1911 Encyclopædia Britannica/Arrest
ARREST (Fr. arrester, arrêter, to stop or stay), the restraint of a man’s person, for the purpose of compelling him to be obedient to the law. It is defined to be the execution of the command of some court of record or officer of justice.
Arrests in England are either in civil or in criminal cases.
I. In Civil Cases.—The arrest must be by virtue of a precept or order out of some court, and must be effected by corporal seizing or touching the defendant’s body, or as directed by the writ, capias et attachias, take and catch hold of. And if the defendant make his escape it is a rescous, or rescue, and attachment may be had against him, and the bailiff may then justify the breaking open of the house in which he is, to carry him away.
Arrests on mesne process (see Process), before judgment obtained, were abolished by the Debtors Act 1869, s. 6; an exception, however, is made in cases in which the plaintiff proves, at any time before final judgment, by evidence on oath to the satisfaction of a judge of one of the superior courts, that he has a good cause of action to the amount of £50, that the defendant is about to quit the country, and that his absence will materially prejudice the plaintiff in prosecuting his action. In such cases an order for arrest may be obtained till security to the amount of the claim be found.
Formerly a judgment creditor might arrest his debtor under a writ of capias ad satisfaciendum, but since 1869 imprisonment for debt has been abolished in England, except in certain cases, and in these the period of detention must not exceed one year.
The following persons are privileged from arrest, viz., 1st, members of the royal family and the ordinary servants of the king or queen regnant, chaplains, lords of the bedchamber, &c. This privilege does not extend to servants of a consort queen or dowager. 2nd, peers of the realm, peeresses by birth, creation or marriage, Scottish and Irish peers and peeresses. 3rd, members of the House of Commons during the session of parliament, and for a convenient time (forty days) before and after it. Members of Convocation appear to have the same privilege. 4th, foreign ambassadors and their “domestics and domestic servants.” Temporary privilege from arrest in civil process is enjoyed by barristers travelling on circuit, by parties, witnesses or attorneys connected with a cause, and by clergymen whilst performing divine service.
The arrest of any privileged person is irregular ab initio, and the party may be discharged on motion. The only exception is as to indictable crimes, such as treason, felony and breach of the peace.
There are no longer any places where persons are privileged from arrest, such as the Mint, Savoy, Whitefriars, &c., on the ground of their being ancient palaces.
Except in cases of treason, felony or breach of the peace, an arrest cannot be made on a Sunday, and if made it is void (Sunday Observance Act 1677); but it may be made in the night as well as in the day.
II. In Criminal Cases.—All persons whatsoever are, without distinction, equally liable to this arrest, and any man may arrest without warrant or precept, and outer doors may be broken open for that purpose. The arrest may be made,—1st, by warrant; 2nd, by an officer without warrant; 3rd, by a private person without warrant; or, 4th, by a hue and cry.
1. Warrants are ordinarily granted by justices of the peace on information or complaint in writing and upon oath, and they must be indorsed when it is intended they should be executed in another county by a magistrate of that county (see Indictable Offences Act 1848). A warrant issued by a metropolitan police magistrate can be executed anywhere by a metropolitan police officer. Warrants are also granted in cases of treason or other offence affecting the government by the privy council, or one of the secretaries of state, and also by the chief or other justice of the court of king’s bench (bench-warrant) in cases of felony, misdemeanour or indictment found, or criminal information granted in that court. Every warrant ought to specify the offence charged, the authority under which the arrest is to be made, the person who is to execute it and the person who is to be arrested. A warrant remains in force till executed or discharged by order of a court. An officer may break open doors in order to execute a warrant in cases of treason, felony or indictable offences, provided that, on demand, admittance cannot otherwise be obtained. (See Warrant.)
2. The officers who may arrest without warrant are,—justices of the peace, for felony or breach of the peace committed in their presence; the sheriff and the coroner in their county, for felony; constables, for treason, felony or breach of the peace committed in their view,—and within the metropolitan police district they have even larger powers (Metropolitan Police Acts 1829-1895).
3. A private person is bound to arrest for a felony committed in his presence, under penalty of fine and imprisonment. By the Prevention of Offences Act 1851, a private person is allowed to arrest any one whom he finds committing an indictable offence by night, and under the Malicious Damage Act 1861, any person committing an offence against that act may be arrested without warrant by the owner of the property damaged, or his servants, or persons authorized by him. So, too, by the Coinage Offences Act 1861. s. 31, any person may arrest any one whom he shall find committing any offence relating to the coin, or other offence against that act.
A person arrested without warrant must not be detained in private custody but must be taken with all convenient speed to a police station or justice and there charged (Summary Jurisdiction Act 1879).
4. The arrest by hue and cry is where officers and private persons are concerned in pursuing felons, or such as have dangerously wounded others. By the Fugitive Offenders Act 1881, provision was made for the arrest in the United Kingdom of persons committing treason, and felony in any of the British colonies and vice versa; as to the arrest of fugitives in foreign countries see Extradition.
The remedy for a wrongful arrest is by an action for false imprisonment.
In Scotland the law of arrest in criminal procedure has a general constitutional analogy with that of England, though the practice differs with the varying character of the judicatories. Colloquially the word arrest is used in compulsory procedure for the recovery of debt; but the technical term applicable in that department is caption, and the law on the subject is generically different from that of England. There never was a practice in Scottish law corresponding with the English arrest in mesne process; but by old custom a warrant for caption could be obtained where a creditor made oath that he had reason to believe his debtor meditated flight from the country, and the writ so issued is called a warrant against a person in meditatione fugae. Imprisonment of old followed on ecclesiastical cursing, and by fiction of law in later times it was not the creditor’s remedy, but the punishment of a refractory person denounced rebel for disobedience to the injunctions of the law requiring fulfilment of his obligation. The system was reformed and stripped of its cumbrous fictions by an act of the year 1837. Although the proceedings against the person could only follow on completed process, yet, by a peculiarity of the Scottish law, documents executed with certain formalities, and by special statute bills and promissory notes, can be registered in the records of a court for execution against the person as if they were judgments of the court.
The general principles as to the law of arrest in most European countries correspond more or less exactly to those prevailing in England.
An arrest of a ship, which is the method of enforcing the admiralty process in rem, founded either on a maritime lien or on a claim against the ship, is dealt with under Admiralty Jurisdiction.
See also article Attachment.
Arrest of Judgment is the assigning just reason why judgment should not pass, notwithstanding verdict given, either in civil or in criminal cases, and from intrinsic causes arising on the face of the record.
United States.—The law of arrest assimilates to that existing in England. Actual manual touching is not necessary (Pike v. Hanson, 9 N.H. 491; Hill v. Taylor, 50 Mich. 549); words of arrest by the officer, not protested against and no resistance offered, are sufficient (Emery v. Chesley, 18 N.H. 198; Goodell v. Tower, 1904, 58 Am. Rep. 790). Words of arrest, staying over night at prisoner’s house, going with him before the magistrate next day constitute arrest (Courtery v. Dozier, 20 Ga. 369). Restraining a person in his own house is arrest.
In civil cases in most of the states arrest for debt is abolished, except in cases of fraud or wilful injury to persons or property by constitutional provision or by statute. One arrested under process of a federal court cannot be arrested under that of a state court for the same cause. There is no provision in the United States constitution as to imprisonment for debt, but congress has enacted (in Rev. Stat., s. 990) that all the provisions of the law of any state applicable to such imprisonment shall apply to the process of federal courts in that state. A woman can be arrested in New York for wilful injury to person, character or property, and in certain other cases (Code, s. 553). The president, federal officials, governors of states, members of congress and of state legislatures (during the session), marines, soldiers and sailors on duty, voters while going to and from the polls, judges, court officials (1904, 100 N.W. 591), coroners and jurors while attending upon their public duties, lawyers, parties and witnesses while going to, attending or returning from court, and generally married women without separate property, are exempt from arrest.
In criminal cases a bench-warrant in New York may be served in any county without being backed by a magistrate (Code Crim. Proc., s. 304). In Nebraska one found violating the law may be arrested and detained until a legal warrant can be issued (Crim. Code, s. 283). A bail may lawfully recapture his principal (1905) 121 Georgia Rep. 594. Foreign ambassadors and ministers and their servants are exempt from arrest. Exemption from arrest is a privilege, not of the court, as in England, but of the person, and can be waived (Petrie v. Fitzgerald, 1 Daly 401).