By constables. [ 21 ] to be brought before some justice of the peace, by whom the prisoner may be examined and bailed or committed to prison (a). Where a private person has apprehended another assisting in an affray, he may lawfully detain him till the heat is over, and then deliver him to the constable (b). The office of constable is either ministerial, in obeying warrants and precepts of justices, coroners, and sheriffs, and the charge of private individuals, or is original as a conservator of the peace at common law, or by virtue of particular acts of parliament (c). By the original and inherent power which he possesses, he may for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender, virtute officii, without any warrant (d). In general, when an affray takes place in his presence, he may either keep the parties in custody till it is over, or he may carry them immediately before a magistrate (e). He has, at least, an equal power to apprehend with any individual, and the chief difference between his power and duty and that of a private person seems to be, that the, former has greater authority to demand the assistance of others, and is liable to a severer fine for any neglect of duty, and that he ought to bring the party suspected before a justice of the peace, in order to be examined (ƒ). Another difference seems to be that a private individual cannot, of his own accord, arrest a person, except upon his own suspicion, and not upon report, or the suspicion of another (g), whereas a constable, or other peace, officer, may, if a felony has been committed by some one, lawfully apprehend a supposed offender upon the information of others, without any positive charge or his own knowledge of the (a) 1 Hale, 589. 2 Id. 77. 81. Hawk. b. 2. c. 13. s. 7. and b. 2. c. 16. s. 3. (b) Hawk. b. 2. c. 13. s. 8. (c) As to the office and authority of a constable in general, virtute officii, see 2 Hale, 88 to 97. Hawk. b. 2. c. 10. s. 37, &c. c. 13. s. 6, &c. 4 Bla. Com. 292. Burn's Just. Arrest, III. and Constable. Williams, Just. Constable. Bac. Abr. Constable. Com. Dig. Imprisonment, H. 4. Ld. Raym. 1296 to 1303. Com. Dig. Pleader, 3 M. 22, 23. The 1 Geo. 4. c. 37. authorizes magistrates to appoint special constables to prevent tumult, riot, or felony; and see the metropolis act, 54 Geo. 3. c. 37. (d) 1 Hale, 587. 1 East P. C. 303. Selw. N. P. 3d edit. 830, n. y. Churchill v. Matthews and others, Dick. J. Arrest, II. (e) Selw. N. P. 3d edit. 830. (f) Hawk. b. 2. c. 13. s. 7. (g) Hawk. b. 2. c. 12. s. 15. Cald, 293. 1 East P. C. 300, 1. circumstances on which the suspicion is founded (a). And a constable may justify an imprisonment, without warrant, on a reasonable charge of felony made to him, although he afterwards discharges the prisoner without taking him before a magistrate, and although it turn out that no felony was committed by any one (b). In general, however, a constable cannot, any morethan a private person, of his own accord, and without an express' charge or warrant, justify the arrest of a supposed offender, upon suspicion of his guilt, unless he can shew that a felony was com-' mitted by some person, as well as the reasonableness of the suspicion that the party imprisoned is guilty (c). There are, however, authorities in favor of an exception to this rule in the case' of night-walkers, and persons reasonably suspected in the night,' of felony (d). And, by a modern act of parliament, an express' power is given to constables and other peace officers, when on duty, to apprehend every person who may reasonably be suspected of having, or carrying, or by any ways conveying, at any time, after sun-setting and before sun-rising, goods suspected to be stolen (e). And other statutes (f) authorize constables and other peace officers to apprehend evil-disposed and suspected' persons and reputed thieves. Thus, by the $2 Geo. 3. c. 53. S2 s. 17, constables, headboroughs, patroles, and watchmen, are empowered to apprehend reputed thieves frequenting the streets, [ 22 ] highways, and avenues of public resort, and convey them before a proper magistrate. And, in order to give more effect to the public office at Bow-street, the 51 Geo.3. c. 119. s. 24, and 54 Geo. 3. c. 37. s. 16, 17, 18, direct two magistrates of that office, (of whom the chief magistrate must be one,) to swear in men to act as constables for Middlesex, Surrey, Essex, Kent, and Westminster, and enable the persons so sworn to apprehend offenders against the peace, both by night and by day, with all the powers which other constables possess. (d) 3 Taunt. 14. 1 East P. C. 303. Hawk. b. 2. c. 12. s. 20. 2 Hale, 89. 5 Edw. 3. c. 14. 2 Inst. 52. Bac. Ab. tit. Constable, G. (e) 22 Geo. 3. c. 58. s. 3. 54 Geo. 3. c. 57. s. 16, 17, 18. (f) 32 Geo. 3. c. 53. s. 17. 51 Geo. 3. c. 119. s. 18 and 24. [ 23 ] Constables are bound, upon a direct charge of a felony, and reasonable grounds of suspicion laid before them, to apprehend the party accused (a), and if, upon a charge of burglary, or other felony, he be required to apprehend the offender, or to make hue and cry, and neglect so to do, he may be indicted (b). And a peace officer, upon a reasonable charge of felony, may justify an arrest without a warrant, although no felony has been committed (c), because, as observed by Lord Hale (d), the constable cannot judge whether the party be guilty or not, till he come to his trial, which cannot be till after his arrest; and, as observed by Lord Mansfield in Samuel and Payne, if a man charges another with a felony, and requires an officer to take him into custody, and carry him before a magistrate, it would be most mischievous that the officer should be bound first to try, and, at his peril, exercise his judgment on the truth of the charge; he that makes the charge should alone be answerable; the officer does his duty in conveying the accused before a magistrate, who is authorized to examine, and commit, or discharge (e). And, it should seem, that even upon a charge of a breach of the peace not committed in the view of the constable, if he arrest the party, and no breach of the peace was committed, the person who preferred the charge alone is liable (ƒ), though it has been held, that a constable cannot arrest for an affray or breach of the peace, not committed in his view (g); and it seems that a constable is not justified in apprehending and imprisoning a person on suspicion of having received stolen goods, on the mere assertion of one of the principal felons (h). It seems preferable, in all cases not requiring immediate interference, for a constable to act under a warrant, because, if he does not, he will not be entitled to the benefit of the provision in the statute 24 Geo. 2. c. 44, which protects him, on granting a copy for every thing done in obedience to a warrant (2). A constable may break open doors to take a felon, if he be in the house, and entry denied after demand, and notice given that he is a constable; and, if in such attempt, the constable or any in his assistance be killed, after competent notice of his office, it is murder; and if the felon resist and cannot be taken, whether it be after or before the arrest, the killing of the felon, who cannot otherwise be taken, is no felony; because the law enjoins a constable to take a felon, and if he omits his duty, he is indictable, and subject to fine and imprisonment (a). So, where a felony has been committed by some one, and there be reasonable ground to suspect that a person be the offender, a constable has a similar power of breaking open doors to apprehend him (b). Doors also may be broken by a constable where a felony is not yet committed, but likely to be so, in order to prevent it (c). A constable having arrested the offender, may, in case of an affray, put him in the stocks, or otherwise confine him, till the heat of his passion or intemperance is over, or till he can bring him before a justice of the peace, and, in case of any offence for which the party suspected may be apprehended, a constable may convey him to the sheriff or gaoler of the county or franchise: but the safest and best course is said to be, in all cases, to carry the offender before a justice of the peace, as soon as circumstances will permit (d). [ 24 ] In general, the common law authority of a constable is ap- By watchmen. plicable to tithing-men, head-boroughs, and bors-holders, and several of the statutes before noticed afford these officers similar powers (e). Watchmen, patroles, and beadles, have authority at common law to arrest and detain in prison for examination, persons walking in the streets at night, whom there is reasonable ground to suspect of felony (ƒ), though there is no proof of a felony having been committed (g). And the before-mentioned (a) 2 Hale, 90, 91, &c. (b) Id. 92. (e) Id. 94, 95. 2 B. & P. 260. (d) 2 Hale, 95, 6. Selw. N. P. 3d ed. 830, n. y. Ante, 21. (e) 1d. 96. (f) But at common law no peace officer is justified in taking up a night-walker, unless he has (g) 2 Hale, 96. 98. Hawk. b. 2. By justices of the peace. [ 25 ] 7 statute give the same power to watchmen, as to constables, while on duty, to apprehend persons suspected of felony (a). A watchman, having apprehended a party, may discharge himself from liability for an escape, by delivering him to a constable, or he may himself take him before a magistrate (b). Justices of the peace have a double power in relation to the arrest of wrong-doers, the first branch of which authority may be personally exercised on the commission of a felony or breach of the peace in their presence, the second, by issuing a warrant on the evidence and complaint of another. And if a justice of the peace see a felony or breach of the peace committed, he may either himself arrest the parties offending, or verbally command any person to take them into custody. And it seems, that in order to prevent the riotous consequences of a tumultuous assembly, he may command his servants or others to arrest the affrayers, though, in general, if an offence be committed in his absence, he must grant his warrant in writing to apprehend the offender (c). It is laid down (d), that any justice or the sheriff may take of the county any number that he shall think meet, to pursue, arrest, and imprison traitors and felons, or such as break, or go about to break, or disturb, the king's peace, and that every man being required, ought to assist and aid them on pain of fine and imprisonment. 1 Where the magistrate is not present when a crime has been committed, he ought not, upon mere discretion, to send the party accused to prison, but upon due consideration of evidence adduced before him. It was well observed by Ch. J. Pratt (e), that in case a magistrate has notice, or a particular knowledge, that a person has been guilty of an offence, yet it is not a sufficient ground for him to commit the criminal, but in that case he is rather a witness than a magistrate, and ought to make oath of the fact before some other magistrate, who should thereupon act the |