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part in the resistance; there being either implied or express notification of the character in which he interposed.(o) It has, howerer, often been questioned, how far a constable or other peace officer is authorized to arrest a person upon a charge by another of a mere breach of the peace, after the affray is ended, and peace restored, without a special warrant from a magistrate; and it appears to be the better opinion, that he has no such authority.(p) But if one menace another to kill him, and complaint be made thereof to the constable forthwith, such constable may, in order to avoid the present danger, arrest the party, and detain him till
he can conveniently bring him to a justice of the peace.(9) Of apprehend
It has been said, that if peace officers meet with night-walkers, ing night
or persons unduly armed, who will not yield themselves, but resist or fly before they are apprehended, and who are upon necessity slain, because they cannot otherwise be overtaken, it is no felony in the officers or their assistants, though the parties killed were innocent.(r) But it is doubted whether, at this day, so great a degree of severity would be either justifiable or necessary (especially in the case of bare flight), unless there were a reasonable suspicion of felony.(s) And it has been considered, that the taking up of a person in the night, as a night-walker and disorderly person, though by a lawful officer, would be illegal, if the person so arrested were innocent, and there were no reasonable grounds of suspicion to mislead the officer.(t)
(0) 1 Hale 463. 1 Hawk. P. C. c. 31. to the apprehension of night-walkers, s. 54. Fost. 310, 311, 1 East. P. C. and persons unduly armed. And see c. 5. s. 71. p. 303.
Lawrence v. Hedger, 3 Taunt. 14. (p) i East. P.C. c. 5. s. 72. p. 305, (8) 1 East. P. C. c. 5. s. 70. p. 303. who cites 2 Inst. 52. 2 Hawk. P. C. Both the statutes mentioned in the c. 12. s. 20. and c. 13. s. 8. 2 Lord last note were levelled against parRaym. 1301. Strickland v. Pell, Dalt. ticular descriptions of offenders, who c. 1. s. 7.; and says, that there can be no roved about the country in bodies, in such authority for the purpose of im- a daring manner. prisoning or compelling the party to (1) Tooley's case, 2 Lord Raym. find sureties ; though Lord Coke says, 1296. There is a MS. note of this case (4 Inst. 265.) that a constable may given by the editor of Lord Hale (2 take surety of the peace by, obliga- Hale 89,) which states Lord Holt to tion. Lord Hale and some later au- have said, tbat, of late, constables had thorities have bolden, that such officer made a practice of taking up people may arrest the party upon the charge only for walking the streets : but that of another, though the affray be over, he knew not whence they had such for the purpose of bringing him before authority. But see Lawrence v. Heda justice, to find sureties of the peace, ger, 3 Taunt. 14, where it was holden or for appearance. 2 Hale 90. Hand- that watchmen and beadles have aucock v. Sandham and others, 1785, thority, at common law, to arrest and and Williams v. Dempsey, 1787, cited detaiu in prison, for examination, perin East. P. C. id. 306. But see ante, sons walking in the streets at night, 273, 274.
whom there is reasonable ground to (g) 2 Hale 88. This power seems to suspect of felony, although there is be grounded on the duty of the officer no proof of felony having been comto prevent a probable felony; and mitted. And it has been said by Hawmust be governed by the same rules kins and others, that every privale wbich apply to that case ; though person may, by the common law, arDalton (ch. 116. s. 3.) extends it even rest any suspicious night-walker, and to the prevention of a battery. Vide detain him till he give a good account 1 East. P. C. c. 5. s. 72. p. 306.
of himself. 2 Hawk. P. C. c. 13. S. 6. (r) 2 Hale 85, 97. The statutes 2 c. 8. s. 38.; and it has been held, that a Ed. 3. c. 3. and 5 Ed. 3. c. 14. relate person may be indicted for being a
It has sometimes happened that peace officers have taken oppo- Officers taking site parties in an affray, and the death of one of them has ensued; opposite paras in the case put by Lord Hale, where A. and B., being constables of the vill of C., and a riot or quarrel happening between several persons, A. joined with one party, and commanded the adverse party to keep the peace, and B. joined with the other party, and in like manner commanded the adverse party to keep the peace, and the assistants and party of A. in the tumult killed B.(u) This, Lord Hale says, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and each had as much authority as the other : (w) but upon this it has been remarked, that perhaps it had been better expressed, to have said, that inasmuch as they acted not so much with a view to keep the peace, as in the nature of partisans to the different parties, they acted altogether out of the scope of their characters as peace officers, and without any authority whatever. (x) And in another case, Lord Hale says, that if the sheriff have a writ of possession against the house and lands of A., and A. pretending it to be a riot upon him, gain the constable of the vill to assist him, and to suppress the sheriff or his bailiffs, and in the conflict the constable be killed, this is not so much as manslaughter; but if any of the sheriff's officers were killed, it would be murder, because the constable had no authority to encounter the sheriff's proceeding when acting by virtue of the king's writ. (y)
There is a late case, which appears to have been ruled upon the foregoing principles. Some sheriffs' officers having apprehended a man by virtue of a writ against him, a mob collected, and endeavoured by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs having been violently assaulted, struck one of the assailants, a woman, and as it was thought for some time had killed her: whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the custody of the bailiff who had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which, he proceeded to take them into custody upon the charge of murder; and at first, offered to take care also of their prisoner, but the latter was
common night-walker, as for a mis- refuse, or wilfully neglect, to take demeanor. 2 Hawk. P. C. c. 8. s. 38. such offender into custody, and to Latch. 173. Poph. 208. By the vagrant take and convey him or her before act, 5 Geo. 4. c. 83. s. 6., it is made some justice of the peace, or shall not lawful for any person whatsoever to use his best endeavours to apprehend apprehend any person who shall be and to convey before some justice of found offending against that act, and the peace, any person that he shall forth with to take and convey him or find offending against the act, it shall her before some justice of the peace, be deemed a neglect of duty in such to be dealt with in such manner as is constable or other peace officer, and thereinbefore directed, or to deliver he shall, on conviction, he punished him or her to any constable or other in such manner as is thereinafter dipeace officer of the place where he or
rected. she shall have been apprehended, to be (u) i Hale 460. so taken and conveyed as aforesaid : (w) Id. ibid. and it further enacts, that in case any (*) I East. P. C. c. 5. s. 71. p. 304. constable or other peace officer shall (y) i Hale 460.
soon rescued from them by the surrounding mob. The woman having recovered, the bailiffs were released by the constable the next morning. Upon an indictment for an assault and rescue, Heath, J. was clearly of opinion, that the constable and his assistants were guilty of the assault and rescue, and directed the jury
accordingly.(s) Private per- Where private persons interpose in the case of sudden affrays, to sons interpos- part the combatants, and prevent mischief, and give express notice ing in sudden
of their friendly intent, it will be murder in either of the persons affrays.
making the affray, who shall kill the party so interposing : but it will not be murder in the other affrayer, unless he also strike the
party.(a) Authority to It has been shewn that though, even in civil cases, an officer arrest and im- may repel force by force, where his authority to arrest or imprison suits.
is resisted, and may do this to the last extremity in cases of reasonable necessity; (b) yet if the party against whom the process has issued fly from the officer endeavouring to arrest him, or if he fly after an arrest actually made, or out of custody, in execution for debt, the officer bas no authority to kill him, though he cannot overtake or secure him by any other means. (c)
The authority of an officer, in civil cases, must be regulated and limited by the writ or process which he is empowered to execute, and by the extent of the district in which he is privileged to act. It is only in the character of officer that he can proceed to arrest or imprison, as no private person can of his own authority arrest
in civil suits.(d) Authority to A press-warrant extends in terms to “seamen, seafaring men, impress sea
and others, whose occupations and callings are to work in vessels and boats upon rivers ;” (e) and persons of this description may be impressed to serve on board his Majesty's ships of war, by those who have proper authority delegated to them for that purpose. () A proceeding which has been sometimes considered as hardly consistent with the temper and genius of a free government, but which may be defended on the ground of its necessity for the safety of the state; in order that the government may be enabled, in time of need, thus peremptorily to call for the services of persons who have freely chosen a seafaring life, and whose education and habits have fitted them for the employment.
But as this is a power of an extraordinary nature, it is highly requisite that no persons should assume it without being duly qualified for that purpose; as the especial protection which the law affords to its officers will not be extended to those who venture to act without proper authority. Thus, where the execution of a press-warrant is directed by the terms of the warrant (as is now always the case) not to be intrusted to any person but a commis
(z) Anon. Exeler Sum. Ass. 1793. 1 East. P. C. c. 5. s. 75. p. 307. The East. P. C. c. 5. s. 71. p. 305.
same terms occur also in the warrant (a) i Hawk. P. C. c. 31. S. 48, 54. in Broadfoot's case, Fost. 156. Fost. 272, 311. 1 East, P. C. c. 5. S. (f) Broadfoot's case, 18 St. Trial 7). p. 304. Ante, 273.
(by Howell) 1323. Fost. 154: where (b) Ante, 449, 457.
see an elaborate arguinent delivered (c) I Hale 481. Fost. 271.
by Mr. J. Foster, as recorder of Bris(d) I Hawk. P. C. c. 28. s. 19. tol, in support of the legality of im(e) Rex v. Sostly, 1 East. R. 466. I pressing seamen.
sioned officer, the execution of it by another person will be illegal.
If a ship’s sentinel shoot a man, because he persists in ap- Murder by a proaching the ship when he has been ordered not to do so, it will ship’s sentinel
in preventing be murder, unless such an act was necessary for the ship's safety. persons from And it will be murder, though the sentinel had orders to prevent approaching the approach of any boats; had ammunition given to him when he the ship. was put npon guard; and acted under the mistaken impression that it was his duty. The prisoner was sentinel on board the Achille, when she was paying off. The orders to him from the preceding sentinel were, to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach; and he received a musket, three blank cartridges, and three balls. The boats pressed; upon which he called repeatedly to them to keep off; but one of them persisted and came close under the ship: and he then fired at a man who was in the boat, and killed him. It was put to the jury to find, whether the sentinel did not fire under the mistaken impression that it was his duty: and they found that he did. But a case being reserved, the Judges were unanimous that it was, nevertheless, murder. They thought it, however, a proper case for a pardon: and further, they were of opinion, that if the act had been necessary for the
(8) Broadfoot's case, Fost. 154. But (i) Borthwick's case, Dougl. 207. if a warrant be directed to several, one The warrant enjoined all mayors, &c. of them may execute it. I Hale 459. to aid and assist the officer to whom it
(h) Dixon's case, 1 East. P. C. c. 5. was directed, and those employed by s. 80. p. 313.: and see also Browniog's him in the execution thereof. case, 1 East. P. C. c. 5. s. 80. p. 312.
to arrest and
preservation of the ship, as if the deceased had been stirring up a
mutiny, the sentinel would have been justified. (a) The authority The party taking upon himself to execute process, whether by imprison can
writ or warrant, must be a legal officer for that purpose, or his only be exer- assistant: and if an officer make an arrest out of his proper discised by a
trict, or have no warrant or authority at all, or if he execute prolegal officer within the
cess out of the jurisdiction of the court from whence it issues, he proper district. will not be considered as a legal officer entitled to the special pro
tection of the law: and therefore, if a struggle ensue with the party injured, and such officer be killed, the crime will be only manslaughter. (k) And it has been ruled, that homicide committed upon a bailiff, attempting to execute a writ within an exclusive liberty, such writ not having a non-omittas clause, will not amount to murder. (x) It has been held, that if the constable of the vill of A. come into the vill of B. to suppress some disorder, and in the tumult the constable be killed in the vill of B., this will be only manslaughter, because he had no authority in B. as constable. (1) But it was considered, that if the constable of the vill of A. had a particular precept from a justice of peace directed to him by name, or by his name of office as constable of A., to suppress a riot in the vill of B., or to apprehend a person in the vill of B. for some misdemeanor within the jurisdiction and conusance of the justice of peace, and in pursuance of that warrant he went to
arrest the party in B., and in executing his warrant was killed in 5 Geo. 4. c. 18. B., this amounted to murder. (m) A late important statute, 5 G. bles may exe
4. c. 18., recites, that warrants addressed to constables, headcute warrants boroughs, tithing-men, borsholders, or other peace officers of out of their precincts, pro
parishes, townships, hamlets, or places, in their characters of and vided it be as constables, headboroughs, tithing-men, borsholders, or other within the ju- peace officers of such respective parishes, townships, hamlets, or risdiction of the justice
places, cannot be lawfully executed by them out of the precincts granting or thereof respectively, whereby means are afforded to criminals and backing the
others of escaping from justice; and then for remedy thereof enacts, “that it shall and may be lawful to and for each and every “ constable, and to and for each and every headborough, tithing“ man, borsholder, or other peace officer, for every parish, town
ship, hamlet, or place, to execute any warrant or warrants of any justice or justices of the peace, or of any magistrate or
magistrates, within any parish, township, hamlet, or place, “ situate, lying, or being within that jurisdiction for which such “ justice or justices, magistrate or magistrates, shall have acted “ when granting such warrant or warrants, or when backing or “indorsing any such warrant or warrants, in such and the like
manner as if such warrant or warrants had been addressed to
8. 6. Consta
(a) Rex v. Thomas, East. T. 1816. 13. s. 27, 30. It may be here menMS. Bayley, J.
tioned, that by 24 Geo. 2. c. 44. s. 6. (H) 1 Hale 457, 458, 459. 1 East. if a warrant is irregular in the frame P. C. c. 5. S. 80. p. 312, 314.
of it, the officer executing it ministe (x) Rex v. Mead and another, 2 rially is indemnified against any action Stark. C. 205.
for damages by the party injured, (1) I Hale 459.
though the magistrate by whom it was (m) 1 Hale 459.2 Hawk. P. C. c. issued exceeded his jurisdiction.