[by witnesses: as 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 of a cause, or by non-observance of an award duly made a rule of the court. However, the contempt in such cases as last mentioned, is in general consequential or constructive only; as it implies no actual disregard of authority, but may proceed from the poverty of the party. 7. Those committed by any persons: in the way of disobedience to the royal writs, or other disrespect to the court's authority. 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 sovereign's writ, or the rules or process of the court; by perverting such writ or process to the purpose of private malice, extortion, or injustice; by speaking or writing contemptuously of the court, or judges acting in their judicial capacity (e); by printing false accounts, or even true ones, if against the prohibition of the court, of causes then depending in judgment (f); and by anything, 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 attachments 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 (e) See In re Pollard, Law Rep., 2 P. C. Ca. 106. (f) See R. v. Clement, 4 B. & Ald. 218; In re Skipworth, Law Times, 8th Feb. 1873, p. 269. [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 (g). Accordingly we find it actually exercised, as early as the annals of our law extend. And though a learned author seems inclinable to derive this process from the Statute of Westminster the second, 13 Edward I. c. 39,-which ordains that in case the process of the king's courts be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a quâ non deliverentur sine speciali præcepto domini regis ;" and that if the sheriff himself be resisted, he shall certify to the courts the names of the principal offenders, their aiders, consentors, commanders and favourers, and that by a special writ judicial they shall be attached by their bodies to appear before the court; and that 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 (h). 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, without any further proof or examination (i). 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 judges, upon affidavit, see sufficient ground to suspect that an actual contempt has been committed, they either make a rule on the suspected (g) It may be here remarked that the jurisdiction with regard to contempts, which belongs to inferior courts, and in particular to the county courts, is confined to contempts committed in the court itself; and in the case of the last mentioned courts is limited to the power given (h) Gilb. Hist. C. P. ch. 3. [party to show cause why an attachment should not issue against him (k); or, in very flagrant instances of contempt, the attachment issues in the first instance (1). 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 (m). 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 (n); and if any of the interrogatories be improper, the defendant may refuse to answer it, and move the court to have it struck out (o). If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury (p). If he confesses the contempt, the court will proceed to correct him, usually by fine or by imprisonment, or by both (q). If the contempt be of such a nature, that, when the fact is once acknowledged, the court can receive no further information by interrogatories than it is already possessed of, the defendant may be admitted to make such simple acknowledgment, 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 (r).] (k) Styl. 277. (1) Anony., Salk. 84; R. v. Jones, Stra. 185; R. v. Cambridge, ib. 564. (m) See The Queen v. Hemsworth, 3 C. B. 749. (n) Saunders v. Melhuish, 6 Mod. 73. (0) R. v. Barber, Stra. 444. (p) Saunders v. Melhuish, ubi sup. (q) See The Queen v. Hemsworth, ubi sup. A peer or lord of parliament is not exempted from process of attachment; at least if the contempt be gross-as by refusing to pay obedience to a writ of habeas to him directed. (R. v. Earl Ferrers, 1 Burr. 631; Lords' Journal, 7th Feb., 8th June, 1757.) As to the form of the warrant of commitment, see In re Fernandes, 6 H. & N. per cur. 726. (r) R. v. Elkins, 4 Burr. 2129. CHAPTER XVI. OF ARRESTS FOR FELONY OR MISDEMEANOR. WE are now to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction; viz. that which is (as the general rule) pursued where the offence charged amounts to a felony or indictable misdemeanor (a). This subject may be distributed under eleven 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. Judgment, and its consequences. 9. Reversal of judgment. 10. Reprieve, or pardon. 11. Execution. All which will be discussed in the subsequent part of this book. An arrest, in the sense here referred to, is the apprehending or restraining of the person of a man, in order that he shall be forthcoming to answer an alleged or suspected crime. To this species of arrest all persons whatsoever are, without distinction, equally liable in criminal cases; and it may be either by warrant or without, according to the following distinctions: First. A warrant may be granted, in cases of treason or other offence affecting the government, by the privy council or one of the secretaries of state (b): and a judge (a) It has been elsewhere explained that some misdemeanors, and even the felonious offence of larceny, may, in certain cases, be dealt with, not by way of indictment, but by a summary method of proceeding before a justice or justices. (Vide sup. pp. 332, 333.) (b) 1 Chit. Cr. L. 34, 107; Hawk. P. C. b. 2, c. 16; 4 Bl. Com. 290; see Kendal v. Row, 1 Ld. Raym. 65; R. v. Wilkes, 2 Wils. 151; R. v. of the Queen's Bench may also issue his warrant to bring before him for examination any person charged with felony (c). Moreover, such judge has authority, under 48 Geo. III. c. 58 (d), to grant a warrant against a person charged with any offence, which may be prosecuted by indictment or information in the Queen's Bench (on being satisfied that an indictment has been found or information filed), in order that he may be held to bail or committed for trial. A like power to which is exercised by courts of oyer and terminer and by the justices at sessions, upon indictments either for felony or misdemeanor found within their jurisdictions respectively (e). But warrants are ordinarily issued by justices of the peace out of sessions; a subject on which the law has been lately consolidated by 11 & 12 Vict. c. 42 (ƒ). This statute provides in substance, that in all cases where a charge, or complaint, shall be made before one Despard, 7 T. R. 736; 11 Harg. St. Tr. 318. See also Sedley v. Arbouin, 3 Esp. 178, as to the power of a secretary of state to remove a prisoner by warrant from Ireland, in order to his trial in England. It may be here noticed that a practice had obtained in the secretary of state's 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 persons in particular,) the authors, printers and publishers of such obscene or seditious libels as were particularly specified in the warrants. Although those Acts expired in 1694, the same practice was inadvertently continued till a case arose in the year 1763, wherein on such a warrant being issued to apprehend the authors, printers and publishers of a certain seditious libel, its validity was dis- (d) This Act is in extension of previous enactments of 26 Geo. 3, c. 77, s. 18, and 35 Geo. 3, c. 46, which provided only for revenue prosecutions. (e) 1 Ch. Cr. L. 339. (f) The statute 11 & 12 Vict. c. 42, is not to alter or affect any of the provisions in the Metropolitan Police Acts, or in the London Police Act (as to which vide sup. p. 335 in notis). |
