Page:Federal Reporter, 1st Series, Volume 8.djvu/227

SPRIGG IJ. STCMP. 213 �Bupported by oath or affirmation," contrary to section 9 of art. 1 of the constitution of the state, whicii pro vides that "no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing tiie place to be seaiclied, and the person or thing to be seized." This provision is copied from the fourth amend- ment to the constitution of the United States, and was placed there on account of a well-known controversy concerning the legality of general ■warrants in England, shortly before the revolution, not so much to introduce new principles as to guard private rights already recog- nized by the common law. 2 Story, Const. 1902; Conk. Treat. 616. These warrants were issued from the secretary's office for the arrest of persons concerned in printing and publishing of obscene or sedi- tious libels, without naming any one. At length, in Mooney v. Leach, S Bur. 1742, (Anno 1765,) they were declared void for uncertainty, the case being as to the leaglity of such a warrant issued by the Earl of Halifax, without information ou oath, commanding the arrest of "the printers and publishers" of a "seditions libel entitled the North Briton, No. 45," without naming any one. And on April 22, 1766, the house of commons voted that such warrants were illegal. 4 Black. Com. 292, note k. �The law, as thus declared, was put beyond controversy, aa to the government of the Union, by this fourth amendment, and from there transferred to the constitution of the states. At the same time, there being some doubt whether the common law absolutely required that a warrant should issue only upon information on oath, the clause concerning probable cause on oath was added. Hale's P. G. 582; 4 Black. 290; Mooney v. Leach, supra; De Grey, arguendo, 1764. �Undoubtedly, then, the legal effect of this provision of the consti- tution is that process of any kind for the arrest of a person upon a criminal charge is void, unless issued upon sufficient information under oath, and an arrest thereon is unlawful. Ex parte Ruford, 3 Cranch, 448. �But it is not so clear that the inquisition authorized by said section 3 of the asylum act involves the issue of a warrant and an arrest thereon of the alleged insane person, within the meaning of this pro- vision. The county judge is to cause such person to be brought before him, which may be accomplished by going to him, as the act allows the judge to appoint the time and place for the inquisition. But, ordinarily, a person "laboring under mental derangement" can only be brought before the county judge, in the usual sense of the phrase, by a resort to force or artifice. In this case there was an ��� �