BOOK 4, CHAPTER 21 Of Arrests

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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 consequence; 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 suspected 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 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.

1. A WARRANT may be granted in extraordinary cases by the privy council, or secretaries of state;1 but ordinarily by justices of the peace. This they may do in any cases where they have a jurisdiction over the offense; in order to compel the person accused to appear before them:2 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 offenses as they have power to punish by statute. Sir Edward Coke indeed3 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 is by others4 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;5 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.6 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, 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.7 A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty;8 for it is the duty of the magistrate, and ought not 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 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;9 whereas a lawful warrant will at all events indemnify the officer, who executes the same ministerially. 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 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 Geo. II. c. 26. and 24 Geo. 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.10 2. The sheriff, and 3. The coroner, may apprehend any felon within the county without warrant. 4. The constable, of whose office we formerly spoke,11 has great original and inherent authority with regard to arrests. He may, without warrant, arrest any one 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 otherwise be taken; and, if he or his assistants be killed in attempting such arrest, it is murder in all concerned.12 5. Watchmen, either those appointed by the statute of Winchester, 13. Edw. I. c. 4. to keep watch and ward in all towns from sunsetting to sunrising, or such as are mere assistants to the constable, may virtute officii [by virtue of office] arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning.13

3. ANY private person (and a fortiori [consequently] 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 bystanders.14 And they may justify breaking open doors upon following 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.15 Upon probable suspicion also a private person may arrest the felon, or other person so suspected,16 but the cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more.17 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 an hue and cry raised upon a felony committed. An hue (from huer, to shout) and cry, hutesium et clamor, is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another.18 It is also mentioned by statute Westm. 1. 3 Edw. I. c. 9. and 4 Edw. I. de officio coronatoris [of the office of coroner]. But the principal statute, relative to this matter, is that of Winchester, 13 Edw. I. c. 1 & 4. which directs, that from thenceforth every country 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, c. 3. to answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the hundred,19 in case of any loss by robbery. By statute 27 Eliz. c. 13. no hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II. c. 16. the constable or like officer refusing or neglecting to make hue and cry, forfeits 5 £: and the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein and the felon escapes. An institution, which has long prevailed in many of the eastern countries, and has in part been introduced even into the Mogul 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 officers of justice, responsible for all the robberies committed within their respective districts.20 Hue and cry21 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 vill 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 vills, 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.22

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 & 5 W. & M. c. 8. enacts, that such as apprehend a highwayman, and prosecute him to conviction, shall receive a reward of 40£ 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 Geo. II. c. 16. superadds 10£ to be paid by the hundred indemnified by such taking. By statute 10 & 11 W. III. c. 23. any person apprehending and prosecuting to conviction a felon guilty of burglary or private larceny to the value of 5 s. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31 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 40£.

NOTES

     1.    1 Lord Raym. 65.

     2.    2 Hawk. P. C. 84.

     3.    4 Inst. 176.

     4.    2 Hawk. P. C. 84.

     5.    2 Hal. P. C. 108.

     6.    Ibid. 110.

     7.    2 Hawk. P. C. 85.

     8.    1 Hal. P. C. 580. 2 Hawk. P. C. 82.

     9.    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. Leach. 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.)

   10.    1 Hal. P. C. 86.

   11.    See Vol. I. pag. 355.

   12.    2 Hal. P. C. 88 – 90.

   13.    Ibid. 98.

   14.    2 Hawk. P. C. 74.

   15.    2 Hal. P. C. 77.

   16.    Stat. 30 Geo. II. c. 24.

   17.    2 Hal. P. C. 82, 83.

   18.    Bracton. l. 3. tr. 2. c. 1. § 1. Mirr. c. 2. § 6.

   19.    See Vol. III. pag. 160.

   20.    Mod. Un. Hist. vi. 383. vii. 156.

   21.    2 Hal. P. C. 100 104.

   22.    1 Hawk. P. c. 75.

Continuación