4th, Protection there appears reasonable ground for the investigation, either after a conviction or an acquittal, in case of felony, to award to the prosecutor his reasonable expenses, and, if he be poor, a compensation for his loss of time, on his petition (r) [1]. The law always ensures to the prosecutor all due protection and liabili. in the discharge of his duty. And as it would be a great disty of Pro- couragement to public justice, if he were liable to an action, [*10] when he was mistaken in the object *of his suspicions, it is set secutor. tled that he cannot be sued for indicting a party, unless his proceedings were both actuated by malice and destitute of any probable foundation (s). Nor can any action be supported for a malicious prosecution of felony, without producing a copy of the record of the indictment and acquittal, which are never granted, if the accusation was supported by any probable evidence (†) [2]. And further to shelter the party indicting, his own oath in support of the charge, may, in some cases, be given in evidence in his favour (u). On the same principle it has also been decided, that no new trial ought to be granted after a verdict in his discharge, though there was strong evidence against him, and though the Judge directed the Jury in favour of the party accused (w). But where the law is made the mere engine of oppression, the parties injured have always an effectual remedy [3]. An action on the case for a malicious prosecution has taken place of (r) 25 Geo. 2. c. 36. and 18 Geo. 3. 5 Taunt. 187. 1 Marshal, 12. Selw. N. P. Malicious Prosecution, post. (t) 3 Bla. Com. 126. 4 Burr. 1971. 14 East, 302. (u) 6 Mod. 216. Bul. N. P. 14. Peake's Ev. 166. (w) Cowp. 37. R. T. H. 279. [1] NEW YORK.-A public prosecution must be at the expense of the prosecutor, unless on disclosure of his circumstances to the court, they find him an object of public charity. Ex parte, Manning. 1 Caines Rep. 59. [2] To obtain a copy of the indictment, in order to ground an action for a malicious prosecution; the malice ought to appear from what passed at the trial, or from circumstances or declarations out of court; and the judge who presided should certify that a copy ought to be granted. A certificate that the acquittal was satisfactory is not sufficient. The certificate may be given nunc pro tunc, although the judge who presided is no longer on the bench. The People vs. Poyllon, 2 Caines N. Y. Rep. 202. [3] If the plaintiff is arrested on a charge made by the defendant of a suspicion of felony, but on examination is discharged by the magistrate, he may maintain an action for a malicious prosecution. Secor vs. Babcock, 2 Johns. Rep. 208. the old writ of conspiracy, and is now the usual mode of proceeding. This important subject, which though not actually a part of, bears so intimate a relation to, Criminal Law, will be fully considered after we have conducted the prosecution to its conclusion (x)[1]. There is, indeed, another course yet more penal, where several concur in preferring a malicious charge, by an indictment for a conspiracy, on which some very exemplary punishment is usually inflicted (y). For there cannot be a greater insult to public justice, than to abuse its forms, and, for the purposes of private malice, to render it an engine of oppression. CHAPTER II. OF THE ARREST. *WHEN a party has determined to prosecute, the next con- [*11] sideration is the mode in which he should proceed to bring the supposed offender to punishment. When the party suspected is at large, he may in some cases, before an indictment has been found, be apprehended, either without warrant, by a private individual, or by a constable or other officer ex officio; or, under a warrant granted by a Justice of the Peace or a Judge, or the Secretary of State; and if the supposed offender be in custody in a civil suit, he may be charged criminally under such warrant, though he cannot be taken, by its authority, out of the custody of the court, and sent to the County Gaol (a). We will, therefore, consider the law relative to arrest on a criminal charge before indictment under the following divisions: 1. Who are liable to apprehension. (x) See post, ch. Proceedings after Execution. (y) 2 Burr. 993. 1 Bla. Rep. 368. Staund. P. C. b. 2. c. 23. 4 Wentw. 96. Jac. Dic. Indictment. (a) 2 Stra. 828. 1 Wms. J. Arrest. 2 Barnard, 114. 1 Barnard, 129. [1] PENNSYLVANIA-No person shall be obliged to answer to any presentment or indictment, unless the prosecutor's name be inserted therein. 1 Smith's Laws Penn. 56. 2. For what crimes. 3. At what time. 4. In what places. 5. By whom, and under what authority, as with or without warrant, and the several incidents to the warrant and its execution. 6. Escapes, rescues, and retakings. 7. The proceedings [*12] of the officers after the *arrest. 8. Rewards for apprehending, and indemnity to the parties. 9. The return to the warrant. 10. Search warrants; and 11. The detention of a person on a criminal charge, who, on any ground either civil or criminal, is already in custody. Who may ed. An arrest, in criminal cases, is the apprehending or detaining be arrest of the person, in order to be forthcoming to answer an alleged or suspected crime (b). To this arrest, all persons are in general liable when accused of capital or violent injuries (c). The exemptions which exist in civil cases here cease to operate. Thus a married woman, when she has committed an offence, for which she is subject to punishment, is liable to be apprehended (d): and though it has been enacted, that clergymen shall not be arrested in churches and churchyards, this is a privilege which extends only to civil process, and in cases of crimes affords no protection above other subjects (e). So peers (ƒ) and members of parliament have no exemption from arrest in case of treason, felony, and actual breach of the peace (g), and according to the resolution of both Houses of Parliament, members are not privileged even when accused of a seditious libel (h) [1]. There seems to be considerable difficulty in precisely ascertaining in what cases a party suspected may be apprehended bebe made. fore a bill is found against him. It having been enacted by In what cases an arrest may (b) Burn J. Arrest. Lamb, 93. Dalt. J. ch. 170. (c) 4 Bla. Com. 289. (d) 3 Burr. 1681. Hawk. b. 1. c. 1. 2 Leach, 954, 1102. Dalt. J. ch. 170. (e) 1 R. 2. c. 15. 50 Edw. 3. c. 5. Cro. J. 321. (f) Fortes. 359. (g) 4 Inst. 24, 25. 2 Wils. 159, 160. Dalt. J. c. 170. (h) 11 Harg. St. Tr. 305. [1] By the twenty-fifth section of the act of Congress, passed April 30th, 1790, it is provided, that if any writ or process shall at any time be issued in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minister, of any prince or foreign state, authorized and received as such by the president of the United States, or any domestic or domestics of such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized or attached; such suit or process shall be deemed and adjudged to be utterly void and null to all intents, purposes and constructions whatsoever. 1 vol. Laws U. S. 110. Magna Charta, that no one should be taken or imprisoned, but (i) 9 Hen. 3. c. 29. (k) 4 Inst. 176, 7, 8. Comb. 359. (n) 2 Hale, 72, 108. Comb. 359. 11 St. Tr. (0) Fortes. 358, 140. (p) 25 Geo. 2. c. 36. s. 6. issue a warrant against a party suspected of perjury, even though he has not been indicted. Formerly it seems to have been thought, that no warrant could be granted on mere suspicion, except it arose originally in the breast of the magistrate (r). But it is now settled, that Justices of the Peace may issue criminal process on the information of others, as they are supposed competent to judge of the sufficiency of the evidence on which the charge is founded (s): and since the 39 Geo. 3. c. 37. a magistrate may issue a warrant to apprehend an offender for any crime committed on the high seas. An English magistrate may also cause to be arrested and commit an offender against the Irish law, or accused of having perpetrated a crime in a foreign country (t) [1]. This power of arresting before indictment, which has been thus gradually assumed and sanctioned, is founded on principles of justice, for as the law permits an arrest on mesne process in a civil action for a mere debt, in order to afford security to the creditor for the defendant's forthcoming, in case judgment shall be given against him, there seems full as strong reason, when a party is accused of a crime, for the conviction of which he would be liable to receive corporal punishment, that he should be subject to apprehension in the first instance, because in the latter case, he has a greater temptation to elude justice by absconding. These observations apply, however, in their full extent only [*15] to arrests made by virtue of a warrant of a magistrate. *For it seems that no person can, in general, be taken into custody without warrant, for a mere misdemeanour unattended with violence, as perjury or libel (u). And it has even been holden that a watchman cannot, of his own authority, justify the arrest of a man talking loudly in the street, though it may be disorderly, neither has the constable any power to commit him to prison (w). But in every case of treason, felony, and actual breach of the peace the offender may be apprehended without warrant, if such a crime has been actually committed by some one, and there is 4 Inst. 177. 2 Hale, 107 to 111. 1 Hale, 580. 1 Show. 54. n. c. Hawk. b. 2. (t) 2 Stra. 848. and see 4 Taunt. 34. (u) 2 Wils. 159, 160.. 2 Salk. 698. Fortes. 140. Dick. Sess. 88. (w) 1 Esp. Rep. 294. 2 Stra. 704. [1] No authority to arrest persons who have perpetrated crimes in a foreign country exists under the laws of the United States or of any of the individual states. |