| Chap. 150. |
Homicide upon Necessity.
is Felony, as well in the Justices, as in the Sheriff, or Officer which
shall
hang him: For that the Justices of Peace had no Authority therein,
but
it was Coram non Judice. Lecture, M. Cook. See also
Ca. 10. fol. 76. |
355 |
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If the Justices of Peace shall arraign a Man of
Felony, upon an Indictment
of Trespass, whereupon he is hanged. This is Felony in the Justices,
but not in the Sheriff or Officer. Lecture M. Cook. The
difference between
these two Cases, appeareth in my Lord Cooks Reports, lib. 10. f.
76. sc. For
that in this last case, the Justices of Peace had Jurisdiction of the Cause;
and therefore, although they proceeded inverso ordine, or erroneously,
yet
the Officer is excusable. |
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Sometimes also the Justice of the Law tolerateth
and suffereth a Man
to be slain, sc. for the necessary execution and advancement of
Justice,
which otherwise should be left undone: And in such case, the law
of the
Land imputeth not it as any fault to him that shall so kill a Man, but
freely
dischargeth him thereof, without the Kings Pardon. |
Tolerated. |
F. Cor. 262.
Stamf. 12. |
As a Sheriff, Bailiff, or any other Person who hath
a lawful Warrant
to arrest a Man indicted of Felony, may well justifie the killing of him;
if he will not suffer himself to be arrested, and yield himself, and
that
they cannot otherwise take him. See 22 Ass. 55. & Fitz.
Cor. 288 &
328. |
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F. Cor. 363.
Stamf. 13. |
And so every person whatsoever, without any Warrant,
may apprehend
a Felon upon Hue-and-Cry, or otherwise. And if he will not yield
to be arrested, but shall resist or flie, the pursuer may kill him without
blame. See Fitz. Coron. 328. & Co. 5. 109. b. |
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Herewith also agreeth the Doctor and Student,
lib. 2. cap. 41. saying, If
any person that is an Officer would arrest a man that is Outlawed,
Abjured,
or Attainted of Murther or any other Felony, and such offender shall disobey
the arrest, and by reason of that disobedience he is slain, the other
shall not be impeached for his death; for it is lawful unto every Man to
arrest and take such persons, and to bring them forth, that they may be
ordered according to the Law. |
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F. Cor. 288
& 328. |
An offender in Felony is led towards the Gaol, and
breaketh away
from those that conduct him, and maketh resistance or flieth; his Conductors
may justifie to kill him, if they cannot otherwise take him
again. |
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| 22 Ass. 35. |
A Prisoner in the Gaol attempteth to escape, and
having broken his
Irons, striketh the Gaoler (coming in the night to see his Prisoners)
and
the Gaoler slayeth such a Prisoner. This is no Felony. |
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Cro. 24. 61
30 & 158. |
Riotors, and such as shall make any Forcible Entry
or Detainer,
against the Statutes, if they shall resist the Justices of Peace or other
the
Kings Officer, or shall not yield themselves, but shall stand at their
defence,
when the Justices of Peace, or other Officer, shall come to arrest or remove
them, if any of them happen to be slain. This is no Felony in the
Justice
of Peace or Officer, or in any of their Company that killeth such Riotors,
&c. Lamb. 310. |
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Stam. prærog.
fol. 46.
Cor. 24. 30.
Doct. & St.
133. b.
Stamf. 13.
e, f, g. |
The Sheriff, Bailiff or other Officer cometh (by
virtue of the Kings
Process) to arrest another for Debt or Trespass, who maketh resistance,
and thereupon is slain by such Officer or any of his Company; this hath
been taken to be Felony, tamen quære, what the Law is at this
day: For
although the Sheriff (being the kings Officer) ought to see the Kings Commandment
to be executed, yet that must be understood to be executed by
all lawful means and ways. |
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But in all former Cases, there must be an inevitable
necessity; sc.
That the offender could not be taken, &c. without killing of him. |
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