Meaning of words. Hue and cry, what. 13 Ed. I. st. 2. C. 4. Watches to be kept. Application to the constable. LORD Coke saith that hue and cry (called in ancient records hutesium & clamor) do mean the same thing; for that huer in French is to hoot or shout, in English to cry. 2 Inst. 173. 3 Inst. 116. But since it appeareth by the old books (of which also Ld. Coke maketh observation, 2 Inst. 173.) that hue and cry was anciently both by horn and by voice, it may seem that these two words are not synonymous, but that this hutesium or hooting is by the horn, and crying by the voice; which also accordeth with the French word hutchet, which signifieth a huntsman's horn; so that hue and cry in this sense will properly signify a pursuit by horn and by voice. Which kind of pursuit of robbers by blowing a horn, and by making an outcry, is said to be practised also in Scotland. And this blowing of a horn, by way of notice or intelligence, in other cases as well as in the pursuit of felons, seemeth to have been in use of very ancient time; for amongst the laws of Wihtred king of Kent, in the year 696, this is one; that " if a stranger go out of the road, and neither shout nor blow a horn, he shall be taken for a thief." Hue and cry is the old common law process after felons, and such as have dangerously wounded any person; and this hath received great countenance and authority by several acts of parliament. 2 Hale, 298. By 13 Ed. 1. st. 2. c. 4. to prevent felonies; in walled towns the gates shall be shut from sun-setting to sun-rising; and none shall lodge without the town from nine of the clock till day, unless his host will answer for him. In other towns, watches shall be kept; and if a watchman arrest a night-walker, and he disobey and fly, the watchman may make hue and cry. When any felony is committed, or any person is grievously and dangerously wounded, or any person assaulted and offered to be robbed, either in the day or night, the party grieved, or any other, may resort to the constable of the vill; and, 1. Give him such reasonable assurance thereof, as the nature of the case will bear. 2. If he know the name of him that did it, he must tell the constable the same. 3. If he know it not, but can describe him, he must describe his person, or his habit, or his horse, or such circum stances as he knows, which may conduce to his discovery. 4. If the thing be done in the night, so that he knows none of these circumstances, he must mention the number of the persons, or the way they took. 5. If none of all these can be discovered, as where a robbery or burglary or felony is committed in the night, yet they are to acquaint the constable with the fact, and desire him to search in his town for suspected persons, and to make hue and cry after such as may be probably suspected, as being persons vagrant in the same night; for many circumstances may ex post facto be useful for discovering a malefactor, which cannot be at first found. 2 Hale, 100, 101. 3 Inst. 116. For levying hue and cry, although it is a good course to have Justice's warthe warrant (A) of a justice of the peace, when time will permit, rant. in order to prevent causeless hue and cry; yet by the frame of the statutes it is by no means necessary, nor is it always convenient, for the felon may escape before the warrant be obtained, and hue and cry was part of the law before justices of the peace were first instituted. 2 Hale, 99. The duty of the constable is, to raise the power of the town, as well in the night as in the day, for the prosecution of the offender. 3 Inst. 116. And upon hue and cry levied against any person, or where any hue and cry comes to a constable, whether the person be certain or uncertain, the constable may search suspected places within his vill, for the apprehending of the felons. 2 Hale, 103. Constable to raise the town, And to search, to search. But though he may search suspected places or houses, yet his Breaking doors entry must be by the doors being open; for he cannot break open doors barely to search, unless the person against whom the hue and cry is levied be there; and then it is true he may; therefore in case of such a search the breaking open the door is at his peril, namely, justifiable, if he be there; not justifiable, if he be not there. But it must be always remembered that in case of breaking Vide ante, open a door, there must be first a notice given to them within of p. 810.811. his business, and a demand of entrance, and a refusal, before the doors can be broken. 2 Hale, 103. 2 Haw. c. 14. § 1. If the person against whom the hue and cry is raised be not found in the constablewick, then the constable shall give notice to the next constable, and he to the next, until the offender be found, or till they come to the sea-side. And this was the law before the conquest. 3 Inst. 116. way Notice to the next constable. And the officer of the town where the felony was done, as also And to the next. every officer to whom the hue and cry shall afterwards come, ought to send to every other town round about him and not to one next town only. And in such cases it is needful to give notice in writing (to the pursuers) of the things stolen, and of the colour and marks thereof, as also to describe the person of the felon, his apparel, horse, and the like, and which he is gone, if it may be. Dalt. c. 54. But if the hue and cry be upon a robbery, burglary, manslaughter, or other felony committed, but the person that did the fact is neither known nor describable by person, clothes, or the like, yet such hue and cry is good, as hath been said, and must be pursued, though no person certain be named or described. What shall be done where the person cannot be described, 3 Ed. 1. c. 9. follow the hue 13 Ed. 1. st. 2. C. I. 27 Fl. c. 13. Breaking doors to arrest upon pursuit. Killing in the pursuit. Arresting an And therefore in this case all that can be done is, for those that pursue the hue and cry to take such persons as they have probable cause to suspect, as for instance, such persons as are vagrants, or such suspicious persons as come late into their inn or lodgings, and give no reasonable account where they have been, and the like. 2 Hale, 103. By the statute of 3 Ed. 1. c. 9. all shall be ready, and apparelled, at the commandment and summons of sheriffs (or constables, 2 Inst. 171.) and at the cry of the county, to sue and arrest felons; on pain of a grievous fine. And if default be found in the lord of the franchise, the king shall take the franchise to himself; and if in the sheriff or other officer, they shall have one year's imprisonment, and shall make a grievous fine. By the statute of the 13 Ed. 1. st. 2. c. 1. it is likewise enacted that immediately upon robberies and felonies committed, fresh suit shall be made from town to town, and from county to county. And by 27 El. c. 13. § 10. no hue and cry shall be lawful, except it be by horsemen and footmen. And the life of hue and cry is fresh suit. 3 Inst. 117. If the person pursued by hue and cry be in a house, and the doors are shut, and refused to be opened on demand of the constable, and notification of his business, he may break open the doors; and this he may do in any case where he may arrest, though it be only a suspicion of felony; for it is for the king and commonwealth, and therefore a virtual non omittas is in the case: And the same law is, upon a dangerous wound given, and a hue and cry levied upon the offender. 2 Hale, 102. And it seems in this case, that if he cannot be otherwise taken he may be killed; and the necessity excused the constable. 2 Hale, 102. If hue and cry be raised against a person certain for felony, innocent person. though possibly he is innocent, yet the constables and those that follow the hue and cry may arrest and imprison him in the common gaol, or carry him to a justice of the peace, to be examined where he was at the time of the felony committed, and the like. 2 Hale, 102. If the hue and cry be not against a person certain, but by description of his stature, person, clothes, horse, and the like, yet the hue and cry doth justify the constable or other person following it, in apprehending the person so described, whether innocent or guilty: For that is his warrant; it is a kind of process that the law allows of, not usual in other cases, namely, to arrest a person by description. 2 Hale, 103. In case of hue and cry once raised and levied, on supposal of a felony committed, though in truth there was no felony committed, yet those that pursue hue and cry, may arrest and proceed, as if so be a felony had been really committed. And therefore the justification of and imprisonment by a person upon suspicion, and by a person (especially a constable) upon hue and cry levied, do extremely differ; for in the former case, there must be a felony averred to be done, and it is issuable; but in the latter, to wit, upon hue and cry, it need not be averred, but the hue and cry levied upon information of a felony is sufficient, though perchance the information were false. And the reasons hereof are these: 1. Because the constable cannot examine the truth or falsehood of the suggestion of him that first levied it, for he cannot administer to him an oath; and if he should forbear his pursuit of the hue and cry till it be examined by a justice of the peace, the felon might escape, and the pursuit would be lost and fruitless. 2. Because the constable is by the several acts of parliament compellable to pursue hue and ery, and he is punishable, and so are those of the vill, if they do it not. 3. Because he that first raiseth a hue and cry, where no felony is committed, that is, he who giveth the false information, is severely punishable by fine and imprisonment if the information be false. And therefore if he raise hue and cry upon a person that is innocent, yet they that pursue the hue and cry may justify the imprisonment of that innocent person; and the raiser is punishable and by the same reason, if he give notice of a felony committed, where there was in truth none. And here the justification of the imprisonment is mixed, partly upon the hue and cry, and partly upon their own suspicion and therefore, 1. In respect that it is upon hue and cry, there needs no averment that the felony was done, if the arrest be by that constable that first received the information, and so raised the hue and cry, or if the arrest were made by that constable, or those vills to whom the hue and cry came at the second hand, it must be averred that such a hue and cry came to them, purporting such a felony to be done. 2. But also inasmuch as the hue and cry neither names nor describes the person of the felon, but only the felony committed, and therefore the arrest of this or that particular person is left to the suspicion and discretion of the constable, or of the people of the second or third vill, he that arrests any person upon such general hue and cry must aver that he suspected, and shew a reasonable cause of suspicion. But now by the statute of 7 J. 1. c. 5. the constable, or any that 7 J. 1. c. 5. come to his assistance, even in this case of hue and cry may plead the general issue, and give the whole matter of the justification in evidence; for the pursuit of hue and cry, though performed by others as well as the constable, is principally the act of the constable of the vill, and the others are but as his deputies or assistants within the precincts of their constablewick. 2 Hale, 101, 2, 3, 4. It seems that they who are taken upon fresh hue and cry are not bailable, as being to be accounted amongst those persons who are under a violent presumption of guilt. 2 Haw. c. 15. § 41. By the 13 Ed. 1. st. 2. c. 6. constables of hundreds shall be chosen who shall present before justices assigned defaults of the suits of towns, and all such as lodge strangers in uplandish towns, for whom they will not answer. And they which levy not hue and cry, or pursue not upon hue and cry, may be indicted, fined, and imprisoned. 3 Inst. 117. And it is an article of the leet to inquire of hues and cries levied and not pursued. 18 Ed. 2. Persons taken on hue and cry how far bailable. High constables to present those who pursue not hue and cry. Punishment of those who follow not hue and cry. In an action on the statute of hue and cry for robbery, the plaintiff Costs in actions is entitled to costs. 2 Wils. 92. 1 T. R. 70. on the statute. 3 Ed. I. c. 9. 27 Eliz. C. 13. How taxation shall be made. Constable to pay over in 10 II. Of the statutes relating to Hue and Cry. Several statutes have been from time to time enacted relative to the making of hue and cry. See stats. 3 Ed. 1. c. 9. and 13 Ed. 1. st. 2. c. 1. ante p. 814. By the 27 Eliz. c. 13. entitled, "the act for following hue and 'cry," it is enacted, § 1. that the inhabitants and residents of every hundred, with the franchises within the precinct thereof, wherein negligence, fault, or defect of pursuit and fresh suit after hue and cry made shall happen to be, shall answer the one moiety of every sum and damages as shall by force or virtue of the statutes 13 Ed. 1. st. 2. c. 1 & 2. and 28 Ed. 3. c. 11. or either of them, be recovered against the said hundred with the franchises therein, in which any robbery or felony shall at any time hereafter be committed or done; and (by §2.) the same moiety shall be recovered by action or information in any court of record at Westminster, by and in the name of the clerk of the peace of or in every such county within this realm where any such robbery and recovery by the party or parties robbed shall be. $5. After execution of damages by the party so robbed had, it shall be lawful (upon complaint made by the party so charged) for two justices of the same county, inhabiting within the said hundred, or near unto the same, where any such execution shall be had, to assess and tax rateably and proportionably according to their discretions all and every the towns, parishes, villages, and hamlets, as well of the said hundred where any such robbery shall be committed, as of the liberties within the said hundred, to and towards an equal contribution to be had and made for the relief of the said inhabitant or inhabitants against whom the party robbed before that time had his or their execution. And after such taxation made, the constables or headboroughs of every such town, &c. shall by virtue of this act have full power within their several limits rateably and proportionably to tax and assess according to their abilities, every inhabitant and dweller in every such town, &c. for and towards the payment of such taxation and assessment, as shall be so made upon every such town, &c. as aforesaid by the said justices. And if any inhabitant of any such town, &c. shall obstinately refuse and deny to pay the said taxation and assessment, so by the said constable, &c. taxed and assessed, then it shall be lawful for the said constables, &c. and every of them, within their several limits and jurisdictions to distrain every person so refusing and denying by their goods and chattels, and the same distress to sell, and the money thereof coming to retain to the use aforesaid; and if the goods or chattels so distrained and sold shall be of more value than the said taxation shall come unto, then the residue of the said money over and above the said taxation shall be delivered unto the said person or persons so distrained. § 6. And every the said constables and headboroughs, after that they have within their several limits and jurisdictions levied and collected their said rates and sums of money so taxed, shall, within days the money ten days after such collection, pay and deliver the same over unto the said justices, or one of them, to the use of the said inhabitant or inhabitants for whom such rate, &c. shall be had or made as collected. |