holden that this was not murder, because the officer had no right to break the house but that it was manslaughter, because the party knew the officer to be a bailiff.(e) *Upon an indictment for maliciously wounding under the 9 Geo. 4, c. 31, appeared that a constable having a warrant to apprehend the prisoner, gave

[*835

(e) Cook's case, 1 Hale 458; Cro. Car. 537; W. Jones 429. Upon these cases the following very sensible observations are made in Roscoe's Cr. Ev. 707, 708: "These decisions would appear to countenance the position, that where an officer attempts to execute an illegal warrant, and is in the first instance resisted with such violence by the party that death ensues, it will amount to manslaughter only. But it should seem that in analogy to all other cases of provocation this position requires some qualification. If it be possible for the party resisting to effect his object with a less degree of violence than the infliction of death, a great degree of unnecessary violence might, it is conceived, be evidence of such malice as to prevent the crime from being reduced to manslaughter. In Thompson's case, 1 R. & M. C. C. R. 80, where the officer was about to make an arrest on an insufficient charge. the Judges adverted to the fact that the prisoner was in such a situation that he could not get away. In these cases it would seem to be the duty of the party whose liberty is endangered to resist the officer with as little violence as possible, and that if he uses great and unnecessary violence, unsuited both to the provocation given and to the accomplishment of a successful resistance, it will be evidence of malice sufficient to support a charge of murder. So also where, as in Stockley's case, supra, note (x), and Curtis's case, supra, note (d), the party appears to have acted from motives of express malice, there seems to be no reason for withdrawing such a case from the operation of the general rule, that provocation will not justify the party killing, or prevent his offence from amounting to murder, where it is proved that he acted at the time from express malice. And of this opinion appears to be Mr. East, who says, "it may be worthy of consideration whether the illegality of an arrest does not place the officer attempting it exactly on the same footing as any other wrong-doer:" 1 East P. C. 328. It may be remarked that this question is fully decided in the Scotch law, the rule being as follows:In resisting irregular or defective warrants, or warrants executed in an irregular way, or upon the wrong person, it is murder, if death ensue to the officer by the assumption of lethal weapons, where no great personal violence has been sustained: Alison's Princ. Cr. Law of Scotland, 25. If, says Baron Hume, instead of submitting for the time, and looking for redress to the law, he shall take advantage of the mistake to stab or shoot the officer, when no great struggle has yet ensued, and no previous harm of body has been sustained, certainly he cannot be found guilty of any lower crime than murder: 1 Hume 250. The distinction appears to be, says Mr. Alison, that the Scotch law reprobates the immediate assumption of lethal weapons in resisting an illegal warrant, and will hold it as murder if death ensue by such immediate use of them, the more especially if the informality or error was not known to the party resisting; whereas the English practice makes such allowance for the irritation consequent upon the irregular interference with liberty, that it accounts death inflicted under such circumstances as manslaughter only" Alison's Princ. Cr. Law of Scotland 28. In such cases it seems to me that it may be well deserving of consideration whether the first inquiry ought not to be whether or no the act done was caused by the illegal apprehension. If the act done arose from other causes, and had no reference to the illegal arrest, as if it arose from previous ill will, it should seem that the illegality of the arrest ought not to be taken into consideration, because it was not the cause of the act, and therefore could not be truly said to have afforded any provocation for it. Such a case would be like the cases where blows have been given by the deceased, but the fatal blow has been inflicted in consequence of previous ill will. (See Rex v. Thomas, ante, p. 720; Reg. v. Kirkham, ante p. 721.) From the observations of Parke, B., in Rex v. Patience, infra, note (ƒ), I infer that the very learned Baron was of opinion that if there were previous malice, the illegal arrest would not reduce the crime to manslaughter; because the previous malice was the cause of the act and not the illegality of the arrest. In such an inquiry the fact that the prisoner was ignorant at the time that the arrest was illegal would be most material, because it would almost conclusively show that the act did not arise from that cause. It should also be observed, that if "one has a legal and illegal warrant, and arrests by virtue of the illegal warrant, yet he may justify by virtue of the legal one; for it is not what he declares, but the authority which he has is his justification:" per Holt, C. J.; Greenville v. The College of Physicians, 12 Mod. 386, and see Crowther v. Ramsbottam, 7 T. R. 654; The Governors of Bristol Poor v. Wait, 1 Ad. & E 264 (28 E. C. L. R.), so it might be contended that if the party apprehended had committed a felony, as he might be apprehended by any individual without a warrant, the apprehension by a constable under a defective warrant would not be illegal, as he might justify the arrest as a private individual. See per Tindal, C. J., in Hoye v. Bush, 1 M. & Gr. 775 (39 E. C. L. R.), ante, p. 830, note (o). See also as a constable has authority to apprehend any person within his district, whom he has reasonable ground to suspect of having committed a felony [Beckwith v. Philby, ante, p. 801, note (8)]; in such a case also it might be contended that he might justify the arrest, although in fact he did apprehend under an illegal warrant. C. S. G.

it to his son, who went in pursuit of the prisoner in company with his brother; the father stayed behind; they found the prisoner lying under a hedge, and when they first saw him he had a knife in his hand running the blade of it into the ground; he got up from the ground to run away, and the son laid hold of him, and he stabbed the son with the knife; the father was in sight at about a quarter of a mile off. Parke, B., "The arrest was illegal, as the father was too far off to be assisting in it; and there is no evidence that the prisoner had prepared the knife beforehand to resist illegal violence. If a person receives illegal violence, and he resists that violence with anything he happens to have in his hand, and death ensues, that would be manslaughter. If the prisoner had taken out this knife on seeing the young man come up, it might be evidence of previous malice, but that is not so, as we find that the knife was in his hand when the young man first came in sight."(ƒ)

The parties whose liberty is interfered with must have due notice of the officer's business; or their resistance and killing of such officer will amount only to manslaughter.(9) Thus, where a bailiff pushed abruptly and violently into a gentleman's chamber early in the morning, in order to arrest him, but did not tell his business, nor use words of arrest, and the party not knowing that the other was an officer, in the first surprise snatched down a sword, which hung in his room and killed the bailiff; it was ruled to be manslaughter.(h) But it will be otherwise, if the officer and his business be known ;() as where a man said to a bailiff who came to arrest him, "Stand off, I know you well enough, come at your peril," and, upon the bailiff taking hold of him, ran the bailiff through the body and killed him, it was held to be murder.(k) This will apply as well to a special bailiff as to a known officer; but where the party does not show by his conduct that he is acquainted with the officer and his business, material distinctions arise as to notice of a known officer, and one whose authority is only special.

Where a party is apprehended in the commission of an offence, or upon fresh pursuit afterwards, notice is not necessary, because he must know the reason why he is apprehended. Upon an indictment for maliciously wounding it appeared that two persons *heard a noise in a board-house, near midnight, and saw the prisoner *836] inside the board-house, and heard a noise among the boards, and heard the prisoner say, "Bring that board:" on which the persons went for the owner, who came in a quarter of an hour, when no one was found in the board-house, but two planks had been removed to a part of the board-house nearer the door, and after searching in several places they found the prisoner in the garden of another person, crouched down under a tree, with a drawn sword in his hand, and being asked twice what he did there, he made no answer, and then started off, but was pursued and caught hold of by one of the persons, whom he compelled to leave his hold; he then fell over something, and the others came up, and he then attempted to get away, but was prevented by some paling, and he then turned round and wounded the owner of the boards; it was held, on a case reserved, that the circumstances of the case told him why he was apprehended, and that it was not necessary to tell him what he must have known.(7) So where upon an indictment for maliciously wounding, it appeared that the assistant to the head keeeper of Sir R. S. went with five or six assistants towards a covert of Sir R. S., where they heard guns; they then went towards the place, and rushed in at the poachers to take them; the prosecutor saw six persons in the wood, and he ran after them; they got into a field about six yards off; they then ranged themselves in a row, the prosecutor being five or six yards from them, on the edge of the plantation, and he heard one of them say, "The first man that comes out I'll be d―d if I don't shoot him ;" upon which the prosecutor drew his pistol, cocked it, and ran out; they all ran away together; the prosecutor followed them, and when they had run about fifty yards they stood; they had all turned round;

(f) Rex v. Patience, 7 C. & P. 775 (32 E. C. L. R.). See this case, ante, p. 826.

(g) 1 Hale 458, et seq.; 1 Hawk. P. C. c. 31, ss. 49, 50; Fost. 310.

(h) 1 Hale 470, case at Newgate, 1657. And see Kel. 136.

(i) Mackally's case, 9 Co. 69.

(k) Pew's case, Cro. Car. 183; 1 Hale 458.

(1) Rex v. Howarth, R. & M. C. C. R. 207, ante, p. 816. See Rex v. Woolmer, R. & M. C. C. R. 334, ante, p. 804.

one of them shot at the prosecutor, who was running to him; the prosecutor was wounded; the men said nothing to the prosecutor before he was shot, nor he to them; it was objected, that, inasmuch as the prosecutor's authority to apprehend them was derived from the act creating the offence, it was incumbent upon him to give notice to them: the objection was overruled: and, upon a case reserved, the Judges were of opinion that the circumstances constituted sufficient notice.(m) So where a servant of Sir T. W. was out with his gamekeeper at night, and they heard two guns fired, and went towards the place, and got into a covert, and saw some men there who ran away, and the servant pursued them, and got close up to one of them, and made a catch at his legs, and was immediately shot through the side; Parke, B., said, "Where parties find poachers in a wood, they need not give any intimation by words that they are gamekeepers, or that they come to apprehend; the circumstances are sufficient notice. What can a person poaching in a wood suppose when he sees another at his heels?"(n)

[*837

With regard to private persons interfering, as they may do, in case of sudden affrays, in order to part the combatants, and prevent bloodshed, it is quite necessary that they should give express notice of their friendly intent; otherwise the persons engaged may, in the heat and bustle of the affray, imagine that they came to act as parties (0)

With regard to such ministers of justice as, in right of their offices, are conservators of the peace, and in that right alone interpose in the case of riots and affrays, it is necessary, in order to make the offence of killing them amount to murder, that the parties engaged should have some notice of the intent with which they interpose; for the reason which was mentioned in relation to private persons; lest the parties engaged should, in the heat and bustle of an affray, imagine that they come to take a part in it.(p) But, in these cases, a small matter will amount to a due notification It is sufficient if the peace be commanded, or the officer, in any other manner, declare with what intent he interposes. Or if the officer be within his proper district, and known, or but generally acknowledged, to bear the office he assumes, the law will presume that the party killing had due notice of his intent; especially if it be in the daytime.(q) In the night some further notification is necessary; and commanding the peace, or using words of like import, notifying his business, will be sufficient.(r) Killing a watchman in the execution of his office is not the less murder for being done in the night; and the killing an officer who arrests on civil process may be murder, though the arrest be made in the night; and in the case of an affray in the night where the constable, or any other person who comes to aid him to keep the peace, is killed, after the constable has commanded in the King's name to the keeping of the peace, such killing will be murder; for though the parties could not discern or know him to be a constable, yet if it were said at the time that he was such officer, resistance was at their peril.(s) Therefore though the saying of a learned Judge, "That a constable's staff will not make a constable," is admitted to be true; yet if a minister of justice be present at a riot or affray within his district, and in order to keep the peace produce his staff of office, or any other known ensign of authority, in the daytime when it can be seen, it is conceived that this will be a sufficient notification of the intent with which he interposes; and that, if resistance be made after this notification, and he or any of his assistants killed, it will be murder in every one who joined in such resistance. (t) For it seems that See Rex v. Fraser, R. & M. C. C. R. 419, ante,

(m) Rex v. Payne, R. & M. C. C. R. 378. p. 815, note (h)

(n) Rex v. Davis, 7 C. & P. 785, Parke, B. L. R), Vaughan, J.

(0) Fost. 310, 311.

See Rex v. Taylor, 7 C. & P. 266 (32 E. C. (p) Fost. 310; Kel. 66, 115.

(g) 1 Hale 460, 461; Fost. 310, 311. So in the Sissinghurt-house case, 1 Hale 462, 463, it was resolved that there was sufficient notice that it was the constable before the man was killed-1. Because he was constable of the same vill. 2. Because he notified his business at the door before the assault, viz., that he came with the justice's warrant. 3. Because, after his retreat, and before the man slain, he commanded the peace; and, notwithstanding, the rioters fell on and killed the party. See the case fully stated, ante p. 737, et seq.

(r) 1 Hale 461; Fost. 311.

(1) Fost. 311.

(8) 9 Co. 66 a.

in the case of a public bailiff, a bailiff juratus et cognitus, acting in his own district, his authority is considered as a matter of notoriety; and, upon this ground, though *838] the warrant by which he was constituted bailiff be demanded, he need not *show it;(u) and it is sufficient if he notify that he is the constable, and arrest in the King's name.(v) And this kind of notification by implication of law will hold also in cases where public officers, having warrants, directed to them as such, to execute, are resisted, and killed in the attempt.(w) Thus, where a warrant had been granted against the prisoner by a justice of peace for an assault, and directed to the constable of Pattishal, and delivered by the person who had obtained it to the deceased, to execute, as constable of the parish, and it appeared that the deceased went to the prisoner's house in the daytime to execute the warrant, had his constable's staff with him, and gave notice of his business, and further, that he had before acted as constable of the parish, and was generally known as such it was determined that this was sufficient evidence and notification of the deceased being constable, although there were no proof of his appointment, or of his being sworn into the office.(x)

It is laid down in one case, that if, upon an affray, the constable, or others in his assistance come to suppress it, and preserve the peace, and be killed in executing their office, it is murder in law, although the murderer knew not the party killed, and though the affray were sudden; because he set himself against the justice of the realm.(y) It is said, however, that in order to reconcile this with other authorities, it seems that the party killing must have had implied notice of the character in which the peace officer and his assistants interfered, though not a personal knowledge of them.(z) For it is elsewhere laid down, that if there be a sudden affray, and the constable come in, and, endeavoring to appease it, be killed by one of the company who knew him, it is murder in the party killing, and in such of the others as knew the constable, and abetted the party in the fact; but only manslaughter in those who knew not the constable; (a) and that others continuing in the affray, neither knowing the constable, nor abetting to his death, would not be guilty even of manslaughter. (b) But these positions do not apply to an affray deliberately engaged in by parties determined to make common cause, and to maintain it by force.(c)

It is however agreed, that if a bailiff or other officer be resisted *in the *839] regular discharge of his duty in executing process against a party, and a third person, even the servant or friend of the party resisting, come in and take part against the officer, and kill him, it will be murder, though he knew him not.(d) But it is suggested, that in this case, in order to make it murder in the servant or friend, the party whom they came in to assist must have had due notice of the officer's authority; and that if the offence would not have been murder in the party himself resisting for want of such notice, neither would it in the servant or friend

(u) 1 Hale 458, 461, 583; Mackally's case, 9 Co. 69 a. But it is otherwise as to the writ or process against the party. Both a public and private bailiff, where the party submits to the arrest and demands it, are bound to show at whose suit, for what cause, and out of what court the process issues, and where returnable: 6 Co. 54 a; 9 Co. 69 a; but it will be no excuse that he did not tell the party, if the party resisted so as not to give time for telling: 9 Co. 69 a. And in no case is the bailiff required to part with the possession of the warrant; neither is a constable, whether acting within or without his jurisdiction: 1 MS. Sum. 250; 1 East P. C, c. 5, s. 84, p. 319. By a known bailiff is meant one who is commonly known to be so; it is not necessary that he should be known to the party to be arrested: 9 Co. 69 b.

(v) 1 Hale 583.

(w) 1 East P. C. c. 5, s. 81, p. 315.

(x) Rex v. Gordon, Northampton Spr. Ass. 1789, cor. Thomson, B., afterwards considered at a conference of all the Judges, 26th June, 1789. See 1 East P. C. c. 5, s. 81, p. 315.

(y) Young's case, 4 Co. 40 b; 3 Inst. 52.

(z) 1 East P. C. c. 5, s. 82, p. 316.

(a) 1 Hale 438, 446, 461; Kel. 115, 116.

(b) 1 Hale 446. Lord Hale adds, quod tamen quære, but (as it is said, 1 East P. C. c. 5, s. 82, p. 316) perhaps over cautiously, if in truth there were no abetment.

(c) See as to the cases of that kind, ante, p. 55, et seq.

(d) 1 Hawk. P. C. c. 31, s. 57; Keb. 87; 4 Co. 40, b; 1 East P. C. c.

5, s. 82, p. 316.

under the like ignorance.(e) The law upon this point may, perhaps, hardly seem to be reconcilable with that above-mentioned, of a person not knowing the constable, and killing him in an affray; but it is defended on the principle, that every person wilfully engaging, in cool blood, in a breach of the peace, by assaulting another, instead of endeavoring to assuage the dispute, is bound first to satisfy himself of the justice of the cause he espouses at his peril.(f) And, upon this principle, if a stranger seeing two persons engaged, one of them a bailiff, attacking the other, with a sword, and the other resisting an arrest by such bailiff, interfere between them without knowing the bailiff, for the express purpose of defending the party attacked against the bailiff, he must abide the consequence at his peril; but if he interfere, not for the purpose of aiding one party against the other, but with intent only to preserve the peace, and prevent mischief, and in so doing happen to kill the bailiff, the case would possibly fall under a different consideration.(g)

In all cases, whether criminal or civil, where doors may be broken open in order to make an arrest, there must be a previous notification of the business, and a demand to enter on the one hand, and a refusal on the other, before the parties proceed to that extremity.(h) In a case where an outer door had been broken open by two constables and a gamekeeper, to execute a warrant granted under the 22 & 23 Car. 2, c. 25, s. 2, to search for, and seize any guns, &c., for destroying game; and it appeared that the door was broken open without the party having been previously requested to open it; the Court held, that, in a case of misdemeanor, a previous demand of admittance was clearly necessary, before an outer door was broken open. Abbott, C. J., said, "it is not at present necessary to decide how far in a case of a person charged with felony it would be necessary to make a previous demand of admittance, before you could justify breaking open the outer door of the house; because I am clearly of opinion, that, in the case of a misdemeanor, such previous demand is requisite." Bayley, J., said, generally, "even in the execution of criminal process, you must demand admittance, before you can justify [*840 breaking open the outer door. That point was mentioned in the judgment of the Court in Burdett v. Abbott."(i) The question as to what should be con

sidered as due notice was much considered in a case where two officers went to the workshop of a person, against whom they had an escape warrant; and finding the shop door shut, called out to the person, and informed him that they had an escape warrant against him, and required him to surrender, otherwise they said they would break open the door; and, upon the person's refusing to surrender, they broke open the door, and one of their assistants was immediately killed. Nine of the Judges were of opinion, that no precise form of words was required in a case of this kind; and that it is sufficient if the party had notice that the officer comes not as a mere trespasser, but claiming to act under a proper authority. The judges who differed, thought that the officers ought to have declared, in an explicit manner, what sort of warrant they had; and that an escape does not, ex vi termini, nor in the notion of law, imply any degree of force, or breach of the peace; and, consequently, that the prisoner had not due notice that they came under the authority of a warrant grounded on the breach of the peace; and that, for want of this due notice, the officers were not to be considered as acting in discharge of their duty, but as mere trespassers.(k)

In the case of a private or special bailiff, either it must appear that the party knew that he was such an officer, as where the party said, "Stand off, I know you

(e) 1 East P. C. c. 5, s. 82, p. 316.

(f) 1 Hawk. P. C. c. 31, s. 59; 1 East P. C. c. 5, s. 82, pp. 316, 317, where the grounds upon which the law in each of these cases may be supported, and considered as reconcilable, are more fully stated.

(g) See the case of Sir C. Standlie and Andrews, Sid. 159, where Andrews, under similar circumstances, was holden not to be guilty of murder. This case is differently reported by Kelyng; and Keble, reporting the same case very shortly, says :-It was adjudged, that if any casually assist against the law, and kill the bailiff, it is murder, especially if he knew the cause: 1 Keb. 584; and see 1 East P. C. c. 5, s. 83, p. 318. (h) Fost. 320; 2 Hawk. P. C. c. 14, s. 1; 1 East P. C. c. 5, s. 87, p. 324. (i) Lannock v. Brown, 2 B. & A. 592.

(k) Curtis's case, Fost. 135.