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be killed, the offence will amount to no more than manslaughter
authority.(1) But process may be executed in the
The right of officers to break open windows or doors, in order Right of offito make an arrest, has been a subject of some litigation : but cers to break many of the points have been settled, and require to be shortly cr doors to noticed. And the general rule must be kept in mind, that in make an arrest. every case, whether criminal or civil, in which doors may be broken
in order to make an arrest, there must be a previous notification of the business, and a demand to enter on the one hand, and a refusal on the other, before the parties proceed to that extremity.(n)
Where a felony has been committed, or a dangerous wound given, the party's house is no sanctuary for him; and the doors may be forced, after the notification, demand, and refusal which have been mentioned. (o) So, where a minister of justice comes armed with process, founded on a breach of the peace, doors may be broken.(p) And it is also settled, upon unquestionable authorities, that where an injury to the public has been committed, in the shape of an insult to any of the courts of justice, on which process of contempt is issued, the officer charged with the execution of such process may break open doors, if necessary, in order to execute it. (9). And the officer may act in the same manner upon a capias utlagatum, or capias pro fine, (r) or upon an habere facias possessionem.(s) The same force may be used where a for
To en el
(h) Fost. 312.
open, where one known to have com(i) i Hale 458, 459. 1 East. P. C. mitted a treason or felony, or to have c. 5. S. 80.
given another a dangerous wound, (K) 1 Hale 459. 2 Hawk. P. C. c. is pursued, either with or without a 13. s. 27, 30. 1 East. P. C. c. 5. s. 80. warrant, by a constable or private p. 314. And see 5 G. 4.c. 18. Ante, 510. person.
(l) 29 Car. 2. c. 7. 1 East. P. C. c. (p) Fost. 320. i Hale 459. Hawk 5. s. 88. p. 324, 325. The statute P. C. c. 14. s. 3. Curtis's case, Fost. makes void all process, warrants, &c. 135. served and executed on a Sunday, ex- (9) Burdett v. Abbott, 14 East. 157. cept in the cases mentioned in the text. where the process of contempt pro
(m) 9 Co, 66 a. 1 Hale 457. 1 ceeded upon the order of the House Hawk. P. C. c. 31. s. 62.
of Commons; and see Semaynes' case, (n) Fost. 320. 2 Hawk. P. C. c. 14. Cro. Eliz. 909. ; and Brigg's case, i s. 1. Ante, 517.
Rol. Rep. 336. (0) Fost. 320. i Hale 459. And (r) i Hale 459.2 Hawk. P. C. c. see 2 Hawk. P. C. c. 14. s. 7. where 14. 5. 4. it is said that doors may be broken (s) i Halc 458. 5 Co. 95 b.
cible entry or detainer is found by inquisition before justices of peace, or appears upon their view ;(t) and also where the proceeding is upon a warrant of a justice of peace, for levying a penalty on a conviction grounded on any statute, which gives the whole or any part of such penalty to the king. (u) But in this latter case the officer executing the warrant must, if required, shew the same to the person whose goods and chattels are distrained, and suffer a copy of it to be taken.(10)
But though a felony has been actually committed; yet a bare suspicion of guilt against the party will not authorize a proceeding to this extremity, unless the officer comes armed with a warrant from a magistrate, grounded on such suspicion. (.x) For where a person lies under a probable suspicion only, and is not indicted, (y) it is said to be the better opinion, that the breaking open doors without a warrant, in order to apprehend him, cannot be justified: (3) or must at least be considered as done at the peril of proving that the party, so apprehended on suspicion, is guilty. (a) But a different doctrine appears to have formerly prevailed upon this point; by which it was held that if there were a charge of felony laid before the constable, and reasonable ground of suspicion, such constable might break open doors, though he had no warrant. (b)
It is said, that if there be an affray in a house, the doors of which are shut, whereby there is likely to be manslaughter or bloodshed, and the constable demand entrance, and be refused by those within, who continue the affray, the constable may break open the doors to keep the peace, and prevent the danger: (c) and it is also said, that if there be disorderly drinking or noise in a house at an unseasonable time of night, especially in inns, taverns, or alehouses, the constable or his watch demanding entrance, and being refused, may break open the doors to see and suppress the disorder. (d) And further, that where an affray is made in a house in the view or hearing of a constable, or where those who have made an affray in his presence fly
to a house, and are immediately pursued by him, and he is not suffered to enter in order to suppress the affray in the first case, or to apprehend the affrayers in
either case, he may justify breaking open the doors. (e) In civil cases But this mode of proceeding, by breaking the doors of the party, a man's house is founded upon the necessity of the measure for the public weal, is his castle.
and is not permitted to the particular interest of an individual. In civil suits, therefore, the principle that a man's house is his castle, for safety and repose to himself and his family, is admitted; and, accordingly, in such cases, an officer cannot justify the breaking open an outward door or window to execute the process. (f) If he do so, he will be a trespasser; and if the occupier of the house
(1) 2 Hawk. P. C. c. 14. s. 6. Ante, 4.9 a. 283.
(c) 2 Hale 95. (u) 2 Hawk. P. C. c. 14. s. 5.
(d) 2 Hale 95.; and it is added, “ This (w) 27 Geo. 2. c. 20.
" is constantly used in London and (x) Fost. 321.
“ Middlesex.” But see ante, 272, 273. (y) Anle, 503.
(e) 2 Hawk. P. C. c. 14. s. 8. (2) 2 Hawk. P. C. c. 14. s. 7.
if) Cook's case, Cro. Car. 537. (a) I East. P. C. c. 5. S. 87. p. 322. Fost. 319. (0) i Hale 583.
2 Hale 92. 13 Ed.
the breach of
resist him, and in the struggle kill him, the offence will be only
It has been considered, however, that this rule of every man's
Outward doors or windows are such as are intended for the The privilege security of the house, against persons from without endeavouring of every man's to break in. (k) These are protected by the privilege which has his castle, upbeen before mentioned: but if the officer find the outward door plies only to open, or it be opened to bim from within, he may then break open
outward doors. any inward door, if he find that necessary in order to execute his process. (l) Thus, it has been holden that an officer, having entered peaceably at the outer door of a house, was justified in breaking open the door of a lodger, who occupied the first and second floors, in order to arrest such lodger. (m) And in a late case it was decided, that a sheriff's officer in execution of mesne pro. cess, who had first gained peaceable entrance at the outer door of the house of A., might break open the windows of the room of B., a person residing in such house; B. having refused to open the door of the room, after being informed by the officer that he had a warrant against him.(a) But it seems that if the party, against whom the process is issued, be not within the house at the time, the officer can only justify breaking open inner doors in order to search for him, after having first demanded admittance. (n) Though in case the person, or the goods of the defendant, are contained in the house which the officer has entered, he may break open any door within the house without any further demand. (o) If, however, the house is the house of a stranger, and not of the defendant, the officer must be careful to ascertain that the person or the goods (according to the nature of the process) of the defendant are within, before he breaks open any inner door; as if they are not, he will not be justified. (p)
In a case where an outward door was in part open (being divided into two parts, the lower hatch of which was closed, and the upper part open) and the officer put his arm over the hatch, to open the part which was closed, upon which a struggle ensued between him and a friend of the prisoner, and, the officer pre
(8) Cook's case, Cro, Car. 537. Fost. 319.
(h) i Hale 458. 1 East. P. C. c. 5.
(i) Fost. 319, 320.
(I) I Hale 459. 1 East, P. C. c. 5.
(m) Lee u. Gansel, Cowp. 1.
(a) Lloyd v. Sandilands, 2 Moore 207.
(n) Ratcliffe v. Burton, 3 Bos. and Pull. 223.
(0) Per Gibbs, J. in Hutchinson v. Birch and another, 4 Taunt. 619.
(p) Cooke v. Birt, 5 Taunt. 765. Johnson v. Leigh, 6 Taunt. 240. Post, 522,
arrests in the
vailing, the prisoner shot at and killed him; it was held to be
murder. (9) And to cases
This personal privilege of an individual, in respect to his outer where the door or window, is confined also to cases where the breach of the house is
house is made in order to arrest the occupier or any of his family, broken, in order to arrest who have their domicile, their ordinary residence, there : for if a the occupier, stranger, whose ordinary residence is elsewhere, upon a pursuit, or any of his famıly.
take refuge in the house of another, this is not the castle of such stranger, nor can he claim in it the benefit of sanctuary. (r) But it should be observed, that in all cases where the doors of strangers are broken open, upon the supposition of the person sought being there, it must be at the peril of finding him there ; unless, as it seems, where the parties act under the sanction of a magistrate's warrant. (s) And an officer cannot even enter the house of a stranger, though the door be open, for the purpose of taking the goods of a defendant, but at his peril as to the goods being found there or not; and if they be not found there, he is a trespasser.(t) And it has been decided that a sheriff cannot justify breaking the inner doors of the house of a stranger, upon suspicion that a defendant is there, in order to search for such defendant, and arrest
him on mesne process. (u) And also, to
And the privilege is also confined to arrests in the first instance.
For if a man, being legally arrested, (w) escape from the officer, first instance.
and take shelter, though in his own house, the officer may, upon fresh suit, break open doors in order to retake him, having first given due notice of his business, and demanded admission, and been refused. (x) If it be not, however, upon fresh pursuit, it seems that the officer should have a warrant from a magistrate : and it should be observed, that the officer will not be authorized to break open doors in order to retake a prisoner in any case where the first arrest has been illegal. (y) Therefore, where an officer had made an illegal arrest on civil process, and was obliged to retire by the party's snapping a pistol at him several times, and afterwards returned again with assistants, who attempted to force the door, when the party within shot one of the assistants; it was ruled to be only manslaughter. (s)
In all cases where the officer or his assistants, having entered a house in the execution of their duty, are locked in, they may justify
breaking open the doors to regain their liberty. (a) Interference It has been deemed a question worthy of great consideration by third per
(q) Baker's case, I Leach 112. (u) Johnson v. Leigh, 6 Taunt. 246. East. P. C. c.5. s. 87. p. 323. It should Ante, 521. be observed, that in this case there was (w) Laying hold of the prisoner, and proof of a previous resolution in the pronouncing the words of arrest, is an prisoner to resist the officer, whom he actual arrest. Fost. 320. But bare afterwards killed in attempting to at- words will not make an arrest : the tach bis goods in his dwelling-house, officer must actually touch the priin order to compel an appearance in Geoner v. Sparkes, 1 Salk. 79. the county court. The point reserved (2) Post. 320. Genner v. Sparkes, related to the legality of the attach- 1 Salk. 79. 1 Hale 459. 2 Hawk. P. ment. Ante, 511.
C. c. 14. s. 9. (r) Post. 320. 5 Co. 93.
(y) 1 East. P. C. c. 5. s. 87. p. 324. (8) 2 Hale 103. Fost. 321. 1 East. (2) Stevenson's case, 10 St. Tr. 462. P. C. c. 5. s. 87. p. 324.
(a) 2 Hawk. P. C. c. 14. s, 11. 1 (1) Cooke v. Birt, 5 Taunt. 765. East. P. C. c. 5. s. 87. p. 324.
how far third persons, especially mere strangers, interposing in be- sons, where
the arrest is half of a party illegally arrested, are entitled to insist upon the
illegal. illegality of the arrest, in their defence, as extenuating their guilt in killing the officer.
The point was raised in the following case :-One Bray, who Tooley's case. was a constable of St. Margaret's parish in Westminster, came into the parish of St. Paul, Covent Garden, where he was no constable, and consequently had no authority ; (6) and there took up one Ann Dekins, under suspicion of being a disorderly person, but who had not misbehaved herself, and against whom Bray had no warrant. The prisoners came up; and, though they were all strangers to the woman, drew their swords, and assaulted Bray, for the purpose of rescuing the woman from his custody; upon which he shewed them his constable's staff, declared that he was about the queen’s business, and intended them no harm. The prisoners then put up their swords; and Bray carried the woman to the round house in Covent Garden. A short time afterwards, the woman being still in the round house, the prisoners drew their swords again, and assaulted Bray, on account of her imprisonment, and to get her discharged. Bray called some persons to his assistance, to keep the woman in custody, and to defend himself from the violence of the prisoners : upon which a person named Dent came to his assistance; and before any stroke received, one of the prisoners gave Dent, while assisting the constable, a mortal wound. This case was elaborately argued; and the Judges were divided in opinion; seven of them holding, that the offence was manslaughter only, and five that it was murder. (c) The seven Judges who held that it was manslaughter thought that it was a sudden action, without any precedent malice or apparent design of doing hurt, but only to prevent the imprisonment of the woman, and to rescue her who was unlawfully restrained of her liberty ; and that it could not be murder, if the woman was unlawfully imprisoned : (d) and they also thought that the prisoners, in this case, had sufficient provocation ; on the ground that if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people, out of compassion, and much more where it is done under a colour of justice; and that, where the liberty of the subject is invaded, it is a provocation to all the subjects of England. But the five Judges who differed thought that, the woman being a stranger to the prisoners, it could not be a provocation to them; otherwise if she had been a friend or servant; and that it would be dangerous to allow such a power of interference to the mob.
The case of Hugget, and also that of Sir Henry Ferrers, appear Hugget's case. to have been relied upon in support of the argument of the seven Judges, who in the preceding case held the offence to be manslaughter. Hugget's case, in the fuller report of it, (e) appears to have been thus :—Berry and two others pressed a man without
(6) One Judge only thought that Bray Lord Raym. 1296. acted with authority, as he shewed his (d) For this Young's case, 4 Co. 40. staff, and that, with respect to the pri- was cited ; and Mackally's case, 9 Co. soners, he was to be considered as con- 65. stable de facto.
(e) Hugget's case, Kel. 59. (c) Rex v. Tooley and others, 2