The Sun. — 1867-11-21 (London, England)

DON? THURSDAY EVENITSI.<I NOVE.MBER 21, 1867.  determination on the subject until we had the means of referring to the authorities and considering the case more at leisure. We have now considered the authorities and have consulted the other judges, not with the view of dividing our responsibility nor in order to obtain a judicial opinion from them which they could not give on a point not regularly before them ; but because, in a case so serious, we were very anxious to have the best advice and assistance that we could obtain for our guidance. I need not say that if the result of such consultation and research had been to lead to the conclusion that there was doubt enough to justify a further appeal, it would have relieved us from a most painful responsibility. I regret to say that the result has been to satisfy us that the law is too clear to justify us in reserving any point for the consideration of the Court of Criminal Appeal. Entertaining that opinion, we have officially informed the Secretary for the Home Department that there will be no further appeal to a court of law, and that it is now for her Majesty's Government alone to determine what shall be done with the convicts.  This decision of ours is final ; but, as a satisfaction to you and the other counsel for the prisoners, I will briefly state the reasons which have induced us to think the law too clear for argument. When a constable, or other person properlyauthorised, acts in execution of his duty, the low casts a peculiar protection around him, and consequently, if he is killed in the execution of his duty, it is, in general murder, even though there be such circumstances of hot blood and want of premeditation as would cin any ordinary case reduce the crime to manslaughter. But when the warrant under which the officer acting is not sufficient to justify him in arresting or detaining prisoners, or there is no warrant at all, he is entitled to this peculiar protection, and consequently the crime may be reduced to manslaughter when the offence is committed on the sudden, and is attended by circumstances affording reasonable provocation. The cases which you have cited are authorities that where the affray is sudden and unpremeditated, when, as Lord Holt says in It. v. Tooley (2 Ld. Raymond, 1300), " it is acting without any precedent malice or apparent design of doing hurt," the mere fact that the arrest was not warranted may be sufficient provocation. But in every one of those cases the affray was sadden and unpremeditated. In the present case the form of warrant adopted may be open to objection, and probably might on application to the court for a writ of habeas have entitled the prisoners to be discharged from custody, but we entirely agree with the opinion of Lord Hale (2, Pleas of the Crown), that though defective in form the gaoler or officer is bound to obey a warrant in this general form, and consequently is protected by it. This is a point which, had the affray been sudden and unpremeditated, we probably should have thought it right to reserve. In the present case, however, it was clearly proved that there was on the part of the convicts a deliberate, prearranged conspiracy to attack the police with firearms, and shoot them if necessary for the purpose of rescuing the two prisoners in their custody, and that they were well aware that the police were acting in obedience to the commands of a justice of the peace, who had full power to remand the prisoners to gaol if he made a proper warrant for the purpose. It was further manifest that they attempted the rescue in perfect ignorance of any defect in the warrant, or illegality i❑ the custody, that the courts of law were open to an application for their release from custody. We think it would be monstrous to suppose that under such circumstances, even if the justice did make an informal warrant, it could possibly justify the slaughter of an officer i❑ charge of the prisoners, or reduce such slaughter to the crime of manslaughter. To cast any doubt on this subject would, we think, be productive of the most serious mischief, by discouraging the police in the performance of their duties, and by encouraging the lawless in a disregard of the authority of the law.  We feel bound under these circumstauces to decline to take a course which might lead to the belief that we considered the matter as open to doubt.