§ 2. II. Search-warrants, though little noticed in our books, occur daily in practice, and often create danger, as well as difficulty, to the magiftrate, who is not verfant in business. SEARCH WARRANT evidence is REGULARLY, a fearch-warrant is granted upon the procu- Upon what rator-fiscal's application, or the private party's, with the con- it granted? courfe of the procurator-fifcal. However fuch concurrence is not indifpenfible. That officer may not be on the fpot; he may refide in a diftant part of the county, or be from home at the time; and thofe affairs do not admit of delay. Though the fearch-warrant may be granted on the party's figned information, yet it may be proper to take his oath as to the reality and grounds of his fufpicion, and the particular places which he wishes to be fearched. This precaution is particularly adviseable, if the party himself does not subfcribe the application, but his man of bufinefs only. However, though extremely proper, it cannot, in our practice, be faid to be indifpenfible, as it feems to be in the English a. ANY one juftice of peace, or other magiftrate, may grant who may a warrant to fearch. The warrant ought to be dated, and grant. must be fubfcribed by the magistrate in whose name it runs. Form of the It should also bear his defignation, and the county, as well warrant. as fpecial cause for which it is given; which formalities, however, excepting only the magiftrate's fubfcription, cannot be faid to be abfolutely indifpenfible to the validity of the warrant ". THE warrant must be particular as to the place or places to be fearched. General warrants to fearch all suspected places, are reprobated both in the English and Scottish law. Thus lord chief-juftice Hale fays, a general warrant to search for felonies or stolen goods is not good . $2. SEARCH WARRANT. When fore the HAWKINS fays, "I do not find any good authority that a "justice can justify fending a general warrant to search all "suspected houses in general for stolen goods, because such "warrant seems to be illegal in the very face of it; for it "would be extremely hard to leave it to the difcretion of a common officer to arrest what persons, and search what ❝houses, he thinks fit; and if a justice cannot legally grant "a blank warrant for the arrest of a fingle perfon, leaving "it to the party to fill it up, furely he cannot grant such general warrant, which might have the effect of an hun"dred blank warrants"." AGAIN, lord chief-juftice Hale expreffes himfelf thus: "I "do take it, that a general warrant to search in all suspect"ed places is not good; but only to search in fuch particu"lar places, where the party affigns, before the justice, his "fufpicion, and the probable cause thereof; for these war<< rants are judicial acts, and must be granted upon exami "nation of the fact b." AND therefore, he fays, thofe general warrants dormant, granted be- which are made before any felony committed, are not justicrime be fiable; for it makes the party to be in effect the judge; and therefore fearches made by pretence of fuch general warrants, give no more power to the officer or party, than what they may have by law without them. committed. Warrant to break open doors. man's A SEARCH-WARRANT to break the doors of open any house to fearch for a felon, or for ftolen goods, cannot be granted upon a bare furmife; and it would be full of inconvenience, that it should be in the power of any juftice of the peace, being a judge of record, upon a bare suggestion, to break the house of any person, of what state, quality, or degree, foever, either on the day or night upon fuch furmifes d b Hale's Hift. 150. Burn, c Ibid. a 2 Hawk. 82, 84. Burn, Search warrant. d Coke, 4 Inft. 1777. Burn. § 2. BUT, in cafe of a complaint and oath made, that stolen SEARCHgoods are fufpected to be in fuch houfe, the juftice, when he WARRANT. has learned the cause of fufpicion, may grant a warrant to fearch in those fufpected places mentioned in his warrant; and to attach the goods, and the party in whofe cuftody they are found, and bring them before him, or fome other justice, that he may give an account how they came into his poffeffion; and farther, abide the order of law ". virtue of AND by 22 Geo. III, c. 58, on complaint made on oath before one juftice, that there is reason to fufpect that ftolen Search, in goods are knowingly concealed in any houfe or place, he 22 Geo. III, may, by his warrant, cause such house or place to be fearch- c. 58. ed in the day-time; and the perfon knowingly concealing fuch stolen goods, or in whose cuftody the fame fhall be found, he being privy thereto, fhall be deemed guilty of a misdemeanour, and may be brought before any juftice; and on conviction, may be punished by fine, imprisonment, or whipping, as the quarter feflions, (who are empowered to try fuch offenders) or any other court before whom he fhall be tried, fhall think fit to inflict. SEARCH-WARRANTS, by particular ftatute, in the cafe of journeymen abstracting materials of their work, will fall more properly to be noticed afterwards. directed? THE warrant ought to be directed to the conftable, or To whom other known officer, and not to any private person, though the party may very properly accompany the officer, and affift, because he knows his own goods. WITH refpect to the time of granting fearch-warrants, Search, is it 22 Hales" Hift. 113, 150. Burn, 9. Search-warrant. cem. b 2 Hales' Hift. 151. Burn, ad vo in the daytime only? § 2. SEARCH lord-chief-juftice Hale obferves, that it is convenient fuch WARRANT. Warrants do require the fearch to be made in the day-time; and though, his lordship adds, "I will not affirm, that they "are unlawful without that reftriction, yet they are very "inconvenient without it; for many times, under pretence "of fearches made in the night, robberies and burglaries "have been committed, and at beft it creates great disturb"ances." However, in cafe not of probable fufpicion only, but of positive proof, it is fometimes right to execute the warrant in the night-time, left the offenders may have removed with their goods before morning ». What must the justice with the goods recovered? : On the return of the warrant executed, if it appear the of peace do goods were not ftolen, they are to be reftored to the poffeffor if it appear they were ftolen, they are not to be delivered to the proprietor, but depofited in the hands of the sheriff or conftable; in order that the party robbed may proceed, by indicting and convicting the offender, to have reftitutionc. If stolen, If the party, in whofe cuftody the goods are found, be fufpected to have been either guilty of the theft, or in the knowledge of the goods being ftolen, he must be committed for trial; in the one cafe as thief, in the other as refetter. but not by If he appear not to have been in the knowledge that the the party? goods were ftolen, he cannot be committed for trial; but may be bound over as a witness against the person from whom he got them. If it appear the goods were not stolen, he must be discharged d. THE mode of executing the warrant, and When doors may or may not be broken open, have been already confidereda. III. THIS very important fubject of the taking the persons of delinquents, in order that fecurity may be had for their answering to the charge that ftands against them, has already come, in part, under our view, in confidering the duties of conftables. Here, however, it again occurs as the duty, not of constables and other officers exclufively, but of magistrates themselves, who, befides their peculiar powers, have thofe of their officers alfo; and moreover of private individuals likewise, whose aid they may require, or who, without fuch order, or the prefence of any magiftrate, may have been eye-witneffes of the fact. An arreft thus may take place either with or without a warrant. $2. SEARCH- § 3. ARREST. OUT A Officers. ANY juftice of peace, fheriff, or other magiftrate, even a -WITHbaron-bailie, feeing a felony, a riot, or other breach of the peace, committed in his prefence, or having certain information from thofe who witneffed it, may, in his own Magiftrates perfon, apprehend the offender. The powers of conftables, as conservators of the peace, to arrest without any warrant, have been already explained. The duty and power of private perfons cannot be laid down with fuch precision and certainty as could be wifhed. However, we may fafely state, that in the cafe of any felony, fuch as murder, robbery, theft, or dangerous wound, private individuals who happen to dividuals. be prefent, or have certain information of the crime from those who faw it committed, may, and indeed are bound, to arreft the offenders, who might otherwife efcape . In Eng- English land, "all perfons who are prefent, when a felony is com→ "mitted, or dangerous wound given, are bound to appre a Book i, c. 8; § 3 and 5. The powers of a baron-bailie are abolished by 20 Geo. II, only to the eff. &t of trial and fentence. Hume, Ibid. p. 117. Private in law. |