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CHAPTER II.

OF THE ARREST.

W HEN a party has determined to prosecute, the next con-
sideration is the mode in which he should proceed to bring the
supposed offender lo punishment.

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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 (6). To this arrest all persons are in generał
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.

etnptions 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 (6). So peers (c) and members of parliament have no exemplion 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). .

de.

There seems to be considerable difficulty in precisely ascertaine 2d, In what cases ing in what cases a party suspected may be apprehended before ma 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 (f); 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 [ 13 1 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 wbich subjects the delinquent to corporal puvish

(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 Hon. 3, c. 29. (9) 4 Ipst. 176, 7, 8. Comb.

(h) 1 Show. 54. Hawk. b. 2. c. 13. s. 11, 16, and 18, 3 Burr. 1755. Burn's Just. Warrant, III, Dick. Just. Peace, Justices of, 3,

(0) 1 Show. 24.

(k) 2 Hale, 72. 78. 108. Comb., 359. 3 Burr. 1755. Hawk. b. 2. c. 12, and c. 13. s. 11, and 18. 4 Bla. Com. 290. Burn's Just. Warrant, III.

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 bis warraut, 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.

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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 (f). 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. 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

(a) 4 J. B. Moore, 195. 1 B. &
B. 548. Gow, 84. Fortes. 37.
358. 140. 11 St. Tr. 305. 316.
2 Wils. 159. 160. 2 Salk. 698.
Comb. 358. 12 Co. 131, Dalt.
Just. c. 170. 34 Edw. 3. c. 1.
Hawk. b. 2. c. 13. s. 11, and
s. 15, 10. Dick. Sess. 88. Toone,
397. See form of a warrant for
a misdemeanor, Dalt. Just. ch.
174. Barl. Just. 41.

(6) Vevt. 169. 1 Mod. 76. 5 Mod. 80. 142. 6 Mod. 180.

(c) 25 Geo. 2. c. 36. s. 6.
(d) 30 Geo. 2. c. 24.

(e) 4 J. B. Moore, 195. IB.& B. 548. Gow, 84.

(f) 4 Inst. 177.

(9) 2 Hale, 107 to 111, 1 Hale, 580. 1 Show, 54, n. c. Hawk. b. 2. c. 13. s. 15. 18. 4 Bla. Con. 290. Burn, J. Warrant, I. III. and Sessions.

m offender against the Irish law, or accused of having perpetrated a crime in a foreign country (a). 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.

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These observations apply, however, in their full extent, only 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 misdemeanor, unattended with violence, as perjury or libel (6). And it has even been holden, ibat a watchman cannot, of his own authority, justify the arrest of a man talking loudly in the street, though it may be disorderly, neither bas the constable any power to commit him to prison (c). But in every case of treason, felony, and actual breach of the peace, the supposed offender may be apprehended without warrant, if such a crime has been actually committed, and there is reasonable ground to suspect him to be guilty (d). In this case, the party making the arrest will not be liable to any action, though it should ultimately appear that he was mistaken, and that the person suspected was innocent (e). But if no such crime was committed by any one, an arrest without warrant by a private individual, would be illegal; though a peace officer would be justified, if he acted on the information of another (f). If, on the other hand, a warrant had previously been obtained,

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the party taken under it could sustain no action, without proving that the imprisonment was dictated by malice, and that there was no probable ground for the proceeding. And if the magistrate mistake the law and extent of his jurisdiction, the party applying to him is not liable unless he acted maliciously (a). Whenever, therefore, there is any reason to doubt whether a felony has actually been committed, it is the safer course for a private person to obtain the warrant of a justice: watchmen and constables, however, may, in the night-time, of their own accord, arrest persons who they may reasonably suspect of having stolen goods about them, and will be indemuified though it should ultimately prove that no theft was actually committed (b)And any person may, without warrant, apprehend and carry before a magistrate, a party about to expose an infant, and leave it to perish (c), or playing with false dice, or otherwise committing an indictable fraud affecting the public (d). And the 5 Geo. 4. c. 83, and other acts, contains regulations for arresting, imprisoning, and punishing idle and disorderly persons, and rogues and vagabonds; but as the object of this Treatise is only to treat of indictable offences, and the proceedings respecting them, the regulations of these acts will not be further noticed.

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3d, At what time. A person may be apprehended in the night as well as the

day (e), and though the statute 29 Car. 2. c. 7. s. 6, prohibits arrests on Sundays, it excepts the cases of treasons, felonies, and breaches of the peace: in these cases, therefore, an arrest may be made on that day (F).

4th, In wliat places.

Since the privileges of sanctuary and abjuration were aboJished (g), no place affords protection to offenders against the criminal law. And we have seen that even the clergy may, on a criminal charge, be arrested whilst in their churches (h), though it is illegal to arrest them in any civil case, whilst in the church to perform divine service, or going to or returning from the same on

(a) 3 Esp. Rep. 166. 1 Stark.
*67. 1 D. & R. 97.

(6) 3 Taunt. 14. 32 Geo. 3.
c. 53. s. 17. 51 Geo. 3. c. 119.
s. 18. & 24.
-(C) 1 Leon. 327. Com. Dig.
Pleader, 3 M, 22.

(d) Sir W. Jones, 249. Com. Dig. Pleader, 3 M. 22.

e) 9 Co. 66.

f) Cald. 291. 293, 1T. R. 265. Willes, 459.

(9) 21 Jac. 1. c. 28.
(h) Ante, 12. Cro. Jac. 321.

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