IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^^US. ^= itt Bi 12.2 11.1 l.-^KS \m ^ ii4 i Scmces Corporalion ¥j^ '-4 ^. 23 WIST MAM STRIIT WnSTn,N.Y. 14SM (71*) 172-4503 i\ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Inatituta for Hiatorical Microraproductiona / inatitut Canadian da microraproductions hiatoriquaa Tachnical and Bibliographic Notas/Notat tachniquas at bibliograpliiquaa Tha instituta has attamptad to obtain tha bast original copy availabia for filming. Faaturas of this copy which may ba bibliographically uniqua, which may altar any of tha imagas in tha raproduction, or which may significantly changa the Uk.ual mathod of filming, ara chackad balow. 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Maps, platee. charts, etc.. may be filmed at different reduction ratioe. Thoee too large to be entirely included in one expoaure are filmed beginning in the upper left hand comer, left to right end top to bottom, aa many framee ae required. The followtoig diagrame illustrate the method: Lee cartee. planches, tableaux, etc., peuvent Atre filmAe A dee taux de rAductlon diff Arents. l.orsque le document eet tiop grand pour Atre reprodult en un seul ciictiA. 11 est fiimt^ A partir de I'angle supArleur gauche, de gauche A droite, et de iMut an bee, en prenent le nombre d'imegee nAceesaire. L«e diegrammas sulvsnts INustrent le mAthode. ilure. 1 2 3 6 AN EIXG Tl JURYC HIS wi AS ORIGI rBUSHEO J «PWWB?W mm St THE lANADlAN CONSTABLES' ASSISTANT: JEING THE SUBSTANCE OF A CHARGE TO THE GRAND JURY OF THE COUNTY OF SIMCOE, AT THE APRIL SESSIONS, 1852. BT HIS HONOUR JUDGE GOWAN: 5//4^ WITH NOTES AND ADDITIONS BY JAMES PATTOX, ESq., BABIUITU-Ar>LAW. AS ORIGINALLY PUBLISHED IN THE «BARRIE HERALD/* vmt ' " i^ '»fwy<«arw?iw;»ryt'N^^'v^^WV^'«'«'a'W^ «^*-«r^^A « i tf-f. Cautions herein... AS THE OFFICER OP JUSTICES OF THE PEACE ' 1. Acting on verbai order .2. Acting tinder ordinary icarratU* . . . ' 1. His duty on receipt of warrant. 2. Execution of the warrant 3. What an arrest 1. How made 2. Resisting officer 3. Duty after arrest 4. General Directions 3. Acting under seardt icarrant. !1. Mode of executing it. . . 2. Proper precautions 3. Disposal of goods taken. 4-. Acting under other process fl. Service of summonses 2. Execution of distress warrant.*.. 3. Execution of warrant of commit- ment PAflBf. 15 to 46 1» IS IS 15 to SI 16Jel7 16 16&17 17 17 17 17 18 to 21 18 19 20 20Jk2l 21 to S3 21 22 to 28 22 23&24 25 25 25&26 27 27 28 28 28 28 29 to 32 29 SO . 32 I! » ; '4. IN RBtPCCT TO RIOTS, ROUTBI, KTC...> 5. in RESPBrT TO BHEAKINC OPEN DOOR*. 1. Cautions herein 2. JTie nde of law 1. The reHtrictions 1. Wiuitdoora 2. What dwelling 3. For recaption [ 4. The right to break out 3. TJie demand for admittanct. 4. Anting without warrant >•• (^ 5. Acting under warratU •••« 6. ACTING VNDER PARTICULAR ITATVTBB... «. 1. Authorising arrest wit/tout warrant Of party found committing ofllenee.. On suspicion of offence committed.. On suspicion of tendency to commit. 2. In respect to Distress for Rent 3. Requiring aid to ottier Public ofpcera.,. . . [. Autl I. In r ^7. DUTIES IN RESPECT TO CORONERS. •.•.... IV. THE CONSTABLES REMUNERATION V. PROTECTION TO CONSTABLES. ' 1. ACAINHT CRIMINAL RRRI8TANCE. 2. AQAINST CIVIL PROCEBDINOS. .. rA«t«. S2to3!» 35 to 87 3» 35 35 3tf 86 86 86 36 37 37 37toU 37 38 39 39 40to4i 42 to 44 44 to 46 46 to 50 50 to 52 50&5I 51&52 VI. CONCLUSION. it «*i'^*<^i'^*<*i'»"*«*« »«>»?»v^'wt?'*e sgainai tlie office or constable — ^an office as old as tlie monaichy of Eogtand — the cause or which in this country it is difficult ta undentand. Tliesc useful agents, in the ])rotection of the public against outiage and depredations, are not a ckiss ajiurt Crom tlie inhabitant* at large ; they are ap|iointcd from amongst the |ieople, continue amongst them, and arc ideati/inl witli the {leople, and are not compellable to aerve beyond a limited time. Protectors of the property and lives of the Queen's subjects against internal outrage, Uiey are cngagied in a mi Jess resjKsctable profession than the soldier vho opposes, fineign aggression ; and it is manifestly the interest of all to uphold theoffioe in a resiiectuble position, so as to correspond with the great and exten» Rive authority the law ha« annexed to iL Men respected in the neigh- bourhood they are taken from, men of decent means—'* the abler soit ofrouu** — sliould be selected, and doubtless, would not unwillingly in turn bear the burden of acting, if Uie respectability of the oflbse Mfas properly appreciated and uj^ld. Thank God tee require no organized semi-military fince, with deadly weapons in their hands, to uphold the domiaioa of law — but Peace Officers may not be dispensed witli. Peace is essential to tiM existence of society, it is the foundation of every tonporal Ueaung; and in proportion to tlie honesty, knowledge, and ability orthe* ) To C. D., of th o -in the said Coanty, yeoman, Tc ^rit t ) Whereas, A. B., late petty constable of th o is dead, whereby the said— —is at present destitute of a constable to execute warrants, aed to keep the Queen's peace. Now we , an d ' , two of her Majesty's Justices of the peace, ia and for the said County o f do hereby constitute and appoint you, the said C. D., petty oonatable in and for the said , to serve her Majesty in that office, until the usual time of appointing a new constable, — the next April Sessions. This appointment being subject, nevertheless, to confirmation by the Justices at their next en- suing Sessions of the Peace for the County. And you are hereby required, personally to appear before a Justice of the l^eace for this County, to taice the oath of a constable. Given under our hands and seals, a t > this day of > in the year of our Lord, 18— .] [L.S.] [L.S.] ] Special Constables are appointed in another way, and so also are con»tab1cs for citip^i, &;c. [When tho apjwintmonls ore made at tlie April Sessions, it becomes the duty of tho Clerk of tlie Peace to pre- lorea notice to each constable informing him of his appointment and requiring him to take tho necessary onth before some Justice of the Peace. In practice it is usual to noail these notices, to the address [of each constable, but to insure the timely receipt of tho notification, I and to secure full proof thereof, in case df prosecution for refiuing to [serve, the correct proceeding is to transmit to the Chaimum of the ' Petty Sessions in tiio township or place, or if no Petty Sessions be { established there, to the Senior Justice, the notices for the persons [appointed constables for his Division that Uiey may be duly served [on each person. For the service of each notice the officer employed I will be entitled to a fee of turo shillings and sixpence.] j — '. '. , _i — '. 1 -*. [tratn getmMy sIkhiM attend this Stwuons, or at least submit the names or persona in I (heir several localities, whom they'rould recommend to the Court lor appointmfttt. ■■: I A Coiifttable, on being lloUflM of his appoidtirhMt,8Koaid'gd' ibrthwith to th« nearest Magistmtoi who will administer to Him 'the oath of office. (The oath is as follows : — . « Yoa shall well and tmly serve our SoToreign Lady thS'QAiten, in the' ** Office of Conitable fi>r the ' ' " of » ' for the year eiuoing, according *(to the beat of yodr«kUl and knowledge.— So help you Gdd.''— (See Stat., 33 Geo. in., Chap.- 2, Seo. 10.) This form of oath should properly be entered in the Magistrate's Record Book, be subscribed by the constable, and the day of swearing noted. When all are sDvxmi a list should be made out, and trans- mitted by the Magistrate to the Clerk of the Feace to be filed. If irequired the Magistrate ioan endo^ qn the notification of the Clerk of the Peiuse a iitehiotnndum of having adjoiinistered the eath : it may bis in theSelxrords: t^uSuainttothe Statute in that behalf, and in accordance with the within ^rritten iutice, the therein named "■ - was duly sworn in as a Constable far (he ' " i"bymeatthetownof-*--— -thisdayof A. D. 18 , .J. F., County Simcoe. ] t&w ajppointmeiU determned.} — ^T e term of office is for one year, but constables are to be removed for good causo by the same authority which appointed them — tlio Justices in General or Quarter JBessions assembled. Refusing to Ant,} — If a constable duly appointed and notified, refuse to take the necessary oath, or refuse to execute tlie office, he is guilty of a serious oflence, and mny be punished by fine or imprison- inenU It is not necessary there should be ali actual refusal, for if tho party does not attend a Mugistmte to be sworn in, or afterwards docs not execute his office, it is evidence of his refusal to do so ; and for this he may be indicted either at the Assizes or Quarter Sessions. [If a constable refuses to be sworn, a Justice of the Peace may at once bind him over to the Assises or Sessions to answer for the contempt ; but there is no power Vested in Magistrates to punish by sniunmry con- viction; ^BunCSf iiWe ** ComtabU^) except in thocuso of Special Constables, with respect to whom tliero are tlie followiug provisions : ** And be it enacted. That if any person between thu ages of eighteen " and'sixty, upon being required to be awom in as a Special Constable, by " tony Justice of the Peace, upon any such occasion, shall omit or refuse to « be so Rwom, unless for sdme cause to be allowed by such Justice at the time, ** such person shall bfs guilty of a Misdemeanour, and it shall bo lawful for ** such Justice thereupon, to record the refusal of such person so to be sworn, « and to adjudge him to pay a fine of not more tluut forty sliining.'of forthwith before ** the said Justices m rcqnirins; him, and to forfeit and pay mich sum of " money not exceeilin; five poiiad* as to tho said Justices so rcquirins: him '* shall seem meet ; and if any pcrmn being appointed a Special Constable as •< aforesaid shall neslect or refuse to appear at the time and place for which " he sliall be summoned for the purpn.w of taking tlio said oath, ho shall be ** liable to he onnrictetl thereof Njtnrc the Justices so appointing him or any <• two of thrni, or betbrc any other two Justices of tho Peace acting for the " same liniiLt, and to forfeit and pay such sum of money not exceeding five '< pounds as to the convicting Juxticos shall seem meet, unless such peison « shall prove to the mntisfaction of the said Jnsticcs that he was prevented by « sickness or such other unavoidable accident as shall in the juilgment of the ** said Justices be a suiCcient excuse.** — (Stat 10th and Ulh Vic. cap 12, Sec. 5.) IPCCLIL C0K8TABLES« ^orthr prcscf rattan of thr j)mrc.'\ — By the Ulh nnd I.itli Vic. chap. 77, Milit:uy nnd Nar.il reusionctsi, unrolled umler Imperial Acts as a lonil police force. Sec, in any {Kirt of tlie Province are dc> clarrd to he coiutaUcs and [ .mcc officers lor the locality in which they are cm|tloyed, with all the |io\vcrs and authority and obligations of sncli office (except as therein {nvvided), and as an org:inizrd Police force Ihcy may he ciuployod. when re«|iiircd, to aid the Civic power in the prcscmition of the Peace. There arc several sUitntes under which Special Coustahles UKiy be apjHuntrd ; amongst them may be named the '^ Election Act,** 12 Vic. chap. 27, and the ** Public Meet- ings'* Act/* 7 Vic. chap 7, liotu eminently valuable enactments ; but the 10 and 11 Vic. cimjt. 12, is a statute {nrticularly rchiting to Spccioi CoHstabUs. m»9 wwfy be apfwinied.'] — I'ndcr the Act 7 Vic. diap. 7,— com- monly calletl the ** Baldwin's Public Meetings' Act" — for the purpose of keepin*; the public peace, and prcser>'ing good order at meetings culled under its provisions, the Chairman of the meeting is enabled to command the a!!9$istancc of pence oflicers ; an«l any .Tustice of the Peace present at the meelin;; is requireil on the written application of the person i^resiiliiig thereat, to swear in such a number of special constables a<» such Justice may deem uccc.-s.'sary for the preservation >1 I '; li I I of the puUie peace at the meeting. And if oNjf ONff, betueen tkt m§$ of eighteeH and tizty, omit or refuse to be sworn in as a qweial constable, it is a misdemeanour, subjectmg the party to punishment on immediate conviction recorded, or by indictment to be afterwaidi prefened. Altliough the terms used are so comprehensive, I incline to think they must be underatood, subject to restriction of persmis, even if within the prescribed age ; persons cngngcd in employments not quite compatible with the duties of a coustablc, as Clergymen and Magis- trates, persons weak of body, and (clearly) women, would not be liable to appointment ; but as it is not at all likely that a Magistrate would coll upon a clergyman, or a woman, or other imfit persons to act, I need not dwell upon the question of exemption. It would in my judgment be advisable for parties called upon, even if above the exempted age, to act, if at all able ; for at public meetings the moral influence of on old and rcsix>ctable settler thus standing up in the cause of law and order, may often have a more beneficial efieet tlian the strong hand. A word of caution ! Persons present at pttb> lie meetings have generally an opinion one way or the other on the matters discussed ; those called upon to act as sworn conservatois of the ))eace, slioidd not allow their opinions to afiect their duty: that should be j)crforraed " tntltout favour ^ tcithmtt malice^ tnthmit affeetiim, wUlunU ill-wUlJ* They should know no one as of their ** party ** or against it — all such distinction should be laid aside ; and Uie call of peace and order should make them deaf to party tcaUkvmrd amt ay. The very appearance of partiznnsliip is to be avoided ; for a cimstmUe becoming a partizan, forfeits the protection the law otherwise aflbids him. Under the Election Law, another of Mr. Baldwin's Acts, eveiy Returning Officer and Deputy Returning Officer, fitnn the time of taking tlie oath of office until the day next after the final closing of the Election, is a conservator of tlie peace ; and (or the maintenanee' of the peace and of good order at the election may require the assist- ance of constables and others present thereat, and is also e m powered to swear in so many special constables as he may deem necessary. The persons liable to be called on should (to form a hasty judgment be of the class from which the ordinary constables are taken. The caution just given against bias or portizanship will apply wjlk equal foreehoe. Under the Special Constabla^ AtX in cases of tursult or ftloBj committed, or continuing, or reascmably to be aj^piehended, and the ordinary officers are not sufficient for the pres(»vatioa of the pcee^ T 10 twoorinureJudtices may appuiat rnN^tn/ luntaefiotdersotiAherpemoM (not exempt from serving the ofRce of constable,) to act as apeeial constables for such time and in such manner as to the Justices dioiUd seem fit for the preservation of the public peace, and the protection of the inhabitants and their proiierty ; but sickness, or such other un- avoidable accident, is admitted as a ground of refiisal. How appointr'i.'j — ^It will be under8t> lod from what has been said, that special constables are, under tlie " Puk.!ic Meetings* Act,** to be appointed and sworn in by a Magistrate ; under the "Election Law," by the Returning Officer or any Deputy Returning Officer. Under the former Act there must be a written application to a Justice of the Peace to appoint constables ; but under neither of thesti Acts does it seem ab- solutely necessary thut the appointmentof a special constable should be in writing : nevertheless, where possible, it is better and safer for the constable, if it be so. Under the " SjMicial Constables' Act,** the ap- pointment must be by two Justices at least, and by precept in uniting under their hands — and those appointed may be removed for miscon- duct or neglect. Persons wilfully refusing to act, or to obey ordera, when sworn in, are made liable to severe penalties. [This is the provision con- tained in the fillli and sixth sections of Statute 10th and 1 1th Victoria chapter 12: ** And be it enacted. That if any person being appointed a Special '* Constable as aforesaid, shall refuse to take the oath hereinbefore mentioned •< when thereunto required by the Justices of the Peace so appointing him, ** or by any two of them, or by any other two Justices of the Peace acting for *' the same limits, he ohali be liable to be convicted thereof forthwith before *' the said Justices so requiring him, and to forfeit and pay such sum of ** money not exceeding five pounds as to the said Justices so requiring him <* shall seem meet ; and if any penon being appointed a Special Cmtstable as " aforesaid shall neglect or refuse to appear at the time and place for which '* he shall be summoned for the purpose of taking the said oath, ha shall be *' liable to be convicted thereof before the Justices so appointing him or any ** two of them, or before any other two Justices of the Peace acting for the same *< limits, and to forfeit and pay such sum of money not exceeding five pounds as *' to the convicting Justices shall seem meet, unless such person shall prove *' to the satisfaction of the said Justices that he was prevented by sickness er '* such other unavoidable accidents as shall in the judgment of the said Justices <* be a safRcient excuse.'* ** And be it enacted. That if any person being appointed a Special *< Constable as aforesaid, and being eaJled upon to nerve, shall neglect or •* refuse to serve as such Special CooHtable, or to obey such lawful orders or " directions as may be given to him for the performance of bis officct every II I** pflnon ao offending ahoU, on conviotioa tUraof befora any two JutlioM of » llw Pow«, forfeit and pay for ovary auch neglect or refusal auch aum of ** money not excetsding five pounds, as to the said Juaticea ahaU seom moot t ** unless such person sliall provn to the satisfaction of the said Juaticea that bo ** was prevented by sickness or such other unavoidable accident aa ahall ia •• the judgment of the said Justices bu a sutfioiont exouao." The following is a rorm of Reqitiailiou to Magistrates to swear in constables under the '< Public Meeting's Act :" To ■■ one of Her Majesty's Justices of the Peace in and forth* County of — — WuisBAS the Public Meeting no>r here holden [** for " lie., (stating tbo objecU of the meeting) or ** the objecta whereof are set forth in the printed notice thereof hereunto anne.\ed,(u)"] huth been called [or ** declared to be") and is a Public Meeting under and by virtue of the proviaiona of the " PuUie Meeting'a Act" (7th Vic. chap. 7), and the said meeting and all persona at- tending thereat are within the protection of the aaid Act Now (6) with a view to the preservation of the peace at the aame, I — — — being the persoa required by law [or ** duly appointed"] to preside over the same, do reqiieat and in Her Majesty'a name require you forthwith to appoint and awear in such a number of fit and proper persons as special constables aa you may deem necessary for the preservation of the public peace at aaid meetiiig. Dated at the Town of thia . dayof- A. 0. IS— The appointment of Special Constables by the Magistrate may be endorsed on this Requisition as follows: (c)To , , > and . In pursuance of tho within requisition, and under the authority of the Act seventh Victoria ehapler seven, I have constituted and appointed and do hereby constitute and appoint each of you a Special Constable to keep the peace and preserve good eider at the within mentioned meeting, now here holden, and you and each of you are required forthwith to appear before me and take the oiuh required by law as auch Special (Tonatablea, Given under my haod and aeal at the Town— of—— this — — day of A. D. 18— , J. P. [L.S.1 The Magistrate can read this appointment aloud, and those named therein are bound to present themselves instantly before the Magistrate to be sworn in. This form of oath will answer to be administered; (a) It will be better in all cases to annex a copy of the Notice of the Maetiag, and it is rccommendsd that a form of Requisition should be picpaied befcrdiaad ready fcr aignatnre. (b) Ifa collision or breach of the peace ikot taken placei er olhar circomrtaacaa exist m^tiogthe necessity for the appointment of Peace (Mkeia moreyrfcnt, the htH^ 'may be here set forth, inserting the word <• tktrt/ore' t^M rtaiiag thasa. (c) This form may also be conveniently prepared bcfbrehaad. it [Voa anJ ewh of yoa do iwear, that you will well and truly Mr?* oar Soreraign Lady the Queen, in the office of a Special Conitable, without fiiTaar or affection, malice or ill-will ; and that while you continue to hold tbeoffio* you will to the best of your knowledge and ability, diaoharge the duties thereof faithfully according to law. So help yon God. The names of those sworn in should be noted by the Mngistmts. The appointment imder tlie l^th Victoria chapter 27, may be as fidlows: To , , and ^By Tirtue of, and in pursuance of the power and authority be!'«nging to and vested in me, under and by Tirtue of an Aet pasaed in the tweldh year of tlie reig^n of Her Majesty Queen Victoria, entitled ** An Act to repeal rr- lain Acts therein mentioned, and to amend, consolidate •nd reduce into one Act, the several Statutory provisions now in loree ibr ths regulation of Members to represent the People of this Province in the Legie* lative Assembly thereof.** I , Returning Officer, [or « Deputy Re« turning Officer "] for the County of [or " the Township of ^»»1 duly appointed and sworn according to tlio provisions of law in that behalf^ have constituted and appointed, and do hereby constitute and appoint eaeh of you a special constable, to maintain the peace and preserve good order at this present election, and until the final closing of the same, [or ** until the final closing of the poll for this Township of ——"'] and you and eaeh of you, are required forthwith to appear befoie me and take the oath required of you by law as such special constables. Given under my hand and seal at the Town — — of this — ^— day of A. D. 18— ' , Betuming Oflleert [or Deputy Returning Officer,] for the . The directions respecting swearing in, and the form of oath above given for constables appointed, trader the Public Meeting^ Act, will be applicable to constables appointed under the Election Law also. The following is a form of appointment under the Act lOth and 11th Vic, ch. 12. («) To — — — , , — — » and < . Forannuch as it hath been made to appear to ua- ■and ' tices of the Peace for the County of being honest and credible persons persons to the number of »aid— — and— ^ -, Esquires, two of her Majesty'k Jv -, on the oaths of and — that— — » f —> and divers odMr arul more [or ''that divers persons to the unknown, to the number of or more**] at m the said County(6) unlawfully, riotously, and tumultuously, did meet together («) TUs ionn may serve as a guide in finning the Inibnnatian on whidi the appointment of ^leeial Constables is to be groonded. (6) The grounds and dmunsianccs, must of coarse, greatly vary, bet it is aaly suchasareitetedinthelintcUneorthe Act which will warrant the interftfeMt ef Magisiiatcs thereunder, IS and have agreed together to commit on the flo the diaturbance of the public peace, and being ao ■nlawfnllyy riotavalyy aal tumnltttoualy aaaembled together, did [(iiere aet out the riotoua acta) a$ ** jrlaitt themaelvea in tlueatening attitude! with aticka, pistole,** fcc.,(aatlMea80iiiaj he) ** and threaten to boat, maim, or kill" (aa it may be) " one - ■ *» er * actually beaten, maimed," ke., (according to the (acta) « and now remaiii together conducting themselTea in a riotous and inmuhuoua manner M thia terror of the Queen'a aubject^, and great disturbance of the pnblie peiee, aad breach thereoP' or * (in case of apprehended riot, aAer the * add)" that they have good grounds and foundation for believing, and do verily believe that ', and other evil disposed persona meditate and blendf day of at — — a great riot (or « breach of the peace") by (state the acts intended)] and whereas we the said Justices find, are of opinion and believe that the ordhuuy officers appointed for the preservation of the peace in the said ■aw nM aufficient for the preservation of the peace and protection of the inhabitaata Or the security of property in the said ■ . Now therefore «re the aaid Justices under and by virtue of an Act passed in the twelfth year tof th« reign of our Sovereign Lady Queen Victoria entitled « An Act to amend tba La-#s relative to the appointment of Special Consubles, and for the better preservation of the Peace," have nominated and appointed, and do hereby nominate and appoint each of you a special constable under and lor Aa purposes of the said Act, to act as special constables and to serve Her Mqesty in that office for the period of ■- days from the date hereof {or ** aatal lawfully discharged from the said office) (a)— and we do hereby eommaad and require you and each of you personally to appear before ua or one of ui^ or before some other of Her Majesty's Justices of the Peace for the said Cooaly to take the oath of office required by law of you as such special conataldes. Given tmder our handa and seals at the Town -of ■ -ttda day of A.D. 18-<6) CL.S.i RegulatioHt in respect to.]— This last Act, [10th and llth Vie. chap. 12] is a most important one. Special Constables sworn iln under it, are bound to act for suA time and in such manner as the Justices think fit ; not only, in the Township or place fbr iHueh ->J.P. -,J.P. («) The fitrt Sectioa of the Act authorises Magistntes to appoint « Jbr sBch Ifane as to the Justices may seem fit awl necesiaiy.*'-^t has been adjudged whsnaeoa* stable wtt appointed tot an indefinite time, his authori^ eootiaued until apsckdiy ie> 'termincd.— (R. n. Forter 9 Car. aad P. 778.) (i) This form may seem long, and it might be that a simple appointmsHt widi> eut any preamble or reason assigned would be suflkicnt, but suqdusaga will not vitiate. The Editor ventures to suggest, that Magittntes who apprriwnd being caOad into action under thia statute, should make out a private list of perMnsta beappoialai, if ncccssaiy, aad keep a blank kna of appointment by bin, to be filled m if re^airsd. 14 they are appointed, butalns throughout the entire jurisdiction of the Justicca appointing them. They have, and nuiy exerciae and enjoy, all the powers, authorities, advantages, and immunities, and will b^ liable to all such duties and responsibiUticg as any constable, ap- pointed in the ordinary 'U'uy, by virtue of any law or statute what- soever} other provisionn, ore also contained, concerning the officer*s duty when called out, ice, Punukment for ObHnuting.'\ — Any one assaulting or resisting a Special Constable, appointed tmderthe ** Special Constables* Act,** while in the execution of his office, or who shall encouruge others ao to do, is made liable to a fine of tca'poirndx, on summary convic- tion therefor; or to such other punishment on indictment for the oflence, as any persons are by law liable to, for assaulting any con- stable in ihe executi ■ f fi 8 I 15 III. THE CONSTABLE'S POWERS AND DUTIES. THE POWER or VErUTATION. The office of Constable may be executed by Deputy, when by reusoii of sickness or other sufficient cause tlie principal cannot exe- cute the office himself; but the Deputy should be a fit and proper person for the office : he ought properly to be appointed in writing, and must be accepted and sworn in. [The following form of Appointment of a Deputy, may be used. I, A. B., Constable of in the County of do hereby. make, substitute, and appoint C. D., of ■ in the said County, Yeoman, my tru« and lawful Deputy in the office of Constable, m long a» I shall hold the same [or " during the cuiitinuaiiue of my will and pleasure"] Dated at the Town of this day of A. D. 18— A. B. ) HIGH constable's PECULIAR DUTY. The High Cou.stable acts fur the County at large, imd has the superinteudance and direction of all other constables in the County. He 19 the more immediate auxiliary of tlic Magistrate in the preser- vation of the peace ; he is bound to attend the Quarter Sessic^and to act upon the instniction of Justices of the Peace. He should report at every Session on tlie state of the Queen's Peace within the County. THE GENERAL AND SPECUL AUTHORITT or CONSTABLES. The authority of Constables is geueral and special ; the office partaking of the nature of both. Tlie general authority accrues by virtue of their own right as officers — the special authority accrues by the right of some one else. Ali constables are conservators of tJie peace iy right of their office, and are also iJic immediate and proper officers ofJustiea of the Peace. Under thes-; two heads the subject matter may be for the most part collected and arranged. AS CONSERVATOUS OP THE PEACE. Constables by virtue of their inherent powers may act without warrant in the prevention of crime, and for the arrest of offisndeis. As Ou imnudiate and proper officers of Justices of the i'&ioe, con- stables act under, and are bound to obey the lawful mandates of the Magistrates of their County. t>^mm^:^:',i;m!^mi^mmmpm'mii^^^ 16 CONSTABLE ACTINQ ON HIS IKHCRENT AUTHORITY AS COSSERVATOR or THE PEACE. Without Warrant.'] — It is always safer for a constaUe to act under the warrant of a Justice of the Peace ; and, where circum- stances permit delay, he should take care to arm himself with one; but immediate interference is fiequently necessary, and, as a con- stable, is in most coses, liable to pimishmcut, for neglecting to act when the law |icrmits him to do so, tlte nature and extent of his po%vers should be rightly understood, that on an emc^ncy, he may with promptness and decision do what the law requires of him — for, as I have already mentioned, this general authority must be exer- cised according to tlic use of tlie office, as sanctioned by the law of the land. In the Prevention of Crintc.'] — A constable, not only may, but must interfere, to prevent a breach of the jwace, or any felonious offence which he sees about to take j^aco: or when such is expected, on receiving proper information thereof, he should attend to deter the evil disposed, and prevent flic perpetration of crime. " Laws for prevention, arc ever i^vfcrable, to laws for the punishment of oflence" — and in the proper exercise of his authority in this par- ticular, tlie constable may, in his station, materially assist in preserv- ing the peace of the Country, and in preventing violation of Uie law. With good tempered firmness, he will rarely fail in securing submis- sion to his authority. Thus, if persons arc about to commence a fight, on some sudden quarrel, or are assembled together with an intention of assisting each other against any one who will oppose them in the execution of some illegal act, or for the purpose of creat- ing a riot, or arc encouraging a riot, by word, sign, or gestiue ; or if ^ |)erson in anger manifests any intention to injure the person of another ; or even in case of threats to do any bodily harm to another ; or to bum the house of another; or indeed to commit any crime against the Queen's Peace, if the party seems to be on the point of carrying out his threats — in all these cases the oflending parties may be laid hands upon and restrained, or be arrested by the. constable, and kept in custody in some secure place till the afiair is past, or their heat and passion is over ; or they may be brought to tlie nearest Magistrate to find Sureties of the Peace, or to be otherwise dealt with as he may deem right and legal. Should tlie arrest be made at night, the party may be confined in the gaol, or in a lock-up house, or other secure place, till the following morning; but then the constable should at the earliest convenient hour bring the party »a<^'«,«7; A>«*»;< • UJistti^'-Mf* mmitmmi mtiiW!9mmmfmm mim^:-^ i ii ,1 17 hefoie a Magislrale. lie will be liable to an action if he does toot, MS would, probably, tlic|i»rty keeping the prisoner in custody, in case of long detention. Let this, however, be borne in mind, that if tho skirmish is but trifling, and nu hurt be inflicted, the constable may content himself with inrting the alilrayers, and commanding the peace. Interfering further in petty disputes can be productive of no good ; {xicificatiun of the parties may answer every purpose. If the affray be great and dangerous, and a felony is likely to be committed, or a dangerous wound given, of course it is otherwise, the constable should arrest the parties at once, and where the aflrayera have weapons of any kind they should be taken from them for the time. A constable will be justifled in breaking into a house to prevent a felony being committed, and the like in order to suppress an actual affray likely to end in bloodslied, made in a house within the view or hearing of a constable ; admittance in all cases being first de- manded and refused ; but more of this liereaAer. To suppress an aflTray, or accomplish an arrest, a constable may call to his assistance any private person present, who will be bound to render aid, under the penalty of severe punishment for refusal or neglect ; but the constable must carry this in mind that, to warrant his mterference, there must be evident appearance, that a felony or other crime against the Queen's peace is on the point of being committed, and this caution, also, may be given as to threats, that mere rash words, or abusive or violent language used to the constable, or to' any other {lerson, unless calculated to deter the oflScer from doing liis duty, or directly tending to a breach of the peace, would not of themselves forma suflicicnt ground fur the arrest of the w^rong-doer. Every constable should properly be provided with a painted staff*, as an ensign odiLs authority, as well as a weapon of defence. This should be held so that it can be readily seen, for if the noise be too great to make himself heard, the production of his staff* may be held a notification of the consUililc's authority. Where possible, let a Constable make known his office by word of mouth and call upon parties in the Queen^s name to submit to his autliority. Let him be cool and forbearing, nevertheless let him spare no pains but be strenuous and intrepid in the discharge of his duty — he has a good backer in the law, vindictive punishment awaits the man whodam to oppose its minister — the Constable. Above all, let him not become the putizan of either party in any aSmy or disturbance ; for froia the moment he does, he becomes the minister of mischief,aad cearcft to be the mimster of the law, and is stripped of all its protection. c ■ HPWP'WiWWwSWPvjPr*^ ■ H^iUMi^Miiiliiii^ ■^yiaiMUiuM ^^ik...^iU^^AM ^^ilte 18 IN SECVRIMG OrFEMDCRg. Arrest on Vtew."] — Whenever a breadi of the peace, or any oflence which includes a breach of the peace, is committed in the presence of a constable, he can arrest the offender and bring him before the nearest Magistrate, to be dealt with according to law. A breach of the peace may be in an assault ; for example^ — ^by one person striking another with his hand, a stick, a stone, or any thing put in motion, by the offender. Indeed, laying hold of, or the least touching, be it ever so small, of another's person, if done in an angry, rude, insolent, or hostile manner, is a battery and breach of the peace. If an nlTray be committed, as by two or more persons fighting in a public street or highway, It is a breach of the peace; — offences of this kind are termed in law misdemeanours. Unless under the special provision of certain statutes, a constable cannot arrest, without warrant, for a misdemeanour, unaccompanied by a breach of the peace ; and even for simple breaches of the peace, the constable will not be safe in acting, unless the oflence is committed in his view. (Had time permitted, my intention wtis to have made out a table of oflences, giving a short description of each, and dis* tinguishing between Misdemcatvours and Felonies, and noting cer- tain minor ofienccs for which parties may be arrested under particular statutes.) U a felony be committed in the presence of a constable, it is his duty at once to take the oficnder into custody ; and he is bound at all risks to use his best endeavours to do so. Nothing short of immi- nent danger to his life will excuse him for allowing the oflendcr to escape. It would serve little purpose, to give a dcflnition of what consti- tutes a felony. It b sufficient to say, that it is an oflence higher than a misdemeanour. I would in general terms eniunerate certain oflences amounting to felony, viz.: felonious homicide, or the killing another under any circumstance, except by mere misfortime, or clearly in self defence ; — unlawfully and maliciously shooting at any person, or attempting in any manner to discharge any kind o£ loaded fire-arms at any person, with intent to maim, disfigure, dis- able, or do some other grievous bodily harm to such person, or with intent to prevent the lawful apprehension or detainer of any person ; — assault with intent to rob — with menaces or by force demanding money or property of any person, with intent to steal the same ; — highway robbery — house robbery — stealing any horse or cattle of any kind, at other valuable property, public or pri^'ate ; — breaking into a 19 rna house with felonious intent ;— unlawfully and maliciously Mttinf fire to a dwelling-house, out-house, church, meeting-houae» school- house, or any other building, whether public or private property { or pulling down, or in any way destroying a public bridge ; — nnlawAilly and maliciously killing, maiming, or wounding any cattle. These, and many more offences not enumerated, are termed in law,/e/oiiiM« But a Peace Officer will remember, that it is not for him to determine any nice questions as to criminality, where an act has been committed, bearing a felonious aspect ; for instance, in every case where life has been lost, the party occasioning the death shoold be secured ; it is for others to say whether any fault attaches ornot; and the term malice, used in res])ect to olTences, is not to be under- stood in the ordinary sense, as enmity of heart against tlie penon injured. Wliere a man commits an unlawful act under such eir> cumstonccs as are ordinary symptoms of a wicked spirit, and a heart regardless of social duty, in general the presumption of law is that he acted advis<}dly, and with an intent to produce the conse-' quences which have ensued — tliat is malice in constmction of law. Upon Information from others.'] — In simple breaches of the Peace, as has already been mentioned, a constable sliould have view of the ofience to autliorize his arresting without a warrant; but although he may not have actual view of a felony committed, yet if he has infortnation of it, and tliat a positive diarge is made by wxf one individual against another, the constable is bound to take up the party charged with having committed the felony; and even where no positive charge is made, and a felony has been committed, %xA strong circumOatuxs of suspicion, sufficient to induce a reasonable belief of the party^s guilt, are laid before the constable, he may arrest the supposed offender, and he will be justified in doing so, although it should afterwards turn out tliat tlic party is innocent, or that the charge was wholly unfounded. As in this last case the constable will not be protected from the consequences of an improper arrest, unless he has acted fairly, and upon strong grounds of suspicion, he should, if the individual making the cliarge is not known to him as a credible jicrson, by some means find out the character of the com- plainant before he, the constable, ventures to act on the information. And the known respectability and good character of any peison charged, and the consequent improbability of his having committed the offence, should always induce the constable to be very cautkNa before he interferes. He must exercise a sound discretion u to whether he will proceed on the information given to him, or leave I •#4M>**'^S^^**«^.i5t','#?,s»*^ 20 the party iuformiug, to a])ply to a Magistrate. Where a constable arrests the supposed oflender on tlie positive cltarge of another, or on reasonable grounds of sitspicion laid before him, the responsibility rests with the party accusing and not v.-ith the constable, although, as before stated, the charge prove to be unfounded. On lite Officer's own SHsjm'ion.'\ — A Constable may himself, from circumstances within his own knowledge, discover, or on reasonable or probable grounds, suspect thut a felony had been committed, or, on joining together various items of information received, he may Iiave reason to suspect some particular individual of having cora« mitted a felonious crime. Where matters and circumstances which the constable is acquainted with are sufficient to raise a strong presumption — to make it very probable — that a fdony had been perpetrated by a party, he is justified in arresting the jxirty he suspects for it ; and this although it should afterwards turn out, that no felony had been committed, or, that the i>arty arrested was not the guilty party ; provided, indeed, that the constable had /air and rtmonable grounds for his suspicions. ''lie causes of suspicion will depend much on the nature of the oflence — the place where, and the \vay in which it was committed ; — its being the obvious result of criminal negligence or design; — the apparent motive, — and these causes must necessarily vary in every particular case. The ordinary legal grounds of suspicion are said to be these, namely — the common fame of the country, being found in such circiunstances as induced a strong presumption of guilt, as coming out of a house where a murder has been committed with a bloody knife in one^s hand ; being found in possession of any part of goods stolen without being able to give a probable account of hav- ing come honestly by them ; the behavuig oneself in a manner to betray consciousness of guilt ; being found in company with one known to be an offender ; the living an idle, vagrant and disorderly life, without having any visible means to support it. Some of these grounds are vague and indefinite, and require support from other circumstances to form reasonable grounds for suspicion. Caution €U to arrest xcitltout tearrant.'\ — In all coses of arrest it is .usual and proper for the constable to make kno\vn his office, and to .demand of the party to surrender in the Queen's name, before recourse is had to violent measures. Private persons present may be called upon, and are bound to aid the constable in efiecting the arrest. When the offender is secured he should be brought at jctqce before the nearest Magistrate to be examined, ai\d that th^ 1 _ -li ■|^%(^i^pi^y'^^^«*^;^^*^V 21 charge may be investigated. If the hour he uiiseanonable, M at uight, the party may be secured in some convenient place till next day, or mny be detained to prevent rescue, or if the )iarty be sick ; but no unreasonable delay in bringing him before the Magistrate should take place. As I purpose noticing arrvsts and resistance thereto more par- ticularly, this will lie a sufficient caution, to note, under the head of " Arrests without warrant." Before concluding this branch of the subject — arrests without warrant — it is pro|X!r to add that private individuals ure not only iwrmitted but enjoined by law to arrest an offender if present at the time a felony is committed, or a dangerous wound given, and seeing the same done. [It seems difficult to find any case wherein a constable is empowered to arrest a man for a felony committed or attempted, in which a private person might not as well be justified in doing it. But the chief difference between the power and duty of a constable and a private person, in respect ofsuch arrests, seems to be this, that the fgrmer has tlie greater authority to demand the assistance of others, and is hable to the severer fine for any neglect of this kind, and has no sure way to dis- charge himself of the nrrest of any person apprehended by him for felony, without bringing him before a Justice of the Peace, in order to be examined ; whereas a prix'ate person, having made such an arrest, needs only to deliver his prisoner into the Iiands of the con- - stable. But it is said, that a constable hath authority not only to arrest those whom he sliall see actually engaged in an afliay, but also to detain them till they find sureties of the peace ; whereas a private person seems to have no other power, in a bare affray, not attended with the danger of life, but only to stay the affrayers till the heat be over, then deliver them to the constable, and also stop those whom he shall see coming to join cither party. But it isdifficult to find any instance wherein a constable hath any greater power than a private person over a breach of the peace out of his view ; and it seems clear that he cannot justify an arrest for any such offence, without a warrant from a Justice of the Peace, &c. — Hawkins.'] As the Officer of Justices oftlie PcaceJ] — As already mentioned, constables, being the pro{)er officers of Justices of the Peace are bound to obey their lawful mandates, these mandates are given by verbal order, or by written warrant of a Magistrate. Acting on verbal order.l — Magistrates are emphatically designa- ted Conservators of the Peare, it being the first and chief duty of thric 22 ofRcei and the Queen's Commission to them directed, empowers every individual Magistrate to employ his own authority, and to command the help of others, to restmin and pacify all persons who in his presence and within his jttrisdiction, by woid or deed, shall go about to break the Queen's Peace. Should a Magistrate, therefore, be present when a riot, an affiay, an assault, or a felony is apprehended, or near being committed, or ^ing on, or has been actually perpetrated, being the constables supe> iibr officer, it, in some measure, diminishes the constable's responsibil- ity should he apply to the Magistrate for direction, and follow the orders given. If a magistrate has view of foots which authorize his interference as a conservator of the peace, he may at oUce, by word ofmoUth, order any private person, and of counse a constable, to arrest parties offending, and this order should be execiited promptly by the officer — ^I mean if the order be such an one as the Magis^te has power to give — for it is a Clear principle of law, that the com- mand of a superior ofQper will not justify the inferior in the violation, of law. This caution is scarcely necessary in this county, but could not properly be omitted. ACrmO UNDER ORDINARY WARRANT. His duty on receipt of Warrant.l — ^As already mentioned, a constable is the proper officer of Justices of the Peace, and bound to execute their lawful warrants, with all speed and secrecy, and strictly according to the direction therein ; and if 'in any particular he fails to perform his duty herein, he is liable to severe punishment. Wheii a wairrEmt is put into the hands of a constable to b^, executed, he should examine it to see in the first place, to whom it is directed} and if dirtoted to him by name, or by name of his office, or to him or other constables by name, he is empowered to act upon it. He should in the next place, ascertain fh)m it the nature of the ofience — ^whether felony, breach of the Peace, or simple misdemeanor — as that must in a great measure regulate his future proceeding. He then sees if the party named, or described in the warrant, is a person personally known to him, if not the constable shf old find out, what coiintry the party is a native of— his personal appearance, manner, the dress he is supposed to wear, und any other peculiarity the individual may be recognized by — and, whenever it can be done, the constable should bring with him £(ome person able to point oi<3|he party—for the officer is not only bound to use his best exertions to make an arrest, but at his peril makes'it} for should the wrong person be taken up, a constable, who acted unguardedly, t ■ I \.L r ; I J »«^B»«asi,)!seM*.w^iij*!tW!.w>Sfii«^^ 98 would be liable to an action. [It may be well here to notice, that the name of the party to be apprehended shonld be aocumtely stated in every warrant ; but if the name of the party be unknown, the vrarrant may be iamied against hinv by the best description the nature of the case will allow, as " the body of a man whose name is unknown, but whose person is well known, and who is employed as the driver of cattle, and wears, &o.** — (Chitty's Crim. Law, 39.) ] The arrest may be made in the night, as well as in the day, bat, except for treason^ felony, or breach of the peace, arrests on a Sunday are prohibited. Execution of&ia TTorrant.]— Although the constdble to whom the warrant is directed must personally execute it, yet any other officer or person may lawfully assist liim. If the warrant be directed generally to all constables of the county, no one shonld execute it out of his own precincts, for in such case it is to be taken respectively, to each of them' within their own division, and not to one of them to execute it within the division of another. But if it be directed to a particular constable by namey he may execute it anywhere within the jurisdiction of the Justice, but is not compellaile to execute it out of his own constablewick, or place he is appointed for. [With respect to the person who may execute the warrant, it seems that if it be directed to the SlieHff, he may authorize others to execute it, but if it be given to an inferior officer, he must personally put it in force, though any one may lawfully assist him. Where an officer employs others to assist him he must be so near as to be act* inginthe arrat in order to render it legal. — (Chitty's Grim. Law, 4S and 49.)] The jurisdiction of a Justice of the Peace is only co-extensive with the County he is appointed for; and a warrant cannot be executed out of tiie county or jurisdiction of the Magistrate grant- ing it. Where the party, against whom the warrant has issued, is in another county, it should be backed by a Justice of that county. \)fifotfi the constable makes an arrest under it. The constable only requires to lay the warrant before the Justice, who will make the necessary endorsement upon it, upon proof of genuineness. [The .warrant of a Justice of the Peace cannot be executed out of his county unless it is badcedf that is endorsed by a Justice of the county , in which it is executed. By Stat. 24 Geo. II. chnp. 55, sec. 1; it is •nactedi lliat '< if say person, sgainst whom a warrant shall be iasued, shall ■,-*«>■»—-•-* -vis.^ 7»^,ft^*-»v. ■•■» ■ivMt^iLiffI*V^-'Vrp^'"-^rirM »--1 i li 'i :i ■i I ,i 5 [" esrape/i;o into, renide, or be in any place out of (he juritxiliclion of the "justice granting ^he warrant, cither before or after tlic issuing thereof; any ** Justice for the county or place, where Mueh person nhall so escape or- be, '< upon proof on oath of the handvu'itin!; of the Justice gijonting such 'arrant, " shall endoriie his name thereon ; which shiili be a sufficient authority to <' the person bringing 8uch warrant, and to all other jierxons to whom the sama '* was originally directed, to execute the same in such other county or place, *< and to carry Uiu oiTender before the Justice who endorsed the warrant or « s<5hie other Justice or Justices of that county, if the ofTence be bailable, and " the oflfundcr be ready to give bail for his appearance at the next Assizes or " Sessions for the county or place where the oiTence was committed ; and " such Justice or Justices shall take bail accordingly, and shall deliver the " recognizance, with the examination or confession of the offender, and all '* other proceedings relating thereto, to the constable, or other person, who " shall (on pain of £10 to him who shall sue) deliver over the same to the " Clerk of Assize, or Clerk of the Peace, where the offender is required to *^ appear. And if ttie offence be not bailable, or he shall not give bail to the « latisfaction of the Justice before whom he is brought, the constable or other « person shall carry the offender before a Justice of the proper county or *' place where the offence was conunitted, there to be dealt with according «toI*w.»» In Rex V. Kynaston, 1 East. 1 17, the Court of K. B. held» tliat proof on oath, of the handwriting of the Justice who granted the warmnt, made before the Justice of any other coiuity, to whom the same was tendered for endorsement, (u'as sufficient to oblige him to endorse the same, for execution within his jiuisdiction, being of <^inion that he had no discretion over the subject matter, and on affidavit of his refusal to endorse, granted a mandamus to compel him. Ld. Kenyan, C. J. said, — ^The Justices by whom the original warrant was issued, had a discretion to exercise upon the matter submitted to them ; but the ALigistrate who merely endorses the warrant of another, under this Act, is not answerable for the legality of it, which remains at the hazard of him who first granted it. The Form of backing or Endoi:iement, may be thus : County of ) Forasmuch as proof upon oath hath been made before me J. P. > Esquire, one of Her Majesty's Justices of the Peace for the said to wit. ) County of , that the name A. B. is of the handwriting of the Justice of the Peace within mentioned ; I do hereby authorize A. C. who bringeth to me this warrant, and all other persons to whom the said warrant is directed, to execute the same within the said County of Given under my hand the day of in the year — — ~-. -,J.P. And the Justice may further order (if lie think fit) the party, according as she shall appear bailable or not bailable upon the face of the warrant, to be brought before himself, or some other Justice ot i': I 2S Jtutices of that county, or to be carried back into the ooimty fi«a whence the warrant did issue. — (Bum*s Justice, Vol. 5, p. 576.) ] A general warrant is in force, and may be executed at any tima during the life of the Magistrate who grants it. An arrest, as I before mentioned, at night is good, and for treason, felony, or breach of the peace may be made on a Sunday. What an Arrest.] — An arrest is the apprehending or detaioing; oftheperton in order to be forthcoming to answer an alleged or suspected crime. The officer should not merely c Jtent himself with securing the offender, but should actually arreU him ; so that if ha escape^ or is rescued by others, he or they may be subject to th« penidties of eieape on orreit. To constitute an arrest, the party should, if possible, be touched by the constable : bare words will not make an arrest without laying hold of the person, or otherwise confining him. But if an officer come into a room, and tell the party he anests him, and locks tha door, this is an arrest, for he is in custody 4>f the officer. Or if in any other way the party submit himself by word and action to be in custody, it is an arrest. How made."] — A constable sworn and commcmly known, acting within his own township, need not show his warrant, but he should in all cases acquaint the party with the substance of it, and tha cause of arresL In every case where the constable acts out of his own township where he is not known to be a constable, he should prodnoe hk warrant if required ; and to avoid all exctiae for resistance, it im recommended, whenever demanded, that the constable should pro* duce and allow his warrant to be read ; butinnocaseishenqairad to part with it out of his possession. If the party snatch or take the warrant the constable has a right to force it from him, using no vat- necessary violence in doing so. Resisting Officer.}— A constable is bound tousethentaiMlcan- tion and forbearance in case of resistance, but he may lawfiilly oae force to overcome resistance. The force used should not exceed tha necessity of the case, and should cease the instant resistance it over — to beat or abuse a prisoner who is powerless is both unmanly and illegaL Ifthe offence be less than felony, and the party fly and will not yield himself, and the constable kill or seriously wound him in pnisuit, the law will not protect the constable ; he would be hdd guilty of murder or manslaughter (in case of death) even whera ^ i|, \'f%-^i^H^^^^^--^M^&^^mmm0m^^ 38 before the Magistmte, he is still considered in the custody of the officer, until bailed or discharged, or committed to prison. ACTWO UNDIR SBARCH WAMUNT. Mode of Executing it."] — The constable^s powers, acting under search warrant, appear to require a separate notice. With respect to its direction, and the County or place wherein it may be executed, the rale is the same as in other warrants. In executing it, the constable must be careful strictly to pursue its directions. It is usual to direct that it be executed in the day time, but even if not so directed, it is the better course, unless where there is danger of the stolen property being taken away in the meantime. The warrant commonly specifies the place to be searched, the goods to be seized, and the person to be taken. As to the mode of procedure, if the outer door of the house to bo searched be shut, and, up^n demand, not opened, it may be broken open, and so may inner doon, boxes, &c., after the keys have been demanded and refused. Proper Precautioiu.'] — ^The constable should not take away any goods but those specified in the warrant, unless they are indispen- sable in substantiating the charge of stealing the goods specified. As great caution ii necessary on the part of the constable, to avoid mistakes, he should bring the person who has lost the goods with him, in order to point them out. The constable should come with sufficient assistance to watch outside the house or place, to prevent the things being taken away while he is making a search within. He should bring with him materials for striking a light, if necessary, and he should take sufficient time to make a thorough seareh. Ditposal of Good* takeH.} — When the goods, or any part of them are found, the constable is to bring them, and the person, before the Magistrate according to the directions of the warrant. To restore them to the possession, if so directed, after the examination, by the Magistrate, or if the party is committed, to keep them, if not deposited at the Magistrate's office, in order to their being produced at the trial. The goods may be marked, or otherwise be thoroughly examined by the constable, that he may have no hesitation in afterwards iden- tifying them. If a horse, &c., is the subject it is sometimes given to the sap- posed owner, on his entering into recognizance to prosecute, and giving security that the animal shall be forthcoming ; or it may be put to livery ; but the constable will of eonise follow the directiona «f the Magbtnte in this partaenhur. ACTING VNDKR OTNIft mOCIIt* 1 '■: Serviee of SummoHt.'] — Without going minutely into th* qn tion, little can be said on the head of service of summona in < of misdemeanour, See. To speak in general terms, the summona should be served as long as possible before the time a[q)ointed for tha hearing, in order to enable the party to prepare his defence. [Mr. Chitty in his General Practice of the Law (Vol. 2, p. 175,) says, the time appointed must always allow sufficient opportunity between the service of the suramoai and the time of appearance, to enable the party to prepare his defence and for his journey} and tha Justice should in this respect take care to avoid any supposition of improper hurry, or he may incur the censure of the Court of King's Bench, if not be subject to a criminal information. The precise time will generally depend on distance, and the other cireumstaneea of each particular case. With analogy to other branches of the law, a man ought not to be required omiim omnibus aliit negotii$ instantly to answer a charge of a supposed oflence necessarily lesa than an indictable misdemeanour, on the same or even the next day, and should be allowed not only ample time to obtain legal advice and assistance, but also to collect his evidence ; and even the eon- ▼enience of witnesses should be considered; and therefore ingeniBml several days should intervene between the time of summons and hearing. In the superior Courts, in general, at least eight days* notice of enquiry and of trial are essential for the prepamtion of the defence ; and a charge of an inferior oflence may require full as much time, as there has not upon such a charge been any antecedent notice of the pro«*^eding, as in actions ; and as these charges are frequently made by parties under sudden excitement, it is better to allow them time to cool ; and no inconvenience can result from delay, (or if it be expected that the alleged oflender will abscond, ha may, in many eases, be apprehended in the fir4 instance. Where the summons was to appear on the same <2ay, the Cooit held it extremely unreasonable, as tl^e Yn^rty's attendance might be impoa- sible, or he might not be able to collect his witnesses on so short a warning ; but the Court heU f.M objection aided by the u£fendant*s appearance, and entering into his defence without pmying fiuther time.] Where the summons is in the form of a precept to the constable, an examined copy should be served and the original kept ; where the summons is diieeted to the party, the original should bo served and a copy thereof retained. In general, the service must be penonal on the eflender, but ^??riv^oi^ •SSfer^ so aome pnrtioular statute^ nuthorize the servioo on grown up penony, at the ofTundor'a place of abuilo.(a) Sut when not expreasly diapenaed with by the particnlar atatute, tiie copy of the precept, or the original aummona, aa the caae may be, miut be personally aerved on the defendant. [Lord Chief Justice Parker (aaya Mr. Fayley, in hia Treatite on ConvicUimt, Vol. 1, p. 23,) was of that opinion ; and that the provisions, specially introduced into many Acta of Parliament, to make a service at tlio dwelling houae aufficient, seem to justify the iufcroncf.' that the law in other caaea ia underatood to require a service upon the person. tJhderthe Acta of 4th and 5th Victoria, chaptera 25 and 26, (which are of a general nature and practical importance,) a service may be made upon the party either by " delivering the same to him petaoniUIy, or by leaving the aame.at hia usual place of abode" (See ieotion 57, of the firtt named Act, and section 30, of the latter.) — While under Uie 4>th and 5th Victoria, chapter 27, section 40, the aervice of the aummona, is made on the defendant by delivering the $atne tohini, — so that^ already mentioned, it may be safely laid down aaa general rule that unless the particular statute authorize a. service by leaving the siunmons at the party's residence, it miut be proved on the hearing that he actually received the summons in due time to enable him to attend]. ' On the return day Of the summonses, the constable should be present at the Magistrate's office to moke proof of service, and be in attendance at the hcnring.(6) Execution of Digress Warrant.} — ^The warrant to levy a pecu- niary fine or penalty, on a summary conviction, is given by express authority of partibular statutes. A constable is the proper officer to execute it, and if it be delivered to him a reasonable time before the day appointed foi* the retimi, he is bound to execute and return it, tod is indictable for refusal or wilful neglect. (a) Even in thoM cases where a Statute authorizes service atthedwelling*house if the party do not appear, and the Magistrate, on enquiring into the time and eircum- stances of the service, finds it to be douhtful whether the defendant actually received die summons in time, the hearing ought to be adjourned that a fresh summons may be served. Where a defendant has been served with a summons, but too late to •nable him to prepare for his defence, he should attend before the Magistrate on the day, stale his objection u lo the time, and require an adjournment to anoth^ day, 1»hieh the Justice would be bound, on reasonable cause shewn, to grant. (6) If the M 4^istiate be not ready to proceed to the heigdng at the appointed hour, the constable u well as the party must watt during all reasonable hours of the- •aitieday. ' ^ ' ; ' ''i- ■■ .' . i < ,■ •■ i .•.■.;... c; ■^■■'^m.f^Wh;^. pwfpHliJWi y'!i one of Her Majesty's Justices — , on the — — day of — — — — ,Con9table of ——within xumuHt who being duly sworn, upon his oath saith, that hp has made diligont ^'^^i^^M'^ ' ''^* ' '■''■' ' •■^' ' ^^'' '■ ' • ' ■^'^•'\^ .;• ,-"\ g..". ' ' i, M ' K ' : /t . ~ ,'-i.i. ' fWV,. 'T )J 7 ; < M«h:li for. but doti not know of, nor can he find nufficient good* tad «flidt4li •f the within named , whereon to levy the within nentioned ettm of i ' - u therein he it commanded^ Sworn before me at ——^ in the CountT ^ of " ■ ■ the day and year above mentioned. > < -.j.p. 5 A Warrant af Commitment by a Justice Of the Peace is either for the purpose of a future final adjudication^ or to secure a party in safe custody to await his trial for a felony or other offence where- with he is charged,— or to detain him till he gives bail to appear and answer to the charge ;— or it is in the shape of a final order as a warrant to commit in default of sureties to keep the peace ;— «r (and this is more in the nature of an execution) under the authority of a particular Act of Parliament, to imprison for a certain limited time, or until the payment of a fine imposed as a punishment for the commission of an oflence punishable on summary conviction. Whether the warrant of commitment be for trial or in default of sureties, or in execution for punishment, or on non-payment of a fine, the constable is bound to execute it with despatch, and strictly according to tlie directions therein contained. It is directed to the . constable and the gaoler, the former being required to arrest and deliver over the party to the gaoler, together with the warrant, and the gaoler being required to detain the person according to the directions thereof; unless it expressly be made returnable at a par- ticular time the warrant remains in force until fully executed. IN KESPXCT TO RIOTS, ROUTS, ETC. In cases of timniltuous assemblies and riots. ' Constable is some- times called upon to act on his general authority, without warnmtt but commonly he acts under a Magistrate's orders, verbal or written* and it seems proper to glance at the distinctions the law has laid down respecting them. An unlaufful assembly is a disturbance of the peace by three or more persons barely assembling themselves together with an inten- tion to da an unlawful act, but neither executing it, nor making any motion towards executing it. Any meeting whatever of a great number oi persons imder such circimistances of terror as cannot but ^danger the public peace, and raise fears and jealousies amongst the Queen's subjects, seems properly to be an unlawful assembly { — as where great numbers complain of a common grievance, and meet together, armed in a warlike manner, in order to consult together concerning the means of recovering their interests, for no one can '■**jitl^;4'««isTi* MH S3 '.-^ what will be Ihe event of such un »s^M.>nlbly. And if the intention ol' those nieetiui; Ite tu nccuinplish aconimon ulijccl by violence auKl latiiaitlaliuti, anil the nicutin:;, nvni \\s gencml upiHsarance, hihI acconiiKinyiiig ciix;nniiit;ince8 is calculated to cxcil.) terror and con- steniatiuii, it is eiesirly criminal and unlawful. A Ritiit is a dislurbiincc ul'lhe |Knicc by three or more persons as- sembling tti^rother with an intention to do an unlawful act, and actually makiii" tuhatuxs towards the execution thereof. A lilol is a tumultuous disturbuice of the Peace by /Arr« or more |K?rsons assembling together, of their own authority, with an intent mutually lo subsist each other agtiinst any one who will oppusc tlieui inthedoiugof some act of violence, or in the execution of any enter- prise ofa jirivalc nature,an(l afterwards actually committing violence towards executing the same, us (ur the puqiosc of licating a man, or driving away some individual, or jKirticular Ixxly or class of men, from his or their lawful employment, or demolishing or pulling down a building, iVc. It has been holden that the enterprize must be iiccom|tanied by some oiler of violence, either to the {leniou of h man, or his |)ossessioiLs ; as, by Iteating him, or forcing him to quit the {tossession of his lands or gu ■ ii",', ; . ' | | |«" iwh>[!i«— i mmm^frf"^ i \ 34 imbHc peace, and to np}H>nsc ilistiirlmiccs Ity staying the persons engaged from executing tlicir puriKtsc, niu\ also l»y arresting the progress of others coming to join in the tumult: and more [Kirticu- lariy if a felony be about to l)c committed, will the ijitcrfcrenccof a private person Ix) justifiable — for a private person may do anything to prevent the perpetration of a felony — and constables and other peace officers are especially iMund to use exertion in restraining and suppressing tumults and riots ; and disix-rsing the offenders by force if it cannot otherwise be accomplished. This duty of the constable I have already partially noticed when speaking of his jwwers of arrest without warrant. In suppressing a riot, constables are required by law to do all tliat lies in tlieir power: all tliat cm !» reasonably exjH^cteil from men of prudence, firmness and activity, inider the circumstances. Their proceedings must of course lie regulated by their own strength, and the assistance they can command, as compared to the number of rioters,and whether armed or not. But it is to be ho|)ed tluitany emergency of this kind may not arise, and if it should, that a Magis- trate will be present to give directions. I know not wliat suggestions to make in the details of duty ; but were I acting as a constable, on such an emergency, I would incline to this course — toendeavour to chock the tumult in its infancy, by reasoning if possible with the ringleaders, or some of them, and endeavouring to dissiuido them their puri^ose ; and call U[ion all peaceable persons to separate from them, and then, if remonstrances foiled, and my party strong enough, I would arrest and secure the ringleadcra at once. I would tike no notice of irritiiting language addressed to me. I would jxiss by imiwrtinence of every kind,care- fully avoiding individual quarrel or altercation, or giving word for word; and I would kcq) togctJwr tcitli my party as much as jiossible. Should tho riot be of a serious and dangerous nature, and the number engaged in it amoiuit to twelve or more persc»ns, and a Magis- trate, Sherifi*, or other head officer, read the proclamation, under tht Riot Act, requiring the rioters to disjiersc themselves and peaceably to depart; and if, notwitlistanding such itroclamation made, the portico engaged, still continue riotously and tunmltuously together by the space of one hour after such command to disperse, — they are more than rioters — ^they l)ecomo felons ; and by their resistance, in the endeavour to disiierse or apprehend them, any of those assembled, be killed, maimed or hurt, all |H>ace ofllcers and constables, and others, aiding and assisting them in the ilis|«ersion or appreheusioiiy r ukmitm lit^^^^^tamiumjmm^^ li 1 3S will lie iicid five, iliscliargcil uiid iud«*inniHc«l ol, for, or concemiug .siiclt killing, iiiiiimiiig, ur liiirtiiiir. [TIiu )iruclainatiuii lur rioters to disjtersc, slionid Ins luatlu tis iivar (hum us imssible, and in a louil vuice. Tliu iullowiiii; litrm is tukeu fruiu Uio Urititdi Statute, 1 CJeu. IV., cliaiiter 5. " Our Sov«*ruigii Lady tlie Quucn rliurijuth and commandeth all peraoiu '< beiiiir asseinbletl, iinrnediatuly to dJMitursu themselves, and peaceably to '* depart tu their h.'iLitutions or to titeir lawful business, upon the paint con- ** tuined in the Act made in the lirMt year of King Uvorge, in preventing •' iumulLi and riotous a;>isemblic's. God Have the Queen." ] Diit whctlior the pruclamntiun Irum (he Riot Act he read or not, the mistk-mcatiour of riot rcHud/is, und Mai^ist rates and constables, tiud even itrivate iK-n^uns may disjiersc the rioters by force, if tlieir dis- |icrsiun caimut Im; uthcnvisc eileeted; for . the Riot Act only intro- duces a new oilcnce — remaiiiiiig an hour uRer pnjclnmation — with- out qiialifyiiig iuiy |ire-cxistiiig law, or abridging the means which l)efurc existed fur preventing or ptuiishing crimes. IN RESPECT TO BREAKING OPEN DOORS. CaiUiom hcfdn.l — Having noticed coastables* duties, acting without UTirrant, it may Ijc well to look to the ofncer'*8 jwwcrs of breaking o|)en outer doors, as well when acting without wanant as under warrant. Breaking o]k*u an outer door or window to enter a man^s house is ail objectionable and dangerous proceeding, and sliould only be resorted to in extreme cases. Tlie )*cuce and security of private dwellings is a matter of great im^Ktrtiinec. The rain may penetiate through a shanty, the snow may lieat into it} but still in the eye of the law, a mau^s house, huwevor humble, is his castle, and he may defend it to the death against illegal assault. It is only in matters of high concern to tlie public, ttnd topieveiit the ends of justice lieiug frustrated, that the law permits its officer to have recourse to this obnoxious proceeding. TVk: Rule ofLiite.] — '< Every man's house is his castle** saith the law, but the maxim does not prevail to the encroachment upon and hindemnce of public justice. And moreover it must be undentood under certain limi(ations,aud as subject to certain restrictions which may bo noticed before speaking of a constable's jiower to break into a house. 27*c lUstfictions.}— The rule cxtonds to a duxUing kaim only. ii \ I x_ <^. i I. ; I II % 3S ami uotto a staMc, 1jani,uroiit-tiuns«\ luil cunnocUtl with iLo ihwll- iiig-liunse, wliiuli inny l>e bitikeii o|mmi liy a rniislnblo in the execn- tinn ol'his duty. The {truttMition ol' Ihc ilwolliiis: house is coiifined to outer doors ami trintloics, intcniloil iur the sociirity uf the house against persons hrcoking in. Wliat doofs.l — For if a const;ihlc finds the outer door o]x>n, or it be o)iened to him from within, and he cntcre that way into the house, and admittance be refuseil to any room therein, lie may break open inwanl doors, if he find it necessary, in order to eflcctan arrest. WItat dtcc/ling.'} — Tlic personal privilege of an individual to make his house a sanctuary from arrest, only relates to the occupier, and the several members of his ianiily, whose domicile or ordinary residence is therein ; and if a stmngcr who does nut reside in the house, but whose ordinary residence is elsewhere, ujwn being pur- sued, take refuge in the house of another, the protection does not extend to him — it is not the straiigcf''s '♦ Castle," he Ciumot claim the benefit of sanctuary there; and on no pretence is the occupier to shelter the party when the otficen of justice are in ipiest uf him. But if a constable in pursuit of on oflender, break into the house of a private man, it is at his {wril : that is to say, if the oflender be in the house at the time he is justified, not otherwise. For Rccojition.'] — Wlienever a {lerson lawfully arrested for an oflcnco afterward escaiw from the consUible, and shelter himself iu a honse, whether it be his own or that of a stranger, and immediate piiruiit is made by Uie constable, if admittance be refused, he may ' break open outer doors in onler to retake the jKirty — for the privilege from arrest, by sanctuary in a house, is confined to arrests in the first inaumee. The right to ftreak out.] — A man's house, though a castle to himsell, nay not be converted into a prison for officers ; and should a constable in the execution of his duty, or those acting under him, having once obtained lawful entrance into a house, be locked in, they may lawfully break open Uio doors to rcsain their liberty. The demand for odmiltaHcc.'] — Before proceeding ftuther, this general caution to constables is given ; to keep strictly within *he limits of their aut^iority in respect to breaking open doors, and in every case, liowever dear the right may ^ to break into a houses for .the constable to notify his office and business, and demand permis- aioa to enter before he resorts to force. No precise form of words is nccesnry ; it is sufficient to make the persons within aware that he M i I # * H I ■ I I'^ I I ii \/pA, 37 cuincs, iiol as a tri'Sfossfi-, Itiil us :iii uUiccr uf the luw, nmied with jMtiper uiitliority. Acting wiUitmL w(i.fmtit,'\ — Tlie eonstiilile^K uiiiliurity to break ())ieii duurs, by virtue oCliis oliiuc ns coiisen'atur uf the |irace, acting witiunit a wiirr.iiit, is strictly cunfincd tu cns'js whore an actual Iircuch uf tlic ]x*acc is cdininittrd in his view, or where he sees a li'luny commiltctl, or hn.s gruiuitls tu apprulicnd that a felony is likely to Im! cuDiiniUiHl, stud the nfTiayors run into a house to escaiie arrest, llic constahle in hot {nirsuit of t}iem wi iild be justified in cflceting an entrance, by force, to tuke them — (nevertheless in mere breaekn of Vie peace, if he know the jmrties, he had better obtain a warrant, instead of Utking this course) — also wh<;rc a violent nflray is going on in a house, in the view or hearing of a constable, which is likely to result in bluo«Ished, or loss of life, (as where there is a violent cry of murder in the house,) the necessity of the case will antliorizc the cor'-t:!! '- to get into the house in the readiest manner he can, to y'u' .. ray and prevent further violence or blomlshed. Even a \vn' , ..n may break and enter the house of another, and ini- jtrison his )iei-sini in onlcr to {trevent his committing a felony. \. I'.ive onf J" known to have committed a felony, or given a dangeroti.<< ..ourtk, and is pursued by a constable who is denied ad- mittance into a house wherein the oflender is sheltered, the door may be broken oyicn in order to take him. It would be otherwise, however, if there was only a mere suspicion of guilt ; a warrant should then be obtained. If the house in which ai. olfendnig party is supposed to have taken refuge is not his own house, the constable should be sure that the felon is tlierc,for if not there, the constable woiUd, in niostcases, be considered in law a trespasser. Acting; utulcr WtirraM.I — U|ion a warrant for felony, or sus- picion of felony, or to coraiicl sureties of the jieace, or for breach of the |ieace, the constable to whom a warrant is directed, may break open outer doors to affect an arrest, if the ^larty is in his own house, or has taken refuge in tlicliousc o/'a/fo^/ie/-, alter notification, demand, and refusal as I luivc already mentioned. Besides tlic general authority, certain Statutes siiccially em- power outer doors to be broken o])en, imder the warmnt to make arrests, or to search premises. ACTING UNDER PARTICULAR 8TATUTU. AutluMizing arrest witltout tcarrant.] — ^By several sla]lntcs,con- (' : / l^l^iy^jELdMa f. M i \ r ii > n. Hi 38 »Uit>lc8 :uul otliors are iuithorized tu iirrcsl williuut wnrmnt. In .suiiie cases tliu jiuwer ol' urrcst ^nvcii by Sslutiitc is iiul new, Uit siqiunuidod tu the inlioroiit |iowcr«>i' the uonstulilc; ill utiier cases tliu uutliurity tuurrc^jf is lusc and 5 Vic. Cha])tur 25, is an act Ibr consolidating the laws of tliu |vovincc relative to larceny luid other olfeuces coiincctOilUierewith. It contains many clauses, setting out variou.s uirenues, with the punishment annexed to them — sonic indictable, and some not in- dictable — and almost every minor injury in the uutttre of an illegal taking is reinediiil or punishable on summary conviction licfore Justices of the Peace. The 5r)tli section, for the more elicctnal apprehension and discovery of [icrsons punishable under the Act, cither U]x>n indictment, or u^xin summary conviction, provides that any ]icrson found mmmitling an oirence punishable by virtue of the Act, may Ixj immediately apprehended without a warrant by any ]ieace officer, or by the owner of the projicrty in respect to which the olfi?nce shall liave l)oen committed, or by the servant ol" any {iei>>«in aiithori/cd by such owner, and forthwith take himliefore some neighlKiuriug Justice of the IVuce, to be d«.>alt with according to law. Cliaptcr 26, (-t and 5 Vic.) is an Act to consolidate the laws of this Province rcLitivc to malicious injury to proiterty. It likewise sct« out the various ofll'iices in relation to real, and jxrmiKil prvj>crty, and is very comprehensive in its enactments in relation to damage, injury, or qx>il, to real or [lersonal properly, public or pri\Titc — not being a mere illegal tiiking or stealing — but small injuries td/fuUyot uudidousltf committed ; and for tliis class of cases, provides a remedy and pmiishment, by summary proceeding liefore Justices of the Peace. Tliis Statute likewise contains a provision similar to that in chapter 25, that any i^erson fomid committing any ofleuce under the Act may be apprehended witliout warrant, and taken before a neighbouring Justice. To enter into the details of these enactments would be beyond my object ; but I would observe that the object in view, in giving the power to arrest without vvarmnt, seems to be evidently to meet cases wlierc oflfenccs arc committed by unknown or transient iiersons, or by disorilerly characters, having no fixed abode, who might cscn^te Ixjfore a Wiu-rant could be obtained ; and therefore a consta- ble ought uot to consider liimself authorized by these Statutes tu I! ii V I iiiiitti ■.,..M^^imB:m«^^mM^ 39 nrrcst without warmnl any settler or other n>spcctiihfc resident who can be found at any su1iso<|ticnt time, should pixN^essoriawlic issued a^iiinst liim. Aiul tn justify tliu apprehension without Mrarrant, the ofll'nder niu.st in ijoner.il hcfinttttf — that is, scon or discovered — ^liy the coasUihIc, in the wtini/ vmitmissiou of the ofll-nce, and taken at tiustimci but if the olfeiukT run away and Ix; taken in immediate pursuit, the arrest would be legal. As in other cases of arrest with- out warnuit, the olR'uder should Imj bixiught promptly before some, neighlmuring Justice of the Peace. OnmxpinijitufnffriirecommiUciI.'l — ^Thc 10th and 11th Vic. mtikes extensive jtrovision for the prevention of malicious injury to Itcrsons and j)roj)erly, by fire, or by explosive or destructive suIh slances; and the lUh section thereof, makes it lawful "for any " coasUibIc or peace ollleer to take into custcxly, without a wnrmut, "any jx-rson whom he shall find lying or loitcrin.!; in any highway, " yard, or other place, diiriug the night ; ainl whom ho shall have " good cause to susjmxiI of having coiumilted or being altout to com- " mit, any felony under the Act, and to delaiii such i^ersou until he " can 1)e brought before a Justice of the Peace, to be dealt witli «« according to law." t Under the General Election Act, 12 Vic, chap. 27, constables ore riMpiired to aid in the mainteunnce of |ieace a)id good order nt elec- tions; and on the verlxil order of the Returning Olficer, or Dc|Hity Ueturning Officer, are Iwund to arrest disturliers. And at meetings* called under the 7lh Vic. chap. 7, they may lie required by the Cluiirman of the meeting to aid and ;issist him iu kocping the |ioacc, and ]ireser\'ing good order thereat. On suspicion of tcHtlcmij to nmnniL'] — Certain Tmpcrial Acts, define in very comprehensive terms who shall be deemed ifUe and iUsnrdcrly pcrioM — rosurs and cu'^ttl/nuh — and iitmrtigUile rogua; and authori/c the arrest of all such i>crsons by a constable, without warrant, in order to their being brought before a mugistmte for fnui- ishment. Under these three heads almost every kind of suspiciinis persons seem to Ix; includcil, embracing amongst others, '* {icrsons who not ** having wherewithal to maintain themselves, live idle without « employment, and refuse to work for the usual and coramoa wages " given to the other laliourers in the like work, in the [«irishcs or places " where they arc ;" and " jxtsous wandering abrund, lulging in ale- " houses, boms or out-houses, or in the o|iiMi air, not giving u good " account of themselves/* Ihil 1 abstain fn^ni entering into uuy / », mail deuuicdaccoiml ul'Uio vagiunl laws, a.s Ihey give an iiiidtiruicd unil clangorous power, on Iho mere suspicion of tlio propensity to com- mit an oflencc. The value of such laws at home, -or as far ns rcganls cities and largo towns, in this Country, may not bo denied, but under ordinary circumstances their enfuicomeut is quite unnecessary in the rnml )iarts, and their provisions, as a whole are inconsistent with the slate of society in Canada, and unsuited to the genius uf the people. I allude to them chiefly to caution constables against acting under them without a warrant, or special direction from a Magistrate to do so. Distraining for Rent.'} — ^In case of distress for rent, the con- stable of the Township in wliich the goods are taken, may be called to appmise them before sale; and he shoidd attend with two appraisers, and having sworn them, proceed to appraise tlie goods. [This the constable is required to do by statute 2 Wm. & Mary, Sess. 1, cliap. 5, sec. 2, by which it is enactetl, « That wjiore any goods shall be distrained for rent reserved and duo Mpon any demiso, loase, or contract whaU>oovor ; and the tnnaut or owner uf tUegooJs 80 dcstrained shall not, within five days next after such distrebB taken and notice thereof, with the cause of such taking, left at the chief mansion-house or other most notorious place on the premises, replevy the same; in each case, the person dlntraining shall, with the sheriil'or undor- sherilTof tbe county, or with the constable of the hundred, parish, or place, where such distress shall be token, cause the goods so distrained to be ap- praised by two sworn appraisers, (whom such sheriff, undor-sheriiT, or cen- slable shall swear to appraise the same traly, according to the best of their undorstandingH,) and alter such appraisement, may sell the same for the best price that can be gotten for them, for satisfaction of the rent and charges of the distress, appraisement, and sale ; leaving tlie overplus, if any, with the sheriff, under-sheriff, or constable, for the owner's use." Tlie appraisers employed by the constable shoidd be disinterested parlies: it would be illegal to swear the ixsrson who distrains, as one of the appmisora, for he has an interest in the business; more- over the Statute says that he with the constable, &c., slmll cause the goods to be appraised by two sworn appraisers. In a case where a broker who distmiued goods for rent, was ailcrwnrds sworn one of the appmisers, and together with another broker valued them to a [orty who became the purchaser according to such valuation, it was held that the sale was irrcgidar under the Statute. The proper constable to swear Ihc appraisers is the constiblc of the parish, or place whore the distress Is taken, and not the consta- \I --am ammmmmammmmmm 'mam mm h^ii H' h I il [ble of tlio place whore the distress is iinpounde(l.->( See cases collected in HarrimCs Landlord and Tenant, 2nd Ed. p. 327.) The constable must attend with the appraisers at the time of the appraisement, and obtain the inventory of the goods distrained. Having received tlie goods, the constable administers to the ap- praisers the following oath : « You and eveiy of you shall vrdi and and truly apprairo the goods «and chattels mentioned in this Inventory, {the irmstcUde holding in " hie hand the Inventory and ehowing it to tho appraisers) aooord- " ing to the beat of your Judgment. So help you God.'* The constable should then indorse upon the inventory, or annex tu it, a memorandwoi in the following form : — Idemorandom, that on the <— ~- day of — — — in the Year of Our Jjord, Ifr— . ' of the Township of ■ in the County of and ' of the Township of in the said County of , two sworn appraisers were sworn upor. tho Holy Evnngelists, by mu — — of — — — oonstable, well and truly to appraise tho goods and chattels mentioned in this {or the annexed) Inventory, according to the best of their judgment. Pronent at the time of swearing the *) As witness my hand, above nanoed — — — and — — , J as above, and witness thereto, } ■ , Constable. After the appraisers have valued the goods, add to the foregoing, the following memorandum of valuation :— We the above named — — and being sworn upon the Holy Evangelists by , constable, above named, well and truly to appraise the goods and chattels mentioned in the within (or annexed} Inventory aooording to the best of our judgment, and having viewed the said goods and chattels do appraise the same at the sura of pounds — — — shillings and ■■ pence, and no more. As witness our hands tho • — —-day of A. D. IS—. Witness: i Sworn appraisers. When the goods are sold, the produce of tho sale as far as neccsKiry is applied in satisfiustion of the rent, and the expenses of the distress ; if the produce is more than sufficient for the purpose, the residue is to be given to tho constable, for tho vao of the owuer of the goods distmined— and it should be handed over by the constable whenever demaiided.(a) ] <«) AUhou{^ not in direct keeping with the subject treated of, the Editor con- r . i! ■i iii I ^P^ a.A_^-."^;--' . I ii ll ''.I i\ !i 4i Eajuiring aid to other PtMic Officers.] — CuiiHtattlFK niny bIhu, in certain CHses, bo culled upon to aid and {insist uificera cngHged in reivM that th« following ronm may not bn coiviidered out of place. uhI that Ihejr ■nay prove umIuI to LaixilonLi generally. The landlord hintueir, or any other pemon, a« hit ItailifT, by an authority fiom him in writing, may male* the dintreM. The warrant or authority may be in the following form :— To Mr. my bailiff: I DO hereby authnriae and require you to diitrain the gooiU and chattels of [Ihe ttnant] in the house he now dwells in [or " on the premiaea in his possession,"] situate in the lowiwhip o f . in Ihe County o f . for ' pounds, being one year's rent, due to me for Ihe same, wi the day of— —last, and to proceed thereon for the lecovery of the said rent u the law dir»rta. Dated the lay of , A.D., Ift-v Beinc legally authorised to distrain, you enter on the premises, and make a seiaire of the distress. If it be made in a house, seize a chair or other piece of fur- niture, and say, " I seize this chair in the uame of all the other goods on the premises for the sum o f p ounds, being one year's rent due to me [or " to your landlord] on the day o f l ast, [•< by virtue of an authority to me fiom tlie said your landlord for that purpoM," proviled yau dittrain m bail{fi]. Then take an inventory of so many goods as you judge will be sufficient to cover Ihe rent distrained for, and also the charges of tlie distress. Make a copy thereol aa foUowa; Ak Ixvkntort of the several goods ami chattels distrained by me— —{or, ifm baUiff, sny " as bailiff to Mr. "] this day of in the year of our Lord IS — , in the dwelling-house, out-honses, and lauda [« Ikt cat aMy6c] of ——situate in the Township of in the County of [and if a* bailiff, say, "by the authority and on the behalf of th* said — — -"] for the sum of — — pounds, being one year's rent doe to ma [or " to the said "] for the said house and premisesi on th« day of last, and as yet in arrcar and impakL /» the DwMing-kouM, 1. htiuKOekm. Two tables, six chairs, one cooking stitvt, &c. 2. iHttiParlomr. (Describing the various articles aeiaed.) 2. iu tk« DbuHf'^oom. (Describing minutely the varioua artirlaa.) /» the Outkoute'. 1. Bam. . One fanning mill, fiAy bushels of wheat, Jic S. StabU,^ On* horse, one waggon, lie And so on, describing the things according to whcra they are taken from. At the '^I, ml III Uie«xecutiunui' civil prueow: fur exunii>le — tli« kuilitf uf a Diviaiou (Aturt to M'iiuiii u wuriuiit uf cuiniiiiUneiit or execution is directed iMiittMit ofliMluvMiUNyikuWrtlM iIm IbSlowing u«(ie« to Uw Wmiit, Mconliiig m UM«ii««iiMy In:— Mr. , Takr Notick, tiat I have tliu tiay dianiiMil [Or " (hat I, u baiiilflo , y< S(c., M Mm «aid iMSNUKcs.*'— I DoMgi, inti ^ n I i^t: u 1; i 1 ! !l, |\ i'rom tlie Court he is bailifl'of, and all cunstablca not uuly niayi but miut, within their rmpective jurisdiction, and iu the execution oi every such wrarrant ; und generally constables should render aid to nil 6fficers of justice, in the just and lawful discharge of their official duties. * Dl'TIES IN RESPECT TO COROMERa. I would briefly lay that a constable has a duty to perforin un* der Coroners, as well as Ja^tices. Should a death occur from violence or unfair means, or through culpable or negligent conduct, the Coiutuble oi the place should no- niMle acquainied wheir they are removed to, but it is now most usual to put a vTiSn ill poneuion, and let th< m remain on the prwnisM till you are entitled by law toiell them, which is the sixth day inclusi\-e, aAei the distress made; i. c. goods distnined on the Saturday, may be reiuoved on the Thursday aAcnioon following.— IToUk* ra. King. l.H. Black, 13. If the tenant require further time for the payment of the rent, and the landlonl choose to allow it, it is best to lake a memorandum in writing from the tenant to tb« Allowing effect, ao as to prevent the landlord from being deemed a trespasser, which after the expiration of five days, he itherwise would be, and might have an actioa of trespass biought against him for tUtying longer upon lliepremiaea. Mr. I Heubbt desire you wDl keep pouession of my goods, which you bare thia day distrained for rent due (oi alleged to be due) from me to you, in the place where they now are, being in the hack room of the house in which I now re- side, said house being situated in and upon Lot Numbe r , in the Concestion of the Township of , in the County o f [^cixf t^Ff*' •UMi inhere the dutrtu tros made] for the space of ycven days from the.date hereof, on your undertaking to delay the sale of the said goods and chatteb lor that time, to enable me to discharge the said rent; and 1 will pay theBUw for keeping the said possessioa. Witness my hand, thia day d « , A.D., IS— Witneaa. i Vaiet the Act of 1st Victoria, chap. 16, entitled, " An Act to regulate the coola of levying distresses for small rents and penalties," the followiog Khcdule of firea ran alone be demanded for any sum under £20:— Levying diatress under tea pounda/— live shillinf^ Man keeping possession, per diemr-three shillings and nine paoce. Appraisement, whether by one appraiser or more,— ibur pence in the pwiad an the value of the fooda. If any printed advertisement,— not to exceed in all five ahiHinga. Catalogues, Sole and Commissi6n, and delivery of goods/— one shilUof in tiw pound on the net produce of the tale. ' If Mil. m m 11 4S tify the nearest Coroner thcrcuf, while tlte bwly is fresh ; ami, if |K»!iible, while it remains iu tlie same situutiun us when the |Mity died. He should attend the Curoner when he arrives, ['llie hin- guage used in the Provincial Act 13th & 14th Vic, chup. 56, regn> lating the duties of Coroners, shows fully the circumstances under which it would l>e pro|)er fur a coustubic to notify a Curoner. The lirst section of that Statute runs thus: — «' No inqiK-Mt dliall be holden on the body of any deceased penwn by •• any Coroner until it has been iirst made to appear to such Coroner, that ** tht^re is teasoit to believe that »uch deceased person came to his death *' under surii ciruuin.' suited for it, to take in his turn. There are many risks to be incurred and some things to bo per- formed for which no compensation is allowed ; but for the most part, there is a set fee payable for each particular service— in soma cases payable by tlie parties, in otliers out of tlie Coimty (unds and Provincial Revenue. The constable's accounts are in general paid by the County Treasurer, after audit by tlie Magistmtes in Quarter Sessions, and the County Auditors.(a) (a) The practice in auditing Accounts connected with the administration of Justice, fw,, is not uniform in the several Counties in Upper Canada. In some Counties, wo believe, Accounts are paid by the County Treiuureroii the oidcr of the Magistrates; in other Counties without any order, but merely on the audit and report of the County Board of Auditors. A question arises under the Oth Vic, chap. 58, whether parties claiming pay- ment for services performed, and expenses incurred in the administration of justice in criminal matters are given a claim directly against the Province, or whether the effect of that Statute is to nydie the Province debtor to the Counties respectively for the expenses enumerated in the Statute, on their being ascertained in the appointed manner; the latter is the correct view in our opinion, viz: that officers pertorming services have their claim directly upon their County ; but that their accounts must be made out in such foni;, and accompanied with such vouchers, as may be required under the authority of the second section of the Act And that when the several amounts for which the Province is liable, ore sett'ed according to the regulations made under the second section, the Province becomes liable to each County for the amount settled on final audit The County, then, debtor to the pvty, the 7th Vic. chap. IS regulates the mode in which the various accounts due by a county are to be Audited and paid, viz. : the accounts must be delivered to the Clerk of tlie Peace, the first day of es!:h Quarter Sessions to be thereailer audited in Sessions before seven Magistrates at least, and Um p«rlies to be paid by the County Treasurer on the Chairman's check. Of course ihe audit of accounts not connected with Uio administration ot jiistice is vested, by the Municiiwl Council Acts, in the County Councils. It is not eotiy to perceive on wbut grouml a County Treasurer could assume to n w .^» ' juii|jf;j > f i , mmmmm mmmmm I L- < i^ -J I ) 47 • Tlie constables* Recounts sliotild siltow tho names of the [nrties, tlie nature of the ofibnce, in relation to which the service oliarged for was performed) and the name of the Magfistrate before whom the proceeding is had ; and, where there is a chaise for mileage, the place from where and to where the^ tmvel is made should bo stated in the account* ^ [The following are Extracts Trom a Minute of tlie Executive (Jotmcil respecting the duties of Ck>unty Auditors :— « That all aooounts for the payment of which, or any part of which the Province is by the Act (9th Vto., chap. 68) liablu, shall be rendered in dopiioate to the Treasurer of each County during the sittings of the Court of Quarter Sessions, or within throe days thereafter, and shall include all the demands of the party rendering the same, (pay- able by the Province) up to the day of rendering such an account, and refer to the authority for the charge. ' « That each such account before rendered to the Treasurer shall be verified by the party, that it is just and correct to the best of his knowledge and belief. And in cases where mileage is charged, there shall be an affidavit stating the places from which and to which the himself a power to make payments out of the County Furnb, on the report of the Board of Audit, and that body does not poasem authority to grant ehecln oi ordera on the Treasury for accounts audited by them ; they are, u we take it, simply a local Board of enqniry, appointed by the Executive, and their audit has jiever been regarded as final between the County and the Province. The proper course se e m s-— for a party to make out the account against the County, and copies thereof in duplicate to he lodged with the Treasurer ; any other practice might cause inconvenience and km to the parties or to the county, and would throw it upon the Accountanfs to scpaiale their items of claim under two heails ; thone that wouM be within the meaning of 9th Vic., chap. 68, under one head, those which wouM not come within that Act, but neverthelcM due bv the County under another, head ; and this upon the conatniction given to the 9th Vic. is often a question difficult of determination, indeed many Counties in Upper Canada are now at issue with the Government on the point The First clause of the 9th Vie., eluip. 68, provides that [the " expenses oi the administiatfam of Criminal Justice" shall be paid out of tin public funds of the Province. The third sectkm of the Statute enacts that the several heads of expense mentioned in the Schedule to the Act" shall be detmtd expenses of the administra- tkm of Criminal Justice wUkm Ikt wuanmg qftU$ Act." The Schedule does not em- brace all the itema of expense eonnectvd with the adminiitration of Criminal Justice, and some of the terms used are ambiguous, and hence the difficulty. By the Court of Quarter Sesskms making it a condition previous to niuliliag an account, that duplicates shall be kxiged with the Treuuirer, in the form retpHred by theGovemment, the matter is put on the s»'''.a iUrting under the existing law. Thra the Treasurer on paying each account, ordefMl to be paid 6jr Me SfMUmn, can charge it to the "Administration of Justice Account," and when the portion for which the Province is liable, is received, he can ent«>r it to the cicdit of the nsme account. Wp,iil!!J|UIMiprWP.iPi",JiW5!i|-ii|ffl,Wj;. .--■;—» id [Biil«B{(e !■ reckoned^ as well at the number of znitosy and that m va oafle shall moito thanr the actual number of miles tmtelled be allowed^ nor a greater number of miles than the distance from the Court Ho«M , to the plaee of serrice." With respect to the autiiorUy for constables* charges it is ibr (he moiit part embmccd in the *< 'Judges^ Tarifi"." The following w on extract from the order of tlio Oburt of Quecn^s Bench, on the I5th November, 1845, establishing a tariff : — , ' **ni» ordered, under ^he authority of the Statute passed hi the ei^th year of her present Ma^uMy's reign, intituled, " An Act to regn- latd the fees of certain District O.'ficers, in that part of this Prorlntfe called Upper Canada," that.thsj fees in Uie table annexed to Ibis rule shall be taken and received by Sheriffit, Coroners, Clerks i^ the Peace, Constables, and Criers, respectively, in the several districts of this Province, for services rendered by them, respectively, in the ad- ministration of justice, and for other dintnot purposes, where suoh services were not remunerated by any law in force at the time of . passing the said act. • *' But it i$tobe understood-' ** That, besides the fees set down in this table, the several officers will be entitled, as horetoforo, to receive fees for other services rendered by them, respectively, which are not mentioned in this table^ wherever speoifio fees for such servines are fixed by any statute ; the Judges havins no authority, under the act referred to in this mloy to make any regulation in such cases." That portion of the Table of Fees which relates to constables issnbjoined: CONSTABLE. . , — 1 — : n . ' — — Arrest of each individual upon a warrant. (To be poid out of the County Funds, or by the party, as the case may bo.) Serving sumtnous or subpoina. Mileage, 6d per nule. (To be paid out of the County funds, or by the party, as the case may be ) . , Attending Assizes or Sessions, per day Attending any Justice on trials, under the Sum* mary Punishment Acts, or on the examination ' of prisoners charged with any- crime, for each day necessarily employed. * Milooge in going U> serve summons or vrarrant,when the servioo nas not been effected; the Justices To be mM out oTUid Cooniy F|iiMlh £ S. d; 5 13 6 6 Tobe jniit by, ibentty. £ S. D. 6 1 3 6 6- , , ..... , , I ,■■ r '■""' nflBWWWT^^HW 'Ir'tffWW^^P'l^^RT^^vi^^^WSi mn^m^^ u '; I 4,9 CONSTABLE. in Seasior . to be satisfied that dae diligence has been used. (To be paid out of the County iunds, or by the partyi as the case may be). . . Taking; prisoners to gaol, 4d per mile, exdusiTe of disbursements neoessarify expended in their conveyance. (To be paid out of tlie Coun^ funds, or by the party as the case may be) . . . Summoning Jury for Inquest Attending inquest for each day other than the first. Serving notice of appointment of Constables, when personally served Levymg upon distress warrant and returning the same, where charge not provided by law. . . Advertising and selling under distress warrant, where charge not j^iovided by law Travelling to make distress, or to search for (loods to make distress, when no goods are found, 4d Eer mile, where charge not otherwise provided y law. « Appraisement, whether by one appraiser or more; 4d, in the pound on taa value of the goods.(6) To be mid by Uwnttjr. £ S. d. 6 \ T (6) The Aeeowits in the County of Simcoe are made out and verified in tripU« eatSi one copy is ddlvered to the Clerk of the Peace, the other two to the County Treasnm. This is the form used, COUNTY OF SmCOB Dr. to . Omdahlt, (Authority for charg es . " Judipss* Tariff") Oats. 15^ Jaa'y. 19th If Atvai ot BiiiTici raarouov, Namb ot Jomcs airoai WnOK raOCBUIXM HASi Anest under Wanant, fin Larceny, In the caae of the Qoeen on the mosecation of John Doe m. lucbani Roe. Necessary travel from the Magisbtale^ OAce at Bradfind to Bond Head, to make arrest, • mike. C. 0., Esq. Bmu. T -, Coostabie. deelsrs thst the above Account is just and true, hi every particular, to tbs best of my knowledge and belief: Comtabie. '^^m h 90 As printed forms are fUmished to constables, I need'ooly add, that in all eases it is advisable for the officer, in addition to the usual verification of his account, to get the Magistrate to sign to its correctness. In executing a distress warrant on a sununary convicticm, the constable is authorized to levy his charges witli the fine imposed ; but in cases of felony, costs are not payable by the parties. It is to be regretted that there is no means in ordinary, ade- quately to remunerate a constable for zeal a; ^. activity, or extraordi- uary exertions in the public service; but as the law stands the officer must be content to perform his duty cheerfully at the present allowance, iusiifficient reward wUl not excuse or palliate any neglect cfduty. V. PROTECTION TO CONSTABLES. Besides the several Statutes giving porticular protections and indemnities to constables, are the following general enactments. : Against Crimintd Rcsistanct.'\ — ^^lAliosocver unlawfully and maliciously shall shoot at any person, or shall by drawing a trigger, or in any other manner attempt to discharge any loaded arma at any person, or shall stab, cut, or wound any person, with intent to maim, kc^ or with intent to prevent the lawful ajtprehei^ sio7i or detainer of any person,€tai\\. be liable, at the discretion of the Court, to be imprisoned, at hard labour, in the Penitentiary for the term of his natural life, &c., in the Province — (Sec. 11, 4 & 5 Vic, obap. 27), and any assault upon a peace officer, in tlie due execution (N.B.— The aama of the putiei, the natore of the chtrge, and the wrrioee peffonned to be fully specified. The Accounts, kc, are to be lendeied io triplicate, and transmitted to the Clerk of the Peace, three days previous to the holding of tlie Court of Quarter Sessions.) UpoD the Account the following AfBdavit is cndonedt * Ckmnty of Simcoe, ) I of the Township o f i n the County of Sim> To wit: ( coe, Constable, do swear that the within Account is Just and conect in all its particulars, to the best of my knowledge and beliel^ nd that the number of milee travelled, to peiform the services therein mei». tinned, is correctly stated, u well u the place from which and to which U>* mileage Is reekooed in each ease. Sworn before ne, a t ' } ',A.D.,l^-> ■ ■ »■ I — J.F. I ii\ :,.ri^mmim^m. m I » I •■ ; 51 of his duty, or npon ayy person acting in aid of ■ooh officer, or any assault upon any person with intent to resist or prevent the lawM apprehension or detainer of the party, so assaulting, of any other l^erson, for any ofience for which he or they may be liable to be apprehended or detained, is punished under 4 & 5 Vic, chap. 27, «ac. 25, for as long as two years; and it has been already noticed tliat for assault on special constables in the discharge of their duty, a hea\-y fine may be imposed on summary jMOceeding, or an indict mcut may be preferred against the party o^nding. Against Civil Actions."] — Several particubr Statutes contain dauses fur the protection of persons acting bon&jule in the execution of them ; though it may be in mistaken exercise of the powers they. confer — ^requirin^r iu>ti<^ of action to tlie constable, &c., before action brought ; nutliorizing a tender of amends, and depriving the ploiutiiTina suit against an officer, &c., of his costs in certain cases. Tlie Act of last Session (14> & 15 Vic. chap. 54) is a genenl Act, amending and consolidating tlie laws afibiding protection to Magistrates and others in tlie performance of public duties. I wish- to sj)eak of it in general terms, as its provisions ojien many questions of doubtful construction. It repeals so much of such Acts " as were then in force, whether pablic, local, or ]x!rsonal, as conferred certain privilege as to notioe and limitation of action, costs, pleading, evidence ' .e of trial^ tender of amends, payment of money into Conn, ry- gagements, aud the limited materials within my reach permits) the duties of a constable, I have at least shown the extensive authority pertaining to the office ; and, in conclusion, I would say to those to whom what I have said more particularly applies, that as their powers are large, so are their responsibilities great. They are armed for the protection of law and order, and great will be the crime if the weapons they are furnished with, be pointed against the ]»inci- I^es they are sworn to maintain. m 'm^wmitiimt' Mmm^i