A rule to which all municipal laws that are founded on the principles of justice have strictly conformed: the Roman law requiring a citation at the least; and our common law never suffering any fact (either civil or criminal) to be tried till it has previously compelled an appearance by the party concerned. After this summons the magistrate, in summary proceedings, may go on to examine one or more witnesses, as the statute may require, upon oath; and then make

upon affidavits of the fact. Rex vs. Harwood, 2 Stra. 1088. 3 Burr. 1716, 1768. Rex vs Constable, 7 D. & R. 663. 3 M. C. 488. As this is a privilege of common right which requires no special provision to entitle the defendant to the advantage of it, so it cannot be taken away by any custom. Rex vs. Cambridge, (University,) 8 Mod. 163. Upon a sufficient information properly laid, the magistrates are bound to issue a summons and proceed to a hearing, and if they refuse to do so will be compelled by mandamus. Rex vs. Benn, 6 T. R. 195. The summons should be directed to the party against whom the charge is laid, and should in general be signed by the justice himself by whom it is issued. Rex vs. Steventon, 2 East, 365. Where a particular form of notice is prescribed by the act, that must be strictly pursued. Rex vs. Croke, Cowp. 30. The intention of the summons being to afford the person accused the means of making his defence, it should contain the substance of the charge and fix a day and place for his appearance, allowing a sufficient time for the attendance of himself and his witnesses. Rex vs. Johnson, 1 Stra. 260. A summons to appear immediately upon the receipt thereof has been thought insufficient in one case. 2 Burr. 681. In another, an objection made to the summons that it was to appear on the same day was only removed by the fact of the defendant having actually appeared, and so waived any irregularity in the notice. Rex vs. Johnson, 1 Stra. 261. It is equally necessary that it should be to appear at a place certain: otherwise the party commits no default by not appearing; and the magistrate cannot proceed in the defendant's absence upon a summons defective in these particulars without making himself liable to an information. Rex vs. Simpson, 1 Stra. 46. It has been made a question whether the service of the summons must be personal. It seems in general necessary that it should be so, unless where personal service is expressly dispensed with by statute. Parker, C. J., was of that opinion. 10 Mod. 345. And the provisions specially introduced into many acts of parliament to make a service at the dwellinghouse sufficient, seem to justify the inference that the law in other cases is understood to require a service upon the person. Where personal service is not necessary, leaving a copy at the house is sufficient, (Rex vs. Chandler, 14 East, 268;) and the delivery may be to a person on the premises apparently residing there as a servant. Id. ibid. These rules apply, however, only to those cases where the defendant does not in fact appear; for if he actually appears and pleads, there is no longer any question upon the sufficiency or regularity of the summons. 1 Stra. 261. Paley on Convictions, 2d ed. by Dowling, 21, 23. -CHITTY.

The magistrate has in general no authority to compel the attendance of witnesses for the purpose of a summary trial, unless where it is specially given by act of parliament This in many cases has been done; and in sundry acts the provision is accompanied with a penalty on refusal to attend for the purpose of being examined. It seems agreed that the examination of witnesses must be upon oath, and that no legal conviction can be founded upon any testimony not so taken. There is a difference in the manner in which the acts are worded in regard to the mode of examination to be pursued; for while some acts expressly mention the testimony of witnesses on oath, others in general terms authorize the magistrate to hear and determine, or to convict or give judgment on the examination of witnesses without noticing the oath. But such general expressions seem in legal construction necessarily to refer to the only kind of testimony known to the law, namely, that upon oath. "For," says Dalton, "in all cases wheresoever any man is authorized to examine witnesses, such examination shall be taken and construed to be as the law will, i.e. upon oath." Dalt. c. 6, s. 6; and see id. c. 115, c. 164; Plowd. 12, a.; Lamb, 517; ex parte Aldridge, 4 D. & R. 83; 2 M. C. 120; Rex vs. Glossopp, 4 B. & A. 616; Paley, 33, 34. Although no mode of examination be pointed out by the statutes giving jurisdiction over the offence, yet, as justice requires that the accused should be confronted with the witnesses against him and have an opportunity of cross-examination, it is required by Law, in the summary mode of trial now under consideration, that the evidence and depositions should be taken in the presence of the defendant where he appears. For though the legislature, by a summary mode of inquiry, intended to substitute a more expeditious process for the common-law method of trial, it could not design to dispense with the rules of justice as far as they are compatible with the method adopted. Indeed, it may be useful upon this occasion to notice the general maxim which has been laid down as a guide to the conduct of magistrates in regulating all their summary proceedings, namely, that "acts of parliament, in what they are silent, are best expounded

his conviction of the offender in writing: upon which ae usually issues his warrant either to apprehend the offender, in case corporal punishment is to be inflicted on him; or else to levy the penalty incurred by distress and sale of his goods. This is in general the method of summary proceedings before a justice or justices of the peace; but for particulars we must have recourse to the several statutes which create the offence or inflict the punishment; and which usually chalk out the method by which offenders are to be convicted. Otherwise they fall of course under the general rule, and can only be convicted by indictment or information at the common law.

III. To this head of summary proceedings may also be properly referred the method, immemorially used by the superior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereon.

The contempts that are thus punished are either direct, which openly insult or resist the powers of the courts or the persons of the judges who preside there, or else are consequential, which (without such gross insolence or direct opposition) *plainly tend to create a universal disregard of their autaor- [*284 ity. The principal instances of either sort that have been usually (d) punishable by attachment are chiefly of the following kinds: 1. Those committed by inferior judges and magistrates by acting unjustly, oppressively, or irregularly in administering those portions of justice which are intrusted to their distribution, or by disobeying the king's writs issuing out of the superior courts by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, and the like; for, as the king's superior courts (and especially the courts of king's bench) have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, gaolers, and other officers of the court, by abusing the process of the law or deceiving the parties; by any acts of oppression, extortion, collusive behaviour, or culpable neglect of duty. 3. Those committed by attorneys and solicitors, who are also officers of the respective courts, by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice; for the malpractice of the

(d) 2 Hawk. P. C. 142, &c.

according to the use and reason of the common law." Rex vs. Simpson, 1 Stra. 45. Unless, therefore, the defendant forfeits this advantage by his wilful absence, he ought to be called upon to plead before any evidence is given. 1 T. R. 320. And the witnesses must be sworn and examined in his presence. Rex vs. Vipont, 2 Burr. 1163. Or, if the evidence has been taken down in his absence and is read over to him afterwards, the witness must at the same time, unless the defendant upon hearing the evidence should confess the fact, (Rex vs. Hall, 1 T. R. 320,) be resworn in his presence, and not merely called upon to assert the truth of his former testimony. Rex vs. Crowther, 1 T. R. 125. For the intent of the rule is that the witness should be subjected to the examination of the defendant upon his oath. 2 Burr. 1163; and see Rex vs. Kiddy, 4 D. & R. 734; 2 M. C. 364. This rule is confirmed rather than contradicted by those cases wherein convictions have been sustained without expressly alleging the evidence to have been taken in the presence of the defendant. Rex vs. Baker, 2 Stra. 1240. Rex vs. Aiken, 3 Burr. 1786. Rex vs. Kempson, Cowp. 241. For it will be found that in all those cases the judgment proceeded upon a presumption collected from the whole conviction that the defendant was in fact present and did hear the evidence given, which was always admitted to be necessary to the regularity of the magistrate's proceedings. Rex vs. Vipont, 2 Burr. 1163; and see Rex vs. Lovat, 7 T. R. 162; Rex vs. Thompson, 2 T. R. 18; Rex vs. Swallow, 3 T. R. 284; Paley, 39, 40.-CHITTY.

These acts have been consolidated, and the duties of justices clearly defined, by the statute 11 & 12 Vict. c. 43, which provides a procedure applicable to the great majority of cases in which a summary conviction or order may be made by justices of the peace out of sessions.-KERR.

It is not, however, usual for the court to interfere in a summary way against an attorney for a mere breach of promise where there is nothing criminal, (2 Wils. 371; and see 2 Moore, 665. 1 Bingh. 102, 105;) or on account of negligence or unskilfulness, (4 Burr. 2060. 2 Bla. Rep. 780. 1 Chitt. Rep. 661,) except it be very gross, (Say, 50, 169;) nor for the misconduct of an attorney independently of his profession Put see 4 B

officers reflects some dishonour on their employers, and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Those committed by jurymen in collateral matters 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 misbehaviour or irregularities of a similar kind; but not in 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 *285] of a cause, by non-payment of costs awarded by the court upon a motion, or by non-observance 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 the 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,(ƒ) or when they import a disobedience to the king's great prerogative writs of prohibition, habeas corpus, (g) and the rest. 10 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 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 judicial capacity; by printing false accounts (or *286] 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 antient 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(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

See book iii. page 17.

() Styl. 277. 2 Hawk. P. C. 152. Cro. Jac. 419. Salk. 586.

(#) 4 Burr. 632. Lords' Jour. Feb. 7, June 8, 1757. (4) Gilb. Hist. C. P. ch. 3.

A. 47. 5 B. & A. 898. 8 Chitt. Rep. 58. 1 Bingh. 91. 7 Moore, 424, 437. Tidd, 5th ed. 81.-CHITTY.

By the insolvent acts, persons committed to prison upon an attachment for nonpayment of money awarded to be paid upon a submission to an arbitration which has been made a rule of court, or upon an attachment for not paying costs, may have the benefit of that statute as insolvent debtors.-CHITTY.

10 But a peer cannot be attached for non-payment of money, pursuant to an order of nisi prius, which has been made a rule of court. 7 T. R. 171, 448.-CHITTY.

the power of any great man, the sheriff shall chastise the resisters by imprison ment, "a qua 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 specia! 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, (i) 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 the jures upon affidavit see sufficient ground to suspect that *a contempt has been committed, [*287 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 de fendant 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 naturo 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 acknowledg ment, 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, (q) *and seems, indeed, to have been derived to the courts of king's bench and com[*288 mon pleas through the medium of the courts of equity. For the whole pro. cess 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, 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 con science; for, if he clears himself by his answers, the complaint is totally dis missed. And, with regard to this singular mode of trial, thus admitted in thir

11 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.

one particular instance, I shall only for the present bserve that, as the process by attachment in general appears to be extremely antient, (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

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. 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; 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 a warrant; 4. By a hue and cry. *290] *1. A warrant may be granted in extraordinary cases by the 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

(*) Year-book, 20 Hen. VI. c. 37. 22 Edw. IV. c. 29.

() Stat. 43 Eliz. c. 6, 23. 13 Car. II. st. 2, c. 2, 2 . 9 & 10 W. III. c. 15. 12 Anne, st. 2, c. 15, 5.

M. 5 Edw. IV. rot. 75, cited in Rast. Ent. 268, pl. 5 (a) 1 Lord Raym. 65.

() 2 Hawk. P. C. 84.

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

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. 1 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, (24 Geo. II. c. 44. See ante, 1 book, 354, n. 37;) 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. ? Esp. R. 135.-CHITTY.

Perjury and libels, (4 J. B. Moore, 195. 1 B. & B. 548. Gow. 84. Fortesc. 37, 358, 140. 11 St. Tr. 305, 316. 2 Wils. 159, 160,) and nuisances, when persisted in, (Ventr. 169. 1 Mod. 76. 5 Mod. 80, 142. 6 Mod. 180,) subject the offender to such criminal process. And there are some misdemeanours 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. In modern practice, however, it is not usual for a justice out of sessions to issue a warrant