and for that purpose is authorized (as upon a justice's warrant) to break open doors, and even to kill the felon if he can not otherwise be taken; and, if he or his assistants be killed in attempting such arrest, it is murder in all concerned. 5. Watchmen, either those appointed by the statute of Winchester, 13 Edward 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 night-walkers, and commit them to custody till the morning.ois vate persons 3. Any private person (and a fortiori a peace-officer) that 3. By priis present when any felony is committed is bound by the law without to arrest the felon, on pain of fine and imprisonment, if he es- warrant. capes through the negligence of the standers-by. And they [293] may justify breaking open doors upon following such felon; and if they kill him, provided he can not be otherwise taken, it is justifiable; though if they are killed in endeavoring to make such arrest, it is murder. Upon probable suspicion, also, a private person may arrest the felon, or other person so suspected. But he can not justify breaking open doors to do it; 2 Hal., P. C., 88-96. • Ibid., 98. P 2 Hawk., P. C., 74. 92 Hal., P. C., 77. and county police constables in this re- (15) But at common law no peace- power is given to constables and other As to the powers of the metropolitan into the custody of a constable, upon a With respect to interference and ar 4. By a and if either party kill the other in the attempt, it is manslaughter, and no more." 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 pretense 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 ofbue and cry. ficers 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. 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 [294] 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," 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 2 Hal., P. C., 82, 83. t Bracton, 1. 3, tr. 2, c. 1, § 1; Mirr., c. 2, § 6. rests in order to prevent the commission 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 Bos. & P., 260; 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; i Bos. & P., 264, n. a; 1 East, P. C., 304. If a man be found attempt ing to commit a felony in the night, any one may apprehend and detain him till he be carried before a magistrate. 1 Mood., C. C., 93.-[CHITTY.] See the 7 & 8 Geo. IV., c. 29, s. 63, and c. 30, s. 28, supra, n. (14). £5; 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 officers of justice, responsible for all the robberies committed within their respective districts. Hue and cryx 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 neighboring 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 the 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* WARDS. In order to encourage further the apprehending of certain OF REfelons, 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 receive a reward of £40 from the public; to be paid to them (or, if killed in the [295] endeavor 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 £10, to be paid by the hundred indemnified by such taking. By statutes 6 & 7 Will. 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 offense be w Mod. Un. Hist., vi., 383; vii., 156. * 2 Hal., P. C., 100-104. (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, after previous demand of admittance. 2 Hale, 103; Burn, J., Hue and Cry. They must, however, ascertain that fact, y 1 Hawk., P. C., 75. as, if he be not found, they will be tres- *The law of hue and cry at an early day was recognized in New York as part of the law of the land, but it has long since been exploded.-(See Laws of N. Y., vol. i., p. 332, 335, 336, Greenl. ed.) We have no statutes of the kind. VOL. IV.-Y 337 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 Will. 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 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 £40.2 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 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." The statutes 4 & 5 W. & M., c. 8; 6 & 7 Will. III., c. 17; and 5 Ann., c. 31 (together with 3 Geo. I., c. 15, s. 4, which directs the method of reimburs (18) All these statutes are now repealed, as to these parts thereof, by the 58 Geo. III., c. 70; 7 Geo. IV., c. 64; and 7 & 8 Geo. IV., c. 27. But by the 7 Geo. IV., c. 64, s. 28, where any person shall appear to any court of oyer and terminer or jail delivery, to have been active in or toward the apprehension of any person charged with any of the following offenses: murder; maliciously shooting or attempting to discharge loaded arms at any person; stabbing, cutting, poisoning. or administering any thing to procure miscarriage; rape; burglary, or house-breaking; robbery; arson; horsestealing, bullock-stealing (see 7 C. & P., 444), or sheep-stealing; or being accessory before the fact to any of those of fenses; or with knowingly receiving stolen property; the court may order the 338 ing the sheriffs), are extended to the county palatine of Durham, by stat. 14 Geo. III., c. 46. sheriff of the county in which the offense was committed to pay to such person such sum as shall seem reasonable and sufficient to compensate him for his expenses, exertions, and loss of time in or toward such apprehension; which is to be repaid by the treasury (s. 29). The same power is given, in the case of receiving stolen property, to the Quarter Sessions. And by s. 30, if any man shall be killed in endeavoring to apprehend any person charged with any of the above offenses, the court may order the sheriff to pay to his widow, or children, or parents, such sum of money as to the court in its discretion shall seem meet. The rewards authorized by s. 28 are not confined to cases where the party has had an actual loss of time, or been at an expense. 7 C. & P., 166 CHAPTER XXII. OF COMMITMENT AND BAIL. COMMIT WHEN a delinquent is arrested by any of the means mention- SECOND. ed in the preceding chapter, he ought regularly to be carried MENT AND before a justice of the peace;' and how he is there to be treat- BAIL. ed, I shall next show, under the second head, of commitment and bail. tion. The justice before whom such prisoner is brought is bound Examinaimmediately to examine the circumstances of the crime alleged;" 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, was the first warrant given for the examination of a felon in the English law.' For, at the common law, nemo tenebatur pro a Eirenarch., b. 2, c. 7; see page 357. (1) 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 jailer 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 that 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 afterward to take him before a magistrate. 2 B. & Cr., 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 endeavoring to commit a felony, might detain him, in order to take him before a magistrate. 1 Mood., C. C., 93. [CHITTY.] (2) The magistrate may, if he think fit, commit the offender from time to time for further examination, so as such committals do not exceed a reasonable time under all circumstances of the case. See 1 Chit., Cr. L., 2d ed., 73, 4; 10 B. & Cr., 28; 1 Man. & G., 257. If the com mittal be for an unreasonable time, the By the stat. 6 & 7 Will. IV., c. 114, 218. As to the estreating of recognizances, &c., see 1 Chit., Crim. L., 92; 13 Price, 299; Cro., C. C., 23 to 27; 7 Geo. IV., c. 64, s. 31, ante, p. 253, n. (3). (3) The stats. 1 & 2 Ph. & M., c. 13, and 2 & 3 Ph. & M., c. 10, are repealed by the 7 Geo. IV., . 64; the second section of which provides, that the two justices of the peace (who, by section 1, are empowered to take bail in cases of felony; see infra, n. (9)), before they shall admit to bail, and the justice or justices, before he or they shall commit to prison, any person arrested for felony, or on sus |