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Monet officer.. And that it is not good when issued by a common "• justice of the peace, see 1 Hal. P. C. 580, Justice SvxiUvws

LE*°"' ■ Case; 2 Hawk. c. 13, sect. 10; 1 Hal. 586. Lord Chief Justice Scroggs's general warrants were made a ground of parliamentary impeachment.

De Grey, Solicitor-General, in his reply, cited Sir Riclmrd Coxes Case, Vaugh. 111.

Lord Mansfield, C. J.—What is a probable cause of suspicion, and what is a reasonable time of detainer, are matters' of fact to be determined by a jury. The question of law on the bill of exceptions is, whether, supposing both these facts, the messenger can justify taking a man who is not the actual publisher under the present warrant, and can give the special matter in evidence upon a plea of Not guilty. The privileges given to justices, by the statutes relied on, are only given them in their capacity of conservators of the peace; not as Judges of the Court of record; for what they do there can never be the

[ *561 ] ground of an action (a). *The questions arising out of this general one are four.—1st. Whether the Secretary of State is, virtute officii, a conservator of the peace. On this, I have as

J ret formed no opinion (A). 2d. Whether the messenger is a egal officer to execute warrants. This is consequential to the first. 3d. Whether the fact complained of was done in obedience to the warrant. To make out this it must be considered, whether it be not sufficient, that the officer have strong probable evidence of the identity of the person taken up. Conclusive evidence is not to be expected; for nothing-can be so till the trial. On this question further light may be thrown upon another argument. In the common case of search warrants the words are, " to take up all loose and disorderly persons;" not "such as are suspected to be such." Yet if a good ground of suspicion be shewn, it has always been held a sufficient defence. So the words of the writs of assistance in the customs and excise are equally general; yet a probable suspicion will justify acting under them (c). 4th. Whether the warrant itself is valid. I will lay out of the case what relates to the papers (d): it is not before us in this cause. As to the rest, I have a clear opinion upon the point, and will therefore ease the further argument of this part of the case. I ground that opinion upon the single point of uncertainty with respect to the person's not being named or particularly described.

The common law gives authority to arrest without a warrant in many cases, as where the offender is taken with the mainour.

(a) 2 Hawk. P. C. c. 13, s. 20; Holroyd and Com. Dig. Officer, (E 8). v. Breare, 2 B. & A. 473. (c) Samuel v. Payne, 1 Doug. 339;

(i) "The Secretary of State is no con- 2 Hawk. P. C. c. 13, 8.11; 1 Hale H. P.

servator, nor a justice of the peace, qui C. 579, el seq.; Com. Dig. Imprisma/tt,

secretary, within the words or equity of (H 6, &c); Bac. Abr. Constable, (D); Vin.

the statute 24 G. 2, admitting him (for ar- Abr. Id. (F). See also Bottock v. Sam

gument's sake) to be a conservator;" per ders, past, 912, and the cases there referred

Cur., 2 Wils. 290; see also Lord Camden's to.

judgment, S. C. 19 How. St. Tr. 1045, (d) 2 Wils. 291; 19 How. S. T.1»6J,

where the character and authority of a 1074, adfinem. Secretary of State is discussed at length;

Money

v. Leach.

Acts of Parliament often give it. But it is not contended in the present case, that the common law gives a power to apprehend without a warrant; nor is there any statute that relates to it. The question depends therefore on the general law. And I am of opinion, that it is not fit, either upon reasons of policy or sound construction of law, that, where a man's being confined depends on an information given, it should be left to the officer to ascertain the person. The * magistrate alone [ *562 ] should judge of the ground of suspicion. Lord Hale and the other cited authorities all agree, that the warrant is void. How do the ordinary magistrates, who are conservators of the peace, usually act in such cases? It is not contended that they can issue such a warrant. If the Secretaries act in that capacity, the law must be the same, unless a different reason can be assigned. It is said that usage will justify it, and it appears, that the same form subsisted at the Revolution and has been continued ever since. Usage has great weight, but will not hold against clear and solid principles of law, unless the inconvenience of overturning it would be of very ill consequence indeed, as was the case in the King and Bewdley. But where no great inconvenience can arise in respect of what is past, and the consequence with regard to futurity may be very great, there is no reliance to be had upon such an usage. Besides, usage must be general and allowed;—usitata et approbata.— But this has been an usage of only one office and officer against the practice of all other conservators of the peace. The form of the warrant probably took its rise from a law (for licensing the press)(e), which is law no more: it arose from a law, which is now expired. At the expiration of that law the form of office was not varied, and so the warrant has continued to this day. The argument drawn from holding persons to bail in this Court, which have been apprehended upon such warrants, is of no validity; because, wherever bail is offered and accepted, the Court never looks upon the warrant, and it would be idle in such a case to take exceptions to the warrant, because the party might be arrested de novo. But usage, though it will not change the law, is yet conclusive evidence in favour of the magistrate who grants such a warrant, if accused of malice or partiality merely from the illegality of the warrant.

Wilmot, J.—I have not the least doubt, nor ever had, that these warrants are illegal and void.

Yates, J.—So totally bad, that an usage, even from the foundation of Rome itself, would not make them good.

Aston, J.—I am of the same opinion, that this is a void and illegal warrant (y).

*ln the next Term, Yorke, Attorney-General, was to have r *563 ] argued for the plaintiff in error, but declined it, as not being officer, arrestable to get over the objection, that the defendants in error ingawrongper

(«) 13 & 14 C. 2, c. 33, in the Appendix to RuHlit-ad's Statutes, vol. IX, p. 190.

(/) See also Lord Camden's judgment in Huckle v. Money, 2 Wits. 205; Rnlick

v. Carringlon, Id. 275, 19 H. S. T. 1030, and a note at the end of that case, Id. 1074; Wilkes v. Wood, Id. 1154; Loffl, 1.

Money

v. Lcach.

son, not justifiable by stat. 24 Geo. 2.

were not the authors, printers, or publishers of the libel. And he mentioned a case before Lord Mansfield, at the Norfolk Assizes, 1761, where an officer, executing a warrant of a justice of Norfolk at large in the county of the city of Norwich, was held not to be justifiable under the stat. 24 Geo. 2. And the Case of Dawson and Clerk, at the Middlesex Sittings, where, under a warrant to take up loose and disorderly persons, the constable took up a woman of character; and held that he could not justify.

Lord Mansfield, C. J.—The act of 24 Geo. 2(g) was meant to make the justice liable instead of the officer. Where, therefore, the officer makes such a mistake, as will not make the justice liable, the officer cannot be excused. The Case of Dawson and Clerk seems to conclude fully to the present case. This is a warrant to take up the authors, printers, and publishers; and the messengers have taken up persons who fall under none of those descriptions (A).

Judgment was affirmed.

(,;;) S. 6; ante, 556, n. {if).

(/') So where a constable executes a warrant out of bis hundred, which is not directed to him by name, but to " all officers of the peace within the county," he is out of the protection of the statute i Blatcher v. Kemp, 1 H. Bla. 15, n. (a): see also Prestidge v. Woodman, 1B.&C.12.2D.&R. 43. So if it be directed to the constables

of , in a county where the magistrate

has jurisdiction, and they execute it out of the county, they are not protected; inasmuch as it is directed to be executed within his jurisdiction: but if he had directed it to be executed out of his jurisdiction, they would have been protected by it; Milton v. Green, 5 East, 283; see also Jones v. Vaughan, Id. 445. So if officers exceed the authority given them by a warrant, as if in executing a distress for a poor's rate they break and enter a dwelling-house. See., they are trespassers ab initio, and do not come within the protection of the statute: Lord Ellenborough, C. i.—" The case of Money v. Leach decides, that the defendant, in order to avail himself of the objection upon the statute, must shew that he acted in obedience to the warrant. In that case the officers apprehended a different person from that described in the warrant, and therefore not in obedience to the warrant; and Mr. Yorke, the then AttorneyGeneral, who was to have argued on behalf of the officers, gave up the point upon the second argument, as being too great a difficulty for him to encounter. That was

a case of much public interest, and wis decided upon great deliberation, and the matter was upon the record;" Bell v. Oakley, 2 M. * S. 259. If a constable under a warrant to take the goods of A., take the goods of B., believing them to belong to A., he is protected by the 8th section of the statute, which requires the action to be brought within six calendar months: that was distinguished from the foregoing case», on the ground that the objects of the 6th and 8th sections are different; Partem*. Williams, 3 B. & A. 330. But if officer! act in obedience to the warrant of a magistrate, whether it be legal or not, they come within the 6 th section of the statute: if it be to seize "stolen sugar," and they seize sugar which turns out afterwards not to have been stolen, and other articles not mentioned in the warrant, though thej have verbal directions from the magistrate to seize the latter, the warrant protects them as to the sugar, but not as to the other articles; Price ▼. Messenger, 1 Bos. 8c P. 158, 8 Esp. 96. Yet where constables, under a warrant to seize block cloth, took 11 (Hh of other colours, they were held to be protected by section 8 of the statute; Smith v. Wiltshire, 2 Brod. & B. 619; {see Par ton v. Williams, supra); see also Theobald v. Crichmore, 1 B. & A. 227. A churchwarden taking a distresJ under a warrant is within the statute; Harper v. Carr, 7 T. R. 270; see also Milward v. Coffin, post, 1330.

Ricord v. Bettenham.

S. C. 3 Burr. 1734.

ACTION on the cage against the master of the ship Syren, Ransom bills on a ransom bill, given by the defendant to the plaintiff, who, P?yable t0 an in the late French war, was captain of the Badine privateer, to though the hosransom the said ship, then taken by the said privateer. On tage given with won assumpsit pleaded, and the trial of the issue at Guildhall, th?m died ln the following special facts were stated for the opinion of the fAh such bills Court, subject to which, the jury found a verdict for the plain- now void by 22 tiff, 23UL "That the Syren was taken by the Badine four <»•«.«. 25.] leagues off Cape Negrillo, 24th August, 1762: That the plaintiff was a natural born subject of the French King, and was commis*sioned by him, and that the defendant was a natural [ *564 j born subject of Great Britain, and the Syren the property of his owners being British subjects. That at the capture, Joseph Bell, the defendant's mate, was given as a hostage; and the plaintiff, the defendant, and the said Bell, gave and signed the ransom bill, 24th of August, 1762: which ransom bill purported, 'That the ship (then going to take in her cargo at Lucca 'Martha Brea), and her captain, were ransomed for 300 pis'toles, and had a month's time to repair to her destined port; 'and the defendant obliged himself and owners to pay the said 'sum within two months after date; and gave his said mate 'for hostage, whom he agreed to maintain till the day of pay'ment.' That the value of 300 pistoles was 5136L, and that the Syren was of greater value. That Joseph Bell, the hostage, died in prison, at Port au Prince, 12th October, 1762. That the Syren, after said ransom, arrived at her destined port of Lucca Martha Brea. That at the time of the capture, and till 3d November, 1762, there was actual war between Great Britain and France."

Chambers, for the plaintiff, argued, that unless some special reason be assigned to the contrary, the Court will compel the execution of this contract. Both parties are able to contract. No doubt, but the property of the ship was then in the captor. No doubt, but the captain might bind his owners. Besides, this action is brought personally against himself. The duress of imprisonment will not avoid the act. Imprisonment is lawful in time of war. It saves the life of the vanquished. And all compacts are more sacred in time of war than even in time of peace. Jura belli conseroanda, is the maxim of Lord Coke. There is no pretence of force or ill usage, after the capture. What then are the special reasons which may except this case out of the general rule. They can only be—1. A supposed want of jurisdiction in this Court to try the cause; 2. The alienage of the plaintiff; or, 3. The death of the hostage.—•l.Want [ *565 ] of jurisdiction, if true, ought to have been pleaded in abatement. Every thing is presumed to be within the jurisdiction of the King's superior Courts, till the contrary appears. An imparlance, though special, affirms the jurisdiction; Year-Book

Rioord 22 Hen. 6; Bro. Jurisd. 88; Privilege, 15; Continuance, 70; v. except in the case of some very special imparlances; Hardr.

Bettenham.^ 3(J5; Lutw. 46 (*). In all transitory actions, the Courts at Westminster shall have jurisdiction by supposing the place "where," to be within their reach: 4 Inst. 134; Carth. 11, 354; 4 Inst. 213. This contract is laid in the declaration to be made in the parish of St. Mary le Bone, &c. (k).—2. As to the alienage. That not of course an objection: an alien friend may have a personal action: an alien enemy may sue as executor; may have a safe conduct, &c. Salk. 46; Mor. 431. Allowing that all civil and commercial contracts in time of war are bad, yet the present contract arises from no unconstitutional amity, but can only take place between declared enemies. He that may redeem his life by money, may redeem it by a contract. And though the war is now over, yet an alien, by becoming a friend, does not lose what he was entitled to as an enemy.— 3. The hostage was only a collateral security. The body of the hostage is of no use. His relation to the vanquished is the ground of the confidence reposed. He is not a physical equivalent, but a moral security for the ransom. The debt is not annihilated by the loss of the security; Yelv. 179; 2 Stra. 919; Salk. 522; Ff. 20, 5, 9.

Dunning, for the defendant.—This is an action of the first impression in this or any other country. It was once attempted in France, and that attempt repelled. As it never has been brought before, and yet the case must often happen, there is strong presumption that it will not hold. The expedience or reason of the thing would be proper arguments to the Legislature, not to this Court: because the Legislature would not T * 566 1 hiterpose, without *securing a reciprocity to our own subjects; which the Court cannot do. I waive the point of jurisdiction (which the owners, on the opinion of some civilians, had greatly relied upon), and of duress. There was no duress, but what must necessarily be in such cases. But I insist, 1st—That no action can be maintained on such a contract, if the hostage be laid out of the case. Subjects of different states are incapable of contracting in time of war, or of suing for breach of such contracts. Ido not mean the mere alienage. That is no objection in a personal action; at least, must be pleaded in abatement. But this is a radical defect in the parties, on account of their condition as enemies. It might have been pleaded in bar; but not necessary to be so pleaded, because it appears on the face of the declaration (I). They are incapable of contracting or suing at the making and at the breach of the contract. And if the cause of action does not arise at the period of the breach, it is impossible to say when it arises. A personal action once suspended is gone for ever. Alien enemy is plead

(i) As to imparlance, see Brewster v. Robinson v. Bland, ante, 258.

Capper, ante, 51; Grant v. Lord Sondes, (I) See Bristow v. Towers, 6 T. R. 35;

jmt, 1094. Com. Dig. Alien (Cir 6, 7); Bac. Abr. Id.

(ft) See Lord Mansfield's judgment in \D): vin- A1>r- W- (G)Mosli/n v. Fabrigas, 1 Cowp. 170; and

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