CHAPTER II.

THE PROSECUTOR.

THE first question to be considered upon the commission of an offence is, by whom is the offender to be brought to justice. Though every man is entitled to prefer an accusation against any one suspected of crime, criminal prosecutions for the most part are instituted in the name of the Crown; and persons entitled to prefer accusations are bound by the strongest obligations both of law and reason, to do so; and those obligations are, in many cases, enforced by the law itself. Thus, in cases of treason and felony, a person knowingly concealing the crime is guilty of what is called a misprision of the crime. In the case of treason, he may be punished by the forfeiture of his goods, the loss of all profits of his lands during life, and imprisonment of his person for life. If a public officer conceal a felony, he is punishable by fine and imprisonment for a year and a day; and any person other than an officer, for the same offence, is punishable by fine and imprisonment in the discretion of the judges. Even in cases of misdemeanor, if the crime be of a public character, it is illegal to receive a consideration for suppressing a prosecution; and in a recent case in the Queen's Bench, it is questionable whether an arrangement for a compromise can be made even

with the consent of the court. Magistrates have power, in order to compel persons to perform the duty imposed on them by law to prosecute, to bind them over to prosecute and give evidence, and, upon refusal, to commit them to prison. The law also holds out many inducements to persons to prosecute, and throws around a prosecutor every fair and reasonable protection, insomuch that he cannot even be sued for wrongly indicting a person, unless he has been actuated by malice, and the proceedings were destitute of any reasonable foundation.

CHAPTER III.

THE ARREST OF CRIMINALS.

We shall now shortly consider the law relative to arrest on a criminal charge before indictment. In every case of treason, felony, or actual breach of the peace, a person may be arrested on suspicion before any indictment is preferred against him. Formerly, grave doubts existed as to whether a person could be arrested before a bill was found. The difficulty seems to have arisen from the wording of Magna Charta, which enacts that, "No one shall be taken or imprisoned but by the lawful judgment of his peers, or by the law of the land." An early exception was taken to the case of where a thief was taken in the maniour—that is, with the stolen goods actually in his possession. Even

in the case of misdemeanors, there are certain acts of parliament which authorise a justice to issue his warrant, as in the case of keeping a disorderly house. In every case of treason and

felony, and actual breach of the peace, the offender may be apprehended without warrant, if such a crime has actually been committed by some one. The arrest may take place in the night as well as day, and on Sundays, as on other days, the statute of 29 Charles II., s. 6, making an exception in treasons, felonies, and breaches of

the peace.

peace. It may also be made in any place, so that even a clergyman, upon a criminal charge, whilst in the performance of divine service, may be arrested. Any private person present when a felony is committed, is enjoined by law to arrest the offender. He is also bound to assist an officer requiring his aid in the apprehension of a felon. If a felony has been actually committed, a private person may direct an officer to arrest the person he supposes to be guilty. If the offence be committed in the presence of another, he may justify breaking open doors in pursuit of the felon; but no private person can justify breaking open doors in apprehending another upon the mere suspicion of the commission of a felony. Constables, virtute officii, without warrant, for treason, felony, breach of the peace, and certain misdemeanors less than felony, may arrest another. A constable may also arrest one upon the bare information of others, without any positive knowledge of the circumstances upon which the suspicion is grounded. A

constable may also break open doors to take a felon who may be in his own house, provided that he has given notice that he is a constable, and has been refused admission. Justices of the peace may arrest on the commission of a felony, or a breach of the peace in their presence, or by issuing a warrant on the evidence and complaint of another. Sheriffs are enjoined to arrest felons, and all persons are required to assist them. A coroner, as a conservator of the peace, in relation to all felonies, may arrest, or cause another to arrest, a felon. The secretary of state may also issue his warrant to apprehend persons suspected of state offences. He may also commit without oath. A warrant may be granted, in extraordinary cases, by the privy council, or secretaries of state, by the speaker of the House of Commons or Lords, by justices of gaol delivery, oyer and terminer, justices at sessions, or by a judge of the Court of Queen's Bench. By 11 & 12 Vict. c. 42, commonly called Jervis' Acts, it is enacted, by s. 1, that in all cases where a charge or complaint shall be made before any one or more of her Majesty's justices of the peace, that any person has committed, or is suspected to have committed, any treason, felony, or indictable misdemeanor, or other indictable offence whatsoever within the limits of the jurisdiction of such justice or justices of the peace; or that any person guilty, or suspected to be guilty, of having committed any such crime or offence elsewhere out of the jurisdiction of such justice or justices, is residing, or being, or is sus

pected to reside, or be within the limits of the jurisdiction of such justice or justices, then and in every such case, if the person so charged or complained against shall not then be in custody, it shall be lawful for such justice or justices of the peace to issue his or their warrant to apprehend such person. In some cases the party may be first summoned, and if the summons be not obeyed, a warrant may issue. The following are the forms of such summons, &c. :

Information and Complaint for an indictable Offence.

The information and complaint of C. D. of

to wit.} [yeoman], taken this

day of

9

in the year of our Lord 185—, before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of —, who saith that [&c. stating the offence].

Sworn before [me], the day and year first above-mentioned, at

Warrant to apprehend a Person charged with an indictable Offence.

To the constable of in the said [county] of

of

Whereas A. B. of

and to all other peace officers

[labourer], hath this day been

at

charged upon oath before the undersigned, [one] of her Majesty's justices of the peace in and for the said county for that he on did [&c. stating shortly the offence]: These are therefore to command you, in her Majesty's name, forthwith to apprehend the said A. B. and to bring him before [me], or some other of her Majesty's justices of the peace in and for the said [county], to answer unto the said charge, and to be further dealt with according to law.

Given under my hand and seal, this

in the year of Lord

said.

at

day of

in the [county] aforeJ. S. (L. s.)