3

punishment who slew a burglar or thief entering his mansion.1 And this was held to exempt a lodger or sojourner likewise.2 Such excuse ought to be sustained when the commission of felony involves violence, or imminent danger to the person. Whereas, if the object is merely to do something not implying violence, as to pick a pocket;* or to beat one merely to make him desist; or to carry off goods, or steal fowls; such killing would be manslaughter, as being in excess of the occasion.5 Much will, therefore, depend on the reasonableness of the conduct of the person killing, and the justness and fairness of the inferences drawn by him as to the intentions of the trespasser, and of the moderation of the force used to overcome the assailant in each critical situation.6

Killing to prevent crime.-Not only may a person in selfdefence lawfully kill an assailant, but, if he sees a felony about to be committed, he may interfere and prevent the crime; and if in repelling force with greater force, he kill the perpetrator, this has been called justifiable homicide." This is said to be so, for example, where the perpetrator is engaged in a burglary or arson. But if the occasion for preventing the crime has past, then the extreme measure of slaying such party can no longer be justified; and if resistance has occurred, and the party is killed, this can seldom be less than manslaughter. So in the case of mutual combats or sudden affrays, a bystander should act with caution, and should not interfere without giving notice, nor interfere by taking either side: but if after such notice he do interfere against both, and use force, and one of the persons fighting is killed by him in self-defence, this has been said to be justifiable homicide."

8

Murder in arrests by officers of law.-Murder is frequently committed in the course of an arrest of a person, which is made by a constable or bailiff under authority of legal process. The disputes and angry feeling thereby excited often lead from small beginnings to deadly

1 24 Hen. VIII c. 5. 22. 4 1 Hale, 488.

1 East, P. C. c. 5, § 44.

2 Cro. Car. 544. 3 R. v Bull, 9 C. & P.

5 Ibid.; 1 Hawk, c 28, § 23; Kel. 132; 6 Levet's Case, Cro. Car. 538.

7 1 Hale, 481, 484; Fost. 274; Handcock v Baker, 2 B. & P. 265.

81 East, c. 5, § 60; 1 Hale, 485.

9 1 Hale, 484; 1 East, P. C.

c. 5, § 58.

encounters. And these encounters generally arise out of some irregularity in the supposed authority of the person arresting. It is a rule applicable to all ministerial officers, and especially constables, that if they are at the time in the lawful exercise of their duty arresting felons or breakers of the peace, and are attacked and killed, it is murder in the person killing; for it is deemed a wanton and deliberate attempt to defy the law and make the officer the victim of that attempt. The malice of the act is therefore easily presumed from the circumstances. In such cases there may be some nicety in ascertaining, whether the constable was at the time acting in the course of his duty, and this will often be a question, preliminary to determining the denomination of the crime committed.1 As it is absolutely necessary, that, while law exists, there shall be officers of the law to arrest its transgressors, all should acquiesce in the regular discharge of such a duty; and it is idle to say that there can be any just cause of provocation to any well-disposed citizen by an officer of the law executing on him as well as others the behests of the law, whatever they may be, and however disagreeable or unfortunate. But it is obvious the main troubles arise out of the difficulty in the party arrested being satisfied that up to the point of arrest this course of the law has been fairly and regularly followed without fear, favour, or partiality. A constable of one London parish arrested a woman in another parish at Covent Garden, which he had no authority to do. Certain bystanders, utter strangers to the woman, attempted to rescue her, and the constable's assistant was killed by them. Whether this was murder in these bystanders became a subject of anxious deliberation to twelve judges; and seven against five held that it was not murder, for there was sufficient provocation to reduce the offence to manslaughter. Lord Holt, the leader of the majority of these judges, carried away by a fine enthusiasm, thus gave out his reasons: "If one be imprisoned upon unlawful authority, it is a sufficient provocation to all people out of compassion, much more when it is done under colour of justice, and when the liberty of the subject is invaded. It is a provocation to all the subjects of

1 R. v Hems, 7 C. & P. 312; R. v Hagan, 8 C. & P. 167; R. v Porter, 9 C. &. P. 778.

England; a man ought to be concerned for Magna Charta and the laws; and if any officer against law imprison a man, he is an offender against Magna Charta." Many years later another judge, Sir M. Foster, deeming this unsound law, with equally fine irony observed: "The prisoners saw a woman, a perfect stranger to them, led to the Round House under a charge of a criminal nature. This upon evidence at the Old Bailey a month or two afterwards cometh out to be illegal imprisonment; a violation of Magna Charta! And these ruffians are presumed to have been seized all on a sudden with a strong fit of zeal for Magna Charta, and in this frenzy to have drawn on the constable and stabbed his assistant." 1

Where bystanders assist an officer in executing the law and keeping the peace, they are in the same position in this respect as the constable, and are deemed entitled to the same protection while rendering this assistance.2 But bystanders, who have not seen any felony or breach of the peace committed, or any warrant authorising such officer, must take the risk on themselves of assisting, if it turn out that the arrest is unlawfully made; and they should always inform the party to be arrested of the object of their interference. Thus if a constable or bailiff has lawfully arrested his prisoner, he is entitled to repel force with force, and keep possession, but he is not justified in coming to extremities and killing the prisoner, even though the latter resist or run away, for he must not use means wholly disproportioned to the end in view.5

General requirements as to valid arrest.-The circumstances under which an arrest can be legally made belong more properly to the subject of Arrest, which is treated hereafter." It is enough here to say, that while a constable or any other person requires no warrant in some circumstances to authorise him to arrest for certain crimes, in all other cases the party arresting must have the express authority of a statute, or be expressly authorised by some warrant of a court or magistrate to make such arrest. In the case of authority given by statute, the party arrested is

as much bound to know of that authority as the party arresting, and the latter need not expressly refer to it. In the cases where a warrant of a court or judge is required in order to justify an arrest, the person arresting is bound not only to have obtained such warrant beforehand, but he must have such warrant in his possession at the time of the arrest. The reason is, that no one is bound to surrender his liberty at the call of another without knowing what authority that other has for such demand, and is entitled to demand a sight of the warrant in order to judge of its sufficiency and the truth of it. And where no warrant is needed, he is nevertheless equally entitled to be informed on what ground or for what offence he is arrested, subject to these essential requirements being fulfilled; beyond this the party arrested has no further right to resist, and if he do so, he and others may conclude that he is in the wrong. Lord Hale says, that, if a man for debt or trespass be about to be arrested, and fly, and the bailiff kills him, it will be murder. But Foster qualifies this by adding, that if the officer in the heat of pursuit trip up his heels, or give him a stroke with an ordinary cudgel or other weapon not likely to kill, and death ensue, then it might only be manslaughter. Great caution is obviously required in the officer, so that the party's life shall not be unnecessarily sacrificed. It may be doubtful in any case whether the killing in furtherance of arrest is justifiable. If, for example, a party apprehended flee or escape and be pursued, the officer is never entitled to kill him, though it has been said that this may be lawfully done where such party has committed a felony or given a dangerous wound.2 And in case of riots or unlawful assemblies, even irrespective of the riot act, if these cannot be suppressed, except by killing one or more of the rioters, a constable or peace-officer, it is said, may be justified in such an act, though it will be difficult to prove this justification, unless the circumstances are very strong.3 But a private person ought not of his own authority to take this step, and if it turn out that the party

1 See ante, p. 309.

2 Hale, 489; 1 Hawk. c. 28, § 11; Fost. 271; 4 Bl. Com. 179. 3 1 Hale, P. C. 53, 494; 1 East, c. 5, § 71.

killed is innocent, though the officer might be justified, the private person will not be so.1

This doctrine, that a constable or bailiff may kill the party pursued in certain emergencies, has been too lightly dealt with, for it is in substance allowing an officer to take away life without trial or legal sentence, and where possibly the exigency has been entirely created by his own negligence or incompetence; or it may be, that the object in view is contemptible in comparison with human life, such as the imprisoning of a man for a debt, or some petty offence. It is admitted that if a gaoler use cruelty to a prisoner, causing or accelerating the death of the latter, this will be deemed murder.2

Killing in correcting children.-Many of the cases of manslaughter arise out of the disproportion between the blow and the effect intended to be produced; and, if what was meant only to punish the body in a slight degree causes death, the fault of this does not fall on the person who misuses his strength or exceeds his aim, whenever it can be attributed to those inevitable accidents which happen amid the great variety of circumstances in life, but which bring no punishment upon any, simply because no want of care can be traced to any individual. If however, parents and masters of schools, though impliedly at common law having authority to administer moderate correction to children, should overstep the limit of moderation either by using too great violence, or moderate violence for too great length of time, or using a dangerous weapon; and if death ensue mainly by reason of the correction, it will be murder. Though when correction is administered, and the degree and force are not out of proportion to the occasion of offence, manslaughter only will be deemed to be committed, as in beating a boy found stealing wood;5 in ducking a pickpocket; in a father beating a boy who beat his son.”

Killing in course of cruel conduct.-In like manner, murder will be committed in case of death by various

1 2 Hale, 84; 1 Hale, 489; 1 East c. 5, § 68. 2 Fost. 322; R. v Huggins, 2 Str. 882. 31 Hawk. P. C. c. 29, § 5; 1 Hale, P. C. 453, 473. 4 Fost. 291. 5 Holloway's Fray's Case, 1 Hawk. P. C. c. 31, § 38. Rep. 87; 1 Hale, 453; Fost. 294.

Case, Cro. Car. 131.

7

Rowley's Case, 12