formation of actual facts which show that the court was without jurisdiction, and refuse to serve the writ. Earl v. Camp, 16 Wend. 562. Henline v. Reese, 54 Ohio St. 599. But this is very different from requiring him, at his peril, to determine questions of fact. I think the exceptions should be over-ruled. 1042. COTTAM v. OREGON CITY UNITED STATES CIRCUIT COURT, DISTRICT OF OREGON. 1899 (c) WARRANT ERRONEOUSLY ISSUED FOR UNLAWFUL PreliminARY PROCESS 1045. Sir WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1763-5, Book IV, p. 289.) . . . A warrant may be granted in extraordinary cases by the privy council, or secretaries of State, but ordinarily by justices of the peace. This they may do in any cases where they have a jurisdiction over the offence, in order to compel the person accused to appear before them. . . . Sir Edward Coke indeed hath laid it down that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion; no, not even till an indictment be actually found: and the contrary practice is by others held to be grounded rather upon connivance than the express rule of law, though now by long custom established. A doctrine which would in most cases give a loose to felons to escape without punishment; and therefore Sir Matthew Hale hath combated it with invincible authority and strength of reason: maintaining, 1. That a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted; and, 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant; because he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine upon oath the party requiring warrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party against whom the warrant is prayed. This warrant ought to be under the hand and seal of the justice, should set forth the time and place of making, and the cause for which it is made, and should be directed to the constable, or other peace officer (or, it may be, to any private per son by name), requiring him to bring the party either generally before any justice of the peace for the county, or only before the justice who granted it. . . . A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion. And a warrant to apprehend all persons guilty of a crime therein specified, is no legal warrant: for the point, upon which its authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon be really guilty or not. It is therefore in fact no warrant at all; for it will not justify the officer who acts under it: whereas a warrant, properly penned (even though the magistrate who issues it should exceed his jurisdiction), will, by statute 24 Geo. II, c. 44, at all events indemnify the officer who executes the same ministerially. (1) Warrant issued without Sworn Complaint He was like Medusa Ursus, who had heard 1046. VICTOR HUGO. The Man Who Laughs. (Ch. III.) . . . A man was standing in the doorway behind Dea. He was clad in black, with a hood. He wore a wig down to his eyebrows, and held in his hand an iron staff with a crown at each end. His staff was short and massive. thrusting her head between two branches in Paradise. some one enter, and raised his head without loosing his hold of Homo, recognized the terrible personage. He shook from head to foot, and whispered to Gwynplaine, "It's the wapentake.” . . . The man stretched his right arm over the radiant Dea, and touched Gwynplaine on the shoulder with the iron staff, at the same time pointing with his left thumb to the door of the Green Box behind him. These gestures, all the more imperious for their silence, meant, "Follow me." . . . He who was touched by the iron weapon had no right but the right of obedience. To that mute order there was no reply. The harsh penalties of the English law threatened the refractory. Gwynplaine felt a shock, under the rigid touch of the law; then he sat as though petrified. . . . He trembled violently. . . . Gwynplaine rose. Resistance was impracticable. . . . The wapentake turned round in one motion, like a piece of mechanism revolving on its own pivot, and with grave and magisterial step proceeded towards the door of the Green Box. . . . Then Gwynplaine set out as if the man was dragging him by an invisible chain. . . . In death-like silence they both crossed the yard, went through the dark taproom, and reached the street. A few passers-by had collected about the inn door, and the justice of the quorum was there, at the head of a squad of police. The idlers, stupefied, and without breathing a word, opened out and stood aside, with English discipline, at the sight of the constable's staff. The wapentake moved off in the direction of the narrow street then called the Little Strand, running by the Thames; and Gwynplaine, with the justice of the quorum's men in ranks on each side, like a double hedge, pale, without a motion except that of his steps, wrapped in his cloak as in a shroud, was leaving the inn farther and farther behind him as he followed the silent man, like a statue following a spectre. . . Unexplained arrest, which would greatly astonish an Englishman nowadays, was then a very usual proceeding of the police. Recourse was had to it, notwithstanding the Habeas Corpus Act, up to George the Second's time, espe cially in such delicate cases as were provided for by lettres de cachet in France. One of the accusations against which Walpole had to defend himself was that he had caused or allowed Neuhoff to be arrested in that manner (though the accusation was probably without foundation, for Neuhoff, King of Corsica, was put in prison by his creditors). These silent captures of the person, very usual with the Holy Vehme in Germany, were permitted by German custom (which rules one half of the old English laws), and recommended in certain cases by Norman custom (which rules the other half). Justinian's chief of the palace police was called "Silentiarius Imperialis." The English magistrates who practised the captures in question relied upon numerous Norman texts: "Canes latrant, sergentes silent." "Sergenter agere, id est tacere." These silent arrests were the contrary of the "Hue and Cry," and gave warning that it was advisable to hold one's tongue until such time as light should be thrown upon certain matters still in the dark. They signified questions reserved, and showed in the operation of the police a certain amount of raison d'etat. The legal term "private" - that is to say, with closed doors - was applied to arrests of this description. It was thus that Edward III., according to some chroniclers, caused Mortimer to be seized in the bed of his mother, Isabella of France. (This, again, we may take leave to doubt; for Mortimer sustained a siege in his town before being captured.) Warwick, the king-maker, delighted in practising this mode of "attaching" people. Cromwell made use of it, especially in Connaught; and it was with this precaution of silence that TrailieArcklo, a relation of the Earl of Ormond, was arrested at Kilmacaugh. These captures of the body by the mere motion of justice represented rather our "mandat de comparution" (summons to appear) than the warrant of arrest. Sometimes they were but processes of inquiry, and even argued, by the silence imposed upon all, a certain consideration for the person seized. For the mass of the people, little versed as they were in the estimate of such shades of difference, they had peculiar terrors. It must not be forgotten that in 1705, and even much later, England was far from being what it is to-day. The general features of its constitution were confused, and at times very oppressive. Daniel Defoe, who had himself had a taste of the pillory, characterizes the social order of England, somewhere in his writings, as the "iron hands of the law." There was not only the law, there was its arbitrary administration. We have but to recall Steele, ejected from Parliament; Locke, driven from his chair; Hobbes and Gibbon, compelled to flight; Charles Churchill, Hume, and Priestley, persecuted; John Wilkes, sent to the Tower. The task would be a long one, were we to count over the victims of the statute against seditious libel. The Inquisition had to some extent spread its arrangements throughout Europe, and its police practice was taken as a guide. A monstrous attempt against all rights was possible in England. We have only to recall the "Gazetier Cuirasse." In the midst of the eighteenth century Louis XV. had writers whose works displeased him arrested in Piccadilly. It is true also that George II. laid his hands on the Pretender in France, right in the middle of the hall at the opera. Those were two long arms, - that of the King of France reaching London; that of the King of England, Paris. Such was the liberty of the period. -- 1047. SMITH v. BOUCHER KING'S BENCH. 1733 Cas. temp. Hard. 62 IN an action for assault, battery and false imprisonment, (against) Dr. Boucher (plaintiff in an action in the vice-chancellor's court of the University of Oxford against the present plaintiff) the vice-chancellor, beadles and gaolers of the county gaol of Oxford; the defendants jointly pleaded not guilty as to the assault and battery, and as to the imprisonment (which was for eight days) they justify that it was by due process of the chancellor's court. . . . And then they set out the particular customs of the court as confirmed by the charter; that (on) an affidavit made by the plaintiff of the damages sustained, and that he believes the defendant will not come in on the summons, but rather attempt to go out of the jurisdiction, the Court will oblige the defendant to put in bail, or send him to the prison; and then brings his own case to the custom. The plaintiff replied that no affidavit was filed of the quantum of the debt according to the statute. The defendant demurred to the application. The plaintiff joined in demurrer; but on the argument gives up the defence of his replication, and takes exceptions to the defendant's plea. Mr. Strange, for the plaintiff; that the exceptions they take to the defendant's plea arise from two points: That first, the custom therein set forth is itself bad; 2dly, that though it be good, yet the defendants have not pursued the custom in this case. . . . That it is the custom that the plaintiff should swear he believes the defendant intends to withdraw; whereas in this case it is only set forth, that the plaintiff swore he suspected he would withdraw; which does not in the least come up to what is required; as a thing may be a very good ground for suspicion, and yet not strong enough whereon to found a belief. . . . CURIA, per Lord HARDWICKE, C. J. . . . The two objections which stick principally, and to which no sufficient answer has been given, are these: First, that the plaintiff does not, according to the custom set out, swear he believes the defendant was about to withdraw, but only that he suspects it; and if an affidavit should be read in this Court, wherein a man swears he suspects something, we should not take it to be equally strong as where he swears he believes it. . . . Now in the present case, as there was no power to arrest but by the custom, and as the custom was not pursued, all that is done should be accordingly void. . . • It was adjudged upon the last argument that the defendants had not brought their case within the custom. It was then ordered to stand over as to this one single point, viz. how far it was distinguishable from the case of Gwinne and Poole, 2 Lut. 1560, where it is the opinion of Mr. Justice POWELL, that if a Judge makes a mistake in a thing under his jurisdiction, an action of false imprisonment will not lie against the Judge, party, or officer. Mr. Dennison, for the defendants: It is laid down in the case of Gwinne and Poole (2 Lut. 1560), that an action of false imprisonment will not lie either against party, Judge or officer, if the Judge have jurisdiction of the cause, though he proceed inverso ordine or erroneously; and in the present case there is no doubt but that the vicechancellor had jurisdiction of the cause, since it is well set forth in the plea to be an action personal, and arising within the jurisdiction of the university. It is next to be considered whether this act is extrajudicial and void, or only erroneous. . . . The case of The Marshalsea [ante, No. 989], it is laid down that where a court has jurisdiction of a cause, though they award erroneous process, as a capias against a peer of the realm, though the same appear upon the writ, yet an action of false imprisonment will not lie upon it. As to the case in Hob. 63, where a Court entitled themselves to make out precepts, and the officer in false imprisonment justified under a parol precept; which was adjudged not to be within the custom, and therefore the proceeding thereon void, and the action did lie. The Court there had no jurisdiction to award such process. Mr. Draper, for the plaintiff. . . . This case is easily distinguishable from that of Gwinne and Poole; for here the vice-chancellor had no foundation in law whatever to award this process, and therefore it must be void. That there is a plain distinction between process that issues erroneously, and process that issues without any foundation. In the case from Hob. 63 the Court had jurisdiction of the cause, but they awarded bad process, and therefore false imprisonment lay. . . . Lord HARDWICKE, C. J., and Curia. The authority of the case in Hob. 63 over-rules all that was principally insisted on concerning the Court's having jurisdiction of the cause; for that case proves, that though the Court has original jurisdiction of the cause, yet the want of jurisdiction to award the process that they do award subjects the Judge and officers to an action of false imprisonment. In the present case the custom of making oath is set out as a condition precedent to granting of process, and this not being performed, the proceedings are entirely void.. Judgment must be given for the plaintiff generally, Jones (Thomas) 13, against all the defendants; for, as they had all joined in the same plea, there was no need of giving a distinct opinion as to the action lying against the officer, &c. who must be supposed conusant of his own jurisdiction. Judgment for the plaintiff. |