Tracy v. Williams

4 Conn. 107

Opinion

Hosmer, Ch. J.

This case presents to the court two questions for determination. 1. Whether by virtue of the statute concerning Riots, a justice of the peace is authorized, on his own personal view, to arrest the offenders against that law, and, without written complaint or warrant, to fine, imprison, or bind them over to a superior tribunal. 2. Whether, if he does this, he is liable in trespass.

1. The first question proposed must exclusively be determined, by a recurrence to our own law. The English statutes, and that of the state of New-York, relative to the matter in question, are expressed in terms very different from ours; and require a very different construction. They explicitly authorize justices, and make it their duty, to go to the place where the force is made, and to record it, on their own view; and, in consequence, to fine each offender, and commit him to gaol, until the fine be paid. 4 Burn's Just. 76. Mather v. Hood, 8 Johns. Rep. 44. In our statute, there are no provisions analogous with these; nor in the body of the law, except as to the arrest, is the mode of proceeding prescribed.

By the act for preventing and punishing Riots,

Footnotes

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(a) it is enacted, That when three or more persons, assembled together, with intent to do an unlawful act, by force and violence, against the person or property of another, and being required, by any of the civil authority, or by any sheriff or deputy-sheriff, or by any one or more of the select-men or constables of any town where such assembly shall be, by proclamation to be made in the name of this state, to disperse, and depart to their habitations, shall not disperse themselves; or being so assembled, shall do any unlawful act against a man’s person or property; and be thereof convicted, by due course of law, before the county court, or before the superior court, in the respective counties where said offence is committed, they shall be punished, by fine and imprisonment. The act then, in its fourth section, provides, “That if such persons, so unlawfully and riotously assembled, or any three or more of them, after proclamation made as aforesaid, shall continue together, and not disperse themselves, that then it shall and may be lawful to and for every assistant, justice of the peace, sheriff, deputy-sheriff, select-man, or constable, &c. to seize and apprehend such persons, &c. and forthwith to carry the persons so apprehended before some assistant or justice of the peace, in order to their being proceeded against according to law.” The statute confers no authority to record the force on view, or to adjudge in any manner; but merely to arrest; and then, in the most general terms, remits the offenders to the usual course of proceeding in such cases. The ordinary process, as every one knows, is, by warrant, issued on a previous complaint. This is “proceeding according to law.” It is very obvious, that the select-man, deputy-sheriff or constable, who arrests, can take no judicial step; and yet, their power, specially delegated by the act, is equivalent to that of an assistant or justice of the peace. They are authorized to arrest the offenders, and to take them before a justice; and here terminates the authority given. It then devolves on the justice to see, that proceedings according to law, in its usual course, are instituted, and the persons arrested dealt with, pursuant to the established mode of procedure. Our statute, in its requisitions, is founded on a regard to the rights of the citizen, which has been lost sight of, in the English law, and in those laws, which follow its footsteps. The punishment of a person, here, is not authorized, on a bare view, which may be very imperfect, and lead to a conviction of the innocent; but the accused rioter is entitled to a hearing, before his commitment to prison, or being recognized before the superior court, for trial. This mode of proceeding is equitable, practicable, and free from oppression; while the public rights are adequately protected. And under this construction of the law, it can never be the subject of regret, that an innocent person has been arrested hastily, on a sudden view, and imprisoned for months, before his innocence can be manifested. The defendant’s justification, so far as it relates to the arrest of the plaintiff, is unquestionably sufficient; but beyond this, it is of no validity. The imprisonment of the plaintiff, on his own view, and without complaint or hearing, was wholly extrajudicial and irregular.

2. Whether the defendant is suable in trespass, is the remaining consideration. For error in opinion, however palpable and flagrant, no justice or judge is responsible in trespass, if the record shews, that he had jurisdiction, and proceeded regularly. But if he has not jurisdiction over the person, and process, and subject matter, his acts in the assumed capacity of a judge, are void. In the case supposed, he is not a judge; and the authority exercised by him, perhaps with the best motives, is nothing better than mere usurpation. From The Marshalsea case, 10 Co. Rep. 76. b. to the present time, these principles have remained unquestionable. It is said in Perkins v. Proctor, 2 Wils. 384. “Where courts of justice assume a jurisdiction, which they have not, an action of trespass lies against the officer, who executes the process, because the whole proceeding was coram non judice: Where there is no jurisdiction, there is no judge; the proceeding is nothing." The point is too clear and familiar to require further discussion. See Smith v. Boucher & al. 2 Stra. 993. Grumon v. Raymond & al. 1 Conn. Rep. 40. Slocum v. Wheeler & al. 1 Conn. Rep. 429, The case most parallel with the one before us, is that of Morgan v. Hughes, 2 Term Rep. 225. A justice of the peace granted a warrant, without any information, upon a supposed charge of felony; and in favour of the person imprisoned under it, an action of trespass against the justice was adjudged to be the legal remedy. It was said, by Ashhurst, J. "Where a person is committed to prison, by the warrant of a justice, without any accusation, some person is guilty of false imprisonment; and it must be the imprisonment of the justice, who is the immediate, and not the remote, cause of it.”

The imprisonment of the plaintiff was undoubtedly illegal; and the defendant, although I have no doubt he acted from the purest motives, had no right to issue a warrant of commitment against him. He, therefore, in this respect, was a trespasser; and the plaintiff's action is rightly conceived.

The other Judges were of the same opinion.

New trial not to be granted.

Stat. p. 575, 6. ed. 1808.