The questions thus raised are of the greatest and most solemn importance, not only as affecting the liberty of the subject, but as affecting his responsibility before the law, if as a last resource, as the only means of obtaining his liberty when the exercise of all other force has failed, he takes the life of the person illegally arresting him. If the direction of the Chief Justice were to be taken as a broad statement that a person illegally imprisoned is not under any circumstances justified in maiming or taking the life of the person unlawfully imprisoning him, I am of opinion that such an exposition of the law would be erroneous; but if his Honour meant to say that even assuming the imprisonment was illegal, under the circumstances of an imprisonment such as this, the prisoner was not justified in maiming his keeper, and that, had he taken the life of the constable, the killing would have been at least manslaughter, then I am of opinion that his Honour's direction was correct. As this Court has pointed out on a previous occasion, a Judge in directing a jury is not called upon to give a dissertation upon all the aspects which a case might assume; he is only supposed to direct them as to the law bearing upon the facts proved in evidence before him, or as they may be found by the jury. His Honour's direction, therefore, should be taken as merely applicable to the facts of this case; but as it may, from the generality of the terms in which it is expressed, be afterwards quoted as an authority for the proposition that under no circumstances is a person illegally deprived of his liberty justified in maiming or taking the life of his keeper, it seems to me desirable that the law on the question should be clearly expounded, so that there may be no misunderstanding upon a matter of such great importance.

In the consideration of this subject we start with the elementary proposition that the law considers wilful homicide as a crime unless it can be shewn that the taking of life was under the authority of the law, or was justified by the necessity of self-defence. As the law further requires that everyone in the community shall submit to its authority and its lawful control of the person of the citizen, it regards the killing of any officer of the law, having lawful power to restrain the

1890.

RIGINA

v.

RYAN.

Windeyer J.

1890.

REGINA

r.

RYAN.

Windeyer J.

liberty of a citizen, as murder. The question next arises, of what offence, if any, is a person guilty who, knowing him to be such, kills an officer of the law who endeavours to arrest him but is without legal authority to do so? It has been contended before us in the present case that the person taking the life of the officer under such circumstances is guilty of no offence whatever, and that such killing would be justifiable homicide. Such is not the law. A proposition so startling and so dangerous in its consequences has to support it neither the arguments of reason nor the authority of decisions. Whatever fault may be found with much that is antiquated in the law as opposed to modern ideas, the common law as to homicide is in this matter thoroughly in accord with common sense and the best interests of the community. The law, whilst it regards submission to it as the duty of every citizen when he is legally arrested, rightly regards the invasion of his liberty by arrest without lawful authority as an assault that may be lawfully resisted in a legal manner. The law consequently permits the person so assaulted to resist and escape if he can by the exercise of a corresponding amount of force to that used in such assault, but it will no more allow him to use a deadly weapon in resisting such assault than it will allow him to use a deadly weapon in resisting any other kind of common assault. If a man be struck with the fist he may defend himself in a similar manner, and so knock his assailant down, but he is not justified in shooting him, or maiming him with an axe or other deadly weapon. If in the heat of passion, his reason being for the moment overpowered, he kills his assailant with a deadly weapon, the law, in compassion for the human infirmity of anger, regards the killing as manslaughter and not murder, there being absent from the killing that deliberate intent or wicked indifference to human life which is the essence of murder. The law, in regarding such killing as an offence, maintains its sacred regard for human life for which it holds every man responsible unless he can shew that he took it under authority of the law or in self-defence, and so protects even the wrongdoer who is guilty of an assault from murderous attack unnecessary for the purpose of self-defence. The officer of the law who acts bona fide, believing that he has authority to

1890.

REGINA

v.

RYAN.

arrest without a warrant, though he may be guilty of an assault, is, as far as his life is concerned, clearly as much within the protection of the law as the man who, without any shadow of legal excuse, assaults his fellow citizen. A person thus assaulted by Windeyer J. an officer of the law, erroneously believing that he has authority to arrest, would act most wisely if he submitted under protest and trusted to the law for redress; but if he will resist, he must carefully abstain from using the kind of violence which, used in any other case of self-defence against a common assault, would transgress the license of the law and amount to crime. If deadly weapons are not used against him, he is not at liberty to maim, wound, or kill the officer illegally attempting to arrest him, even if he cannot without the use of such weapons effect his escape. Whilst the law regards submission to it, as the expression of the will of the community, to be the duty of every citizen, it rightly regards the invasion of his liberty by arrest without lawful authority as a wrong calculated to provoke anger and resentment, and therefore says that the taking of life in resisting such an assault is not murder but manslaughter. The principle underlying the law governing cases of homicide committed in resisting an illegal arrest-viz., that violence exceeding the kind of violence used in the assault, or more than is necessary to resist it, amounts to crime, is applicable to all cases of violence resulting in injuries less than mortal arising under the same circumstances. Just as an assault with an umbrella or a cane will not justify the use in self-defence of a crowbar, a knife, a hatchet, or other dangerous weapon, so the assault committed in the attempt to make an illegal arrest will not justify the use of dangerous weapons, and the inflicting of grievous bodily injuries upon the officer attempting to arrest. Just as taking his life would be manslaughter, so injuries inflicted upon him, beyond such as might naturally follow from an unarmed resistance of his attempt to hold the person, are injuries for which the man inflicting them is responsible to the law, whilst the officer attempting to make the arrest, if attacked with unnecessary violence, may protect himself from it as any other person may upon whom a violent unjustifiable assault is made, the persou so attacking him being then altogether the wrongdoer.

1889

REGINA
RYAN.

Consequently, if the officer making the illegal arrest is attacked with a dangerous weapon and his life is so endangered that he can only protect himself by killing his assailant, he is justified in so Windeyer J. doing. The proposition that a person upon whose arm an officer places his hand to make an arrest under a defective process of ca. re. would be justified in chopping off the officer's hand or in taking his life would be shocking to all ideas of right in any but a community of savages.

To apply these principles to this case. Assuming for the moment that the arrest was illegal, the prisoner was exceeding the limits of violence which he might lawfully use to prevent apprehension when he drew the constable's revolver and shot him; and had the constable died the prisoner's crime would undoubtedly have been manslaughter. The authorities, in support of this exposition of the law, are to be found both in the works of jurists and in decided cases ranging through centuries, and I have myself heard the same law laid down by that most distinguished criminal lawyer, Sir Alfred Stephen. In East's P.C. 233, the law as to the illegal restraint of a man's liberty amounting to a provocation, which will reduce the killing to manslaughter, is thus laid dowu :-" So if a man be injuriously restrained of his liberty, as where a creditor stood at the door of his debtor with a drawn sword, to prevent him from escaping while he sent for a bailiff to arrest him. Or as where a sergeant put a common soldier under an arrest, who thereupon killed the sergeant with a sword; and upon the trial the articles of war were not produced, nor any evidence given of the usage of the army, and so no authority in the sergeant appeared." The first case there cited, Buckner's (Styles 467), is worthy of note, as it shews that the law as to an illegal restraint only amounting to a provocation, and not to a justification, applies to cases of private persons illegally restaining a man's liberty, and not merely to officers of the law. The law is stated to the same effect in Russell on Crimes (Vol. I., chap. 2, sec. 1-Cases of Provocation). Again, in s. 3 of the same chapter we find, "It has been before mentioned, as general rule, that where persons having authority to arrest or imprison, and using the proper means for that purpose,

1890.

REGINA

v.

RYAN.

are resisted in so doing and killed, it will be murdering all who take part in such resistance. But this protection of the law is extended only to persons who have proper authority, and who use that authority in a proper manner : wherefore questions Windeyer J. of nicety and difficulty have frequently arisen upon the points of authority, legality of process, notice, and regularity of proceeding; and as the consequence of defects in any one of these particulars is in general that the offence of killing the person resisted is extenuated to manslaughter, it will be proper in this place to consider some of those questions which have met with judicial decision." The law as to an illegal arrest being regarded as a provocation, and not as a justification, was clearly laid down by eight Judges in the case of Rex v. Thompson (12), where the prisoner having wounded a constable whilst endeavouring to make an illegal arrest, and having been convicted of wounding with intent to murder, the conviction was set aside on the ground that if death had ensued it would have been manslaughter only. So in Tooley's case (13), the illegal arrest was regarded as provocation only, and not as justification. That the killing is manslaughter where the provocation only amounts to a trespass is similarly laid down in Hale, P.C., 484. So in East's P.C., p. 312: "If an officer make an arrest out of his proper district, or have no warrant or authority at all, as if his name be inserted after the issuing of the writ or process without lawful authority, he is no legal officer nor entitled to the special protection of the law; and, therefore, if he be killed by the party injured in the struggle, it is only manslaughter." In the case of Regina v. Chapman (14), where a constable had illegally arrested the prisoner upon a charge of misdemeanour, having no warrant with him at the time, which is the case put for the prisoner here, Hannen, J., summed up as follows:-"Assuming that the prisoner caused the death of the deceased, it would be for the prisoner to shew a justification. In the absence of such a justification, the presumption of law would be that he intended to kill the deceased. But the law considers that in some cases there may be circumstances which, though they fall short of a justification, establish (14) 12 Cox 4.

(12) 1 Mood C.C. 80. (13) 2 L rd Rayш.