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 misbehaviours or irregularities of a similar kind: but not in the 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 the court: as by disobedience to any rule or order, made in the progress of a cause; by non[*285] payment of costs awarded by the court upon a motion; or, by nonobservance 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 a 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 disres pect 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 judi. (e) See book III, page 17. (f) Styl. 277. 2 Hawk. P. C. 152. Cro. Jac. 419. Salk, 586. (g) 1 Burr. 632. Lord's Jour. 7 Feb. 8 June 1757. man v. Austin, 34 Tex., 668; Ex parte Renshaw, 6 Mo. App., 474. See Maxwell v. Rives 11 Nev., 213; or for remaining in the court-room after being excluded by order of the court. People v. Boscovitch, 20 Cal., 436. Also against jurymen for separating from their fellows and mingling with the community at large, or holding communications with others than their fellows or the officer in charge. R. M. Charl., 48. Parties may be punished as for contempt for violating an injunction; Doubleday v. Sherman, 8 Blatch., 45; Ex parte Hamilton, 51 Ala., 66; Baker v. Cordon, 86 N. C., 116; S. C., 41 Am. Rep., 448; Winslow v. Nayson, 113 Mass., 411; for refusing to pay alimony in a divorce suit: Petrie v. People, 40 Ill., 334; O'Callaghan v. O'Callaghan, 69 Ill., 552; or to obey any proper order of the court: Blair v. Nelson, 8 Bax., 1; McClure v. Gulick, 17 N. J., 340; Baker v. Baker, 23 Hun, 356; for preventing by open force the service of process upon themselves: Conover v. Wood, 5 Abb. Pr., 84; for keeping a witness who has been duly summoned from attending court: Commonwealth v. Feely, 2 Va. Cas., 1; for addressing an insulting letter to the judge in regard to his judicial conduct: In re Pryor, 18 Kan., 72; S. C., 26 Am. Rep., 747, and note; for bringing a fictitious case in order to get the opinion of the court on matters presented by it. Smith v. Brown, 3 Tex., 360. And in the case of an administrator, for failing to obey an order of distribution. Haines v. People. 97 Ill., 161. The foregoing are only illustrative cases. Where the contempt consists in the failure of any officer or party to comply with an order of the court, the guilty party may be imprisoned until he complies or gives satisfactory excuse for failure to do so. But when imprisonment is inflicted as a punishment, the order therefor must fix a limit or it is void. People v. Pirfenbrink, 96 Ill., 68. The case ought to be plain before any court should assume to punish a contempt of its authority. Batchelder v. Moore, 42 Cal., 412. Court commissioners have no such power. Haight v. Lucia, 36 Wis., 355. And municipal bodies neither have it, nor can it be conferred upon them. Whitcomb's Case, 120 Mass., 118. cal capacity; by printing false accounts (or 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 ancient as the laws themselves. For laws without a [*286] 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 this process from the statute of Westm. 2, 13 Edw. I, c. 39 (which ordains, that in case the process of the king's court be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a qua non deliberenter 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, consentors, 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 part of the law of the land, and, as such, is confirmed by the statute of magna carta. 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 farther 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, 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 [*287] 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: (1) and, if any of the interrogatories is 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 a 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), (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 mak(j) Styl. 277. (k) Salk. 84. Stra. 185, 564. (0) Cro. Car. 146. (h) Gilb. Hist. C. P. ch. 3. (i) Staund. P. C. 73, b. ing the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance; (9) and seems indeed to have been derived to the courts of king's 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 [*288] 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 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, (i) 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 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 issues; 7. Trial, and conviction; 8. Clergy; 9. Judg ment, 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 warrant; 4. By an hue and cry. *1. A warrant may be granted in extraordinary cases by the privy [*290] council, or secretaries of state: (a) (1) 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 (9) See book III, pp. 100, 101. (r) Yearb. 20 Hen. VI, c. 37. 22 Edw. IV, c. 29. (8) Stat. 43 Eliz. c. 6, § 3. 13 Car. II, st. 2, c. 2, § 4. 9 and 10 Wm. III, c. 15. 12 Ann. st. 2, c. 14, § 5. (t) M. 5 Edw. IV, rot. 75, cited in Rast. Ent. 268, pl. 5. (1) Power is now, by several recent statutes, expressly conferred upon private individuals to make arrest of persons found committing offenses. The caution to abstain from so doing where no apparent necessity exists is nevertheless worthy of being observed. To ascertain what officers may issue warrants in the American states, the statutes of the several states must be consulted. 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 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 combatted 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 person by name), (g) requir[*291] ing 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; (2) for it is the duty of the magistrate, and ought not to be left to the 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. (2) It is therefore in fact no warrant at all; for it will not justify the officer who acts under it: (k) whereas, a warrant properly penned (even though the magistrate who issues it should exceed his jurisdiction); will, by statute 24 Geo. II, c. 44, at all events indemnify the officer who executes 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. A warrant from the chief or other justice of the court of king's bench extends all over the kingdom: and is teste'd, or dated, England; not Oxfordshire, Berks, or other particular county. But a warrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, signed by a justice of the *peace in another, as Middlesex, before it [*292] can be executed there. Formerly, regularly speaking, there ought to have been a fresh warrant in every fresh county: but the practice of backing (c) 4 Inst. 176. (d) 2 Hawk. P. C. 84. (h) 2 Hawk. P. C. 85. (i) 1 Hal. P. C. 580. 2 Hawk. P. C. 82. (k) A practice had obtained in the secretaries' office ever since the restoration, grounded on some clauses in the acts for regulating the press, of issuing general warrants to take up (without naming any person in particular) the authors, printers, or publishers of such obscene or seditious libels as were par ticularly specified in the warrant. When those acts expired in 1694, the same practice was inadvertently continued in every reign, and under every administration, except the four last years of Queen Anne, down to the year 1763; when such a warrant being issued to apprehend the authors, printers, and publishers, of a certain seditious libel, its validity was disputed; and the warrant was adjudged by the whole court of king's bench to be void, in the case of Money v. Leach. Trin. 5 Geo. III, B. R. After which the issuing of such general warrants was declared illegal by a vote of the House of Commons. (Com. Journ. 22 Apr. 1766.) (e) 2 Hal. P. C. 108. (ƒ) Ibid. 110. (9) Salk, 176. (2) Warrants to arrest idle, loose, or disorderly persons are an exception to this rule, and by several statutes, peace officers are expressly authorized to apprehend them without any warrant at all. warrants had long prevailed without law, and was at last authorized by statutes 23 Geo. II, c. 26, and 24 Geo. II, c. 55. And now, by statute 13 Geo. III, c. 31, any warrant for apprehending an English offender, who may have escaped into Scotland, and vice versa, may be indorsed and executed, by the local magistrates, and the offender conveyed back to that part of the united kingdom, in which such offence was committed. (3) 2. Arrests by officers without warrant may be executed, 1. By a justice of the peace; who may himself apprehend or cause to be apprehended, by word only, any person committing a felony or breach of the peace in his presence. (1) 2. The sheriff; and 3. The coroner, may apprehend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke, (m) hath great original and inherent authority with regard to arrests. may, without warrant, arrest any one for a breach of the peace, committed in his view, and carry him before a justice of the peace. And in case of felony actually committed, or a dangerous wounding, whereby felony is like to ensue, he may upon probable suspicion arrest the felon; (4) and for that purpose is (3) Statute 29 Car. 2, c. 7, § 6, provides that no person upon the Lord's day shall serve any writ, process or warrant, except in cases of treason, felony or breach of the peace. Under this, an arrest may be made on Sunday for an indictable offense. It is not necessary for the officer to inquire whether the breach of the peace is actual or constructive. Rawlins v. Ellis, 16 M. & W., 172. So, for violating a city ordinance against keeping open a drinking shop on Sunday. Main v. McCarty, 15 Ill., 441. The arrest may be made by night as well as by day. 1 East P. C., ch. 5, § 88; State v. Smith, 1 N. H., 346. By statute, provision is made for arresting and sending back for trial supposed offenders who may have fled to the United Kingdom from any of the British colonies, and also for the extradition of supposed offenders who may be demanded by foreign governments under extradition treaties. In the United States the power to extradite fugitives from the justice of foreign countries is one belonging to the national government, and is exercised under treaties made for the purpose. Holmes v. Jennison, 14 Pet., 540; Ex parte Holmes, 12 Vt., 631; People v. Curtis, 50 N. Y., 321. The constitution of the United States provides that, "A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." Art. 4, § 2. Under this provision, the offense must actually have been committed within the state making the demand, and the accused must have fled therefrom. Ex parte Smith, 3 McLean, 121; Hartman v. Aveture, 63 Ind., 344; Wilcox v. Nolze, 34 Ohio St., 520; Jones v. Leonard, 50 Iowa, 106; S. C., 32 Am. Rep., 116. The accused may be arrested to await the demand, and the states provide by law for such arrest. The demand is made on a prima facie showing of guilt, which is either by the indictment of the supposed offender, or by affidavit of facts. State v. Swope, 72 Mo., 399; Ex parte Sheldon, 34 Ohio St., 319; Harn v. State, 4 Tex. Ap. R., 645. It is made on the governor of the state to which the offender has fled, who will issue his warrant of extradition, if the cause shown is satisfactory. But he may revoke this at any time before its execution, if he is satisfied it ought not to have been issued. Work v. Corrington, 34 Ohio St., 64; S. C., 32 Am. Rep., 345. The courts have no power to compel the governor to perform his duty in the extradition of offenders. Kentucky v. Dennison, 24 How., 66; Matter of Manchester, 5 Cal., 237. (4) As to arrests without process in general, see Ruloff v. People, 45 N. Y., 213: Reuck v. McGregor, 32 N. J., 70; State v. Holmes, 48 N. H., 377; Somerville v. Richards, 37 Mich., 299; Newton v. Locklin, 77 Ill., 103; Corbett v. Sullivan, 54 Vt., 619; State v. Freeman, 86 N. C., 683. The general rule is that a peace officer who has reasonable ground to suspect that a felony has been committed, may at the common law detain the suspected party until inquiry can be made. Beckwith v. Philby, 6 B. & C., 635; Davis v. Russell, 5 Bing., 354; Rohan v. Sawin, 5 Cush., 281. And even though no felony proves to have been committed, the officer will be justified in making an arrest upon suspicion, if he acts in good faith upon apparently reliable information. Burnes v. Erben, 40 N. Y., 463. So, an officer may arrest without warrant for a breach of peace committed in his presence. 2 Hawk. P. C., ch. 13, § 8. And perhaps for some high misdemeanors. Smith v. Donelly, 66 Ill., 464. But not for misdemeanors in general. Com. v. Carey, 12 Cush., 246; Quinn v. Heisel, 40 Mich., 576: Way's Case, 41 Mich., 299. Any private party present at the commission of a felony may arrest the felon without warrant. Keenan v. State, 8 Wis., 132. And a private party may lawfully recapture a prisoner who has broken jail, though the breaking was only a misdemeanor. State v. Holmes, 48 N. H., 377. And may stop a breach of the peace, though he cannot arrest for it. Phillips v. Trull, 11 Johns., 486. A |