inferior courts the following propositions appear to be warranted by the authorities:

1st. If the record does not show upon its face the facts necessary to give the court jurisdiction, they will be presumed not to have existed; but this presumption may be rebutted and the jurisdictional facts established by extrinsic evidence.

*2d. If the record recites the facts which are [371 preliminary, or conditions precedent to the right to hear and determine the merits of the cause, it is prima facie evidence only of their existence, and may be disproved by extrinsic evidence.

3d. If the record recites facts essential to jurisdiction, which must necessarily be considered and decided in determining the merits of the cause, it is as to them conclusive, and cannot be contradicted collaterally.

4th. When the facts required to confer jurisdiction are sufficiently established, the records of inferior courts have the same conclusiveness as those of superior courts, and are aided by the same presumptions.

SECTION VI.

GENERAL WARRANTS.

General warrants, either to arrest persons suspected of crime or to search suspected places for stolen or contraband goods, without describing the particular person to be arrested or the place to be searched, were undoubtedly contrary to the spirit of English liberty and the principles of the common law.' But they were not unfrequently granted.'

It was not, however, until 1763 that their legality was brought in question in the higher courts. In that year,

in the case of Wilkes v. Wood,' Lord Camden appears

1 2 Hale 150; 2 Hawk. 132.

2 4 Burns' J. 130.

3 Loft. 18.

to have avowed his opinion of their illegality. In 1765 372] in the case of Money v. *Leach,' Lord Mansfield and the whole court declared the general warrants to seize the person, unless in cases specially authorized by acts of Parliament, were illegal and void; and yet the point really decided in that case was that the warrant had not been well executed. "On the 22d of April, 1766, the House of Commons passed a resolution condemning general warrants, in the case of libels; and lest this limitation should impliedly authorize the use of them upon other occasions the House, three days afterwards passed another vote, by which they were declared to be universally illegal."'*

But before these resolutions in the House of Commons, and before the decision of these cases, in the British courts, the oppression of general warrants was felt in America and was resisted with that jealous and dauntless spirit which the ardent and enlightened love of liberty of the colonists could not fail to inspire.

To enforce the Acts of Trade "writs of assistance" had been granted to the officers of the customs, who in some instances exercised their power under them wantonly and with the most exasperating insolence.

These writs possessed the odious features of general warrants-indefinite, transferable, discretionary and irreturnable destested engines of oppression.

The people grew uneasy; the legality of the warrants was denied. Upon application made to the court at Boston in February, 1761, by one of the custom-house officers for such writ an exception was taken to the application.

373] *A day was assigned for the discussion of the question, when Otis, the champion of the people, before the court and a crowded auditory, with a "tongue of flame and the inspiration of a seer," reasoned of justice, popular rights and liberty to come.

13 Burr. 1743.

2 Hawk. 131, n.

His argument convinced and restrained the court for a season, but its real triumph was in the sacred fire which it kindled in the hearts of the people, for although uttered more than fifteen years before the Declaration of Independence, it was nevertheless a most thrilling strain in the noble prelude of the great drama of the revolution.'

It mattered not that the court, disregarding the law, subsequently granted the writs. The people were convinced of their illegality, and the use of them served to show a purpose to oppress and prepare the minds of the colonists to resist it.

On the formation of the Constitution of the United States it was thought expedient to subject a power so liable to abuse to constitutional restraint. It was accordingly provided by the fourth article of the Amendments to the Constitution that:

"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 warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized."

*SECTION VII.

[374

REQUISITES OF SPECIAL WARRANTS.

1. The direction.

2. The name of the accused.

3. The offence, how described and supported.

4. The conclusion,

5. The signature and seal.

1. The direction.

The warrant should be directed to

some person or officer legally authorized to execute it.

1 Hutch. History Mass. Bay, 92; 4 Bancroft, 414; 2 John Adams' Works, App. A, 521.

The executive officer of the court or magistrate from which the process issues is the most proper party to execute it.'

It may be directed to any one of a class of officers without naming him, if the court or magistrate can lawfully command a member of such class, e. g., a justice's warrant may be directed "to any constable of," &c.'

A warrant to arrest, if there be no statutory limitation, may be directed to some indifferent person by name, who is no officer, but who thereby becomes authorized though not compelled to execute it."

If it be directed to no one, but be generally to take the defendant to jail, it will be void and the prisoner will be discharged on habeas corpus.*

375] *2. The name of the accused. The warrant must not be general, to apprehend all persons suspected; but must be specific to apprehend some particular individual, otherwise it will be void; and the reason is it is the duty of the court or magistrate and not of the executive officer to judge of the ground of suspicion."

If the name of the person to be apprehended be unknown, there must be employed in the place of it some personal description by which he may be identified."

If the name inserted be not the right one, or be fic

1 1 Salk. 381; 1 Chit. Cr. L. 38; 2 Ld. Raym. 1192; 4 Bl. Com. 291. 21 East P. C. 320; 1 Chit. Cr. L. 49; 6 Binn. 123.

32 Hawk. P. C., ch. 13, sec. 27; 1 Ch. Cr. L. 38; 1 Hale P. C. 581; 2 Hale P. C. 110; 1 Salk. 347; 3 Wend. 350; Kelsey v. Parmlee, 15 Conn. 265; Meek v. Pierce, 19 Wis. 321.

4 Rex v. Smith, 2 Str. 934; Russell v. Hubbard, 6 Barb. Sup. Ct. 654; In re Charles Smith, 3 Hurl. & Nor. 225; Ex parte Dobson, 31 Cal. 497; Abbot r. Booth, 51 Barb. 546; 1 Bishop's Criminal Procedure, 2d ed. 188. A warrant issued by order of the Senate of the United States, for the arrest of a witness for contempt, in refusing to appear before a committee of the Senate, and addressed only to the sergeant-at-arms of the Senate, cannot be served by deputy in Massachusetts. Sanborn v. Carleton, 15 Gray, 399.

5 4 Bl. Com. 291; 1 Hale P. C. 580; 1 Chit. Cr. L. 41; 2 Burr. 1766; 1 Bl. Rep. 555; 2 Wils. 151; Gosline v. Place 32 Penn. 520; Herrick v. Smith, 1 Gray, 50.

1 Ch. Cr. L. 39, 40; 1 Hale P. C. 577; The State v. Munson, Hall's Jour Juris. 257; 1 Russ. Cr. L. 619.

titious merely, the arrest cannot be justified, even though the person arrested be the one intended; unless indeed, he is known as well by the name in the warrant as by his true name.'

If blanks are left to be filled with the names after the warrant is delivered to the officer, the warrant will be void.'

Names may, however, be inserted at any time before the warrant is delivered."

It seems that the omission of the christian name will render the warrant void, though the accused was described " 66 Hood, of the parish of F., son of

*Samuel Hood."*

[376

3. Statement of the offence and how supported. — It is a general rule that the offence must be stated with reasonable certainty and be supported by oath or affirmation.

In considering this rule it is to be observed that the distinction already noticed, between superior and inferior courts in respect to their judgments, applies also to their process; and that the process of the former is favored by certain legal presumptions of regularity which are not accorded to that of the latter.

L. Of the statement in process emanating from inferior courts, or from officers exercising a special statutory jurisdiction.

I. The offence must be stated with reasonable certainty."

In 1627 the judges of England, in answer to a question from the King, declared that: "Upon a habeas corpus, brought by one committed by the King, if the cause be not specially or generally returned, so as the

1 Shadgett v. Clipson, 8 East, 328; 6 Cow. 456; 7 id. id. 555; 9 id. 320; 2 Taunt. 400; 1 Arch. 33, note 1; Gr. 775.

21 Ch. Cr. L. 39; 2 Hale P. C. 114; Fost. 312.

332; 3 Wend. 350; 4 Hoye v. Bush, 1 M. &

32 Leach, 929; The King v. Winwick, 8 T. R. 454; 1 East P. C. 324.

4 Rex v. Hood, 1 Moody C. C. 281; see also Wells v. Jackson, 3 Mumford,

458; Com v. Crotty 10 Allen 403; Mean v. Haws 7 Cow. 332.

5 Bac. Abr., tit. Commitment, E.; Hale P. C. 94; 2 Inst. 52; 2 Hawk. P. C., ch. 16, sec. 16.