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Accordingly we find it actually exercised, as early as the annals of our law extend. And, though a very learned author 1 seems inclinable to derive this procefs from the statute of Westm. 2. 13 Edw. I. c. 39. (which ordains, that in cafe the process of the king's courts be refifted by the power of any great man, the sheriff shall chastise the refifters by imprisonment, "a qua non "deliberentur fine fpeciali praecepto domini regis :" and if the sheriff himself be refifted, he shall certify to the court the names of the principal offenders, their aiders, confenters, 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 pleafure, without any interfering by any other perfon whatsoever) yet he afterwards more justly concludes, that it is a part of the law of the land; and, as fuch, is confirmed by the statute of magna carta.
Ir the contempt be committed in the face of the court, the offender may be inftantly 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 knowlege, unless by the confeffion of the party or the teftimony of others, if the judges upon affidavit fee fufficient ground to suspect that a contempt has been committed, they either make a rule on the fufpected party to shew cause why an attachment should not iffue against him1; or, in very flagrant inftances of contempt, the attachment issues in the first instance; as it also does, if no fufficient cause be fhewn to discharge, and thereupon the court confirms and makes abfolute, the original rule. This procefs 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 adminiftred to him, for the better information of the court with respect to the cir
h Gilb, Hift. C. P. ch 3. Styl. 277.
* Salk. 84. Stra. 185.
M m 2
cumftances of the contempt. These interrogatories are in the nature of a charge or accufation, and muft 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 anfwer 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 profecuted for the perjury". If he confeffes the contempt, the court will proceed to correct him by fine, or imprisonment, or both, and fometimes by a corporal or infamous рыnishment °. If the If the contempt be of fuch a nature, that, when the fact is once acknowleged, the court can receive no farther information by interrogatories than it is already poffeffed of, (as in the cafe of a rescous P) the defendant may be admitted to make fuch fimple acknowlegement, and receive his judgment, without answering to any interrogatories: but if he wilfully and obftinately 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 inftance; and feems 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 feveral ftages of a cause, and finally to enforce their decrees, was, till the introduction of fequeftrations, in the nature of a process of contempt; acting only in perfonam and not in rem. And there, after the party in contempt has anfwered the interrogatories, fuch his anfwer may be contradicted and difproved by affidavits of the adverse party: whereas in the courts of law, the admiffion of the party to purge himself by oath is more favourable to his liberty,
16 Mod. 73.
Stra. 444. ■ 6 Mod. 73.
• Cro. Car. 146.
The king v. Elkins. M. 8 Geo. III. B.R.
though perhaps not lefs dangerous to his confcience; for, if he clears himself by his answers, the complaint is totally difmiffed. And, with regard to this fingular mode of trial, thus admitted in this one particular inftance, I fhall only for the present obferve; that as the process by attachment in general appears to be extremely antient', and has fince the restoration been confirmed by an exprefs act of parliament', fo 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. 22 Edw. IV. 29.
t M. 5 Edw. IV. rot. 75. cited in Raft. Ent. 268. pl. 5.
CHAPTER THE TWENTY FIRST.
OF ARREST S.
E are now to confider the regular and ordinary method of proceeding in the courts of criminal jurifdiction; which may be distributed under twelve general heads, following each other in a progreffive order: viz. 1. Arreft; 2. Commitment, and bail; 3. Prosecution; 4. Process; 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 person, in order to be forthcoming to answer an alleged or fufpected crime. To this arrest all perfons whatfoever are, without distinction, equally liable to all criminal cases: but no man is to be arrested, unless charged with fuch 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 cafes by the privy council, or fecretaries of state'; but ordinarily by juftices of the peace. This they may do in any cafes where they. have a jurisdiction over the offence; in order to compel the perfon 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 submit to such 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 practice is by others held to be grounded rather upon connivance, than the exprefs 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 reason: 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 may alfo iffue a warrant to apprehend a perfon fufpected 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 fuch fufpicion. But in both cafes 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 fhould 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 justice, fhould fet forth the time and place of making, and the cause for which it is made,