them. It may be exercised by private persons in certain cases.

The true distinction between the powers of peace officers and private persons to arrest offenders, is thus stated by Savage Ch. J. in Holley v. Mix & Clute, 3 Wend., 350:

"If an innocent person is arrested upon suspicion by a private individual, such individual is excused, if a felony was in fact committed and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information from another which he had reason to rely on." Samuel v. Payne and others, Doug., 359; 1 Chit. Cr. Law., 15; 1 Arch. Cr. Pl., & Ev., Waterman's Notes, 212.

For the grounds of suspicion which will justify an arrest of an innocent person, see 2 Hawk. P. C., book 1, ch. 12, sec. 8.

In Eanes v. The State, 6 Humph., 53, it was held that "the official proclamation by the governor, of the commission of a felony, published as the law directs, is sufficient evidence of the commission of it to justify an arrest of the supposed felon by a peace officer without warrant."

If a writ of habeas corpus be obtained where the arrest is upon suspicion, and without a special warrant, proof must be given to show the suspicion to be well founded. 2 Inst., 52.

SECTION X.

COMMITMENTS IN EXECUTION.

1. Commitments on summary convictions.

2. Commitments for contempt.

Final criminal jurisdiction over some minor offences, has been in England since 1544, and now is in many of the United States conferred upon justices of the peace acting without a jury. In such cases, "the party accused is acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge." The proceeding being summary in its nature the conviction is called a "summary conviction."

Where a person is committed in execution under such a conviction, he cannot claim under the act 31 Car. 2, nor under the acts of several of the states as we have seen, to be discharged under a writ of habeas corpus. Courts however, possessing a common law jurisdiction over the writ, or judges, or other officers, upon whom jurisdiction is conferred without such limit, may in exercise of such common law or unrestricted jurisdiction, discharge the prisoner from such commitment if it be fatally and incurably defective. But as we have also seen, courts are reluctant to interfere then under the writ of habeas corpus without having the conviction before them; and they never do for mere error or irregularity, unless they have the record before them in such form as to enable them to act expressly and conclusively upon such error or irregularity.

Hence, the importance of the writ of certiorari, and hence also, the necessity of applying for relief

from imprisonment in such cases, to a court which by its constitution and relation possesses a corrective or revisory jurisdiction over the conviction, so that if it be erroneous, it may be reversed, and then the prisoner be discharged.

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Though all the King's courts at Westminster have power to issue the writ of habeas corpus, it is seldom sued out of any other than the Court of King's Bench, by persons committed upon convictions by justices; because the other courts can only remove the body and the warrant of commitment, but cannot send for and examine and set aside the conviction itself; which is the prerogative of the King's Bench." Paley on Convictions, 272.

When a record of a summary conviction is properly presented for revision, it is subjected to strict rules of construction.

The power to convict without a jury being in derogation of the common law, has always been watched with great care by the courts; and it has long been settled, that the record of conviction must clearly show the guilt of the prisoner or he will be discharged. Nash's case, 4 B. & A., 295; Rudyard's case, 1 Skin., 678; Bac. Abr., Hab. Corp., B. 10; The King v. Gibson, Fort., 272; Rex v. Symonds, 1 Ld. Raym., 699; Rex v. Harper, D. & R., 222; Thomlinson's case, 12 Co., 104.

Indeed this jurisdiction has been regarded with such disfavor by the courts that a body of rules has gradually been established for the construction of the conviction, so searching and rigorous that in England and New York the legislature has deemed

it expedient to prescribe forms of convictions. 1 Smith Lead. Cas., 5 ed., 810: 1 Parker Cr. Rep., 96, n.

The general nature and requisites of summary convictions are thus stated by Burns:

"The power of a justice of the peace is in restraint of the common law, and in abundance of instances is a tacit repeal of that famous clause in the great charter, that a man should be tried by his equals, which also was the common law of the land long before the great charter, even from time immemorial, beyond the date of histories and records.

"Therefore, generally, nothing shall be presumed in favor of the office of a justice of the peace, but the intendment will be against it. Therefore, where a special power is given to a justice of the peace by act of parliament to convict an offender in a summary manner, without a trial by jury, it must appear that he hath strictly pursued that power, otherwise the common law will break in upon him and level all his proceedings. Therefore, where a trial by jury is dispensed withal, yet he must proceed, nevertheless, according to the course of the common law in trials by juries, and consider himself only as constituted in the place both of judge and jury. Therefore there must be an information or charge against a person, then he must be summoned or have notice of such charge, and have an opportunity to make his defence, and the evidence against him must be such as the common law approves of, unless the statute specially directeth otherwise; then if the person is found guilty, there must be a conviction, judgment and execution, all according to the course of common law, directed and influenced by the special authority given by statute; and in the conclusion there must be a record of the whole proceedings, wherein the justice must set forth the particular manner and circumstances, so as if he shall be called to account for the same by a superior court it may appear that he hath conformed to the law, and not exceeded the bounds prescribed to his jurisdiction." 1 Burns' Jus., 409.

It will not be practicable here to consider at length all the objections which may be taken to these convictions when under revision for error or irregularity. They have been made the subject of able and elaborate treatises and occupy no inconsiderable space in the reports, as the following collection by Mr. Justice Edmonds, in the case of The People v. Phillips, 1 Parker Cr. Rep., 95, will show. The following propositions will also be found fully discussed in the treatises of Paley and Hulton on convictions, and of Nun and Walsh on the powers and duties of justices of the peace.

A conviction must contain the following particulars:

An information or charge against the defendant-a summons or notice of the information, in order that he may appear and make his defence-his appearance or nonappearance his confession or defence- the evidence, if he does not confess and the judgment or adjudication. All these matters must be particularly set out on the conviction. 2 Robinson's Justice, 542; Brackett v. State, 2 Tyler, 167; People v. Miller, 14 Johns. R., 371; 4 Johns. R., 292.

"The information should state correctly the time when taken, the place, the jurisdiction before which taken, and the charge preferred. Ld. Raym., 509; 2 Bl. Com., 141; Lacon v. Hooper, 6 T. R., 224. So that it may appear that it had been given within the time limited by the statute; that the power was exercised at a place commensurate with the jurisdiction before a magistrate having jurisdiction at that place, 2 Salk., 473; that the offence was directly charged, and not by implication, and contained in express terms every ingredient necessary to constitute the crime. described by the statute. Rex v. Bradley, 10 Mod., 155; R. v. Trelawney, 1 T. R., 122; 2 Lord Raym., 791; 2 T. R., 34.