process, and voluntarily suffered by the sheriff to escape, may af terwards, upon his return to the prison, be kept by the sheriff by virtue of the same process, unless the plaintiff rather chuse to take advantage of the escape against the sheriff; surely à fortiori, upon an arrest for a crime, in which case it is to be presumed that the public good requires that the party be brought to justice, it shall likewise be lawful to detain a person returning to the officer after (a) 1 Dan. Abr. such an escape: However, as the law seems (a) not to be settled in relation to such an escape after an arrest by virtue of a civil process, so neither doth it seem to be clear in relation to an escape after an arrest by force of such a warrant from a justice of 633. 635. Hobart, 202. 1 Levinz, 21. C. Car. 75. 2 Keble, 206. (b) 14 H. 8. 16. Cromp. 147, 148. (e) Cromp. 149. Strange, 1002. 4 Comm. 288. peace. Sect. 10. But it seems clear, that a constable cannot justify any arrest by (b) force of a warrant from a justice of peace, which expressly appears in the face of it to be for an offence whereof a justice of peace hath no jurisdiction, or to bring the (c) party before him at a place out of the county for which he is a justice. But it seems that he both may and ought to execute a general warrant to bring a person before a justice of peace, to answer such matters as shall be objected against him, on the part of the king, for that the officer ought to presume that the justice Crom. 147, 148. unless the contrary appear; and it hath a jurisdiction of the matter which he takes (d) conusance of often endanger the of the party to make known the crime he is accused of. (d) Dalton, c. 117. 1 Hale, 577. 2 Hale, 111. 4 Burr. 1763. Cro. Jac. 81. Summary, 93. 3 Inst. 177. 4 Comm. 288. 10 St. Tr. 426. Yet see a precedent of this may escape But it seems to be very questionable, whether a constable can justify the execution of a general warrant to search for felons, or stolen goods, because such warrant seems to be illegal in the very face of it, for that it would be extremely hard to leave it to the discretion of a common officer to arrest what persons, and kind, Dalt. 114. search what houses he thinks fit: And if a justice cannot legally grant a blank warrant for the arrest of a single person, leaving it to the party to fill it up, surely he cannot grant such a general warrant, which might have the effect of an hundred blank warrants. (2) Sect. 11. Yet, perhaps, it is the better opinion at this day, that Crompton, 147, any constable, or even private person, to whom a warrant shall be Dalton, c. 117. 148. directed Dalton, c. 118. 14 H. 8. 16. See c. 12. s. 15. Cont. 4 Inst. 177. Sum. 93. 94. Skinner, 568. Strange, 1002. (2) Mich. Term, 1763, Wilkes v. Wood, in trespass for assisting the King's messengers to enter and ransack the house of the plaintiff, by virtue of a general warrant from the secretary of state, Lord Camden, in his charge to the jury, appears to have explicitly avowed his opinion of the illegality of general warrants. The plaintiff obtained a verdict; but whether any measures were taken to elude the effect of it, is not reported. Loft. 18. 11 State Trials, 323.-In Easter, 1764, the same learned judge confessed a bill of exceptions which had been filed against his opinion, in the case of Money v. Leach; and upon the argument in Mich. Term, 1765, Lord Mansfield and the whole court declared that general warrants to seize the person, unless in the cases specially authorised by acts of parliament, are illegal and void; that the magistrate alone should exercise his discretion, and give certain directions in the warrant to the officer; that the few instances in which they had been issued, arose from the practice of a particular office, not authorised by general usage; and that even antiquity itself could not sanctify a usage which was fundamentally bad. 1 Black. 562. 3 Burr. 1692. 1742. 11 State Trials, 307. 321. But this cause went off upon another ground; and no decision was pointedly made upon the question. 11 State Trials, 312. On 22d April, 1756, however, the House of Commons passed a Resolution condemning general warrants, in the case of libels; and lest this limitation should impliedly authorise the use of them upon other occasions, the House, three days afterwards, passed another vote, by which they were declared to be universally illegal. Subsequent to these Resolutions, Mr. Wilkes commenced an action against the Earl of Halifax, who had issued a warrant to seize the "authors of a periodical paper called the North Briton, No. 45;" and upon which Mr. Wilkes had been apprehended and confined. He obtained a verdict with considerable damages; and since that event the courts of law have been silent upon this important subject. 11 State Trials, 323. sion, and by Dalton, 118. 121. 6 Cro. Eliz. 130. directed from a justice of peace to arrest a particular person for felony, or any other misdemeanor within his jurisdiction, may lawfully execute it, whether the person mentioned in it be in truth guilty or innocent, and whether he were before indicted of the same offence or not, and whether any felony were in truth committed or not. For however the justice himself may be punishable for granting such a warrant without sufficient grounds, it is reasonable that he alone should be answerable for it, and not the officer, who is not to examine or dispute the reasonableness of his proceeding; and therefore it seems that the old books (cited in the foregoing chapter, sect. 15, 16.) which say generally, that no one can justify an arrest upon a suspicion of felony, unless he himself suspect the party, and unless the felony were in truth committed, ought to be intended only of arrests made by a person (a) Dalton says of his own head, or in obedience to the command of a constable, this power is or other such like ministerial officer, and not of such as are made derived to the justices by virin pursuance of the warrant of a justice of peace. For inasmuch tue of the first as it seems to have been the constant and allowed practice of assignavimus in late, (a) to make out warrants on the suspicion of felony, before their commisany indictment hath been found against the person suspected; force of 5 Edw. and the same seems to be countenanced by 1 and 2 Ph. and 3. c. 14. Mary, c. 13. and 2 and 3 Ph. and Mary, c. 10. which direct in what manner persons brought before justices of peace upon sus- 4 Inst. 576. picion, shall be examined in order to their being committed or Modern, 179. bailed; and since the ancient opinion, (b) that a justice of peace 1 Leon. 187. cannot make out a warrant against a man for felony who has not been indicted before, hath been contradicted(c) by constant experience; and since in the very same report(d) in which this rule is laid down, that a justice of peace cannot make a warrant against 1 Hale, 149. a person who has not been indicted, it seems nevertheless to be B. Faux Imagreed, that such a warrant is a good justification for the officer; pris. 33. Vide 2 Hale, and since none of the books (e) cited by Sir Edward Coke to 159. maintain the contrary opinion, mention the case of an arrest by Ante, sect. 15. force of a warrant from a justice of peace, but generally relate (e) 2 H.7.3.15. only to arrests by private persons of their own authority, or by 583. the command of a constable; and since, too, the case,(ƒ) which 2 Hale, 79. 107. is fullest to the purpose, wherein it is resolved that an arrest of a person by the command of a bishop, for saying that he was not 5 H. 7. 4, 5. bound to pay tithes, could not be justified by force of the sta- 10 H. 7. 17. tute (g) which authorised bishops to arrest persons for heresy; 2.4.21. for which this reason is given among others, that the bishop him- 8 E. 4. 3. b. self could not justify such an arrest, and consequently could not 9 E. 4. 26. b. authorise another to make it; it may be answered, that the reso- 11 E. 4. 4. b. lution in that case doth not wholly depend upon this reason, but rather perhaps upon these, that the bishop's command was by parol only, and not by writing; and that the statute gave him no jurisdiction over points not heretical; and that the power of imprisoning persons for mere matters of opinion ought to be strictly construed. (6) 4 Inst. 177. 1 Hale, 579. 110. 20 H.7. 12. 7 10 E. 4. 17. b. 13 E. 4. 9. a. 7 E. 4. 35. 1 Leonard, 187. And farther, since the person injured by an arrest on a jus- Cro. Eliz. 130. tice's warrant, hath a good action against the justice who granted Vide 24 Geo. 2. it, if he did it maliciously of his own head, in order to oppress or c. 44. defame the party, without any probable ground of suspicion, Vide ante, p. 82. K 2 there sect. 80. C. Jac. 81. Summary, 93. there is no necessity of giving a farther remedy against the officer who obeys the warrant. And farther, since it is in general a great discouragement to officers, to subject them to actions for endeavouring to serve the public, by paying obedience to the precepts of those whose officers they are; it would certainly be very difficult at this day to maintain an action against them for any arrest of this kind, unless the warrant appear to be for a matter whereof the justice has no jurisdiction.(3) It seems, indeed, to be holden in Boucher's case, in Croke's Second Report, that where an officer arrests a man by force of a warrant from a magistrate, pro certis causis, without shewing any cause in particular, (4) he cannot justify himself in an action brought against him for such arrest, without setting forth the it seems particular cause in his plea; and yet in this very report to be allowed that such a general warrant is good; and if so, it seems strange that the officer should not be justified by setting forth the truth of his case;(5) since, if there were no good cause to justify the granting of the warrant, the magistrate ought to answer for it, not the officer. THIRDLY, As to such arrests by bailiffs of towns. Sect. 12. It is enacted by the above-mentioned statute of Winchester, c. 4. "That in great towns, being walled, the gates shall "be closed from the sun-setting until the sun-rising, and that no "man do lodge in the suburbs, nor in any place out of the town, "from nine of the clock until day, without his host will answer "for him: and the bailiffs of towns every week, or at the least every fifteenth day, shall make inquiry of all persons being 'lodged in the suburbs, or in foreign places of the towns; and if "they do find any that have lodged or received any strangers or "suspicious persons against the peace, the bailiffs shall do right "therein." And surely it cannot be doubted but that by force hereof such bailiffs may lawfully arrest and detain any such stranger, being found under probable circumstances of suspicion, till he shall give a good account of himself. 66 FOURTHLY, AS to such arrests by justices of peace. Sect. 13. I shall first take it for granted, that wherever an arrest of this kind by a private person, or inferior officer, acting of their own authority, is either permitted or injoined by the law, in every such case, à fortiori, such an arrest by a justice of peace in person, is also permitted or injoined. ARRESTS by the command of justices of peace, as such, are either by parol; or by warrant. (3) A warrant properly penned (even though the magistrate who issues it should exceed his jurisdiction) will, by 24 Geo. 2. c. 44. at all events indemnify the officer who executes it ministerially. 4 Comm. 288. (4) A warrant to apprehend all persons guilty of And a crime therein specified, will not justify the officer who acts under it. 4 Comm. 288. (5) If a ground of justification be found in a special verdict, the defendant has no right to avail himself of that finding, unless such ground is avowed in the plea. Lord Camden. 11 St. Tr. 321. And FIRST, as to such arrests by parol.. Sect. 14. It seems that any such justice may lawfully, by word Moor, 408. of mouth, authorise any one to arrest another, who shall be guilty Dalton, c. 117. of any actual breach of the peace in his presence, or shall be engaged in a riot in his absence, as hath been more fully shewn in the first book, tit. "Riots, &c." 4 Comm. 289. As to such arrests by the warrant of a justice of peace, I shall 4 Comm. 287. endeavour to shew, in what cases a warrant for such an arrest may lawfully be made by such a justice; in what form it ought to be made; and, how it is to be executed. As to the FIRST POINT, I shall consider, 1. For what offences such a warrant may be granted. 2. Upon what evidence. And FIRST, As to the offences for which a warrant may be granted by a justice of peace. 57.59.63. Sect. 15. There seems to be no doubt but that it may be law- Sup. c. 8. sect. fully granted by any justice of peace, for treason, felony, or præmunire, or any other offence against the peace, as hath been more fully shewn in the chapter concerning justices of peace. Also it seems clear, that wherever a statute gives to any one justice of peace a jurisdiction over any offence, or a power to require any person to do a certain thing ordained by such statute, it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence, or compellable to do the thing ordained by such statute; for it cannot but be intended, that a statute giving a person jurisdiction over an offence, doth mean also to give him the power incident to all courts, of compelling the party to come before him. And it would be to little purpose to authorise a man to require another to do a thing, if it were to be understood that the person authorised had no power to compel the party to come before him. Dalton, c. 117. 12 Co. 130,151. 4 Comm. 287. Sect. 16. But it seem that anciently no one justice of peace Dalton, c. 117. could legally make out a warrant for an offence against a penal B. Peace, 6. statute, or other misdemeanor, cognisable only by a sessions of two or more justices; for that one single justice of peace hath no jurisdiction of such offence, and regularly those only who have jurisdiction over a cause can award process concerning it. Yet 6 Modern, 179. the long, constant, universal, and uncontrolled practice of justices of peace seems to have altered the law in this particular, and to have given them an authority in relation to such arrests, not now to be disputed. Sect. 17. But I do not find any good authority, that a justice Summary, 39. can justify sending a general warrant to search all suspected 10 St. Tr. 428. houses in general for stolen goods, (6) as hath been more fully 326. shewn in the tenth section. (6) In November, 1762, the Earl of Halifax, secretary of state, issued a warrant "to search for "John Entick, the author, or one concerned in writing the Monitor." The messengers seized SECONDLY, 11 St. Tr. 307. 2 Hale, 108, 109. 6 Mod. 379. Con. 14 H. 8. 16. SECONDLY, As to the evidence on which such a warrant is to be granted. Sect. 18. It seems probable that the practice of justices of peace, in relation to this matter also, is now become a law, and Qu. Dalt. 117. that any justice of peace may justify the granting of a warrant for the arrest of any person upon strong grounds of suspicion for a felony, or other misdemeanor, before any indictment hath been 4 Comm. 287. found against him. Yet inasmuch as justices of peace claim this power rather by connivance than any express warrant of law, and since the undue execution of it may prove so highly prejudicial to the reputation as well as liberty of the party, a justice of peace cannot well be too tender in his proceedings of this kind, and seems to be punishable not only at the suit of the king, but also of the party grieved, if he grant any such warrant groundlessly and maliciously, without such a probable cause as might induce a candid and impartial man to suspect the party to be guilty. Cro. Eliz. 130. 1 Leonard, 18. 1 Black. 562. case of Ledwick 4 Inst. 177. C. Eliz. 130. Sect. 19. And since both Coke and Hale seem to disapprove of such warrants granted upon suspicion, and the old books seem generally to disallow all arrest for the suspicion of felony made by any other person whatsoever, except the very person who hath the suspicion, it is certainly a safe way of proceeding for him who hath the suspicion, to make the arrest in his proper person, and to get a warrant from a justice of peace to the constable to keep the peace. Sect. 20. And perhaps there may be this difference between the warrant of a justice of peace for such causes which he has not authority to hear and determine as judge without the concurrence of others, and such warrant for an offence which he may so deter1 Leonard, 187. mine without the concurrence of any other, that in the former case, inasmuch as he rather proceeds ministerially than judicially, if he act corruptly, he is liable to an action at the suit of the 1 D. Abr. 179. party, as well as to an information at the suit of the king: but in Carthew, 492. the latter case he is punishable only at the suit of the king, for that regularly no man is liable to an action for what he doth as judge. 4 Burn, 382. (a) 1 Hale, 577. As to the SECOND POINT, viz. In what form such a warrant is to be made; I shall lay down the following rules: Sect. 21. FIRST, That (a) it ought to be under the hand and seal of the justice who makes it out. Sect. 22. SECONDLY, That it (b) ought to set forth the year and day wherein it is made, that, in an action brought upon an arrest made by virtue of it, it may appear to have been prior to such arrest. the case of a seditious libel is illegal and void.— His Lordship said, that warrants to search for stolen goods had crept into the law by imperceptible practice; that it is the only case of the kind to be met with; and that the law proceeds in it with great caution. For 1st, There must be a full charge, upon oath, of a theft committed. 2dly, The owner must swear that the goods are lodged in such a place. 3dly, He must attend at the execution of Sect. the warrant to shew them to the officer, who must see that they answer the description. And lastly, The owner must abide the event at his peril; for if the goods are not found, he is a trespasser; and the officer, being an innocent person, will be always a ready and convenient witness against him. 11 State Trials, 321. Vide also 2 Hale, 113. 151. |