official part, by granting a warrant to apprehend the offender, it being more fit that the accuser should appear as a witness, than act as a magistrate. [ 26 ] Sheriffs are not only enabled but enjoined to arrest felons, and By sheriffs. all persons are required to be assisting to them therein upon their summons, and they are respectively punishable, by fine and imprisonment, in case they neglect their duty (a). The sheriff may also arrest a person suspected of a capital offence, whose guilt is not certain (b). And if the sheriff be assaulted in the execution of his duty he may apprehend the offender, and keep him in prison for a reasonable time, to be carried before a justice of the peace, to be committed, or find bail to answer the offence (c). Though a coroner has no power of taking inquisition of felony, By coroners, &c. except in case of death, yet he is a conservator of the peace in relation to all felonies, and may arrest, or cause another to arrest, any felon (d). The Secretary of State has also a power of issuing a warrant to apprehend any person suspected of state offences; which, though its origin is uncertain, is not now to be disputed (e). There is another mode of arrest without warrant, to be considered, in which the necessity of the case arms all the inhabitants of a district with peculiar powers, and compels them to perform the duties which constables are usually required to execute. In examining the proceedings by hue and cry, we will consider, first, its nature and origin; secondly, by whom it may be levied; thirdly, how it may be levied; and lastly, what may be done in the pursuit which it occasions. Of arrests upon hue and cry. HUE and CRY is the old Common Law mode of pursuing, Nature and origin of hue and "with horn and voice," persons suspected of felony, or having cry. inflicted a wound from which death is likely to ensue (f). This (a) 2 Hale, 87. (b) Id. ib. (e) 1 Saund. 77, 8. 1 Taunt. 146. Selw. N. P. 3d edit. 830. (d) 2 Hale, 88. (e) Fortescue, 140. 742. 2 Wils. 151, &c. Tr. 318. 7 T. R. (f). 3 Inst. 116. 2 Hale, 98. 4 Bla. Com. 293, 4. [ 27 ] By whom to be levied. [ 28 ] practice seems to have arisen in the earliest times (a), and was distinctly recognized in the institution of hundreds by Alfred. It is laid down by Lord Coke (b), that where a felony has been committed, or dangerous wound given, the party grieved may resort to the constable, acquaint him with the circumstance, describe the offender, point out which way he is gone, and demand hue and cry to be made. Upon this, it becomes the duty of the officer to raise hue and cry within his district; and if the offender be not there taken, he must give immediate notice to the next constable, and he to the next, till the delinquent be secured. This power has been further confirmed by several statutes. The 3 Ed. 1. c. 9, compels all persons to arm and assist the constable on pain of severe penalties. By the 13 Ed. 1. st. 2. c. 1, fresh suit must be made immediately after the felon, from town to town, and from county to county, which is said to be the life of this practice (c). And the statute 27 El. c. 13. s. 10, enacts, that the hue and cry must be by horse as well as foot, or it will be invalid. In order to enforce this practice, which was found highly beneficial in the infancy of the police, the 13 Ed. 1. c. 3, makes the hundred liable to answer for the damage sustained by the robbery unless the felon is secured; and by a more recent enactment (d), the officer refusing to make hue and cry, is rendered liable to a forfeiture of £5. At the present day, hue and cry may be raised either by the precept of a justice of the peace, by a peace officer, or by any private man who is aware that a felony has been committed (e). It may be raised by the warrant of a justice, from his general power to apprehend (ƒ). Upon constables, head-boroughs, and other peace officers, it is especially incumbent, because, as we have seen, they are fineable if they neglect it, and their presence gives more weight and authority to the proceeding (g). However, it is clear that bue and cry may be made by private individuals, in the absence of the constable, and it has therefore been sometimes (a) Bracton, lib. 3, c. 1. (b) 3 Inst. 116. (c) 3 Inst. 117. (d) 8 Geo. 2. c. 16. 100. Hawk. b. 2, c. 12. s. 6. Burn, J. Hue and Cry. (f) See form of warrant, Burn, J. tit. Hue and Cry, post, (e) 4 Bla. Com. 294. 2 Hale, vol. iv. (g) 1 Hale, 100. termed in the old books Cry de pais (a). Nor can any inconvenience result from this liberty: for, any one making hue and cry, or causing it to be made, without due cause, is liable to be punished as a wanton disturber of the peace (b). levied. The party who discovers that a felony has been committed, How it shall be whether the party grieved, or a third person, should either apply for the warrant of a justice, or immediately give information to the constable of the vill. The former method is always prudent when circumstances will permit, but as we have seen, it is by no means necessary, and if the offender be likely to escape is improper from the delay it occasions (c). He should then make a full statement of all the facts within his knowledge relative to the offence and the offender; state his name, if known, and if otherwise, describe his person, horse, or other circumstances which may lead to detection (d). Should the crime, however, be committed in any manner, or at any time which prevents him from obtaining any of these clues to discovery, he may require the officers to search for all suspicious persons, vagrant in their districts, in order that they may be examined (e). He may then claim the assistance of all the inhabitants of the vill, and all neighbouring vills, who are to pursue by horse and foot, till the felon is secured, or they are liable to be punished for their neglect (f). And by this means, a constable who has obtained a warrant against a felon, may procure him to be apprehended in a different county from that in which it was granted; by following [ 29 ] him with hue and cry, and so, without backing the warrant, cause him at once to be arrested (g). done on hue and Hue and cry being thus levied, we are now to inquire what may What may be be done on the pursuit. It is clear, that when once it is com- cry. menced, those who join will be protected, even though it should ultimately appear that no felony has been committed; and the reasons for this are evident, because the constable cannot examine on oath as to the truth of the statement, and the nature of the (a) 2 Hale, 100. 2 Inst. 117. (b) Hawk. b. 2. c. 12. s. 5. 2 Hale, 100. 2 Inst. 173. (c) 2 Hale, 99. Burn, J. Hue and Cry. Barl. J. 317. (d) 2 Hale, 100. Burn, J. Hue and Cry. Barl. J. 318. (f) 2 Hale, 101. (g) 2 Hale, 115. 3 Inst. 116. 1 1 proceeding requires the utmost promptitude, because officers are punishable if they neglect to observe it; and because he who without cause set it on foot, is punishable by fine and imprisonment, for the disturbance he has occasioned (a). And thus it is, that arrest upon hue and cry, differs from arrest upon mere suspicion; in the latter case, it is necessary to aver in justifying that a crime was committed, and that fact may be put in issue; whereas, in the latter case, no such allegation is necessary, nor is it ever stated in pleading (b). In short, this proceeding arms all persons with the same authority as a warrant gives to the party to whom it is directed; they are not answerable for the propriety of the cry itself, but only for the regularity of their own conduct when acting under it. If, therefore, hue and cry be made against a suspected person, he may be arrested and taken to the common gaol, though he ultimately establish his innocence, and though in fact the crime is altogether fictitious (c). And so, where upon a description of the offender, whose name is unknown, the wrong person is appre hended by mistake, the party arresting is clearly justified (d). If [30] any of the pursuers be killed by the party flying, this will be murder; and if, on the other hand, the latter be killed, when he cannot otherwise be taken, the pursuers will be protected (e), The pursuers under hue and cry, if the party suspected is actually in a house, have an unquestionable right to break open the outer door to secure him, on previous demand of admittance (ƒ). They must, however, ascertain that fact, as if he be not found they will be trespassers (g). But they may search all suspected places which they can enter without forcing an outer door, whether they succeed or fail (h). Although suspicious persons neither named, nor described, may be taken, it will lie on the parties arresting to shew, that they had reasonable ground to suspect them, either from their being vagrants, not rendering a good account of themselves, or other similar circumstances, for otherwise this proceeding would be more dangerous than even general warrants (a). On any prosecution, however, the pursuers may, by statute, plead the general issue, and give the special matter in evidence (b). It now only remains to observe, that if the felon be not secured, it is provided by a very ancient as well as by a modern statute, that an action may be supported against the hundred, at the suit of the party immediately injured, to recover the damages sustained by the robbery. And upon the construction of these acts, it has been holden, that the plaintiff is entitled to costs, as well as damages (c). These encouragements to the levying hue and cry, were found of great advantage in earlier times, when forcible robberies were common, and assumed a very formidable aspect, though now, from the increased excellence of the police, the practice is becoming obsolete. [ 31 ] warrant. Such are the modes by which arrests may be made without Arrests under waiting for any legal authority, from a public magistrate, to sanction the proceedings. This summary course is necessary, when there is an imminent danger of an escape, or when, from other circumstances, the utmost promptitude is requisite. But we have seen that, whenever the case will admit, it is more prudent to obtain the authority of a magistrate, to give greater security to the parties by whom the arrest is to be effected (d). The mode, nature, and effect of this course of proceeding, now, therefore, demand our attention. The party who knows or suspects that an indictable offence has been committed, usually goes before a justice of the peace, accompanied by any other witnesses whom he may be able to procure, and gives the magistrate his information and that of his companions, stating the grounds of suspicion on which his appli(a) 2 Hale, 101. (b) 7 Jac. 1. c. 5. 13 Edw. 1. c. 3. 9 Geo. 1. c. 22. See the decisions and proceedings on this and other statutes, relating to Hue and Cry, 2 Saund. Rep. (c) 1 T. R. 71. |