10. In the execution of civil warrants, the officer is bound to advance and perform his duty; but if, in the execution of that duty, he shall kill unnecessarily, or by the prior and precipitate use of lethal weapons, he shall be held guilty of murder.

In like manner, as one may kill in defence of one's life, if it cannot otherwise be saved, so an officer of the law may kill in defence of his office and warrant, if it cannot otherwise be carried into execution.' But, in judging of the degree of resistance which shall justify the assumption of lethal weapons, the rule is, that none is sufficient which does not give the officer reason to conclude that his life shall come to be in hazard, if he shall persist in the execution of his warrant. The fear of a wrestling bout, or even of a beating or bruising, is not a relevant defence, nor indeed any thing short of a preparation of lethal weapons against the officer, or of such an overpowering force as plainly indicates that, but with the peril of his life, he cannot advance and discharge his duty. The same degree of offence or aggression which will not justify the private party in killing the officer, will justify the officer in putting to death the private party.

2

But, on the other hand, it is equally clear, that, if the officer shall hastily, and without any sufficient cause, make use of lethal weapons to enforce his warrant, and death shall ensue, the crime will not be construed any thing less than murder.1 This will be more especially the case, if there be any appearance of premeditation or malice on the officer's part, or reason to believe that he has made use of his office, and his commission, to give a colour to, and obtain impunity for, private vengeance.5 Thus in the case of James Gordon and others, July 31. 1691, a messenger, and his assistants, were indicted capitally for the murder of Alexander Jack, whom they had shot while resisting a caption on law-burrows. They pleaded in defence, 1st, The danger of their lives, they having been invaded and fired on; and, 2d, The execution of duty. Now, these particulars were required by the Court to render the last defence relevant, viz. "That the said James Gordon, messenger, having his blazon displayed, was, by force of arms, hindered to enter the house

1 Hume, i. 204; Mackenzie voce Murder, No. 19.-2 Ibid. i. 204.-3 Burnett, 26.4 Hume, i. 201.5 Burnett, 70

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of Longmay, and that they did threaten and menace the messenger, and that threats were used to raise the country, and that thereafter the country did rise, and beset the house, and surround the messenger, armed with guns, swords, or invasive weapons, relevant to elide the libel simpliciter." From the extent of the violence required in this case, to justify the use of lethal weapons, some opinion may be formed of the reluctance of the Scottish practice to extenuate homicide in such situations. So also, in the case of William Fife, June 30. 1691, the pannel was charged with the murder of Andrew Wilson, an infirm old man, who had interposed to rescue his son-in-law, their prisoner, under letters of caption, the Court sustained this defence, "That William Fife, the messenger, and his assistants, had Peoch their prisoner, by an execute caption, and that the defunct did, by violence, try to rescue him, and actually drew a dagger upon William Fife the pannel, invading him therewith." It was found relevant to elide this defence, that the pannel had killed the deceased when he was rescuing his son-in-law from a mastiff who had thrown him on the ground. On the proof, it appeared that the accused had wounded the deceased severely with a sword on his first coming to the spot, and evinced a disposition to resist before the dagger was drawn; and he accordingly had sentence of death.? Farther, in the case of Archibald Beath, June 14. 1672, the pannel was charged with the murder of two of the crew of a boat, which, in violation of the Privy Council's order, had come to Lamlash in Arran. It appeared that these persons, who were authorized by the Privy Council to seize such a vessel, had taken possession of it; but, after doing so, the crew recovered the boat, and made out to sea. Beath and an armed party pursued in another boat, and, on refusal to surrender, fired and killed two of the crew. The excess was here арраrent, and Beath had sentence of death, though his life was saved by the Royal mercy.3 Again, in the case of Malloch, July 13. 1750, it appeared that the deceased, who was a noto rious smuggler, had, on the prisoner, who was an excise officer, coming up to him and his companion, agreed to surrender the spirits, notwithstanding which the prisoner had fired his gun, and mortally wounded the deceased. The prisoner was found

1 Hume, i. 202.-2 Ibid. i. 202.-3 Ibid. i. 204.

guilty, and had sentence of death; but he was pardoned, probably on the ground that the proof on the part of the deceased was of a doubtful character. Farther, in the case of Joseph Tough and Alexander Fortag, the libel charged the accused with having fallen in with a boat belonging to the Isle of Man, “and, without hailing the said boat, or giving any signal by which they might be known to be in the service of the Customs, repeatedly discharging muskets loaded with ball at the said boat, and killing one of the crew;" and concluded for the pain of murder. It appeared on the proof that the revenue cutter had espied a boat making toward the land; they hailed her at the distance of 150 yards, but as she did not heave to, they fired several shots to bring her to, one of which killed a man. The boat was laden with contraband salt; and the cutter had no pendant or other distinguishing mark flying. The Court, holding it proved that the revenue officers had hailed before firing, directed an acquittal;2 but the fact of a charge of murder having been found relevant on such a species facti, demonstrates how the law stands on the subject. Again, in the case of Alexander Maclean, Inverness, September 23. 1827, the opinion of the Court was expressed as to the use of lethal weapons in such circumstances, though no death actually followed. The accused, who was an excise officer, was there indicted under the late statute for discharging loaded fire-arms with intent to murder. It appeared on the proof that he had gone out on the sea-shore of Ross-shire to shoot ducks, and saw a smuggler proceeding along with two ankers of whisky. He made up to him, and desired him to give up the smuggled goods, which was refused, and some altercation ensued, in the course of which the smuggler, who was armed with a stick, threatened to strike the pannel, and raised his stick for that purpose, but without doing so; upon which the latter discharged his piece, and wounded him severely in his side. Lords Pitmilly and Alloway held the firing here unjustifiable, and the pannel was convicted; though, in consideration of his good character, he received a lenient punishment. Lastly, in the case of Peter Macintyre, Inverness, September 24. 1827, the accused was one of the revenue cutter Atalanta, stationed at Inverness to prevent smuggling, and had gone with a party to

1 Burnett, 71.-2 Ibid. 70.-3 Unreported.

a moor in the neighbourhood of Beauly to seize a still. In the course of doing so he got into a violent struggle with one of the smugglers, was seized by the middle, and seriously hurt in the privy parts; and in the course of the contest he discharged his pistol, and killed the aggressor. It did not very clearly appear whether the pistol went off by design or accident; but Lord Pitmilly held the homicide justifiable in either

case.

Thus, upon the whole, it appears that though the law is justly sensible of the difficult and delicate situation in which its officers are placed in enforcing its warrant against men, often desperate and lawless, and although, for that reason, it looks upon violence used in such circumstances with a very different eye from that with which it regards it in ordinary cases, yet it can neither justify nor excuse the infliction of death in circumstances where it is not called for by risk to the officer's life, nor manifest peril to the discharge of his duty; and that, in aggravated cases of that description, the offence will be deemed nothing short of murder.

In cases of this description, the fatal consequences almost always arise from the use of lethal weapons, and it is the precipitate and unnecessary use of such perilous weapons that constitutes the chief element in the officer's guilt. It is of the last importance, therefore, to know in what circumstances the use of such lethal weapons is permitted by the law. On this point there is one general rule laid down in our statute law, which seems so reasonable in itself, and agreeable to justice, that an officer walking by it will seldom deviate far from his duty, and certainly never involve himself in a charge of murder. It is to be found in the 9th Geo. II. c. 35, which authorizes the officers of customs and excise, and their assistants, when resisted in seizing or searching for goods, by persons who are passing with the same, armed with offensive weapons, "to oppose force to force, and to endeavour, by the same methods that are violently used against them, and by which their lives are endangered, to defend themselves, and execute the duty of their office."1" This rule," as Mr Hume justly remarks, “is only declaratory of our common law on the subject; for if they are bound to advance towards the discharge of their duty,

1 Geo. II. c. 35.

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they are entitled, by the ordinary rule, to defend their lives `when so advancing, by the same means by which they are assailed." If, in doing this, any person shall be killed, the common law, not less than the statute, may be pleaded in defence. Their criminality begins, when, in the course of their advance, they commence the strife of lethal weapons, either when none such are in the possession of the adverse party, or when, if they are, the situation of the parties is such, that the object of their duty might, to all appearance, have been accomplished, without having recourse to such fatal instruments.

Cases of this sort usually resolve themselves into culpable or justifiable homicide; and, therefore, a fuller discussion of the numerous precedents which have occurred upon them, will be found under these heads of the subject.

5

The law of England upon this head is somewhat different from our practice. They hold that the party cannot be lawfully killed in flying from civil process, but on resistance only.3 But it is not every resistance which will justify such violent methods; for, though an officer may repel force by force, where his authority to arrest or imprison is resisted, yet he ought not to have come to extremities upon every slight interruption, nor without reasonable necessity. And if he should kill where no resistance is made, it will be murder, and the offence would be the same if he slew after the resistance had ceased, provided sufficient time had elapsed for the blood to cool. And in civil suits, or in arrests on a misdemeanour, if the party fly, and the officer make use of a lethal weapon from inability otherwise to arrest him, or if he fly after arrest actually made, and the officer pursue and kill him, it will amount to murder. And, in some cases, it would be murder to kill a seaman flying from an impressment, and in all manslaughter;7 so that the law of Scotland and of England are the same on this important point, except in that single matter which regards the degree of resistance which will justify or extenuate homicide by the officer; their practice holding any, or at least a much smaller resistance, sufficient to extenuate, than we should do; a distinction which runs through the two laws, in all the branches of homicide on resistance whatever.

1 Hume, i. 214.-2 Ibid. i. 214.3 Foster, 271; Hale, i. 481. Blackstone, iv. 180; Russell, i. 652.-5 East. i. 297; Russell, i. 665.-6 Hale, i. 481; East. i. 306, 307.- East. i. 308; Russell, i. 666.

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