§ 3 ARREST -WITH OUT A Private individuals, can they arreft affrayer and quents. "hend the offender, on pain of being fined and imprisoned "for their neglect "." "WHAT may be the privilege of a private person, upon "probable suspicion only of a felony, or information of it "from others, and efpecially in any purfuit which he may carry on out of the prefence of his informer, is a far "more delicate inquiry, and one in which I will not ven"ture to affirm any thing in his favour, having no aid to"wards it from either the authority of books or the deci"fions of the court "." In the case, again, of an affray, or other leffer delinquen cy, private perfons do not seem to enjoy the same powers. Without any warrant, they may interpose to quell it, and petty delin- reftrain the offenders, that the king's peace may be kept; but, after the affray is ended, they cannot, without a warrant, arreft them. Indeed, this arrefting, without any warrant or order, and in virtue merely of that confervation of the peace, which is intrusted to every liege subject, is always rather of neceffity than choice. The fanction of the authority of the magiftrate is defirable, wherever it can be had, without affording the offender an opportunity of escaping. BY A VERBAL ORDER. THE authority of the magistrate is either given verbally, or by a regular warrant in writing. The verbal order is dictated by the fame neceffity that juftifies the interpofition of officers and private perfons of their own authority, and takes place on fimilar emergencies. Any juftice of peace, or other magiftrate, may verbally command any one to arrest another, who has been guilty of a felony, or breach of the a 2 Hawkins, 74 Burn, v. Arreft. b Hume, ibid. C Coke, 2 Inft. 52. Burn, v. Arreft, § 3. Hume, vol. iii, p. 120. " $3. ARREST -VERBAL peace, in his prefence; which command is a good warrant without writing. "Nay, though the deed have not been ❝ done under the eye of the magiftrate, yet still, if instant ORDER. "complaint be made to him of a murder, robbery, or other "the like violent and atrocious crime, by thofe who have " certain knowledge of the fact, and of the perfon alfo of "the offender; this, too, in fo urgent a case, is a fufficient justification of a verbal order to the informer and others, "to pursue and take the individual thus pofitively charged, who might otherwise escape, through the delay of "waiting for a written warrant." So it was judged in the cafe of certain perfons, who had gone in pursuit of a murderer, on a verbal order from a privy counsellor and the provoft of a royal borough, and had killed the man on his making preparation to refift them with a mortal weapon. The fact had happened in presence of the provost, but not of the privy counfellor; yet the court of justiciary found it equally relevant to acquit the pannels, whether they acted on the order of the one or of the other. They had a verdict of acquittal accordingly b. In like manner, as formerly obferved, private individuals are bound to affift a conftable, or other officer, verbally requiring their aid in arrefting a felon, as well as in fuppreffing an affray . "Ir may be fitting in fome cafes; and this in England "feems to be the ufual courfe of practice, that the warrant "be granted after the examination only of the informer up"on oath. But this is not invariably, nor even ordinarily, " obferved with us, in proceeding on the information even * 2 Hales' Hift. 8. Burn, v. Ar- others, Dec. 24, 1694. Maclaurin, reft, 3. No. 8. b Fletcher against Gillespie and с 2 Hawkins, 75. Burn, v. Arrest, $ 3. $ 3. ARREST -VERBAL -WRIT TEN WAR RANT. "of a private individual; and in cafes of complaint, at the "inftance of the procurator-fifcal, or other public officer, "who could only fwear to his belief of the information "which has been brought him, it has never been our cuf"tom to make use of any fuch precaution 2." Neither is it indifpenfible to the validity of the warrant that it proceed upon a written petition; which, however, as well as the examination of the party applying for it, ought not, if poffible, to be omittted b. A WARRANT to apprehend, like the search-warrant, ought to be dated, and must be subscribed by the magistrate by whom it is granted. The warrant issued by a juftice of the peace ought regularly to bear his ftile and quality, and Form of it. the county, for which, as well as the place, where it is given; all which things are more especially proper to be obferved, if it be a feparate warrant, not on the back of the application c. Before THE warrant must particularly name and describe the perfon to be apprehended. General warrants, which do not exprefs against whom they are directed, have been always reprobated as inftruments of tyranny and oppreffion. "It "is not fit, either upon reasons of policy, or found con"ftruction of law, that where a man's being confined de"pends upon information given, it should be left to the of"ficer to ascertain the perfon. The magiftrate alone should ἐσ judge of the ground of fufpicion." THE warrant may either be to bring the party before the whom is he granter himfelf, or before fome other competent magiftrate brought. for the bounds; and it may either be addreffed generally to proper officers of the magiftrate who gives it, or parti To whom addrefied. the a Hume, vol. iii, c. 2. b Ibid. C Ibid. d Lord Mansfield. Blackftone's Reports, 555. cularly to a certain meffenger, macer, fheriff-officer, conftable, or the like; or, if neceffary, even to a private perfon, who thereby becomes an officer pro hac vice; and if he executes it with all the neceffary precautions, he shall enjoy the privileges and protection of that character 2. § 3. ARREST -WRIT RANT. of the war rant. EXCEPTING in one cafe, noticed above, the warrant of the juftice of peace is of no force without the county, unless it Indorfation be indorsed by a juftice or other magiftrate of the bounds where the perfon to be apprehended has taken refuge. Jultices of peace, sheriffs, and other magiftrates, may indorse the warrants of each other respectively; but the warrant of a lord of jufticiary has force over all Scotland. In like manner, by virtue of 13 Geo. III, c. 31, if the offender make. his escape out of either part of the united kingdom into the other, the warrant is respectively indorfed by the judges of either country, its verity being previously proved by the oath of the bearer. Similar regulations were extended to Ireland foon after the union with that nation ©. tion, or im commit ment. WARRANTS ufually ordain the prisoner, with all conve- Either for nient speed, to be brought before the granter, or fome other examina magistrate, for examination. They may order, however, his mediate immediate commitment, if there be already fufficient grounds of fufpicion against the prifoner, or if any other circumstance prevent his previous examination. This indeed is Form of the usual stile of warrants from the lords of jufticiary, whofe office it does not pertain to examine the prisoner, or to fet on foot a precognition concerning his guilt. those by the to court of jufticiary. In order to obtain the examination of a prisoner, who has been thus at once committed for trial, it is neceffary to apply by petition, either to the judge ordinary, or to a justice of peace within the bounds, to grant warrant to bring the 2 Hume, vol. iii, c. 2. b P. 49. с 44 Geo. III. c. 99. See Appen. dix 1. $3. ARREST, &c. PRISONER'S TION. prifoner before him for that purpose; which warrant may be competently granted by inferior judges, although the prisoner has been committed by the court of jufticiary. § 4. IV. Ir is the duty of the magiftrate not to allow the exEXAMINA- amination to proceed, if the prifoner appear either to be affected with liquor, or otherwife difordered in his intellect, When it or under any influence of threats or of promises which may ought not, have been employed to induce him to confefs. to proceed? Not to be punished, though he refufes to fay any thing. $5. PRECOGNI TION. THE prifoner may, if he please, decline faying any thing; and cannot for such filence, as for a contempt, or otherwise, be lawfully punished, or harfhly treated by the magistrate. And as the declaration may militate against him, fome magiftrates humanely put him on his guard as to that parti cular. THE prifoner's dcclaration thus folemnly and freely emit ted, is a circumftance of evidence to be afterwards ufed upon his trial. THE examination must therefore be taken down at large, in writing; then read over to the prisoner, and fubscribed by him (provided he can or will fign), as well as by the magiftrate who has taken it, and two creditable witneffes, who have heard and feen the examination itself from first to laft; that, if neceffary, on the trial they may be able to authenticate it, and swear to all that paffed on the occafion. V. IF the magiftrate be fatisfied, from the examination, of the prisoner's innocency, and that the accufation is groundIf the exa- lefs, it is his duty to fet him at liberty. If otherwife, he may recommit him for farther examination, or until a preaccufation cognition be taken a. mination fhows the to have been groundless? a The prifoner is not intitled to bail against a recommitment of this kind, as we will foon fee in confi▪ dering the act 1701. |