State v. Drake , 36 Me. 366 ( 1853 )

Shepley, C. J. —

There can be little doubt, that the common law required, that warrants issued for the arrest or imprisonment of a person, by magistrates, should be under seal. The practice appears to have conformed to it in England and in this country. No case has been presented or noticed, in which a warrant issued without a seal, for such a purpose, has been 'decided to be valid. To require a seal in such cases, may not be important, only as matter of form. It gives the instrument a higher grade of character, arrests the attention in the hurry of business, allowing a pause for reflection.

The cases deciding, that a warrant may be valid without a seal, do not appear to have been those authorizing an arrest or imprisonment of a person. They might have been correctly decided, as they were, without asserting the doctrine, that a warrant ex vi termini did not imply an instrument under seal. It may be correct, that the word in common parlance signifies no more than an authority. It will not follow, that by usage in the enactment of laws for the punishment of offences, and in judicial precepts, it has not acquired a more definite and limited signification.

The almost unbroken line of judicial precepts denominated warrants, and having seals affixed in conformity to the requirements of the common law, would authorize the conclusion that it had. While courts have admitted and legislatures have enacted, that a scroll, scrawl or scratch, might be regarded as a seal, it is not known that any one has determined, that a seal of some description was not necessary to give validity to instruments, required to be executed or issued under seal.

In the case of the State v. Coyle, 33 Maine, 427, a seal appears to have been regarded as essential on a warrant issued in a criminal prosecution.

In the case of State v. McNally, 34 Maine, 210, there was a seal, or what was designed for one, affixed in the form commonly practiced by magistrates issuing warrants and by scriveners in the execution of conveyances.

If a warrant issued without a seal in a criminal prosecution, by a magistrate, may be valid, it would seem that one might be when so issued by any court of justice; and yet all such precepts issuing from a court having a seal, must be issued under the sanction of that seal. This appears, to have been admitted by the Lord Chief Justice, in his opinion in the case of Padfield v. Cabell, Willes, 411, when the precept issued from any court of record.

Whenever it has been held, that a warrant issued in a criminal prosecution might be valid without a seal, it is apparent, that there has been a straining of the law to support the proceedings. Such a course is unauthorized, and far from being productive of good general results.

Exceptions sustained and proceedings quashed.

Tenney, Howard and Appleton, J. J., concurred.