a inagistrate 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 v. Court, 6 D. and R. 623. And see 2 Haw. 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, 3. 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 v. Tateham, Cro. Eliz. 829; 1 Hale, P. C. 585, 6; 2 id. 120, 1; 2 Haw. P. C. c. 16, s. 12; 1 Chit. Cr. L. 72. This point was considered in a very recent case, Davis v. Cap. per. K. B., sittings in banc before Easter term, 1829. That was an action against a magistrate for false imprisonment. The plaintiff had beer brought before the defendant upon suspicior. 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 commit

In New-York, see accordingly, 2 R. S. 709, 14, &c. The prisoner is to be allow ad time to send for counsel, who shall be present at the examination: and the prisoner is be cautioned that he is not bound to answer

ting for so long a period; and they referred to the case of Scavage v. Tateham, Cro. Eliz 829, as justifying that opinion. Ed. MS.

(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 v. Kiddy, 4 D. and R. 734.t The prisoner has no righ: to the assistance of an attorney, when under examination on a charge of felony; the privilege, when allow ed, is entirely a matter of discretion in the magistrate. Cox v. Coleridge, 2 D. and R 86; 1 B. and C. 37; 1 M. C. 142. See, how ever, 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.

(4) Recognizance to Prosecute.--Besides this commitment and bail, the magistrate should take the recognizance of the prosecu tor 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. Re cognizance; Williams J. Recognizance; 1 Chit. C. L. 90.

Recognizance to give Evidence.-When it ap pears that a person brought before the magis trate as a witness, may probably be able to give material evidence against the prisoner, he has, in the cases of manslaughter and fe lony, 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 any question: he may also produce his own witnesses, who are to be examined. If there be "no probable cause for charging" him, he is to be discharged. (Id. 20.)