peace, and every justice has authority to command their aid, and that of all other persons, present at any affray, riot, assault, or battery, and may fine any person refusing, in a sum not exceeding forty shillings, to be levied upon the offender by warrant of distress. Stat, 1783, ch. 51.

2. To disperse rioters by proclamation.

If any persons to the number of twelve, or more, being armed with clubs, or other weapons; or thirty or more, unarmed, shall be unlawfully, routously, riotously, or tumultuously assembled, any justice of the peace, sheriff, or deputy sheriff, or constable, shall, among the rioters, or as near to them as he can safely come, command silence while proclamation is making, and shall openly make proclamation in these or the like words :

"COMMONWEALTH OF MASSACHUSETTS. BY virtue of an Act of this Commonwealth, made and passed in the year of our LORD one thousand seven hundred and eighty-six, entitled, 'An Act for suppressing routs, riots and tumultuous assemblies and the evil consequences thereof,' I am directed to charge and command, and I do accordingly charge and command all persons, being here assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains inflicted by the said Act.

God save the Commonwealth."

3. Power of officers.

If such persons shall not disperse themselves within one hour after proclamation made, or attempted to be made, it shall be lawful for every such officer to command sufficient aid, and he shall seize such persons, who shall be had before a justice of the peace; and the aforesaid justice of the peace, sheriff, or deputy sheriff, is empowered to require the aid of a sufficient number of persons in arms, if any of the persons assembled as aforesaid shall appear armed: And if any such person shall be killed or wounded by reason of his resisting the persons endeavoring to disperse or

seize them, the justice, sheriff, deputy sheriff, constable, and their assistants, shall be indemnified and held guiltless.

4. Penalty for refusing assistance.

If any person, being commanded by a justice, sheriff, deputy sheriff, or constable, shall refuse or neglect to afford the assistance required, and shall be convicted thereof upon the oath of either of the said officers so commanding, or other legal evidence, he shall forfeit and pay a sum not less than forty shillings, nor exceeding teur pounds, to be recovered by indictment.

5. Punishment for not dispersing.

All persons who, for the space of one hour after proclamation made or attempted to be made, as aforesaid, shall unlawfully, routously, riotously and tumultuously continue together, or shall wilfully let or hinder any such officer, who shall be known or shall openly declare himself to be such, from making the said proclamation, shall forfeit all their lands, tenements, goods and chattels to the commonwealth, or such part thereof as shall be adjudged by the court, before whom the offence shall be tried, to be applied towards the support of the government of the commonwealth; and shall be further punished by fine and imprisonment. And if any such person or persons, so riotously assembled, shall demolish or pull down, or begin to demolish or pull down, any dwelling house or other house or parcel thereof; any house built for public uses; any barn, mill, malt house, store house, shop or ship, he shall be punished in like

manner.

Q. Of arrests on criminal

process.

1. Of arrests on capias or attachment.

An arrest, in criminal cases, is the apprehending or detaining of the person, in order to be forth-coming

to answer to crime alleged against him, or of which he is suspected to be guilty.-1 Chitty, 10.

The execution of the warrant is an important part of the law relating to arrests. The officer to whom it

is directed, must proceed with secrecy to find out, and actually arrest the party, not only in order to secure him, but also to subject him and all other persons to the consequences of escape and rescue. But in many cases, for common assaults, it may not be inconsistent with the officer's duty to give notice to the parties accused, of the time when they must go before the magistrate, in order that they may be provided with sureties.--Davis's Just. 64.

It may be properly added, that, in a variety of minor offences, such, for instance, as an encroachment upon the public highway, whereby a nuisance is created, and in many other cases not of an aggravated nature, it is justifiable in the exercise of a sound discretion, to give notice to the party beforehand, that he has a warrant to arrest him, that the party may not be subjected to the inconveniences of a sudden arrest and confinement.

To constitute an arrest, the party, against whom the process is issued, must be actually touched by the officer, (who should accompany it by pronouncing words of arrest,) or confined in a room, or submit himself by words, or actions, to be in custody. If he be not taken into actual custody, it will not amount to arrest for bare words will not, in this respect, be of any avail.-1 Chitty, 39.

2. For what crimes a person may be arrested.

In this state, all persons guilty or suspected to be guilty of crime, may be arrested by a warrant from a justice of the peace.-St. 1783, ch. 51.

But, no man can be arrested, unless charged with such an offence, as will justify holding him to bail when taken.

Thus, where the forfeiture for an offence may be

recovered by a penal action, for the benefit in whole or in part, for him, who shall first sue for the same, as well as by indictment, the offender cannot be arrested by warrant before indictment found.-6 M. R, 348.

3. By what authority.

By the common law, sheriffs, coroners, and constables, are authorized and enjoined to pursue and arrest all felons, and even persons suspected of capital offences; and all persons refusing to assist such officers are punishable.-1 Chit. 25.

This power may be exercised without warrant, and is oftentimes necessary to prevent the escape of a criminal; but, unless the crime is committed in the view of the officer, it is a power, which in this country should be cautiously exercised.-Davis, 56.

By a special statute, justices of the peace are authorized, in the absence of any sheriff, deputy sheriff, or constable, to cause to be apprehended, any person guilty of any breach of the peace in his view, and power is given them verbally to command any person present to make such arrest. Such person is bound to obey said justice, under a severe penalty; nor can he plead ignorance in excuse.-Stat. 1795, ch. 68.

So, in some extreme cases, it is the absolute duty of private persons to make arrests, and this too without any warrant or verbal authority; as when a dangerous word has been given, and there is danger that the felon may escape. In this case, the offender may be pursued, and doors broken open-Chitty, 17-11 Johns. 486.

So, any person may lay hold of a lunatic, who is suspected to be about the commission of some mischief; or may give any other person, who is about the commission of a felony; or if the first gives express notice of his intention, may lawfully interfere to prevent persons from fighting, or from committing any breach of the peace.-1 Chitty, 18.

But, for a mere misdemeanor, unattended with violence, as perjury or libel, no person can be taken into custody without a warrant, not even by an officer.1 Chitty, 15.

4. At what timë:

A person may be apprehended in the night as well as in the day, and though the statute of 1791 ch. 58, sec. 9, prohibits the service of civil process, "from midnight preceding to midnight following the Lord's day," this does not affect processes against offenders for treason, felonies, or breaches of the peace; so that warrants against any persons charged with any crimes whatever, may be lawfully served on that day. -Chitty, Crim. Law, 13-13 M. R, 324.

But the service of a warrant, issued for a violation of this statute, on the Lord's day, would be illegal and void.-lbid.

Processes in criminal cases are sometimes returnable at a particular time, and sometimes forthwith. In general, the precept will instruct the officer within what time service is to be made. Those processes in which a particular time is mentioned, usually proceed from the higher courts.

The warrant of a magistrate is not returnable at any particular time; and it continues in force until it is fully executed and obeyed.-Davis's Just. 41.

And though it were seven years after its date, it may be executed in the lifetime of the magistrate who issued it and a person may be twice apprehended under it, if the purposes of justice have not been effected.-Chitty, 40.

5. In what place.

No place affords protection to offenders against the criminal law.-Chitty, 13.

In general, however, sheriffs, their deputies, and coroners, are restricted to the county for which they are appointed, and constables to the town or city in