[*287] 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 (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 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. (k) Salk. 84; Stra. 185, 564. (m) Stra. 444. (18) Where contemptuous words are spoken of the court, the attachment issues in the first instance; 6 Mod. 43; 1 Salk. 84; 1 Stra. 185; Say, R. 47, R. T. 17 Geo. III. K. B. For it would be to no purpose to grant a rule to shew cause, which would probably expose the court to further insult; 1 Salk. 84. It has been doubted, however, whether when such words are (n) 6 Mod. 73. (0) Cro. Car. 146. (p) The King v. Elkins, M. 8 Geo. III. B. R. sworn to by one person only, the rule should be absolute, or only to shew cause; 2 Stra. 1068. The rule in chancery requiring two affidavits, to deprive the party of the benefit of shewing cause; and in the King's Bench the rule is only to shew cause, where the words are spoken of its process. Say, R. 114; Tidd, 171, 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). And amination is genius of the common law, become the law It cannot have escaped the attention of the reader, that this the mode 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 cut has, by imlaw in any other instance (q); and seems indeed to have memorial 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. 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 (t), 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 (19) In general, a defendant under attachment must answer interrogatories; he cannot come in and confess the contempt before he does so; Rex v. Edwards, 4 Burr. 2105; 1 W. Bla. 637. Where a defendant is brought up on attachment, it is the practice of the court to put interrogatories to him, although he do not deny the charge in the affidavits, unless the prosecutor waives his right of putting them; Rer Car. II. st. 2, § 4; 9 & 10 W. III. (t) M. 5 Edw. IV. rot. 75, cited in v. Horsley, 5 T. R. 362. A defendant 289 CHAPTER XXI. OF ARRESTS. Regular pro. ceedings in nal jurisdiction are, WE are now to consider the regular and ordinary method of courts of crimi- 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 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 subsequent part of this book. 1. Arrest; to which all per and which may be made, First, then, of an arrest: which is the apprehending or sons are liable, 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. [*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 (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; 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) 1 Lord Raym. 65. (b) 2 Hawk. 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 (ƒ)(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) (g), 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. (g) Salk. 176. (1) A positive oath that a felony is actually committed is not necessary to justify a magistrate in granting his warrant to search the premises and apprehend the person of a party suspected of a felony Elsee v. Smith, 1 D. & R. (h) 2 Hawk. P. C. 85. (i) 1 Hal. P. C. 580; 2 Hawk. P. C. 82; 1 W. Bl. 555. 97. And see the cases upon this sub- (2) See the observations made upon [*292] 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. 44, 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 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, and publishers, of such obscene or seditious libels, as were particularly 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. Leuch; 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.) * (3) But the officer will not in general be protected where he acts without a warrant; Postlethwaite v. Gibson, 3 Esp. 226. Nor, unless he acts strictly in obedience to the warrant ; Money v. Leach, 3 Burr. 1768; Prestridge v. Woodman, 2 D. & R. 43; 1 B. & C. 13; Crozier v. Cundy, 9 D. & R. 224; 6 B. & C. 232; Bell v. Oakley, 2 M. & S. 259; Milton v. Green, 5 East, 233; 1 Smith, 402; Cook v. Leonard, 6 B. & C. 351; 9 D. & R. 339. * I W. Bla, 555, 563; 3 Burr, 1742, |