place of making, and the cause for which it is made, and should be [291] directed to the "constable or other peace-officer (or, it may be, to any private person by name) (g) (8), requiring him to bring the party either generally (9) before any justice of the peace for the county or only before the justice who granted it; the warrant in the latter case being called a special warrant (h). A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty (i); for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion. And a warrant to apprehend all persons, guilty of a crime therein specified, is no legal warrant for the point, upon which its authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon, be really guilty or not (10). It is therefore in fact no warrant at all; for it will not justify the officer who acts under it (k): whereas a warrant properly penned (even though the magistrate who issues it should exceed his jurisdiction), will by statute 24 Geo. II. c. 44. at all events indemnify the officer who executes the same ministerially. And when a warrant is received by the officer he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends. A warrant from the chief, or other, justice of the court of king's bench extends all over the kingdom and is teste'd, or dated, England; not Oxfordshire, Berks, or other particular county. But the warrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, signed by a justice of the [*292] *peace in another, as Middlesex, before it can be executed there (11). Formerly, regularly speaking, there ought to have been a fresh warrant in every fresh county: but the practice of backing warrants had long prevailed without law, and was at last authorized by statutes 23 Geo. II. c. 26. and 24 Geo. II. c. 55. And now, by statute (g) Salk. 176. (h) 2 Hawk. P. C. 85. (i) 1 Hal. P. C. 580. 2 Hawk. P. C. 82. (k) A practice had obtained in the secretaries' office ever since the restoration, grounded on some clauses in the acts for regulating the press, of issuing general warrants to take up (without naming any person in particular) the authors, printers, or publishers of such obscene or seditious libels, as were particularly specified in the warrant. When those acts expired in 1694, the same practice was ing and signed by him, unless a seal is express ly required by a particular act of parliament. Willes Rep. 411. Bull. N. P. C. 83. In New-York a seal is not required, (2 R. S. 706, § 3) and the warrant is to be returned before the officer who issued it: Id. (8) It has recently been decided, that warrants may be directed to officers either by their particular names or by the description of their office; and that in the first case, the officer may execute the warrant any where within the jurisdiction of the magistrate who issued it; in the latter case, not beyond the precincts of his office. And where a warrant of a magistrate was directed "To the constables of W. and to all other his majesty's officers," it was held that the constables of W. (their names not being inserted in the warrant) could not execute it out of the district. 1 Bar. & Cres. 288. 2 D. & R. 444. If an act of parliament direct that a justice shall grant a warrant, and do not state to whom it shall be inadvertently continued in every reign, and under every administration, except the four last years of queen Anne, down to the year 1763; when such a warrant being issued to apprehend the authors, printers, and publishers of a certain seditious libel, its validity was disputed; and the warrant was adjudged by the whole court of king's bench, to be void, in the case of Money v. Leach. Trin. 5 Geo. III. B. R. After which the issuing of such general warrants was declared illegal by a vote of the house of commons. (Com. Journ. 22 Apr. 1766.) directed, it must be directed to the constable, and not to the sheriff, unless such power be given by the act. 2 Ld. Raym. 1192. 2 Salk. 381. sed vid. 1 H. Bla. 15, notis. These distinctions are now rendered immaterial by the 5 Geo. IV. c. 18. s. 6, whereby the constable, or any other peace-officer, of any parish or place, may execute any warrant within the magistrate's jurisdiction, whether the warrant be addressed to him by name or not; or whether he be a constable or peace-officer, &c. of the place in which he executes the warrant. (9) The warrant need not state the time when the party is to be brought before the magistrate for examination. Fort. 143. 8 T. R. 110. (10) General warrants to take up loose, idle, and disorderly people, 3 Burr. 1766. and search warrants, Hawk. b. 2. c. 13. s. 17. n. 6. are the only exceptions to this rule. (11) So in New-York. (2 R. S. 707, § 5.) 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 executed by the local magistrates, and the offender conveyed back to that 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 () 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. with out a treaty for that purpose; see the case of Carrara, alias Polari, in the New-York American 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 surrender of criminals flying from foreign countries. 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 offence 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 endeavoured 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. 5 East, 304, 8. 1 Leach, 206. (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 instructions to the American Comm'rs. id. 9 vol. p. 347 (in 1813). Mr. Livingston's letter to Gov. Throop, 24 Aug. 1831. Amer. Jurist, No. 2. p. 304. See also 1 R. S. 164, ( 8, &c. : 2 id. 748, 45. 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 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 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 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 justified 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 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 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 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. 3. 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. 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 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 an 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 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, he shall be severely punished as a disturber of the public peace (y). (s) 2 Hal. P. C. 82, 83. (t) Bracton, 1. 3, tr. 2, c. 1, ◊ 1. Mirr. c. 2, ◊ 6. (u) See Book III. 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 night, any one may apprehend and detain him (w) Mod. Un. Hist. vi. 383. vii. 156. till he be carried before a magistrate. 1 R. & (17) These acts are all repealed by 7 and 8 Geo. IV. c. 27. In order to encourage farther the apprehending of certain felons, rewards 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 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 5s. 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 407. (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 the 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. (2) 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 (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 certain cases. (1) In a late case, where it was stated the party behaved 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 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 of |