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Subject Area: Law
Topic: The American Revolution and Constitution

§ 33.: What constitutes a lawful arrest.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 33.

What constitutes a lawful arrest.—

As a general proposition, no one can make a lawful arrest for a crime, except an officer who has a warrant issued by a court or magistrate having the competent authority. If the process is fair on its face, that is, nothing appears upon its face to lead the officer to an inquiry into the jurisdiction of the court, then the officer who makes the arrest has acted lawfully, notwithstanding the court or magistrate which issued the process had no jurisdiction over the case.1

A distinction is made by the cases between courts of general and of inferior jurisdiction, in respect to what process is fair on its face. If the process issued from a court of general jurisdiction, the officer is allowed to indulge in the presumption that the case came within the jurisdiction of the court, and need make no inquiry into the details of the case, nor need the warrant contain recitals to show that the court had jurisdiction. But if the process issued from a magistrate or court of inferior and limited jurisdiction, the warrant must contain sufficient recitals to satisfy the officer that the case was within the jurisdiction of the court, in order to be fair on its face. This distinction is very generally recognized and applied.1

The question has been raised, whether an arrest, made, under a warrant lawfully issued by a State court or magistrate, is made unlawful, as not being due process of law, by the fact that the person arrested has been unlawfully brought by private persons within the jurisdiction of the court. It has been held that the two occurrences are distinct and separate, and that the arrest under a State warrant was “due process of law.”2

The officer is bound to know whether under the law the warrant is defective, and not fair on its face, and he is liable as a trespasser, if it does not appear on its face to be a lawful warrant. His ignorance is no excuse.1 It has been held in several of the States2 that where an officer has knowledge of the illegality of the warrant, although it is fair on its face, he can not with safety act under it, the protection of process fair on its face being granted to those who ignorantly rely upon its apparent validity. But the better opinion is that the officer is not required in any case to pass judgment upon the validity of a warrant that is fair on its face, and his knowledge of extra-judicial facts will not deprive him of the right to rely upon its apparent validity.3

[1]Cooley on Torts, 172, 173, 460. See State v. McNally, 34 Me. 210; State v. Weed, 21 N. H. 262; Underwood v. Robinson, 106 Mass. 296; Neth v. Crofut, 30 Conn. 580; Warner v. Shed, 10 Johns. 138; Brainard v. Head, 15 La. Ann. 489. See, also, generally, as to what process is fair on its face: Erskine v. Hohnbach, 14 Wall. 613; Watson v. Watson, 9 Conn. 140; Tremont v. Clarke, 33 Me. 482; Colman v. Anderson, 10 Mass. 105; Howard v. Proctor, 7 Gray, 128; Williamston v. Willis, 15 Gray, 427; Rice v. Wadsworth, 27 N. H. 104; Sheldon v. Van Buskirk, 2 N. Y. 473; Alexander v. Hoyt, 7 Wend. 89; Webber v. Gay, 24 Wend. 485; Chegaray v. Jenkins, 5 N. Y. 376; Moore v. Alleghany City, 18 Pa. St. 55; Billings v. Russell, 23 Pa. St. 189; Cunningham v. Mitchell, 67 Pa. St. 78; State v. Jervey, 4 Strob. 304; State v. Lutz, 65 N. C. 503; Gore v. Martin, 66 N. C. 371; Bird v. Perkins, 33 Mich. 28; Loomis v. Spencer, 1 Ohio St. 153; Noland v. Busby, 28 Ind. 154; Lott v. Hubbard, 44 Ala. 593; Brother v. Cannon, 2 Ill. 200; Shaw v. Dennis, 10 Ill. 405; McLean v. Cook, 23 Wis. 364; Orr v. Box, 22 Minn. 485; Turner v. Franklin, 29 Mo. 285; State v. Duelle, 48 Mo. 282; Walden v. Dudley, 49 Mo. 419. The officer cannot receive the warrant signed in blank by the judge or magistrate, and fill up the blanks himself. Such a warrant would be void. Pierce v. Hubbard, 10 Johns. 405; People v. Smith, 20 Johns. 63; Rafferty v. People, 69 Ill. 111; s. c. 72 Ill. 37 (18 Am. Rep. 601).

[1]Cooley on Torts, pp. 173, 464.

[2]In re Mahon, 34 Fed. 525.

[1]Grumon v. Raymond, 1 Conn. 39; Lewis v. Avery, 8 Vt. 287; Clayton v. Scott, 45 Vt. 386. But where the matter of jurisdiction is a question of fact and not a question of law, upon which the court issuing the warrant has pronounced judgment, the officer is protected by the warrant, and is not responsible for any error of the court. Clarke v. May, 2 Gray, 410; Mather v. Hood, 8 Johns. 447; Sheldon v. Wright, 5 N. Y. 497; State v. Scott, 1 Bailey, 294; Wall v. Trumbull, 16 Mich. 228.

[2]Barnes v. Barber, 6 Ill. 401; Guyer v. Andrews, 11 Ill. 494; Leachman v. Dougherty, 81 Ill. 324; Sprague v. Birchard, 1 Wis. 457, 464; Grace v. Mitchell, 31 Wis. 533, 539.

[3]Wilmarth v. Burt, 7 Met. 257; Twitchell v. Shaw, 10 Cush. 46; Grumon v. Raymond, 1 Conn. 40; Watson v. Watson, 9 Conn. 140, 146; Webber v. Gay, 24 Wend. 485; Cunningham v. Mitchell, 67 Pa. St. 78; Wall v. Trumbull, 16 Mich. 228; Bird v. Perkins, 33 Mich. 28; Brainard v. Head, 15 La. Ann. 489; Richards v. Nye, 5 Ore. 382. But he may, if he chooses, refuse to serve such a warrant, and waive the protection which he may claim from its being fair on its face. Horton v. Hendershot, 1 Hill, 118; Cornell v. Barnes, 7 Hill, 35; Dunlap v. Hunting, 2 Denio, 643; Earl v. Camp, 16 Wend. 562. See Davis v. Wilson, 61 Ill. 527; Hill v. Wait, 5 Vt. 124.