peers themselves, when enormous and accompanied with violence, such as forcible rescous and the like; or when they import a disobedience to the queen's great prerogative writs of prohibition, habeas corpus,' 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 disrespect the queen'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 of judges, acting in their judicial capacity; by printing false accounts (or even true ones), 'in defiance of the prohibition of the court,' of causes then depending in judgment; and by anything, 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 con- [286] tempts, must necessarily be as ancient as the laws themselves. For laws, without a 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 m seems inclined 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 courts be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a quâ non deliberentur 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, consenters, 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 a part of the law of the land, and, as such, is confirmed by the statute of Magna Charta.

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," without any further 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 [287] 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; or, in very flagrant instances of contempt, the attachment issues in the first instance; 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 is improper, the defendant may refuse to answer it, and move the court to have it struck out. If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury. If he confesses the contempt, the court will proceed to correct him by fine, or imprisonment, or both. 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 is

g

already possessed of (as in the case of a rescous),* 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 making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance; 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 [ 288 ] 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," and has in more modern times been recognized, approved, and confirmed by several express Acts of Parliament, so the method of examining the delinquent himself upon oath with regard to the contempt alleged is at least of as high antiquity," and by long and immemorial usage is now become the law of the land.

V

CHAPTER XXI.

OF ARRESTS.

[289] 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 issue; 7. Trial, and conviction; 8. Judgment, and its consequences; 9. Reversal of judgment; 10. Reprieve, or pardon; 11. Execution;-all which will be discussed in the subsequent part of this book.

1. By warrant.

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 a hue and cry.

b

1. A warrant may be granted in extraordinary cases by the privy council, or secretaries of state; but ordinarily by [290] 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; 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

C

Edward Coke, indeed, has 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 has been by others 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 has combated it with invincible authority and strength of reason; maintaining, 1. That a justice of peace has power to issue a warrant to apprehend a person accused of felony, though not yet indicted; 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 pray his warrant; because he is a competent judge of the probability offered to him of such suspicion.

е

'Whether these powers were originally usurped, as represented by Sir Edward Coke, or an authority necessarily pertaining to the office and duty of the justices of the peace, as contended for by Sir Matthew Hale, has long been a question of no practical importance, various Acts of Parliament having expressly conferred such powers on these magistrates. All previous enactments on this subject were, however, repealed and consolidated by the statute 11 & 12 Vict. c. 42, which is entitled "An Act to facilitate the performance of the duties of Justices of the Peace out of Sessions within England and Wales, with respect to persons charged with indictable Of fences;" and regulates most minutely the mode in which these duties are to be performed.'

'In all cases where an information or complaint in writing and upon oath is laid before any justice of the peace, that any person has committed, or is suspected to have committed, any treason, felony, or indictable misdemeanor, or other indictable offence whatsoever, within the limits of the jurisdiction of such justice, or that any person guilty, or suspected to be guilty, of having committed any such crime or offence elsewhere out of the jurisdiction of such justice is residing, or is suspected to reside or be within the same, such justice may issue his warrant to apprehend such person, and cause him to be brought

e 4 Inst. 176.

d 2 Hawk. P. C. 84.

e 2 Hal. P. C. 108.