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nature, that, when the fact is once acknowledged, the court can receive no farther information by interrogatories than it is already possessed of (as in the case of a rescous ?,) 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. (5)
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 [ 288 ] law in any other instance"; and seems indeed to have been
derived to the courts of king's bench and common pleas
The King v. Elkins, M. 8 Geo. III. 9 See Vol. III. p. 100, 101.
(5) As the attachment only brings the party into court to answer to interrogatories to be exhibited, there is nothing to acknowledge till they are filed, nor is the party properly in contempt till reported so by the officer of the court; there is nothing, therefore, upon which to ground the judgment. On this principle interrogatories must in all cases be administered even to a confessing defendant, unless the prosecutor waives them. The case of a rescous was supposed to stand on a different ground; there the sheriff had returned the party as guilty of a rescous, and that return was in the nature of a conviction in itself; but the administering interrogatories supposed the possibility of a denial, which was incongruous. However, this reasoning was not very satisfactory, and the exception has been now done away with. Rex v. Edwards and another, 4 Burr. 2105. R. v. Horsley, 5 T. R. 362.
to this singular mode of trial, thus admitted in this one particular instance, I shall only for the present observe, that as the process by attachment in general appears to be extremely antient', and has in more modern times been recognized, approved, and confirmed by several express acts of parliament', so 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.
CHAPTER THE TWENTY-FIRST.
W E 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 it's incidents; 6. Plea, and issue; 7. Trial, and conviction ; 8. Clergy; 9. Judgment, and it's consequences; 10. Reversal of Judgment; 11. Reprieve, or pardon ; 12. 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 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 warrant : 4. By an hue and cry
[ 2907 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 cases where they have a jurisdiction over the offence; in order to compel the person accused to appear before them 6: for it would be • Lord Raym.65.
2 II awk.P.C. c. 13. & 15.
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. Sir Edward Coke indeedo 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' 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 peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted"; 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'. 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, [ 291 ] (or, it may be, to any private person by names,) 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". A general warrant to apprehend all persons suspected, 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
• 4 Inst. 176.
& Salk. 176.
i i Hal. P. C. 580. 2 Hawk. P. C. c. 19. § 10. 17.
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. (1) It is therefore in fact no warrant at all; for it will not justify the officer who acts under itk: whereas a warrant, properly penned, (even though the magistrate who issues it should exceed his jurisdiction,) will by statute 24 Geo. II. c. 44. åt all events indemnify the officer who exe
cutes the same ministerially. And 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. (2) A warrant
* A practice had obtained in the years of queen Anne, down to the secretaries' office ever since the restora. year 1763 ; when such a warrant be. tion, grounded on some clauses in the ing issued to apprehend the authors, acts for regulating the press, of issuing printers, and publishers of a certain general warrants to take up (without seditious libel, its validity was disputnaming any person in particular) the ed; and the warrant was adjudged by authors, printers, or publishers of such the whole court of king's bench to be obscene or seditious libels, as were void, in the case of Money v. Leach. particularly specified in the warrant. Trin. 5 Geo. III. B.R. (8 Burr. 1742.) When those acts expired in 1694, the After which the issuing of such general same practice was inadvertently con- warrants was declared illegal by a vote tinued in every reign, and under every of the House of Commons. (Com. administration, except the four last Journ. 22 Apr. 1766.)
(1) This is rather shortly expressed; in every warrant the guilt or innocence of the person directed to be taken up remains to be determined on his subsequent trial; but if the warrant is to take up A B charged with a murder, the officer obeys the warrant, and will be protected by it, if he takes up A B, though A B is innocent of the murder ; whereas if the war. rant be to take up the murderer of CD, or the author of such a book, and the officer should take up A B, who turns out not to be the murderer of CD, or the author of the book, he has not obeyed the warrant, and, of course, will not be protected by it. The public mischief is, that the discretion whom to arrest is, in such a case, necessarily exercised by the inferior officer, and not by the magistrate, in whom the constitution reposes it.
(2) Where the warrant is directed to an individual not an officer, or to an officer by name and as an individual, it authorises them to execute it so far as the magistrate's jurisdiction extends, but does not compel the offieer to go beyond his own district; where it is directed either to all constables, or to the constables of a particular district, without naming them, it does not authorise, and of course does not compel, them to go beyond their own respective districts. As, however, the magistrate might authorise the officer to act beyond his district, by directing the warrant to him by name, it seems