T excessive misery of the wretches themselves, oppressed with want, and sunk in every species of debauchery, and the loss of so many lives to the public, are obvious and immediate consequences. There are some more remote, which, however, need not be mentioned to the discerning. Among other mischiefs attending this wretched nuisance, the great increase of thieves must necessarily be one. The wonder in fact is that we have not a thousand more robbers than we have; indeed, that all these wretches are not thieves must give us either a very high idea of their honesty, or a very mean one of their capacity and courage. Where then is the redress? Is it not to hinder the poor from wandering, and this by compelling the parish and peace officers to apprehend such wanderers or vagabonds, and by empowering the magistrate effectually to punish and send them to their habitations? Thus if we cannot discover, or will not encourage any cure for idleness, we shall at least compel the poor to starve or beg at home; for there it will be impossible for them to steal or rob without being presently hanged or transported out of the way. SECT. VII. Of apprehending the Persons of Felons. I COME now to a third encouragement which the thief flatters himself with; viz. in his hopes of escaping from being apprehended. Nor is this hope without foundation: how long have we known highwaymen reign in this kingdom after they have been publicly known for such? Have not some of these committed robberies in open daylight, in the sight of many people, and have after ward rode solemnly and triumphantly through the neighbouring towns without any danger or molestation? This happens to every rogue who is become eminent for his audaciousness, and is thought to be desperate; and is, in a more particular manner, the case of great and numerous gangs, many of which have, for a long time, committed the most open outrages in defiance of the law. Officers of justice have owned to me, that they have passed by such with warrants in their pockets against them without daring to apprehend them; and, indeed, they could not be blamed for not exposing themselves to sure destruction; for it is a melancholy truth, that, at this very day, a rogue no sooner gives the alarm, within certain purlieus, than twenty or thirty armed villains are found ready to come to his assistance. On this head the law may seem not to have been very defective in its cautions; First, by vesting not only the officers of justice, but every private man, with authority for securing these miscreants, of which authortty it may be of service to the officers, as well as to the publick in general, to be more particularly informed. First, by* Westminster I. Persons of evil fame are to be imprisoned without bail. By the statute of Winchester suspicious night-walkers are to be arrested and detained by the watch. A statute made in 5 Edw. III. reciting that many manslaughters, felonies, and robberies, had been done in times past, enacts, that if any person have an evil suspicion of such offenders, they shall be incontinently arrested by the constable, and shall be delivered to the bailiff of the franchise, or to the sheriff, to be kept in prison till the coming of the justices. The 34 § Edw. III. gives power to the justices of peace, inter alia, to enquire of wanderers, and such as will not labour, and to arrest and imprison suspicious persons, and to take sureties of the * Westm. I. chap. xv. 5 Edw. III. chap. xiv. + Winton. chap. iv. § 34 Edw. III. c.i. good behaviour of persons of evil fame, to the intent, says the statute, that the people be not by such rioters, &c. troubled nor endamaged, nor the peace blemished, nor merchants nor others passing by the highways of the realm disturbed, nor put in peril by such offenders.' Secondly, by the common law every person who hath committed a felony may be arrested and secured by any private man present at the said fact, though he hath no general nor particular authority, i.e. though he be no officer of justice, nor have any writ or warrant for so doing; and such private man may either deliver the felon to the constable, secure him in a gaol, or carry him before a magistrate *. And if he refuses to yield those who arrest may justify beating him; or, in case of absolute necessity, killing him . Nor is this arrest merely allowed; it is enjoined by law, and the omission, without some good excuse, is a misdemeanour punishable by amercement or fine and imprisonment §. Again, every private man may arrest another on suspicion of felony, though he was not present at the fact. But then, if the party arrested should prove innocent, two circumstances are necessary to justify the arrest. ist, a felony must be actually committed; and, 2dly, there must be a reasonable cause of suspicion ; and common fame hath been adjudged to be such cause **. But in this latter case my lord Hale advises the private person, if possible, to have recourse to the magistrate and obtain his warrant, and the assistance of the constable; for this arrest is not required by law, nor is the party punishable for neglecting it; Hale's Hist. P. C. vol. I. Hale's Hist. vol. I. 588. Lamb.l.ii.c. 3. Dalt. 403. Hale's Hist. vol. II. 80. + Hale's Hist. vol. ii. 76. 587. vol. II. 77. Hale, vol. I. 588. ** Dalt. 7. + Pult. 10. a. vol. II. 76, 77. 3Hen. Vil c.i. 5 H. VII. 4. 5. and should the person arrested, or endeavoured to be arrested, prove innocent, the party arresting him, &c. will, in a great measure, be answerable for the ill consequence; which, if it be the death of the innocent person occasioned by force or resistance, this will, at least, be man-slaughter; and if the other should be killed in the attempt, this likewise will amount to man-slaughter only *. Again, any private person may justify arresting a felon pursued by hue and cry. This, as the word imports, is a public alarm raised all over the country, in which the constable is first to search his own vill or division, and then to raise all the neighbouring vills about, who are to pursue the felon with horse and foot. And this hue and cry may either be after a person certain, or on a robbery committed where the person is not known; and in the latter case those who pursue it may take such persons as they have probable cause to suspect, vagrants, &c. This method of pursuit lies at the common law, and is mentioned by Bracton ; and it is enforced by many statutes, as by Westm. 1. All are to be ready at the summons of the sheriff, and at the cry of the county, to arrest felons as well within franchises as without.' By 4 Edw. I. Hue and cry is ordered to be levied for all murders, burglaries, men slain, or in peril to be slain, and all are to follow it.' And, lastly, the statute of Winton enacts as we have seen before. And this pursuit may be raised, 1. By a private person. 2. By the country without an officer. 3. By an officer without a warrant. 4. By the warrant of a magistrate. And this last, if it can be obtained, is the safest way; for then all who assist are enabled by the statutes 7 and 21 Jac. to plead the general issue T. *Hale's Hist. vol. II. 82—3—4. Hale's Hist. vol. II. 103. #Cap. ix. Hale's Hist. vol. II. 101. § Lib. iii. c. i. Hale's Hist. vol. I. 405. vol. II. 99, 100. The common law so strictly enjoined this pursuit, that if any defect in raising it lay in the lord of the franchise, the franchise should be seized into the king's hands; and, if the neglect lay in the bailiff, he should have a heavy fine, and a year's imprisonment, or suffer two years' imprisonment without a fine*. And now, by a very late statute, If any constable, headborough, &c. of the hundred where any robberies shall happen, shall refuse or neglect to make hue and cry after the felons with the utmost expedition, as soon as he shall receive notice thereof, he shall, for every such refusal and neglect, forfeit 51. half to the king and half to the 'informer.' Now hue and cry is of three different kinds : 1. Against a person certain by name. 2. Against a person certain by description. 3. On a robbery, burglary, &c. where the person is neither known nor capable of being described. When a hue and cry is raised, every private man. is not only justified in pursuing, but may be obliged, by command of the constable, to pursue the felon, and is punishable, if he disobey, by fine and imprisonment. And in this case, whether a felony was committed or not, or whether the person arrested (provided he be the person named or described by the hue and cry) be guilty or innocent, or of evil or good fame, the arrest is lawful and justifiable, and he who raised the hue and cry is alone to answer for the justice of it §. In this pursuit likewise the constable may search suspected houses, if the doors be open; but breaking the door will not be justifiable, unless the felon be actually in the house; nor even then, unless admittance hath been first demanded and denied . And *Fleta, l. i. c. 24. ad Init. Hale's Hist. vol. I. 58. vol. II. 104. † 8 Geo. II. c. 16. § 29 Ed. III. 39. 35 Hen. IV. Pl. 24. Hale's Hist. vol. II. 101--2. I lb. 102, 103. |
