jail when the judges arrive at the circuit town, whenever or by whomsoever indicted, or for whatever crime committed, so that one way or the other the jails are in general cleared, and all the prisoners tried, punished, or delivered, at least twice in the year. If the witnesses for the crown are not produced at the second term, the party accused is liberated, so that five months' detention may occur, but that is regarded as the maximum. The Queen's Bench has the undoubted right to issue writs of habeas corpus into any colony,* but as the Habeas Corpus Act forbids the taking of any prisoner out of his country, to bring him beyond seas, it seems against the tenor of the law that the Queen's Bench should, "quasi per saltum," issue a writ of habeus corpus into a colony where courts fully capable of issuing such writs already exist. An act of the present year establishes, accordingly, that no such writ shall issue out of England into any colony or foreign dominions, where there exists a court "having authority to grant and issue the said writ, and to insure the due execution thereof throughout such colony or dominion."+ The king cannot, personally, cause any one to be arrested,‡ although the privy council, the secretaries of state, and justices of the peace may. Arrests may take place : 1. On hue and cry raised upon a felony committed, or any person having been wounded, assaulted, or robbed. In such case both officers and private men may arrest. Prosecution takes place forthwith through the constable and the county.§ 2. Any private person that is present when any felony has been committed, is bound by the law to arrest the felon, on pain of fine or imprisonment if he is negligently permitted to escape. A private individual, and, a fortiori, a peace officer may, upon probable suspicion, arrest the felon or other person so suspected; but a private individual is not justified in arresting unless he can prove an actual commission of the crime by some one, whereas the peace officer will be justified if he acted upon reasonable suspicion, though no felony had been committed. 3. A justice of the peace may, without warrant, apprehend any person committing a felony or breach of the peace in his presence. The sheriff, the coroner, and the constable have a Ex parte Anderson, 3 L. T. Rep., N.S. 622. 25 and 26 Vict. c. 20. Hallam, iii. 16.-Note. § Coke, iii. 52. similar authority. If a breach of the peace is being committed, a private individual may arrest the offenders, or give them in charge to a constable who has seen the affray; after the termination of a breach of the peace, and when there is no probability of its renewal, a private individual is not justified in arresting the parties. 4. Finally, the privy council, secretaries of state, justices of the peace, and justices of the Queen's Bench can issue warrants to appear. The "warrant of apprehension" must be issued against a particular person,* on account of some particular offence, and be signed and sealed by a magistrate. The governor of the prison cannot otherwise receive a prisoner. The course adopted in the case of Wilkes, in 1763, was in contravention of law, inasmuch as the Secretary of State, without pointing out particular individuals, issued a warrant to apprehend the authors, printers, and publishers of certain seditious libels; the validity of the warrant was disputed, and the whole Court of Queen's Bench adjudged it to be void. After this the issuing of such general warrant was declared illegal by a vote of the House of Commons. Any justice of the peace, instead of issuing in the first instance his warrant to apprehend a person charged or complained against, may issue his summons directed to such person, requiring him to appear before the said justice at a time and place mentioned; the grounds of suspicion must be sufficiently apparent to the Judges (11 and 12 Victoria, c. 42, s. 1, 9, 10.) A warrant of the Queen's Bench extends over the whole of England. To render effectual a warrant of a justice of the peace beyond the jurisdiction of such magistrate, it must be "backed" by a justice of the peace within whose jurisdiction the accused person is suspected to be (24 George I., c. 55, s. 1.) A warrant of apprehension must likewise be issued whenever an arrest, which has taken place in flagranti without warrant, is to lead to further proceedings. Any order to arrest may be executed on the Sunday, and authorizes the breaking open of doors. Any person arrested in flagranti, or on a warrant, must be forthwith brought before the magistrate; the latter must, in the presence of the prisoner, take down the depositions of those who know the facts of the case, and *Bl. iv. 291. + Schlosser, 18. Yahrhundert, iii. 335. + Bowyer, 425. put the same into writing; the depositions are to be signed by the witnesses and the justice, and read over to the prisoner, who shall be asked if he wishes to say anything in answer to the charge, after previous caution that his statement may be read in evidence against him; he is not bound to give answer, however, according to the principle of the common law, "nemo tenetur prodere seipsum," In certain cases the magistrate may be liable for an illegal incarceration, as where he issues his warrant maliciously, and without reasonable and probable cause. The person arrested is either forthwith discharged, sentenced by the judge, so far as his jurisdiction extends, bound over on his recognizance, or retained for further examination. The Bill of Rights, 1 William and Mary, statute II., c. 1, enacts that excessive bail ought not to be required from the accused. If a magistrate demands what seems excessive bail, or refuses to admit the accused to bail, application for relief may be made to a judge at chambers, or to the Court. Whenever parliament orders any one to be arrested, it does not accept bail; so with the courts of law, and the county courts, whenever any one has been arrested for "contempt of court," or whenever a person is charged with felony. But even in case of an examination for felony, the Queen's Bench may, according to circumstances, allow the accused to be discharged on bail; should he not be so discharged, if the examination is to be proceeded with, a definitive "warrant of commitment," setting forth the charge, name, and "addition" of the accused, is to be at once signed and sealed by the justices of the peace. The governor of the prison becomes thereby bound to hold the accused in custody until he is released in due course of law. In the case of needy persons the expenses for the imprisonment are borne by the county. Houses can only be searched on a properly-issued search-warrant (7 and 8 George IV., c. 29), to be determined by judicial regulation. The place in which the search is to be made must be distinctly set forth by the informant. General search warrants, applicable to entire districts, are illegal. Only in very urgent cases, for instance, in suspected houses, can a search take place at night. So particular and tender a regard is paid by the law of England to the immunity of a man's house, which is styled his "My house is my castle"-" Quid tius quam domus unus-cujus que civium ?" enim sanctius, quid omni religione muni- -Cicero pro domo sua. Chatham's cele castle, that the law will never suffer it to be violated with impunity, and civil execution is confined within far narrower limits than in other countries. Generally speaking, the doors of a house cannot be broken open for the purpose of carrying it out. Every house, however, in which personal property of a debtor happens to be, may, provided the doors are open, be entered by the When the creditor takes the body of his debtor upon a capias ad satisfaciendum, he forgoes his right to seize the debtor's property. Coke is of opinion, however, that by the common law such arrest is not allowable. The debtor sheriff's officers. remains in prison until such time as the creditor has been satisfied, even should this endure to the last moment of his life. If the creditor releases his debtor from custody the debt is extinguished. Formerly, if the debtor had died in prison, or been discharged by privilege of parliament, the creditor's remedy was at an end; but by the 2 Jas. I., c. 13, and 21 Jas. I., c. 24, execution is given after the privilege of parliament has ceased, and against the deceased's goods and chattels. By the 7 and 8 Vic., c. 96, s. 59, a Ca. Sa., will not lie unless the judge who tries the cause certifies that the defendant has been guilty of fraud, or where the sum recovered exceeds the sum of £20 exclusive of costs. brated saying reverts to the mind: "The poorest man's cottage may bid defiance to the combined power of the King of England. It may be crumbling into ruins; the roof may be torn down, the winds may penetrate and the storm may shake it, but the King of England is forbidden an entrance. The entire power of the State dare not cross the threshold of the decaying structure." CHAPTER X. PRIVACY OF LETTERS. Cromwell Established the Post-office for purposes of State.-Statute touching the Privacy of Letters.-Constant Violation thereof.-Parliamentary Reports.-Letters of foreign Ambassadors.-An Order by Fox.-The Emperor Nicholas.-Mazzini. -The Universality of the Abuse has caused Inquiry to lie over. WHEN Cromwell, in 1657, established the post-office, it was constituted on the ground that such an institution, besides the benefit to commerce and the convenience of conveying public dispatches, afforded the "best means to discover and prevent many dangerous and wicked designs against the commonwealth'* The statute 9 Ann, c. 10, s. 40, threatens the detaining and opening of letters with penalties; and only allows the Secretary of State to open letters on the ground of a special warrant at the period in question. All general warrants were not less excluded than in the case of arrests. The privacy of letters has been most shamefully infringed in England, in contravention of all law, and even down to our own times. Two committees of both houses, appointed in consequence of a petition presented by Thomas Duncombe, accumulated a mass of interesting matter on the subject. We subjoin a few details. In 1735, several members of the Commons complained that their letters had been read by the secretary of the post-office. It was pleaded, by way of excuse, that the post-office officials had merely been desirous of ascertaining whether the right of franking enjoyed by members of parliament, had not been taken advantage of by strangers. The Commons declared such proceeding a breach of privilege. During the rebellion of 1745 letters were opened in the most unrestrained fashion.‡ In 1758 a physician named Dr. Hensey was accused of high treason, for having kept up communications with the enemy; the Bl. i. 322. The post-office as organised by the Protector and his parlia ment, was upon nearly the same model as has been ever since adopted. Commons' Report. |