Leach v. Money (1763), 19 State Trials 981

The General Warrant, 1763

[The action taken by the authorities here was directed against the publisher of the North Briton, the mouthpiece of John Wilkes, radical populist Member of Parliament who was considered a veritable "thorn in the flesh" of the government elite in Britain]

George Montague Dunk, earl of Halifax, viscount Sunbury and baron Halifax, one of the lords of his majesty's most honourable privy council, lieutenant general of his majesty's forces, and principal secretary of state: these are in his majesty's name to authorize and require you (taking a constable to your assistance) to make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper, intitled, The North Briton, No. 45, Saturday, April 23, 1763, printed for G. Kearsley in Ludgate-street, London, and them, or any of them, having found, to apprehend and seize, together with their papers, and to bring in safe custody before me, to be examined concerning the premisses, and further dealt with according to law: and in the due execution thereof, all mayors, sheriffs, justices of the peace, constables, and all other his majesty's officers civil and military, and loving subjects whom it may concern, are to be aiding and assisting to you, as there shall be occasion; and for so doing this shall be your warrant. Given at St. James the 26th day of April, in the third year of his majesty's reign. DUNK HALIFAX.

        To Nathan Carrington, John Money, James Watson, and Robert Blackmore, four of his majesty's messengers in ordinary.

Leach v. Money (1765) 19 State Trials 1026

Chief Justice Lord Mansfield's judgement

LORD MANSFIELD - . . . At present - as to the validity of the warrant, upon the single objection of the incertainty of the person, being neither named or 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 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 sanctions 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.