Page images

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 shew cause why an attachment should not issue against him (1); or, in very flagrant instances of

contempt, the attachment issues in the first instance (k); as [*287] it also *does, if no sufficient cause be shewn to discharge,

and thereupon the court confirms and makes absolute the original rule (18). 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 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 judgment, without answering to any interrogatories: but if he wilfully and obstinately refuses to answer, or answers in (j) Styl. 277.

(n) 6 Mod. 73. (k) Salk. 84; Stra. 185, 564.

(0) Cro. Car. 146. (1) 6 Mod. 73.

(p) The King v. Elkins, M. 8 Geo. (m) Stra. 414.

III, B. R.

(18) Where contemptuous words are sworn to by one person only, the rule spoken of the court, the attachment should be absolute, or only to shew issues in the first instance; 6 Mod. 43; cause; 2 Stra: 1068. The rule in i Salk. 84; 1 Stra. 185; Say, R. 47, chancery requiring two affidavits, to R. T. 17 Geo. III. K. B. For it deprive the party of the benefit of would be to no purpose to grant a rule shewing cause ; and in the King's to shew cause, which would probably Bench the rule is only to shew cause, expose the court to further insult; 1 where the words are spoken of its Salk. 84. It has been doubted, how. process. Say, R. 114; Tidd, 171, ever, whether when such words are where see further on this subject.


an evasive manner, he is then clearly guilty of a high and repeated contempt, to be punished at the discretion of the court (19).

It cannot have escaped the attention of the reader, that this the mole of exmethod, of making the defendant answer upon oath to a cri- contrary to the minal charge, is not agreeable to the genius of the common common law, law in any other instance (9); and seems indeed to have memoriah usage, been derived to the courts of King's Bench and Common of the land. 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 [*288] introduction of sequestrations, in the nature of a process of 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 recognised, 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 (1), and by long and immemorial usage is now become the law of the land.

(9) See vol. III. page 100, 101.

(r) Yearb. 20 Hen. VI. 37 ; 22 Edw. IV. c 29.

(s) Stat. 43 Eliz. c. 6, § 3; 13

Car. II. st. 2, § 4; 9 & 10 W. III.
c. 15; 12 Ann. st. 2, c. 15, § 5.

(1) M. 5 Edw. IV. rot. 75, cited in
Rast. Ent. 268, pl. 5.

(19) In general, a defendant under v. Horsley, 5 T. R. 362. A defendant attachment must answer interrogato- may be admitted to bail, and sworn to ries; he cannot come in and confess answer interrogatories upon an attach. the contempt before he does so; Rer ment for contempt, although a defecv. Edwards, 4 Burr. 2105; 1 W. Bla. tive notice of bail have been served on 637. Where a defendant is brought the prosecutor. In re

- 4 D. & up on attachment, it is the practice of R. 393. The keeper of a gaol has the court to put interrogatories to him, been sworn to answer interrogatories, although he do not deny the charge touching a contempt committed for in the affidavits, unless the prosecutor default of bail; Anon. Lofft, 300. waives his right of putting them; Rer





Regular pro. We are now to consider the regular and ordinary method of
ceedings in
courts of crimi. proceeding in the courts of criminal jurisdiction; which
nal jurisdiction

may be distributed under twelve general heads, following
each other in a progressive order : viz. 1. Arrest; 2. Com-
mitment and bail ; 3. Prosecution ; 4. Process; 5. Arraign-
ment, 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 which will be discussed in the subse-

quent part of this book.
1. Arrest; to First, then, of an arrest : which is the apprehending or
which all per-
sons are liable, restraining of one's person, in order to be forthcoming to
be made,

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 hin
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. [*290]

1. A warrant may be granted in extraordinary cases by the 1. By a warrant, privy council, or secretaries of state (a); 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 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 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

(a) i Lord Raym. 65.

(1) 2 Ilawk. P. C. 84.

(c) 4 Inst. 176.

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 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 (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)(1). 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 pri- [*291] vate person by name) (9), 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 (2); 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 (i); 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

.(d) 2 Hawk. P. C. 84.
(e) 2 Hal. P. C. 108.
(f) Ibid. 110.
(g) Salk. 176.

(h) 2 Hawk. P. C. 85.

(i) 1 Hal. P. C. 580; 2 Hawk. P. C. 82; I W. Bl. 555.

(1) A positive oath that a felony is 97. And see the cascs upon this subactually committed is not necessary to

ject there cited. justify a magistrate in granting his war- (2) See the observations made upon rant to search the premises and appre- this subject, ante, 283, notes (2), (3), hend the person of a party suspected of and (4), which seem equally applicable a felony: Elsee v, Smith, I D. & R. here.

legal warrant: for the point upon which its authority rests, is a fact to be decided on a subsequent trial; namely, whe ther the person apprehended thereupon be really guilty or not. 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. 14, at all events indemnify the officer, who executes the same ministerially (3). 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 the warrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, signed by the justice of the *peace in another, as Middlesex, before it can be executed there. Formerly, regularly speaking, there ought to have been a fresh warrant in every fresh county; but the practice of backing warrants had long prevailed without law, and was at last authorized by statutes 23 Geo. II. c. 26, and


(k) A practice had obtained in the years of Queen Anne, down to the year secretaries' office ever since the restora- 1763; when such a warrant being istion, grounded on some clauses in the sued to apprehend the authors, printers, Acts for regulating the press, of is- and publishers, of a certain seditious suing general warrants to take up (with- libel, its validity was disputed ; and the out naming any person in particular) warrant was adjudged by the whole the authors, printers, and publishers, of court of King's Bench to be void, in such obscene or seditious libels, as were the case of Money v. Leuch ; Trin. particularly specified in the warrant. 5 Geo. III. B. R.* After which, the When those Acts expired in 1694, the issuing of such general warrants was same practice was inadvertently conti- declared illegal by a vote of the House nued, in every reign, and under every of Commons, (Com. Journ. 22 Apr. administration, except the four last 1766.)

(3) But the officer will not in ge- 1 B. & C. 13; Crozier v. Cundy, 9 D. neral be protected where he acts with- & R. 224; 6 B. & C. 232; Bell v. out a warrant ; Postlethwaite v. Gibson, Oakley, 2 M. & S. 259; Milton v. 3 Esp. 226. Nor, unless he acts Green, 5 East, 233; 1 Smith, 402; strictly in obedience to the warrant ; Cook v. Leonard, 6 B. & C. 351; 9 D. Money v. Leach, 3 Burr. 1768; Pres. & R. 339. tridge v. Woodman, 2 D. & R. 43;

• 1 W. Bla, 555, 563; 3 Burr, 1742.

« EelmineJätka »