CHAPTER THE TWENTY FIRST. OF ARREST S. E are now to confider 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 progreffive order: viz. 1. Arrest; 2. Commitment, and bail; 3. Profecution; 4. Procefs; 5. Arraignment, and it's incidents; 6. Plea, and iffue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and it's confequences; 10. Reverfal of judgment; 11. Reprieve, or pardon; 12. Execution: all which will be discussed in the subsequent part of this book. FIRST then, of an arreft: which is the apprehending or restraining of one's perfon, in order to be forthcoming to answer an alleged or suspected crime. To this arrest all perfons whatsoever are, without diftinction, equally liable to all criminal cafes: 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 arreft 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. C 1. A WARRANT may be granted in extraordinary cafes by the privy council, or fecretaries 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 abfurd to give them power to examine an offender, unless they had also a power to compel him to attend, and fubmit to fuch examination. And this extends undoubtedly to all treafons, felonies, and breaches of the peace; and alfo to all fuch offences. as they have power to punish by ftatute. Sir Edward Coke indeed hath laid it down, that a juftice of the peace cannot iffue a warrant to apprehend a felon upon bare fufpicion; no, not even till an indictment be actually found: and the contrary connipractice is by others held to be grounded rather upon vance, than the express rule of law; though now by long cuftom established. A doctrine, which would in most cases give a loose to felons to escape without punishment; and therefore fir Matthew Hale hath combated it with invincible authority, and ftrength of reafon : maintaining, 1. That a juftice of peace hath power to iffue a warrant to apprehend a perfon accused of of felony, though not yet indicted; and 2. That he alfo issue a warrant to apprehend a person suspected of felony, though the original fufpicion 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 fufpicion. 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 alfo to prove the cause and probability of fufpecting the party, against whom the warrant is prayed. This warrant ought to be under the hand and feal of the juftice, fhould fet forth the time and place of making, and the cause for which it is made, a1 Lord Raym. 65. b Hawk. P. C. 84. 2 C 4 Inft. 176. d2 Hawk. P. C. 84. e 2 Hal. P. C. 108.. may and and should be directed to the conftable, or other peace officer, requiring him to bring the party either generally before any juftice of the peace for the county, or only before the justice who granted it; the warrant in the latter cafe being called a Special warrants. A general warrant to apprehend all perfons fufpected, 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 officer, to judge of the ground of fufpicion. And a warrant to apprehend all persons guilty of a crime therein specified, is no legal warrant: for the point, upon which it's authority refts, is a fact to be decided on a fubfequent trial; namely, whether the perfon 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 lawful warrant will at all events indemnify the officer, who executes the fame ministerially. When a warrant is received by the officer, he is bound to execute it, fo 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 tefte'd, or dated, England; not Oxfordshire, Berks, or other particular county. But the warrant of a juftice of the peace in one county, as Yorkshire, must be backed, that is, figned by a juftice of the peace in another, as Middlesex, before it can be executed there. Formerly, regularly speaking, there ought to have been a fresh 8 2 Hawk. P. C. 85. 1 Hal. P. C. 580. 2 Hawk. P. C. 82. i A practice had obtained in the fecretaries office ever fince the restoration, grounded on fome claufes in the acts for regulating the prefs, of iffuing general warrants to take up (without naming any perfon in particular) the authors, printers and publishers of fuch obscene or feditious libels, as were particularly specified in the warrant. When thofe acts expired in 1694, the fame practice was inadvertently continued, in every reign and under every administration, except the four laft years of queen Anne, down to the year 1763: when fuch a warrant being issued to apprehend the authors, printers and publifhers of a certain feditious libel, it's validity was disputed; and the warrant was adjudged by the whole court of king's bench to be void, in the cafe of Money v. Leach. Trin. 5 Geo. III. P. R. After which the ifluing of fuch general warrants was declared illegal by a vote of the house of commons. (Com. Journ. 22 Apr. 1766.) warrant 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. 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 perfon committing a felony or breach of the peace in his prefence. 2. The sheriff, and 3. The coroner, may apprehend any felon within the county without warrant. 4. The conftable, 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, and carry him before a justice of the peace. And, in cafe of felony actually committed, or a dangerous wounding whereby felony is like to ensue, he may upon probable fufpicion arreft the felon; and for that purpose is authorized (as upon a juftice's warrant) to break open doors, and even to kill the felon if he cannot otherwise be taken; and, if he or his affiftants be killed in attempting fuch arreft, it is murder in all concerned m. 5. Watchmen, either thofe appointed by the statute of Winchester, 13 Edw. I. c. 4. to keep watch and ward in all towns from sunsetting to funrifing, or fuch as are mere affistants to the constable, may virtute officii arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning ". 3. ANY private perfon (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 standers by°. And they may justify breaking open doors upon following fuch felon: and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavouring to make fuch arrest, it is k 1 Hal. P. C. 86. 1 See Vol. I. pag. 355. m2 Hal. P. C. 88-96. VOL. IV. a Ibid. 98. N n murder P. arreft murder. Upon probable fufpicion also a private perfon may 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'. It is no more, because there is no malicious defign to kill: but it amounts to fo much, because it would be of moft pernicious confequence, if, under pretence of suspecting felony, any private perfon might break open a houfe, or kill another; and also because fuch arrest upon suspicion is barely permitted by the law, and not enjoined, as in the cafe of thofe who are prefent when a felony is committed. Edw. I. de relative to this 4. THERE is yet another fpecies of arreft, wherein both officers and private men are concerned, and that is upon an hue and cry raised upon a felony committed. An hue (from buer, to fhout) and cry, hutefium et clamor, is the old common law procefs of pursuing, with horn and with voice, all felons, and fuch as have dangerously wounded another. It is also mentioned by ftatute Weftm. 1. 3 Edw. I. c. 9. and 4 officio coronatoris. But the principal ftatute, matter, is that of Winchester, 13 Edw. I. c. 1 & 4. which directs, that from thenceforth every country shall be so well kept, that, immediately upon robberies and felonies committed, fresh fuit fhall be made from town to town, and from county to county; and that hue and cry shall be raised upon the felons, and they that keep the town fhall follow with hue and cry, with all the town and the towns near; and fo hue and cry fhall be made from town to town,. until they be taken and delivered to the sheriff. And, that fuch hue and cry may more effectually be made, the hundred is bound by the fame ftatute, c. 3. to answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the |