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1. Historical Background of the Common Law Rule. The English common law right forcibly to resist an illegal arrest was established almost three hundred years ago in The Queen v. Tooley, 92 Eng. Rep. 349, 351-52 (1909). The facts of Tooley are necessary for proper analysis, but, unfortunately, are rarely discussed in the cases.7 A statute enacted in the twenty-seventh year of the reign of Elizabeth I for the purpose of "reformation of disorders" allowed certain officials of London to "hear and punish incontinencies." Tooley, 92 Eng. Rep. at 349. One nonmedical meaning of incontinent is unchaste, or of unrestrained sexual appetite, or lewdness. Pursuant to a warrant issued in accordance with this statute, Constable Samuel Bray set about rounding up the "usual suspects" within the City of Westminster. Between 8 and 9 o’clock on the night of March 8, Constable Bray apprehended Mistress Anne Dekins "in the street between the play-house and the Rose Tavern." Tooley, 92 Eng. Rep. at 349. He suspected her of being a disorderly person, having previously arrested her for being disorderly. The trial court later disagreed with Bray, finding that he had no reason to arrest her, as she was not misbehaving at the time.
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On the way to jail, three men, all strangers to Anne Dekins, drew their swords and attempted to rescue her from Constable Bray‘s custody. The case does not say what motivated these three strangers to attempt the rescue. {*12} The constable "shewed" them his constable’s staff, and declared himself to be on the Queen‘s business. They chose then to desist and Bray "carried the woman to the round-house[.]" Tooley, 92 Eng. Rep. at 350. An important point is that the three strangers did not see the unlawful arrest of Mistress Dekins; they saw her only under restraint as Bray led her to jail.
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Shortly thereafter, with Mistress Dekins safely locked up, the same three men again assaulted Constable Bray outside the jail for the purpose of obtaining her release. Bray called for assistance, and Joseph Dent came to his aid. One of the three then killed Dent with a sword. The issue at trial was whether the three were guilty of murder or manslaughter. Under the law at the time, one who killed another without provocation was guilty of murder. If provocation were present, the crime was manslaughter. Thus, the question for the court was whether the arrest of Mistress Anne Dekins was sufficient provocation to the three strangers to excuse their actions and prevent a conviction for murder.
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The case was argued on appeal "before all the Judges of England at Serjeant’s-Inn in Chancery-Lane," and resulted in a 7-5 verdict for manslaughter. Tooley, 92 Eng. Rep. at 352. Chief Justice Holt of the King‘s Bench delivered the decision of the court:
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The prisoners [the accused] in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion;
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much more where it is done under a colour of justice, and where the liberty of the subject is invaded, it is a provocation to all the subjects of England. . . . Constables have an authority by the statute to arrest persons, but that must be by warrant from the justices of the peace; but in this case there was no warrant. Tooley, 92 Eng. Rep. at 352. To the argument that the three strangers could not have been provoked because they were strangers to Mistress Dekins, the Chief Justice answered: "but sure a man ought to be concerned for {*13} Magna Charta and the laws; and if any one against the law imprisons a man, he is an offender against Magna Charta." Tooley, 92 Eng. Rep. at 353.
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But how could three strangers who did not even witness the arrest know the arrest was unlawful? Chief Justice Holt rejoined, "but surely ignorantia facti will excuse, but never condemn a man. Indeed, he acts at his peril in such a case, but he must not lose his life for his ignorance." Tooley, 92 Eng. Rep. at 353. In other words, the three strangers acted at their peril -- had it been decided later that the arrest was in fact lawful, they would have been found guilty of murder. Because the court later determined the arrest to have been unlawful, the court held they had been properly provoked, and could be guilty only of manslaughter, not murder.
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The important point to note is that Tooley is not about Mistress Anne Dekins’s right to resist her unlawful arrest. It is about the right of others, strangers, to resist her unlawful arrest. The "provocation" the Tooley court spoke of was not the provocation of Mistress Dekins. It was the provocation of the three strangers at seeing someone unlawfully imprisoned, and whether that provocation provided sufficient reason to reduce their conviction from murder to manslaughter. Nevertheless, the Tooley rule has come down to us as a rule permitting an arrestee to use the necessary force (but no more) to resist an unlawful arrest.8 To understand why an unlawful arrest was such a great provocation as to affect "all people out of compassion," it is necessary to look at the historical evidence of the state of English prisons in the eighteenth century.
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{*14} 2. English Prisons. Professor Sam Bass Warner of Harvard Law School was instrumental in the 1940‘s in setting forth the historical background leading to the abandonment of the Tooley rule in the majority of states. "The [Tooley] rule developed when long imprisonment, often without the opportunity of bail, ’goal [sic] fever,‘ physical torture, and other great dangers were to be apprehended from arrest, whether legal or illegal." Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942).
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In an earlier article, Professor Warner described in more detail the horrors awaiting those arrested:
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Since jailers were held responsible for escapes and many jails were constructed for some other purpose and hence easy to break out of, prisoners were often kept in irons. Those without the means to buy better accommodations were frequently huddled together in dark, filthy rooms, in close proximity to depravity and disease. Under such conditions, imprisonment until the next term of court was often equivalent to a death sentence, especially during the frequent periods when prisons were swept by a malignant form of typhus known as "gaol fever."9 In 1759 an English authority estimated that each year a fourth of the people in prison died there.10 Sam B. Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151, 152 (1940). Others have also chronicled the deplorable conditions of English jails:
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