§ 154. A peace officer is a sheriff of a county, or a constable, marshal or policeman of a city, town or village. § 155. If the warrant be issued by a judge of the supreme court, or of the superior court or court of common pleas, in the city and county of New-York, or by a county judge, or by the presiding judge of a city court, it may be directed generally to any sheriff, constable, marshal or policeman in the state, and may be executed by any of those officers to whom it may be delivered. § 156. If it be issued by any other magistrate, it may be directed generally to any sheriff, constable, marshal or policeman in the county in which it is issued, and may be executed in that county; or if the defendant be in another county, it may be executed therein, upon the written direction of a magistrate of that county endorsed upon the warrant, signed by him, with his name of office, and dated at the city, town or village where it is made, to the following effect: "This warrant may be executed in the county of Monroe," [or as the case may be.] § 157. The endorsement mentioned in the last section, cannot, however, be made, unless upon the oath of a credible witness, in writing, endorsed on or annexed to the warrant, proving the hand writing of the magistrate by whom it was issued. Upon this proof, the magistrate endorsing the warrant is exempted from liability to a civil or criminal action, though it afterwards appear that the warrant was illegally or improperly issued. The last three sections are in substantial conformity with 2 R. S, 3d ed., 793. sec. 4-6. § 158. If the offence charged in the warrant be a felony, the officer making the arrest must take the defendant before the magistrate, who issued the warrant, or some other magistrate in the same county, vided in section 162. as pro Substantially the same as 2 R. S., 31 ed., 794, sec. 11. § 159. If the offence charged in the warrant be a misdemeanor, and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county who must admit the defendant to bail, and take bail from him accordingly. Substantially the same as 2 R. S. 3d ed. 793, sec. 8. § 160. On taking bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer having charge of the defendant. The officer must then discharge the defendant from arrest, and must without delay, deliver the warrant and undertaking to the clerk of the court at which the defendant is required to appear. Substantially the same as 2 R. S., 3d ed., 794, sec 9. § 161. If, on the admission of the defendant to bail, as provided in section 159, bail be not forthwith given, the officer must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in the next section. Substantially the same as 2 R. S., 3d ed., 794, sec. 10. § 162. When, by the preceding sections of this chapter, the defendant is required to be taken before the magistrate who issued the warrant, he may, if the magistrate be absent or unable to act, be taken before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate, the warrant with his return endorsed and subscribed by him. Founded upon and the same in principle as 2 R. S., 3d ed., 794, sec. 12. § 163. The defendant must, in all cases, be taken before the magistrate without unnecessary delay. § 164. If the defendant be taken before a magistrate other than the one who issued the warrant, the depositions on which the warrant was granted must be sent to that magistrate, or if they cannot be procured, the prosecutor and his witnesses must be summoned to give their testimony anew. The last two sections are new, but necessary to carry out the spirit of the previous secti ns. SECTION 165. CHAPTER III. ARREST BY AN OFFICER, UNDER A WARRANT. Arrest, defined. 166. By whom an arrest may be made. 167. Every person bound to aid an officer in an arrest. 168. When the arrest may be made. 169. How an arrest is made. 170. No further restraint allowed, than is necessary to arrest and de- 171. Officer must state his authority, and show warrant, if required. 173, 174. When officer may break open a door or window. The provisions of this chapter, and of chapters 4, 5 and 6, which follow, are intended to define the rights and duties, as well of public officers as of private citizens, in the arrest with or without a warrant, of persons charged with crime. In respect to this it may be remarked, as has been already done in reference to the right of lawful resistance to the commission of an offence, p. 36, 37, that they have been hitherto left wholly unregulated by positive or written law. If, in the one case, a system of appropriate regulation might have been excusably omitted, the Commissioners do not well see, with what propriety they could have overlooked its introduction, in respect to this branch of duty. The good order of society requires, in order that crime may be detected and punished, that the arrest of criminals should in all cases be justified, where, but for the existence of a well defined right, it would elude both detection and punishment. It is upon this great principle, that the rules of the common law, by which the extent of this right have been defined, are established. If it could be reasonably, supposed, that in the thousand emergencies which arise, the public officer or the citizen was so well versed in those principles, as to be able safely to apply them, there would be no necessity for legislation. But when it is remembered, that in all these cases he acts at the peril of a lawful resistance, even to the extent of taking his life by the party arrested, or of the consequences of a civil action, where he has transcended his powers, the duty of the legislature, clearly to define them, would seem to be beyond dispute. It is a case of no unfrequent occurrence, that in the attempted arrest of a public offender, the citizen, who incurs great risk for the vindication of the law, is subjected to consequences like these; and the books are not barren of cases where the sacrifice of the life of an innocent person, acting under a mistaken but honest view of his duty, has been successfully defended, on the ground that he had transcended his authority. It may be true, that the common law sufficiently defines it; but it is equally true, that the sources of that law are hidden from the view of those who are most frequently called upon to exercise the power in question; and it is for the legislature to determine, whether it should be left in uncertainty and doubt, when by a few well timed enactments, the evil can be so easily remedied. The importance of this subject was not overlooked by Mr. Livingston, in his report of a criminal code, already referred to; and the Commissioners cannot forbear quoting the forcible and eloquent remarks with which he urges upon the legislature, the important and solemn duty. of clear and distinct legislation upon this subject. "Officers of justice," says he, "often uneducated and overbearing men, either do not know, or designedly exceed the bounds of their authority. The accused sometimes submits to illegal acts; at others, resists those to which he ought to submit. The citizen, when legally called on to enforce the execution of the law, refuses to obey, or makes himself liable to a prosecution, for aiding in an illegal arrest; and it is believed that of all the cases of murder, manslaughter, violent assault and false imprisonment, reported in the books, no inconsiderable proportion will be found to have arisen from ignorance of rights and duties in granting warrants, in making arrests or resisting them-ignorance inevitable, from the state of our laws; for where, (it is asked on this, as it has been on former occasions,) where is the necessary information to be obtained? The written law is silent; the oracles who pronounce that which is unwritten, only speak when the case has already happened; and the unfortunate citizen, called on to act or suffer at a moment's warning, is forced to do it at his own risk; for those to whom he has confided the care of framing rules for his government, have hitherto obstinately refused, or negligently omitted to dictate them. It is time that this duty should be done it is more than time that this reproach should be taken away from our legislation. You declare that every man who kills an officer in the legal discharge of his duty, is guilty of murder, and shall suffer death. You say |