possession of any part of goods stolen, without being able to give a probable account of coming honestly by them.

Ibid. s. 12.

(3) The behaving in such a manner as betrays a consciousness of guilt; as where a man accused of felony, on hearing that a warrant is taken out against him, doth abscond. Ibid. s. 13. But he is not thereby guilty. Haw. B. 2. c. 17. s. 3.

(4) The being in company with one known to be an offender, at the time of the offence, or generally at other times keeping company with persons of scandalous reputations. Haw. B. 2. c. 12. s. 11. (5) The living an idle, vagrant, and disorderly life, without having any visible means to support it. Ibid. s. 10.

(6) The being pursued by hue and cry. Ibid. s. 6. & 2 Inst. 52. It had been generally held that no such causes of suspicion, as any of the above, would justify the apprehension of a person, by any body, if no felony had been actually committed; unless in the case of hue and cry. (Haw. B. 2. c. 12. s. 16). But it has since been determined, that, on a given charge of felony, the officer is justified in making the arrest, though the goods were not found, on a search warrant, and the jury find that no felony was committed: and that he that makes the charge is alone liable; the officer having done nothing but his duty. Doug. 359.

So, it has been decided that a constable or other peace officer may justify an arrest for felony, on probable evidence that a felony has been actually committed, although no positive charge be made. 3 L. Haw. 162.

III. BY WHOM THE ARREST SHALL BE MADE.

1. If a justice see a felony or other breach of the peace committed in his presence, he may in his own person apprehend the felon, and so he may by word command any person to apprehend him, and such command is a good warrant without writing: but if the same be done in his absence, then he must issue his warrant in writing, under seal. 2 Hale. 86. 2 Inst. 52. 1 Hale 587. 4 Bl. Com. 292.

2. So in like cases may sheriffs, coroners, constables and watchmen arrest without warrant. Ibid.

3. And all persons, who are present when a felony is committed, er a dangerous wound given, are bound to apprehend the offender, on pain of being fined and imprisoned for their neglect, unless they were under age at the time. Haw. B. 2. c. 12. s. 1.

Also, every private person is bound to assist an officer demanding his help for the taking of a felon, or the suppressing of an affray, &c. Ibid. s. 7. And if he have a prisoner in his keeping, arrested on suspicion of treason, murder or felony, and negligently suffer him to escape, before commitment, he may be fined. 1 Rev. Code 106. 119.

4. If an affray be made to the breach of the peace, any man may by warrant in law (i. e. without a warrant from a justice,) restrain any of the offenders, to the end the peace may be kept; but after the af fray is ended, they cannot be arrested without express warrant. 2 Inst. 52.

Hitherto we have considered an arrest WITHOUT warrant; we are next to treat of it wITH a warrant.

1.

For what is to be done previously to granting a warrant, see title WARRANT.

2. The warrant is ordinarily directed to the sheriff or constable, and they are indictable, and subject to a fine and imprisonment, if they neglect or refuse it. 1 Hale 581.

3. If it be directed to the sheriff he may command his under sheriff to execute it; but every other person must personally execute it; yet any one may lawfully assist him. Haw. B. 2. c. 13. s. 29.

4. If a warrant be generally directed to all constables, no one can execute it out of his own precinct, for in such case it shall be taken respectively to each of them within their several districts, and not to one of them to execute it within the district of another; but if it be directed to a particular constable, he may execute it any where within the jurisdiction of the justice, but is not compellable to execute it out of his own precinct. 1. L. Raym. 546. 1 Hale 581. 2 Hale 110.

5. The justice that issues the warrant may direct it to a private person if he pleaseth, and it is good; but he is not compellable to execute it, unless he be a proper officer. 1 Hale 581.

6. If a warrant is directed to two or more jointly, yet any one of them alone may execute it. Dalt. c. 169.

IV. THE MANNER OF AN ARREST.

1. The officer to whom a warrant is directed and delivered ought with all speed and secrecy to find out the party, and then to execute the warrant. Dalt. c. 169.

2. It is certainly an offence of a very high nature, to oppose one who lawfully endeavours to arrest another for treason or felony. Haw. B. 2. c. 17. s. 1. 1 Hale 606.

3. An arrest in the night is good, both at the suit of the commonwealth and of the citizen, else the party may escape. 9 Co. 66.

4. A justice of the peace cannot authorise the arrest of a felon by a warrant issued by him while he is out of the county in which he is justice; although the felony was committed in the county in which the justice resides. 1 Hale 580. 1.

5. A private person cannot raise power to arrest or detain a felon. 1 Hale 601.

But any justice, or the sheriff, upon just cause, may take of the county any number that he shall think meet, to pursue, arrest, and imprison traitors, murderers, robbers, and other felons; or such as do break, or go about to break or disturb the commonwealth's peace : and every man being required, and not aged and infirm, ought to assist and aid them, on pain of fine and imprisonment. Dalt. c. 171.

And in such case it is referred to the discretion of the justice, sheriff, or other officer, what number they will have to attend on them, and how and after what manner they shall be armed or otherwise furnished. Dalt. c. 171.

6. As to breaking open doors, in order to apprehend offenders, the law never allows any such extremities, but in cases of necessity; and, therefore, no one can justify the breaking open another's door to make an arrest, unless he first signify to those in the house the cause of his coming, and request them to give him admittance. Haw. B. 2. c. 14.

s. 1.

But where a person authorised to arrest another, who is sheltered in a house, is denied quietly to enter into it, in order to take him, he may justify breaking open the doors in the following instances.

(1) Upon a capias grounded on an indictment for any crime whatsoever; or upon a cupias from the chancery or other superior court; or a warrant from a justice to compel a man to find securities for the peace or good behaviour. Haw. B. 2. c. 14. s. 3.

(2) When one known to have committed a treason or felony, or to have given another a dangerous wound, is pursued either with or without a warrant, by a constable or private person but where one lies under a probable suspicion only, and is not indicted, it seems that no one can justify the breaking open doors in order to apprehend him. (Haw. B. 2. c. 14. s. 3.) But it is held by other authorities, that probable cause of suspicion is sufficient to justify the breaking open doors, as much as if there was an express charge. See 1 Hale 580, 1. 2 Hale 117.

And not only the person's own house may be broken, after refusal to open the door, on demand made and information given of the cause of the arrest, but much more the house of another; for so the sheriff may do on civil process. But he does it at his peril; for if the felon be not there, he is a trespasser to the stranger whose house it is. 2 Hale

117.

But it seems that he that arrests as a private man, barely upon sus-, picion of felony, cannot justify the breaking open doors to arrest the party suspected, but he doth it at his peril, viz. if in truth he be a felon, then it is justifiable, but if he be innocent, it is not justifiable. 1 Hale 82.

But a constable in such case may justify, and the reason of the difference is this; because that in the former case it is but a thing permitted to private persons to arrest for suspicion, and they are not punishable if they omit it; and therefore they cannot break open doors; but in case of a constable, he is punishable if he omit it upon complaint. 2 Hale 92.

(3) Upon a warrant from a justice of the peace, to find sureties for the peace or good behaviour. 1 Hale 582. 2 Hale 117.

(4) On a warrant to search for stolen goods, the doors may be broke open, if the goods are there; and if they are not there, the constable seems indemnified, but he that made the suggestion is punishable. 2 Hale c. 18. p. 151.

(5) Where forcible entry or detainer is found by inquisition before justices of the peace or appears on their view. Haw. B. 2. c. 14. 8. 6. (6) On a capias utlugatum, or capias pro fine. Ibid. s. 4. (7) On the warrant of a justice of the peace for the levying of a for

10

feiture, in executing of a judgment, or conviction for it, grounded on any statute, which gives the whole or any part of such forfeiture to the commonwealth. Ibid. s. 5.

(8) Where an affray is inade in a house, in the view or hearing of the constable, or such affrayers take shelter in a house. Ibid. s. 8. (9) If there be disorderly drinking or noise in a house, at an unseasonable time of night, especially in inns, taverns, or alehouses, the constable or his watch, demanding entrance, and being refused, may break open the doors, to see and suppress the disorder. 2. Hale 95. (10) Wherever a person is lawfully arrested for any cause, and afterwards escapes, and shelters himself in an house. Haw. B. 2. c.

14. s. 9.

(11) But upon a general warrant, without expressing any felony or treason, or surety of the peace, the officer cannot break open a door. 1 Hale 584.

(12) Neither ought doors to be broke open to take a person, who is required to take certain oaths by virtue of a statute, because in such case the warrant is not grounded on a precedent offence. Haw. B. 2. c. 14. s. 11.

(13) In a civil suit, the officer cannot justify the breaking open an outward door or window in order to execute process. If he doth, he is a trespasser. But if he findeth the outward door open, and entereth that way, or if the door be opened to him from within, and he entereth, he may break open inward doors, if necessary, in order to execute his process. Fost. 319.

And the latter part of this rule extends to cases where there are separate apartments in the same house, and but one common entry, by an outer door: if the officer gain peaceable admittance at that, he may break open the door of a lodger's apartment, to execute mesne process. Cowp. 1.

A man's house is his castle for repose to himself and family (Fost. 319.) Therefore the rule must be confined to a breach of the house in order to arrest the occupier, or any of his family, who have their domicile, their ordinary residence there. For if a stranger, whose ordinary residence is elsewhere, upon a pursuit taketh refuge in the house of another, this is not his castle, he cannot claim the benefit of sanctuary in it. Fost. 320. And the same law applies to the goods of a stranger deposited in the house of another, to avoid an execution. See 5. Co. 93. a.

The rule, that a man's house is his castle, must also be confined to arrests in the first instance. For if a man, being legally arrested (and laying hold of the prisoner and pronouncing the words of arrest is an actual arrest) escapeth from the officer, and taketh shelter, though in his own house, the officer may, upon fresh suit, break open doors in order to take him, having first given due notice of his business and demanded admission, and been refused. Fost. 320.

And let it be remembered, that not only in this but in every case where doors may be broken open in order to arrest, whether in cases criminal or civil, there must be such notification, demand, and

refusal, before the parties concerned proceed to that extremity. Ibid.

But where a felony hath been committed, or a dangerous wound given or even where a minister of justice cometh armed with process founded on a breach of the peace, the party's own house is no sanctu ary for him; doors may in any of these cases be forced, the notification, demand, and refusal beforementioned, having been previously made. The rule, therefore, that a man's house is his castle, must be confined to the case of arrests in civil suits. Ibid.

(14) Finally, in all these cases, if an officer, to serve any warrant, enters into a house, the doors being open, and then the doors are locked upon him, he may break them open, in order to regain his liberty. Haw. B. 2. c. 14. s. 11.

7. If there be a warrant against a person, for a trespass or breach of the peace, and he flies, and will not yield to the arrest, or being taken makes his escape, if the officer kill him, it is murder. But if such person, either upon the attempt to arrest, or after the arrest, assault the officer, to the intent to make his escape from him, and the officer standing upon his guard kills him, this is no felony for he is not bound to go back to the wall as in common cases of se defendendo, for the law is his protection. And if such person kill the officer, it is murder. 2 Hale 117. 118. 1 Stra. 499. 4 Bl. Com. 293.

But where a warrant issueth against a person for felony, and either before arrest, or after, he flies, and defends himself with stones or weapons, so that the officer must give over his pursuit, or otherwise cannot take him without killing him, if he kill him, it is no felony. And the same law is for a constable that doth it by virtue of his office, or on hue, and cry. 2 Hale 118.

But then there must be these cautions: 1. He must be a lawful officer; or there must be a lawful warrant. 2. The party ought to have notice of the reason of the pursuit, namely, because a warrant is against him. S. It must be a case of necessity, and that not such a necessity as in the former case, where an assault is made upon the officer; but this is the necessity, namely, that he cannot otherwise be taken. 2 Hale 119.

But though a private person may arrest a felon, and if he fly, so as he cannot be taken without he be killed, it is excusable in this case for the necessity; yet it is at his peril that the party be a felon, for if he be innocent of the felony, the killing (at least before the arrest) seems at least manslaughter; for an innocent person is not bound to take notice of a private person's suspicion. 2 Hale 119.

8. An officer sworn and commonly known, and acting within his own precinct, need not shew his warrant; but he ought to acquaint the party with the substance of it. Haw. B. 2. c. 13. s. 28.

But a private person, or even an officer, if he acts out of his pre cinct, or is not sworn and commonly known, must shew his warrant, if demanded. Ibid. Otherwise the party may make resistance, and needs not obey it. Dalt. c. 169.

But if the officer has no warrant, but arrests by virtue of his office, as