1902 Encyclopedia > Warrant

Warrant




WARRANT, in law, is an authority empowering a person to act in a way which would not be lawful without such authority. The term occurs very early in consti-tutional documents : it is found in the Assize of Clarendon and the Assize of the Forest, both in the reign of Henry II. A warrant must be under the hand and seal of the person issuing it, unless such formalities be dispensed with by statute. Warrants are of several kinds, and may be conveniently divided into four classes, which may be called the executive, the judicial, the financial, and the private.
Executive.—A warrant under the sign-manual of the king, countersigned by the lord chancellor or a secretary of state, is still in use for some purposes. It is the means of granting PARDON (q.v.) and letters patent (except those for inventions), and of framing certain regulations for the forces. It was by royal warrant (afterwards confirmed by Act of Parliament) that purchase of commissions in the army was abolished in 1871. By 18 Hen. VI. c. 1 letters patent are to bear the date of the king's warrant delivered to the lord chancellor. The issue of warrants under the sign-manual has been recently regulated by the Great Seal Act, 1884. Such a warrant must bear a ten-shilling stamp. Royal warrants were at one time in con-siderably more frequent use than they are at present. For instance, in 1602 the censorship of the stage was committed to the poet Daniel by royal warrant (see THEATRE). A false representation that any goods were made by a person holding a royal warrant is now punishable under the Merchandise Marks Act, 1887. The issue of warrants under the hand of a secretary of state is now, with two exceptions, confined to cases in which there is suspicion of treason or treasonable practices, and the warrant must name the person whom it is intended to arrest. The exceptions are the cases of bringing up a prisoner to give evidence under 16 and 17 Vict. a. 30, and warrants issued under the Extradition Act (see EXTRADITION). By 16 Car. I. c. 10, if any person be imprisoned by warrant of the king in person, of the council board, or any of the privy council, he is entitled to a writ of habeas corpus. By the Habeas Corpus Act, 31 Car. II. c. 2, detention on a legal warrant is good ground for refusing discharge to the prisoner on return to a writ of habeas corpus. General warrants of a secretary of state were decided to be illegal in 1763. A named person may still be committed by a secretary of state's warrant, but his papers cannot be seized (see PRESS LAWS). Power to issue warrants to search for arms and to arrest for treason or treasonable practices in Ireland has been given by various Acts, e.g., 44 Vict. cc. 4, 5, and by the Criminal Law and Procedure Act, 1887. The right of a secretary of state or the lord lieutenant in Ireland by warrant to detain or open letters in the post-office still exists, and has been recognized by orders in council and proclamations in the 17th century, and more recently by various Post-Office Acts, such as 9 Anne Q. 10, 35 Ceo. III. c. 62, 7 Will. IV. and 1 Vict. c. 36. The right was finally established by the reports of committees of both houses appointed in 1844 on a complaint by Mazzini and others that Sir James Graham, then home secretary, had opened their letters. It was exercised as
recently as 1881 over the letters of persons suspected of treasonable correspondence in Ireland. Committal for breach of privilege of the House of Commons is by war-rant of the speaker. A warrant of a law officer of the crown for sealing letters patent for invention was necessary under the old patent law, but has been superseded by other procedure since the Patents Act, 1883. The lowest form of executive warrant is the warrant of a sheriff to his bailiff in pursuance of a writ.
Judicial.—Warrants of this kind are used in either civil or criminal procedure. The only kind used in both seems to be that issued by a judge of the High Court, who has the same jurisdiction as a secretary of state under 16 and 17 Vict. c. 30. In civil procedure the warrant in a county court corresponds very nearly to the WRIT (q.v.) in the High Court. Examples of county court warrants are those of attachment, delivery, execution, and possession. The warrant of arrest in Admiralty is a form of procedure con-fined to Courts of Admiralty jurisdiction. The most im-portant and frequent use of the warrant is for the appre-hension of an accused person to be brought before a court of summary jurisdiction, either in the first instance or on failure to obey a summons (see SUMMARY JURISDICTION', SUMMONS). Such warrants are usually issued by a justice of the peace; when issued by the court they are called bench warrants. Where issued by a justice for execu-tion out of his jurisdiction, a warrant must usually be backed by another justice having jurisdiction where it is to be executed. The warrant of a justice may also issue in some non-judicial matters, e.g., for the compul sory supply of carriages under the Army Act, 1881. There are certain warrants which by common law or statute extend much further than ordinary judicial warrants. Those issued under the Fugitive Offenders Act, 1881, if duly backed, extend throughout the British empire. Warrants of a court having jurisdiction in bankruptcy run throughout the United Kingdom. A judge of the Queen's Bench Division has, both at common law and by statute, authority to issue a warrant in certain cases. Such a warrant is valid throughout England. Execution of the decisions of a court of summary jurisdiction is secured by warrants, part of the process of the court, such as warrants of distress or commitment. A warrant may also issue for the apprehension of a witness whose attendance cannot be otherwise assured. A search warrant may be granted for the purpose of searching suspected premises for stolen goods. Special powers for issuing such warrants are given by the Army, Merchant Shipping, Customs, Pawnbrokers, Stamp, and other Acts. The Criminal Law Amendment Act, 1885, allows the issue of search warrants where it is suspected that a female is unlawfully detained for immoral purposes. As a general rule no one can be arrested with-out warrant. To this rule there are certain exceptions either at common law or by statute. At common law a justice of the peace, a sheriff, a coroner, a constable, and even a private person, may arrest any one without warrant for a treason, felony, or breach of the peace committed, or attempted to be committed, in his presence. A constable (whether a constable at common law or a police constable appointed under the Police Acts) may arrest a person indicted for felony; a constable or a private person may arrest on reasonable suspicion that he who is arrested has committed a felony. But in the latter case he does so at his peril, for he must prove (what the constable need not) that there has been an actual commission of the crime by some one, as well as a reasonable ground for suspecting the particular person. What is a reasonable ground it is of course impossible to define, but, in the case of a constable, a charge by a person not manifestly unworthy of credit is generally regarded as sufficient. An accused person who

has been bailed may be arrested by his bail, and the police may assist in the arrest. In neither case is a warrant necessary. Nor is it necessary for the apprehension of one against whom the hue and cry is raised (see THEFT). The king cannot arrest in person or by verbal command, as no action would lie against him for wrongful arrest. Statutory powers of arrest without warrant are given to both constables and private persons by numerous Acts of Parliament, for instance, the Game Act of 9 Geo. IV. c. 69, various Police Acts, the Criminal Law Consolidation Acts of 1861, the Prevention of Crime Act, 1871. The possession of a legal warrant by a peace officer on arrest is of great importance in determining whether the person resisting apprehension is justified or not in so doing. Should the officer attempt to apprehend him on an illegal warrant, or without a wyarrant in a case where a warrant is necessary, and be killed in the attempt, the killing would probably be held to be manslaughter and not murder. The authorities on this point are, however, conflicting. In an action against a peace officer for arrest on an illegal warrant, he is, by 24 Geo. II. c. 44, entitled to demand perusal and a copy of the warrant. Execution of warrants in border counties of England and Scotland, and backing and execution of warrants issued in one part of the kingdom by justices and officers of another part, are specially provided for by numerous Acts of Parliament. Forms of warrants will be found in the schedule to the rules under the Summary Jurisdiction Act and the appendix to the County Court Rules, 1886.
Financial.—Payment out of the Treasury is generally made upon warrant. Treasury warrants are regulated by many of the Acts dealing with the national debt. Payment of dividends by trading corporations and companies is generally made by means of dividend warrants.
Private. —Warrants issued by private persons are either mercantile or non-mercantile. Mercantile warrants are negotiable instruments giving a right to the delivery of goods, generally those deposited at a dock or warehouse, and by mercantile custom regarded as documents of title to the goods to which they relate. They have been recog-nized by the legislature, especially in the Factors Acts (see FACTOR). Thus the interpretation clause of one of those Acts, 5 and 6 Vict. c. 39, included under the head of documents of title India warrants, dock warrants, and warehouse keepers' warrants. The forgery of any warrant or endorsement or assignment of any warrant of this kind is by 24 and 25 Vict. c. 98 punishable with a maximum penalty of penal servitude for life. The stamp on such a warrant is, with certain exceptions, threepence. Among private warrants of a non-mercantile kind those in the most frequent use are warrants of distress, by which a land-lord empowers his agent to distrain for arrears of rent.
Warrant of Attorney to confess judgment is a security for money (now practically obsolete) in the form of a war-rant to a solicitor named by the creditor, empowering him to sign judgment in an action against the debtor for the sum due, with a defeasance, or clause that the warrant shall not be put into force in case of due payment of the money secured. It was often used as a collateral security for the payment of an annuity. The Debtors Act, 1869, contained various provisions for making known to the debtor the extent of the liability incurred by him, among others that the warrant must be executed in the presence of a solicitor named by the debtor, and that it and the defeasance must be written on the same paper. A warrant of attorney must be duly stamped, generally as a MORT-GAGE (q.v.), and must be registered as a judgment in the central office of the Supreme Court.
Quo WARRANTO (q.v.) is a means of determining the right of a person to continue to hold an office.
Scotland.—By Art. xxiv. of the Articles of Union royal warrants were to continue to be kept as before the union. The Secretary for Scotland Act, 1885, enabled the crown by royal warrant to appoint the secretary to be vice-president of the Scotch Education Department. The lord advocate's warrant runs throughout the whole of Scotland. Warrants issued by courts of summary juris-diction agree in the main with those in use in England, though their names are not the same (see SUMMARY JURISDICTION). There are numerous statutory provisions as to warrants of other kinds. By 1 and 2 Vict. c. 114 warrants for diligence, and to charge the debtor under pain of imprisonment, may be inserted in an extract of decree ; and in a summons concluding for payment of money a warrant to arrest the movables, debts, and money of the defender may be included. By 31 anil 32 Vict. c. 100 a warrant of in-hibition may be inserted in the will of a summons. A crown writ is a warrant for infeftment (31 and 32 Vict. c. 101). The same Act gives forms of warrants of REGISTRATION (q.v.). The practice as to warrants of citation and commitment in the High Court of Justiciary and the sheriff court now depends chiefly on the Criminal Procedure Act, 1887, 50 and 51 Vict. c. 35. The medi-tatio fugse warrant is a judicial warrant on which imprisonment may follow until the debtor give cautio judicio sisti. It corresponds to some extent to the writ ne exeat regno of English practice, but it may be issued by a sheriff (1 and 2 Vict. c. 119). A border war-rant for arresting a debtor on the English side of the border is another kind of judicial warrant. The warrant of attorney is not known in Scotland, its place being taken by the clause of registra-tion, which has this advantage over the warrant of attorney that it is not avoided, as is the warrant, by the death of the person giving it.
United States.—By the constitutions of the United States and
of almost all the States, warrants are not to issue but upon prob-
able cause, supported by oath or affirmation, and particularly
describing the place to be searched and the persons or thing to be
seized. These provisions have been held not to mean that there
shall be no arrest without warrant, but to confine the right of
arrest to circumstances similar to those which justify it in English
law. The constitutions of some States forbid general warrants.
A warrant is generally necessary for the payment of money out of
the United States or a State treasury. (J. Wt.)


Footnotes

The warrant officer (so called no doubt from the mode of his appointment) is a distinct rank in both the army and navy. For the warrant officer in the navy, see vol. xvii. p. 293.







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