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spies and informers; that such an enquiry, even when conducted in the discreetest manner, might injure the most virtuous in their reputation and fortune. That if a general warrant for seizing the authors, printers, and publishers of a libel, seditious and treasonable in the eye of a minister, was liable to so many objections, one for seizing their papers was still more so . . . since in that case, all a man's papers must be indiscriminately examined, and such examination may bring things to light which it may not concern the public to know, and which yet it may prove highly detrimental to the owner to have made public; that of this there had happened a most flagrant instance in the case of one of these persons, the apprehension of whom and of his papers had originally given rise to this debate; some letters of his, no way relative to the public, having transpired soon after the execution of the warrant against him and his papers. That the cases, if any, in which it might be proper to endeavour to secure, by a general warrant, the persons, and by almost any warrant, the papers of those concerned, might be seasonably enough remedied, and even prevented, by the presentment of a grand jury; or, at worst, an information in the court of King's Bench. Such were the arguments now urged against ministers too freely attributing treason to libels.

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April 25..... The House was moved, that the resolution of the House, of Tuesday last, "That a General Warrant for apprehending the author, printer, or publisher, of a libel, is illegal; and, if executed on the person of a member of this House, is also a breach of the privilege of this House;" might be read. And the same being read accordingly: an amendment was proposed to be made to the question, by inserting, after the word "illegal," these words, "except in cases provided for by act of Parliament." And the said amendment was, upon the question put thereupon, agreed to by the House.

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1054. FRANCIS LIEBER. Civil Liberty and Self-Government. (1853. 3d ed., 1874, p. 62.) . . . The prohibition of "general" warrants. The warrant is the paper which justifies the arresting person to commit so grave an act as depriving a citizen (or alien) of personal liberty. It is important, therefore, to know who has the right to issue such warrants, against whom it may be done, and how it must be done, in order to protect the individual against arbitrary police measThe Anglican race has been so exact and minute regarding this subject, that the whole theory of the warrant may be said to be peculiarly Anglican, and a great self-grown institution. . . . The warrant should name the person against whom it is directed; if it does not, it is called a "general" warrant. A warrant to apprehend all persons suspected, or all persons guilty, etc. etc., is illegal. . . . The law on this momentous subject was laid down by Lord MANSFIELD in the case of Money v. Leach, 3 Burrow's Rep. 1742, where the "general warrant" (which had been in use since the Revolution), directing the officers to apprehend the "authors, printers, and publishers" of the famous No. 45 of the North Briton, was held to be illegal and void.

Anglican liberty does not allow the "general" warrant. Where it is allowed, there is police government, but not the government for free men. . . . Indeed, we may say the special warrant is a death-blow to police government.

1055. CONSTITUTION OF ILLINOIS. (1818, Bill of Rights, Art. VIII, § 7; 1870, Art. II, § 6.) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by

affidavit, particularly describing the place to be searched, and the persons or things to be seized.

REVISED STATUTES. (1874, ch. 38.) Div. VII, Arrest. § 4. If the name of the defendant is unknown to the complainant or judge or justice of the peace, he may be designated [in the warrant] by any name, description or circumstance by which he can be identified with reasonable certainty, and if, upon arrest, he refuses to disclose his true name, he may be tried and convicted by the name used in the warrant.

1056. COMMONWEALTH v. CROTTY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1865.
10 Allen 403

INDICTMENT for riot. At the trial in the superior court, before BRIGHAM, J., the grounds on which the district attorney relied were as follows: Calvin Peaslee had made a complaint to the Police Court of Lee, charging that "John Doe or Richard Roe, whose other or true name is to your complainant unknown," had committed an assault and battery upon him; upon which complaint a warrant, which was attached to the complaint, was issued against "John Doe or Richard Roe, whose other or true name is to your complainant unknown, named in the foregoing complaint." Neither the complaint nor the warrant contained any further description as means of identification of the person to be arrested. Upon this warrant, a deputy sheriff with assistants proceeded to arrest Morris Crotty, one of the present defendants, as the real person chargeable. Crotty resisted the arrest on the ground that the warrant was invalid, and the other defendants aided him. The officer testified that he did not rely upon any description in the warrant, but upon information otherwise obtained, for the identification of Crotty.

The judge instructed the jury that the above warrant authorized the arrest of Crotty, provided he was the person accused in the complaint attached to the warrant, notwithstanding the complaint or warrant did not contain his name, any description of his person, or any statement of the reason why his person was not described, and notwithstanding the person accused was described as "John Doe or Richard Roe;" and that Crotty's assault upon and resistance of the officer were unlawful acts. . . . The jury returned a verdict of guilty against some of the defendants, and they alleged exceptions.

M. Wilcox (I. Sumner with him,) for the defendants.

J. C. Davis, for the Commonwealth, submitted the case without argument.

BIGELOW, C. J. We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of the defendants at the time of the alleged riot was insufficient, illegal and void. It did not contain

the name of the defendant, nor any description or designation by which he could be known and identified as the person against whom it was issued. It was in effect a general warrant, upon which any other individual might as well have been arrested, as being included in the description, as the defendant himself. Such a warrant was contrary to elementary principles, and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of Rights, art. 14, which declares that every subject has a right to be secure from all unreasonable searches and seizures of his person, and that all warrants, therefore, are contrary to this right, if the order in the warrant to a civil officer to arrest one or more suspected persons or to seize their property be not accompanied with a special designation of the persons or objects of search, arrest or seizure. This is in fact only a declaration of an ancient common law right. It was always necessary to express the name or give some description of a party to be arrested on a warrant; and if one was granted with the name in blank, and without other designation of the person to be arrested, it was void. 1 Hale P. C. 577; 2 Ib. 119; Foster, 312, 7 Dane Ab. 248; 1 Chit. Crim. Law, 39; Mead v. Haws, 7 Cow. 332, and cases cited.

This rule or principle does not prevent the issue and service of a warrant against a party whose name is unknown. In such case the best description possible of the person to be arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circumstances by which he can be identified. 1 Chit. Crim. Law, 39, 40.

The warrant being defective and void on its face, the officer had no right to arrest the person on whom he attempted to serve it. He acted without warrant and was a trespasser. The defendant whom he sought to arrest had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer.

The instructions under which the case was submitted to the jury did not meet this aspect of the case. It must therefore go to a new trial. Exceptions sustained.

1057. TIDBALL v. WILLIAMS

SUPREME COURT OF ARIZONA. 1885

2 Ariz. 50, 8 Pac. 351

APPEAL from a judgment of the District Court of the First Judicial District in and for the county of Cochise. Reversed. The facts are stated in the opinion.

J. A. Zabriskie and J. A. Anderson, for Appellants. The only questions presented by the record are: (1) Can a warrant be issued for the arrest of an offender against the laws of the United States, in

Arizona, without specifying the true name of the offender, when the true name is unknown to the magistrate issuing the warrant? Section 1014 of the revised statutes of the United States provides that the arrest may be made, agreeably to the usual mode of process against said offender in such State. Section 89, chapter 2, of the compiled laws of Arizona, provides as follows: "The warrant must specify the name of the defendant, or if it be unknown to the magistrate, the defendant may be designated therein by any name." . . Thomas Mitchell, for Respondent.

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HOWARD, C. J. The only questions presented by the record in this case were: First. Is the United States marshal justified in making the arrest of a defendant, within his territory, who is described in the warrant by a fictitious name? We hold that he is, and that the marshal assumes only the risk and responsibility, in execution of such a warrant, of arresting the right man. If the marshal acts in good faith, and exercises due care, the defendant cannot complain. In this case it is not contended that the marshal arrested the wrong man. It is apparent that the respondent was the man complained of, and against whom the complaint was filed, although designated by a fictitious name. The suit against the marshal for false imprisonment, based upon the fact that defendant was not described in the warrant by his correct name, cannot be maintained. Section 1014, Rev. St. U. S., with section 89, c. 2, Comp. Laws Ariz., settle this question clearly in favor of the justification of the appellant in making the arrest.

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For these reasons the judgment of the court below is reversed, and the case remanded to the trial court for a new trial. FITZGerald, J., concurring.

(3) General Warrant; Documents and Chattels

1058. ENTICK v. CARRINGTON

COMMON PLEAS. 1765

19 How. St. Tr. 1029

IN trespass; the plaintiff declares that the defendants on the 11th day of November in the year of our Lord 1762, at Westminster in Middlesex, with force and arms broke and entered the dwellinghouse of the plaintiff in the parish of St. Dunstan, Stepney, and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, &c. thereto affixed, and broke open the boxes, chests, drawers, &c. of the plaintiff in his house, and broke the locks thereto affixed and searched and examined all the rooms, &c. in his dwelling-house, and all the

boxes, &c. so broke open, and read over, pried into and examined all the private papers, books, &c. of the plaintiff there found, whereby the secret affairs, &c. of the plaintiff became wrongfully discovered and made public; and took and carried away 100 printed charts, 100 printed pamphlets, &c. &c. of the plaintiff there found, and other 100 charts, &c. &c. took and carried away, to the damage of the plaintiff 2,000l.

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The defendants plead, first, not guilty to the whole declaration, whereupon issue is joined. 2dly, as to the breaking and entering the dwelling-house. . . . the defendants say, the plaintiff ought not to have his action against them, because they say, that before the supposed trespass on the 6th of November, 1762, and before, until, and all the time of the supposed trespass, the earl of Halifax was, and yet is one of the lords of the king's privy council, and one of his principal secretaries of state, and that the earl before the trespass on the 6th of November, 1762, made his warrant under his hand and seal directed to the defendants. ... the tenor of which warrant produced in evidence to the jurors, follows in these words and figures:

"George Montagu Dunk, earl of Halifax, viscount Sunbury, and baron Halifax, one of the lords of his majesty's honourable privy council, lieutenant general of his majesty's forces, lord lieutenant general and general governor of the kingdom of Ireland, and principal secretary of state, &c., 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 John Entick, the author, or one concerned in writing of several weekly very seditious papers, intitled the Monitor, or British Freeholder, No. 357, 358, 360, 373, 376, 378, 379, and 380, London, printed for J. Wilson and J. Fell in Pater Noster Row, which contain gross and scandalous reflections and invectives upon his majesty's government, and upon both houses of parliament; and him having found you are to seize and apprehend, and to bring, together with his books and papers, in safe custody before me to be examined concerning the premisses, and further dealt with according to law; in the due execution whereof all mayors, sheriffs, justices of the peace, constables, and 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's the 6th day of November, 1762, in the third year of his majesty's reign, Dunk Halifax. To Nathan Carrington, James Watson, Thomas Ardran and Robert Blackmore, four of his majesty's messengers in ordinary."

The jurors found that the earl caused this warrant to be delivered to the defendants to be executed. And that the defendants afterwards on the 11th of November, 1762, at 11 o'clock in the day time, by virtue and for execution of the warrant, but without any constable taken by them to their assistance, entered the house of the plaintiff, the outer door thereof being open, and the plaintiff being therein, to search for and seize the plaintiff and his books and papers, in order to bring him and them before the earl, according to the warrant; and the defendants did then find the plaintiff there, and did seize and appre

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