King Alfred." Among others are introduced the following articles" Every one of the age of fourteen years and upwards shall be ready to kill capital offenders in their notorious crimes, or to pursue them from town to town at hue and cry." "If they can neither kill nor apprehend them, they shall take care to have them put in the exigent, in order that they may outlaw or banish them in the following manner," etc.1 If a man, who is under a recognizance to keep the peace, beat or fight with one who attempts to kill any stranger; it is not a forfeiture of his recognizance.2 If, as we have seen upon a former occasion,3 a person who interposes to part the combatants in a sudden affray, and gives notice to them of his friendly intention, be assaulted by them or either of them, and, in the struggle, should happen to kill; this will be justifiable homicide. On the other hand, if this person be killed by the combatants, or either of them, it will be murder. To preserve the public peace, and to prevent mischief, it is the duty of every man, in such cases, to interpose.4 When the law enjoins a duty, it both protects and authorizes the discharge of it. Ministers of justice, it will be admitted on all hands, are, while in the execution of their offices, under the peculiar protection of the law. Without such protection, the public peace and tranquillity could not, by any means, be preserved. But this peculiar protection of the law is not confined personally to one, who is a minister of justice: it is extended to all those who come in aid of him, and afford their assistance for the preservation of the peace. Even all those who attend for that purpose are under the same protection. It is immaterial whether they were or were not commanded to render their service upon the occasion. This peculiar protec 14 Cou. Ang. Norm. 487. 21, Haw. 131. + Fost. 272. tion of the law extends still farther. It reaches to private persons who, though no minister of justice be present, interpose for preventing mischief in the case of an affray. They are in the discharge of a duty which the law requires. The law is their warrant; and they may justly be considered as persons employed in the public service, and in the advancement of justice.1 If so, in the case of an affray, in which, on each side, the same disposition is shown; much more so, in a case of premeditated, concerted, planned, prepared, riotous, felonious, and treasonable outrage, on one side-connived at, perhaps countenanced, by those in the administration of the government. In such a case, the legal duty, the legal authority, and the legal protection operate with tenfold energy and force. In such a case, the law may well be said to throw herself, without reserve, upon the arms of the citizens. In such cases, the citizens, with open arms, are bound to receive her, and to give her that protection, which, in return, she confers upon them. The application of this important principle of preventive justice is admiraby fitted to small, as well as to the greatest occasions. If it was strictly made upon all occasions, the benefits redounding to society would be immense. The petulant ill-nature of the boy, the quarrelsome temper of the man, the rapacious aim of the robber, and the malignant disposition of the assassin, would be immediately checked in their operations. The principles themselves, unsupplied with fuel to inflame them, would, at last, be extinguished. Thus much for the means, which the law employs directly for the benevolent purpose of preventing crimes. 1 Fost. 309. CHAPTER X. OF THE DIFFERENT STEPS PRESCRIBED BY THE LAW, FOR APPREHENDING, DETAINING, TRYING, AND PUNISHING OFFENDERS. I NOW proceed to the different steps which the law prescribes for apprehending, detaining, trying and punishing criminals. A warrant is the first step usually taken for their apprehension. A warrant is a precept from a judicial to a ministerial officer of justice, commanding him to bring the person mentioned in it, before him who issues it, or before some other officer having judicial authority in the cause. This warrant should be under the hand and seal of the magistrate issuing it: it should mention the time and place of making it, and the cause for which it is granted. It may be either to bring the party generally before any magistrate, or specially to bring him before the magistrate only who grants it. It may be directed to the sheriff, constable, or to a private person; for the warrant constitutes him, for this purpose, an authorized officer.2 By the constitution of Pennsylvania,3 no warrant to seize persons shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. Such warrant may be granted, even by 1 Wood. Ins. 81. 1 Bl. Com. 137. 4 Bl. Com. 287. 22 Haw. 85. 3 Art. 9, s. 8. any justice of the peace, for treason, felony, or any other offence against the peace.! When the warrant is received by the person to whom it is directed, he is authorized, and, if a public officer, obliged to execute it, so far as the jurisdiction of the magistrate and himself extends. A sheriff may depute others; but every other person is obliged himself to execute it; though others may lawfully assist him. A warrant directed to all constables generally can be executed by each only in his own precinct: but a warrant directed to a particular constable by name, may be executed by him. anywhere within the jurisdiction of the magistrate.3 The execution of the warrant is commenced by an arrest; which is the apprehending or restraining of the person, whom it mentions or describes. But, besides those arrests which are made in the execution of warrants, there are others enjoined or justified by the law. All, of age, who are present when a felony is committed, or when a dangerous wound is given, are, on pain of fine and imprisonment, bound to apprehend the person who has done the mischief.5 If the crime has been committed out of their view, they are, upon a hue and cry, obliged to pursue with the utmost diligence, and endeavor to apprehend him who has committed it. Hue and cry is the pursuit of an offender from place to place, till he is taken: all who are present when he commits the crime, are bound to raise it against him on his flying for it. Every one is obliged to assist an officer demanding his assistance, in order to apprehend a felon, to suppress an affray, or to secure the persons of affrayers. In all these cases, the doors of houses may, if necessary, be broken open for the apprehension of the offenders, if admittance is refused on signifying the cause of demanding it. 12 Haw. 84. 24 Bl. Com. 288. 32 Haw. 86. 44 Bl. Com. 286. 7 Id. 86. 4 Bl. Com. 289. It is a general rule, that, at any time, and in any place, every private person is justified in arresting a traitor or a felon; and, if a treason or a felony has been committed, he is justified in arresting even an innocent person, upon his reasonable suspicion that by such person it has been committed.1 If one see another upon the point of committing a treason or a felony, or doing any act which would manifestly endanger the life of another; he may lay hold on him, and detain him till it may be presumed reasonably that he has altered his design.2 In the case of a mere breach of the peace, no private person can arrest one for it after it is over.3 In Whenever an arrest may be justified by a private person, it may a fortiori be justified by an officer of justice.* addition to their own personal exertions, they have a right to demand the assistance of others.5 A constable may not only arrest affrayers, but may also detain them till they find security for the peace. A justice of the peace may, by parol, authorize any one to arrest another, who, in his presence, is guilty of an actual breach of the peace, or, in his absence, is engaged in a riot.7 Whenever a person is arrested for a crime, he ought to be brought before a justice of the peace, or other judicial magistrate. This magistrate is obliged immediately to examine into the circumstances of the crime alleged; and according to the result of this examination, the person accused should be either discharged, or bailed, or committed to prison. If it clearly appear that no crime was committed, or, if committed, that the suspicion conceived against the prisoner is entirely unfounded; he should be restored to his liberty.8 |