1048. JOHN WILKES' CASE

COMMON PLEAS. 1763

19 How. St. Tr. 981

ON Saturday, April 30, 1763, in the morning, the defendant Wilkes was arrested by two of the King's messengers, by virtue of a warrant from the Secretary of State. . . . The same 30th day of April at twelve o'clock at noon . . . the Court ordered an Habeas Corpus to be issued instantly, returnable forthwith. . . . While Mr. Wilkes was in the custody of the messengers at his house in Great George Street, yet before the coming of the writ to the messengers (the same afternoon about five o'clock), Mr. Wilkes was hastily (I had almost said in contempt of the King's high court) committed to the Tower of London. . . . Mr. Wilkes' solicitor demanded of Major Rainsford a copy of the warrant of commitment of Mr. Wilkes to the Tower, which was readily granted by the Major, the tenor whereof is in the words following:

"Charles, Earl of Egremont and George Dunk, Earl of Halifax, lords of his majesty's most honourable privy council, and principal Secretaries of State: these are in his majesty's name to authorize and require you to receive into your custody the body of John Wilkes, Esq., herewith sent you, for being the author and publisher of a most infamous and seditious libel, intitled The North Briton, No. 45, tending to inflame the minds and alienate the affections of the people from his majesty, and to excite them to traitorous insurrections against the government, and to keep him safe and close, until he shall be delivered by due course of law; and for so doing this shall be your warrant. Given at St. James's the 30th day of April, 1763, in the third year of his majesty's reign. Egremont, Dunk Halifax." "To the Right Honorable John Lord Berkley of Stratton, constable of his Majesty's Tower of London, or to the lieutenant of the said Tower, or his deputy."

Afterwards the same Monday, May 2, a motion was made to the Court grounded upon a copy of the aforesaid warrant of commitment of Mr. Wilkes to the Tower, and an affidavit of the truth thereof, for another Habeas Corpus to be directed to the constable, &c. of the Tower of London, which was granted returnable without delay.

Serjeant Glynn moved the Court that Mr. Wilkes might be discharged out of custody without bail, and grounded his motion on three points. . . . The first objection taken to the warrant of commitment was, that it doth not appear to the Court that Mr. Wilkes was charged by any evidence or information upon oath before the secretaries of state that he was the author or publisher of the North Briton, No. 45; That, for any thing that appeared to the Court to the contrary, the secretaries of state committed Mr. Wilkes to the Tower upon their own mere imagination or suspicion that he was the author and publisher of this supposed libel. The second objection taken to the warrant of commitment was, that it was too general, and doth not set forth suffi

cient substantial matter whereupon the Court can judge whether the North Briton, No. 45, (supposing Mr. Wilkes the author and publisher thereof) is a most infamous and seditious libel. . . .

...

Mr. Serjeant Hewitt, for the crown, in answer to the first objection. said, that it was not necessary to set forth the evidence or information upon which the warrant of commitment was made, in the warrant. But as to the second objection, he admitted that it must appear upon the face of such warrant for what particular species of a crime or misdemeanour the party was committed, according to the case of the King v. Roe and Kendall, (1 Salk. 345, 5 Mod. 78, and in this Collection, vol. 12, p. 1299,) and that in the present case, if the commitment had been for writing and publishing a libel generally, without specifying the nature and tendency thereof, it would have been ill. But here it is said to be "for being the author and publisher of a most infamous and seditious libel, tending to inflame the minds and alienate the affections of the people from his majesty, and to excite them to traitorous insurrections against the government." This he thought was a sufficient specification of the nature of the libel, and of the misdemeanours supposed to be committed by Mr. Wilkes against the government. . . As to the third objection of privilege, Serjeant Hewitt admitted that Mr. Wilkes was a member of Parliament, and could not legally be arrested but for treason, felony, or breach of the peace.

Then the Court took time to consider, and appointed Friday following to give their opinion, and ordered Mr. Wilkes to be remanded to the Tower, and to be brought up again to the bar on Friday, the 6th of May; and upon that day, Mr. Wilkes being again at the bar, the Lord Chief Justice delivered the opinion of the whole Court.

L. C. J. PRATT, after stating the warrant of commitment, said, There are two objections taken to the legality of this warrant, and a third matter, insisted on for the defendant, is privilege of parliament.

The first objection is, that it does not appear to the Court that Mr. Wilkes was charged by any evidence before the secretaries of State, that he was the author or publisher of the North Briton, No. 45. In answer to this, we are all of opinion, that it is not necessary to state in the warrant that Mr. Wilkes was charged by any evidence before the secretaries of state, and that this objection has no weight. Whether a justice of peace can, ex officio, without any evidence or information, issue a warrant for apprehending for a crime, is a different question. If a crime be done in his sight, he may commit the criminal upon the spot; but where he is not present, he ought not to commit upon discretion. Suppose a magistrate hath notice or a particular knowledge that a person has been guilty of an offence, yet I do not think it is a sufficient ground for him to commit the criminal; in that case he is rather a witness than a magistrate, and ought to make oath of the fact before some other magistrate, who should thereupon act the official part, by granting a warrant to apprehend the offender; it being

more fit that the accuser should appear as a witness than as a magistrate. But that is not the question upon this warrant. The question here is, whether it is an essential part of the warrant, that the information, evidence, or grounds of the charge before the secretaries of state, should be set forth in the warrant? And we think it is not. . . . We think it not requisite to set out more than the offence, and the particular species of it. It may be objected, if this be good, every man's liberty will be in the power of a justice of peace. But Hale, Coke and Hawkins, take no notice that a charge is necessary to be set out in the warrant. . . . I have been attended with many precedents of warrants returned into the King's-bench; they are almost universally like this; and in Sir William Wyndham's case, 1 Stra. 2, 3, this very point before us is determined. And Hawkins, in his 2 Pl. Coron. 120, § 17, says, "It is safe to set forth that the party is charged upon oath; but this is not necessary; for it hath been resolved, that a commitment for treason, or for suspicion of it, without setting forth any particular accusation, or ground of suspicion, is good;" and cites Sir William Wyndham's case, Trin. 2 Geo. Dalt. cap. 121, Cromp. 233, b.

The second objection is, that the libel ought to be set forth in the warrant in haec verba, or at least so much thereof, as the secretaries of state deemed infamous, seditious, &c. that the Court may judge whether any such paper ever existed; or if it does exist, whether it be an infamous and seditious libel, or not. But we are all of a contrary opinion. A warrant of commitment for felony must contain the species of felony briefly, "as for felony for the death of J. S. or for burglary in breaking the house of J. S. &c. and the reason is, because it may appear to the judges upon the return of an Habeas Corpus, whether it be felony or not." . . . There is no other word in the law but libel whereby to express the true idea of an infamous writing. We understand the nature of a libel as well as a species of felony.

The third matter insisted upon for Mr. Wilkes is, that he is a member of Parliament (which has been admitted by the king's serjeants), and intitled to privilege to be free from arrests in all cases except treason, felony, and actual breach of the peace, and therefore ought to be discharged from imprisonment without bail; and we are all of opinion that he is intitled to that privilege, and must be discharged without bail. . . . Therefore, Mr. Wilkes must be discharged from his imprisonment.

Whereupon there was a loud huzza in Westminster-hall. He was discharged accordingly.

1049. CONSTITUTION OF ILLINOIS. (1818, Bill of Rights, Art. VIII, § 7; 1870, Art. II, § 6.) No warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the person or thing to be seized.

REVISED STATUTES OF ILLINOIS. (1874, c. 38, §§ 347-350.) Division VII. Arrest. § 1. For the apprehension of persons charged with offences, except such as are cognizable exclusively by justices of the peace, any judge of a court of record, in vacation as well as in term time, or any justice of the peace, is authorized to issue process to carry into effect the following provisions of this act.

§ 2. Upon complaint made to any such judge or justice of the peace that any such criminal offence has been committed, he shall examine on oath the complainant and any witness produced by him, shall reduce the complaint to writing and cause it to be subscribed and sworn to by the complainant; which complaint shall contain a concise statement of the offence charged to have been committed, and the name of the person accused, and that the complainant has just and reasonable grounds to believe that such person committed the offence.

§ 3. If it appears that such offence has been committed, the judge or justice of the peace shall issue a warrant, directed to all sheriffs, coroners and constables within this State, stating the offence by name or so that it can be clearly inferred, the name of the person accused, and requiring the officer to whom it is directed forthwith to take the person of the accused and bring him before such judge or justice, or in case of his absence or inability to act, before any other judge or justice of the county, and in the same warrant may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination.

1050. HOUSH v. PEOPLE

SUPREME COURT OF ILLINOIS. 1874

75 Ill. 487

WRIT of Error to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Appellant was convicted in the court below, for permitting the escape of a prisoner, who had been committed to his custody, in his official capacity of constable. The affidavit upon which the warrant, by virtue of which the prisoner was arrested, was issued, is as follows:

"State of Illinois, Knox County, ss. The complaint and information of George Huggins, of Knox township in said county, made before James Moore, Esquire, one of the justices of the peace in and for said county, on the sixth day of May, 1873, who, being duly sworn, upon his oath, says that, in Knox township, in the said county, on the 25th day of April, 1873, he had a saddle and sheep skin stolen from his barn in said place, and that he verily believes that they are now in possession of a man, name unknown, a large size man, riding a sorrel mare with a light mane and tail, and young colt running after, when last seen; who stayed last night at Edmund Russells, in Persifer township, this county. He therefore prays that the said unknown described man may be arrested, and dealt with according to law. George Huggins. Subscribed and sworn to, before me, this sixth day of May, 1873. James Moore, Justice of the Peace."

The warrant recites, among other things, that complaint had been made, under oath, by the complainant, that he "had just and reason

able grounds to suspect that a certain unknown man" (then follows the description given of him in the affidavit) "is guilty of said theft, or larceny of saddle and sheep skin, as he verily believes." The warrant is, in other respects, in the usual form, and no objection is taken to it, except such as is predicated on the insufficiency of the affidavit.

The warrant was placed in the hands of a constable named Thurman, to execute. Thurman, after receiving the warrant, arrested a man answering to the description therein given, and subsequently delivered the warrant to appellant, and placed the prisoner in his custody. The proof was sufficiently clear that appellant voluntarily permitted the prisoner to escape from his custody.

The first and third instructions given by the trial court, at the instance of the people, embrace the only question necessary to be considered, and are as follows:

"1st. The Court instructs the jury that the warrant introduced in evidence in this case is a legal warrant, and will be so regarded by the jury." "3d. The jury are instructed that, if they shall believe .. said James Moore, the officer who issued said warrant, or before any other justice of the peace, in his absence, as required by law, but voluntarily suffered and permitted said prisoner, before conviction, to escape and go at large, in manner and form as charged in the indictment, then the jury, if true to their oaths, must find the defendant guilty." Messrs. Williams, McKenzie & Calkins, and Mr. A. L. Humphrey, for the plaintiff in error.

Mr. J. J. Tunnicliff, State's attorney, for the People.

Mr. Justice SCHOLFIELD [after stating the case as above and citing the provision of the Constitution above quoted]. Section 4, of division 18th, of the Criminal Code (Gross' Stat. 1869, p. 208), provides that it shall be lawful for any judge of the supreme or circuit court, in his circuit, and any justice of the peace, in his county, "upon oath or affirmation being made before him, that any person or persons have committed any criminal offence in this State, or that a criminal offence has been committed, and that the witness or witnesses have just and reasonable grounds to suspect that such person or persons have committed the same, to issue his warrant under his hand," etc. It will have been observed that the affidavit in this record wholly omits to state, either that the person therein described committed the offence for which the warrant for his arrest was issued, or that the person at whose instance, and upon whose complaint it was issued, had just and reasonable grounds to suspect, or did in fact suspect, that he was guilty of such offence. It is true, that the recent possession of stolen property, unexplained, raises a presumption that the person in possession stole it; but this is only a rule of evidence, and the presumption may be overcome by proof showing that the possession is not inconsistent with an honest intention. The citizen is, both by the Constitution and the law, entitled to be free from arrest, by warrant on a criminal charge, until a complaint under oath or affirmation is made, charging that a crime