[Volume 5, Page 235]
Money v. Leach97 Eng. Rep. 1075, 1088 K.B. 1765
[Lord Mansfield]. . . . The last point is, "whether this general warrant be good."--
One part of it may be laid out of the case: for, as to what relates to the seizing his papers, that part of it was never executed; and therefore it is out of the case.
It is not material to determine, "whether the warrant be good or bad;" except in the event of the case being within 7 J. 1, but not within 24 G. 2.
At present--As to the validity of the warrant, upon the single objection of the incertainty of the person, being neither named nor described--The common law, in many cases, gives authority to arrest without warrant; more especially, where taken in the very act: and there are many cases where particular Acts of Parliament have given authority to apprehend, under general warrants; as in the case of writs of assistance, or warrants to take up loose, idle and disorderly people. But here it is not contended, that the common law gave the officer authority to apprehend; nor that there is any Act of Parliament which warrants this case.
Therefore it must stand upon principles of common law.
It is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer. This is so, upon reason and convenience.
Then as to authorities--Hale and all others hold such an uncertain warrant void: and there is no case or book to the contrary.
It is said, "that the usage has been so; and that many such have been issued, since the Revolution, down to this time."
But a usage, to grow into law, ought to be a general usage, communiter usitata et approbata; and which, after a long continuance, it would be mischievous to overturn.
This is only the usage of a particular office, and contrary to the usage of all other justices and conservators of the peace.
There is the less reason for regarding this usage; because the form of the warrant probably took its rise from a positive statute; and the former precedents were inadvertently followed, after that law was expired.
Mr. Justice Wilmot declared, that he had no doubt, nor ever had, upon these warrants: he thought them illegal and void.
Neither had the two other Judges, Mr. Justice Yates, and Mr. Justice Aston, any doubt (upon this first argument) of the illegality of them: for, no degree of antiquity can give sanction to a usage bad in itself. And they esteemed this usage to be so. They were clear and unanimous in opinion "that this warrant was illegal and bad."
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