Of apprehending nightwalkers. part in the resistance; there being either implied or express notification of the character in which he interposed. (o) It has, however, often been questioned, how far a constable or other peace officer is authorized to arrest a person upon a charge by another of a mere breach of the peace, after the affray is ended, and peace restored, without a special warrant from a magistrate; and it ap pears to be the better opinion, that he has no such authority.(p) But if one menace another to kill him, and complaint be made thereof to the constable forthwith, such constable may, in order to avoid the present danger, arrest the party, and detain him till he can conveniently bring him to a justice of the peace. (q) It has been said, that if peace officers meet with night-walkers, or persons unduly armed, who will not yield themselves, but resist or fly before they are apprehended, and who are upon necessity slain, because they cannot otherwise be overtaken, it is no felony in the officers or their assistants, though the parties killed were innocent. (r) But it is doubted whether, at this day, so great a degree of severity would be either justifiable or necessary (especially in the case of bare flight), unless there were a reasonable suspicion of felony. (s) And it has been considered, that the taking up of a person in the night, as a night-walker and disorderly person, though by a lawful officer, would be illegal, if the person so arrested were innocent, and there were no reasonable grounds of suspicion to mislead the officer.(t) (0) 1 Hale 463. 1 Hawk. P. C. c. 31. s. 54. Fost. 310, 311. 1 East. P. C. c. 5. s. 71. p. 303. (p) 1 East. P. C. c. 5. s. 72. p. 305, who cites 2 Inst. 52. 2 Hawk. P. C. c. 12. s. 20. and c. 13. s. 8. 2 Lord Raym. 1301. Strickland v. Pell, Dalt. c. 1. s. 7.; and says, that there can be no such authority for the purpose of imprisoning or compelling the party to find sureties; though Lord Coke says, (4 Inst. 265.) that a constable may take surety of the peace by obligation. Lord Hale and some later authorities have holden, that such officer may arrest the party upon the charge of another, though the affray be over, for the purpose of bringing him before a justice, to find sureties of the peace, or for appearance. 2 Hale 90. Handcock v. Sandham and others, 1785, and Williams ». Dempsey, 1787, cited in East. P. C. id. 306. But see ante, 273, 274. (q) 2 Hale 88. This power seems to be grounded on the duty of the officer to prevent a probable felony; and must be governed by the same rules which apply to that case; though Dalton (ch. 116. s. 3.) extends it even to the prevention of a battery. Vide 1 East. P. C. c. 5. s. 72. p. 306. (r) 2 Hale 85, 97. The statutes 2 Ed. 3. c. 3. and 5 Ed. 3. c. 14. relate to the apprehension of night-walkers, and persons unduly armed. And see Lawrence v. Hedger, 3 Taunt. 14. (s) 1 East. P. C. c. 5. s. 70. p. 303. Both the statutes mentioned in the last note were levelled against particular descriptions of offenders, who roved about the country in bodies, in a daring manner. (1) Tooley's case, 2 Lord Raym. 1296. There is a MS. note of this case given by the editor of Lord Hale (2 Hale 89,) which states Lord Holt to have said, that, of late, constables had made a practice of taking up people only for walking the streets: but that he knew not whence they had such authority. But see Lawrence v. Hedger, 3 Taunt. 14, where it was holden that watchmen 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, although there is no proof of felony having been committed. And it has been said by Hawkins and others, that every private person may, by the common law, arrest any suspicious night-walker, and detain him till he give a good account of himself. 2 Hawk. P. C. c. 13. s. 6. c. 8. s. 38. ; and it has been held, that a person may be indicted for being a ties. It has sometimes happened that peace officers have taken oppo- Officers taking site parties in an affray, and the death of one of them has ensued; opposite paras in the case put by Lord Hale, where A. and B., being constables of the vill of C., and a riot or quarrel happening between several persons, A. joined with one party, and commanded the adverse party to keep the peace, and B. joined with the other party, and in like manner commanded the adverse party to keep the peace, and the assistants and party of A. in the tumult killed B. (u) This, Lord Hale says, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and each had as much authority as the other: (w) but upon this it has been remarked, that perhaps it had been better expressed, to have said, that inasmuch as they acted not so much with a view to keep the peace, as in the nature of partisans to the different parties, they acted altogether out of the scope of their characters as peace officers, and without any authority whatever.(x) And in another case, Lord Hale says, that if the sheriff have a writ of possession against the house and lands of A., and A. pretending it to be a riot upon him, gain the constable of the vill to assist him, and to suppress the sheriff or his bailiffs, and in the conflict the constable be killed, this is not so much as manslaughter; but if any of the sheriff's officers were killed, it would be murder, because the constable had no authority to encounter the sheriff's proceeding when acting by virtue of the king's writ. (y) There is a late case, which appears to have been ruled upon the foregoing principles. Some sheriffs' officers having apprehended a man by virtue of a writ against him, a mob collected, and endeavoured by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs having been violently assaulted, struck one of the assailants, a woman, and as it was thought for some time had killed her: whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the custody of the bailiff who had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which, he proceeded to take them into custody upon the charge of murder; and at first, offered to take care also of their prisoner, but the latter was common night-walker, as for a misdemeanor. 2 Hawk. P. C. c. 8. s. 38. Latch. 173. Poph. 208. By the vagrant act, 5 Geo. 4. c. 83. s. 6., it is made lawful for any person whatsoever to apprehend any person who shall be found offending against that act, and forthwith to take and convey him or her before some justice of the peace, to be dealt with in such manner as is therein before directed, or to deliver him or her to any constable or other peace officer of the place where he or she shall have been apprehended, to be so taken and conveyed as aforesaid: and it further enacts, that in case any constable or other peace officer shall refuse, or wilfully neglect, to take (u) 1 Hale 460. (x) 1 East. P. C. c. 5. s. 71. p. 304. Private per ing in sudden affrays. soon rescued from them by the surrounding mob. The woman having recovered, the bailiffs were released by the constable the next morning. Upon an indictment for an assault and rescue, Heath, J. was clearly of opinion, that the constable and his assistants were guilty of the assault and rescue, and directed the jury accordingly.(3) Where private persons interpose in the case of sudden affrays, to sons interpos- part the combatants, and prevent mischief, and give express notice of their friendly intent, it will be murder in either of the persons making the affray, who shall kill the party so interposing: but it will not be murder in the other affrayer, unless he also strike the party.(a) Authority to arrest and imprison in civil suits. Authority to impress sea men. It has been shewn that though, even in civil cases, an officer may repel force by force, where his authority to arrest or imprison is resisted, and may do this to the last extremity in cases of reasonable necessity; (b) yet if the party against whom the process has issued fly from the officer endeavouring to arrest him, or if he fly after an arrest actually made, or out of custody, in execution for debt, the officer has no authority to kill him, though he cannot overtake or secure him by any other means. (c) The authority of an officer, in civil cases, must be regulated and limited by the writ or process which he is empowered to execute, and by the extent of the district in which he is privileged to act. It is only in the character of officer that he can proceed to arrest or imprison, as no private person can of his own authority arrest in civil suits. (d) A press-warrant extends in terms to "seamen, seafaring men, and others, whose occupations and callings are to work in vessels and boats upon rivers;" (e) and persons of this description may be impressed to serve on board his Majesty's ships of war, by those who have proper authority delegated to them for that purpose. (f) A proceeding which has been sometimes considered as hardly consistent with the temper and genius of a free government, but which may be defended on the ground of its necessity for the safety of the state; in order that the government may be enabled, in time of need, thus peremptorily to call for the services of persons who have freely chosen a seafaring life, and whose education and habits have fitted them for the employment. But as this is a power of an extraordinary nature, it is highly requisite that no persons should assume it without being duly qualified for that purpose; as the especial protection which the law affords to its officers will not be extended to those who venture to act without proper authority. Thus, where the execution of a press-warrant is directed by the terms of the warrant (as is now always the case) not to be intrusted to any person but a commis (z) Anon. Exeter Sum. Ass. 1793. 1 East. P. C. c. 5. s. 71. p. 305. (a) 1 Hawk. P. C. c. 31. s. 48, 54. Fost. 272, 311. 1 East. P. C. c. 5. s. 71. p. 304. Ante, 273. (b) Ante, 449, 457. (c) 1 Hale 481. Fost. 271. (d) 1 Hawk. P. C. c. 28. s. 19. (e) Rex v. Softly, 1 East. R. 466. East. P. C. c. 5. s. 75. p. 307. The same terms occur also in the warrant in Broadfoot's case, Fost. 156. (f) Broadfoot's case, 18 St. Trial (by Howell) 1323. Fost. 154: where see an elaborate argument delivered by Mr. J. Foster, as recorder of Bristol, in support of the legality of im1 pressing seamen. sioned officer, the execution of it by another person will be illegal. As in a case where the lieutenant of a press-gang, to whom the execution of a warrant was properly deputed, remained in King Road, in the port of Bristol, while his boat's crew went some leagues down the channel, by his directions, to press seamen. This was illegal; and when, in the furtherance of that service, one of the press-gang was killed by a mariner in a vessel which they had boarded with intent to press such persons as they could meet with, it was ruled to be only manslaughter, though no personal violence had been offered by the press-gang.(g) And upon the same principles, where the mate of a ship and a party of sailors, without either the captain who had the press-warrant or the lieutenant who was regularly deputed to execute it, impressed a man, and upon his making some resistance, one of the party struck him a violent blow with a large stick, of which he died some days after, it was adjudged murder. (h) And, in another case, the delegation of the power of impressing by a lieutenant (to whom the warrant had been directed) to a petty officer and several others, to whom he had given verbal orders to impress certain seafaring men, of whom he had received intelligence, was decided to be clearly bad; though it was found to be the constant usage and invariable custom of the navy for all commissioned officers, having in their custody such press-warrants, to give verbal orders to such petty officers whom they might think fit to employ upon the impress service, and that such petty officers usually acted without any other authority than such verbal orders. (¿) Murder by a ship's sentinel in preventing persons from If a ship's sentinel shoot a man, because he persists in approaching the ship when he has been ordered not to do so, it will be murder, unless such an act was necessary for the ship's safety. And it will be murder, though the sentinel had orders to prevent approaching the approach of any boats; had ammunition given to him when he the ship. was put npon guard; and acted under the mistaken impression that it was his duty. The prisoner was sentinel on board the Achille, when she was paying off. The orders to him from the preceding sentinel were, to keep off all boats, unless they had officers with uniforms in them, or unless the officer on deck allowed them to approach; and he received a musket, three blank cartridges, and three balls. The boats pressed; upon which he called repeatedly to them to keep off; but one of them persisted and came close under the ship: and he then fired at a man who was in the boat, and killed him. It was put to the jury to find, whether the sentinel did not fire under the mistaken impression that it was his duty and they found that he did. But a case being reserved, the Judges were unanimous that it was, nevertheless, murder. They thought it, however, a proper case for a pardon: and further, they were of opinion, that if the act had been necessary for the (g) Broadfoot's case, Fost. 154. But if a warrant be directed to several, one of them may execute it. 1 Hale 459. (h) Dixon's case, 1 East. P. C. c. 5. s. 80. p. 313. and see also Browning's case, 1 East. P. C. c. 5. s. 80. p. 312. (i) Borthwick's case, Dougl. 207. The warrant enjoined all mayors, &c. to aid and assist the officer to whom it was directed, and those employed by him in the execution thereof. The authority to arrest and imprison can only be exercised by a legal officer within the proper district. 5 Geo. 4. c. 18. s. 6. Consta bles may exe cute warrants out of their precincts, provided it be within the ju risdiction of the justice granting or backing the same. preservation of the ship, as if the deceased had been stirring up a mutiny, the sentinel would have been justified. (a) The party taking upon himself to execute process, whether by writ or warrant, must be a legal officer for that purpose, or his assistant and if an officer make an arrest out of his proper district, or have no warrant or authority at all, or if he execute process out of the jurisdiction of the court from whence it issues, he will not be considered as a legal officer entitled to the special protection of the law: and therefore, if a struggle ensue with the party injured, and such officer be killed, the crime will be only manslaughter. (k) And it has been ruled, that homicide committed upon a bailiff, attempting to execute a writ within an exclusive liberty, such writ not having a non-omittas clause, will not amount to murder. (x) It has been held, that if the constable of the vill of A. come into the vill of B. to suppress some disorder, and in the tumult the constable be killed in the vill of B., this will be only manslaughter, because he had no authority in B. as constable.() But it was considered, that if the constable of the vill of A. had a particular precept from a justice of peace directed to him by name, or by his name of office as constable of A., to suppress a riot in the vill of B., or to apprehend a person in the vill of B. for some misdemeanor within the jurisdiction and conusance of the justice of peace, and in pursuance of that warrant he went to arrest the party in B., and in executing his warrant was killed in B., this amounted to murder. (m) A late important statute, 5 G. 4. c. 18., recites, that warrants addressed to constables, headboroughs, tithing-men, borsholders, or other peace officers of parishes, townships, hamlets, or places, in their characters of and as constables, headboroughs, tithing-men, borsholders, or other peace officers of such respective parishes, townships, hamlets, or places, cannot be lawfully executed by them out of the precincts thereof respectively, whereby means are afforded to criminals and others of escaping from justice; and then for remedy thereof enacts, "that it shall and may be lawful to and for each and every "constable, and to and for each and every headborough, tithing 66 man, borsholder, or other peace officer, for every parish, township, hamlet, or place, to execute any warrant or warrants of 66 any justice or justices of the peace, or of any magistrate or cr magistrates, within any parish, township, hamlet, or place, "situate, lying, or being within that jurisdiction for which such justice or justices, magistrate or magistrates, shall have acted "when granting such warrant or warrants, or when backing or "indorsing any such warrant or warrants, in such and the like 66 manner as if such warrant or warrants had been addressed to (a) Rex v. Thomas, East. T. 1816. MS. Bayley, J. (k) 1 Hale 457, 458, 459. 1 East. P. C. c. 5. s. 80. p. 312, 314. 13. s. 27, 30. It may be here mentioned, that by 24 Geo. 2. c. 44. s. 6. if a warrant is irregular in the frame of it, the officer executing it ministerially is indemnified against any action for damages by the party injured, (1) Hale 459. though the magistrate by whom it was (m) 1 Hale 459. 2 Hawk. P. C. c. issued exceeded his jurisdiction. (x) Rex v. Mead and another, 2 Stark. C. 205. |