250. Judicial Commissions not to cease on the Demise of the Crown

(1760. I George III. c. 13. 23 S. L. 292.)

BE it enacted by the king's most excellent Majesty, by

and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that all persons who were justices of the peace at the time of the demise of His said late Majesty king George the Second, or who shall be justices of the peace at the time of the demise of His present Majesty, or any of his successors, kings or queens of this realm, or shall afterwards be appointed justices of the peace by any commission granted, or which shall be granted, by his said present Majesty, or which, after his demise, shall be granted by any of his successors, kings or queens of this realm, and who shall take the oaths of office of a justice of the peace, for any county, city and county, town and county, riding, or division, before the clerk of the peace of the respective county, city and county, town and county, riding, or division, for which any such justice or justices of the peace shall act, or intend to act, or the deputy of such respective clerk of the peace, and who shall have taken and subscribed at some general or quarter sessions of the peace the said oath, by the said herein before in part recited act, of the eighteenth year of His said late Majesty's reign, directed and required to be there taken and subscribed, shall and may act as a justice of the peace for such county, city and county, town and county, riding, or division, without being obliged to take and subscribe again the said oath, without incurring any penalty or forfeiture, for the not taking and subscribing thereof; the said herein before in part recited act, or any other statute, law, or usage to the contrary thereof in any wise notwithstanding: and that all acts, matters, and things, done or to be done, by all and every such justice and justices, or by authority derived, or to be derived, from him or them, are and shall be deemed and taken to all intents and purposes to be of the same force, effect, and validity, to all intents and purposes, as the same respectively would have been, if such person or persons had taken and subscribed such oath, by the said herein before in part recited act required to be

taken and subscribed, at some general or quarter sessions for such county, city and county, town and county, riding or division, for which he or they did or should act, or intend to act.

251. Camden's Decision against General

HIS

Warrants

(1763. 19 State Trials, 1067.)

[IS lordship then went upon the warrant, which he declared was a point of the greatest consequence he had ever met with in his whole practice. The defendant claimed a right, under precedents, to force persons' houses, break open escrutores, seize their papers, etc. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.

And as for the precedents, will that be esteemed law in a secretary of state which is not law in any other magistrate of this kingdom? If they should be found to be legal, they are certainly of the most dangerous consequences; if not legal, must aggravate damages.

It is my opinion the office precedents, which had been produced since the Revolution, are no justification of a practice in itself illegal, and contrary to the fundamental principles of the constitution; though its having been the constant practice of the office, might fairly be pleaded in mitigation of damages.

252. Mansfield's Decision against General

Warrants

(1764. 19 State Trials, 1026-1027.)

THE last point is, 'whether this general warrant be good.'

At present as to the validity of the warrant, upon the single objection of the incertainty of the person, being neither named nor 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 such 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 the only 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.

Mansfield's Decision

253. Somerset's Case.

THE

(1771. 20 State Trials, 82.)

“HE only question before us is, whether the cause on the return [to a habeas corpus] is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

254. Dunning's Resolution

(1780, April 6. Resolution of the House of Commons. 21 Parliamentary History, 347.)

I. "THAT it is the opinion of this committee, that it is necessary to declare, that the influence of the crown has increased, is increasing, and ought to be diminished."

II. "That it is competent to this house, to examine into, and to correct, abuses in the expenditure of the civil list revenues, as well as in every other branch of the public revenue, whenever it shall appear expedient to the wisdom of this house so to do."

255. Dissolution of Parliament does not impair Impeachment.

R.

(1790, December 20. 28 Parliamentary History, 1035.)

V by this house, in the name of the commons of Great Britain, in the parliament assembled, and of all the commons of Great Britain, against Warren Hastings, Esq., late governor general of Bengal for sundry high crimes and misdemeanours is now depending." Passed.

WHE

256. Fox's Libel Act

(1792. 32 George III. c. 60. 37 S. L. 627.)

HEREAS doubts have arisen whether on the trial of an indictment or information for the making or publishing any libel, where an issue or issues are joined between the king and the defendant or defendants, on the plea of not guilty pleaded, it be competent to the jury impanelled to try the same to give their verdict upon the whole matter in issue; be it therefore declared and enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that, on every such trial, the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed, by the court or judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of a sense ascribed to the same in such indictment or information.

II. Provided always, that, on every such trial, the court or judge before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the king