to compel men to come before its courts. They vary in stringency from the polite summons to the decree of outlawry. But first we must say one word of an offshoot of outlawry, — of a species of summary justice that was still useful in the thirteenth century. When a felony is committed, the hue and cry (“hutesium et clamor ") should be raised. If, for example, one comes upon a dead body and omits to raise the hue, one commits an amerciable offence, besides laying oneself open to ugly suspicions. Possibly the proper cry is "Out! Out!" and therefore it is "uthesium" or "hutesium." The neighbors should turn out with the bows, arrows, knives, that they are bound to keep and, besides much shouting, there will be horn-blowing; the "hue" will be "horned" from vill to vill. Now if a man is overtaken by hue and cry while he has still about him the signs of his crime, he will have short shrift. Should he make any resistance, he will be cut down. But even if he submits to capture, his fate is already decided. He will be bound, and, if we suppose him a thief, the stolen goods will be bound on his back. He will be brought before some court (like enough it is a court hurriedly summoned for the purpose), and without being allowed to say one word in self-defence, he will be promptly hanged, beheaded or precipitated from a cliff, and the owner of the stolen goods will perhaps act as an amateur executioner. From outlawry we may pass to arrest, which in our eyes may seem to be the simplest and most effectual method of securing a malefactor's presence in court. . . The law of arrest is rough and rude; it is as yet unpolished by the friction of nice cases. Before we say more of it we must call to mind two points in our criminal procedure. In the first place, any preliminary magisterial investigation, such as that which is now-a-days conducted by our justices of the peace, is still in the remote future. . . . Secondly, there is no professional police force. The only persons who are specially bound to arrest malefactors are the sheriff, his bailiffs and servants and the bailiffs of those lords who have the higher regalities. The constables who are becoming apparent at the end of our period are primarily military officers, though it is their duty to head the hue and cry. The main rule we think to be this, that felons ought to be summarily arrested and put in gaol. All true men ought to take part in this work and are punishable if they neglect it. We may strongly suspect, however, that in general the only persons whom it is safe to arrest are felons, and that one leaves oneself open to an action, or even an appeal, of false imprisonment if one takes as a felon a man who has done no felony. In other words, it seems very doubtful whether a charge of false imprisonment could have been met by an allegation that there was reasonable cause for suspicion. This was not always the case, for before the end of Henry III.'s reign there were ordinances which commanded the arrest of suspicious persons who went about armed without lawful cause, and very probably the sheriff and his officers could always plead a justification for the caption of persons who were suspected, though not guilty, of felony. The ordinary man seems to have been expected to be very active in the pursuit of malefactors, and yet to "act at his peril." This may be one of the reasons why, as any eyre roll will show, arrests were rarely made, except where there was hot pursuit after a "hand-having" thief. 960. Sir EDWARD COKE. Second Part of the Institutes of the Laws of England. (1642.) Magna Charta, Cap. XXIX. "Nullus liber homo capiatur, vel imprisonetur, aut disseisietur de libero tenemento suo vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo de struatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae." . . . Now here it is to be known, in what cases a man, by the law of the land, may be taken, arrested, attached, or imprisoned in case of treason or felony, before presentment, indictment, etc. Wherein it is to be understood, that process of law is twofold, viz., by the King's Writ, or by due proceeding and warrant, either in deed, or in law without writ. As first, where there is any witness against the offender, he may be taken and arrested by lawful warrant, and committed to prison. When treason and felony is committed, and the common fame and voice is, that A is guilty, it is lawful for any man that suspects him to apprehend him. . . . So it is of hue and cry, and that is by the statute of Winchester, which is but an affirmance of the common law. . . . If treason or felony be done, and one hath just cause of suspicion, this is a good cause and warrant in law for him to arrest any man, but he must show in certainty the cause of his suspicion: and whether the suspicion be just, or lawful, shall be determined by the justices in an action of false imprisonment brought by the party grieved, or upon a habeas corpus, etc. If a man woundeth another dangerously, any man may arrest him, by a warrant in law, until it may be known whether the party wounded shall die thereof, or no. If a man keep the company of a notorious thief, whereby he is suspected, it is a good cause, and a warrant in law to arrest him. If an affray be made to the breach of the King's peace, any man may, by a warrant in law, restrain any of the offenders, to the end the King's peace may be kept; but after the affray ended they cannot be arrested without an express warrant. . . . Now it may be demanded, if a man be taken, or committed to prison contra legem terrae, against the law of the land, what remedy hath the party grieved? To this it is answered; (3) He may have an habeas corpus out of the King's Bench or Chancery.1 (4) He may have an action of false imprisonment. .. (5) He may have a writ de homine replegiando. . . . (6) He might by the common law have had a writ de odio & atio, as you may see before. ... 961. Sir MICHAEL FOSTER. Reports of Crown Cases, and Discourses upon Crown Law. (1762. c. VIII, § 4, 2d ed., p. 309.) The protection the law affordeth in these cases must not be considered as confined to the ordinary ministers of justice or their assistants. It reacheth, under some limitations, which shall be considered, to the cases of private persons, interposing for preventing mischief in case of an affray, or using their endeavor for apprehending felons, or those who have given a dangerous wound, and for bringing them to justice. For those people are likewise in the discharge of a duty the law requireth of them. The law is their warrant, and they may, not improperly, be considered as persons engaged in the public service and for the advancement of justice, though not specially appointed to it. And upon that account they are under the same protection as the ordinary ministers of justice are. 1 Writ of Habeas Corpus. Rex Vicecomiti London salutem. Praecipimus vobis, quod corpus A.B., in custodia vestra detenti, ut dicitur, una cum causa detentionis suae, quocunque nomine praedictus A.B. censeatur in eisdem, habeatis coram nobis apud Westmonasterium die Jovis proximo post Octabis S. Martini, ad subjicienda and recipienda ea quae curia nostra de eo adtunc and ibidem ordinare contigerit in hac parte, et hoc nullatenus omittatis, periculo incumbente, and habeatis ibi hoc breve, Teste Edw. Coke 20 Nov. anno Regni nostri 10. ... THIS was an action of trespass and false imprisonment, tried at the sittings after Trinity term last at Guildhall. The declaration was for an assault and false imprisonment; to which there was a plea of not guilty, and a special plea of justification, on the ground that the plaintiff was guilty of a breach of the peace in the defendant's dwellinghouse, and that he thereupon gave him in charge to a policeman, who was not averred to have had view of the breach of the peace. To this special plea there was a replication of de injuria sua propria absque tali causa. The facts of the case were as follows: The defendant was a linendraper; the plaintiff was passing, his shop, and, seeing an article in the window, with a ticket apparently attached to it denoting a low price, sent his companion in to buy it; the shopman refused, and demanded a larger price; the plaintiff went in himself and required the article at the lower rate. The shopman still insisted on a greater price; the plaintiff called it an "imposition." Some of the shopmen desired him to go out of the shop, in a somewhat offensive manner; he refused to go without the article at the price he bid for it; the shopmen pushed him out. Before they did so, he declared he would strike any one who laid hands on him. One of the shopmen, really supposing or pretending to suppose this to be a challenge to fight, stepped out and struck the plaintiff in the face, near the shop-door; the plaintiff went back into the shop and returned the blow, and a contest commenced, in which the other shopmen took a part, and fell on the plaintiff. There was a great noise in the shop, so that the business could not go on; many persons were there, and others about the streetdoor. The noise brought down the defendant, who was sitting in the room above. When he came down he found the shop in disorder, and the plaintiff on the ground struggling and scuffling with the shopmen; and this scuffle continued in the defendant's presence for two or three minutes. The defendant sent for a policeman, who soon afterwards came; in the mean time the plaintiff was taken hold of by two of the shopmen, who, however, relinquished their hold before the policemen came; and, on his arrival, the plaintiff was requested by the defendant to go from the shop quietly; but he refused, unless he first obtained his hat, which he had lost in the scuffle. He was standing still in the shop, insisting on his right to remain there, and a mob gathering round the door, when the defendant gave him in charge to the policeman, who took him to the police-station. The defendant followed; but, on the recommendation of the constable at the station, the charge was dropped. On the trial the jury found a verdict for the plaintiff on the general issue, and for the defendant on the special plea; but as it appeared to PARKE, B., that the plea was bad in law, he directed the jury to assess the damages on the general issue, and also gave the plaintiff permission to move to enter a verdict for him on the special plea, if the Court should be of opinion that it was not substantially proved.. A rule nisi having been obtained to enter a verdict for the plaintiff, or judgment non obstante veredicto, the case was fully argued before BOLLAND, ALDERSON, GURNEY, and PARKE, BB. PARKE, B., for the Court (after stating the facts as above): Upon the facts, the plaintiff appears to have been, in the first instance, a trespasser, by refusing to quit the shop when requested, and so to have been the cause of the affray which subsequently took place; but the first act of unlawful violence and breach of the peace was committed by the shopman; that led to a conflict in which there were mutual acts of violence clearly amounting to an affray, the latter part of which took place in the defendant's presence; and the plaintiff was on the spot on which the breach of the peace occurred, persisting in remaining there under such circumstances as to make it probable that the breach of the peace would be renewed, when he was delivered by the defendant to the police officer in the very place where the affray had happened. The first question which arises upon these facts is, whether the defendant had a right to arrest and deliver the plaintiff to a constable. It is not necessary for us to decide in the present case whether a private individual, who has seen an affray committed, may give in charge to a constable who has not, and such constable may thereupon take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and there is no danger of its renewal; . . . we need not examine and decide between the conflicting authorities. For here, the defendant, who had immediately before witnessed an affray, gave one of the affrayers in charge to the constable on the very spot where it was committed, and whilst there was a reasonable apprehension of its continuance; and we are of opinion that he was justified in so doing, though the constable had seen no part of the affray. . . . It is clear that any person present may arrest the affrayer at the moment of the affray, and detain him till his passion has cooled, and his desire to break the peace has ceased, and then deliver him to a peace-officer. And, if that be so, what reason can there be why he may not arrest an affrayer after the actual violence is over, but whilst he shows a disposition to renew it by persisting in remaining on the spot where he has committed it? Both cases fall: within the same principle, which is, that for the sake of the preservation of the peace any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts. For these reasons we are of opinion that the defendant was, upon the facts in evidence, justified in delivering the plaintiff to the police-officer. This brings me to the second question, whether the plea upon the record was substantially proved. I thought upon the trial that it was, but, upon further consideration, I concur with the rest of the court in thinking that it was not. . . . We think that there should be a new trial, when, or before which, the plea may be amended. And as ultimately there will be a verdict for the defendant, if the same evidence is adduced, the best course will be for the parties to agree to enter a stet processus. Rule accordingly. --- 963. ALLEN v. WRIGHT NISI PRIUS. 1838 8 C. & P. 522 THE declaration stated that the defendant, on the 19th of March, 1838, assaulted the plaintiff, and forced and compelled her to go into the public street, and through several lanes, etc., to the police stationhouse in Tower street, Lambeth, and there imprisoned and kept her, without any reason or probable cause, for twenty hours, contrary to law and against her will; and that on the 20th of March, he again assaulted her, and compelled her to go from the station-house to Union Hall Police Office, and there kept and detained her for six hours, whereby she was not only hurt and injured in her body and mind, but also exposed and injured in her credit and circumstances. The defendant pleaded, first, "Not guilty;" and secondly, a special plea, to the following effect: that the plaintiff was a lodger in the defendant's house, and was supplied with a feather bed . . . that while the plaintiff continued as a lodger, as aforesaid, 70 lbs. weight of feathers were stolen from the bed; and that the defendant, having good and probable cause of suspicion, and vehemently suspecting the plaintiff to be the person who stole them, caused her to be apprehended, etc., etc. . . . On the evening of Monday, the 19th of March, about ten o'clock, the defendant and his wife were observed by a policeman on duty, watching the house, No. 12, in the Waterloo Road. The defendant addressed the policeman, and told him he wished to ascertain whether a young woman named Gordon was living there. The policeman inquired what he wanted her for, and was told of the damage sustained which had been paid for, and also that there was a large quantity of feathers missing out of the bed. The policeman knocked at the door, and gained admittance to the house, together with the defendant. The plaintiff inquired who wanted her, and on being told, said she could not see Mr. Wright that night. It was then about twenty minutes past ten. The policeman and Mr. Wright followed |