the defendant may refuse to answer it, and move the court to have it struck out. If 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 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 he punished at the discretion of the court. q 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 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 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 ancient, and has in more modern times been recognized, approved, m Stra. 444. n 6 Mod. 73. o Cro. Car. 146. 8 Geo. III. B. R. 9 See Vol. III. p. 92, 93. The king v. Elkins, M. 22 Edw. IV. 29. 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. CHAP. XXI. OF ARRESTS. WE 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 its incidents; 6. Plea, and issue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and its 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 a warrant: 4. By an hue and cry. a 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: b for it would be absurd to give them power to examine an of s 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. 15. § 5. t M. 5 Edw. IV. rot. 75. cited in Rast. Ent. 268. pl. 5. a 1 Lord Raym. 65. b 2 Hawk. P. C. 84. e c fender, 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 upou 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, (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,1 A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty; for it is the duty of the c 4 Inst. 176. d 2 Hawk. P. C. 84. e 2 Hal, P. C. 108. f Ibid. 110. g Salk. 176. h2 Hawk. P. C. 85. i 1 Hal. P. C. 580. 2 Hawk P. C. 82. magistrate, and ought not to be left to the 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. 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. A warrant from the chief, or other, justice of the court of king's bench extends all over the kingdom: and is teste'd, 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 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 con k A practice had obtained in the secretaries' office 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. After which, the issuing of such general warrants was declared illegal by a vote of the House of Commons. Com. Journ. 22 Apr. 1766. veyed back to that part of the united kingdoms, in which such offence was committed. 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. And, in case of felony actually com mitted, or a dangerous wounding, whereby felony is like to ensue, he may upon probable suspicion arrest the felon ; and for that purpose is authorised (as upon a justice's war rant) to break open doors, and even to kill the felon if he cannot otherwise be taken; and if he or his assistants be killed in attempting such arrests, it is murder in all concerned." 5. Watchmen, either those appointed by the sta tute of Winchester, 13 Edw. I. c. 4. to keep watch and ward in all towns from sun-setting to sun-rising, or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly night walkers, and commit them to custody till the morning." 3. Any private person (and a fortiori a peace officer) that is present when any felony is committed, is bound by the law to arrest the felon; on pain of fine and imprisonment, if he escapes through the negligence of the standersby. And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavouring to make such arrest, it is mur der. Upon probable suspicion also a private person may arrest the felon, or other person so suspected. But he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more.s It is no more, because there is no malicious 11 Hal. P. C. 86. P 2 Hawk. P. C. 74. |