$ 8. ARREST IN What dan ble in killing. in John Macintosh's cafe. But if the refifter do alfo proGENERAL. ceed to offer violence, by drawing upon the messenger, in that cafe the meffenger may lawfully kill him, without the ger juftifies neceffity of proving that he would have been in danger of the confta- his life, if he had not killed; though private perfons cannot kill when they are invaded, unless they be by that invasion put in danger of their life. Though, therefore, an officer may no doubt kill, if it be neceffary to carrying his commis fion into effect; yet (obferves Mr. Hume) the rule, as far as can be gathered from our records, and in itself a falutary and reasonable rule, appears to be, that no violence is held fufficient which does not carry evidence with it to the officer that his life bhall come to be in hazard, if he perfifts in executing his warrant. According to any light with which the practice of past times fupplies us, the dread of a wrestling-bout or struggle, or even of a beating or bruifing in the juftify him. profecution of the fervice, fhall not be held a relevant de Will the dread of a wrestlingbout, or beating, fence; nor indeed any thing short of the preparation of lethal weapons against the officer, or of fuch a power and force as in the whole circumstances of the cafe plainly inform him that, but with the terror of his life, he cannot advance to do his duty c. THE difference, therefore, between an officer and ordinary man, lies here, an individual, to juftify his killing the invader, must be in actual and imminent danger of his own life as at the moment of killing, and fo fituated that unless by killing the invader, he has no means of escaping alive. But the officer fhall be acquitted, if at the time of killing, that danger be in near and manifeft preparation for him, fo as in reason to convince him that he shall come to be in danger of his life in the farther profecution of his duty, and although a May 11, 1612. Mr. Hume obferves this point, though among others, largely debated was not decided in this case. b Mackenzie, Crim. law, tit. Mur. der, No. 19. Ibid. 58. ARREST IN by deferting the fervice he might at once put an end to the hazard. A meffenger, for instance, bearer of a caption, if GENERAL. he find a poffe of the debtor's friends pofted at the door with drawn fwords, and refolute to oppofe his entry, may juftify advancing and firing upon them, though no thrust have yet been made at him, and before coming within reach of their weapons; for his life and theirs are not, in these circumstances, of equal value to the law; nor is he obliged to expose himself so far on their account *. killing, in warrants. In executing criminal warrants, the officer's powers are Power of ftill broader. By the law of England, where a warrant if the cafe of fueth against a perfon for a felony, and either before or af- criminal ter arrest he flies and defends himself with ftones or weapons, fo that the officer muft give over his purfuit, or otherwife cannot take him without killing him, if he kill him it is no felony; and the fame law is for a conftable that doth it by virtue of his office on hue and cry. But the party ought to have information of the reafon of the purfuit, viz. that there is a warrant against him; and it must be a cafe of neceffity, but not fuch a neceffity as in the former cafe, (a warrant for a trespass, or a breach of the peace), where an asfault is made upon the officer; but this is the neceffity, what nenamely, that he cannot otherwise be taken . But though a neffityjufti private perfon may arrest a felon, and if he fly fo as he can- ftable? not be taken without he be killed, it is excufable in this cafe for the neceffity; yet it is at his peril that the party be In the cafe of private a felon; for if he be innocent of the felony, the killing (at perfons? leaft before the arreft) feems to be at least manflaughter: for an innocent perfon is not bound to take notice of a private perfon's fufpicion; although whether innocent or not, he ought to yield himself to the officer of the law, and answer to the charge on record against him; but that the practice 2 Hume, Crim. law, vol. i, c. 6, § 4. 2H, H.p L. p. 118. Burn, Arrest. 2 H. H. p. 119. Burn. fies the con § 8. ARREST IN Is the law the fame here with that of England? of Scotland fhall in all points be governed by the fame conGENERAL. fiderations, and in particular that it fhall make the fame allowance in cafe of the felon barely flying from the warrant of Scotland that is out against him, cannot perhaps be affirmed a. The above-mentioned act 1662, c. 6, impowering justices of peace, &c. to make "all the fenfible men in the parish con"cur with them in purfuit of goods way-taken, and the "waytakers thereof," declares, that in "cafe it shall hap66 pen the parties, whofe goods are taken, or those that are "obliged to rife with them in manner forefaid, to flay, hurt, "mutilate, in the faid pursuit, the waytakers or their affo"ciates, yet notwithstanding they fhall never be drawn in "question, nor liable in any pursuit, civil or criminal, for "faid flaughter, mutilation, &c. but are hereby as freely "remitted as if they had our fovereign lord's fpecial com"miffion for that effect "." The general act, paffed "for "removing all question and doubt that may arise here"after in criminal pursuits for flaughter," among other instances of juftifiable homicide, states the three following homicides," in time of manifeft depredation, or in pursuit of "denounced or declared rebels for capital crimes, or of such "who affift and defend the rebels and depredators by arms, "and by force oppofe the purfuit and apprehending of "them." These masterful depredators were bands of Highland thieves, who so late almoft as 1745, were in use to make incurfions into the low country, and carry off whole herds of cattle in a masterful and warlike manner. These lawless bands, as alfo declared and denounced rebels for capital crimes, the act authorifes the inhabitants to attack, and even kill, in the pursuit, although they were not in a posture of violence or defence d. But betwixt these two claffes and the third, viz. those who aid and affift, the act makes this diftinction, that the latter it is not lawful to kill, unless C 2 Hume, Crim, law, vol. i, c. 6, §. 3. © Cha. II, parl. 1. feff. 1661, c. 24. Cha. II, parl. 1, feff. 2, c. 6. d Gardenstone, MS. Murder. § 8. ARREST IN they refift with arms, and oppofe the apprehenfion of the criminals with force; whereas the former, like public ene- GENERAL. mies and outlaws, may be killed when running away. But in the cafe of officers of the law and their affiftants executing a criminal warrant to apprehend one, even upon the accufation of a capital crime, no decifion has yet gone the length of justifying the flaughter of the party who seeks his fafety merely by flight". * Lord Gardenstone, in his manuscript, tit. Murder, fays it is clear that officers of the law are not justifiable to kill one who flies away. CHAP. IX. I. THEIR ORI GIN. I. E Of Commissioners under the Comprehending Acts. VERY man, in return for the protection he receives from the ftate, is bound to yield military service when neceffary for its defence. This duty is coeval with the national union. In Greece and Rome every freeman was a foldier; and (though the training was not fo systematic and regular,) the fame was formerly the cafe in all the European nations, and particularly among the warlike inhabitants of this ifland. In England commiffions of array levied the peafantry of the different counties; and in Scotland they were led by the fheriffs, either immediately or more remotely, as the vaffals of feudal fuperiors. And although the feudal laws always ftrove to appropriate the vaffals to their respective chiefs, and separate them from their general allegiance to the state, yet not even in France, at the very height of feudalism, did the king relinquish the right in cases of great emergency, to call immediately for the fervice of all the lieges, whether holding of the crown or others. The term ban a Arrierban est extraordinarium. Si quando reipubliciæ neceffitas exigit. Craig, De feud. lib. ii, dig. 12, § 36. b Ban. A Saxo pan pro extenfo et was derived from expanfo: videntur radicem fumere, inde pan, ban (quibus alii d adjiciunt in fine) pro vexillo. (Spelm. Gloff. ad vocem.) |