ARREST, the restraint of a man's person, for the purpose of compelling obedience to the law. It is defined as the execution of the command of some court of record or officer of justice.
In Civil Cases.—Arrest in civil cases is now abolished save under the provisions of the Debtors Act 1869 and the Bank ruptcy Act 1914 and for contempt of court. It is effected by attachment or committal. Attachment is appropriate for neg lecting to do what a person was ordered to do, and the writ is directed to the sheriff who lodges the prisoner in gaol. Commit ment is for doing a prohibited act and is executed by the court tipstaff. Where permitted the arrest must be by virtue of a pre cept or order out of some court, and must be effected by corporal seizing or touching of the defendant's body, or as directed by the writ, capias et attachias, take and catch hold of. And if the de fendant make his escape it is a rescous, or rescue, and attach ment 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 in any action before judgment ob tained, were abolished by the Debtors Act 1869, s. 6; an excep tion, however, is made in cases in which the plaintiff proves, at any time before final judgment, by evidence on oath to the satis faction of a judge of one of the superior courts, that he has a good cause of action to the amount of f so, that there is probable cause to believe that the defendant is about to quit the country, and that his absence will materially prejudice the plaintiff in pros ecuting his action. In such cases an order for arrest may be obtained till security to the amount of the claim be found. Power is given by the Bankruptcy Act 1914 to arrest a debtor under cer tain circumstances where there is probable reason for believing he is about to abscond or remove his goods.
The following persons are privileged from arrest : (I) Members of the royal family and the ordinary servants of the king or queen regnant, chaplains, lords of the bedchamber, etc. This privilege does not extend to servants of a consort queen or dowager; (2) Peers of the realm, peeresses by birth, creation or marriage, Scottish and Irish peers and peeresses; (3) Members of the House of Commons during the session of parliament, and for a con venient time (4o days) before and after it. Members of Con vocation appear to have the same privilege. (4) Foreign am bassadors and their "domestics and domestic servants." Tem . porary privilege from arrest in civil process is enjoyed by barris ters travelling on circuit, by parties, witnesses or attorneys con nected 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. There is no priv ilege from arrest in the case of contempt of a criminal nature such as interference with the course of justice.
Civil arrest cannot be made on a Sunday, and if made it is void (Sunday Observance Act 1676) ; but it may be made in the night as well as in the day.
In Criminal Cases.—All persons whatsoever are, without dis tinction, equally liable to this arrest, save the Sovereign and a foreign sovereign. In spite of the assertions of writers on inter national law there is no diplomatic immunity from the criminal law. The statute of Anne of 1708 refers to civil matters. The privilege of sanctuary was abolished by a statute of James I., and although that statute was repealed in 1863, the privilege has not been revived.
Arrest may be made (I) without a warrant (a) by a peace offi cer, (b) by a private person, and (2) by warrant. As to (I) a private person and a fortiori a peace officer, if a felony is com mitted or attempted to be committed in his presence is bound to arrest the felon, and may also arrest without a warrant a person committing a breach of the peace. A peace officer would include justices of the peace, sheriffs, coroners and constables, besides other persons appointed under statutory powers. The personal power of justices is confined to offences committed in their pres ence. The difference between other peace officers and a private person in their power of arrest without warrant in the case of a felony not committed in their presence lies in the fact that, whereas a peace officer may justify the arrest if he has a rea sonable cause for believing that a felony has been committed and that the accused was guilty of that felony, in the case of a private person it must be shown that there has been a felony actually committed and that the private person had reasonable grounds to believe that the person arrested or given into custody committed that felony. These are their powers at common law, but under very many statutes power is given to private persons, but more generally to constables, to arrest without warrant. Instances are to be found in the Night Poaching Act 1828, the Malicious Dam age Act 1861, under Coinage and Customs Acts, and more re cently under the Criminal Law Amendment Act 1912 and the Dangerous Drugs Act 192o, but the tendency of modern legisla tion has been to confine this power of arrest to constables. In the case of misdemeanours there is no common law power of arrest without a warrant, although both peace officers and private persons have a right to arrest in the case of actual breach of the peace, and probably where such breach or its renewal is im mediately apprehended. As to (2) a warrant for arrest granted by a justice of the peace may only be executed by a peace officer, and its execution is justified by its issue, whether the offence has been committed or not. The officer executing the warrant is entitled to break open doors and effect the arrest, which may be done at any time of the day or night, and certainly in the case of indictable offences and breaches of the peace can be executed on a Sunday, and, in arresting, he may use all reasonable and nec essary force. Formerly there were local limits to a warrant except in the case of warrants issued by a metropolitan police magistrate, being executed by a metropolitan police officer, and "backing" by local justices was required; further, it was neces sary for the constable to be armed with the warrant at the time of making the arrest. But now under the Criminal Justice Act 1925 s. 31 (3) any warrant lawfully issued by a justice for appre hension of a person charged with an offence punishable on sum mary conviction or on indictment may be executed in any county or place in England or Wales outside the jurisdiction of the justice by whom it was issued as if it had been originally issued by a justice having jurisdiction in that county or place, and the execution may be effected either by any person to whom the war rant was originally directed or by any constable of that county or place. Further, by s. 44 of the same Act, any warrant lawfully issued by a justice for apprehending any person charged with any offence may be executed by any constable at any time, notwith standing that the warrant is not in his possession at the time; but the warrant, on the demand of the person apprehended, is to be shown as soon as practicable after his arrest. (See also BAIL.) The old common law arrest by hue and cry has long since been abolished by statute, save in the case of the sheriff and posse comitatus under the Sheriffs Act 1887. By the Fugitive Offenders Acts 1 881 and 1915 provision was made for the arrest in the United Kingdom of persons committing treason, and certain felonies, misdemeanours and crimes in any of the British colonies and protectorates 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.
For arrest of a ship see ADMIRALTY JURISDICTION. (See also ATTACHMENT.) (W. DE B. H.) United States.—The law of arrest in the United States is the outgrowth of the English system and follows it very closely at most points.
In criminal cases arrests may be made with a warrant, by a peace officer without a warrant, or by a citizen without a warrant for felony actually committed. The right to arrest includes the right to search the person but not the premises where the arrest is made. The person arrested must be arraigned as prescribed in the warrant or, if arrested without a warrant, immediately be fore the nearest appropriate sitting magistrate. Diplomatic repre sentatives of foreign powers, legislators, State and Federal, wit nesses actually under subpoena, jurors, etc., are exempt from arrest in most instances. The power of the arresting officer is limited to the State or local boundary of his official district unless enlarged by legislation.
Civil Cases. While imprisonment for debt has been much lim ited in all jurisdictions the right in some form to enforce civil liability by imprisonment exists in nearly every State. Such rem edy consists, usually, of (I) preliminary arrest, and (2) final ar rest or execution against the person.
(I) The right to preliminary arrest ordinarily exists in such tort actions as involve injury to the person and fraud and contract actions where the breach of contract is accompanied by fraud or violation of a fiduciary relationship. Preliminary arrest may also be granted where, because of facts extrinsic to the cause of action, such as the intent of the debtor to leave the jurisdiction, the ulti mate power of the court to enforce its mandates may be imperilled.
(2) Final arrest or execution against the person may generally issue in a case where the right to preliminary arrest existed.
In order to obtain preliminary arrest in a civil case an applica tion must be made to the court upon affidavit or petition, governed by the provisions of the statute of the particular jurisdiction, and upon a bond or undertaking to indemnify the defendant if the arrest proves unauthorized or the cause of action not sustained. The order of arrest or warrant issued upon it must be directed to an appropriate officer such as the sheriff or marshal. Final arrest is not bailable except to the jail limits but in civil cases may be discharged by payment of the judgment. Commitment for con tempt of court, or disobedience to court order is not strictly an arrest, although in some instances, as the enforcement of alimony orders, it is used substantially as an execution against the person. The defendant may move to vacate the order as improperly granted or give bail in accordance with the order. (B. RE.)