ing to be sworn; and other misbehaviours of a similar kind: but not in the 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. 6. Those committed by the parties to a suit: as by disobedience to any rule or order; by nonpayment of costs; or by non-observance of awards. 7. Those committed by other persons: as by rude and contumelious behaviour in court; by disobeying the queen's writ, or the rules or process of the court; by speaking or writing contemptuously of the court, or of the judges acting in their judicial capacity; or by printing false accounts, or even true ones, in defiance of the prohibition of the court, of causes then depending in judgment.

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 superior 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 tribunal.

I shall, therefore, only for the present observe, that the process by attachment is as ancient as the law itself; it has in modern times been recognised, approved, and confirmed by the decisions of our courts, and by many acts of parliament, and thus by long and immemorial usage is now become part of the law of the land.

CHAPTER XXI.

OF ARRESTS.

1. By warrant.-2. By an officer without warrant.-3. By private persons without warrant.-By hue and cry

WE come now to the regular method of proceeding in the courts of criminal jurisdiction; which may be distributed under eleven general heads; 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. Judgment, and its consequences; 9. Reversal of judgment; 10. Reprieve, or pardon; 11. 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 the person of an alleged delinquent, in order that he may be forthcoming to answer an alleged or suspected crime; and which may be made four ways: 1. By warrant; 2. By an officer without warrant; 3. By a private person also without warrant; 4. By a hue and cry. 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 case where they have a jurisdiction over the offence, in order to compel the person accused to appear before them; 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.

Upon an information, therefore, or a complaint, in writing and upon oath, a justice may issue his warrant to apprehend the person charged or suspected, and cause him to be brought before him or any other justice or justices, to answer the charge and be dealt with according to law. Instead of a warrant, the justice may, in his discretion, and on a mere charge or complaint, without a written information or oath, issue a summons in the first instance; and if that be disobeyed by the person charged, then a warrant for his apprehension.

This warrant ought to be under the hand and seal of the justice, and should set forth the time and place of making, and the cause for which it is made. 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 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 indemnify the officer who executes the same ministerially.

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 Queen'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,

except in the case of fresh pursuit, be backed, that is, signed by a justice of the peace in another, as Middlesex, before it can be executed there.

A warrant may be granted on a Sunday, as well as on any other day; and need not be made returnable at any particular time, for it remains in force until it is executed; and the person against whom it is issued may be apprehended in the night as well as the day, and on a Sunday; for though the statute 29 Car. II. c. 7, s. 6, prohibits arrests on Sundays, it excepts the cases of treason, felonies, and breaches of the peace.

2. Arrests by officers, without warrant, may be executed, 1. By a justice of 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 may, without warrant, arrest any one for a breach of the peace committed in his view, and carry him before a justice; and, in case of felony actually committed, or a dangerous wounding, whereby felony is like to ensue, he may upon probable suspicion arrest the felon; and for that purpose is authorized, as upon a warrant, to break open doors, and even to kill the felon, if he cannot otherwise be taken; and if he be killed in attempting such arrest, it is murder in all concerned. 5. Watchmen, either those appointed by the statute of Winchester, 13 Edw. I. c. 4, to keep watch and ward in all towns from sunsetting to sunrising, or beadles, 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 à fortiori a peace-officer, that is present when any felony is committed, is bound 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 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 murder.

Upon probable suspicion also a private person may arrest the felon, or other person so suspected; but he does so at his own peril. A constable having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected, until inquiry can be made by the proper authorities; in order to justify a private individual in causing the imprisonment of any one, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed. A private indi

vidual may, however, apprehend any person found by night, i. e., between nine p.m. and six a.m., committing an indictable offence, or armed with an offensive weapon, with intent to break into any dwelling-house, or having in his possession, without lawful excuse, any implement of housebreaking, or having his face blackened or otherwise disguised, or in any dwelling-house, in either of these cases with intent to commit felony. And any person to whom any property is offered to be sold, pawned, or delivered, if he has reasonable cause to suspect that it has been stolen, is authorized, and if in his power is required, to apprehend, and forthwith to take before a justice the party offering the same, together with such property, to be dealt with according to law. A private person cannot, upon probable suspicion merely, justify breaking open doors to arrest a felon or other suspected person; 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 design to kill; but it amounts to so much, because it would be of most pernicious consequence, if, under pretence of suspecting felony, any private person might break open a house, or kill another; and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed.

4. There is yet another species of arrest, wherein both officers and private men are concerned, and that is, upon a hue and cry raised upon a felony committed. A hue, from huer, to shout, and cry, hutesium et clamor, is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another. That it might more effectually be made, the hundred was bound by the statute of Winchester, c. 3, to answer for all robberies therein committed unless they took the felon, which was the foundation of an action against the hundred, in case of any loss by robbery; and the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein and the felon escapes. An institution which has long prevailed in many of the Eastern countries, and was in part introduced even into the Mogul Empire, about the beginning of the seventeenth century; which is said to have effectually delivered that vast territory from the plague of robbers, by making in some places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts. If, however, a man wantonly or maliciously raises a hue and cry, without cause, he shall be severely punished, as a disturber of the public

peace.

CHAPTER XXII.

OF COMMITMENT AND BAIL.

Examination of the accused—the depositions-procedure before committal— Commitment and bail.

WHEN a delinquent is arrested, he ought to be carried before a justice of the peace, who is bound immediately to examine the circumstances of the crime alleged: and to this end, before committing the accused person to prison for trial, or admitting him to bail, is in his presence to take the statements on oath, or affirmation, of those who know the facts of the case; these statements, when signed and authenticated by the justice, constituting what are termed the depositions. The person accused has a right to question the witnesses, and is usually allowed legal assistance; but this is in the discretion of the magistrate, for the place where the examination takes place is not an open court; and the public may be excluded, if such a course will conduce to the ends of justice.

If, from the absence of witnesses, or other reasonable cause, it becomes necessary or advisable to adjourn the examination, this may be done, the accused person being remanded to prison, or allowed to go at large, upon his recognizance, at the discretion of the magis

trate.

After the examination of the witnesses for the prosecution has been completed, the depositions are read over to the accused, and he is then asked whether he wishes to say anything in answer to the charge, being warned that he is not obliged to do so, but that whatever he does say will be taken down in writing, and may be given in evidence against him upon the trial. If it appear that some inducement or threat has previously been held out to him, the magistrate should further give him clearly to understand, that he bas nothing to hope from any promise of favour held out, and nothing to fear from any threat made to him, as an inducement to make any admission or confession of his guilt; but that whatever he shall then say may be given in evidence, notwithstanding any such promise or threat.

Whatever he then says in answer, is to be taken down in writing, and after being read over to him, to be signed by the magistrate, and transmitted with the depositions to the court by which he is to be tried.

If, however, upon this inquiry the justice is of opinion that the