* For the prevention or suppression of the more serious [* 497 ] offenses, which come within the description of riot, or unlawful, riotous, and tumultuous assemblies, a justice is armed with very large and peculiar powers; and the sanction of his presence should always be obtained, when time and circumstances permit, as it not only prevents any disposition to unnecessary violence on the part of those who act in suppressing the tumult, but is also likely to induce, from the known authority of the magistrate, a more ready submission on the part of the rioters, to the measures used for this purpose. In all cases of dangerous riot, and outrageous violations of the public peace, he is authorized to command the assistance, not only of peace officers and of all persons present at the commission of such offenses, but he may also command all persons whatsoever to attend and give their assistance, and he may take with him whatever number of persons, and armed in whatever manner he may think necessary; though giving fire-arms on such occasions is generally imprudent. () The number and force of the assistance will of course depend upon the dangerous character of the riot, the number of the rioters, the probability of resistance, and other circumstances. This is termed raising the posse comitatus, or power of the county; and all persons whatsoever, above the age of fifteen years, except clergymen, women, or persons disabled by disease or infirmity, are bound, when thus required, under pain of fine or imprisonment, to attend and assist the magistrate. () The power to raise the posse comitatus is given to justices of the peace, both at common law and by the ancient statutes mentioned in 1 Hale, 53, and 1 Hawk., ch. 65, s. 18, 20, as well as by several modern statutes. But the practice of resorting to it has fallen into disuse for some time past.

As in the case of an affray, so a fortiori in case of a riot, a justice may, by word of mouth, and without warrant, command the arrest of those whom he finds riotously assembled; and by force of such bare parol command, the person thus commanded may pursue and arrest the offenders, even out of the presence of the justice. (w) So, also, if there be a riot likely to happen by a tumultuous meeting, &c., he may either himself arrest, or command others to arrest, the parties in order to prevent it; (2) or if he has information that persons are riotously assembled at a certain place, and upon going thither does

(u) 1 Nun & Walsh, 136. 5 Car. & P., 272. Id., 283. (v) Id., 137.

(w) 2 Hale, 114. 1 Hawk., ch. 65, § 16.
(x) Id., 86, 87.

not find them, he may leave his officers, with a command to arrest the parties if they shall come. ()

4. Authority under laws of the United States.

The authority and duty of justices of the peace under the laws of the United States are merely ministerial. They have no [*498] judicial power whatever; as the state courts have no

jurisdiction of criminal offenses against the United States or of the penal laws thereof. And it has been frequently decided, that congress has no right to confer such jurisdiction upon them. (z) The authority which they possess is conferred by the 33d section of the act of congress of Sept. 24, 1789, which section is as follows: "For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or any magistrate of any of the United States, where he may be found, agreeably to the usual mode of process against offenders in such states, and at the expense of the United States, be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offense; and copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case ; which recognizances, the magistrate before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses, shall be in a district other than that in which the offense is to be tried, it shall be the duty of the judge of that district where the delinquent is imprisoned, seasonably to issue, and of the marshal of the same district to execute, a warrant for the removal of the offender and the witnesses, or either of them, as the case may be, to the district in which the trial is to be had. And upon all arrests in criminal cases bail shall be admitted, except where the punishment may be death: in which cases it shall not be admitted but by the supreme or a circuit court, or a judge of a district court."

As, under the above section, the defendant must be committed or bailed for trial in such court as has cognizance of the offense, it is necessary to remark, that under the laws of the United States, there are in each district two courts of original criminal jurisdiction; the

(y) 1 Hawk., ch. 65, § 16.

(z) 3 Story's Com. on Const., 622, 3, 4. 17 John., 4.

circuit court and the district court. The district courts have, exclu sively of the courts of the several states, cognizance of all crimes and offenses cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months is to be inflicted. The circuit courts have exclusive jurisdiction of all crimes and offenses cognizable under the authority of the United States, except where it is otherwise provided by the laws of the United States, and concurrent jurisdiction with the district courts, of the crimes and offenses cognizable therein. (a) (3)

*The fees of a justice, for services under this act, are [* 499] the same as are given for similar services under the Revised Statutes.

5. Duty as to stolen property.

The provisions of the Revised Statutes on this subject, formerly in force, are superseded by the Code of Criminal Procedure. (4)

(a) Laws of U. S., act of Sept. 24, 1789, §§ 9, 11.

(3) But the courts of the United States have no jurisdiction over crimes, except such as is conferred upon them by statute. They can not exercise jurisdiction under the common law, alone. (4 Cranch, 75; 7 id., 32; 1 Wheat., 415; 3 id., 336; 1 Woodb. & M., 221, 401; 3`Blatch., 435; 2 McLean, 431; 5 id., 178; 2 Dall., 384, 393; Hempst., 411.)

(4) DISPOSAL OF PROPERTY STOLEN OR EMBEZZLED.

The Code of Criminal Procedure contains the following provisions:

When property is in custody of a peace officer.]—When property alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it, subject to the order of the magistrate authorized by the next section to direct the disposal thereof. (§ 685.)

Order for its delivery to owner.]—On satisfactory proof of the title of the owner of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the owner, unless its temporary retention be deemed necessary in furtherance of justice, on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property. (§ 686.)

When it comes into custody of magistrate, he must deliver it to owner, on proof of title and payment of expenses.]— If property stolen or embezzled come into the custody of a magistrate, it

6. Duty and authority in respect to search warrants. The duty and authority of justices of the peace, as regards search warrants, also, may as well be noticed here. The Revised Statutes contain various provisions relative to search warrants, most of which have also been superseded by the Code of Criminal Procedure. (5) Some, however, seem to be still in force.

must, unless its temporary retention be deemed necessary in furtherance of justice, be delivered to the owner, on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. (§ 687.)

Court in which trial is had for stealing or embezzling it, may order it to be delivered to owner.]-If property stolen or embezzled have not been delivered to the owner, the court before which a trial is had for stealing or embezzling it, may, on proof of his title, order it to be restored to the owner. (§ 688.)

If not claimed in 'six months, to be delivered to county superintendent of the poor, or in New York, to commissioners of charities and corrections.]-If property stolen or embezzled be not claimed by the owner, before the expiration of six months from the couviction of a person for stealing or embezzling it, the magistrate or other officer having it in his custody must, on payment of the necessary expenses incurred in its preservation, deliver it to the county superintendent of the poor, or in the city of New York, to the commissioners of charities and corrections, to be applied for the benefit of the poor of the county or city, as the case may be. (§ 689.)

Receipts for money or property.]—Except in the city of New York, when money or other property is taken from a defendant, arrested upon a charge of a crime, the officer taking it must, at the time, give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant, and the other of which he must forthwith file with the clerk of the court to which the depositions and statements must be sent, as provided in section 221. (§ 690.)

Duties of police clerks in the city of New York, etc.]— The commissioners of police of the city of New York may designate some person to take charge of all property alleged to be stolen or embezzled, and which may be brought into the police office, and all property taken from the person of a prisoner, and may prescribe regulations in regard to the duties of the clerk or clerks so designated, and to require and take security for the faithful performance of the duties imposed by this section, and it shall be the duty of every officer into whose possession such property may come, to deliver the same forthwith to the person so designated. (§ 691.)

(5) SEARCH WARRANTS.

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, ought not to be violated; and no war

If there be positive proof that any property stolen or embezzled is concealed in any particular house or place, the warrant may

rants can issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Const. U. S., 4th amend❜t; 1 R. S., 7th ed., 30; Const. of N. Y., art. 1, § 9; Bill of Rights, § 11; 1 R. S., 7th ed., 269.)

As to search warrant for child concealed by Shakers. (See 2 R. S., 149, § 5; 3 id., 7th ed., 2341.)

For articles pawned. (See 2 R. S., 711, § 10; 3 id., 7th ed., 2123.)

For malt liquor casks, etc. (See 2 R. S., 7th ed., 1299; Laws of 1864, ch. 276, § 3.) For property secreted from creditors by insolvent debtors. (See 3 R. S., 7th ed., 2515.)

For obscene literature, etc. All magistrates are authorized, on due complaint, supported by affidavit or affirmation, to issue a warrant, directed to the sheriff of the County within which such complaint shall be made, or to any constable, marshal or police officer within said county, directing him, them, or any of them, to search for, seize and take possession of, such obscene and indecent books, papers, articles and things. And said magistrate shall transmit, inclosed and under seal, specimens thereof, to the district attorney of the county; and shall deposit within the county jail of his county or such other secure place as to him shall seem meet, inclosed and under seal, the remainder thereof, and shall, upon the conviction of the person or persons offending against any of the provisions of this act, forthwith, and in the presence of the person or persons upon whose complaint the said seizure or arrest was made, if he or they shall, after notice thereof, elect to be present, destroy or cause to be destroyed, the remainder thereof so seized as aforesaid; and shall cause to be entered upon the records of his court the fact of such destruction. (Laws of 1872, ch. 747, § 3, as amended by Laws of 1873, ch. 777, § 4; 3 R. S., 7th ed., 2513.) For books and papers in hands of a public officer. Whenever a public officer, who has been removed from office, or whose term of office has expired, refuses to deliver over to his successor the books and papers in his custody as such officer a warrant may be issued by certain specified officers, directed to any sheriff or constable, commanding them, in the day-time, to search such places as shall be designated therein, for such books and papers as belonged to the officer so removed, or whose term of office expired, in his official capacity, and which appertained to such office, and seize and bring them before the officer issuing said warrant. (1 R. S., 124, §§ 50 to 54; id., 7th ed., 376.) A warrant may also be issued to search for the books and papers appertaining to an office where the incumbent dies, or his office, becomes vacant, and the books, etc., are withheld. (Id., § 56.)

For branded or stamped bottles, etc., used in the manufacture, etc., of soda water and other beverages. See Laws of 1875, ch. 303, § 3; 2 R. S., 7th ed., 1300.

For gambling-table, device or apparatus, etc.]-The act of 1851 (ch. 504), “more effectually to suppress gambling," provides (§ 3) that if an affidavit shall be filed with the magistrate or police justice of any town or city, before whom complaint shall have been made of an offense against any provision of this act, stating that the affiant has reason to believe, and does believe, that the person so charged in such complaint has upon his person or at any other place named in such affidavit, any specified articles of personal property, or any gambling-table, device or apparatus, or any lottery policies, public or private, the discovery of which might lead to establish the truth of such charge, the said magistrate or justice may, in his discretion, by warrant, command the officer, who is authorized to arrest the person so charged, to make diligent search for such property and table, device or apparatus, and if found, to bring the same before such magistrate or justice, and the officers so seizing shall deliver the same to the magistrate or justice before whom he takes the same, who shall retain possession of said property, and be responsible therefor, until the discharge or commitment or letting to bail, of the person so charged; and in case of such commitment or letting to bail, of the person so charged, such officer shall retain such property, subject to the order of the court before which such offender may be required to appear, until his discharge or conviction. (3 R. S., 7th ed., 1965.) Cruelty to animals.]-Upon complaint under oath or affirmation, to any magistrate authorized to issue warrants in criminal cases, that the complainant has just or reasonable cause to suspect that any of the provisions of law, relating to, or in any