Chapter 35
CHAPTER XXI. CHAPTER XXI. ARRESTS We are now to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction, which may be distributed under 12 general heads following each other in 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. 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 suspect. crime. To this arrest, all persons whatsoever are, without distinction, equally liable to 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 by four ways. 1. By warrant. 2. By an officer without warrant. 3. By a private person also without warrant. 4. By hue and cry. 1. A warrant may be granted in extraordinary cases by the Privy Council or Secretaries of State, but ordinarily by Justices of the Peace. This they may do in cases where they have a jurisdiction over the offense 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 edward coke indeed hath laid it down that a justice of the peace cannot issue a warrant to apprehend a felon upon a bare suspicion no not even till an indictment be actually found and the contrary practice is 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 loose to felons to escape without punishment and therefore sir matthew hale hath combated it with invincible authority and strength of reason maintaining one that a justice of the peace hath power to issue a warrant to apprehend a person accused of felony though not yet indicted and two that he may also issue a warrant to apprehend a person suspected of felony though the original suspicion be not in himself but in a 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 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 a constable or other peace officer 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 the warrant in the latter case being called a special warrant. A general warrant to apprehend all persons suspected without naming or particularly describing any person in special is illegal and void for its uncertainty, 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 thereon be guilty or not It is therefore in fact no warrant at all, for it will not justify the officer who acts under it, whereas a warrant properly penned, even though the magistrate who issues it shall exceed his jurisdiction, will, by statute 24, George 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 test or dated England, not Oxfordshire, Berks or other particular county. But the warrant of a justice of the peace in any one county as Yorkshire must be backed, that is, signed by a 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 George II C. 26 and 24 George II C. 55. 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.
2. The sheriff and 3. The coroner may apprehend any felon within the county without a warrant. for the constable of whose office we formerly spoke hath great original and inherent authority with regard to arrests he may without warrant arrest anyone for a breach of the peace 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 and for that purpose is authorized as upon a justice's warrant to break open doors and even to kill the felon if he cannot be otherwise taken and if he or his assistants be killed in attempting such arrest it is murder in all concerned 5. Watchmen, either those appointed by the Statute of Winchester 13 Edward I C. 4 to keep watch and ward in all towns from sun-setting to sun-rising, or such as are mere assistance to the constable, may vertute offici, arrest all offenders, and particularly night-walkers, and commit them to custody till morning.
3. Any private person, and a fortiori a peace officer, that is present when any felony is committed is bound by the law to arrest the felon on pain of fine and imprisonment if he escapes through the negligence of the standers-by, and they may justify breaking open doors upon such felon, and if they kill him, provided he cannot be otherwise taken, it is justifiable, though if they are killed in endeavoring to make such arrest, it is murder. Upon probable suspicion also, a private person may arrest the felon or other person so suspected, but he cannot justify breaking open doors to do it, and if either party kill the other in the attempt, it is manslaughter and no more.
It is no more because there is no malicious design to kill, but it amounts to so much because it would be of most pernicious consequence if, under pretense of suspecting felony, any private person might break open a house or kill another, and also because such arrest upon suspicion is barely permitted by the law and not enjoined as in the case of those who are present when a felony is committed. 4. There is yet another species of arrest wherein both officers and private men are concerned, and that is, upon a hue and cry raised upon a felony committed.
And hue, from hewer, to shout and cry, Huttisium et clamor, is the old common law process of pursuing with horn and with voice all felons and such as have dangerously wounded another. It is also mentioned by Statute Westminster 1, 3, Edward I, C9, and 4, Edward I, De Officio Coronatoris. But the principal statute relative to this matter is that of Winchester 13, Edward I, C1 and 4, which directs that from thenceforth every county shall be so well kept that immediately upon robberies and felonies committed, fresh suit shall be made from town to town and from county to county, and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry, with all the town and the towns near, and so hue and cry shall be made from town to town
until they be taken and delivered to the sheriff. And that such hue and cry may more effectually be made, the hundred is bound by the same statute, C3, to answer for all robberies therein committed unless they take the felon, which is the foundation of an action against the hundred in case of any lost by robbery. By statute 27 Elizabeth C. 13, no hue and cry is sufficient unless made with both horsemen and footmen. And by statute 8 George II C. 16, the constable or like officer refusing
or neglecting to make hue and cry forfeits five pounds, and the whole ville or district is still in strictness liable to be immersed according to the law of Alfred if any felony be committed therein and the felon escapes. An institution which hath long prevailed in many of the eastern countries and hath in part been introduced even into the Mughal Empire about the beginning of the last century, which is said to have effectually delivered that vast territory from the plague of
robbers by making in some places the villages, in others the offices of justice, responsible for all the robberies committed within their respective districts. Hue and Cry may be raised either by precept of a justice of the peace, or by a peace officer, or by any private man that knows of a felony. The party raising it must acquaint the constable of the Ville with all the circumstances which he knows of the felony and the person of the felon, and thereupon the constable is to
search his own town and raise all the neighboring bills and make pursuit with horse and foot. And in the prosecution of such hue and cry, the constable and his attendants have the same powers, protection, and indemnification as if acting under the warrant of a justice of the peace. But if a man wantonly or maliciously raises a hue and cry without cause, he shall be severely punished as a disturber of the public peace. In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice by diverse acts of Parliament.
The Statute 4 and 5 William and Mary C. 8 enacts that such as apprehend the highwayman and prosecute him to conviction shall receive a reward of 40 pounds from the public to be paid to them or, if killed in the endeavor to take him, their executors, by the sheriff of the county, to which the statute 8 George II C. 16 super adds 10 pounds to be paid by the hundred indemnified by such taking. By statute 10 and 11 William III C. 23, any person apprehending and prosecuting to conviction a felon guilty of burglary or private larceny larceny to the value of five shillings from any shop, warehouse, coach house, or stable, shall be excused from all parish offices. And by statute 5 and C31, any person so apprehending
and prosecuting a burglar or felonious housebreaker, or if killed in the attempt, his executors, shall be entitled to a reward of forty pounds. End of chapter the twenty-first. Thank you.
