THE process of attachment, for these and the like contempts, must necessarily be as antient as the laws themselves. For laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefore in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised as early as the annals of our law extend. And though a very learned author seems inclinable to derive this process from the statute of Westm. 2. 13 Edw. I. c. 39. (which ordains, that in case the process of the king's courts be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a qua non deliberentur sine "speciali praecepto domini regis:" and if the sheriff himself

h

h Gilb. Hist. C. P. ch. 3.

to blasphemous or indecent matter. For the purposes of justice, very offensive evidence must often be heard on trials, the publication of which afterwards for general circulation can produce little but unmixed evil. A more doubtful case has been suggested by Lord Ellenborough, who seems to have thought that it might be unlawful "wantonly to publish circumstances distressing to the feelings of individuals on whom they reflected." Stiles v. Nokes, 7 East's R. 503. Now there is some difficulty in determining legally what is a wanton publication: trials are commonly published rather for the sake of individual gain, than for the public advantage, and the law must regard the general result, not the individual motive. If, too, the distress of the party reflected on be a ground for silence, it is probable that the very cases which it is most important to publish would be brought within this exception.

The determination of what cases fall within the rule, and what within the exception, must necessarily be left to the courts of law, whether the question arises on the complaint of an individual in a civil action for damages, or is taken up by the court itself as a contempt of its jurisdiction. In the first case, it is not distinguishable in kind from any other question between two parties, falling within their ordinary cognisance; in the latter, in which the court may seem to have more of a personal interest, it must be remembered that the judges are but trustees of their powers for great public purposes; that in the execution of that trust reason and necessity both require that some confidence should be placed in them; and, finally, that whether they punish by fine or imprisonment, the legality of the one may be questioned in the court of exchequer, and that of the other by a writ of habeas corpus before any other of the superior courts of the country. See R. v. Fleet, 1 B.& A. 379. R. v. Clements, 4 B. & A. 218.

be resisted, he shall certify to the courts the names of the principal offenders, their aiders, consenters, commanders, and favourers, and by a special writ judicial they shall be attached by their bodies to appear before the court, and if they be convicted thereof they shall be punished at the king's pleasure, without any interfering by any other person whatsoever,) yet he afterwards more justly concludes, that it is a part of the law of the land; and, as such, is confirmed by the statute of magna charta.

If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges', without any farther proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on [287] the suspected party to shew cause why an attachment should not issue against him; or, in very flagrant instances of contempt, the attachment issues in the first instance; as it also does, if no sufficient cause be shewn to discharge, and thereupon the court confirms, and makes absolute, the original rule. This process of attachment is merely intended to bring the party into court: and, when there, he must either stand committed, or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him, for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must by the course of the court be exhibited within the first four days': and if any of the interrogatories is improper, the defendant may refuse to answer it, and move the court to have it struck out". the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury". If he confesses the contempt, the court will proceed to correct him by fine, or imprisonment, or both, and sometimes by a corporal or infamous punishment. If the contempt be of such a

If

nature, that, when the fact is once acknowledged, the court can receive no farther information by interrogatories than it is already possessed of (as in the case of a rescous,) the defendant may be admitted to make such simple acknowledgment, and receive his judgment without answering to any interrogatories: but if he wilfully and obstinately refuses to answer, or answers in an evasive manner, he is then clearly guilty of a high and repeated contempt, to be punished at the discretion of the court. (5)

IT cannot have escaped the attention of the reader, that this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common [288] law in any other instance; and seems indeed to have been derived to the courts of king's bench and common pleas through the medium of the courts of equity. For the whole process of the courts of equity, in the several stages of a cause, and finally to enforce their decrees, was, till the introduction of sequestrations, in the nature of a process of contempt; acting only in personam and not in rem. And there, after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party: whereas, in the courts of law, the admission of the party to purge himself by oath is more favourable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed. And, with regard P The King v. Elkins, M. 8 Geo. III. 4 See Vol. III. p. 100, 101. B. R. 4 Burr, 2129.

(5) As the attachment only brings the party into court to answer to interrogatories to be exhibited, there is nothing to acknowledge till they are filed, nor is the party properly in contempt till reported so by the officer of the court; there is nothing, therefore, upon which to ground the judgment. On this principle interrogatories must in all cases be administered even to a confessing defendant, unless the prosecutor waives them. The case of a rescous was supposed to stand on a different ground; there the sheriff had returned the party as guilty of a rescous, and that return was in the nature of a conviction in itself; but the administering interrogatories supposed the possibility of a denial, which was incongruous. However, this reasoning was not very satisfactory, and the exception has been now done away with.

5 T. R.362.

Rex v. Edwards and another, 4 Burr. 2105. R. v. Horsley,

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.

Yearb. 20 Hen. VI. f. 37. 22 Edw. IV. f. 29.

• Stat. 43 Eliz. c.6. §3. 13 Car. II.

st. 2. c. 2. § 4. 9 & 10 W. III. c. 15. 12 Ann. st.2. c. 14. § 5.

M. 5 Edw. IV. rot. 75. cited in Rast. Ent. 268, pl.5,

CHAPTER THE TWENTY-FIRST.

OF ARRESTS.

[290]

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.

D 2 II awk. P. C. c. 13. § 15.