his conviction of the offender in writing: upon which he usually issues his warrant either to apprehend the offender, in case corporal punishment is to be inflicted on him; or else to levy the penalty incurred by distress and sale of his goods. This is in general the method of summary proceedings before a justice or justices of the peace; but for particulars we must 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. 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 a universal disregard of their author- [*284 ity. The principal instances of either sort that have been usually(d) punishable 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 courts 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, bailiffs, 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; for the malpractice of the

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

according to the use and reason of the common law." Rex vs. Simpson, 1 Stra. 45. Unless, therefore, the defendant forfeits this advantage by his wilful absence, he ought to be called upon to plead before any evidence is given. 1 T. R. 320. And the witnesses must be sworn and examined in his presence. Rex vs. Vipont, 2 Burr. 1163. Or, if the evidence has been taken down in his absence and is read over to him afterwards, the witness must at the same time, unless the defendant upon hearing the evidence should confess the fact, (Rex vs. Hall, 1 T. R. 320,) be resworn in his presence, and not merely called upon to assert the truth of his former testimony. Rex vs. Crowther, 1 T. R. 125. For the intent of the rule is that the witness should be subjected to the examination of the defendant upon his oath. 2 Burr. 1163; and see Rex vs. Kiddy, 4 D. & R. 734; 2 M. C. 364. This rule is confirmed rather than contradicted by those cases wherein convictions have been sustained without expressly alleging the evidence to have been taken in the presence of the defendant. Rex vs. Baker, 2 Stra. 1240. Rex vs. Aiken, 3 Burr. 1786. Rex vs. Kempson, Cowp. 241. For it will be found that in all those cases the judgment proceeded upon a presumption collected from the whole conviction that the defendant was in fact present and did hear the evidence given, which was always admitted to be necessary to the regularity of the magistrate's proceedings. Rex vs. Vipont, 2 Burr. 1163; and see Rex vs. Lovat, 7 T. R. 162; Rex vs. Thompson, 2 T. R. 18; Rex vs. Swallow, 3 T. R. 284; Paley, 39, 40.—CHITTY.

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

8 It is not, however, usual for the court to interfere in a summary way against an attorney for a mere breach of promise where there is nothing criminal, (2 Wils. 371; and see 2 Moore, 665. 1 Bingh. 102, 105;) or on account of negligence or unskilfulness, (4 Burr. 2060. 2 Bla. Rep. 780. 1 Chitt. Rep. 661,) except it be very gross, (Say, 50, 169;) nor for the misconduct of an attorney independently of his profession. But see 4 B. &

officers reflects some dishonour 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 misbehaviour 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 *285] the court, as by disobedience to any rule or order made in the progress of a cause, by non-payment of costs awarded by the court upon a motion, or by non-observance 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 disrespect the king's writ, or the rules or 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 *286] 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 necessarily be as antient 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 inseparable 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 courts be resisted by See book iii. page 17.

586.

Styl. 277. 2 Hawk. P. C. 152. Cro. Jac. 419. Salk.

(g) 4 Burr. €32. Lords' Jour. Feb. 7, June 8, 1757. (4) Gilb. Hist. C. P. ch. 3.

A. 47. 5 B. & A. 898. 8 Chitt. Rep. 58. 1 Bingh. 91. 7 Moore, 424, 437. Tidd, 5th ed. 81.-CHITTY.

By the insolvent acts, persons committed to prison upon an attachment for nonpayment of money awarded to be paid upon a submission to an arbitration which has been made a rule of court, or upon an attachment for not paying costs, may have the benefit of that statute as insolvent debtors.-CHITTY.

10 But a peer cannot be attached for non-payment of money, pursuant to an order of nisi prius, which has been made a rule of court. 7 T. R. 171, 448.—CHITTY.

the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a qua non deliberentur 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 a part of the law of the land, and, as such, is confirmed by the statute of magna charta.

If 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 further 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 see sufficient ground to suspect that *a contempt has been committed, [*287 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 cause be shown to discharge; and thereupon the court confirms and 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;() and if any of the interrogatories are 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.(o) If the contempt be of such nature that, when the fact is once acknowledged, the court can receive no further 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, (q) *and seems, indeed, to have been derived to the courts of king's bench and com[*288 mon 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; 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

(Staund. P. C. 73, b.

(2) Styl. 277.

(*) Salk. 84. Stra. 185, 564.

(4)6 Mod. 73.

(m) Stra. 444.

(n) 6 Mod. 73.

(0) Cro. Car. 146.

(P) The King vs. Elkins, M. 8 Geo. III. B. R.
(9) See book iii. pp. 100, 101.

11 Although the defendant acknowledges all the facts charged against him, yet it is the practice of the court to compel him to answer interrogatories, unless they are waived by the prosecutor. 5 T. R. 362.-CHRISTIAN.

one particular instance, I shall only for the present observe that, as the process by attachment in general appears to be extremely antient,(r) and has in more modern times been recognised, 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.

CHAPTER XXI.

OF ARRESTS.

*289] *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 issue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and its consequences; 10. Reversal of Judgment; 11. Reprieve, or pardon; 12. Execution;-all of which will be discussed in the subsequent part of this book.

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 a warrant; 4. By a hue and cry. *1. A warrant may be granted in extraordinary cases by the privy *290] council, or secretaries of state ;(a) 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 ;(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

(*) Year-hook, 20 Hen. VI. c. 37. 22 Edw. IV. c. 29.

(*) Stat. 43 Eliz. c. 6, 23. 13 Car. II. st. 2, c. 2, . 9 & 10 W. III. c. 15. 12 Anne, st. 2, c. 15, 25.

(t) M. 5 Edw. IV. rot. 75, cited in Rast. Ent. 268, pl. 5. (a) 1 Lord Raym. 65.

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

1As to arrests in criminal cases in general, see 1 Chitt. C. L. 2d ed. 11 to 71. Burn, J., tit. Arrest.

2 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 the magistrate himself cannot be sued until after a month's notice of action, during which he may tender amends, (24 Geo. II. c. 44. See ante, 1 book, 354, n. 37;) 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. 1 T. R. 535. 3 Esp. R. 135.-CHITTY.

3 Perjury and libels, (4 J. B. Moore, 195. 1 B. & B. 548. Gow. 84. Fortesc. 37, 358, 140. 11 St. Tr. 305, 316. 2 Wils. 159, 160,) and nuisances, when persisted in, (Ventr. 169. 1 Mod. 76. 5 Mod. 80, 142. 6 Mod. 180,) subject the offender to such criminal process. And there are some misdemeanours for which particular acts of parliament expressly authorize a justice of the peace to issue his warrant, as for keeping a disorderly house, (25 Geo. II. c. 36, s. 6,) or obtaining money under false pretences. 30 Geo. II. c. 24. In modern practice, however, it is not usual for a justice out of sessions to issue a warrant

to all such offences as they have power to punish by statute. 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 loose to felons to escape without punishment; and therefore Sir Matthew Hale hath combated 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.(f) 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 any private per[*291 son by name,)(g)' requiring him to bring the party either, generally, 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 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; for it is the duty of the magistrate, and ought not to be left to the

6

(A) 2 Hawk. P. C. 85.
(4) 1 Hal. P. C. 580. 2 Hawk. P. C. 82.

for a libel on a private individual, or for perjury, though where an illegal publication is manifestly dangerous in its tendency to the public interests they will exercise that discretion with which long practice has invested them. 4 J. B. Moore, 195. 1 B. & B. 548. Gow. 84. This also they will always do on the commission of any misdemeanour which involves an attempt to perpetrate a felony; and, when assembled in session, they may issue a warrant against a party suspected of perjury, even though he has not been indicted.-CHITTY.

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 a summons. 2 Bingh. 63. Hawk. b. ii. c. 13, s. 15. 12 Rep. 131, b. 10 Mod. 248.-CHITTY.

5 The power to grant such warrants is now regulated, by statute 11 & 12 Vict. c. 42, "to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales with respect to persons charged with indictable offences," consolidating and amending previous statutes.-STEWART.

6 But it seems sufficient if it be in writing and signed by him, unless a seal is expressly required by a particular act of parliament. Willes' Rep. 411. Bull. N. P. C. 83.–ČHITTY. It has recently been decided that warrants may be directed to officers either by their particular names, or by the description of their office; and that, in the first case, the officer may execute the warrant anywhere within the jurisdiction of the magistrate who issued it; in the latter case, not beyond the precincts of his office. And where a warrant of a magistrate was directed "To the constables of W. and to all other his majesty's officers," it was held that the constables of W. (their names not being inserted in the warrant) could not execute it out of the district. 1 Bar. & Cres. 288. 2 D. & R. 444. If an act of parliament direct that a justice shall grant a warrant, and do not state to whom it shall be directed, it must be directed to the constable, and not to the sheriff, unless such power be given by the act. 2 Ld. Raym. 1192. 2 Salk. 381; sed vid. 1 H. Bla. 15, notis. These distinctions are now rendered immaterial by the 5 Geo. IV. c. 18, s. 6, whereby the constable or any other peace-officer of any parish or place may execute any warrant within the magistrate's jurisdiction, whether the warrant be addressed to him by name or not, or whether he be a constable or peace-officer, &c. of the place in which he executes the warrant.-CHITTY.

The warrant need not state the time when the party is to be brought before the magistrate for examination. Fort. 143. 8 T. R. 110.-CHITTY.