of the peace (3). This they may do in any cases where they have a juris

. diction over the offence; in order to compel the person accused to appear before them (l): for it would be absurd to give them power to examine an offender, unless they had also a power to compel him to attend, and submit to such examination. And this extends undoubtedly to all treasons, felonies, and breaches of the peace (4); and also to all such offences as they have power to punish by statute (5). Sir Edward Coke indeed (c) hath laid it down that a justice of the peace cannot issue à warrant to apprehend a selon upon bare suspicion ; no, not even till an indictment be actually found : and the contrary practice is by others (d) held to be grounded rather upon connivance than the express rule of law; though now by long. custom established. A doctrine which would in most cases give a loose to felons to escape without punishment; and therefore sir Matthew Hale hath combated it with invincible authority and strength of reason : maintaining, 1. That a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted (e) (6); and, 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant; because he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine upon oath the party requiring a 'varrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party against whom the warrant is prayed (f). This warrant ought to be under the hand and seal of the justice (7), should set forth the time and

(1) 2 Hawk. P. C. 84.
(c) 4 Inst. 176.
(d) 2 Hawk. P. C. 84.

(e) 2 Hal. P. C. 108.
(1) Ibid. 110.

mons (14 East. I. 163,) or house of lords, (8 1 B. & B. 548. Gow. 84. Fortes. 37. 358. 140. T. R. 314,) or by a judge of the court of king's Jl St. Tr. 305. 316. 2 Wils. 159. 160, and bench. i Hale, 578; and see 48 Geo. III. c. nuisances, when persisted in, Vent. 169. 1 58.

Mod. 76. 5 Mod. 80. 142. 6 Mod. 180, subWhen the offender is not likely to abscond ject the offender to such criminal process. before a warrant can be obtained, it is in ge. And there are some misdemeanors for which neral better to apprehend him by a warrant, particular acts of parliament expressly authothan for a private person, or officer, to arrest rize a justice of the peace to issue his war. him of his own accord, because if the justice rant, as, for keeping a disorderly house, 25 should grant his warrant erroneously, no ac- Geo. II. c. 36. s. 6, or obtaining inoney under tion lies against the party obtaining it. 3 Esp. false pretences. 30 Geo. II. c. 24. In mo166, 7. And if a magistrate exceed his juris. dern practice, however, it is not usual for a diction, the officer who executes a warrant is justice out of sessions to issue a warrant for protected from liability, and the magistrate a libel on a private individual, or for perjury; himself cannot be sued until after a month's though where an illegal publication is mani. notice of action, during which he may tender festly dangerous in its tendency to the public arnends, 24 Geo. II. c. 44, see ante, ! book, 354. interests, they will exercise that discretion n. 37; and no action can be supported against with which long practice has invested them. the party procuring the warrant, though the 4 J. B. Moore, 195. 1 B. & B. 548. Gow. 84. arrest was without cause, unless it can be prov. This also they will always do on the commis. ed that the warrant was obtained maliciously. sion of any misdemeanor, which involves an IT. R. 535. 3 Esp. R. 135.

attempt to perpetrate a felony. And when as. (3) In New York, arrests for any criminal sembled in session, they may issue a warrant offence may be directed by justices of the against a party suspected of perjury, even peace, and by the chancellor, judges of the though he has not been indicted. supreme court, of the superior court of the (5) Where a statute gives a justice juriscity of New-York; circuit judges; judges of diction over an offence, it impliedly gives him county courts, mayors, recorders, and alder. power to apprehend any person charged with men of cities : supreme court commissioners; such offence ; and especially after a party has and by the special justices and assistant jus. neglected a summons. 2 Bing. 63. Hawk. b. tices of the city of New-York; and by no 2. c. 13. s. 15. 12 Rep. 131. b. 10 Mod. 248. others. 2 R. S. 706, $ 1.

(6) See accordingly, 2 R. S. 706, $ 3. (4) Perjury and libels, 4 J. B. Moore, 195. (7) But it seems sufficient if it be in writVol. II.

79

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) (8) (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 io 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. 11. 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 orer the kingdom : and is tested, or dated, Englund; 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.

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,

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 (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 å 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) 1 Hal. P. C. 86.

(m) See book I. page 355. (12) And now by the 44 Geo. III. c. 92. if to or returning from the same on any day. any offender has escaped from Ireland into Bac. Ab. Trespass, D. 3. And if a person having England or Scotland, or vice versa, he may be committed a felony in a foreign country comes apprehended by a warrant endorsed by a jus. into England, he may be arrested here, and tice of the peace of the county or jurisdiction conveyed and given up to the magistrates of within which the offender shall be found; and the country, against the laws of which the of. he may be conveyed to that part of the united fence was committed. 4 Taunt. 34. kingdom, in which the warrant issued, and the It may be here observed as a general rule, offence is charged to have been committed. that if the warrant be materially defective, or

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 'ar

rest 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 IIal. P. C. 88, 89.

(9) 2 Hal. P. C. 77.

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

(0) Ibid. 98.
(p) 2 Hawk. P. C. 74.

2

guilty. 4 Esp. Rep. 80. Holt C. N. P. 478. he has committed some disorderly or suspicious Hawk. b. 2. 12. s. 16. 2 Hale, 92. 89. n. f. act. Bac. Ab. Trespass, D. 3. 2 Lord Raym. Cald. 291 ; and a constable is not justified in 1301. apprehending and imprisoning a person on (16) Where a felony has been actually com. suspicion of having received stolen goods, on mitted, a private person acting with a good the, mere assertion of one of the principal fe- intention, and upon such information as lons. 2 Stark. 167. There are, however, au- announis to a reasonable and probable ground of thorities in favour of an exception to this rule suspicion, is justified in apprehending without in the case of night-walkers, and persons rea. a warrant the suspected person in order to sonably suspected of felony in the night. 3 carry him before a magistrate. Cald. 29). Taunt. 14. I East P. C. 303. Hawk. b.2. c. 4 Taunt. 34, 5. Price, 525. But where a pri12. s. 20. 2 Hale, 89. 5 Edw. 3. c. 14. vate person had delivered another into the cusInst. 52. Bac. Ab. tit. Constable, G. And, tody of a constable, upon a suspicion which by a modern act of parliament, an express pow. appeared afterwards io be unfounded, it was er is given to constables and other peace offi- held that the person so arrested might maintain cers, when on duty, to apprehend every per- an action of trespass for an assault and false son who may reasonably be suspected of hav. imprisonment against such private person, aling, or carrying, or by any ways conveying, at though a felony had been actually committed. any time, after sun-setting and before sun-ris. 6 T. R. 315. ing, goods suspected to be stolen. 22 Geo. With respect to interference, and arrests in IU. c. 58. s. 3. 54 Geo. III. c. 57. s. 16, 17, order to prevent the commission of a crime 18. And other statutes, 32 Geo. III. c. 53. s. any person inay lawfully lay hold of a lunatic 17. 51 Geo. III. c. 119.8. 18 and 24, authorize about to commit any mischief, which, if com constables and other peace-officers to appre- mitted by a sane person, would constitute a hend evil.disposed and suspected persons and criminal offence; or any other person whom reputed thieves. Thus, by the 32 Geo. III. c. he shall see on the point of committing a trea53. s. 17, constables, headboroughs, patroles, son or selony, or doing any act which will inaand watchmen, are empowered to apprehend nifestly endanger the life or person of another, reputed thieves frequenting the streets, high- and may detain him until it may be reasonably ways, and avenues of public resort, and con. presumed that he has changed his purpose; vey them before a proper magistrate. And in but where he interferes to prevent others from order to give more effect to the public office at fighting, he should first notify his intention to Bow-street, the 51 Geo. III. c. 119. s. 24. and prevent the breach of the peace. Hawk b. 2. 54 Geo. III. c. 37. s. 16, 17, 18, direct two ma- c. 12. 3. 19. 1 Hale, 589. 2 Rol. Ab. 559. E. gistrates of that office (of whom the chief pl. 3. n. 8. Selw. 3d ed. 830. Com. Dig. magistrate must be one), to swear in men to Pleader, 3 M. 22. Bac. Abr. Trespass, D. 3. act as constables for Middlesex, Surrey, Es. 1 East P. C. 304. Thus any one may justify sex, Kent, and Westminster, and enable the breaking and entering a party's house and impersons so sworn to apprehend offenders prisoning him, to preveni him from murdering against the peace, both by night and by day, his wife, who cries out for assistance. 2 B. & with all the powers which other constables P. 260. Selw. 3d ed. 830. Bac. Abr. Tres. possess.

pass, D. 3. And the riding in a hody to quell (15) But at common law, no peace-officer is a riot is lawsul, and no information will be justified in taking up a night-walker, unless 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 (1). 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 is acting under a warrant of a justice of the peace. But if a man wartonly or maliciously raises an hue and cry, without cause, he shall be severely punished as a disturber of the public peace (y). (3) 2 Hal. P. C. 82, 83,

(w) Mod. Un. Ilist. vi. 383. vii. 156. (1) Bracton, ?. 3, tr. 2, c. 1, 61. Mirr. c. 2, 0 6. (1) 2 Ilal. P. C. 100-104. (u) Seo Book III. page 161.

(y) I Hawk. P. C. 75. of such a design. | Bla. Rep. 47. 1 B. & P. till he be carried before a magistrate. 1 R. & 264. n. a. 1 East P. C. 304. If a man be M. C. C. 93. found attempting to commit a felony in the (17) These acts are all repealed by 7 and 8 night, any one may apprehend and detain him Geo. IV. c. 27.

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