State v. J. H.

1 Tyl. 444

• Court: Supreme Court of Vermont
• Decided: July 15, 1802
• Status: Published

Opinion

The framers of the constitution of Vermont had undoubtedly heard of the. Secretary of State’s warrants, and of the celebrated case of Wilkes and the King’s messengers, in the mother country; to encourage the revolutionary spirit- these things were actutively disseminated among the people., They therefore, not clearly distinguishing between that restraint upon the royal prerogative, which by progressive steps has established English liberty, and which should ever be precious to Englishmen, and that restraint upon magistrates elected in our republican mode, who hold their brief authority on the annual good opinion of the people, inserted the eleventh section of the constitution, which declares,

----, for the motion. Samuel Walker, contra.

“ That the people have a right tó hold themselves, their houses, papers and possessions free from search or seizure; and therefore warrants without oath or affirmation first made, affording sufficient foundation for them, or whereby any officer .or messenger may' be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.”

But if the oath of the complainant should be considered as necessary to the validity of the present process, we consider, that in this case such oath was actually administered, and that there is sufficient evidence of it in the process.

The very act of issuing a capias upon a complaint, which recites that it was made under oath, is a recognition by the magistrate of the oath’s having been administered. But we do not rest here. We shew the magistrate’s express declaration under his official signature to the mittimus, that the oath had been duly administered.

Process quashed. Defendant discharged..