1911 Encyclopædia Britannica/Warrant
WARRANT (Med. Lat. warantum; O. Fr. garant, warant, derived from O.H.G. root represented in modern German by gewähren), in English law, an authority in writing empowering a person to do an act or to execute an office. The procedure known as quo warranto (q.v.) is used to determine the right to hold certain kinds of public office. The term “warrant” occurs very early in constitutional documents: it is found in the Assize of Clarendon and the Assize of the Forest, both in the reign of Henry II., but in neither case in its modern meaning. The original meaning seems to have been more akin to guarantee (q.v), warranty or security, and to some extent the term implies something in the nature of a guarantee or representation by the person issuing the warrant that the person who acts on it can do so without incurring any legal penalty. The term is applied to a great variety of documents of very different kinds, which may be classified as (1) executive or administrative, (2) judicial or quasi-judicial and (3) financial or commercial.
1. Executive and Administrative.—While the royal prerogative was insufficiently defined and limited, a great many executive acts were authorized by royal warrant (per speciale mandatum regis), which now either depend on statute or are dealt with by departments of state without the need of recourse to the personal authority of the sovereign. Under present constitutional practice royal warrants are as a general rule countersigned by a member of the cabinet or other responsible officer of state. By an act of 1435 (18 Hen. VI. c. 1) letters patent under the great seal must bear the date of the royal warrant delivered to the chancellor for their issue. This act still applies to all patents, except for inventions. The form and countersignature of warrants for affixing the great seal is regulated by the Great Seal Act 1884. Pardon, which was granted for centuries only by letters patent under the great seal, has since 1827 in England and 1828 in Ireland been granted in case of felony by warrant under the royal sign manual countersigned by a secretary of state (7 & 8 Geo. IV c. 28, s. 13, 9 Geo. IV. c. 54, s. 33) The prerogative of the crown with reference to the control of the navy and army is largely exercised by the issue of warrants. In 1871 the purchase of commissions in the army was abolished by royal warrant, said to have been authorized by statute (49 Geo. III. c. 126), but afterwards confirmed by parliament (34 & 35 Vict. c. 86). Under existing legislation for the government of the military forces of the crown royal warrants are used to form army corps, to deal with certain details as to pay and regimental debts, and with the militia and reserve forces. The convocation of naval courts-martial and the appointment of judge-advocate and provost-marshal at such court is by warrant of the Admiralty or of the officer on foreign or detached service who by his commission is entitled to convene such a court (see Naval Discipline Act 1866, s. 58; Army Act 1881, s. 179). A general court-martial for the army is constituted by royal warrant or convened by an officer authorized to convene such court, or his lawful delegate (Army Act 1881, s. 48). Appointments to certain offices under the crown are made by warrant of the king or of the appropriate department of state. In the navy and army the officers called warrant officers are so styled because they are appointed by warrant and do not hold commissions. In 1602 the censorship of the stage was committed to the poet Daniel by royal warrant (see Theatre), and certain tradesmen to the court are described as “warrant holders,” because of the mode of their appointment. Abuses of claims to this distinction are punishable (Merchandise Marks Act 1887, s. 20; Patents Act 1883, s. 107). Warrants under the royal sign manual are subject to a ten-shilling stamp duty (Stamp Act 1891). The issue of warrants under the hand of a secretary of state, so far as they affect personal liberty, depends in every case on statute, e.g. as to the surrender of fugitive criminals (Extradition), or the deportation of undesirable aliens (see Alien), or the bringing up prisoners as witnesses in courts of justice. The right of a secretary of state or the lord-lieutenant in Ireland by express warrant in writing to detain or open letters in the post office was recognized by orders in council and proclamations in the 17th century and by various post office acts, and is retained in the Post Office Act 1836 (s. 25). The right was challenged, but 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. The warrant of a law officer of the crown for sealing letters patent for invent ions (necessary under the old patent law) has been superseded by other procedure since the Patents Act 1883.
2. Judicial and Quasi-Judicial Warrants.—Unless a statute otherwise provides a judicial warrant must be in writing under the seal, if any, of the court, or under the hand and (or) seal of the functionary who grants it. Committal for breach of privilege of the House of Commons is by warrant of the Speaker. During the Tudor and Stuart reigns frequent attempts were made by the crown and great officers of state to interfere with personal liberty, especially as to offences of state. The legality of these proceedings was challenged by the judges in Elizabeth's reign. On the abolition of the Star Chamber it was enacted (16 Car. I c. 10) that 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, and the courts may examine into the legality of the cause of detention. This enactment, and the Habeas Corpus Act 1679, put an end to the interference of the executive with matters belonging to the judicature; but until 1763 there survived a practice by which a secretary of state issued warrants to arrest individuals for state offences, and to search or seize the books and papers of the accused. The latter practice was examined and declared illegal in the famous case of Entick v. Carrington (19 How. St. Tr. 1030). All privy councillors are included in the commission of the peace for every county. The council itself is said to have power to issue warrants of arrest for high treason, but the power, if it exists, is in abeyance in England. The special powers given to the lord-lieutenant of Ireland in 1881 (44 & 45 Vict. c. 5) expired in 1906. As a result of the gradual restriction of the royal prerogative, the term warrant has come in modern times oftenest to be used of documents issuing from courts of justice. Few documents issuing from the superior courts are called warrants. In these courts writs and orders are more generally used. In courts of record which try indictments a “bench warrant” is sometimes used for the arrest of an absent defendant, but the word warrant has for judicial purposes become most closely associated with the jurisdiction of justices of the peace. As a general rule no one can be arrested without 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 most 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. 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 many statutes, e.g. the Night Poaching Act 1828, certain of the Criminal Law Consolidation Acts of 1861, the Prevention of Crime Act 1871 and Police Acts. In those cases in which arrest without warrant is illegal or is found inexpedient, information in writing or on oath is laid before a justice of the peace setting forth the nature of the offence charged and to some extent the nature of the evidence implicating the accused; and upon this information, if sufficient in the opinion of the justice applied to, he issues his warrant for the arrest of the person incriminated. The warrant, if issued by a competent court as to a matter over which it has jurisdiction, becomes a judicial authority to the person who executes it, and resistance to such a warrant is a criminal offence. The possession of a legal warrant by a peace officer on arrest is of great importance in determining whether a person resisting apprehension is justified or not in his resistance. Should the officer attempt to apprehend him on a warrant manifestly illegal on its face, or without a warrant 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. Before bringing an action against constables for alleged illegal arrest under a justice's warrant the complainant must apply for the perusal and a copy of the warrant (24 Geo. II. c. 44, s. 6; Pollock, Torts, 6th ed., 117). Entry upon the land or seizure of property cannot as a rule be justified except under judicial warrant. The only common law warrant of this kind is the search warrant, which may be granted for the purpose of searching for stolen goods. Special powers for issuing such warrants are given by the Army, Merchant Shipping, Customs, Pawnbrokers and Stamp Acts, and for the discovery of explosives or appliances for coining and forgery. 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. 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. The forms of warrants used by justices in indictable cases are scheduled to the Indictable Offences Act 1848. Those used for summary jurisdiction are contained in the Summary Jurisdiction Rules of 1886.
As a general rule, warrants must be executed within the local jurisdiction of the officer who issued them. Warrants, &c., issued by a judge of the High Court run through England, in criminal as well as in civil cases: and the same rule applies as to courts having bankruptcy jurisdiction. The warrants of justices of the peace can be executed on fresh pursuit within 7 m. of the boundary of the jurisdiction, and if properly backed by a local justice or officer in any other part of the British islands (see Summary Jurisdiction). There is also a special provision as to executing warrants in the border counties of England and Scotland. Under the Extradition Acts and Fugitive Offenders Act 1881 provision is made for the issue of warrants in aid of foreign and colonial justice; but the foreign and colonial warrants have no force in the United Kingdom.
The word “warrant” is used as to a few judicial or quasi-judicial matters of civil concern, e.g. warrant to arrest a ship in an admiralty action in rem; and in the county courts warrants to the bailiffs of the court are used where in the High Court a writ to the sheriff would be issued, e.g. for attachment, execution, possession and delivery (see County Court Rules, 1903, scheduled forms). A warrant of distress for rent issued by a landlord to a bailiff is sometimes described as a private warrant, but it is in reality a peculiar quasi-judicial remedy derived from feudal relations between lord and vassal. Arrest in civil or quasi-civil proceedings is in certain cases effected under warrant, e.g. where a bankrupt fails to obey orders of the court for his attendance (Bankruptcy Act 1883, s. 25), and in certain cases where justices have summary jurisdiction.
Financial and Commercial.—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. Mercantile warrants are 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 recognized by the legislature, especially in the Factors Acts. Thus the interpretation clause of the Factors Act 1889 includes under the head of documents of title, dock warrants and warrants for the delivery of goods, and a fuller definition is given by s. 111 of the Stamp Act 1891, which imposes on such documents a stamp duty of 3d. Warrants of attorney are instruments authorizing an attorney to appear for the principal in an action and to consent to judgment. They must now be attested by a solicitor and registered in the Bill of Sale Office under the Debtors Act 1869. They are now little used. The forgery of any warrant of this kind or of any endorsement or assignment thereof is punishable under the Forgery Act 1861.
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 jurisdiction 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 the Debtors (Scotland) Act 1838 (1 & 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 the Court of Session Act 1868 (31 & 32 Vict, c. 100) a warrant of inhibition may be inserted in the will of a summons. A crown writ is a warrant for infeftment (31 & 32 Vict. c. 101). The same act gives forms of warrants of registration. The procedure of the sheriff court in its civil jurisdiction as to warrants of citation is regulated by the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII. c. 51). The practice as to warrants of citation and commitment in the High Court of Justiciary and the sheriff court in its criminal jurisdiction now depends chiefly on the Criminal Procedure Act 1887 (50 & 51 Vict. c. 35). The meditatio fugae 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 & 2 Vict. c. 119, s. 25). Another kind of judicial warrant is a border warrant for arresting a debtor on the English side of the border. The warrant of attorney is not known in Scotland, its place being taken by the clause of registration, which is not avoided 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 probable 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. (W. F. C.)