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. (22) 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 the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a qua non deliberentur sine speciali præcepto domini regis;"(23) and if the sheriff himself be resisted, he shall certify to the courts the names of the principal offenders, their aiders, consenters, commanders, and favorers, 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.(24)

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.(25) But in matters that arise at

(h) Gilb. Hist. C. P. ch. 3.

(i) Staund. P. C. 73, b.

in any manner, belongs exclusively, and without interfering, to each respective court.'' The right of punishing contempts by summary conviction is inherent in all courts of justice and legislative assemblies, and is essential for their protection and existence. It is a branch of our common law, adopted and sanctioned by our state constitution. The discretion involved in this power is in a great measure arbitrary and undefinable, and yet the experience of ages has demonstrated that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice. The known existence of such a power prevents in a thousand instances the necessity of exerting it, and its obvious liability to abuse is, perhaps, a strong reason why it is so seldom transcended. This power extends not only to acts which directly and openly insult or resist the powers of courts, or the persons of the judges, but to consequential, indirect, and constructive attempts, which obstruct the process, degrade the authority, or contaminate the purity of the courts. 4 Black. Com. 280. 2 Hawk. Pl. Cr. b. 2, C. 22. I Com. Dig. Attachment. This quotation is cited in In re Pierce, 44 Wis. 411, 447 (1878), and is taken from Watson v. Williams, 36 Miss. 331. See also Yates v. Lansing, 9 Johns. (N. Y.) 395, 416.

"The writ of attachment for contempts became a part of the law of England and was confirmed by magna charta." Ex parte Wright, 65 Ind. 504, 507 (1879). A writ of error does not operate to supersede or suspend a sentence for contempt. Tyler v. Hamersly, 44 Conn. 393, 412 (1877).

“The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in courts of chancery and other superior courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of magna charta and of the twelfth article of our Declaration of Rights." Cartwright's case, 114 Mass. 230, 238 (1873). In the above case it was held that a receiver of an insolvent corporation could be committed for contempt for appropriating funds of the corporation to his own use, without an order from the court; and for failing to restore the money upon order of the court, though he ruade affidavit that he was unable to make restitution and that he had no intention to do wrong in taking the money.

(22) A justice of the peace sitting in a court for the trial of small causes, engaged in the trial of a civil cause, has no power to commit to prison as a punishment for a contempt committed in open court. Rhinehart v. Lance et al., 43 N. J. L. 311, 314 (1881). (23) ["From which they may not be released without special command of the king."] (24) [The great charter.]

(25) State v. Copp, 15 N. H. 212. 8 Conn. 379. But in such case some record of the offence and of the arrest should immediately be made. If the contempt be committed elsewhere than in the presence of the court, the process for bringing the offender before them for punishment is called an attachment, which must be as ancient as the administration of the law. This process has no other object than to bring the offender into court."

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

Jackson v. Smith, 5 Johns. 117. Commonwealth v. Dandridge, 2 Virginia Cases, 408. 4 Black. Com. 286. Tenney's Case, 23 N. H. (3 Foster) 162. State v. Matthews, 37 N. H. 451, 4553 (1859). (This case contains a good review of the general subject of contempt.) The court can imprison a person until he obeys its lawful order, which it is in his power to perform; but it cannot, in making the order of commitment for enforcing its order, impose a fine or imprisonment as a punishment for the contempt of the offending party in disobeying the same, nor can it adjudge the payment and imprisonment till paid of costs and expenses incurred in the contempt proceeding, in favor of the adversary party, as this would be in violation of laws forbidding imprisonment for debt. Ex parte Crenshaw, 80 Mo. 447 (1883). Contempts committed in the "immediate view and presence' of the court are those only which are committed in the face of the court, i. e. within the range of vision of the justices. A direct contempt, committed in the immediate view and presence of the court, will be noticed by the court, and on its own motion, it will punish summarily in the mode pointed out by statute. But contempts not committed in the immediate view and presence of the court must be brought before the court, not on the court's own motion, but by affidavits of the persons who witnessed them, or have knowledge of them. An attorney who was summarily fined $25 for contempt committed in the face of the court, gave in payment of the fine a check on which was an indorsement containing words reflecting upon the character of the judge. Held that this latter contempt was not committed in the "immediate view and presence" of the court. In re Wood, 82 Mich. 75, 83 (1890). Attempting to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, and while he is near the court room, in the jury-room temporarily used as a witness-room, from testifying for the party in whose behalf he was summoned, and offering him, when in the hallway of the court, money not to testify against the defendant is misbehavior in the presence of the court. Savin, Petitioner, 131 U. S. 267, 277 (1888). In proceeding against a party for contempt, the court is not bound to require service of interrogatories upon the appellant to afford him an opportunity to purge himself of contempt in answering, but may, in its discretion, adopt such mode of determining the question as it deems proper, having due regard to the essential rules that prevail in the trial of matters of contempt. Savin, Petitioner, 131 U. S. 267, 279 (1888). "In all cases of proceedings for alleged constructive contempts, except, perhaps when they are to enforce a civil remedy, if the party charged fully answers all the charges against him, he shall be discharged, as to the attachment, and the court cannot, after that, hear evidence to impeach or contradict him." State v. Earl, 41 Ind. 464, 465 (1872). A person cannot be said to be in contempt of court till the interrogatories have been filed and he has been reported to be in contempt. Case of J. V. N. Yates, 4 Johnson (N. Y.) 317, 328 (1809). Jurisdiction of the person once acquired, by arrest under an attachment for contempt, continues while the case is under examination, whether the defendant remain in actual custody or not. People v. Nevins, 1 Hill (N. Y.) 154, 160 (1841). In Cheadle v. The State, I10 Ind. 301, 309, at p. 313, "In a case like this, a motion to discharge the rule to show cause, entered in the first instance, tests "Where a party the sufficiency of the information upon which the rule was based.” is charged with malpractice without the presence of the court, the correct mode of proceeding against him is by complaint or information made on the oath of some individual." This supersedes the old method by interrogatories. "In a summary proceeding for malpractice the fact must be known to the court by having occurred in its presence." To proceed against an attorney in summary proceedings for disbarment when the malpractice did not occur in the presence of the court is irregular. Walker v. Commonwealth, 8 Bush (Ky.) 86, 96 (1871). "When the contempt is of such a nature, that when the fact is once acknowledged, the court cannot receive any further information by interrogatories than it is already possessed of, defendant may be admitted to make such simple acknowledgment without answering interrogatories.' Territory v. Thierry, I Condensed La. Rep. (Martin) II (1810). By the provisions of the statute I Rev. Code, ch. 76, 6, a court cannot, for malpractice of an attorney or counsellor, committed in its presence, suspend the license of the party offending, in a summary way, but must direct an information to be filed against him, and inflict the punishment on the verdict of guilty found on such information. Ex parte Fisher, 6 Leigh (Va.) 619, 625 (1835). When the answer to a rule to show cause why one should not be attached for contempt denies under oath any intentional disrespect to the court or purpose to obstruct its process, the rule should be discharged. In re Walker, 82 N. C. 95, 97 (1880). "Statutes authorizing punishments for contempt, being against liberty and common right, must be construed strictly." Ex parte Wright, 65 Ind. 504, 508 (1879). "If an attorney have collected money for his client, it is prima facie his duty, after deducting his own costs and disburse

*287] upon affidavit see sufficient ground to suspect that *a contempt has been committed, 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

(j) Styl. 277.

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

(2) 6 Mod. 73.

(m) Stra. 444.

(n) 6 Mod. 73.

(0) Cro. Car. 146.

(p) The King v. Elkins, M. 8 Geo. III. B. R.

ments, to pay it over to such client, and his refusal to do this, without some good excuse, is gross misconduct and dishonesty on his part, calculated to bring discredit on the court and on the administration of justice. It is this misconduct on which the court seizes as a ground of jurisdiction to compel him to pay the money, in conformity with his professional duty. The application against him in such cases is not equivalent to an action of debt or assumpsit, but is a quasi criminal proceeding, in which the question is not merely whether the attorney has received the money, but whether he has acted improperly and dishonestly in not paying it over. If no dishonesty appears, the party will be left to his action. The attorney may have cross demands against his client, or there may be disputes between them on the subject proper for a jury or a court of law or equity to settle. If such appear to be the case, and no professional misconduct be shown to exist, the court will not exercise its summary jurisdiction. And as the proceeding is in the nature of an attachment for a contempt, the respondent ought to be permitted to purge himself by oath." In re Paschal, 10 Wall. (U. S.) 483, 491, 492 (1870). “As regards the question whether a contempt has or has not been committed, it does not depend upon the intention of the party, but upon the act he has done.' In a court of chancery, at least his oath is not conclusive in his favor, but may be contradicted by other evidence." Cartwright's Case, 114 Mass. 230, 239 (1873). A contempt proceeding is criminal or quasi criminal. In re Buckley, 69 Cal. 1, 3 (1886). It is a contempt of court to interrupt and violently break up the examination of a witness before an examiner. It is also a contempt to insult the examiner by the use of violent and abusive language to him after he has left the office and is upon the street. Technically, the practice of a federal court of equity in matters of extraordinary contempts is to proceed on motion and proof, by ordering that the offender stand committed, or be fined, unless he shall, on a day assigned, show cause to the contrary. But this practice has been superseded by converting a preliminary rule to show cause why an attachment should not issue into a procedure for trying the whole matter on its merits. But, under neither practice is the answer of respondent to this rule or to interrogatories conclusive, as at law, in his behalf; but, on the contrary, the court will for itself or by reference to a master, ascertain the facts by proof, taken in any way to suit the convenience of the court. U. S. v. Anonymous, 21 Fed. Rep. 761, 767, et seq. (1884). "In cases at common law, the defendant will be discharged, if by his answer to interrogatories filed, he make such a statement as will free him from the imputed contempt, and that opposing testimony will not be heard." and "in cases in chancery, the truth of the defendant's statement in reply to interrogatories fiied, may be controverted on the other side, and the whole matter be inquired into and ascertained by the court." Underwood's Case, 2 Humph. R. 48. Cook v. The People, 66 Ill. 534, 537 (1855). [Rescousrescue.]

judgment without answering to any interrogatories (26) 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 [*288 bench and common 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, (27) and not in rem. (28) 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 favorable 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 one particular instance, I shall only for the present observe that, as the process by attachment in general appears to be extremely ancient, (r) and has in more modern times been recognized, 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.

*WE are now to consider the regular and ordinary method of pro- [*289 ceeding 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;(1) 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

(q) See book iii. pp. 100, 101.

(r) Year-book, 20 Hen. VI. c. 37. 22 Edw. IV. c. 29. (s) Stat. 43 Eliz. c. 6, 23. 13 Car. II. st. 2, c. 2, 4.

9 & 10 W. III. c. 15. 12 Anne, st. 2, c. 15, 5.
(t) M. 5 Edw. IV. rot. 75, cited in Rast. Ent. 268,
pl. 5.

(26) 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.

(27) [Against the person.]

(28) [Against the matter or thing.]

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

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.

*290]

peace.

*1. A warrant may be granted in extraordinary cases by the privy council, or secretaries of state; (a)(2) but ordinarily by justices of the 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; (3) and also to all such offences as they have power to punish by statute. (4) 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

(a) 1 Lord Raym. 65 (b) 2 Hawk. P. C. 84.

(c) 4 Inst. 176.
(d) 2 Hawk. P. C. 84.

(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. I 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, (see ante [Before], I book, 355, n. 65;) 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. See 11 & 12 Vict. c. 44, 9.

(3) Perjury and libels, (4 J. B. Moore, 195. I B. & B. 548. Gow. 84. Fortesc. 37, 358, 140. II St. Tr. 305, 316. 2 Wils. 159, 160,) and nuisances, when persisted in, (Ventr. 169. I Mod. 76. 5 Mod. 80, 142. 6 Mod. 180,) 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, (25 Geo. II. c. 36, s. 6,) or obtaining money under false pretences. 30 Geo. II. c. 24. (See II & 12 Vict. c. 42.) 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. 4 J. B. Moore, 195. 1 B. & B. 548. Gow. 84. 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.-CHITTY. See 11 & 12 Vict. c. 42.

ΙΟ

(4) 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. Mod. 248.-CHITTY. The warrant of a commissioner of the United States is not void for lack of a seal. Starr v. U. S., 153 U. S. 614, 619 (1893). Where an officer under a warrant from the county court commanding him to arrest the respondent and have him before that court forthwith, arrests the respondent, brings him to the place of holding such court but finds the court not in session, he may detain the respondent a reasonable time until he can ascertain whether it is possible to deliver him into court, and may lodge him in jail meantime for safe keeping. Kent v. Miles, 65 Vt. 582, 589 (1893). In any proceeding of a criminal nature, and brought in the name of the commonwealth, a justice has authority to proceed by a warrant of arrest or a summons at his discretion. The power to arrest is laid down to attend all offences which justices of the peace have authority to punish by statute. It is necessary to prevent the escape of transient and irresponsible persons, and yet should be exercised with caution and moderation. Commonwealth v. Borden, 61 Pa. 272, 276 (1869).