Blackstone's Commentaries on the Laws of England
Book the Fourth - Chapter the Twenty-First : Of Arrests
CHAPTER THE TWENTY FIRST.
OF ARRESTS.
WE are now to confider the regular and ordinary method of proceeding in the courts of criminal jurifdiction ; which may be diftributed under twelve general heads, following each other in a progreffive order : viz. 1. Arreft ; 2. Commitment, and bail ; 3. Profecution ; 4. Procefs ; 5. Arraignment, and it's incidents ; 6. Plea, and iffue ; 7. Trial, and conviction ; 8. Clergy ; 9. Judgment, and it's confequence ; 10. Reverfal of judgment ; 11. Reprieve, or pardon ; 12. Execution : all which will be difcuffed in the fubfequent part of this book.
FIRST then, of an arreft : which is the apprehending or reftraining of one's perfon, in order to be forthcoming to anfwer an alleged or fufpected crime. To this arreft all perfons whatfoever are, without diftinction, equally liable to all criminal cafes : but no man is to be arrefted, unlefs charged with fuch a crime, as will at leaft juftify holding him to bail, when taken. And, in general, an arreft may be made four ways : 1. By warrant : 2. By an officer without warrant : 3. By a private perfon alfo without warrant : 4. By an hue and cry.
1. A
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1. A WARRANT may be granted in extraordinary cafes by the privy council, or fecretaries of ftate
a ; but ordinarily by juftices of the peace. This they may do in any cafes where they have a jurifdiction over the offence ; in order to compel the perfon accufed to appear before them
b : for it would be abfurd to give them power to examine an offender, unlefs they had alfo a power to compel him to attend, and fubmit to fuch examination. And this extends undoubtedly to all treafons, felonies, and breaches of the peace ; and alfo to all fuch offences as they have power to punifh by ftatute. Sir Edward Coke indeed
c hath laid it down, that a juftice of the peace cannot iffue a warrant to apprehend a felon upon bare fufpicion ; no, not even till an indictment be actually found : and the contrary practice is by others
d held to be grounded rather upon connivance, than the exprefs rule of law ; though now by long cuftom eftablifhed. A doctrine, which would in moft cafes give a loofe to felons to efcape without punifhment ; and therefore fir Matthew Hale hath combated it with invincible authority, and ftrength of reafon : maintaining, 1. That a juftice of peace hath power to iffue a warrant to apprehend a perfon accufed of of felony, though not yet indicted
e ; and 2. That he may alfo iffue a warrant to apprehend a perfon fulpected of felony, though the original fufpicion be not in himfelf, but in the party that prays his warrant ; becaufe he is a competent judge of the probability offered to him of fuch fufpicion. But in both cafes it is fitting to examine upon oath the party requiring a warrant, as well to afcertain that there is a felony or other crime actually committed, without which no warrant fhould be granted ; as alfo to prove the caufe and probability of fufpecting the party, againft whom the warrant is prayed
f . This warrant ought to be under the hand and feal of the juftice, fhould fet forth the time and place of making, and the caufe for which it is made,
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a 1 Lord Raym. 65.
b 2 Hawk. P. C. 84.
c 4 Inft. 176.
d 2 Hawk. P. C. 84.
e 2 Hal. P. C. 108.
f Ibid. 110.
and
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and fhould be directed to the conftable, or other peace officer, requiring him to bring the party either generally before any juftice of the peace for the county, or only before the juftice who granted it ; the warrant in the latter cafe being called a fpecial warrant
g . A general warrant to apprehend all perfons fufpected, without naming or particularly defcribing any perfon in fpecial, is illegal and void for it's uncertainty
h ; for it is the duty of the magiftrate, and ought not be left to the officer, to judge of the ground of fufpicion. And a warrant to apprehend all perfons guilty of a crime therein fpecified, is no legal warrant : for the point, upon which it's authority refts, is a fact to be decided on a fubfequent trial ; namely, whether the perfon apprehended thereupon be really guilty or not. It is therefore in fact no warrant at all : for it will not juftify the officer who acts under it
i ; whereas a lawful warrant will at all events indemnify the officer, who executes the fame minifterially. When a warrant is received by the officer, he is bound to execute it, fo far as the jurifdiction of the magiftrate and himfelf extends. A warrant from the chief, or other, juftice of the court of king's bench extends all over the kingdom : and is tefte'd, or dated, England ; not Oxfordfhire, Berks, or other particular county. But the warrant of a juftice of the peace in one county, as Yorkfhire, muft be backed, that is, figned by a juftice of the peace in another, as Middlefex, before it can be executed there. Formerly, regularly fpeaking, there ought to have been a frefh
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g 2 Hawk. P. C. 85.
h 1 Hal. P. C. 580. 2 Hawk. P. C. 82.
i A practice had obtained in the fecretaries office ever fince the reftoration, grounded on fome claufes in the acts for regulating the prefs, of iffuing general warrants to take up (without naming any perfon in particular) the authors, printers and publifhers of fuch obfcene or feditious libels, as were particularly fpecified in the warrant. When thofe acts expired in 1694, the fame practice was inadvertently continued, in every reign and under every adminiftration, except the four laft years of queen Anne, down to the year 1763 : when fuch a warrant being iffued to apprehend the authors, printers and publifhers of a certain feditious libel, it's validity was difputed ; and the warrant was adjudged by the whole court of king's bench to be void, in the cafe of Money v. Leach. Trin. 5 Geo. III. B. R. After which the iffuing of fuch general warrants was declared illegal by a vote of the houfe of commons. (Com. Journ. 22 Apr. 1766.)
warrant
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warrant in every frefh county ; but the practice of backing warrants had long prevailed without law, and was at laft authorized by ftatutes 23 Geo. II. c. 26. and 24 Geo. II. c. 55.
2. ARRESTS by officers, without warrant, may be executed, 1. By a juftice of the peace ; who may himfelf apprehend, or caufe to be apprehended, by word only, any perfon committing a felony or breach of the peace in his prefence
k. 2. The fheriff, and 3. The coroner, may apprehend any felon within the county without warrant. 4. The conftable, of whofe office we formerly fpoke
l, hath great original and inherent authority with regard to arrefts. He may, without warrant, arreft any one for a breach of the peace, and carry him before a juftice of the peace. And, in cafe of felony actually committed, or a dangerous wounding whereby felony is like to enfue, he may upon probable fufpicion arreft the felon ; and for that purpofe is authorized (as upon a juftice's warrant) to break open doors, and even to kill the felon if he cannot otherwife be taken ; and, if he or his affiftants be killed in attempting fuch arreft, it is murder in all concerned
m. 5. Watchmen, either thofe appointed by the ftatute of Winchefter, 13. Edw. I. c. 4. to keep watch and ward in all towns from funfetting to funrifing, or fuch as are mere affiftants to the conftable, may virtute officii arreft all offenders, and particularly nightwalkers, and commit them to cuftody till the morning
n.
3. ANY private perfon (and a fortiori a peace officer) that is prefent when any felony is committed, is bound by the law to arreft the felon ; on pain of fine and imprifonment, if he efcapes through the negligence of the ftanders by
o. And they may juftify breaking open doors upon following fuch felon : and if they kill him, provided he cannot be otherwife taken, it is juftifiable ; though if they are killed in endeavouring to make fuch arreft, it is
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k 1 Hal. P. C. 86.
l See Vol. I. pag. 355.
m 2 Hal. P. C. 88
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n Ibid. 98.
o 2 Hawk. P. C. 74.
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p. Upon probable fufpicion alfo a private perfon may arreft the felon, or other perfon fo fufpected
q, but the cannot juftify breaking open doors to do it ; and if either party kill the other in the attempt, it is manflaughter, and no more
r. It is no more, becaufe there is no malicious defign to kill : but it amounts to fo much, becaufe it would be of moft pernicious confequence, if, under pretence of fufpecting felony, any private perfon might break open a houfe, or kill another ; and alfo becaufe fuch arreft upon fufpicion is barely permitted by the law, and not enjoined, as in the cafe of thofe who are prefent when a felony is commited.
4. THERE is yet another fpecies of arreft, wherein both officers and private men are concerned, and that is upon an bue and cry raifed upon a felony committed. An hue (from buer, to fhout) and cry, hutefium et clamor, is the old common law procefs of purfuing, with horn and with voice, all felons, and fuch as have dangeroufly wounded another
s. It is alfo mentioned by ftatute Weftm. 1. 3 Edw. I. c. 9. and 4 Edw. I. de officio coronatoris. But the principal ftatute, relative to this matter, is that of Winchefter, 13 Edw. I. c. 1 & 4. which directs, that from thenceforth every country fhall be fo well kept, that, immediately upon robberies and felonies committed, frefh fuit fhall be made from town to town, and from county to county ; and that due and cry fhall be raifed upon the felons, and they that keep the town fhall follow with hue and cry, with all the town and the towns near ; and fo hue and cry fhall be made from town to town, until they be taken and delivered to the fheriff. And, that fuch hue and cry may more effectually be made, the hundred is bound by the fame ftatute, c. 3. to anfwer for all robberies therein committed, unlefs they take the felon ; which is the foundation of an action againft the
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p 2 Hal. P. C. 77.
q Stat. 30 Geo. II. c. 24.
r 2 Hal. P. C. 82, 83.
s Bracton. l. 3. tr. 2. c. 1. §. 1. Mirr. c. 2. §. 6.
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t, in cafe of any lofs by robbery. By ftatute 27 Eliz. c. 13. no hue and cry is fufficient, unlefs made with both horfemen and footmen. And by ftatute 8 Geo. II. c. 16. the conftable or like officer refufing or neglecting to make hue and cry, forfeits 5 l : and the whole vill or diftrict is ftill in ftrictnefs liable to be amerced, according to the law of Alfred, if any felony be committed therein and the felon efcapes. An inftitution, which hath long prevailed in many of the eaftern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the laft century ; which is faid to have effectually delivered that vaft territory from the plague of robbers, by making in fome places the villages, in others the officers of juftice, refponfible for all the robberies committed within their refpective diftricts
u. Hue and cry
w may be raifed either by precept of a juftice of the peace, or by a peace officer, or by any private man that knows of a felony. The party raifing it muft acquaint the conftable of the vill with all the circumftances which he knows of the felony, and the perfon of the felon ; and thereupon the conftable is to fearch his own town, and raife all the neighbouring vills, and make purfuit with horfe and foot : and in the profecution of fuch hue and cry, the conftable and his attendants have the fame powers, protection, and indemnification, as if acting under the warrant of a juftice of the peace. But if a man wantonly or malicioufly raifes a hue and cry, without caufe, he fhall be feverely punifhed as a difturber of the public peace
x.
IN order to encourage farther the apprehending of certain felons, rewards and immunities are beftowed on fuch as bring them to juftice, by divers acts of parliament. The ftatute 4 & 5 W. & M. c. 8. enacts, that fuch as apprehend a highwayman, and profecute him to conviction, fhall receive a reward of 40 l. from the public ; to be paid to them (or, if killed
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t See Vol. III. pag. 160.
u Mod. Un. Hift. vi. 383. vii. 156.
w 2 Hal. P. C. 100–104.
x 1 Hawk. P. c. 75.
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in the endeavour to take him, their executors) by the fheriff of the county : to which the ftatute 8 Geo. II. c. 16. fuperadds 10 l. to be paid by the hundred indemnified by fuch taking. By ftatute 10 & 11 W. III. c. 23. any perfon apprehending and profecuting to conviction a felon guilty of hurglary or private larciny to the value of 5 s. from any fhop, warehoufe, coach-houfe, or ftable, fhalll be excufed from all parifh offices. And by ftatute 5 Ann. c. 31 any perfon fo apprehending and profecuting a burglar, or felonious houfebreaker, (or, if killed in the attempt, his executors) fhall be entitled to a reward of 40 l.
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