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A rule, to which all municipal laws, that are founded on the principles of justice, have strictly conformed: the Roman law requiring a citation at the least; and our common law never suffering any fact (either civil or criminal) to be tried, till it has previously compelled an appearance by the party concerned.
After this summons, the magistrate, in summary proceedings, may go on to examine one or more witnesses, as the statute may require, upon oath (6); and then make his conviction of the offender,
by mandamus. Rex v. Benn, 6 T. R. 195. upon oath, and that no legal conviction can be The summons should be directed to the party founded upon any testimony not so taken. against whom the charge is laid ; and should There is a difference in the manner in which in general be signed by the justice himself by the Acts are worded, in regard to the mode of whom it is issued. Rex v. Steventon, 2 East, examination to be pursued; for, while some 365. Where a particular form of notice is Acts expressly mention the testimony of wit. prescribed by the Act, that must be strictly nesses on oath, others, in general terms, autho. pursued. Rex v. Croke, Cowp. 30. The in- rize the magistrate to hear and determine, or to tention of the summons being to afford the convict or give judgment on the examination of person accused the means of making his de- witnesses, without noticing the oath. But such fence, it should contain the substance of the general expressions seem, in legal construccharge, and fix a day and place for his appear. tion, necessarily to refer to the only kind of ance; allowing a sufficient time for the ato testimony known to the law, namely, that tendance of himself and his witnesses. Rex upon oath. “For," says Dalton, “ in all cases v. Johnson, 1 Stra. 260. A summons to ap- wheresoever any man is authorized to examine pear immediately upon the receipt thereof, has witnesses, such examination shall be taken been thought insufficient in one case. 2 Burr. and construed to be as the law will, i. e. upon 681. In another, an objection made to the oath." Dalt. c. 6, 96; and see id. e. 115, c. summons that it was to appear on the same 164; Plowd. 12, a ; Lamb, 517; ex parte Al day, was only removed by the fact of the de- dridge, 4 D. and R. 83 ; 2 M. C. 120 ; Rex v. fendant having actually appeared, and so Glossopp, 4 B. and A. 616 ; Paley, 33, 34. waved any irregularity in the notice. Rex v. Although no mode of examination be pointed Johnson, 1 Stra. 261. It is equally necessary out by the statutes giving jurisdiction over the that it should be to appear at a place certain : offence ; yet, as justice requires that the ac. otherwise the party commits no default by not cused should be confronted with the witness, appearing; and the magistrate cannot proceed es against him, and have an opportunity of in the defendant's absence upon a summons cross examination, it is required by law, in the defective in these particulars, without making summary mode of trial now under considera. himself liable to an information. Rex v. tion, that the evidence and depositions should Simpson, 1 Stra. 46. It has been made a ques. be taken in the presence of the defendant, tion whether the service of the summons must where he appears. For though the legislature be personal. It seems in general necessary by a summary mode of inquiry, intended to that it should be so, unless where personal substitute a more expeditious process for the service is expressly dispensed with by statute. common law method of trial, it could not de. Parker, C. J., was of that opinion. 10 Mod. sign to dispense with the rules of justice, as 345. And the provisions specially introduced far as they are compatible with the method into many Acts of Parliaments, to make a adopted. Indeed, it may be useful upon this servicc at the dwelling-house sufficient, seem occasion to notice the general maxim which to justify the interference, that the law in other has been laid down as a guide to the conduct cases is understood to require a service upon of magistrates in regulating all their summa. the person. Where personal service is not ry proceedings, namely, that “ Acts of Parlia. necessary, leaving a copy at the house is suffi- ment, in what they are silent, are best ex. cient ; Rex v. Chandler, 14 East, 268; and pounded according to the use and reason of the delivery may be to a person on the primi- ihe common law." Rex v. Simpson, 1 Stra. ses, apparently residing there as a servant. 45. Unless, therefore, the defendant forfeits Id. Ibid. These rules apply, however, only to this advantage by his wilful absence, he ought those cases where the defendant does not in to be called upon to plead before any evidence fact appear ; for if he actually appears and is given. I T. R. 320. And the witnesses pleads, there is no longer any question upon must be sworn and examined in his presence. ihe sufficiency or regularity of the summons. Rex. v. Vipont, 2 Burr. 1163. Or, if the evi1 Stra. 261. Paley on convictions, 2 ed. by dence has been taken down in his absence, Dowling, 21, 23.
and is read over to him afterwards, the witness (6) The magistrate has, in general, no au- must at the same time, unless the defendant thority to compel the attendance of witnesses upon hearing the evidence should confess the for the purpose of a summary trial ; unless fact, Rex v. Hall, 1 T. R. 320, be resworn in where it is specially given by Act of Parlia- his presence, and not merely called upon to ment. This, in many cases, has been done ; assert the truth of his former iestimony. Rex and in sundry Acts the provision is accompa- v. Crowther, 1 T. R. 125. For the intent of nied with a penalty on refusal to attend for ihe the rule is, that the witness should be subjectpurpose of being examined. It seems agreed ed to the examination of the desendant upon Thai the examination of witnesses must be his oath. 2 Burr. 1163; and see Rex v Kid
in writing: upon which he usually issues his warrant, either to apprehend the offender, in case corporal punishment is to be inflicted on him ; or else to levy the penalty incurred, by distress and sale of his goods. This is, in general, the method of summary proceedings before a justice or justices of the peace ; but for particulars we must have recourse to the several statutes, which create the offence, or inflict the punishment: and which usually chalk out the method by which offenders are to be convicted. Otherwise they fall of course under the general rule, and can only be convicted by indictment or information at the common law.
III. To this head, of summary proceedings, may also be properly referred the method, immemorially used by the superior courts of justice, of punishing contempts by attachment; and the subsequent proceedings thereon.
The contempts, that are thus punished, are either direct, which openly insult or resist the powers of the courts, or the persons of the judges who preside there; or else are consequential, which (without such gross indolence or direct opposition) "plainly tend to create an universal [*284] disregard of their authority. The principal instances, of either sort, that have been usually (2) punishable by attachment, are chiefly of the following kinds. 1. Those committed by inferior judges and magistrates ; by acting unjustly, oppressively, or irregularly, in administering those portions of justice which are intrusted to their distribution : or by disobeying the king's writs issuing out of the superior courts, by proceeding in a cause. after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, and the like. For, as the king's superior courts (and especially the courts of king's bench) have a general superintendance over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority, whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, goalers, and other officers of the court by abusing the process of the law, or deceiving the parties, by any acts of oppression, extortion, collusive behaviour, or culpable neglect of duty (7). 3 Those committed by attorneys and solicitors, who are also officers of the respective courts : by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice (8). For the malpractice of the officers reflects some dishonour on their employers : and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Those committed by jurymen, in collateral matters relating to the discharge of their office ; such as ma. king default, when summoned; refusing to be sworn, or to give any ver.
(d) 2 Hawk. P. C. 142, &c.
dy, 4 D. and R. 734 ; 2 M. C. 364. This rule 152 ; Rex v. Thompson, 2 T. R. 18; Rex v. is confirmed, rather than contradicted, by those Swallow, 3 T. R. 284 ; Paley, 39, 40. cases wherein convictions have been sustain- (7) See Tidd, 8 edit. 308, 9. 312, 3. 231. ed without expressly alleging the evidence to (8) It is not, however, usual for the court to have been taken in ibe presence of the defend. interfere in a summary way against an attorant. Rex v. Baker, 2 Stra. 1240 ; Rex
v. Ai- ney for a mere breach of promise, where there ken, 3 Burr. 1786 ; Rex v. Kempson, Cowp. is nothing criminal, 2 Wils. 371; and see 2 241. For it will be found that in all those Moore, 665. 1 Bing. 102, 5; or on account cases the judgment proceeded upon a pre- of negligence or unskilfulness, 4 Burr. 2060. sumption collected from the whole conviction, 2 Bla. Rep. 780. i Chit. Rep. 651 ; except it that the defendant was in fact present, and did be very gross, Say. 50, 169 ; nor for the mishear the evidence given, which was always conduct of an attorney independently of his admitted to be necessary to the regularity of profession. But see 4 B. & A. 47.5 B. & the magistrate's proceedings. Rex v. Vipont, A 98. 8 Chit. Rep. 58. 1 Bingh. 91. 7 2 Burr. 1163; and see Rex v. Lovat, 7 T.R. Moore, 424. 437. Tidd, 5 ed. 81.
dict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviour or irregularities of a similar kind: but not in mere exercise of their judicial capacities, as by giving a false or erroneous verdict. 5. Those committed by witnesses : by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn. 6. Those committed by par
ties to any suit, or proceeding before the court : as by disobedience (*285] to any *rule or order, made in the progress of a cause; by non
payment of costs awarded by the court upon a motion; or, by nonobservance of awards duly made by arbitrators or umpires, after having entered into a rule for submitting to such determination (e). Indeed the at*tachment for most of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court (9). And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by the general act of pardon. And upon a similar principle, obedience to any rule of court may also by statute 10 Geo. III. c. 50. be enforced against any person having privilege of parlia. ment by the process of distress infinite. 7. Those committed by any other persons under the degree of a peer : and even by peers themselves, when enormous and accompanied with violence, such as forcible rescous and the like (f); or when they import a disobedience to the king's great prerogative writs of prohibition, habeas corpus (g), and the rest (10). Some of these contempts may arise in the face of the court ; as by rude and contumelious behaviour ; by obstinacy, perverseness, or prevarication : by breach of the peace, or any wilful disturbance whatever : others in the absence of the party; as by disobeying or treating with disrespect the king's writ, or the rules or process of the court; by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court or judges, acting in their judicial capacity; by printing false accounts (or even true ones without proper permission) of causes then depending in judgment; and by any thing, in short, that demonstrates a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good
order of the kingdom) is entirely lost among the people (11). [*286] *The process of attachment, for these and the like contempts,
must necessarily be as ancient 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 tri
(g) 4 Burr. 632. Lords' Journ. 7 Feb. 8 Jun. (f) Styl. 277. 2 Hawk. P. C. 152. Cro. Jac. 419.
(e) See Book III. pag. 17.
(9) By the insolvent acts persons commit- (10) But a peer cannot be attached for nonted to prison upon an attachment for non-pay. payment of money, pursuant to an order of ment of money, awarded to be paid upon a nisi prius, which has been made a rule of submission to an arbitration, which has been court. 7 T. R, 171. 448. made a rule of court, or upon an attachment for not paying costs, may have the benefit of &c. regulating the subject of contempt of
(11) See 2 R. 3. 278, 10, and p. 534, Ø 1; that statute as insolvent debtors.
bunal. Accordingly we find it actually exercised as early as the annals of our law extend. And though a very learned author (h) seems inclinable to derive the process from the statute of Westm. 2. 13 Edw. I. c. 39. (which ordains, that in case the process of ihe 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 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 (i), 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 the suspected party to shew cause why an attachment should not issue against him (j); or, in very flagrant' instances of contempt, the attachment issues in the first instance (k); as it also *does, if no sufficient cause be shewn to discharge, [*287] 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 (1): and, if any of the interrogatories are improper, the defendant may reluse to answer it, and move the court to have it struck out (m). If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury (n). 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 (o). If the contempt be of such 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) (p), the defendant may be admitted to make such simple acknowledgment, and receive his judgment without answering to any interrogatories (12): 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 punisher
at the discretion of the court. It cannot have escaped the attention of the reader, that this method of
(m) Stra. 444.
# (h) Gilb. Hist. C. P. ch. 3.
(i) Staund. P. C. 73. b.
(12) Although the defendant acknowledges interrogatories, unless they are waived by the all the facts charged against him, yet it is the prosecutor. 5 T. R. 362, practice of the court to compel him to answer
making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance (9); 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
proceeds of the courts of equity, in the several stages of a cause, [*288] and finally to enforce their decrees, was, till the introduction of se
questrations, 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, ihe 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 (r), and has in more modern times been recognized, approved, and confirmed by several express acts of parliament (s), so the method of examining the delinquent himself upon oath with regard to the contempt alleged, is at least of as high antiquity (1), and by long and immemorial usage is now become the law of the land.
OF ARREST S.
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 Judg. ment; 11. Reprieve, or pardon ; 12. Execution ;-all of which will be discussed in the subsequent part of this book.
First, then, of an arrest (1); 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. [*290] *1. A warrant may be granted in extraordinary cases by the pri
vy council, or secretaries of state (a) (2); but ordinarily by justices (9) See Book III. p. 100, 101.
(1) M. 5 Edw. IV. rot. 75. cited in Rast. Ent. 268, (T) Yearb. 20 Hen. VI. c. 37.: 22 Edw. IV. c. 29. pl. 5.
(8) Stat. 43 Eliz. c. 6, 3. 13 Car. II. st. 2. c. 2. (a) 1 Lord Raym. 65. 64. 9 & 10 W. III. c. 15. 12 Ann. st. 2, c. 15, 6 5.
(1) As to arrests in criminal cases in ge. J. tit. Arrest. neral, see 1 Chit. C. L. 2 ed. 11 to 71. Burn. (2) Or by the speaker of the house of com