to most of us modest folk a police officer looks not an inch less than eight feet in height,—and his blue coat and brass buttons typify the majesty and inflexibility of the law. at his most trivial gesture the coachmen rein in their curvetting steeds upon the crowded thoroughfare, and at his lightest word the gaping pedestrian obediently "moves on." when necessity compels we address him deprecatingly and, as it were, with hat in hand, and if he deign to listen to us, and still more if he condescend to reply, we thrill with pride. we experience a certain surprise that he has seen fit to give heed to us at all and has not, instead, ordered us roughly about our business with threatening mien and uplifted club. that he has rendered us assistance fills us with humble gratitude. one feels like dr. holmes,

"how kind it was of him

to mind a slender man like me!

he of the mighty limb!"

it rarely occurs to us that these stomachic titans are in fact our servants and that they have no authority save that which they have received from ourselves,—that, horrible thought! they wear our livery as assuredly as does jeames or wilkins. why do these big men patrol the streets and order us[pg 32] about? simply because in these busy days the ordinary citizen has neither time nor inclination to attend to his own criminal business, and because it is better upon the whole for the state to attend to it for him.

eight hundred years ago the punishment of crime was a matter of private vengeance gradually evolving itself into the criminal procedure of modern english law. the injured citizen took his appeal "to the county" and fought it out with his wrong-doer either personally or by proxy. the idea was, originally, that the man who had been injured ought to have his revenge, and criminal justice in england even to-day savors for this reason somewhat of private litigation. of course, nowadays, crime is punished on the theory that the public has been injured; and that not only does the safety of the community require that a repetition of the same crime by the same offender should be prevented, but also that an example should be made of the evil-doer as a lesson to others. be this as it may, vengeance and not public spirit is still the moving cause of ninety per cent of all prosecutions for crime.

just as the right to apprehend a wrong-door was an inherent right at the common law of every free-born english subject, it is our inherent right to-day, modified or extended by the statute law of the several states, and, save where a court of justice has issued its warrant and commands its agents to apprehend the party named therein, one person has substantially the same right as another to arrest a criminal, even if that other be an officer of the law.

the policeman has no greater rights in the mat[pg 33]ter of preventing crime or arresting evil-doers than the citizen. he is merely hired by the citizen to do it for him. the only difference is that it is the duty of the officer by virtue of his position to make arrests, just as it is that of the fireman to extinguish fires. yet it is undoubtedly the fact that nine-tenths of us really believe that the policeman's blue coat, helmet, and club invest him with some sacred and peculiar authority of his own. if every citizen recognized the fallacy of this idea, and if some elementary instruction in such matters were given in the public schools, even at the sacrifice of clay modelling and decorative art, it might add much to the spirit of independence and to the practical efficiency of the coming generation. we are slaves to the magic of the word "police." we imagine that without a representative of the law we can do nothing.

of course we know in general that we may defend the persons and protect the property of ourselves and others by the exercise of reasonable force. beyond this rather vague principle we are not prepared to go. where the situation offers no particular inconvenience we are ready to do our part, but if anything disagreeable is going on we prefer to be excused. we are out of the habit of doing the simplest police duty. most of us would have enough public spirit to summon an officer if a felony were being committed before our very eyes, provided we could do so without making ourselves ridiculous, but few of us, the writer fancies, would join the hue and cry after a pickpocket unless ours happened to be the pocket he had picked. we leave that to those whose natural bellicosity is greater and who do not[pg 34] object to being undignified. it is nevertheless true, however unpleasant the thought may be, that at any moment we may find ourselves in the centre of a whirlpool of events where individual action on our part will be necessary unless we are willing to allow some vicious and cruel violation of the law to go unpunished. such exigencies may run all the way from the malicious beating of an overloaded horse to the garrotting of a feeble old man. our efficiency on such occasions might be represented by a fraction, of which our physical capacity would be the numerator and our disinclination the denominator, but obviously, to make the formula complete, this would have to be multiplied by another representing our knowledge of our rights.

suppose for example that mr. ordinary citizen on a nocturnal ramble should, at about three o'clock in the morning, observe some ill-favored person with a heavy bag in his hand, furtively making his exit from the area door of a stylish mansion in the residential district. what should he do? what would you do? without discussing this embarrassing question, does the reader know what he would have a right to do? the chances are largely in favor of his being obliged to answer this question in the negative. indeed, our indifference to the unexpected is so great that we are generally mute and helpless in the face of any unusual situation where anybody's rights are concerned. we hesitate to act without the advice of counsel, and in the meantime the burglar has made his escape!

in the state of new york and generally in this country, any person, whether he be an officer of the law or not, may make an arrest, without a warrant,[pg 35] for any crime, of any grade, actually committed in his presence. it makes no difference whether the offence be that of spitting in a street-car or murder in the first degree, the offender may be haled before a magistrate by any one who has seen him commit it.

but the statutes governing the right of arrest, while extensive enough to safeguard the public interest, are carefully limited to prevent arbitrary interference with the liberty of innocent persons. the law, therefore, makes it a positive condition that before any one, whether he be citizen or officer, may arrest another for a felony not committed in his presence the felony must in fact have been committed. thus the right to apprehend a suspected wrong-doer is invoked at the peril of him who seeks to exercise it. if no felony has been committed the arrest is illegal.

in one respect only does the law recognize any difference between the private citizen and the public officer paid to keep the peace,—if a felony has in fact been committed, the officer may arrest any one who he has reasonable ground to believe is the guilty party, while a citizen may arrest only the person who is actually guilty. thus the citizen must guarantee not only the commission of the crime but the identity of the criminal, while the officer, so long as the law has actually been violated, may take a chance as to the identity of the perpetrator of the offence.

now, the police invariably interpret the law to mean that they may arrest anybody who they have reasonable cause for believing has committed a felony,—but of course the statute gives them no such[pg 36] power.[12] the felony must have been committed; the "reasonable cause" refers only to the identity of the criminal. this, however, does not worry the average policeman at all.

he sees "mr. o.c.'s" burglar coming out of the area with his bag, promptly pounces upon him and hales him off to the precinct house in spite of the burglar's protests and expletives. if the burglar prove refractory he is clubbed into submission, or if he attempt to run he may be shot in the leg. now suppose that on reaching the police station the burglar turns out not to be a burglar at all but the family doctor? or a late caller upon the cook? or a gentleman who has mistaken some one's else area for his own? of course no felony has been committed. the policeman had no right to make the arrest. assuming that the house had been burglarized, the officer beyond a doubt had reasonable cause for a hastily formed opinion that the man in the area was the guilty party and had a right to make the arrest, but in law he makes this assumption at his peril. if he is wrong the victim has a good cause of action against the policeman for false arrest. but the execution following his civil judgment against the latter will probably be returned nulla[pg 37] bona by the sheriff, and he will have to pay for his own medical treatment and legal advice.

now let us see in what position is o.c., who is not a peace officer, when he discovers the suspicious figure in the area. he may lawfully make an arrest, although he has not seen the crime committed, "when the person arrested has committed a felony." in other words, if it turns out that no crime has occurred, or that if one has in fact been perpetrated he has got hold of the wrong man, he will have to patch up the matter and very likely his own head as best he can.

we will assume o.c. to be a public-spirited citizen and that he forthwith lays hands on his burglar and reduces him to subjection. having done so he rings the front door bell and rouses the owner of the house, who in turn discovers that the mansion has been burglarized. they then investigate the prisoner and find that he is a commercial traveller in an advanced state of intoxication who has rambled into that particular area by accident. o.c. has been guilty of an illegal arrest. even should it prove that the intruder was in fact a burglar, but not the right burglar, the arrest would still have been without authority.[pg 38][13]

to carry the illustration a little further let us assume that in each case a burglary has been committed and that the prisoner is the guilty party. what can the officer do, and what can "o.c." do, if his quarry attempt to escape?

roughly speaking, a person lawfully engaged in arresting another for a felony or in preventing the escape of such an one lawfully arrested, may use all the force necessary for the purpose, even to taking the life of the prisoner.[14]

it is by virtue of this salutary provision of law that the unscrupulous policeman gets "square" with his enemies of the under world. when the officer clubs the "drunk" on the corner, it is on the pretext that the latter is "resisting" arrest. it is practically an impossibility to prove that it was not justifiable unless there be eye-witnesses to what has occurred, and an officer may safely be guilty of a good deal of physical brutality so long as he brings his victim to the station house under actual arrest for some alleged offence. it is only when the victim[pg 39] of such an assault is not arrested that the officer finds himself in an awkward situation. he must then explain why he clubbed the citizen unless the latter had committed some offence and was trying to resist arrest, and, if so, why he did not then conduct him to the station house.

there is a story told of an old veteran upon the force who was heard to remark to a companion as they left court together after the acquittal of an ex-convict on the charge of assaulting the officer:

"begorra, tom, 'twon't be long before i'll be afther arrestin' the cuss agin, and whin i do, pray god that he resists arrest!"

it is said that in some of the southwestern states the personal right to make an arrest at times resulted, practically, in the privilege of shooting cattle thieves upon sight. the foreman would send out jack to "look for" cattle thieves. jack would lie all day in a gully and when sonora slim hove in sight, perhaps on an entirely lawful errand, would "let him have it." then he would ride leisurely over, abstract sonora's "gun," discharge it a couple of times and throw it carelessly upon the ground. half an hour later he would appear at the ranch.

"sorry, bill," he would report, "but i caught sonora slim driving off three of our two-year-olds. i headed him off and says,

"'look here, sonora, you've got some of our heifers there.'

"'go to——!' says sonora and pulls his gun.

"'that's all right,' says i. 'you're under arrest!'

[pg 40]

"we swapped a few shots and i had to drop him to prevent his escape."

"all right, jack," the foreman would reply, "we'll ride over and tell the sheriff about it."

"see here, sheriff," he would announce on their arrival, "jack here arrested sonora slim stealin' our cattle, and the feller resisted arrest and jack had to shoot him. jack's here if you want him."

"yes, sheriff, here i am," jack would say.

the sheriff would rub his forehead and reply:

"no, i don't want you. sorry you had to kill him, but i'll have to have some evidence that what you say ain't true."

it may be well to suggest that, while a thorough knowledge of our rights is always desirable, it by no means follows that it is wise to invoke them upon every occasion when we observe a technical violation of the law. regrettable as it may seem, no police force, however large, could arrest all the violators of every law, and no system of courts could dispose of the multitude of offenders. we do the best we can and make an example of a few, hoping thus to persuade the others to be good. if every citizen undertook to exercise his right of arresting every individual whom he saw committing petty crime, the business of the community would come to a standstill and the magistrates' courts would be hopelessly congested with great hordes of prisoners, irate witnesses, and gratuitous policemen. the prisons would overflow and the magistrates would resign. moreover, the enforcement of such a disused and unexpected technical right would lead to immense disorder and violence. the ignorant infractor of an obscure section of the penal code[pg 41] would rise in his wrath and in resisting arrest become guilty of assault in the second degree or of manslaughter. it is probably very much better that trivial offences should go unpunished than that public conveyances and thoroughfares should be made the scenes of violent altercations and obstructive volunteer police work. having hired a certain class of persons to attend to this business for us, it is better to leave it to them when possible. we need the best police force that we can get, and this naturally depends upon the efficiency of the higher police officials who hold their offices by appointment. an active interest on the part of our citizens in the betterment of municipal conditions through the purification of politics is probably more to be desired than any general attempt to participate in the ordinary duties of "the man on the beat."

footnotes:

[12] an attempt has apparently been made by the legislature of new york state to enlarge the powers of the police during the night-time by giving them authority to arrest "on reasonable suspicion of felony." the statute (penal code) reads as follows: "section 179. may arrest at night, on reasonable suspicion of felony.

"he may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterwards appear that a felony had been committed, but that the person arrested did not commit it."

this statute clearly stultifies itself. the writer is not aware of any judicial interpretation of its meaning up to the present time.

[13] in people v. hochstim (36 misc., 562, 571) it is said that "in the matter of arresting without a warrant, whether for a misdemeanor or for a felony, a private citizen and a peace officer have the very same right and power under the law, namely: (1) either may without a warrant arrest a person who commits any crime, whether misdemeanor or felony, in his view, and (2) either may without a warrant arrest any person who has in fact committed a felony although not in his view, but (3) neither may arrest any one without a warrant in the case of a felony unless the alleged felony has in fact been committed. if no felony has in fact been committed, then the arrest without a warrant is in every case unlawful and may be lawfully resisted. the law does not justify either an officer or a private citizen in arresting for a felony without a warrant on mere suspicion or information that a felony has been committed. if either act without a warrant on groundless suspicion or information on the question of whether a felony has in fact been committed, he acts at his peril. nothing but the absolute fact that the felony has actually been committed will suffice to justify and protect the person making such an arrest, whether an officer or a private citizen. but if a felony has in fact been committed, the law does justify an officer, but not a private citizen, in arresting a person therefor without a warrant 'on reasonable cause for believing' (to quote the words of the statute) that such person is the one who committed it. in a word, an officer, the same as a private citizen, is not permitted to act on mere grounds of belief on the question of whether a felony has in fact been committed; nothing but the absolute fact that it has been committed will suffice; but an officer is permitted to act on reasonable cause for belief on the question of whether the person arrested is the person who committed it. all of this is plain statute law (code of criminal procedure, secs. 177, 183)."

[14] a distinction exists in this respect between misdemeanors and felonies. in the case of the former it is not lawful to kill a prisoner even if his escape cannot otherwise be prevented, and although there be a warrant for his apprehension. in the case of a felony the offender's life may be taken provided there is absolute necessity for so doing to prevent his escape. conraddy v. people, 5 park 234.