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he may decline issuing a warrant. 1 Chit. Crim. Law., 32. But he must act honestly and judiciously, as well towards the government as towards the party accused; he must have a "stout and upright heart, and clean and uncorrupted hands;" Dall's Justice, 6; and when that is the case, he cannot be subjected to injury on account of his official conduct.
It is the duty of the justice well to consider all the circumstances sworn to, and not to grant a warrant groundlessly or maliciously, without such a probable cause as might induce a discreet and impartial man to suspect the party to be guilty. Chit. Crim. Law, 34.
If a justice of the peace, without complaint or information, should issue a warrant and cause a person to be arrested, trespass would lie against him; for, though he is excused when he issues a warrant on a false accusation; yet, it is otherwise where he issues his warrant without accusation. Breese's Rep., 165.
The party who knows or suspects that an indictable offence has been committed, usually goes before a justice of the peace, accompanied by any other witnesses whom he may be able to procure, who then give to the justice all the information within their knowledge touching the same, stating the facts and circumstances upon which the charge is grounded. And it is necessary that the party making the charge, and all the witnesses, should be examined upon oath or affirmation, as well where a direct charge is made that a certain individual has committed an offence, as where the charge is, that an offence has been committed, and that the witness or witnesses have just and reasonable grounds to suspect that the person charged committed the same. Gale's Stat., 238, 239.
It is said by Mr. Chitty, that it is the duty of the justice to take all charges, of whatsoever nature, kind, or complexion they may be, in writing. 1 Chit. Crim. Law, 34.
This, however, must be understood to be the modern practice; for, when justices of the peace were first authorized to grant out process against offenders, it was their custom to take the examination of the party and witnesses upon the delivery of the warrant, and to bind them over, by recognizance, to give evidence against the prisoner at the next jaildelivery. Dalt. Justice, 579. And it is said that it is safe, though not necessary, that the party who demands the warrant, as well as the witnesses, be first examined on oath touching the whole matter whereupon the warrant is demanded and that examination put in writing. 4 Burn's Justice, 389.
By the statute of Philip and Mary, justices before whom any prisoner is brought are required to take the examination of the prisoner and the information of them that bring him and put the same in writing. 1 Chil. Crim. Law, 74,31. Under this statute, it appears to be necessary that the information of the prosecutor and witnesses, taken on oath before the issuing of the warrant, must be in writing; 1 Hale, 586; and it is the practice, after the prisoner is arrested and brought before the justice, to re-swear the witnesses and read over their former depositions in the presence of the witnesses and the prisoner, and then the prisoner is at liberty to ask the prosecutor and witnesses any questions respecting the charge against him. 1 Chit. Crim. Law, 80.
In this state, we have no statute requiring that either the oath or examination shall be taken in writing. Upon application for a warrant, the oath or affirmation made before a justice of the peace may be made orally, and this is required for the purpose of enabling the justice to determine as to the propriety of issuing a warrant. And, by the common law, when application is made for a warrant against a person accused of a felony or other crime, it is not necessary for the complaint to be put in writing. 2 Chit. Gen. Pr., 158. 3 B. &. Cres. 649.
It being an obligation which all good citizens owe to the public when they shall have knowledge that an offence has been committed to give information thereof to some justice of the peace,
the law always insures to such persons all due protection in the discharge of their duty.
And, as it would be a great discouragement to the object of his suspicions, it is settled that he cannot be sued for indicting a party unless his proceedings were both actuated by malice and destitute of any probable foundation. 1 Chit. Crim. Law, 10. Nor can any action be supported for a malicious prosecution of felony without producing a copy of the record of the indictment and acquittal, which are never granted, if the accusation was supported by any probable evidence; for it would be a very great discouragement to the public justice of the country, if prosecutors who had a tolerable ground of suspicion were liable to be sued at law whenever ther indictments miscarried. 3 BI. Com., 126. And, further to shelter the party indicting, his own oath in support of the charge may, in some cases, be given in evidence in his favor. 1 Chit. Crim. Law, 10.
OF THE WARRANT.
If a justice of the peace see a felony or other breach of the peace committed in his presence, he may, in his own person, apprehend the felon, and so he may by word command any person to apprehend him, and such command is a good warrant without writing ; but if the same be done in his absence, then he must issue his warrant in writing. 4 Burn's Justice, 389.
Whenever a statute gives to any one justice a jurisdiction over any offence, or a power to require any person to do a certain thing ordained by such statute, it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence, or compellable to do any thing ordained by such statute; for it cannot but be intended that a statute giving a person jurisdiction over an offence doth mean, also, to give him the power incident to all courts of compelling the party to come before him. 4 Burn's Justice, 389. Hawk., 34.
At common law, if a person committed a felony in the county of B., and then went into the county of C., upon information given to a justice of the peace for the county of C., he might issue his warrant to apprehend him, and take his examination and commit him to jail in the county of C., from whence he might be removed, by habeas corpus, to the county of B. for his trial. 1 Chit. Crim. Law, 35.
Sir Edward Coke hath laid it down, that a justice of the peace cannot issue a warrant to apprehend a felon upon bare suspicion, before he is indicted, and the contrary practice is, by others, held to be grounded rather upon connivance than the express rule of law, though now, by long custom, established : a doctrine which would, in most cases, give a loose
to felons to escape without punishment; and, therefore, Sir Mathew Hale hath combatted it with invincible authority, and strength of reasoning, maintaining,
1. That a justice of the peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted.
2. That he may, also, issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant, because he is a competent judge of the probability offered to him of such suspicion. 4 BI. Com., 290.
Since the undue execution of the power of issuing a warrant for the arrest of a person upon suspicion of felony or other misdemeanor, before indictment found against him, may prove highly prejudicial to the reputation as well as the liberty of the party, a justice cannot well be too tender in his proceedings of this kind, and seems to be punishable not only at the suit of the king, but, also, of the party grieved, if he grant any such warrant groundlessly and maliciously, without such a probable cause as might induce a candid and impartial man to suspect the party to be guilty. 2 Hawk., 85.
By the 3d sec. of the act of Jan. 6, 1827, it is enacted that “ It shall be lawful for any of the aforenamed judges or justices of the peace, upon oath or affirmation being made before him, that any person or persons have committed any criminal offence in this state, or that a criminal offence has been committed, and that the witness or witnesses have just and reasonable grounds to suspect that such person or persons have committed the same, to issue his warrant under his hand, commanding the officer, or person charged with the execution thereof, to arrest the person or persons so charged, and bring him, her or them before the officer issuing said warrant, or in case of his absence, before any other judge or justice of the peace, the said judge or justice of the peace, before whom any person shall be brought in pursuance of such warrant, or shall be brought without warrant, and charged with any criminal offence, before he shall commit such prisoner to jail, admit to bail, or discharge him or her from custody, shall inquire into the truth or probability of the charge exhibited against such prisoner or prisonsers, by the oath of all witnesses attending." Gale's Stat., 238.
A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty ; for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion. And a warrant to apprehend all persons guilty of a crime therein specified, is no legal warrant. Such a process would not only be void, but an action for false imprisonment lies against the officer who acts under it. 4 BI. Com., 291.
By Art. VIII., Sec. 7, of the constitution, it is declared “ That the people shall be secure in their persons, houses, papers, and possessions from unreasonable searches and seizures; and that general warrants whereby an officer may be commanded to search suspected places without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty, and ought not to be granted.”
By the common law, warrants of justices of the peace may be styled and made after divers manners; as,
1. In the name of the king, and yet the test must be under the name of the justice who grants it out;
2. It may be styled or made only in the name of the just
3. It may be made without any style and only under the test of the justice, or only subscribed by him. Dalt. Justice, 593.
In this state, the warrant runs in the name of The people of the state of Illinois. This form is prescribed by the constitution, the seventh section of the fourth article of which declares that “ All process, writs and other proceedings shall run in the name of the people of the state of Illinois."
The warrant is better if it bear date of the place where it is made, which, in pleading, must be alleged, though it need not be expressed in the warrant. And it is safe, but, perhaps, not necessary, to show, in the body of the warrant, the place where it was made; yet, it seems necessary to set forth the county in the margin at least, if it be not set forth in the body. 4 Burn's Justice, 391.
It is laid down in English treatises, that a justice of the peace may direct his warrant to the sheriff, bailiff, constable, or other officer, or to any other indifferent person by name, though he be no officer. Dalt. Justice, 577.
The warrant is ordinarily directed to the sheriff or constable, and they are indictable and subject to a fine and imprisonment if they neglect or refuse it. But if it is directed to a private person it is good, but he is not compellable to execute it. 1 Burn's Justice, 105.
Yet, it is said that, if a statute direct that a justice shall grant a warrant, and doth not say to whom it shall be directed, by consequence of law, it must be directed to the constable, and it cannot be directed to the sheriff, unless such power is given in the act. Ld. Raym., 1192. 2 Salk., 381.
Where a warrant is directed to several, it may be executed by one; but it is said that, if it direct them jointly and not severally to arrest, then they must all be present. 1 Chit. Crim. Law, 49.
A warrant directed by a justice of the peace to the constable, or other sworn officer, and to a stranger who is no officer, and the warrant is made jointly and severally, and is delivered to the stranger, who executes it, this is good. Dall. Justice, 577.
By the 7th sec. of the act of Jan. 6, 1827, it is enacted that, - When a charge shall be exhibited upon oath before any judge, or justice of the peace, against any person for a criminal offence, it shall be the duty of the judge or justice of the peace before whom the charge shali be made, to issue his warrant for the apprehension of the offender, directed to all sheriffs, coroners, and constables, within the state.” Gale’s Stat., 239.
By the 8th sec. it is enacted that “ Any judge or justice of the peace, issuing any such warrant, may make an order