to this singular mode of trial, thus admitted in this one particular instance, I shall only for the present observe, that as the process by attachment in general appears to be extremely antient', and has in more modern times been recognized, approved, and confirmed by several express acts of parliament, so the method of examining the delinquent himself upon oath with regard to the contempt alleged, is at least of as high antiquity', and by long and immemorial usage is now become the law of the land.

CHAPTER THE TWENTY-FIRST.

[290]

OF ARRESTS.

WE E are now to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction; which may be distributed under twelve general heads, following each other in a progressive order; viz. 1. Arrest; 2. Commitment, and bail; 3. Prosecution; 4. Process; 5. Arraignment, and it's incidents; 6. Plea, and issue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and it's consequences; 10. Reversal of Judgment; 11. Reprieve, or pardon ; 12. Execution; -all which will be discussed in the subsequent part of this book.

FIRST, then, of an arrest: which is the apprehending or restraining of one's person, in order to be forthcoming to answer an alleged or suspected crime. To this arrest all persons whatsoever are, without distinction, equally liable in all criminal cases: but no man is to be arrested, unless charged with such a crime, as will at least justify holding him to bail when taken. And, in general, an arrest may be made four ways: 1. By warrant: 2. By an officer without warrant : 3. By a private person also without warrant : 4. By an hue

and cry.

1. A WARRANT may be granted in extraordinary cases by the privy council, or secretaries of state; but ordinarily by justices of the peace. This they may do in any cases where they have a jurisdiction over the offence; in order to compel the person accused to appear before them: for it would be

* 1 Lord Raym.65.

b2 IIawk. P. C. c. 13. § 15.

с

absurd to give them power to examine an offender, unless they had also a power to compel him to attend, and submit to such examination. And this extends undoubtedly to all treasons, felonies, and breaches of the peace; and also to all such offences as they have power to punish by statute. Sir Edward Coke indeed hath laid it down that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion; no, not even till an indictment be actually found: and the contrary practice is by others held to be grounded rather upon connivance than the express rule of law; though now by long custom established. A doctrine which would in most cases give a loose to felons to escape without punishment; and therefore sir Matthew Hale hath combated it with invincible authority, and strength of reason: maintaining, 1. That a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted"; and, 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant; because he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine upon oath the party requiring a warrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party, against whom the warrant is prayed'. This warrant ought to be under the hand and seal of the justice, should set forth the time and place of making, and the cause for which it is made, and should be directed to the constable, or other peace-officer, [291] (or, it may be, to any private person by name,) requiring him to bring the party either generally before any justice of the peace for the county, or only before the justice who granted it; the warrant in the latter case being called a special warrant. A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for it's uncertainty; for it is the duty of the magistrate, and ought not to be left to the

c 4 Inst. 176.

d2 Hawk. P. C. c. 13. § 16.

e 2 Hal. P. C. 108.

f Ibid.110.

ε Salk. 176.

h 2 Hawk. P. C. c. 13. § 26.

11 Hal. P. C. 580. 2 Hawk. P. C.

c. 13. § 10. 17.

officer, to judge of the ground of suspicion. And a warrant to apprehend all persons, guilty of a crime therein specified, is no legal warrant: for the point, upon which its authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon be really guilty or not. (1) It is therefore in fact no warrant at all; for it will not justify the officer who acts under it: whereas a warrant, properly penned, (even though the magistrate who issues it should exceed his jurisdiction,) will by statute 24 Geo. II. c. 44. at all events indemnify the officer who executes the same ministerially. And when a warrant is received by the officer he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends. (2) A warrant

* A practice had obtained in the secretaries' offiee ever since the restoration, grounded on some clauses in the acts for regulating the press, of issuing general warrants to take up (without naming any person in particular) the authors, printers, or publishers of such obscene or seditious libels, as were particularly specified in the warrant. When those acts expired in 1694, the same practice was inadvertently continued in every reign, and under every administration, except the four last

years of queen Anne, down to the year 1763; when such a warrant being issued to apprehend the authors, printers, and publishers of a certain seditious libel, its validity was disputed; and the warrant was adjudged by the whole court of king's bench to be void, in the case of Money v. Leach. Trin. 5 Geo. III. B. R. [3 Burr. 1742.] After which the issuing of such general warrants was declared illegal by a vote of the House of Commons. (Com. Journ. 22 Apr. 1766.)

(1) This is rather shortly expressed; in every warrant the guilt or innocence of the person directed to be taken up remains to be determined on his subsequent trial; but if the warrant is to take up A B charged with a murder, the officer obeys the warrant, and will be protected by it, if he takes up A B, though A B is innocent of the murder; whereas if the warrant be to take up the murderer of C D, or the author of such a book, and the officer should take up A B, who turns out not to be the murderer of CD, or the author of the book, he has not obeyed the warrant, and, of course, will not be protected by it. The public mischief is, that the discretion whom to arrest is, in such a case, necessarily exercised by the inferior officer, and not by the magistrate, in whom the constitution reposes it.

(2) Where the warrant is directed to an individual not an officer, or to an officer by name and as an individual, it authorises them to execute it so far as the magistrate's jurisdiction extends, but does not compel the officer to go beyond his own district; where it is directed either to all constables, or to the constables of a particular district, without naming them, it does not authorise, and of course does not compel, them to go beyond their own respective districts. As, however, the magistrate might authorise the officer to act beyond his district, by directing the warrant to him by name, it seems

that

from the chief, or other, justice of the court of king's bench extends all over the kingdom: and is tested, or dated, England; not Oxfordshire, Berks, or other particular county. But the warrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, signed by a justice of the peace in another, as Middlesex, before it can be executed there. Formerly, regularly speaking, there ought to have [292] been a fresh warrant in every fresh county: but the practice of backing warrants had long prevailed without law, and was at last authorised by statutes 23 Geo. II. c. 26. and 24 Geo. II. c. 55. And now, by statute 13 Geo. III. c. 31. any warrant for apprehending an English offender, who may have escaped into Scotland, and vice versa, may be endorsed and executed by the local magistrates, and the offender conveyed back to that part of the united kingdom, in which such offence was committed. (3)

2. ARRESTS by officers, without warrant, may be executed, 1. By a justice of the peace; who may himself apprehend, or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence'. 2. The sheriff, and 3. The coroner, may apprehend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke", hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, committed in his view, and carry him before a justice of the peace.

12 Hal. P. C. 86.

m See Vol. I. pag. 355.

that if he in terms directs the officer of parish A. as such (without using his name) to do something in parish B., this may be considered equivalent to a special delegation of authority to him to act out of his parish, because otherwise the warrant would be nugatory on the face of it. See R. v. Weir, 1 B. &C. 288. Now, indeed, these distinctions are done away by the 5G.IV. c. 18. which authorizes the constable or other peace-officer of any parish, or place to whom a warrant shall be addressed, not by name, but merely as such, to execute it any where within that jurisdiction, for which the magistrate acted, in granting or backing the warrant.

(3) This act has been amended and enlarged by several subsequent acts, and the 54G. 3. c. 186. contains a general clause that all warrants issued in England, Scotland, or Ireland respectively, shall be indorsed, executed, enforced, and acted upon by all justices and officers of the peace in any part of the united kingdom, in the manner directed by 13G.3. c.31., in relation to warrants issued in England or Scotland respectively.