into the body of any statute, and is applied to the description of erimes not capital, and for which there is no forfeiture of estate. It is therefore apparent that this word cannot be used in the fame fenfe, and for the fame crimes as it is in England; nor does it with precifion comprehend any clafs or description of crimes. A word of fuch uncertain meaning ought to be banished from a code of laws: for nothing produces greater confufion and perplexity, than the use of terms to which no precife and clear ideas can be affixed. ↳ have therefore avoided the use of it, as much as poffible, and it need not have been introduced in a treatise upon our laws, had not our courts introduced it into all indictments and informations, where it is ufed in England. The word feloniously is ufed in indictments for all capital crimes, and for many not capital, as for theft but as felonious in an indictment, can mean nothing more than criminal, and does not defignate the nature or class of the crime, it may be deemed unneceflary and immaterial, and ought to be exploded by our courts.

IN

CHAPTER TWENTIETH.

OF PROCESS AND ARREST.

N this ftate, we know of no process, but a warrant iffùed by a juftice of the peace, or an affiftant, upon proper complaint and information or by order of the fuperior and county courts, under the fignature of their clerks, when information is duly exhibited to them. The warrant is fubfcribed by the authority ifling it, annexed to the information, and commands fome proper officer to apprehend the perfon complained of, and bring him before proper authority, to be dealt with according to law. If the warrant be iffùed upon a qui tam profecution, the complainant mult enter into a fufficient recognizance for due profecution. If the perfon accufed cannot be apprehended by the officer, there is an end of the profecution; for we have no procefs by which to purfue him to outlawry, as in England, and by which he incurs the forfeiture of his goods and chattcls. Neither does a criminal who flies from juftice, in mediately on the commiffion of a crime, forfeit all his

goods and chattles, as in England. Neither his perfon or estate, can be affected by any decifion of a court, until he is arrested.

An arreft is the apprehending or reftraining the perfon of another, to have him forthcoming to answer for fome crime and for every act, which by law is denominated a crime, every perfon is liable to be arrested. An arrest may be made in four ways. 1. By Warrant. 2. By an Officer without Warrant. 3. By a private Perfon without Warrant. 4. By an Hue and Cry.

1. An arreft by warrant, is made by a fheriff, constable, or fome perfon fpecially authorifed, by virtue of a warrant iffied by an affiftant, juftice of the peace, or the clerks of courts, who are the only officers under whofe hands they can be iflued. No warrant can be iffued by any of thofe officers, unless a previous complaint, or information has been exhibited, by fome proper informing officer, or fome private perfon in those cafes admitted by law, excepting in the inftances of profane fwearing, drunkenness, and fabbathbreaking, in which cafes they are authorifed by the flatute law, and by the common law where perfons commit riots, or break the peace in their prefence. By the English law, juftices of the peace have pow er to iffue warrants without complaint, to arrest perfons accufed or fufpected of crimes; this is neceflary there, because they have no informing officers poffeffing the fame power as our grandjurors, to make prefentment at all times; and therefore, if juftices of the peace had not this authority, all criminals would have the best opportunities to make their efcape. But our practice is much preferable. It feems improper that the fame perfon fhould act in the character of an informing officer, and of a judge, and that he should have the power whenever he thought proper, to iffue his warrant to apprehend any perfon. By rendering it neceflary, that he fhould have a previous complaint, from fome informing officer, before he grants a warrant, there is a conflant check to restrain *any abuse of authority: and as the informing officer can only prefent the offence, he has not fufficient power to tempt him to abuse it.

The power of officers, who have lawful warrants directed to them, has been in a great measure delineated. It may be here generally remarked, that an officer is juftified in every act that

he

he does by force of a warrant apparently legal; for no officer is: bound to know the niceties and fubtilties of the law: But where a warrant is void on the face of it, or it appears that the authority figning it, has no jurifdiction, then the officer is not warranted to execute it. Every officer has power to call upon all perfons to affift him in apprehending a criminal. In all cafes where warrants are iffùed upon commplaint for a crime, the officer has power to break open doors if neceflary, for the purpofe of arrefting the criminal: but he is bound in the first place to fignify the caule of his coming, and to request admittance, and if that is refufed he is juftified in breaking open doors.

A general warrant to apprehend all fufpected perfons, without naming or deferibing any particular perfon is illegal and void, for the uncertainty of it: for every warrant ought to name the perfon to be apprehended, and not to leave any difcretionary or general power of arresting perfons not named, to the officer. Search warrants are frequently granted by aflistants and justices of the peace, where a perfon makes complaint of the lofs of goods, that he fuf pects fome praticular perfon has ftolen them, and that they are con sealed in a certain place. Upon this, fuch authority may grant a warrant, to break open if need be, and fearch all fufpected places and houses, but which must be named and defcribed: and to appre hend fuch fufpected perfous, as are named and defcribed, if the goods are found with them; but a general warrant to fearch all fufpected places and houses, and to apprehend all fuipected perfons, without any particular defcription, is illegal and void, and every act done by an officer by force of it, is a trefpafs.

2. Arrests by officers without warrant, may in certain cales be juftified by ftatute. Affiftants and justices of the peace, having plain view and perfonal knowledge, that a perfon is unneceffarly travelling on the Sabbath, may with or without a written warrant caufe him to be apprehended and brought before him, and held for trial. So may a fheriff, conftable, gr majuror, aud ty thingmau,

ithout warrant apprehend fuch traveller, and carry him before the next affiftant or juice of the peace and all perfons commanded are obliged to affiat. When rioters, in the cafe of riots refufe

¡ Statutes, * Ibid.

refufe to depart, it is in the power of any afiiftant, juftice of the peace, sheriff, felectman or constable, to caufe fuch rioters to be apprehended and to command neceffary affiftance for that purpofe, and to hold them, (or where it is neceflary) to carry them before an affiftant or juftice of the peace, who may bind them to keep the peace, or may commit them, or recognize them for trial, to fome proper court, or if they have jurifdiction, punish them as the nature of the cafe may require.

By the common law, a juftice of the peace may apprehend by himself, or cause to be apprehended by word only, any perfon committing a felony, or breach of the peace in his prefence. So may a sheriff and constable, and carry the offender before a justice of the peace. In cafes of capital and high crimes, or dangerous wound, they may on probable fufpicion, arreft the criminal, and if neceffary, break open doors, or even kill him, if he cannot otherwise be taken and if he or his affiftants, be killed, in attempting fuch arrest, it is murder in all concerned in the oppofition.

3. m

Arrefts by private perfons, are to be made when they are prefent at the commiffion of any capital crime, or any high crime, fuch as robbery, burglary, manslaughter, hor ftealing, and the like. They may juftify breaking open doors, in the pursuit of fuch criminal, and if they kill him, provided he cannot be otherwife taken, it is juftifiable, and if he kills them, it is murder. If a private perfon is prefent at the commiflion of fuch crimes, and the of fender escapes through his negligence, he is liable to be punished by fine and imprisonment. Upon probable fufpicion, a private perfon may arreft a criminal, but not juftify breaking open doors to do it, and if either party kill the other, it is manslaughter, and not murder: because there is no malicious design to kill. In the cafe of advertisements offering rewards to apprehend perfons, who have been guilty of robbery, burglary, theft, or any high crimes, there is no authority in the advertisement to justify a private perfou to apprehend fuch criminal: but he muft do it folely by force of the right to apprehend upon probable fufpicion.

4.

Hue and Cry, is the process of pursuing offenders for capital and high crimes, by raifing all the people in the neighbour

Hal. P. C. 86. 4 Black. Com. 292n Statutes, 22.

4 Black. Com. 293.

hood

m 2 Hawk. P. €. 74.

hood, and following on foot and by horfe, as occafion fhall require. This is amoft excellent process to purfe offenders, and prevent their efcape. The constables of the several towns, are directed to raise hue and cries, and their refufal, fubjects them to the penalty of forty fhillings, to the use of the town, and all private persons who rafufe to affift, incur the fame penalty. Hue and cry, may be raifed by order of an affiftant, or juftice of the peace, upon receiving information, that fome crime has been committed, and that this is neceffary to apprebend the criminal. In like manner, all private perfons may apply to proper authority for this purpose, who may iffue warrants, and the constables are bound to pursue them. In the first cafe, fuch warrants are to be pursued at the expense of the ftate, and in the latter, at the expense of the party praying them out. All conftables are authorifed to put forth pursuits, or hue and cries, after murderers, peace breakers, thieves, robbers, burglarians, and other capital offenders, where no magiftrate or jaftice of the peace is near at hand.

WHEN

CHAPTER TWENTY-FIRST.

OF COMMITMENT AND BAIL.

HEN a criminal is arrested, and brought before an affistant or justice of the peace, if the crime with which he is charged, be cognizable by them, they proceed to trial and judgment: and for that purpose may hold the prifoner in cuftody, and adjourn from time to time, as the nature of the cafe may require, and may take bail, or commit him, as may be neceflary. If the perfon be convicted, he may appeal to the next county court, upon procuring proper furety, that he will profecute his appeal and abide final judgment. The right of appeal however, is taken away in the cates of drunkennefs, profane fwearing, and fabbath breaking, and for offences against the laws for reftraining unlicensed houses, and felling lottery tickets, granted by another flate. But if the crimes. be not determinable by fingle minifters of justice, then it is their duty to proceed to an enquiry and examination of the facts charged against the perfon apprehended, and if on enquiry, it fhall be

fourd