(In advancement of Law). a Sunday are void, except in cases of treason, felony, or Ch. V. § 88. breach of the peace: And therefore an arrest on any other Time of arrest. account made on that day is the same as if done without any authority at all. Though it may serve to explain the occasion. It remains to be considered, how far any defect in the frame $ 89. of the process, or any other illegality in the arrest, may be urged How far a third in defence of a third person who interferes to prevent it, and kills person interfering the officer in so doing. to prevent arrest, and killing the officer, can avail arrest. s. 54. The question in a legal form is reduceable to this, How himself of the ilfar the mere view of a person under arrest, or about to be legality of such arrested, supposing it to be illegal, is of itself such a provocation to a by-stander, as will extenuate his guilt in killing the officer, in order to set the party free in the one instance, or prevent the arrest in the other? The affirmative part of this question was maintained to the full extent of it by seven judges against five, in the case of Tooley and others. There Rex v. Tooley one Bray, who was a constable of St. Margaret's parish in and others, 2 Ld. Ray. 1296. Westminster, came into the parish of St. Paul Covent Gar- Post. 329. den, where he was no constable and consequently had no 1 Hawk. ch. 31. authority; and there took up one Ann Dekins, under suspi- Vide Fost. 312. cion of being a disorderly person, but who the special verdict found had not misbehaved herself, and against whom Bray had no warrant. While he had her in custody they were met by the prisoners, who were all strangers to Dekins, and who drew their swords and assaulted Bray.to rescue her from his custody: but upon his shewing them his constable's staff, and declaring he was about the queen's business and intended them no harm, they put up their swords, and he carried the woman to the round-house in Covent Garden. Soon after the prisoners drew their swords again, and assaulted Bray on account of the imprisonment of the woman, and in order to get her discharged; whereupon Bray called Dent to his assistance to keep the woman in custody, and defend himself from the violence of the prisoners; when one of the prisoners before any stroke received gave Dent a mortal wound. All the judges except one agreed that Bray acted without any authority; but that one thought that shewing his staff was sufficient; and that with respect to Vide Rex v. Ante, s. 58. Fost, 312. (In advancement of Law). Ch. V. 89. to the prisoners he was to be considered as constable de facto. How far illegali- But the main point on which they differed was, whether the ty of arrest an exillegal imprisonment of a stranger were under these circumcuse for third persons. stances a sufficient provocation to by-standers, or, as Lord Holt expressed himself, a provocation to all the subjects of England. The five judges who held the case to be murder thought that it would have been a sufficient provocation to a relation or friend, but not to a stranger. The other seven thought there was no ground for making such a distinction, and that it was a provocation to all whether strangers or otherwise, so as to reduce the offence to manslaughter; it being a sudden action, without any precedent malice, or apparent design of doing hurt; but only to prevent the imprisonment of the woman, and to rescue one who was unlawfully restrained of her liberty. But they admitted, that all persons interfering in the case of an arrest by officers of justice did it at their peril in case the arrest should be lawful. The opinion however maintained by the seven judges in the above case has been very ably combated by Mr. Justice Foster, who holds that the kind of provocation which extenuates homicide into manslaughter must be a sudden provocation immediately felt by the party himself at the time of the fact, and not a resentment suggested by reflection or political reasonings for an injury done to a stranger, and the consequence of that injury to the public in general. The case, he says, was in truth no more than this: the prisoners saw a woman, a perfect stranger to them, led to the round-house, under a charge of a criminal nature; and this afterwards appeared to have been an illegal arrest; but which was not known to them at the time. Upon which they had at the first meeting with the constable drawn their swords upon him, unarmed as he was against such weapons, but soon put them up again, appearing to be pacified; and cool reflection seemed in some measure to have taken place. At the second meeting, which was after the woman was in the round-house, the deceased received his death's wound before a blow was given, or for aught appeared offered on the part of him or his party. This he considers as grounded rather upon resentment or a principle of revenge for what had passed before, than upon any hope or endeavour to assist the woman. And without entering (In advancement of Law). entering into the merits of Hopkins Hugget's case, (which Ch. V. § 89. he seems to doubt,) he distinguishes this of Tooley's, as well How far illegality of arrest an from that, as from the case of Sir Henry Ferrer's servant, excuse for third both of which were mainly relied on in Tooley's case: for in persons. both there was an affray, wherein the blood might be heated before the mortal wound was given. In the latter, after Sir Henry had submitted to the arrest, his servant quarrelled Cro. Car. 371. with the officer, and fought and killed him. According to the report the rescue was a mere pretence; and therefore the case was clearly no more than manslaughter; being homicide upon a sudden affray; without entering into the question of the illegality of the arrest. And the same might be said of Hopkins Hugget's case as stated by Lord Hale. It 1 Hale, 465. was a sudden quarrel and affray, and a combat between him and an assistant of the press-master, upon some rudeness offered on the part of the assistant. Though Kelyng reports Kel. 59. the case to have turned on the illegality of the impress, being without any proper warrant, and the provocation such an act of oppression may be presumed to give to every man, whether friend or stranger, to endeavour a rescue. Post. 328. Fost. 317. Mr. Justice Foster adds to his observations on these cases, that he is firmly persuaded, that on such occasions as these a general submission to the known badges of authority, exacted from all persons strangers to the party supposed to be injured or his cause, would greatly conduce to the stability of government in the fate of which all private rights are involved. From whence it seems, that with respect to mere strangers at least he rather inclined to favour the opinion of the single judge, who held in Tooley's case, that Bray's acting as constable de facto was sufficient to constitute the crime of murder as against the prisoners. But the difficulty lies in making out the fact of Bray's having acted as constable de facto, as was observed by Lord Holt in answering that argument. For though it be not necessary, according to Gordon's case, to Ante, p. 315. prove the appointment and swearing in of such an officer, yet evidence of his being generally received by the parish, and known as such, seems to be necessary before he can be considered even as constable de facto. Whereas in Tooley's case another person was actually invested with the office. It persons. (In advancement of Law). Ch. V. §89. It may be worthy of consideration whether the illegality of How far illegali- an arrest does not place the officer attempting it exactly on ty of arrest an excuse for third the same foot as any other wrong-doer: and whether in the case of interference by a stranger or any other person, the Ante, s. 20, &c. question of provocation ought not to be governed by the same rules as regulate ordinary cases of the like sort. The four judges who differed in Hugget's case, though they do not in terms adopt this conclusion, yet argue from the same Hugget's case, premises. The circumstances of that case, as stated more Kel. 59. Ante, 327. at large by Kelyng, were these: Berry and two others pressed a man, without any warrant for so doing; to which the man quietly submitted, and went along with them. The prisoner with three others seeing them instantly pursued them, and required to see their warrant: on which Berry shewed them a paper, which the prisoner and his associates said was no warrant; and immediately drew their swords to rescue the impressed man, and thrust at Berry. Whereupon Berry and his two companions drew their swords, and a fight ensued, in which Hugget killed Berry. Now on that statement of the case, unless an illegal arrest be still supposed to be a provocation to all the people of England, as was said in Tooley's case, Hugget upon the principle already stated was undoubtedly guilty of the murder. For, as was urged by those four judges, if A. assault B. without any provocation, and draw his sword and pass at him; and then B. to defend himself draw his sword, and they fight together; if A. kill B., it is murder; and B.'s drawing his sword to defend himself shall not lessen the other's offence. And they were also Vide 1 Hale, 465. of opinion, that nothing but an open affray or striving can be a provocation to any person to meddle with an injury done to another, so as to lessen the offence to manslaughter, if in Ante, s. 63. 83, that meddling he kill a man; and not even that, as hath been shewn, in the case of a lawful arrest. But, say the same judges, where people are at peace, there if another man, upon suspicion that an injury is done to one of them, will assault and kill him whom he supposes did the injury, this is murder. And they held, that the case in 12 Rep. 87. where two who were playing at bowls quarrelled, and a third person in revenge of his friend struck the other with a bowl and killed him; which was ruled to be only manslaugh Ante, s. 58. 84. ter; (In advancement of Law). ter; must be intended to mean that the two men who fell out Ch. V. § 89. were actually fighting together at the time; for if words only How far illegalihad passed between them, it would have been murder; to excuse for third ty of arrest an which all the other judges agreed. And the four held persons. Hugget's case to be much stronger than that, because the impressed party himself was quiet and made no resistance, and because they who meddled were no friends or acquaintance of his, but mere strangers, and did not so much as desire those who had him in custody to let him go, but presently without more drew their swords and ran at them (a). And they thought it of dangerous consequence to give any encouragement to private men to take upon themselves to be the assertors of other men's liberties, and to become patrons to rescue them by force from wrong, especially in a nation where there are good laws for the punishment of all such injuries: and one great end of law is to right men by peaceable means, and to discountenance all endeavours to right themselves, much less other men, by force. Fost. 138. Upon the same reasoning, on the want of sufficient provocation, Tooley's case stands (says Mr. Justice Foster on Ante, 325. another occasion) on no better grounds than the opinions of seven learned judges against five: for there the mortal blow was given before any stroke given or offered by the other party, or any other legal provocation to them, unless the illegality of the woman's imprisonment, as it eventually appeared, were a provocation to every subject (b). (a) Huggett's case is stated very differently by Lord Hale; according 1 Hale, 465. to whom it was no more than this: a press-master, with the assistance of Vide Fost. 314, C. seized B. for a soldier; D. finding fault with the rudeness of C. there grew a quarrel between them, and D. killed C. (b) Vide Mary Adey's case, O. B. 1779, where the same kind of question arose. The prisoner, who cohabited with one Farnello, killed an assistant of the constable who came to take him up as a vagrant under the 19 G. 2. c. 10.; he in truth not being an object of the act, but not having made any resistance himself to the arrest. Leach, 189. says, that the pri soner, whose case was argued upon a special verdict before all the judges, lay 18 months in gaol, and was then discharged. Upon inquiry, however, it appears, that pending the consideration of the case by the judges she escaped during the riots in 1780, and was never re-taken. MS. Buller, J. And vide the note to the last edit. of Leach, 1 vol. 245. 253. U u |