authorized (as upon a justice's warrant) to break open doors, and even to kill the felon if he cannot otherwise be taken; and, if he or his assistants be killed in attempting such arrests, it is murder in all concerned. (n) 5. Watchmen, either those appointed by the statute of Winchester, 13 Edw. I, c. 4, to keep watch and ward in all towns from sun-setting to sun-rising, or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly night-walkers, and commit them to custody till the morning. (0) 3. Any private person (and a fortiori a peace officer) that is present when any felony is committed, is bound by the law to arrest the felon, on pain of fine and imprisonment, if he escapes through the negligence of [*293] the standers-by. (p) And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable: though if they are killed in endeavouring to make such arrest, it is murder. (9) Upon probable suspicion also a private person may arrest the felon, or other person so suspected. (r) But he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is man slaughter, and no more. (s) It is no more, because there is no malicious design to kill: but it amounts to so much, because it would be of most pernicious consequence, if, under pretence of suspecting felony, any private person might break open a house, or kill another; and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed. 4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is upon an hue and cry raised upon a felony committed. An hue (from huer, to shout, and cry), hutesium et clamor, is the old common-law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another. (t) It is also mentioned by statute Westm. 1, 3 Edw. I, c. 9, and 4 Edw. I, stat. 2 de officio coronatoris. But the principal statute, relative to this matter, is that of Winchester, 13 Edw. I, cc. 1 and 4, which directs that from thenceforth every county shall be so well kept, that immediately upon robberies and felonies committed, fresh suit shall be made from town to town, and from county to county; and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town, and the towns near; and so hue and cry shall be made from town to town, until they be taken and delivered to the sheriff. And that such hue and cry may more effectually be made, the *hundred is [*294] bound by the same statute, chapter 3, to answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the hundred, (u) in case of any loss by robbery. By statute 27 Eliz, R. v. person detected in an attempt to commit felony may be arrested without warrant. Hunt, 1 Moo., 93; but not one merely suspected of the commission of a misdemeanor. Fox v. Gaunt, 3 B. & Ad., 798. The apprehension by a private party upon suspicion is only for the purpose of taking the suspected person before a magistrate. Long v. State, 12 Ga., 293. If a felony has in fact been committed by the person arrested, the arrest may be justified by any person without a warrant, whether there is time to obtain one or not. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without a warrant, such arrest is illegal, although an officer would be justified if he acted upon reliable information. Holley v. Mix, 3 Wend., 350; Brockway v. Crawford, 3 Jones, N. C. 433;Com. v. Carey, 12 Cush., 246; Wakely v. Hart, 6 Binn., 316; Com. v. Deacon, 8 S. & R., 49; Burns v. Erbin, 40 N. Y., 463; and see Doughty v. State, 33 Tex., 1. Upon suspicion of felony merely, a private party cannot break open a house, or kill the suspected party; and in making the arrest he must give notice of his purpose to arrest for felony. Brooks v. Com., 61 Penn. St., 352. The purpose to arrest must be made known, and the individual attempting to make the arrest has no right to kill the suspected party if the latter is charged with an inferior felony and does not resist, but flies. State v. Bryant, 65 N. C., 327. 457 VOL. II-58 c. 13, no hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II, c. 16, the constable or like officer, refusing or neglecting to made hue and cry, forfeits 5l.: and the vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein, and the felon escapes. (5) An institution which hath long prevailed in many of the eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century: which is said to have effectually delivered that vast territory from the plague of robbers, by making in some places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts. (2) Hue and cry (x) may be raised either by precept of a justice of the peace, or by a peace officer, or by any private man that knows of a felony. The party raising it must acquaint the constable of the vill with all the circumstances which he knows of the felony, and the person of the felon; and thereupon the constable is to search his own town, and raise all the neighbour. ing vills, and make pursuit with horse and foot; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection and indemnification, as if acting under a warrant of a justice of the peace. But if a man wantonly or maliciously raises an hue and cry, without cause, he shall be severely punished as a disturber of the public peace. (y) In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice, by divers acts of parliament. The statute 4 and 5 W. and M. c. 8, enacts, that such as apprehend a highwayman, and prosecute him to conviction, shall receive a reward of 40%. from the public; to be paid to them (or if *killed in the endea[*295] vour to take him, their executors) by the sheriff of the county; besides the horse, furniture, arms, money, and other goods taken upon the person of of such robber, with a reservation of the right of any person from whom the same may have been stolen: to which the statute 8 Geo. II, c. 16, superadds 10%. to be paid by the hundred indemnified by such taking. By statutes 6 and 7 Wm. III, c. 17, and 15 Geo. II, c. 28, persons apprehending and convicting any offender against those statutes, respecting the coinage, shall (in case the offence be treason or felony) receive a reward of forty pounds; or ten pounds, if it only amount to counterfeiting the copper coin. By statute 10 and 11 Wm. III, c. 23, any person apprehending and prosecuting to conviction a felon guilty of burglary, house-breaking, horse-stealing, or private larceny to the value of 58. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31, any person so apprehending and prosecuting a burglar, or felonious house-breaker (or, if killed in the attempt, his executors), shall be entitled to a reward of 40%. (z) By statute 6 Geo. I, c. 23, persons discovering, apprehending, and prosecuting to conviction, any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statute 14 Geo. II, c. 6, explained by 15 Geo. II, c. 34, any person apprehending and prosecuting to conviction such as steal, or kilĺ with an intent to steal, any sheep, or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 16 Geo. II, c. 15, and 8 Geo. III, c. 15, persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds. (6) (x) 2 Hal. P. C. 100-104. (y) 1 Hawk. P. C. 75. (w) Mod. Un. Hist. vi, 383, vii, 156. The statutes 4 and 5 W. and M. c. 8. 6 and 7 Wm. III, c. 17, and 5 Ann. c. 31 (together with 8 Geo. e. 16, § 4, which directs the method of reimbursing the sheriffs), are extended to the county palatine Durham, by stat. 14 Geo. III, c. 46. (5) All these acts are now repealed, (6) These statutes are repealed and new provisions substituted. CHAPTER XXII. OF COMMITMENT AND BAIL. WHEN a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace: (1) and how he is there to be treated, I shall next show, under the second head, of commitment and bail. The justice before whom such prisoner is brought is bound immediately to examine the circumstances of the crime alleged: and to this end by statute 2 and 3 P. and M. c. 10,- he is to take in writing the examination of such prisoner, and the information of those who bring him: which, Mr. Lambard observes, (a) was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men. (2) If upon this inquiry it manifestly appears (a) Eirenarch, b. 2, c. 7. See page 357. (1) A private party who makes an arrest may deliver the prisoner to an officer or take him before a justice. 1 Chitty Cr. L., 20. In general, a prisoner should be taken before a magistrate for examination as soon as circumstances will allow. State v. Freeman, 86 N. C., 683. Where a man was arrested on suspicion of felony, a delay of three days in taking him up for examination was held unreasonable. Wright v. Court, 4 B. & C., 596. A prisoner may be detained a reasonable time while the officer tries to find a justice before whom to bring him. Arnold v. Steeves, 10 Wend., 514. So, where one is arrested on probable ground of suspicion, he may lawfully be detained a reasonable time while a warrant is taken out for him. Wheeler v. Nesbitt, 24 How., 544. (2) The statute 2 and 3 P. and M., c. 10, is repealed. By statute 11 and 12 Vic., c. 42, §17, when a person appears or is brought before a justice or justices, charged with an indictable offense, the justice or one of the justices shall "read or cause to be read to the accused the depositions taken against him, and shall say to him these words or words of the like effect: Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you on your trial;' and whatever the prisoner shall then say in answer thereto shall be taken down in writing and read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards, upon the trial of said accused person, the same may, if necessary, be given in evidence against him without further proof thereof, unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same; provided always, that the said justice or justices, before such accused person shall make any statement, shall state to him and give him clearly to understand that he has nothing to hope from any promise of favor and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him on the trial, notwithstanding such promise or threat; provided, nevertheless, that nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person.' Some further provisions are made by statute 30 and 31 Vic., c. 35. The statement of one defendant is not evidence against another arrested on the same charge. Reg. v. Swinnerton, 1 C. & M., 593. It must not be taken on oath, or it will be inadmissible. Rex v. Smith, 1 Stark. N. P., 242; R. v. Rivers, 7 C. & P., 177; R. v. Pikesley, 9 id., 124. In the United States provisions are made by statute for the arrest and examination of offenders before justices of the peace and other local magistrates, and for their being held for trial in the proper court. These provisions are different, but have a general similarity. The accused, after the proofs against him are taken, is permitted to make a statement without oath, which he makes or not at his option, and it is quite customary to caution him that what he says may be used in evidence against him. After the statement is received, the magistrate, if he decides to hold the accused to trial, makes an order accordingly, and if the case is bailable, fixes the amount of bail. But the accused, without the taking of that either no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must either be committed to prison, or give bail: that is put in securities for his appearance, to answer the charge against him. (3) This commitment, therefore, being only for safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior crimes: but in felonies, and other offences of a *capital nature, [*297] no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to save his own life? and what satisfaction or indemnity is it to the public, to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which the Athenian magistrates, when they took a solemn oath never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money, or been guilty of treasonable practices. (b) What the nature of bail is hath been shown in the preceding book, (c) viz., a delivery or bailment, of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance: he being supposed to continue in their friendly custody, instead of going to gaol. In civil cases we have seen that every defendant is bailable; but in criminal matters it is otherwise. Let us therefore inquire in what cases the party accused ought, or ought not, to be admitted to bail. And, first, to refuse or delay to bail any person bailable is an offence against the liberty of the subject, in any magistrate by the common law, (d) as well as by the statute Westm. 1, 3 Edw. 1, c. 15, and the habeas corpus act, 31 Car. II, c. 2. And, lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute I W. and M., st. 2, c. 2, that excessive bail ought not to be required; though what bail should be called excessive must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail he is liable to be fined, if the criminal doth not appear. (e) (4) Bail may be taken either in court, or in some particular cases by the sheriff, coroner, or other magistrate, (5) but most usually by the justices of the peace. Regularly, in all offences either against the common law or act of parliament, [*298] that are below felony, the offender ought to be admitted to bail, unless (b) Pott. Antiq. b. 1, c. 18. (c) See book III, page 290. (d) 2 Hawk, P. C. 90. (e) Ibid. 89. proofs against him, is allowed to waive examination; and he will then be held for trial as if a case had been proved. On the examination, the prisoner, if held in irons, should be released from them, though if he waives examination without having them removed, the fact of his being in irons at the time will be no ground for a plea in abatement to the subsequent indictment. State v. Lewis, 19 Kan., 260; S. C., 27 Am. Rep., 113. (3) The magistrate, in cases of alleged felony, may cause the material witnesses who have appeared for the prosecution to enter into recognizance to appear at the trial, and if sufficient sureties are not given, may commit the witness. 2 Hawk. P. C., ch. 16, § 2; 1 Bish. Cr. Proc., § 34. In some of the United States this power of requiring the witness to recognize is not restricted to cases of felony. The liability of witnesses to be thus detained is sometimes a great hardship, and probably in some cases where persons become cognizant of crimes when they happen to be at a distance from their homes, and from the means of giving bail, the danger of their being detained in prison leads to a concealment of the facts within their knowledge. (4) To bail one charged with an offense not bailable is, in the absence of statute, a negligent escape. 2 Hawk. P. C., ch. 15, §7; R. v. Clarke, Stra., 1216. But where a magistrate has admitted one to bail, he has no right to order his re-arrest upon the supposition that the bail is insufficient. Ingram v. State, 27 Ala., 17. (5) The court of king's bench, or any judge thereof, in vacation, may at their discretion admit persons to bail in all cases whatsoever: but none can claim this benefit de jure. 2 Hale, 129. As to when this court will bail, see 1 Chit. C. L., 2d ed., 98. it be prohibited by some special act of parliament. (f) In order, therefore, more precisely to ascertain what offences are bailable, Let us next see, who may not be admitted to bail, or what offences are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offences: for then such imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature; for then the public is entitled to demand nothing less than the highest security that can be given, viz., the body of the accused; in order to insure that justice shall be done upon him if guilty. Such persons, therefore, as the author of the Mirror observes, (g) have no other sureties but the four walls of the prison. By the ancient common law, before (h) and since (i) the conquest, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. I, 3 Edw. 1, c. 15, takes away the power of bailing in treason, and in divers instances of felony. The statutes 23 Hen. VI, c. 9, and 1 and 2 P. and M. c. 13, give farther regulations in this matter; (6) and upon the whole we may collect, (k) that no justice of the peace can bail, 1. Upon an accusation of treason: (7) nor, 2. Of murder: nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him: nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another: 5. Persons outlawed: 6. Such as have abjured the realm: 7. *Approvers, of whom we shall speak in a subsequent chapter, and [*299] persons by them accused: 8. Persons taken with the mainour, or in the fact of felony: 9. Persons charged with arson: 10. Excommunicated persons taken by writ de excommunicato capiendo: all of which are clearly not admissible to bail by the justices. Others are of a dubious nature; as, 11. Thieves openly defamed and known: 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and, 13. Accessories to felony, that labour under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be bailed upon offering sufficient surety; as, 14. Persons of good fame, charged with a bare suspicion of manslaughter, or other inferior homicide: 15. Such persons, being charged with petit larceny, or any felony not before specified: or, 16. With being accessory to any felony. Lastly, it is agreed that the court (1) of king's bench (or any judge (m) thereof in time 2 Hal. P. C. 127. (g) C. 2, § 24. (h) 2 Inst. 189. In omnibus placitis de felonia solet accusatus per plegios dimitti, præterquam in placito de homicidio, ubi ad terrorem aliter statutum est. (Glanv. 7. 14, c. 1.) (k) 2 Inst. 186. 2 Hal. P. C. 129. (1) 2 Inst. 189. (m) Skin. 683. Latch. 12. Vaugh. 157. Comb. 111, 298. 1 Comyn's Dig. 495. (6) These statutes are since repealed, and much more liberal authority is conferred upon justices to admit to bail. In the United States it is provided by the national and state constitutions that unreasonable bail shall not be required. But what is reasonable is necessarily left to the discretion of the officer who is empowered to fix it. Bat is usually denied in offenses punishable capitally, where, in the opinion of the magistrate, the proof of guilt is evident or the presumption great; but, nevertheless, there is power to let to bail even in capital cases. United States v. Hamilton, 3 Dall., 17; United States v. Jones, 3 Wash. C. C., 209; Commonwealth v. Semmes, 11 Leigh, 665; Commonwealth v. Archer, 6 Gratt., 705; State v. Summons, 19 Ohio, 139; People v. Smith, 1 Cal., 9; Barronet's Case, 1 El. and Bl. 1. As to the duty of the justices in taking bail to look into the nature of the charge and the evidence to sustain it, see the case last cited. The duty is essentially judicial. Linford v. Fitzroy, 13 Q. B., 240; Reg. v. Badger, 4 id., 468. (7) On a charge of treason, bail cannot be taken, except by order of a secretary of state, or by the court of queen's bench, or, in vacation, by one of the judges thereof. 11 and 12 Vic., c. 12. |