Arrest

Definition

Arrest has a logical and etymological basis that precedes its role in the justice system. Arrest as an intransitive noun describes being at rest or at attention; as a transitive noun, it refers to stopping anything in its course; a stay in proceedings; seizing, ‘The apprehending or restraining of one's person … to answer an alleged or suspected crime’ (Blackstone), the condition resulting from being arrested; custody, imprisonment, durance; under an arrest; the act of arresting (the attention), and a judgement, decree or order.

As a verb, to arrest, it refers to: 1) to stop, stay or remain; 2) to cause to stop, detain; 3) to stop and lay hold of. This latter meaning in a legal sense refers to, ‘capture seize, lay hold of or apprehend by legal authority’ and ‘to restrain a man of his liberty, obliging him to be obedient to the law.’ This last usage was first recorded by the Oxford English Dictionary (OED) from 1375. A related meaning is ‘To seize (property) by legal warrant (now only Scotch and Admiralty Law).’

The meanings captured in the intransitive case denote action that is impeded, delayed or stopped resulting in ‘a rest’ and in the transitive case (acting upon something), to actively put a stop to something. The addition of the force of law (meanings 6–13 of the intransitive usage) includes stopping a verdict because of an error and when combined with laying hold of by law, the additional aspect of restraining in order to bring the person forward to answer for a crime. Black's Law Dictionary (1996: 44), a compendium of American legal usage, states that an arrest as a noun is 1) ‘a seizure or forcible restraint’ and as a verb is 2) ‘The taking or keeping a person in custody by legal authority especially in response to a criminal charge.’ ‘Under arrest’ (9b in the OED) refers to being under legal restraint, in the hands of the law, arrested.

Distinctive Features

Several further etymological points can be made. Delaying or stopping another citizen can be done by any other citizen in a common law country, indeed citizens are obligated to respond to crimes of which they know. This is not law enforcement, but carrying out citizens’ duties. Whether one is continuously restrained is not implied by an arrest as trusted citizens may only be expected to appear in court given bail. The arrest may be for a brief period of time, until charge and indictment, or for some length prior to or including trial since many persons are retained in jail until trial and may or may not be given credit for time served while awaiting trial. The underlying notion of an arrest, going back to the fourteenth century at least, was to stop some potentially harmful activity. In theory, arrest is not used to encourage or sustain an activity. The connection of arrest with law enforcement grew in importance as the nation state obtained sufficient authority and a network of agents who could act on command to ensure compliance by force if necessary. Black's point about forcible restraint suggests that arrest takes place when and in so far as coercion may be needed, and also suggests the central role of a criminal charge in association with the arrest.

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