[ 9 ] When a defendant has been convicted in the King's Bench, that court, having the king's privy seal for the purpose, may give the prosecutor a third part of the fine which they think fit to impose (a). And it is said to be a common practice for them, in order to induce defendants to make satisfaction for the expenses of the prosecution and the personal injury, to intimate an intention, on that account, of mitigating the fine they would otherwise compel them to pay to his majesty (b). In conformity to this principle, it has been holden, that where a defendant has been convicted at the Quarter Sessions of ill-treating his parish ap→ prentice, for which the officers had been bound over, by recognizance, to prosecute him, a security given by recommendation of the court to pay the fair expenses of prosecution, and on which account they mitigated the punishment they would otherwise have inflicted, is valid (c). Besides these collateral advantages, rewards and immunities are given by a variety of statutes to those who are the means of couvicting offenders. These we shall consider in that stage of the proceedings in which they naturally arise (d). And though, in some degree, to counterbalance these benefits, the costs of the prosecution must, in the first instance, be defrayed by the party at whose suggestion it is commenced, and the costs of prosecutions for misdemeanors must in general be borne by the prosecutor (e), yet the court are empowered wherever 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 (f). (a) 1 Keb. 487. Hawk. b. 2. c. 25. s. 3. Bac. Abr. Indictment, A. (b) Id. ibid. Post, Chap. As to Costs. (c) 11 East, 46; but see 9 East, 49. (d) See post, Chap. As to Rewards, &c. As to rewards in general, see Becc. c. 36. Hawk. b. 2. c. 12. s. 21 to 38. Williams, J. Felony, IX. Burn, J. Felony, IV. (e) 7 T. R. 377. 4 T. R. 591. 2 B. & A. 522. 5 B. & A. 180. Dick. Sess. 403, 4. 4 Bla. Com. 362.412. Christian's edit. (ƒ) 25 G. 2. c. 36. & 18 G. 3. c. 19. See observations on these acts, 6 T. R. 237. Hullock, 601. Dick. Sess. 402; and for the law of costs in criminal cases in general, see post, chap. As to Proceedings after Judgment prosecutor. [ 10 ] The law always insures to the prosecutor all due protection in 4th, Protection the discharge of his duty. And as it would be a great discou- and liability of ragement to public justices, if he were liable to an action, when he was mistaken in the object of his suspicions, it is settled that he cannot be sued for indicting a party, unless his proceedings were both actuated by malice and destitute of any probable foundation (a). 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 (b). 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 favor (c). 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 favor of the party accused (d). But when the law has been made the mere engine of oppression, the party injured has an effectual remedy, and prosecutors are sometimes liable to pay costs (e). An action on the case for a malicious prosecution has taken place of 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 (ƒ). 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 (g); 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. (a) 1 Campb. 199 to 204. 9 East, 361. 5 Taunt. 187. 1 Marsh. 12. Selw. N. P. Malicious Prosecution. Post. (b) 3 Bla. Com. 126. 4 Burr. 1971. 14 East, 302. (c) 6 Mod. 216. Bul. N. P.14. Peake's Evid. 166. (d) Cowp. 37. R. T. H. 279. (g) 2 Burr. 993. 1 Bla. Rep. 11 CHAPTER II. [ 12 ] 1st, Who may be arrested. OF THE ARREST. WHEN a party has determined to prosecute, the next consideration 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 general, 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. 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 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. An arrest, in criminal cases, is the apprehending or detaining 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 ex (a) 2 Stra. 828. 1 Wms. J. Arrest. 2 Barn. 114. 1 Barn. 129. (b) Burn's J. Arrest. Lamb, 93. Dalt. J. ch. 170. (c) 4 Bla. Com. 289. emptions 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 (a): and though it has been enacted, that clergymen shall not be arrested in churches and church-yards, this is a privilege which extends only to civil process, and in cases of crimes affords no protection above other subjects (b). So peers (c) and members of parliament have no exemption from arrest in case of treason, felony, and actual breach of the peace (d); and, according to the resolution of both Houses of Parliament, members are not privileged even when accused of a seditious libel (e). made. [ 13 ] There seems to be considerable difficulty in precisely ascertain- 2d, In what cases ing in what cases a party suspected may be apprehended before an arrest may be a bill is found against him. It having been enacted by Magna Charta, that no one should be taken or imprisoned but by the lawful judgment of his peers, or by the law of the land (ƒ); it was, for some time, insisted that no one could be deprived of his liberty for any offence, until after the finding of a bill against him by a grand jury, which afforded probable evidence that he was guilty (g). All the deviations from this rule have been considered as encroachments on the common law (h). An exception was very early allowed to prevail, when a thief was taken in the mainour, that is, apprehended with the stolen goods actually in his possession (i). And it is now fully established, that in every case of treason, felony, or actual breach of the peace, the party may be arrested on suspicion, before any indictment is preferred against him (k). And it should seem, that not only in these cases, but for every misdemeanor or offence indictable at the sessions, and which subjects the delinquent to corporal punish (a) 3 Burr. 1681. Hawk. b. 1. c. 1. 2 Leach, 954. 1102. Dalt. J. ch. 170. (6) 1 R. 2. c. 15. 50 Edw. 3. c. 5. Cro. Jac. 321. (c) Fortes. 359. (d) 4 Inst. 24, 25. 2 Wils. 159, 160. Dalt. J. ch. 170. (e) 11 Harg. St. Tr. 305. (f) 9 Hen. 3. c. 29. (g) 4 Inst. 176, 7, 8. Comb. (h) 1 Show. 54. Hawk. b. 2. (k) 2 Hale, 72.78.108. Comb. 18. [ 14 ] ment, though it does not amount to a breach of the peace, he may, on a regular warrant of a justice of the peace, be arrested in this stage of the proceedings, on the ground that the law impliedly affords power to issue a warrant, when it gives jurisdiction over the offence; and it has been considered, that perjury and libels (a), and nuisances, when persisted in (b), subject the offender to such criminal process. And there are some misdemeanors for which particular acts of parliament expressly authorize a justice of the peace to issue his warrant, as, for keeping a disorderly house (c), or obtaining money under false pretences (d). In modern practice, however, it is not usual for a justice out of sessions to issue a warrant 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 (e). This also they will always do on the commission of any misdemeanor 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. 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 (ƒ). 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 (g): and since the 39 Geo. S. 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 (a) 4 J. B. Moore, 195. 1 B. & Hawk. b. 2. c. 13. s. 11, and |