United States v. Harden

• Decision Date: 01 January 1881
• Citation: 10 F. 802
• Parties: UNITED STATES v. HARDEN and others.
• Court: U.S. Court of Appeals — Fourth Circuit

10 F. 802

UNITED STATES v. HARDEN and others.

United States District Court, W.D. North Carolina.

November Term, 1881

DICK D.J.

In this case the jailer of this county informs the court that he has in his custody the defendants, who were delivered to him by the marshal without any warrant of commitment, and he requests the court to make an order authorizing him to keep said defendants in his prison.

The marshal informs the court that said prisoners were under proper warrants committed to jail in Henderson county for the want of bail required by a commissioner after a preliminary examination before him; and without any warrant they had been transported to this county for trial in this court. The marshal requests instructions as to how he shall act in such cases, as they are of frequent occurrence, and he never has a warrant authorizing transportation, but he has always regarded it as his duty to have such prisoners in court for trial.

As it is important that there should be connection, uniformity, and regularity in all criminal proceedings, I deem it proper to deliver a written opinion upon the questions presented by the jailer and the marshal in this case, and also upon some other subjects which have been called to my attention by United States commissioners. In doing so I will briefly state some of the powers and duties of commissioners as examining and committing magistrates. The circuit court is authorized by statute to appoint as many commissioners in the district as it may deem necessary; and when so appointed they should exercise the powers which are or may be expressly conferred upon them by law. They are not strictly officers of the circuit court, but exercise somewhat independent powers. They may be controlled by the court by general rules and by the mandatory writs by which courts of superior jurisdiction can control the action of courts and officers of inferior jurisdiction and powers. The forms and mode of procedure before commissioners are not expressly marked out and defined in any statute of the United States.

Section 1014, Rev. St., in conferring criminal jurisdiction upon such officers, declares that proceedings before them shall be agreeably 'to the usual mode of process' in the state where they are appointed. We may well infer that it was the intention of congress to assimilate all proceedings for holding persons accused of crime to answer before a court of the United States to the proceedings had for similar purposes by the laws of the state where such court is held. We must therefore look to the laws of this state to see what powers and duties are imposed upon justices of the peace, and what are the forms and modes of proceeding used by them as examining and committing magistrates.

Since the adoption of the present state constitution various statutes have been enacted which have enumerated with great particularity and precision the powers and duties of justices of the peace both in civil and criminal cases. The old system has been revised, both in civil and criminal cases. The old system has been revised, amended, and greatly improved both by the legislature and the decisions of the supreme court, so that now there is scarcely ever any occasion to refer to the old English statutes and decided cases for information and guidance upon the subject. But as courts of justices of the peace had their origin in the common law, questions of 'new impression' may still arise, in the determination of which we may have to refer to that bountiful source of legal knowledge and wisdom.

The laws of this state impose upon justices of the peace many important duties, and confer upon them extensive powers for the purpose of preserving the good order od society, by suppressing disturbances, and bringing violators of the criminal law to speedy justice. They are conservators of the peace, and when a felony or breach of the peace is committed in their presence they may issue a warrant of arrest without any previous affidavit, or they may verbally order the offender to be taken into custody. If a crime has been committed out of their presence they must issue a warrant founded upon an affidavit of some credible person, showing probable cause for believing that the crime alleged has been committed by the person charged. When an alleged offender is brought before a justice of the peace for examination, he is entitled to have a fair and full investigation of the matters charged in the warrant, and the justice must advise him of his legal rights on examination, and allow him a reasonable time to summon witnesses, and consult with and employ counsel to aid him in his defence. Bat. Rev. Ch. 33.

These imperative duties necessarily confer upon the magistrate the power of continuance to a future day. The rights and privileges expressly conferred by law upon a defendant would be of little benefit if he cannot give bail during the continuance of his case, for if he is committed to prison he will not have convenient opportunity of preparing his defence. I believe that the right of thus being relieved from imprisonment when arrested, in a bailable case, is a right which cannot lawfully be denied when an examination is properly continued to a future day.

There is no statute in this state which expressly confers upon a magistrate the power to take bail for appearance before him at a future day, but from the regard which the law has for the liberty of the citizen, and the 'reason of the thing,' I believe he has such power. I am fully aware of the principle of law that the powers of courts of limited jurisdiction cannot be extended by implication, but when imperative duties are imposed and certain express powers are conferred upon such courts by law, they can properly use the auxiliary means and methods necessary to perform such duties and fully exercise such powers, if such means and methods are according to the course and practice of courts of common law in administering ordinary and substantial justice. This course is certainly allowable in courts whose powers and forms of procedure originated in the common law. Such powers have always been exercised by examining magistrates in this state, and have never been denied by the supreme court. They were claimed and exercised by Chief Justice Marshall on the preliminary examination of Burr.

I am inclined to believe that when bail is taken in such cases by justices of the peace, it should be by bond in the nature of a recognizance, where the principal and sureties sign their names, as courts of justices of the peace are not courts or record, authorized to take acknowledgment of recognizances for future appearance before them. If a defendant should make default I have not formed a decided opinion as to the proper manner of enforcing the forfeiture, and I am not aware of any decision of the supreme court on the subject. Although courts of justices of the peace are not in matters of this kind strictly courts of record, judicial proceedings before them resemble records in the conclusiveness of their effects, but they do not conclusively prove themselves; yet when proved they have the power and effect of judgments of courts of record. Reeves v. Davis, 80 N.C. 209.

Justices of the peace are required by law to keep dockets and enter a summary of their proceedings therein, and it seems to me that any judgment entered by them upon a bond which they had the power to take in the name of the state, after proceeding in conformity with the course and practice of ...