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.