endeavoring 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)(19) but he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more. (s) (20) 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 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. (t) It is also mentioned by statute Westm. 1, 3 Edw. I. c. 9, and 4 Edw. I., de officio coronatoris. (21) But the principal statute relative to this matter is that of Winchester, 13 Edw. I. c. I and 4, which directs that thenceforth every county, shall be so well kept,

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

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

(8) 2 Hal. P. C. 82, 83.

(t) Bractou, l. 3, tr. 2, c. 1, § 1. Mirr. c. 2, 6.

(19) 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. 35. 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.CHRISTIAN.

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 committed 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, s. 19. I Hale, 589. 2 Rol. Abr. 559, E. pl. 3, n. 8. Selw. 3 ed. 830. Com. Dig. Pleader, 3 M. 22. Bac. Abr. Trespass, D. 3. I 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. 3 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 of such a design. I Bla. Rep, 47. I B. & P. 264, n. a. I East, P. C. 304. If a man be found attempting to commit a felony in the night, any one may apprehend and detain him till he be carried before a magistrate. I R. & M. C. C. 93.-CHITTY.

"It is not only the right, but it is the duty of any private person present when a felony is committed, to apprehend the felon; and when a felony has been committed, any private person acting upon a reasonable and probable ground of suspicion, may also apprehend the person suspected of the crime. The apprehension, under these circumstances, may be made without a warrant, but it is only for the purpose of taking the offender before a magistrate." Long v. The State, 12 Ga. 293, 318 (1852).

A robbery was committed in a house, the owner being absent; he was sent for and informed, and, accompanied by another, without a warrant pursued those suspected. They were told of the robbery, that they were suspected, and must return, and one of them was taken hold of; he told his companion to shoot both the pursuers; he shot and one was killed. The court was asked to charge that the pursuers, not being public officers, had no authority to arrest, the arrest was illegal, and the killing was not murder but manslaughter. The court refused so to charge. Held, not to be error. The court said, "Upon probable suspicion, a private person may arrest the felon or other person so suspected." Brooks v. Commonwealth, 61 Pa. 352, 358 (1869).

(20) 1 Archbold's Crim. Pr. and Pl. 775.

(21) [Of the office of coroner.]

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 *294] *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 (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 57.; 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; (22) 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. (w) Hue and cry(x) may be raised either by precept of a justice of the peace, or by a peaceofficer 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 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 a hue and cry without cause, he shall be severely punished as a disturber of the public peace. (y)

In order to encourage further 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. and M. c. 8, enacts that such as apprehend a highwayman and prosecute him to conviction shall receive a *295] reward of 40/. from the public, to be paid to them (or, if *killed in

the 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 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, warehouse, coach-house, or stable, shall be excused from all parish offices. And, by statute 5 Anne, 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

(u) See book iii. page. 161.

(w) Mod. Un. Hist. vi. 383, vii. 156.

(x) 2 Hal. P. C. 100-104.
(y) 1 Hawk. P. C. 75.

(22) These acts are now repealed.

to a reward of 40%.(z) 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 statutes 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. (23)

CHAPTER XXII.

OF COMMITMENT AND BAIL.

[*296

*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 show under the second head of commitment and bail.

The justice before whom such prisoner is brought, is bound immediately to examine the circumstances of the crime alleged; (2) and to this end, by

(z) The statutes 4 & 5 W. and M. c. 8, 6 & 7 W. III. c. 17, and 5 Anne, c. 31 (together with 3 Geo. I. c. 15, 4, which directs the method of reimbursing the

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

(23) The above acts are repealed, 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 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 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. I R. & M. C. C. 93.-CHITTY.

(2) A constable arresting a man on suspicion of felony is bound to take him before a magistrate 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. & R. 623. And see 2 Hawk. 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, 143. 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. I Hale,

P. C. 585, 586. 2 id. 120, 121. 2 Hawk. P. C. c. 16, s. 12. I Chitt. C. L. 72. This point was considered in a very recent case,-Davis v. Capper, King's Bench, sittings in banc before Easter Term, 1829. That was an action against a magistrate for false imprisonment. The plaintiff had been brought before the defendant upon suspicion 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 committing for so long a period; and they referred to the case of Scavage v. Tateham (Cro. Eliz. 829) as justifying that opinion. Ed. MS. -CHITTY.

The power of an examining magistrate is limited to ascertaining whether there is prob able and sufficient cause for charging the prisoner with the offence; and it is only

statute 2 & 3 Ph. and M. c. 10, he is to take in writing the examination of 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:(4) and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men.(5) If upon this inquiry it manifestly appears that either no such crime was committed or that the suspicion 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. (6) This commitment, therefore, being only for safe (a) Eirenarch. b. ii. c. 7. See page 357.

where, in the judgment of the officer or court, there is no such cause, that he may be discharged. Ex parte Bell, 14 Richardson (S. C.) 7, 13 (1866).

(3) The prisoner's examination must not be upon oath: that of the witnesses must be. 2 Hale, P. C. 52. 1 id. 585. I 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. & R. 734. The prisoner has no right to the assistance of an attorney when under an examination on a charge of felony: the privilege, when allowed, is entirely a matter of discretion in the magistrate. Cox v. Coleridge, 2 D. & R. 86. I B. & C. 37. I M. C. 42. See, however, an elaborate note on this important subject. Paley on Convictions, 2 ed. by Dowling, 28, et seq., where the propriety of that decision is considered.-CHITTY.

(4) [No one was obliged to betray himself.]

(5) But the statute of Philip and Mary was repealed, by statute 7 Geo. IV. c. 64, and other provisions introduced. And now the statute 11 & 12 Vict. c. 42, s. 17 provides that in all cases where any person shall appear or be brought before any justice or justices of the peace, charged with any indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appeared voluntarily upon summons, or have been apprehended with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit him to prison for trial or before admitting him to bail, shall in the presence of such accused person, who is at liberty to put questions to the witnesses, take the statement on oath or affirmation of the witnesses and reduce such statement to writing. And after such examination is completed, their depositions are to be read over to the accused, and the justices, or one of them, shall say to him these words, or words to the like effect: -“Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say any thing unless you desire to do so; but whatever you say will be taken down in writing, and may be given in evidence against you upon the trial." And if the accused then makes a statement, it is to be taken down accordingly. The place where the examination is taken is not to be deemed an open court, but such examination may be conducted privately; and (unlike cases of summary conviction) it is discretionary with the justices to allow the accused the assistance of an attorney or counsel. STEWART.

A bond for the appearance of a prisoner at a special term of the U. S. district court not then called, which is afterwards called at a different time from that named in the bond, and after two regular terms have elapsed, at which he might have been tried, is void. U. S. v. Keiver, 56 Fed. Rep. 422, 426 (1893).

'Commitment is the sending of a person to prison, by warrant or order, who hath been guilty of any crime." Binns' Justice, 10 ed. (Brightly) 70.

"The usual object of a recognizance is, to secure the presence of a person, on whom a writ is served, at court when the proper time arrives; and its authentication is not by the party's seal, but by record of the court." Schouler's Per. Prop. vol. I, 358.

(6) Recognizance to Prosecute.-Besides this commitment and bail, the magistrate should take the recognizance of the prosecutor 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. I Hale, 586. 2 Hale, 52, 121. 3 M. & S. 1. See further, Burn, J., Recognizance. Williams, J., Recognizance. I Chitt. C. L. 90.

Recognizance to give Evidence.-When it appears that a person brought before the magistrate as a witness may probably be able to give material evidence against the prisoner, he has, in the cases of manslaughter and felony, by the express provisions of the statutes 1 & 2 Ph. and M. c. 13, s. 5 and 2 & 3 Ph. and M. c. 10, s. 2, authority to bind

custody, wherever bail will answer the same intention it ought to be taken, as in most of the inferior crimes; but in felonies and other offences of a *capital nature no bail can be a security equivalent to the actual [*297 custody of the person. For what is there that a man may not be induced to forfeit to save his own life? and what satisfaction or indemnity is it to the public to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which the Athenian magistrates, when they took a solemn oath never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money or been guilty of treasonable practices. (b) What the nature of bail is hath been shown in the preceding book, (c) viz., a delivery or bailment of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance; he being supposed to continue in their friendly custody, instead of going to gaol.(7) In civil cases we have seen that every defendant is bailable; but in criminal matters it is otherwise. Let us therefore inquire in what cases the party accused ought or ought not to be admitted to bail.

And, first, to refuse or delay to bail any person bailable is an offence against the liberty of the subject in any magistrate, by the common law, (d) as well as by the statute Westm. 1, 3 Edw. I. c. 15, and the habeas corpus act, 31 Car. II. c. 2. And, lest the intention of the law should be frustrated by the justice's requiring bail to a greater amount than the nature of the case demands, it is expressly declared, by statute 1 W. and M. st. 2, c. I, that excessive bail ought not to be required; though what bail should be called excessive must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail he is liable to be fined if the criminal doth not appear. (e)(8) Bail may be taken either in court, or in some particular cases by the sheriff,(9) coroner, or other magistrate, (10) but most usually by the justices of the peace. (11) Regularly, in all offences, either against the common *law or act of parliament, that are below felony, the offender ought [*298

(b) Pott. Antiq. b. i. c. 18. (c) See book ifì, page 200.

(d) 2 Hawk. P. C. 90.
(e) Ibid. 89.

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 themselves, must procure others to be bound for them. And if the witness refuse to give such recognizance, the magistrate has power to commit him, this being virtually included in his commission, and, by necessary consequence, upon the abovementioned statutes. 3 M. & S. 1. I Hale, 586. This doctrine was confirmed in a late case where a married woman refused to enter into a recognizance for her appearance at sessions, to give evidence against a felon, and the magistrate committed her, and the court of King's Bench held that the commitment was legal. 3 M. & S. 1. But a justice of the peace is not authorized by law to commit a witness willing to enter into a recognizance for his appearance to give evidence against an offender, merely because such witness is unable to find a surety to join him in such recognizance, nor ought the justice to require such surety: the party's own recognizance (at the peril of commitment) is all that ought to be required. Per Graham, B., Bodmin Sum. Ass. 1817. I Burn, J., 24 ed. 1013.-CHITTY. See 11 & 12 Vict. c. 42, 20.

(7) Gay v. The State, 7 Kan. (Webb) 392, 403 (1871).

(8) And even if the criminal does appear, yet if the bail were taken corruptly the magistrate would continue liable to an information or indictment. 2 T. R. 190.-CHITTY. (9) Sed quære [But it is a question] if a sheriff has this power? It seems not. See 4 T. R. 505. 2 H. Bla. 418. Lamb. 15.-CHITTY.

(10) The court of King's Bench, or any judge thereof, in vacation, may at their discretion admit persons to bail in all cases whatsoever, (see 3 East, 163. 5 T. R. 169;) but none can claim this benefit de jure [In right]. 2 Hale, 129. As to when this court will bail, see I Chitt. C. L. 2 ed. 98, 99.-CHITTY.

(11) See Stat. 11 & 12 Vict. c. 42.