Thacher, J.
I am not satisfied that the justice had authority to direct this warrant to a private person. Doubting of his power, I cannot say that the warrant was legal. And unless I am convinced that it was, I am bound to declare that judgment ought not to be rendered upon the verdict.
Sewall, J.
The office of justice of the peace was introduced by our forefathers at their migration; and in all particulars, then applicable, or which have since become applicable, to this jurisdiction, may be considered as possessing, here; the general character and functions allowed to it in England, by force of the statutes which had there created and regulated this ancient and important office. After its introduction, the office became of course a subject of legislation here, and at an early period subsequent to the charter of William and Mary, the form of an oath to be administered to justices of the peace was appointed,
Sedgwick, J.
Two of the defendants in this case, Samuci
Foster and David Page, have been tried and convicted, subject to the opinion of the Court upon this question—whether the warrant on which Richard Foster was arrested for the breach of the peace, was a lawful authority to Philip Weaver to arrest and detain the sai.d Richard Foster. The warrant was directed to the sheriff, his deputy, the constable of the town, “ and to Philip Weaver.” On the part of the defendants, it is said that the words which constitute a part of the oath of a justice of the peace as prescribed by the act 4 W. & M. * c. 17, viz., “
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Thacher, J.
I am not satisfied that the justice had authority to direct this warrant to a private person. Doubting of his power, I cannot say that the warrant was legal. And unless I am convinced that it was, I am bound to declare that judgment ought not to be rendered upon the verdict.
Sewall, J.
The office of justice of the peace was introduced by our forefathers at their migration; and in all particulars, then applicable, or which have since become applicable, to this jurisdiction, may be considered as possessing, here; the general character and functions allowed to it in England, by force of the statutes which had there created and regulated this ancient and important office. After its introduction, the office became of course a subject of legislation here, and at an early period subsequent to the charter of William and Mary, the form of an oath to be administered to justices of the peace was appointed,
Sedgwick, J.
Two of the defendants in this case, Samuci
Foster and David Page, have been tried and convicted, subject to the opinion of the Court upon this question—whether the warrant on which Richard Foster was arrested for the breach of the peace, was a lawful authority to Philip Weaver to arrest and detain the sai.d Richard Foster. The warrant was directed to the sheriff, his deputy, the constable of the town, “ and to Philip Weaver.” On the part of the defendants, it is said that the words which constitute a part of the oath of a justice of the peace as prescribed by the act 4 W. & M. * c. 17, viz., “ And you shall not [ * 493 ] direct, or cause to be directed, any warrant (by you to be made) to the parties, but you shall direct your warrant to the sheriff, his under-sheriff or deputy, constable, tithing-man, or other officers, proper for the execution of the same within the county,” that these words express a legislative opinion that in no case, as I understand the counsel, is a warrant of a justice of the peace to be directed to a private person ; and that although under the present form of government another form of oath is established, yet that the legislature having expressed this opinion, and having never since made any contrary declaration, it must still be considered as evidence of what the law is, on this subject. I am inclined to believe that the words which are relied upon are, in substance at least, taken from the form of oath, which is in England administered to justices of the peace; (a) and there undoubtedly, under certain circumstances, [368]*368it has always been deemed legal, and so has been the constant practice, for justices to direct their warrants to prhate persons. It is not necessary, in this case, to determine the meaning of those words and their legal effect to the extent contended for. Thus far I feel satisfied to go, and think it of importance for the security of individuals to be established, that in no case but where it shall be necessary, and that necessity expressed in the warrant, ought the warrant of a justice of the peace to be directed to a private person. The law has provided, on the one hand, for the apprehension of offenders and those charged with crimes for trial; and on the other [ * 494 ] hand, it ought to guard against oppression and * unnecessary vexation. Any person may arrest in cases of treason and felony, and officers, in many instances, on view, to preserve the peace and to prevent outrage. But in cases where arrests are not authorized without warrant, the law has provided its corps of officers, directed how they shall be appointed, prescribed the limits of their powers and duties, in some instances exacted bonds, and in all imposed oaiths for their fidelity and good conduct. Does it consist with that anxious regard for personal liberty and to prevent vexatious oppression, which all governments ought to feel, and this I hope does feel, that it should be permitted to the most ordinary magistrates, for no reason but because it is their pleasure, and whether their pleasure be the result of inconsideration, wantonness, or malice ? Is it consistent with personal security to permit them to employ in the execution of their warrants, any individual, whom they shall elect, in any instance but where necessity shall require it ? In this case it is not said—it is not pretended that there was ahy deficiency of the public officers ; no reason is alleged why they could not execute the warrant as well as Philip Weaver. Why then was the warrant directed to him ? and why was the service attempted by him ?
This reasoning seems to be fortified by the 3d sect, of the act of the 26th of Feb. 1796, (stat. 1795, c. 68,) to enable sheriffs, &c., to require aid in the execution of their respective offices in criminal cases. It says “ that any justice of the peace, for the preservation thereof, or upon view of the breach thereof, or upon view of any other transgression proper to his cognizance, done or committed by any person or persons whatever, shall have authority (in the absence of the sheriff, deputy-sheriff, or constable,) to require any person or persons to apprehend and bring before him such of- [ * 495 ] fender or offenders.” Here a justice may not even * for the preservation of the peace, or to secure offenders who have broken it, in his view, which cases are obviously much more urgent than that of apprehending an offender for a breach of [369]*369the peace which is past, as was the case with this warrant; even in these instances of urgency, a justice of the peace may not authorize a private person to arrest, but in cases of necessity—“ in the absence of the sheriff, deputy-sheriff, or constable.” While this authority is so expressly withholden from a justice of the peace in these instances, would it not be extraordinary, and even absurd, to say he may, by law, exercise the power, according to his will, and without any pretence of necessity, in such cases as that now under consideration ? I think it would.
Judgment for the defendant.
4 W. & M. c. 17. O. Pro. L. Brook, p. 25.