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ceedings before a justice or justices of the peace; but for particulars we mus: 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. (6) 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 insolence or direct opposition) *plainly tend to create an universal disregard of their authority. The principal instances, of either sort that have been usually, (d) pun[ *284 ] ishable 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 court of king's bench) have a general superintendence 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, baliffs, gaolers, 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. 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. (7) For the malpractice of the officers reflects some dishonor 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 making default, when summoned; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviours 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 parties to any suit, or proceeding before the court: as by disobe

(d) 2 Hawk. P. C. 142, &c.

(6) [These acts have been consolidated, and the duties of justices clearly defined by the statute 11 and 12 Vic. c. 43, which provides a procedure applicable to the great majority of cases in which in a summary conviction or order may be made by justices of the peace out of sessions.]

And in the United States, where statutes authorize summary convictions, they point out specifically the course of proceeding, and it is a rule of universal application that the magistrate must follow this course strictly, and the conviction must show upon its face a case coming within the statute, and of which the justice had jurisdiction. No intendments will be made in favor of these summary proceedings. See the general rule in Britain v. Kinnard, 1 Brod, and Bing. 432; Piper e. Pierson, 2 Gray 120, and notes thereto, in Leading Criminal Cases, by Bennett and Heard.

(7) [It is not, however, usual for the court to interfere in a summary way against an attor ney for a mere breach of promise, where there is nothing criminal: 2 Wils. 371; and see 2 Moore, 665; 1 Bing. 102, 105; or on account of negligence or unskilfulness: 4 Burr. 2060; 2 Bla. Rep. 780; 1 Chit. Rep. 651; except it be very gross; Say, 50, 169; nor for the misconduct of an attorney independently of his profession. But see 4 B. and A. 47; 5 id. 898; 8 Chit. Rep. 58: 1 Bingh. 91; 7 Moore, 424, 437; Tidd. 5th ed. 81.]

The power of courts to commit for contempt, and the limitations upon that power were very fully considered in the case of Yates, 4 Johns. 317; 6 id. 337, and 9 id. 395. And as to justices' courts, see Onderdonk r. Ranlett, 3 Hill, 323.

VOL. II.-60


dience to any rule or order, made in the progress of a cause; by non

[*285] 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 attachment 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. 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 parliament 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. 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 disrepect the king's writ, or the rules of 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. *The process of attachment, for these and the like contempts, must [*286] 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 inseperable 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 (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 the king's court be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a qua non deliberenter sine speciali præcepto 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 part of the law of the land, and, as such, is confirmed by the statute of magna carta.

It 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 sce sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show 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 [ *287] cause be shown to discharge, and thereupon the court confirms, and

(e) See book, III, page 17.

(Styl. 277. 2 Hawk. P. C. 152. Cro. Jac. 419. Salk. 586.
(h) Gilb. Hist. C. P. ch. 3.
(j) Styl. 277.
(k) Salk. 84. Stra. 185, 564.

8) Burt. 62. Lor's Journ. 7 Feb. 8 Jun. 1757.

Staund. P. C. 73, b.

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 is improper, the defendant may refuse 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. (0) 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: 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.

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; (7) 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; [*288] 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, (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, (t) and by long and immemorial usage is now become the law of the land.



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 issues; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and its consequences; 10. Reversal of judgment; 11. Reprieve, or pardon;

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(p) The King v. Elkins, M. 8 Geo. III, B. R.
(r) Yearb. 20 Hen. VI, c. 37. 22 Edw. IV, c. 29.

(0) Cro. Car. 146.
(q) See book III. pp. 100, 101.

(s) Stat. 43 Eliz. c. 6, § 3. 13 Car. II, st. 2. c. 2, 4. 9 and 10 Wm. III, c. 15. 12 Ann. st. 2, c. 15, 5. (t) M 5 Edw. IV, rot. 75, cited in Rast. Ent. 268, pl. 5.

12. Execution; all of which will be discussed in the subsequent part of this Dook.

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 [*290] council, or secretaries of state: (a) (1) but ordinarily by justices of th 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 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. (2) Sir Edward Coke indeed (c) 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 (d) 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 oose to felons to escape without punishment; and therefore Sir Matthew Hale hath combatted it with invincible authority and strength of reason: maintaining, 1. That a justice of the peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted; (e) 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. (ƒ) (3) 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 [ *291] any private person by name), (g) requiring him to bring the party either generally (4) 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

(a) 1 Lord Raym. 65. (e) 2 Hal. P. C. 108.

(b) 2 Hawk. P. C. 81.
(f) Ibid. 110.

(c) 4 Inst. 176.
(g) Salk. 176.

(d) 2 Hawk. P. C. 84.

(1) [Or by the speaker of the house of commons (14 East, 1, 163), or house of lords (8 T. R. 314), or by a judge of the court of king's bench. 1 Hale, 578; and see 48 Geo. III, c. 58.

When the offender is not likely to abscond before a warrant can be obtained, it is in general better to apprehend him by a warrant, than for a private person, or officer, to arrest him of his own accord, because if the justice should grant his warrant erroneously, no action lies against the party obtaining it. 3 Esp. 166, 167. And if a magistrate exceed his jurisdiction, the officer who executes a warrant is protected from liability; and no action can be supported against the party procuring the warrant, though the arrest was without cause, unless it can be proved that the warrant was obtained maliciously. 1T. R. 535; 3 Esp. R. 135.]

Power is now, by several recent statutes, expressly conferred upon private individuals to make arrest of persons found committing offences. The caution to abstain from so doing where no apparent necessity exists is nevertheless worthy of being observed.

(2) [Where a statute gives a justice jurisdiction over an offence, it impliedly gives him power to apprehend any person charged with such offence; and especially after a party has neglected & summons. 2 Bing. 63; Hawk. b. 2, c. 13, s. 15; 12 Rep. 131 b; 10 Mod. 248.]

(3) The power to grant such warrants is now regulated by statute 11 and 12 Vic. c. 42, which amends and consolidates the previous statutes.

(4) The warrant need not state the time when the party is to be brought before the magistrate for examination. 8 T. R. 110; Fost. 143.]

special warrant. (h) A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty; (i) for it is the duty of the 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. (5) 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 tested, or dated, England; not Oxfordshire, Berks, or other particular county. But a warrant of the 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, regu[*292] larly 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 authorized 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 to Scotland, and vice versa, may be indorsed and executed, by the local magistrates, and the offender conveyed back to that part of the united kingdom, in which such offence was committed. (6)

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(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 suen obscene or seditious libels as were particularly specified in the warrant. When those acts expired in 1691, 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 appreliend the authors, printers, and publishers, of a certain seditious libel, its validity was disputed; and the warrant was adjudged by the whole court of the 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.)

(5) Warrants to arrest idle, loose, or disorderly persons are an exception to this rule, and by several statutes, peace officers are expressly authorized to apprehend them without any warrant at all.

(6) [By statute, all warrants issued in England, Scotland, or Ireland may be executed in any part of the united kingdom. Independently of this, the secretary of state for Ireland may, by his warrant, remove a prisoner there to be tried in England, for an offence committed in the latter: 3 Esp. Rep. 178; and an English justice may commit a person here who has committed an offence in Ireland, preparatory to sending him thither for trial. 2 Stra. 848;

4 Taunt. 34.

With respect to the time of arresting a person: A person may be apprehended in the night as well as the day; 9 Co. 66; and though the statute 29 Car. II, c. 7, s. 6, prohibits arrests on Sundays, it excepts the cases of treasons, felonies and breaches of the peace; in these cases, therefore, an arrest may be made on that day. Cald. 291; 1 T. R. 265; Willes, 459.

As to the place in which a party may be arrested. Since the privileges of sanctuary and abjuration were abolished, by 21 Jac. I, c. 28, no place affords protection againt the criminal law. And even the clergy may, on a criminal charge, be arrested whilst in their churches (Cro. Jac. 321), though it is illegal to arrest them in any civil case, whilst in the church to perform diving service, or going to or returning from the same on any day. Bac. Ab. Trespass, D. 3. And if a person having committed a felony in a foreign country comes into England, he may be arrested here, and conveyed and given up to the magistrates of the country against the laws of which the offence was committed. 4 Taunt. 34.

It may be here observed as a general rule, that if the warrant be materially defective, or the officer exceed his authority in executing it, and if he be killed in the attempt, this is only manslaughter in the party whom he endeavored to arrest: 1 East, P. C. 310; 1 Leach, 206; 6 T. R. 122; 5 East, 303; 1 B. and C. 291; and any third person may lawfully interfere to prevent an arrest under it, doing no more than is necessary for that purpose. 5 East, 304, 308; 1 Leach, 206.]

The statute 6 and 7 Vic. c. 24, makes provision for the return of supposed offenders escaping from the colonies to the united kingdom, and the statutes 6 and 7 Vic. cc. 75, 76, provide for the extradition of supposed offenders who have escaped from France and the United States

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