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resist him, and in the struggle kill him, the offence will be only manslaughter; (g) or if the occupier of the house do not know him to be an officer, and have reasonable ground of suspicion that the house is broken with a felonious intent, the killing such officer will be no felony. (h)
It has been considered, however, that this rule of every man's house being his castle has been carried as far as the true principles of political justice will warrant, and that it will not admit of any extension. (i) It should be observed, therefore, that it will apply only to the breach of outward doors or windows; to a breach of the house for the purpose of arresting the occupier or any of his family; and to arrests in the first instance.
Outward doors or windows are such as are intended for the security of the house, against persons from without endeavouring to break in. (4) These are protected by the privilege which has been before mentioned: but if the officer find the outward door open, or it be opened to him from within, he may then break open any inward door, if he find that necessary in order to execute his process. (1) 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. (2) 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
The privilege of every man's house being his castle, applies only to
the breach of outward doors.
And to cases
And also, to
arrests in the first instance.
Interference by third per
vailing, the prisoner shot at and killed him; it was held to be murder. (q)
This personal privilege of an individual, in respect to his outer door or window, is confined also to cases where the breach of the house is made in order to arrest the occupier or any of his family, who have their domicile, their ordinary residence, there: for if a stranger, whose ordinary residence is elsewhere, upon a pursuit, 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.() 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 the privilege is also confined to arrests in the first instance. For if a man, being legally arrested, (w) escape from the officer, 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)
It has been deemed a question worthy of great consideration
(q) Baker's case, 1 Leach 112. 1 East. P. C. c. 5. s. 87. p. 323. It should be observed, that in this case there was proof of a previous resolution in the prisoner to resist the officer, whom he afterwards killed in attempting to attach his goods in his dwelling-house, in order to compel an appearance in the county court. The point reserved related to the legality of the attachment. Ante, 511.
(r) Fost. 320. 5 Co. 93.
(8) 2 Hale 103. Fost. 321. 1 East. P. C. c. 5. s. 87. p. 324.
(1) Cooke v. Birt, 5 Taunt. 765.
(u) Johnson v. Leigh, 6 Taunt. 246. Ante, 521.
(w) Laying hold of the prisoner, and pronouncing the words of arrest, is an actual arrest. Fost. 320. But bare words will not make an arrest: the officer must actually touch the prisoner. Genner v. Sparkes, 1 Salk. 79.
(x) Fost. 320. Genner v. Sparkes, 1 Salk. 79. 1 Hale 459. 2 Hawk. P. C. c. 14. s. 9.
(y) 1 East. P. C. c. 5. s. 87. p. 324. (z) Stevenson's case, 10 St. Tr. 462. (a) 2 Hawk. P. C. c. 14. s. 11. 1 East. P. C. c. 5. s. 87. p. 324.
the arrest is
how far third persons, especially mere strangers, interposing in be- sons, where 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; (b) 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 sevenJudges, 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
(b) One Judge only thought that Bray acted with authority, as he shewed his staff, and that, with respect to the prisoners, he was to be considered as constable de facto. (c) Rex v. Tooley and others, 2
Lord Raym. 1296.
(d) For this Young's case, 4 Co. 40. was cited; and Mackally's case, 9 Co.
(e) Hugget's case, Kel. 59.
any warrant for so doing; to which the man quietly submitted, and went along with them. The prisoner with three others, seeing them, instantly pursued them, and required to see their warrant; on which Berry shewed them a paper, which the prisoner and his associates said was no warrant, and immediately drew their swords to rescue the impressed man, and thrust at Berry: whereupon Berry and his two companions drew their swords, and a fight ensued, in which Hugget killed Berry. But this case is stated very differently by Lord Hale, as having been under the following circumstances:A press-master seized B. for a soldier; and, with the assistance of C., laid hold of him. D. finding fault with the rudeness of C., there grew a quarrel between them, and D. killed C. and by the advice of all the Judges, except very few, it was ruled that this SirH.Ferrers's was but manslaughter. (f) The case of Sir Henry Ferrers was only this:-That Sir Henry Ferrers being arrested for debt, upon an illegal warrant, his servant, in seeking to rescue him, as was pretended, killed the officer: but, upon the evidence, it appeared clearly, that Sir Henry Ferrers, upon the arrest, obeyed, and was put into a house before the fighting between the officer and his servant; wherefore he was found not guilty of the murder and manslaughter. (g)
But Mr. Justice Foster is of opinion, that these cases of Hugget and Sir Henry Ferrers's servant did not warrant the doctrine laid down by the seven Judges in the case of Tooley: and this great master of the crown law (n) has animadverted upon that doctrine with much force, viewing it as having carried the law in favour of private persons officiously interposing in cases of illegal arrest further than sound reason, founded in the principles of true policy, will warrant. (i) After observing that, in Hugget's case, swords were drawn, a mutual combat ensued, the blood was heated before the mortal wound was given, and a rescue seemed to be practicable at the time the affray began; (k) whereas, though in Tooley's case, the prisoners had, at the first meeting, drawn their swords against the constable unarmed, they had put them up again, appearing to be pacified, and cool reflection seeming to have taken place; and it was at the second meeting that the deceased received his death wound, before a blow was given or offered by him or any of his party; and also in that case there was no possibility of rescue, the woman having been secured in the round house; he says, that the second assault on the constable seems rather to have been grounded upon resentment, or a principle of revenge, for what had before passed, than upon any hope or endeavour to assist the woman. He then proceeds, "Now what was the case of "Tooley and his accomplices, stript of a pomp of words, and the "colourings of artificial reasoning? They saw a woman, for "aught appears, a perfect stranger to them, led to the round "house under a charge of a criminal nature. This, upon evidence "at the Old Bailey, a month or two afterwards, comes out to be
(f) Hale 465.
(g) Sir Henry Ferrers's case, Cro. Car. 371.
(h) So called by Mr. J. Blackstone, 4 Com. 2.
(i) Fost. 312, et seq.
(k) In Hugget's case the Judges, who held it to be manslaughter, put the point upon an endeavour to rescue.
"an illegal arrest and imprisonment, a violation of Magna Charta; "and these ruffians are presumed to have been seized, all on a "sudden, with a strong fit of zeal for Magna Charta (4) and the "laws; and in this frenzy to have drawn upon the constable, and "stabbed his assistant. It is extremely difficult to conceive that "the violation of Magna Charta, a fact of which they were totally
ignorant at that time, could be the provocation which led them "into this outrage. But, admitting for argument sake that it was, "we all know that words of reproach, how grating and offensive soever, are in the eye of the law no provocation in the case of "voluntary homicide: and yet every man who hath considered "the human frame, or but attended to the workings of his own "heart, knows that affronts of that kind pierce deeper, and stimu"late the veins more effectually, than a slight injury done to a "third person, though under colour of justice, possibly can. The "indignation that kindles in the breast in one case is instinct, it "is human infirmity; in the other it may possibly be called a "concern for the common rights of the subject: but this concern, "when well founded, is rather founded in reason and cool reflec❝tion, than in human infirmity; and it is to human infirmity alone "that the law indulges in the case of a sudden provocation." He then proceeds further: "But if a passion for the common rights "of the subject, in the case of individuals, must, against all expe"rience, be presumed to inflame beyond a personal affront, let us suppose the case of an upright and deserving man, universally "beloved and esteemed, standing at the place of execution, under 66 a sentence of death manifestly unjust. This is a case that may "well rouse the indignation, and excite the compassion, of the "wisest and best men: but wise and good men know that it is "the duty of private subjects to leave the innocent man to his lot, "how hard soever it may be, without attempting a rescue; for "otherwise all government would be unhinged. And yet, what
proportion doth the case of a false imprisonment, for a short "time, and for which the injured party may have an adequate
remedy, bear to that I have now put." (m)
In a more recent case, the prisoner, who cohabited with a person Adey's case. named Farmello, killed an assistant of a constable, who came to apprehend Farmello, as an idle disorderly person, under the statute 19 Geo. 2. c. 10. Farmello, though he was not an object of the act, did not himself make any resistance to the arrest: but the prisoner, immediately upon the constable and his assistant requiring Farmello to go along with them, without making use of any argument to induce them to desist, or saying one word to prevent the intended arrest, stabbed the assistant. And Hotham, B., with whom Gould, J. and Ashhurst, J. concurred, held the offence to be murder. A special verdict, however, was found; (n) and the
(1) Holt, C. J., in delivering the judgment in Tooley's case, said, "Sure "a man ought to be concerned for Magna Charta and the laws; and if any one against the law imprison a man, he is an offender against Magna 66 Charta."
(m) Fost. 315, 316, 317.
(n) The court advised the jury to find a special verdict, on the ground of the difference of opinion which had been entertained in Tooley's case, and the case of Hugget, ante, 523, 524.