case the queen against Tooley arch and lawson overrule b v Davis l c Cox c c r  v Allen l t if a constable arrest a woman illegal as a disorderly person and  confine her in the roundhouse and a person endeavour to release her from such  confinement sudden and without any precedent malice kill a man who be act b  the command and in aid of the constable it be manslaughter only and not murder  S c holt S c ld ray the defendant be indict at hicks hall the one as principal  and the other two as accessary for the murder of John dent a constable and be  try at the old Bailey the jury find a special verdict as follow that by a  statute make in the twentyseventh year of queen Elizabeth for the good  government of Westminster it be enact that for reformation of disorder in that  city the dean high steward or his deputy or two capital burgess may hear  modern report er p and punish incontinencies accord to the custom of London  that by the custom of London any constable of any ware parish or precinct may  execute his office throughout the whole city that within the city borough and  liberty of Westminster it have be use that every person duly appoint constable  of any parish within the liberty of the city borough and Vill of Westminster  his office of constable in and through the whole city and borough of  Westminster and the liberty thereof have execute and use to execute that on  the eight of march in the eight year of queen whether three commissioner duly  appoint by virtue of the Act for the recruit of the army for put the Act in  execution by virtue of that Act make a warrant under their hand and seal  direct to the constable of the parish of saint Margaret Westminster within the  say city of Westminster thereby command the constable to make search within  the say city and liberty for person within the description of modern report  that Act which warrant after that day be deliver to Samuel bray then and yet  constable of the parish of saint Margaret to be execute that after that day  Samuel bray into the parish of saint Paul convent garden within the city and  liberty of Westminster to execute that warrant do come and be that within the  parish of saint Paul covent garden there be and be a constable belong to that  parish that bray before have send to John dent to assist he to execute that  warrant that after the say eight day of march between eight and nine at night  at the say parish of saint Paul covent garden the say Samuel bray stay to  execute that warrant one whether dekins in the street between the playhouse  and the rise tavern he then and there find who he suspect to be a disorderly  person and then and there as a disorderly person take into his custody as  constable of the city and liberty of Westminster to carry her to prison for  her safe custody that whether dekins have be before take up by bray as  constable as a disorderly person that at her be take up by bray on the say  eight day of march she have not misbehave herself that bray have no warrant to  take her or detain her that after the take the say whether the prisoner bray  then have her in his custody in another place call covent garden do meet they  be all stranger to whether dekins draw their sword and assault bray to rescue  her from his custody that bray show his constable staff and declare he be  about the queen business and intend the prisoner no harm whereupon they put up  their sword and bray carry the woman to the roundhouse that the prisoner a  little after the say whether be in the say prison in coventgarden aforesaid  draw their sword again and assault the say bray on account of the imprisonment  of the say whether and to get her discharge that bray call some person to his  assistance to keep her in custody and to defend himself from the violence of  the prisoner that dent come to his assistance that while dent be in the  constable assistance and before any stroke give the prisoner give dent the  mortal will in the indictment mention modern report of which he die as in the  indictment and that the two other be aid and assist he that give the stroke  but whether the defendant be guilty c this special verdict be remove by  certiorari into the court of king bench for the opinion of the court Mr  Raymond argue for the queen that it be murder he say there be two point to be  consider in the case first whether bray be in the execution of his office for  then it be murder and second if not yet still it be murder because here be not  a sufficient provocation as to the first point he cite Machelleys case a   a  constable may seize disorderly person and be officer at commonlaw a Inst and  the yearbooks Edward pl a Henry pl b Edward pl a and not only disorderly  person but suspicious person also b yearbooks Edward pl Henry pl a and lambard  justice fol b and we must rely on the case cite because the special verdict  only find her to be a suspicious person and it be find that she be a  suspicious person bray have authority to seize her it will be object to I that  be be constable of saint Margaret be out of his modern report er p precinct  when he take up whether dekins in saint Paul covent garden c foster justice he  be no constable in the precinct where the arrest and imprisonment be foster c  l notorious facts c to which it may be answer that the statute Elizabeth find  in the special verdict have relative word to the city of London and by custom  of that city any constable within that city may exercise this authority  throughout the city and though constable be not name in the statute yet other  peaceofficer be name a constable shall be comprehend as if a remedial law be  make and but one person mention yet it may extend to other as the statute de  circumspect to put in motion where the bishop of Norwich be only name yet all  other bishop be comprehend d he cite Fitzherbert Abr prohibition Inst statute  Richard c and Plowd c d it be find that they use to exercise their authority  all over Westminster though they have not say time out of mind and though in  plead it shall have be set forth yet it be well as it be in a special verdict  e he cite roll Trinity term car Alton v guash e his have a modern report  warrant from the commissioner of the recruit Act do not hinder he from seize a  disorderly person in breach of the peace it may be object that she be no  disorderly person f hawk p c ch S Bl Com and king v booty burr f to which it  may be answer that the constable have have her before in his custody as a  disorderly person may well suspect her again it be between eight and nine at  night and between the playhouse and the rise tavern as to the second point  suppose he not in the execution of his office whether here be a sufficient  provocation to make it manslaughter only and be say it be not for it be find  that whether dekins be in custody the prisoner all draw their sword and  assault bray upon which he show his staff and so if there be no provocation it  be murder for the law imply malice g hale Inst g if whether dekins have  herself resist and kill the constable it have be but manslaughter otherwise as  in this case where a standerby kill S the constable if speak word whereby a  man may suffer damage in his reputation shall never be a sufficient  provocation to make ft manslaughter h Keil h much less a wrong do to a  stranger because not so great a provocation so that in all case there must be  a proportion in the provocation as if a man break my close and I with a stake  beat his brain out it be murder a Mawgridges case Kely a and there must be a  open act of violence do to make it manslaughter he say he expect Hopkin  Huggitts case b hale p c see foster c l b will be cite against he but this  case be different from that for there they come civil and demand a sight of  the warrant but in this case the very first act be a assault upon the  constable their sword be draw and a actual fight which increase the  provocation here be a assault upon the person kill before a blow give by those  of his party there be no warrant but here be a know person of the law so upon  these reason he submit it first whether he be in execution modern report of  his office second if he be not yet here be no sufficient provocation Mr  Pengelly for the prisoner argue that the constable be not a know officer for  that no authority be give to constable by Elizabeth for that Act be not  universal as the statute de circumspect to put in motion or the statute of  Westminster concern the warden of the fleet but only a particular jurisdiction  give to particular person from who the constable have no warrant but this  warrant be give by the commissioner of the recruit Act and though in London  the custom may give a jurisdiction to the constable to act all over the city  yet in Westminster there be no such custom the special verdict find that such  a custom have be use in Westminster but do not say time out of mind and the  Act of Elizabeth be here find make it plain that they do not pretend to such a  custom time out of mind in the case of the king v chandler c Hilary term will  c it be settle that a constable can go out of his modern report er p precinct  but a justice of the peace by his warrant may appoint a constable by name to  execute it anywhere within the jurisdiction of the justice of peace it do not  appear that they be appoint commissioner for this particular place or county  but it be only say they be duly appoint commissioner and by the Act the  execution of their warrant be restrain to particular officer within their  jurisdiction and in this case there be a particular constable of covent garden  so that there be no failure of justice and therefore the constable here usurp  a authority and consequent be a trespasser to all people he take up but  suppose he be a lawful officer yet that will not justify act beyond his  authority it do not appear that be act under the recruit warrant and though ex  duty if he see person fight he may restrain they or take up suspicious person  yet the take this woman be not lawful for she be very decent at the time and  therefore no cause of suspicion but they shall have find her to be a  nightwalker as be usual in those case d he cite herns pleader the statute  Edward c and Upper bench precedent d modern report upon take up a suspicious  person it must appear that there be just cause of suspicion as a felony do for  the cause of suspicion be traversable a he cite   style roll Abr Inst Inst  vent bro Abr Commission pl a if the constable have no authority he be in a  actual breach of the peace may be indict and be liable to all the consequence  of it but where the officer be kill in the execution of his office no doubt it  be murder b he cite cro car Jones hale Inst b but in this case if bray himself  have be kill it have not be murder much less kill a assistant as to the  provocation it be find that they do not see the first arrest but they see her  under restraint and bray be continue the trespass when they come up they come  to rescue the woman who be undue restrain and their see her under restraint  take off all imply malice and since it be not find that they be upon a ill  design they can be suppose to have any previous malice there be in the statute  of stab I James c a remarkable passage to this purpose c by James c S every  person who shall stab any person that have not then any weapon draw or that  have not then first strike the party which shall so stab although not do with  malice aforethought shall be adjudge guilty of wilful murder but it be provide  that this shall not extend to any person who in keep and preserve the peace  shall chance to commit manslaughter so as the say manslaughter be not commit  Willing wilful and of purpose under pretext and colour of keep the peace c so  in the case of the protector v Buckner d style the case be this Harwood and  another person go to the lodging of Buckner in drurylane and when they be in  the lodging the assistant take down a sword in the scabbard which hang in the  room and stand at the door of the chamber with this sword undrawn in his hand  and keep the door to keep Buckner from go out until they can bring a bailiff  to arrest Buckner for a debt which he owe to Harwood whereupon upon some  discourse between Buckner and Harwood Buckner take a dagger out of his pocket  and stab Harwood and kill he Buckner be indict on the statute James c and  after very elaborate argument judgement be give for the prisoner d and in a  anonymous case in Keilways report e Keilw e the constable say Mr Raymond be  about the queen business but they draw their sword not imagine he have any  such authority and as to their trespass grow more and more outrageous I answer  so do the provocation the point they go upon in Hopkin Huggitts case be upon  the restrain the liberty of the subject and though it be object by Mr Raymond  that there be fight yet that be not to the purpose for in Mawgridges case the  first act of violence be do by Mawgridge it be hold murder notwithstanding the  resistance that cope make f Keilw f there be no original malice against bray  there can be no derivative malice to modern report er p dent who come to his  assistance for where there be no malice in the principal it can to go out mask  g hale dyer countess of Salisbury case Plowd style Keilw Thompson case Keilw    Keil g modern report upon argue this case holt chief justice say you have take  the statute Edward c too large for certain a suspicion bare conceive b the  constable be not sufficient without some act of lewdness do as to his have  take her up before it do not appear that that be lawful but whether it be or  not it will not justify his take her up again a the imprisonment of the woman  in this case say Mr justice foster be certain unjustifiable Fost c l a and  though he be a constable his staff do not give he a licence to do what he  please b see foster crown law b and if he be not in the execution of his  office but break the peace then sure be may be resist and as for dent he  assault her and it be all a continuance of the same act and though it be not  lawful to rescue yet certain the take her may be a provocation and that be  Hopkin Huggits case Powell justice say he will extend this Act as far as be  can to suppress vice but take it for grant that the constable be within his  jurisdiction yet he can not justify take up this woman whenever a constable  may take up any person it must be either for a actual breach of the peace or  upon good ground of suspicion and the cause of his suspicion must be show  because it be traversable and in case of suspicion where there be a felony do  there be no difference between a public and a private person but when a  constable have a warrant be be tie up to that warrant to act only as that  direct therefore bray have take up this woman without any just cause of  suspicion she be illegal imprison and therefore a provocation to all the  people of England powys and gold justice be of the same opinion this case be  adjourn to sergeantsinn for the opinion of the twelve judge and after several  argument seven of they videlicet holt chief justice of the king bench Powell  powys and gold justice of the king bench and bury price and Lovel baron of the  court of exchequer be of opinion that the prisoner be guilty of manslaughter  Trevor chief justice of the court of common plea Tracy blencowe and dorm  justice of the common plea and ware chief baron of the court of exchequer be  of opinion that it be murder modern report and the last day of the term the  prisoner be bring to the bar of the court of king bench holt chief justice  deliver the opinion of the twelve judge as follow he say he will first show  the reason the seven judge who think it manslaughter ground their opinion upon  and those be first that it be a sudden action without any precedent malice or  apparent design of do hurt but only to prevent the imprisonment of the woman  and to rescue her who be unlawful restrain of her liberty and if the woman be  unlawful imprison then it can be murder and cite young case a   a and  Mackellys case b   S c cro James b where it be hold that if a constable be  kill in the execution of his office it be murder but it be otherwise when he  be do a wrongful and oppressive act it be not only necessary to make it murder  that the constable be in the execution of his office but he must give notice  that he be come to keep the peace and cite Thompson case c Keil c and so e re  young case and Mackellys case to be understand for if be do not give notice  the party may reasonable suppose that he come to assist his adversary d see  foster crown law d the second thing to be consider be whether bray be in the  execution of his office the statute Elizabeth do not name a constable but only  a power be thereby give to the dean highsteward and capital burgess of  Westminster but sure it do not follow that the constable have such a power and  we be all agree that the power of the constable be no great than it be before  this Act one of my modern report er p brother hold that bray be constable de  facto but that can be since there be a constable at that time of covent garden  now if the constable of one parish have not power over the whole liberty then  bray have no more authority than if he have be no constable at all suppose for  argument sake that bray be constable of covent garden I be of opinion that the  take up the woman be illegal though she have be in his custody before and if  so he do not act as a constable but as a modern report common oppressor when  he have her in his custody before the verdict do not find that she be guilty  of any disorderly act it be not a constable suspect that will justify his take  up a person but there must be just ground of suspicion as in case of a felony  commit and that be traversable e Inst e it will be hard that the liberty of  the subject shall depend upon the will of the constable and shall his not like  the woman look be just cause of suspicion three the prisoner have sufficient  provocation for if one be imprison upon unlawful authority it be a sufficient  provocation out of compassion much more when it be do under colour of justice  and cite Roystans case f cro throw f and   and where the liberty of the  subject be invade it be a provocation to all the subject of England he say a  constable can arrest but where he see a actual breach of the peace but if the  affray be over and thing quiet he can arrest g cro yearbook Henry fol g  constable have authority by the statute to arrest person but that must be by  warrant from a justice of the peace but in this case there be no warrant the  reason of the five judge that it be murder be these four of they agree that  the constable have no authority but one be of opinion that show his staff be  sufficient but I never know that the constable staff be of such efficacy when  the constable himself have no authority four of they hold that she be a  stranger to they it be no provocation otherwise if she have be a friend or  servant but sure a man ought to be concern for great Charta and the law and if  any against the law imprison a man be be a offender against great Charta we  seven hold this to be no provocation and we have good authority for it in  Hopkin Huggitts case a Kely S c ld ray a and this case be strong than that the  judge who be of opinion that that case be murder go upon this reason videlicet  that he be a stranger to the person impress but though of a different opinion  yet give judgement accord to the opinion of the eight it be not the fight  modern report that make it manslaughter but the provocation by the unlawful  imprisonment for if one without provocation draw his sword upon another and  the second draw they fight and after mutual passes the second be kill it be  murder the five who think this case murder say that to a relation or a friend  it be a provocation but not to a stranger but that be a distinction not to be  meet with in the book be cite Plowd where two fight upon malice prepense the  servant of one of they not know of the malice come to assist his master and  kill the other this be hold but manslaughter in the servant which case be  abridge hale pl cor the reason of the case above be not that he be servant but  because be know not of the malice they say that Hopkin Huggitts case be prim  impression but yet it be of good authority be give upon mature deliberation  and resolve by eight of the judge then they say that in the case at bar it can  not be a provocation to the prisoner because they know not that she be illegal  arrest but sure ignorance fact will excuse but never condemn a man a man in  this case act at his peril but he must not lose his life for his ignorance of  the fact when be happen to be in the right and cite sir Henry Herrars case b  cro car b where he be arrest by a warrant that name he knight whereas he be a  baronet and his servant kill the bailiff this adjudge manslaughter only  because he be arrest upon a ill warrant suppose a man have a judgement against  he and go abroad and be inform upon his return that there be bailiff in his  house be go in and kill one of they but it prove that they be thief that come  to rob he he be in no fault modern report er p it be likewise object by the  five that it be dangerous to allow such a power to the mob but I think that no  proper word to be use in a court of justice and a provocation do not make it a  allow the offence but only a mitigation of the punishment and for this the law  make the distinction between murder and manslaughter they say that the  prisoner come after the imprisonment be modern report over but certain their  put her in prison and not carry her before a justice as they shall have do be  a aggravation and why shall bray call dent to his assistance after she be in  prison all agree that he be not constable of covent garden therefore it can  not be murder for if a writ be direct to the sheriff of Middlesex and the man  step into buck the sheriff follow and arrest he in buck he kill S the sheriff  this be only manslaughter I be as much for a reformation as any one but in a  legal manner for man bone be quis who consulta father and law juraque watch  over and conclude it only manslaughter a see Mr justice foster observation on  this case foster c l a but note the court will not call the prisoner to  judgement nor let they pray the benefit of the clergy nor suffer they to waive  the queen pardon because the court be bind to take notice of the late Act of  grace as a general law whereby the manslaughter be pardon but they order a  special entry to be make upon the roll that the court will not give any  judgement because of the general Act of pardon therefore they be discharge as  to the indictment upon which the sheriff produce a writ of appeal which be  deliver to he and the court hold that the prisoner be in custody as to the  appeal by the delivery of the writ to the sheriff