3 Binn. 38 | Pa. | 1810
The plaintiff in error was indicted in the court of Oyer and Terminer of Northumberland county, for refusing to execute a warrant issued by Thomas Cooper, esq. president of the court of Common Pleas of the said county, for the arrest of a certain yacob Langs, of the said county. The warrant was set forth at large in the indictment, and it appeared on the face of it, that it was issued without any previous oath or affirmation, on the following ground — “ that “ it appeared to the judge from common report, that there “ was strong reason to suspect the said Langs of having “ knowingly uttered as true and genuine, certain false and “ forged notes, purporting to be notes of the Farmers and “ Mechanics’ bank of Philadelphia, and that the said Langs “ was likely to depart from, and quit the county of North- “ umberland, and retreat to parts unknown, before the wit- “ nesses to said uttering could be duly summoned and ap- “ pear before the said judge, to enable him to issue a war- “ rant on their testimony on oath.”
Judge Cooper acted with great candor and propriety in stating on the face of the warrant, that it was issued without oath, and there is no doubt but he was actuated solely by the desire of preventing the escape of a criminal. The question is whether this warrant does not appear to be illegal, from matter contained in the body of it? Of such matter the constable had a right to judge; and if it was illegal, he was not bound to execute it.
It is declared by the 8th section of the 9th article of the constitution of Pennsylvania, that no warrant shall be issued to seize any person, without probable cause supported by oath or affirmation. These expressions are very plain and very cpmprehensive. But it has been contended that the public safety requires that they should be subject to some exceptions; that in cases of necessity the oath may be dispensed with; and that the magistrate who issues the warrant, must be the judge of that necessity. It appears to me, that if this be the true construction, the provision in the constitution is a dead letter; because in every instance, the magistrate who issued the warrant, would say that he thought it a case of necessity. It is true, that by insisting on an oath, felons may sometimes escape. This must have been very
Judgment reversed.