the arrest, he ought to require all persons present to assist him, and they are bound to do so.

"In cases of actual breaches of the peace, as riots, affrays, assaults and the like, committed within the view of the constable, he should immediately interfere (first giving public notice of his office, if he be not already known), separate the combatants, and prevent others from joining in the affray. If the riot, &c. be of a serious nature, or if the offenders do not immediately desist, he should take them into custody, securing also the principal instigators of the tumult, and doing every thing in his power to restore quiet.

"A constable, in cases of assault which have not been committed in his presence, or within his view, is not authorized to arrest or assist in arresting the party charged, nor is he to receive a person so charged into his custody, unless the party has been arrested by some other constable who saw the assault committed.

"He may arrest any one assaulting or opposing him in the execution of his duty.

"If a person forcibly enter the house of another, the constable may, at the request of the owner, turn him out directly; if he have entered peaceably, but having no right to enter, and the owner request the constable to turn him out, the constable should first request him to go out, and unless he do so, he should turn him out, in either case using no more force than is necessary for the purpose.

"When the offence has not yet been committed, but when a breach of the peace is likely to take place, as when persons are openly preparing to fight, the constable should take the parties concerned into custody; if they fly into a house, or are making preparations to fight within the house, the constable should enter the house to prevent them, and likewise take the parties into custody; and should the doors be closed, he may break them open, if admission be refused, after giving notice of his office and his object in entering.

"If a party threaten another with immediate personal violence, or offer to strike, the constable should interfere and prevent a breach of the peace; if one draw a weapon upon another attempting to strike, the constable should take him into custody. If persons be merely quarrelling or insulting each other by words, the constable has no right to take them into custody, but should be ready to prevent a breach of the peace.

"The constable ought to arrest and take before a justice any person walking about the streets, and exposing to view in the street any obscene print or exhibition.

"If a party charged with a misdemeanor escape out of custody, he may be pursued immediately anywhere; and if he take refuge in a house, the doors may be broken open after demand of admission, and after notification by the constable of his office and object in coming.

"After arrest, the constable is in all cases to treat a prisoner properly, and impose only such constraint upon him as may be necessary for his safe custody.

"The constable is bound to follow the directions contained in a warrant, and to execute it with secrecy and despatch; the power given to him for the purpose of arresting has been already shown. If the warrant cannot be executed immediately, it should be executed as soon as possible afterwards.

The constable must execute the warrant himself, or, when he calls in assistance, must be actually present. Upon all occasions he ought to state his authority if it be not generally known, and should show his warrant when required to do so; but he should never part with the possession of the warrant, as it may be wanted afterwards for his own justification.

"Upon the arrest being made, the prisoner is to be taken before the magistrate as soon as convenient. When the prisoner is brought to the justice, he still remains in custody of the constable until his discharge or committal, or until the officer receives the orders of the justice.

"The constable may enter a house to search for stolen goods, having first got a search warrant from a magistrate for that purpose. He should, when it is possible so to do, execute it in the day-time. If he find the goods mentioned, he is to take them to a magistrate, and, when the warrant so directs, he must take the person also in whose possession they are found. To avoid mistakes, the person who applies for the warrant ought to attend at the search to identify the goods.

"The constable has power to apprehend and carry before a justice of the peace every common prostitute wandering in the public streets, public highways, or in any place of public resort, behaving in a riotous or indecent manner; every person wandering abroad, or placing himself or herself in any public street or highway, court or passage, to beg or gather alms, or causing or procuring or encouraging any child so to do, all such being declared

E

by the law to be idle and disorderly persons; every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence, and not giving a good account of himself or herself; every person wandering abroad and endeavouring, by the exposure of wounds or deformities, to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind under any false or fraudulent pretence; every person playing or betting in any street, road, highway, or other open or public place, at or with any table or instrument of gaming at any game or pretended game

of chance.

"In the cases above mentioned the constable has by law power to arrest.”

The advantage of having a warrant, or of acting in aid of an officer who has, is, that the constable or person aiding will not be liable to any civil action for its execution, notwithstanding any defect of jurisdiction in the justice, unless upon demand, previously made, he refuses to give a copy of the warrant. The party injured may then sue the magistrate, but not the officer (24 Geo. 2, c.44); and, further, even for an excess, the action must be brought within six months. Numerous cases are to be found in the books on this subject; but at present it will suffice to state that the officer is not within the protection of this statute, where without authority he executes the warrant out of the limits of the local jurisdiction of the magistrate who granted it, unless it were duly backed by a magistrate within the jurisdiction. Grave and very difficult questions have also arisen as to the degree of criminality, in those who in the course of resistance should kill the officers engaged, when it turns out to be an illegal warrant, and whether the crime would be murder or manslaughter (1 Russell, 621); but these cannot be discussed at length. Nor is it necessary, as if the parties are so far engaged in an unlawful act that

a private individual would be justified in arresting them, then the fact of the warrant being bad could not be a justification. Again, also, let it be remarked that where there is a general resolution against all opposers, whether such resolution appears upon evidence to have been actually and explicitly entered into by the confederates, or may be reasonably collected from their number, arms, or behaviour at or before the scene of action, and homicide is committed by any of the party, every person present in the sense of the law when the homicide is committed, will be involved in the guilt of him who gave the mortal blow.

It may also be safely laid down, that although an illegal arrest may be resisted, it by no means follows that if death ensues very severe punishment may not be inflicted. It would often amount to manslaughter, which may be punished by transportation for life, and it might even amount to murder. An officer or other aiding him is entitled to the protection of the law as a minister of justice, eundo, morando, et redeundo, that is, on his way to do his duty, whilst doing it, and also against all opposition on his return (see an instance, Reg. v. Phelps, 1 C. & M. 180). It should be added, that by the 65th section of the Metropolitan Police Act power is given to any constable to apprehend without warrant any person charged by any other person with committing any aggravated assault, if he shall have good reason to believe that such assault has been committed, although not within view of such constable. But that would seem not to apply to special constables, appointed under the 1 & 2 W. 4, c. 41, for the fifth section expressly limits the privileges to those "now" enjoyed, that, is at the time of the passing of the Act. (Compare 5 & 6 W. 4, c. 76, s. 76.)

E 2

CHAPTER VII.

SPECIAL CONSTABLES.

It has been already shown, what are the general duties and powers of those invested with the office of special constable. It remains to point out how they are appointed, and what are the particular enactments respecting them.

1. Appointment.] The statute under which this additional force is given to the civil power is the 1& 2 Will. 4, C. 41, s. 1 (a). It repeals 1 Geo. 4, c. 37, and enacts,

"That, in all cases where it shall be made to appear to any two or more justices of the peace, of any county, riding, or division, having a separate commission of the peace, or to any two or more justices of the peace of any liberty, franchise, city, or town in England or Wales, upon the oath of any credible witness, that any tumult, riot, or felony, has taken place or may be reasonably apprehended in any parish, township, or place, situate within the division or limits for which the said respective justices usually act, and such justices shall be of opinion that the ordinary officers appointed for preserving the peace, are not sufficient for the preservation of the peace, and for the protection of the inhabitants and the security of the property in any such parish, township, or place, as aforesaid, then, and in every such case, such justices, or any two or more justices acting for the same division or limits, are hereby authorized to nominate and appoint, by precept in writing under their hands, so many as they shall think fit of the householders, or other persons (not legally exempt from serving the office of constable) residing in such parish, township, or place, as aforesaid, or in the

(a) As to boroughs, see also 5 & 6 W. 4, c. 76, s. 83.