Page:EB1911 - Volume 28.djvu/344

Rh be imprisoned by warrant of the king in person, of the council board, or any of the privy council, he is entitled to a writ of habeas corpus, and the courts may examine into the legality of the cause of detention. This enactment, and the Habeas Corpus Act 1679, put an end to the interference of the executive with matters belonging to the judicature; but until 1763 there survived a practice by which a secretary of state issued warrants to arrest individuals for state offences, and to search or seize the books and papers of the accused. The latter practice was examined and declared illegal in the famous case of Entick v. Carrington (19 How. St. Tr. 1030). All privy councillors are included in the commission of the peace for every county. The council itself is said to have power to issue warrants of arrest for high treason, but the power, if it exists, is in abeyance in England. The special powers given to the lord-lieutenant of Ireland in 1881 (44 & 45 Vict. c. 5) expired in 1906. As a result of the gradual restriction of the royal prerogative, the term warrant has come in modern times oftenest to be used of documents issuing from courts of justice. Few documents issuing from the superior courts are called warrants. In these courts writs and orders are more generally used. In courts of record which try indictments a “bench warrant” is sometimes used for the arrest of an absent defendant, but the word warrant has for judicial purposes become most closely associated with the jurisdiction of justices of the peace. As a general rule no one can be arrested without warrant. To this rule there are certain exceptions either at common law or by statute. At common law a justice of the peace, a sheriff, a coroner, a constable and even a private person, may arrest any one without warrant for a treason, felony or breach of the peace committed, or attempted to be committed, in his presence. A constable (whether a constable at common law or a police constable appointed under the Police Acts) may arrest a person indicted for felony; a constable or a private person may arrest on reasonable suspicion that he who is arrested has committed a felony. But in the latter case he does so at his peril, for he most prove (what the constable need not) that there has been an actual commission of the crime by some one, as well as a reasonable ground for suspecting the particular person. What is a reasonable ground it is of course impossible to define, but, in the case of a constable, a charge by a person not manifestly unworthy of credit is generally regarded as sufficient. An accused person who has been bailed may be arrested by his bail, and the police may assist in the arrest. In neither case is a warrant necessary. Nor is it necessary for the apprehension of one against whom the hue and cry is raised. The king cannot arrest in person or by verbal command, as no action would lie against him for wrongful arrest. Statutory powers of arrest without warrant are given to both constables and private persons by many statutes, e.g. the Night Poaching Act 1828, certain of the Criminal Law Consolidation Acts of 1861, the Prevention of Crime Act 1871 and Police Acts. In those cases in which arrest without warrant is illegal or is found inexpedient, information in writing or on oath is laid before a justice of the peace setting forth the nature of the offence charged and to some extent the nature of the evidence implicating the accused; and upon this information, if sufficient in the opinion of the justice applied to, he issues his warrant for the arrest of the person incriminated. The warrant, if issued by a competent court as to a matter over which it has jurisdiction, becomes a judicial authority to the person who executes it, and resistance to such a warrant is a criminal offence. The possession of a legal warrant by a peace officer on arrest is of great importance in determining whether a person resisting apprehension is justified or not in his resistance. Should the officer attempt to apprehend him on a warrant manifestly illegal on its face, or without a warrant in a case where a warrant is necessary, and be killed in the attempt, the killing would probably be held to be manslaughter and not murder. Before bringing an action against constables for alleged illegal arrest under a justice's warrant the complainant must apply for the perusal and a copy of the warrant (24 Geo. II. c. 44, s. 6; Pollock, Torts, 6th ed., 117). Entry upon the land or seizure of property cannot as a rule be justified except under judicial warrant. The only common law warrant of this kind is the search warrant, which may be granted for the purpose of searching for stolen goods. Special powers for issuing such warrants are given by the Army, Merchant Shipping, Customs, Pawnbrokers and Stamp Acts, and for the discovery of explosives or appliances for coining and forgery. The Criminal Law Amendment Act 1885 allows the issue of search warrants where it is suspected that a female is unlawfully detained for immoral purposes. Execution of the decisions of a court of summary jurisdiction is secured by warrants, part of the process of the court, such as warrants of distress or commitment. A warrant may also issue for the apprehension of a witness whose attendance cannot be otherwise assured. The forms of warrants used by justices in indictable cases are scheduled to the Indictable Offences Act 1848. Those used for summary jurisdiction are contained in the Summary Jurisdiction Rules of 1886.

As a general rule, warrants must be executed within the local jurisdiction of the officer who issued them. Warrants, &c., issued by a judge of the High Court run through England, in criminal as well as in civil cases: and the same rule applies as to courts having bankruptcy jurisdiction. The warrants of justices of the peace can be executed on fresh pursuit within 7 m. of the boundary of the jurisdiction, and if properly backed by a local justice or officer in

any other part of the British islands (see ). There is also a special provision as to executing warrants in the border counties of England and Scotland. Under the Extradition Acts and Fugitive Offenders Act 1881 provision is made for the issue of warrants in aid of foreign and colonial justice; but the foreign and colonial warrants have no force in the United Kingdom.

The word “warrant” is used as to a few judicial or quasi-judicial matters of civil concern, e.g. warrant to arrest a ship in an admiralty action in rem; and in the county courts warrants to the bailiffs of the court are used where in the High Court a writ to the sheriff would be issued, e.g. for attachment, execution, possession and delivery (see County Court Rules, 1903, scheduled forms). A warrant of distress for rent issued by a landlord to a bailiff is sometimes described as a private warrant, but it is in reality a peculiar quasi-judicial remedy derived from feudal relations between lord and vassal. Arrest in civil or quasi-civil proceedings is in certain cases effected under warrant, e.g. where a bankrupt fails to obey orders of the court for his attendance (Bankruptcy Act 1883, s. 25), and in certain cases where justices have summary jurisdiction.

Financial and Commercial.—Payment out of the treasury is generally made upon warrant. Treasury warrants are regulated by many of the acts dealing with the national debt.

Payment of dividends by trading corporations and companies is generally made by means of dividend warrants. Mercantile warrants are instruments giving a right to the delivery of goods, generally those deposited at a dock or warehouse, and by mercantile custom regarded as documents of title to the goods to which they relate. They have been recognized by the legislature, especially in the Factors Acts. Thus the interpretation clause of the Factors Act 1889 includes under the head of documents of title, dock warrants and warrants for the delivery of goods, and a fuller definition is given by s. 111 of the Stamp Act 1891, which imposes on such documents a stamp duty of 3d. Warrants of attorney are instruments authorizing an attorney to appear for the principal in an action and to consent to judgment. They must now be attested by a solicitor and registered in the Bill of Sale Office under the Debtors Act 1869. They are now little used. The forgery of any warrant of this kind or of any endorsement or assignment thereof is punishable under the Forgery Act 1861.

Scotland.—By art. xxiv. of the Articles of Union royal warrants were to continue to be kept as before the union. The Secretary for Scotland Act 1885 enabled the crown by royal warrant to appoint the secretary to be vice-president of the Scotch Education Department. The lord advocate's warrant runs throughout the whole of Scotland. Warrants issued by courts of summary jurisdiction agree in the main with those in use in England, though their names are not the same (see ). There are numerous statutory provisions as to warrants of other kinds. By the Debtors (Scotland) Act 1838 (1 & 2 Vict. c. 114) warrants for diligence, and to charge the debtor under pain of imprisonment, may be inserted in an extract of decree; and in a summons concluding for payment of money a warrant to arrest the movables, debts and money of the defender may be included. By the Court of Session Act 1868 (31 & 32 Vict, c. 100) a warrant of inhibition may be inserted in the will of a summons. A crown writ is a warrant for infeftment (31 & 32 Vict. c. 101). The same act gives forms of warrants of registration. The procedure of the sheriff court in its civil jurisdiction as to warrants of citation is regulated by the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII. c. 51). The practice as to warrants of citation and commitment in the High Court of Justiciary and the sheriff court in its criminal jurisdiction now depends chiefly on the Criminal Procedure Act 1887 (50 & 51 Vict. c. 35). The meditatio fugae warrant is a judicial warrant on which imprisonment may follow until the debtor give cautio judicio sisti. It corresponds to some extent to the writ ne exeat regno of English practice, but it may be issued by a sheriff (1 & 2 Vict. c. 119, s. 25). Another kind of judicial warrant is a border warrant for arresting a debtor on the English side of the border. The warrant of attorney is not known in Scotland, its place being taken by the clause of registration, which is not avoided by the death of the person giving it.

United States.—By the constitutions of the United States and of almost all the states, warrants are not to issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or thing to be seized. These provisions have been held not to mean that there shall be no arrest without warrant, but to confine the right of arrest to circumstances similar to those which justify it in English law. The constitutions of some states forbid general warrants. A warrant is generally necessary for the payment of money out of the United States or a state treasury.

 WARRANT OF ATTORNEY. A warrant of attorney to confess judgment is a security for money (now practically obsolete) in the form of an authority to a solicitor named by a creditor, empowering him to sign judgment in an action against the debtor for the sum due, with a defeasance, or clause that the warrant shall not be put into force in case of due payment of the money secured. It was often used as a collateral security, either for the payment of an annuity or with mortgages, in