[*1038

or might arise, whether the judgment thereon were discretionary in the Court, and pray judgment only on such charges as left the judgment in their discretion; and, accordingly, a noli prosequi was entered on the three first counts; and on the others the Court gave judgment against the defendants, of fine, imprisonment, and sureties. (b)

A person who rescues a prisoner from any of the Courts which have been mentioned, without striking a blow, is punished with perpetual imprisonment, and forfeiture of goods, and of the profits of lands during life; for this offence is, in its nature, similar to the other; but as it differs in this, that no blow is actually given, the amputation of the hand is excused. (c) And for the like reason, an affray or riot near the said Courts, but out of their actual view, is punishable by fine and imprisonment during pleasure, but not with the loss of the hand. (d)

Though an assault in any of the King's inferior courts of justice would not subject the offender to lose his hand ;(e) yet, upon an indictment for such an assault, the circumstances under which it was committed would, doubtless, be considered as a matter of great aggravation. And any affray or contemptuous behavior in those courts, is punishable with a fine, by the Judges there sitting.(ƒ)

It is said that, in order to warrant the higher judgment, the offence must be charged to have been committed in the presence of the King, or of the Justices.(g) And it seems also that in order to warrant such judgment, the indictment ought expressly to charge a stroke; though it does not appear whether any technical word. be necessary to be used for that purpose.(h)

Amongst the principal of those assaults, the aggravated nature of which may be said to arise from the great criminality of the object intended to be effected, is an assault upon a person with a felonious intent to commit a robbery, and nearly allied to this is a demand of property effected by menaces or force, and with the intent of stealing such property. These offences were in the former editions dealt with in this place, but they are now placed in the Chapter on Robbery, as well because that appears to be their fitter place, as because, on a trial for robbery, the accused may now be convicted of an assault with intent to rob.

[*1039

The 11 & 12 Will. 3, c. 7, s. 9, enacts that, "if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defence of his ship and goods, committed to his trust," he shall be adjudged to be a pirate, felon, and robber; and being convicted, shall suffer death and loss of lands, goods, &c., as pirates, felons, and robbers upon the seas, ought to suffer.(i) The provision relating to assaults upon clergymen and obstructing them in the performance of their duties has already been inserted.(k)

By the 24 & 25 Viet. c. 100, s. 37, "Whosoever shall assault and strike or wound any magistrate, officer, or other person whatsoever lawfully authorized, in or on account of the exercise of his duty in or concerning the preservation of any vessel in distress, or of any vessel, goods, or effects wrecked, stranded, or cast on shore, or lying under water, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any

(b) Rex v. Lord Thanet and others, B. R. Trin. 39 Geo. 3; 1 East P. C. c. 8, s. 3, pp. 408, 409, 410. In Rex v. Davis, Dy. 188 a, 188 b, and the notes thereto, are various instances of the judgment having been executed to the full extent. One of them is remarkable for the speedy justice which appears to have been administered. "Richardson, Chief Justice of C. B., at the assizes at Salisbury, in the summer of 1631, was assaulted by a prisoner condemned there for felony, who, after his condemnation, threw a brickbat at the said Judge, which narrowly missed; and for this an indictment was immediately drawn by Noy against the prisoner, and his right hand cut off and fixed to the gibbet upon which he was himself immediately hanged in the presence of the Court." (c) 1 Hawk. P. C. c. 21, s. 5; 4 Blac. Com. 125.

(d) 1 Hawk. P. C. c. 21, s. 6; 4 Blac. Com. 125. Ante, p. 406.

(e) Inst. 141; 1 Hawk P. C. c. 21, s. 10.

(f) 4 Blac. Com. 126; 1 Hawk. P. C. c. 21, s. 10.

(g) 1 East P. C. c. 8, s. 3, p. 410; 1 Hawk. P. C. c. 21, s. 3.

(h) 1 East P. C. c. 8, s. 3, p. 408, referring to 1 Sid. 211.

(i) See this statute more at large, ante, p. 145.

(k) Ante, p. 418.

term not exceeding seven years and not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor.”(1)

Sec. 38. "Whosoever shall assault any person with intent to commit felony, or shall assault, resist, or wilfully obstruct any peace officer in the due execution of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor."(m)

Sec. 39. "Whosoever shall beat, or use any violence or threat of violence to any person, with intent to deter or hinder him from buying, selling, or otherwise disposing of, or to compel him to buy, sell, or otherwise dispose of, any wheat or other grain, flour, meal, malt, or potatoes, in any market or other place, or shall beat or use any such violence or threat to any person having the care or charge of any wheat or other grain, flour, meal, malt, or potatoes, whilst on the way to or from any city, market town, or other place, with intent to stop the conveyance of the same, shall, on conviction thereof before two justices of the peace, be liable to be imprisoned and kept to hard labor in the common gaol or house of correction for any term not exceeding three months: Provided that no person who shall be punished for any such offence by virtue of this section shall be punished for the same offence by virtue of any other law whatsoever."(n)

*Sec. 40. "Whosoever shall unlawfully and with force hinder or prevent *1040] any seaman, keelman, or caster from working at or exercising his lawful trade, business, or occupation, or shall beat or use any violence to any such person with intent to hinder or prevent him from working at or exercising the same, shall, on conviction thereof before two justices of peace, be liable to be imprisoned and kept to hard labor in the common gaol or house of correction for any term not exceeding three months: Provided that no person who shall be punished for any such offence by reason of this section shall be punished for the same offence by virtue of any other law whatsoever."(o)

Sec. 41. "Whosoever, in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or of any unlawful combination or conspiracy respecting any trade, business, or manufacture, or respecting any person concerned or employed therein, shall unlawfully assault any person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor.”(p)

(1) This clause is taken from the 9 Geo. 4, c. 31, s. 24, and 10 Geo. 4, c. 34, s. 30 (I.), As to counsellors and abettors, see sec. 67, ante, p. 881. As to hard labor, &c., see ante, p. 900. As to fine and sureties, see ante, p. 900. The Act extends to Ireland, but not to Scotland. (m) This clause is taken from the 9 Geo. 4, c. 31, s. 25, and 10 Geo. 4, c. 34, s. 31 (I.). This clause extends the former enactments to resisting and wilfully obstructing peace officers. Revenue officers were included in the former clause, but are omitted in this, because assaults on them are otherwise provided for. See 16 & 17 Vict. c. 107, s. 251, ante, p. 177. As to hard labor, &c., see the last note.

(n) This section assimilates part of the 9 Geo. 4, c. 31, s. 26, and part of the 14 & 15 Vict. c. 92, s. 2. It omits the word "wound" in the former, because a wounding with any of the intents specified in this clause would fall within section 20 of this Act; and it introduces "threat of violence," and the intent to compel the party to buy, sell, or dispose of the things specified. By sec. 76 of the Act all summary proceedings under this clause should be taken under the 11 & 12 Vict. c. 43, where the offence is committed in England, except in London and the Metropolitan Police district, and in Ireland under the 14 & 15 Vict. c. 93. See ante, p. 183, et seq.

(0) This clause is taken from the 9 Geo. 4, c. 31, s. 26, and is new in Ireland. The summary proceedings under this clause should be taken in the same manner as under the preceding clause. See the last note.

(p) This clause is taken partly from the 9 Geo. 4, c. 31, s. 25, which had the words "any assault committed in pursuance of any conspiracy to raise the rate of wages;" and the rest from the 10 Geo. 4, c. 34, s. 28 (I.), but that clause required the assault to be committed with intent to do grievous bodily harm," and made the punishment seven years' transportation. As to counsellors and abettors, see sec. 67, ante, p. 881. As to hard labor, &c., see ante, p. 900. As to fine and sureties, see ante, p. 900.

By the 1 & 2 Will. 4. c. 41, s. 1, two or more justices, upon information upon oath, that disturbances are likely to take place, may appoint special constables out of the householders, or other persons (not legally exempt from serving the office of constable,) residing in any parish, township, or place wherein disturbances are likely to occur, or in the neighborhood thereof; and by sec. 5, every special constable, so appointed, shall not only within the parish, township, or place for which he shall have been appointed, but also throughout the entire jurisdiction of the justices appointing him, have, exercise, and enjoy all such powers, authorities, advantages and immunities, and be liable to all such duties and responsibilities as any constable duly appointed now has within his constablewick, by virtue of the common law of this realm, or of any statute or statutes.

A special constable, appointed under this Act, continues such, and has all the authority of an ordinary constable, until his services are either suspended or determined under sec. 9 of the Act, although eight years may have elapsed since his appointment.(g)

The 5 & 6 Will. 4, c. 43, s. 1, makes all persons, willing to act as special constables, capable of being appointed, although they may not be resident in the parish, township or place, or in the neighborhood thereof, and gives such persons all the same powers, &c, when appointed, as the special constables appointed under the 1 & 2 Will. 4, c. 41.

*The Rural Police Act, 2 & 3 Vict. c. 93, s. 8, enacts, that the chief [*1041 constable, and other persons appointed under the Act, "shall be sworn as constables before a justice of the county, and shall have all the powers, privileges, and duties throughout the county, and also in all liberties and franchises, and detached parts of other counties locally situate within such county, and also in any county adjoining to the county for which they are appointed, which any constable duly appointed has within his constablewick, by virtue of the common law, or of any statute made or to be made."(r) And the 3 & 4 Vict. c. 88, s. 16, which provides for the appointment of local constables for parishes, &c., gives such local constables similar powers, &c., but they are not bound to act beyond the parish, &c., for which they are appointed. (s)

The 5 & 6 Vict. c. 109, provides for the appointment and payment of parish constables, and by sec. 15, "the said constables shall have within the whole county, and also within all liberties and franchises and detached parts of other counties situated therein, and also in every county adjoining to the county in which they are appointed, all the powers, privileges, and immunities, and shall be liable to all the duties and responsibilities of a constable within his constablewick, but shall not be bound to act beyond the parish for which they are severally appointed and sworn, without the special warrant of a justice of the peace: Provided always, that in those counties in which any chief constable or superintendent shall have been appointed under the authority of the 2 & 3 Vict. c. 93, or of any Act passed for the amendment thereof, the constable appointed under this Act for any parish within the district for which such chief constable or superintendent shall have been appointed, shall be subject to the authority of such chief constable or superintendent.'

The 10 & 11 Vict. c. 89, consolidates certain provisions usually contained in Acts for regulating the police of towns, and by sec. 8, "any justice may swear in any person appointed and employed as a constable under this and the special Act, and the constables so sworn in shall have, within the limits of the special Act, and in any place not more than five miles beyond such limits, the like powers, privileges, and duties, and shall have the same indemnities and protection, and shall be subject to the like penalties and forfeitures, as any constable duly appointed has or is subject to within his constablewick by law."

The 19 & 20 Vict. c. 69, contains provisions to render more effectual the police

(2) Reg. v. Porter, 9 C. & P. 778 (38 E. C. L. R.), Coleridge, J., ante, p. 799.

(r) This clause puts the constables appointed under the 2 & 3 Vict. c. 93, in the same position as parish constables: Reg. v. Chelmsford, 5 Q. B. 66 (48 E. C. L. R.).

(s) Many local Acts also authorize the appointment of constables and watchmen, and give them the same powers as ordinary constables. See also the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, ss. 76 and 83.

VOL. I.-53

in counties and boroughs; and by sec. 6, "the constables of every county appointed under the 2 & 3 Vict. c. 93, and 3 & 4 Vict. c. 88, or either of them, or this Act, shall have in every borough situate wholly or in part within such county, or within any county or part of a county in which they have authority, all the powers and privileges, and be liable to all such duties and responsibilities as the constables appointed for such borough have and are liable to within any such county, and shall *1042] obey all such lawful commands as they may from time to time receive from any of the justices of the peace having jurisdiction within any such borough in which they shall be called on to act as constables, for conducting themselves in the execution of their office." (t)

As prosecutions for assaulting constables, and other peace officers, are by no means uncommon, it may be well to introduce in this place some of the authorities, which may be useful in such prosecutions. In the case of all justices of the peace, peace officers, constables, &c., it is sufficient to prove that they acted in those characters, without producing their appointments, and that even in a case of murder, (u) and this rule extends to constables and watchmen appointed under local Acts.(v)

Constables and other peace officers, are invested with large powers and extensive authority at common law, for the purpose of preserving the peace, preventing the commission of crimes and misdemeanors, apprehending offenders, and executing the warrants of justices of the peace. Every high and petty constable, within the limits of their hundreds and districts, are conservators of the peace at common law (w) It is their duty, therefore, to do all that they can to preserve the peace within their respective constablewicks: and for this purpose, they not only may, but ought to, apprehend any person who shall make an affray or assault upon another in their presence, or who shall threaten to kill, beat, or hurt another, or shall be ready to break the peace in their presence, and may take such persons before a justice of the peace, in order that they may find surety for the peace.(x) So also by the common law, the sheriff, under-sheriff, constable, or any other peace officer, may and ought to do all that in them lies towards the suppressing of a riot.(y) And in order the better to enable peace officers to preserve the peace, they have authority to command all other persons to assist them, in endeavoring to appease such disturbances as take place in their presence.(z)

In all cases of felony, a peace officer has not only authority to apprehend a felon while committing the felony, but also upon pursuit, or information at any time afterwards;(a) and he may even justify apprehending an innocent person, if he have reasonable ground to suspect that he is guilty of felony, and this although no felony have been committed. (b) In all cases of misdemeanor, a peace officer may apprehend the party while committing the offence; (c) and, it should seem, upon fresh and immediate pursuit, in some instances. (d) But the general rule is, that if a misdemeanor be committed in the absence of a peace officer, he cannot afterwards apprehend the party who committed it.(e) It has been said, that a constable may take those before a justice, who were arrested by such as were present at an affray, but this may well be doubted. (f) But a constable may arrest, if a witness to an affray gives one of the affrayers in charge to the constable on the *1043] spot where it was committed, and whilst there is a reasonable apprehension of its continuance.(g) So a constable may apprehend a person while attempting to commit a felony ;(h) or, it should seem, even upon fresh pursuit, after he had desisted from the attempt.(i)

(t) But by the 22 & 23 Vict. c. 32, s. 2, county constables are not to be required to act in any borough.

(u) Post, Evidence, c. 3, s. 2; Gordon's case, 1 Leach 515.

(v) Butler v. Ford, 1 C. & M. 662; 3 Tyrw. 677. See also M'Gahey v. Alston, 2 M. & W.

If an officer hear a disturbance in a public-house in the night, and the door be open, he may enter.(k) But he has no authority to turn any one out of a publichouse, unless the party had committed some offence punishable by law. (1) Nor to prevent a guest from going into a room in such house, unless a breach of the peace was likely to occur.(m) But if a person makes such a disturbance in a publichouse as is calculated to alarm the neighborhood, a policeman may apprehend him.() It is to be observed, that the authority of a constable, or other peace officer, to act without a warrant, is confined by the common law to the district for which he is an officer, and consequently he cannot legally act as an officer in any other district.(0)

The constable is the proper officer to the justice of the peace, and bound to execute his warrants; and, therefore, where a statute authorizes a justice of the peace to convict a man of a crime, and to levy the penalty by warrant of distress without saying to whom such warrant shall be directed, or by whom it shall be executed, the constable is the proper officer to execute such warrant;(p) and inasmuch as the office of constable is wholly ministerial, and no way judicial, it seems that he may appoint a deputy to execute a warrant directed to him, when by reason of sickness, absence, or otherwise, he cannot do it himself.(q)

At common law, where a warrant was directed to officers as individuals, they might execute it anywhere within the extent of the magistrate's jurisdiction who granted it; but where it was directed to persons, by the name of their office, it was confined to the districts in which they were officers. (r) If, therefore, a warrant was directed to "the constable of the parish of S.," such constable had no authority at common law to execute it out of the parish of S.; and if he attempted so to do, he was a trespasser. (s) But now, by the 11 & 12 Vict. c. 42, s. 10, and c. 43, s. 3, a constable, in such a case, may execute a warrant out of his precinct at any place within the jurisdiction of the magistrate who granted it.(t)

If a warrant be good upon the face of it, and for an offence within the jurisdiction of the justice, the falsity of the charge will not prevent the execution of the warrant from being legal.(u) But if the warrant be bad upon the face of it, as if the name of the person on whom it is to be executed be insufficiently stated, or the *name of the officer who is to execute it be inserted after the warrant is issued, the officer will not be justified in acting under it.(v) So a consta[*1044 ble cannot justify an arrest by virtue of a warrant, which appears on the face of it to be for an offence, whereof a justice of the peace has no jurisdiction, or to bring the party before him at a place out of the county for which he is a justice, (w) or by virtue of a blank warrant.(x) A constable in executing a warrant must act in strict conformity with the warrant, otherwise he is a trespasser. He cannot, therefore, justify apprehending Richard H., under a warrant to apprehend John H.(y) So in executing a search warrant, he cannot justify seizing any goods except the goods specified in the warrant, unless perhaps in a case where they would furnish evidence of the identity of the goods stolen.(z)

(k) Rex v. Smith, 6 C & P. 136 (25 E. C. L. R.), Tindal, C. J.
(2) Wheeler v. Whiting, 9 C. & P. 262 (38 E. C. L. R.), ante, p. 810.
(m) Reg. v. Mabel, 9 C. & P. 474 (38 E. C. L. R.), ante, p. 810.

(n) Howell v. Jackson, 6 C. & P. 723 (25 E. C. L. R.), ante, p. 811.
(0) Ante, p. 823.

(p) 2 Hawk. P. C. c. 10, s. 35.

(7) 2 Hawk. P. C. c. 10, s. 36, and cases there cited.

(r) Ante, p. 824.

(s) Rex v. Weir, 1 B. & C. 288 (8 E. C. L. R.), ante, p. 824.

(1) Ante, p. 824.

(v) Ante, p. 829, et seq.

(u) Ante, p. 828.

(w) 2 Hawk. P. C. c. 13, s. 10. See the 11 & 12 Vict. c. 42, s. 6, and c. 43, s. 6, as to justices who act for two or more adjoining counties.

(x) Ante, p. 832, et seq.

(y) Hoye v. Bush, ante, p. 830.

(z) Crozier v. Cundey, 6 B. & C. 232 (13 E. C. L. R.). See Parton v. Williams, 3 B. & Ald. 330 (5 E. C. L. R.); Smith v. Wiltshire, 2 B. & B. 619; Theobald v Crichmore, 1 B. & Ald. 227, and other cases decided on the 24 Geo. 2, c. 44, which protects officers executing warrants where they act strictly in obedience to the warrant, and where the justice still remains liable.