The Albany Law
Law Journal.

ALBANY, SEPTEMBER 30, 1871.

MANNER OF MAKING AN ARREST.

SHOWING WARRANT.

There is no doubt that the law, both in this country and in England, is, that a known public officer, acting within his district or jurisdiction, is not bound to show his warrant, even though it be demanded. 3 Hawk. P. C. b. 2, ch. 13, § 28; 2 Hale's P. C. 116; The State v. Caldwell, 2 Tyler (Vt.), 214; The State v. Curtis, 1 Hayward (N. C.), 471; Arnold v. Steves, 10 Wend. 514 Where the officer is not a general officer, but one appointed for a special purpose, the doctrine seems everywhere to be, that he must show his authority or his warrant before making the arrest. Bish. on Cr. Proc., vol. 1, § 648; 3 Hawk. P. C. ch. 2, § 28; in Frost v. Thomas, 24 Wend. 418, and The State v. Kirby, 2 Iredell, 201, it is said, a special deputy is bound to show his warrant, or the arrest is illegal.

Mr. Bennet, in his Leading Criminal Cases, vol. 1, p. 227, seems to doubt the position, that a general officer need not exhibit his warrant when demanded. He says: 'But it may be fairly questioned, whether the authorities above referred to mean more than that a general officer is not bound to show the warrant of his appointment, for it is difficult to see why a general officer is not as much bound as any special officer to show the precept authorizing him to arrest a person, if the same be demanded, whereas, there may be good reason for holding, that a public officer is not bound to exhibit his own commission or appointment;" and he refers to 1 East. Pleas of the Crown, 379, where a similar view is taken.

We think Mr. Bennet is mistaken as to the tenor of at least a portion of those decisions. For instance, Arnold v. Steves, 10 Wend. 514 That was a case where the arrest was made by a constable; and all constables were elected directly by the people, and not appointed, and, therefore, there was no warrant of appointment, and none could have been intended.

This case was commented upon by Justice Bronson in a subsequent case (Bellows v. Shannon, 2 Hill, 92), and fully sanctioned in the following language: "It seems, however, to be settled, that a regular officer, acting within his proper district, is not bound to show his warrant for the arrest, though it be demanded." And, in The State v. Caldwell, 2 Tyler (Vt.), 214, there is no good reason to believe that a warrant of appointment was intended, instead of the warrant of arrest; at least, the reporter did not so understand it when he wrote the marginal note to that case, for he speaks of the precept of arrest.

We understand that the great object of showing a warrant is to inform the party that the officer has authority to make the arrest, which certainly would

be very proper in the case of a special officer, as he would not be apt to be recognized as one having the proper authority to make arrests, and his warrant would settle the matter; but the case is widely dif ferent with a general officer. In a note to McKalley's Case, 5 Coke, 11, it is said: "the party must have some notification of the officer's business, or killing will not be murder; but, if he be a known public officer, the law will imply notice." Undoubtedly, wearing the accustomed badge of office would be sufficient in the case of a fresh incumbent, and, if he were elected by the people, that ought to be a sufficient notice. Bish. on Cr. Proc., vol. 1, § 648.

Every one is bound to know the character of an officer who is acting within his proper jurisdiction, and every citizen is bound to submit peaceably to such officer until he can demand and investigate the cause of his arrest. State v. Townsend, 5 Harrington (Del.), 487.

A dictum of Lord Kenyon, C. J., in a case (Hall v. Roche, 8 Durnford and East, 187) which came before the court of king's bench, in 1790, is regarded by Bishop, in his Criminal Procedure, vol. 1, § 648, as being an important point in relation to showing a warrant on arrest.

Lord Kenyon said: "If it be established as law by the cases cited, that it is not necessary to show the warrant to the party arrested who demands to see it, I will not shake those authorities; but I cannot forbear observing, that, if it be so established, it is a most dangerous doctrine, because it may affect the party criminally, in case of any resistance; and, if homicide ensue, the legality of the warrant enters materially into the merits of the question. I do not think that a person is to take it for granted, that another who says he has a warrant against him, without producing it, speaks truth. It is very important that in all cases where an arrest is made, by virtue of a warrant, the warrant, if demanded, at least should be produced."

We have given this dictum a brief examination, and fail to see the reason for some positions there assumed, for, at the time it was made, it had been the law for a long time, that an officer could arrest without warrant for a felony, after it had been committed, upon reasonable grounds of suspicion, and such is the law now, in both England and the United States. If an officer has authority to make arrests without warrant in such cases, why should he be obliged to show it when demanded, when acting in his district, because he has it in his possession, in order to make the arrest lawful?

Certainly, it has not been considered dangerous doctrine that an officer could arrest for felony without a warrant, nor do we see, in case of resistance to an arrest for felony, why the fact that the officer does not show his warrant should affect him criminally while acting in his proper district or jurisdiction, inasmuch as, with or without warrant, he has the same

authority to make the arrest. It is true, if homicide should ensue in any case of resistance when a warrant is necessary to clothe the officer with proper authority, the legality of such warrant would become a material question, but how could the fact of refusing to show it when demanded affect its legality?

If it was legal in the officer's pocket it could not be made illegal by showing it when demanded; besides, who is to be the judge of its legality? certainly, the party arrested should not be, for he would not be likely to be impartial, and the officer would not put a very high estimate on his judgment. But, to have any logical force, the showing of the warrant when demanded must be for the purpose of enabling the party to form some judgment as to the authority of the officer to act in the matter; yet, we are here supposing the officer to be acting within his district or jurisdiction, and, therefore, his official character presumed to be known to every one. Therefore, the officer should not be obliged to show his warrant for the purpose of giving information as to his authority to make arrests, in general, and if it be demanded for the purpose of ascertaining for what the arrest is made in that particular case, then the substance of the warrant can be stated and no injustice done to the prisoner.

We think, moreover, with all due deference to Lord Kenyon's great ability and learning as a judge, that when a known general officer, acting in his own district, says he has a warrant against another, he should be believed, and if a general officer states what is false, and makes the arrest without legal authority, he can be sued for false imprisonment, as in other cases, when he exceeds his authority.

But, if he intended his reasoning to apply exclusively to cases where the officer must have a warrant in order to justify an arrest, as in misdemeanors, then it seems to be more appropriate, for although we maintain that a general officer is not bound to show his warrant in any case, even though it be demanded, when acting within his jurisdiction, as a matter of strict legal obligation, yet we do not deny that in many cases it may be prudent to produce the warrant if demanded, so as to leave the prisoner no excuse for resistance. 1 Chitty Cr. Law, 51.

In Commonwealth v. Cooley, 6 Gray, 356, Merrick, J., says: "The accused is required to submit to the arrest, to yield himself immediately and peaceably into the custody of the officer, who can have no opportunity, until he has brought his prisoner into close custody, to make him acquainted with the cause of his arrest, and the nature, substance and contents of the warrant under which it is made, and that the officer is to state the nature and substance of the process which gives him the authority, and if it is demanded of him to produce and exhibit it to his prisoner for his perusal that he may have no excuse for resistance." We of course cannot concur in this last remark, that the warrant must be exhibited for the

reasons we have given above, and for the additional reason that the authority which the learned justice gives for it (1 Chitty Cr. Law, 51) does not reach to that extent. Chitty refers to the doctrine of Lord Kenyon, using his language, and adding to it the words quoted above, "that he may have no excuse for resistance," does not state it as settled law, but on the contrary, in the commencement of the same paragraph, says: "It is laid down that bailiffs or constables, if they be sworn, and commonly known to be officers, and act within their own precincts, need not show their warrant to the parties whom they come to apprehend, notwithstanding they demand the sight of it."

Wherever the question has squarely arisen in the United States courts, as far as we have examined, it has been decided as we have indicated. It should be understood, however, that the officer is bound to explain to his prisoner the cause of his arrest or the nature of his warrant. The explanation must follow the arrest. They cannot occur at the same instant of time. They are obviously successive steps.

Judge Bronson said, in Bellows v. Shannon, above cited: "All the books agree that the officer is bound to give the substance of the warrant or process, to the end that the party may know for what cause he is arrested, and take the proper legal measures to discharge himself. This is, however, when the party submits to the arrest, and not when he makes resistance before the officer has time to give the information. Although the officer is not bound to exhibit the warrant, especially when there may be reason to apprehend that it will be lost or destroyed, yet, I cannot doubt that it is his duty to inform the party, where such is the fact, he has a warrant, or to make known in some other way that he comes in his character as an officer to execute legal process, and not leave the party to suppose he is assailed by a wrong-doer. The contrary doctrine would be likely to lead to violence and bloodshed. I do not say that the officer is bound to declare the particulars of his authority before he makes the arrest, or that it may not sometimes be proper to lay hands on a party before a word is spoken; but either before or at the moment of the arrest the officer ought to say enough to show the party that he is not dealing with a trespasser, but with a minister of justice." These rules are so clear, and at the same time so just, that they form a safe guide to any officer who follows them in the execution of a warrant.

But when the resistance begins at the moment of attempted arrest, no explanation, it seems, is necessary. And even where one is not known generally as an officer, he need not show his warrant, though it be demanded by the party when he immediately resists, and by his own wrongful act prevents the officer from doing his duty. Commonwealth v. Field, 13 Mass. 322. An arrest might be defeated by the ceremony of producing and explaining a paper before the

487.

The governing principle which enters into the question here discussed, and in fact in all questions of a kindred character, is that perfect submission to a known public officer is first required, because it is presumed that a party will suffer no wrong by so doing, and that he will have ample opportunity to investigate the cause of his arrest after his submission, not only so far as the officer is immediately concerned, but as to other parties in a court of justice. The same authority which directs an officer to execute should at least inquire into the manner of arrest when attention is called to it by a prisoner.

The officer is not only a responsible and known person, he is moreover under legal liabilities by reason of his office, and is immediately controlled by the courts of justice.

On the other hand, if one not known to be an officer attempts to arrest a person, the latter is put at once upon his apprehensions, and is instinctively impelled to resist the indignity. 1 Bish. Cr. Pro., § 649.

It is imprudent in an officer to allow a prisoner to take a warrant into his hand to peruse, and if the latter refuse to return it, he may use "just so much violence as is necessary to retake it and no more." Rex v. Milton, Moody & M. 107. In no case is an officer required to part with the possession of his warrant whether acting within or without his jurisdiction for that is his justification. 1 East. P. C. 319.

courts were open to him, and by selecting the State court it was insisted that he had waived his right of demanding the judgment of the federal court. The court said: "It is a principle well settled that a party may waive a constitutional or statutory provision made for his benefit. And the plaintiff, by voluntarily submitting his cause to the State court and asking the exercise of its jurisdiction, has waived the right to invoke the jurisdiction of the federal court. The jurisdiction of the federal courts in the case would have been founded entirely upon the character of the parties, and not upon the nature of the cause. None of those reasons, therefore, exist, which are generally relied on where that jurisdiction is founded upon the nature of the cause, to show the necessity for a supervisory control, on the part of the federal tribunals, over the decisions of the State courts. Nor does the case stand upon the same ground as where a citizen of one State is sued in the courts of another State. For, in the latter case, there is reason for saying, that, unless congress could authorize the removal, the judicial power of the United States might be eluded, at the pleasure of the plaintiff, and the non-resident defendant be deprived of that security which the constitution intended in aid of his rights. But no such reasons can be urged in favor of the act under consideration; because, assuming that the State and federal courts had cognizance of the matter in controversy between these parties, the plaintiff has made his election of the State tribunal. He was well aware, at the outset, that he

COURTS.

The supreme court of Wisconsin has recently made a decision in the case of Whiton v. The Chicago & North-western Railway Co., 25 Wis. 424, that is worthy of attention by reason of the importance of the question involved. By the act of congress of March 2, 1867 (14 U. S. Stat. at Large, 558), it was provided that where a suit was pending then or thereafter in any State court, between a citizen of the State in which the suit was brought and a citizen of another State, and the matter in controversy exceeded five hundred dollars, such citizen of another State, whether plaintiff or defendant, might cause such suit to be removed to the circuit court of the United States. In the case cited the plaintiff, a non-resident of Wisconsin, had brought suit in the courts of that State, but afterward, for reason or caprice, undertook to remove it to the United States circuit court. validity of the act, in so far as it permitted a plaintiff to transfer the cause, was directly presented and fairly met by the court. It held the act, in this extent, to be invalid, and the holding seems to be well supported by the arguments brought to bear, as well as by the common sense of the matter. The plaintiff, being a citizen of another State, had the right, in the first instance, to elect the former for

The

made his choice of the State court to decide the controversy, let him abide its decision. What earthly ground is there for saying that the federal government may interfere, under such circumstances, and divest the State court of a jurisdiction already attached at the instance of the plaintiff? There is no principle better settled, than that, where two or more tribunals have concurrent jurisdiction over the subject-matter and the parties, the court that first acquires it can hold fast on the case to the exclusion of the concurrent court. And, although this principle has been departed from, under our complex system of government, in the case of a non-resident sued in a State court, or where the nature of the controversy gave the federal courts final jurisdiction, yet this furnishes no reason for disregarding the principle where the non-resident plaintiff has seen fit to invoke the jurisdiction of the State court. In that case let him abide the consequences of the election thus voluntarily made, like any citizen of the State. For certainly "all the purposes of the constitution of the United States will be answered by the creation of federal courts, into which any party, plaintiff or defendant, concerned in a case of federal cognizance, may carry it for adjudication." And when the nonresident plaintiff, having the option, has appealed to

the State court instead of the federal tribunal, can congress divest the jurisdiction already attached, by giving the plaintiff the right to remove the same into the federal court? It seems to me that, in principle and reason, it should be held that the plaintiff, by bringing his suit in the State court, when he might have brought it in the federal court, has clearly waived his right to appeal to the latter tribunal, and that this waiver binds him through the litigation. As plaintiff, he has voluntarily elected the jurisdiction of the State court, and there is no hardship in requiring him to abide its decision. I know of no provision in the constitution of the United States which gives congress the power to intervene and authorize the plaintiff to divest a jurisdiction which he has himself invoked. Upon these grounds, I hold the clause in the act of March 2, 1867, which gives the plaintiff the right to remove the cause from the State to the federal court, not in pursuance of the constitution of the United States, and therefore void.

BONDING TOWNS IN AID OF RAILWAYS.

In the case of People ex rel. White v. Merrill, an abstract of which will be found in our Court of Appeals Abstracts, the court adopts, with increased emphasis, the doctrine previously laid down by it in the case of People ex rel. Harris v. Smith, ante, p. 64, that the statutory requirements (under chapter 907, Laws of 1869, etc.) necessary to confer jurisdiction upon a county judge so as to authorize him to appoint commissioners to issue town bonds in aid of railways must be strictly complied with, that the petition of the tax payers necessary must be signed either by the tax payer himself or in his presence, by his authority, or that the authority to sign must be in writing. It has, as appears from the cases that have arisen, been the habit of persons interested in the construction of proposed railways to canvass a town from which aid was desired, to visit each tax payer whom it was believed could in any way be influenced, and, having obtained from him some kind of acquiescence in the proposed measure, thereupon to place his name upon the petition. Sometimes the consent was given conditionally, which conditions did not appear in the petition; sometimes obtained by promises and statements which were known to the one making them to be hypothetical and perhaps false, and, not unfrequently, not given at all, the person whose name was used having merely failed to express a dissent. When it is considered that those individuals, by whom, in many instances, the names of tax payers were signed, for the most part had no property located in the towns where such aid was sought, and could in no manner be injuriously affected by the issue of bonds, but, on the other hand, having the handling of the money to be received therefor, would, in all probability, be largely benefited, the propriety of relying upon their statements as to authority to sign tax

payers' names is clearly apparent. But, even were those claiming to act under verbal authority disinterested persons, it would be contrary to public policy, and an outrage upon the rights of property owners, to permit an incumbrance to be laid upon their property except in strict pursuance of the law of the land, and with a full and fair opportunity afforded them to determine concerning the matter. We rejoice, therefore, that the court of appeals have emphatically avowed their disapprobation of the loose, not to say dishonest, manner in which the matter of town bonding has been carried on.

The court has determined that the law shall be carried out as it stands. But we trust that the time is not far distant when by constitutional amendment the subject of town, county and municipal action, with relation to incurring public liability and making public appropriations, will be brought within very narrow limits. The main object of a government is to protect life, liberty, character and property. It may, as a secondary matter, foster business enterprise and assist in the development of the resources of the country. But this minor duty should never be exercised in derogation of the higher one. It is the duty of the United States to furnish an efficient mail service.

This duty, however, it may not perform at the sacrifice of the rights of its citizens. So, the State government, while it should aid in providing means of inter-communication, ought to accomplish this end without injury to the property owners. Bonding towns and cities may be the most feasible method of raising means for building railways, but it seems to us that the ultimate injurious effects to be apprehended from this course more than counter-balance its present benefits. As the law stands to-day the consent of the owners of a majority of the taxable property in each locality is required to authorize the bonding of the whole. The necessity of obtaining this consent furnishes a sufficient check, perhaps, against very disastrous results. But who can say that an act may not sometime be passed, removing even this safeguard, and vesting the authority to create local obligations of this character in the hands of the people generally. What will happen then we can know from the experience of other portions of the country. Says Mr. Justice Dillon, of Iowa, in speaking of a decision of the supreme court of that State, made in 1853, upholding the right to levy local taxes in aid of

railroads:

"A most unfortunate mistake it was; counties and cities throughout the State, acting under the sanction of that decision, incurred debts amounting to several millions of dollars, and, in many cases, exceeding their ability to pay. Disaster, the child of extravagance and dishonor, the unbidden companion of bankruptcy, are the bitter but legitimate consequences of that decision; and the end is not yet. In every other State in which a similar decision has been made similar consequences have ensued."

In the constitution of 1846 is contained this provision: "The credit of the State shall not, in any manner, be given or loaned to, or in aid of, any indi- | vidual association or corporation" (art. 7, § 9); and, in another portion of that instrument, it is made "the duty of the legislature" to restrict the power of cities and villages in "loaning their credit." Art. 8, § 9.

The men who drew up the State constitution, and the people who adopted it, knew by experience the danger and the inexpediency of assisting private enterprises with public credit, and provided, in unequivocal language, that the State should do nothing in that direction. At that time, local credit had not to any extent been used to aid individuals or corporations: consequently, the same care was not taken in reference to it; yet it was made the duty of the legislature to restrict municipalities in loaning their credit. This duty, as it has always appeared to us, would have been best performed by adopting the same rule as had been laid down for the State, and totally forbidding local authorities giving local public credit to further any private end. By taking such a course, some important works might be a little delayed, but it would be better for the people to undergo a temporary inconvenience than to run the not improbable risk of public insolvency and its attendant evils. The court of last resort have restricted the matter of binding towns by requiring a full, absolute and technical compliance with the statute, and we trust that the legislature, if they make any change, will so amend the statute as to secure to the full extent of the common law the rights of the citizen to the free and absolute control of his own property.

THE TRIAL OF ALGERNON SIDNEY. A recent visit to Penshurst Place has led us to collect some information respecting the life of Algernon Sidney, and to read once more the report in the State trials of the memorable proceedings against him for high treason which ended in his conviction and execution. It was much more natural and more easy to associate the stately old mansion, the picturesque church and churchyard, and the beautiful park and ancestral trees with the Arcadia, the court of Queen Elizabeth, and the battle of Zutphen than with the discourses concerning government, the trial in the king's bench at Westminster, and the scaffold on Tower Hill. But if the noble life of Sir Philip Sidney was the prevading thought in such a spot, it was impossible not to dwell also on the career and fate of his great-nephew, the illustrious martyr of English liberty, whose youth was passed in that interesting place, whose portraits still adorn the walls of Queen Elizabeth's room and of the spacious gallery, and whose remains repose in the neighboring church along with those of others of the Sidneys. The quiet beauty and thoroughly English character of the scen

ery could not fail, if only by the force of contrast, to connect themselves with the trial of one, who, of whatever imprudence he may have been guilty, has been acknowledged by all generous minds, since that darkest period of our national history, as a patriot and a hero. They could not fail also to suggest some speculation as to the causes of the aristocratic tinge of Sidney's republicanism.

Penshurst park and manor had been bestowed by Edward VI on Sir William Sidney, the representative of a family of French extraction, whose ancestor had settled in England in the reign of Henry II, having come with the latter monarch from Anjou as his chamberlain. To Sir William succeeded his son Sir Henry, who married Mary, sister of Robert Dudley, earl of Leicester, and was appointed lord justice of Ireland; his sons were Sir Philip and Sir Robert, the latter of whom succeeded to the estate, and was created by James I Viscount Lisle and afterward earl of Leicester. Algernon was the second son of Robert, second earl of Leicester, the son of the first of that creation. He is supposed to have been born in 1621, and is known to have been carefully educated by his father, although it does not appear that he was sent to any public school or to a university. His first entrance on public life was in 1641, when he went to Ireland, of which kingdom his father was then lordlieutenant, on the breaking out of the rebellion, and commanded a troop of horse. In the campaign of that and the following year both he and his elder brother, Lord Lisle, distinguished themselves by their gallantry. The two brothers returned to England, in 1643, and joined the parliamentary party. Algernon received a commission as captain of a troop of horse in the regiment of the earl of Manchester, and was subsequently raised by Fairfax to the rank of colonel, and placed in command of a regiment. He held various appointments of importance, and was returned for Cardiff as a member of the long parliament. Although Sidney acted as one of the judges at the trial of the king, he was not present when the sentence was passed and did not sign the warrant for the execution. On the establishment of the protectorate, he retired from public life, refusing to acknowledge the authority of Cromwell. On the restoration of the long parliament, in 1659, Sidney again came forward, and was appointed a member of the council of State. In the following year he was sent to Denmark to negotiate a peace between that country and Sweden, and was absent on this mission when Charles II returned to England.

During the next seventeen years Sidney remained abroad, staying for a time at Hamburg, at Frankfort, at Rome, at the Hague, and at Paris. It was during his visit to the last place, in 1666, that he unwisely endeavored to impress on Louis XIV the advantage France would derive from the establishment of a republic in England, and offered to procure a rising if he were furnished with a sufficient sum of money.