
    *City Council v. J. W. Payne.
    The city guard of Charleston have the right to arrest persons committing affrays or breaches of the peace, without any warrant.
    This was an appeal from a decision had before the Inferior Oity Court..
    The report of the Recorder states, that “this was a prosecution for opposing the city guard in the performance of their duty, under the 12th sec. of the city ordinance, for regulating the city guard, passed 17th October, 1806. That Lieut. Fell, of the city guard,'said, that about half past two o’clock, in the morning of the 4th- of March, 1820; he heard a great noise in Meeting St.; that upon going to the spot,, he saw two men, apparently drunk; that they were making a riot; were using very harsh language towards each other, and fighting; that the witness separated them, and told them they must go with him'to the guard-house; that he took one of the rioters into his own custody, and delivered the other to a sentinel; that the sentinel was stopped by the defendant, and another person with him ; the defendant demanding the warrant of the guard, saying, without one, a citizen could not be arrested, unless found in the act of house-breaking, stealing, or committing murder-; that the witness asked the defendant if he knew what he was doing, the'defendant said yes; that defendant said the guard should not carry a white man to the guardhouse ; that the witness told the defendant to desist from opposing him in his duty, and asked him if he would continue to do so ; that the defendant said he would ; the witness replied, if he opposed him when doing his duty, he would report the matter to the Council; the defendant then took the prisoner," Turn-bull, from the guard; the witness, not choosing to make more resistance, as the defendant-declared he would take the prisoner at the risk of his life; that whilst the witness had hold of one of the prisoners, the defendant seized the prisoner by the arm, called for assistance, and said that he would prevent any man from being carried to the guard-house, at the risk of his life.
    *4761 ®eo- Granby. a citizen, said he heard the defendant declare that ■* the guard should not carry that man, meaning one of the prisoners, to the guard-house ; and that the persons apprehended, were making a great noise.
    “ Mr. Ripley said that he heard a person, whom he recognized as the defendant, say, that whilst he drew the breath of life, no guard should carry a citizen to the guard-house.
    “ Mr. Murray said pretty much to the same as Mr. Ripley.
    “ Lewis Rogers, one of the guard, heard the defendant say, it was a shame hat a parcel of drilled men should carry a citizen to the guard-house; that they should not, and he would prevent them, if they were dragging a dog' to the guard-house.
    “ Mr. Street, a citizen, heard the defendant say that no white man should be carried to the guard-house; that Lieut. Fell asked the defendant if he intended to molest the guard in the execution of their duty; that the defendant replied yes, and wished he had arms.
    “ Mr. Wm. 0. Young, called by the defendant, said that he was walking down the street with the defendant, when he heard some men call to them; that they returned, when they saw a guardman having a white man in his custody; that the defendant asked the guard what he was going to do; he replied, to carry the prisoner to the guard-house; that the defendant asked him if he had a warrant; that Lieut. Fell then came up, when the defendant asked him for his warrant; the Lieutenant said his commission from the City Oouncil was his warrant; that defendant asked who created it; the Lieutenant answered, the City Oouncil, and that he was a peace officer of the city; that the defendant said to the Lieutenant, will you give the man up? the defendant then holding the prisoner, the Lieutenant said he could not; that the Lieutenant then required the defendant to give up the prisoner; to which the defendant said no, unless you will show your warrant; that the guard should not carry a white man to the guard-house ; that the Lieutenant afterwards gave 'x'up r-x-yi^ the man to the defendant, saying that the defendant mast be responsible L 41 ‘ for his conduct, as he would report him to the Council, and have the matter tried; the witness added, that one of the men apprehended, was intoxicated, the other was not.
    “The defendant’s counsel contended, that the defendant could not be found guilty of the offence, with which he was charged, as the city guard had no authority to arrest the prisoner, who had been rescued; that as the guard transgressed their powers in apprehending a citizen, under the circumstances stated, the taking him out of their custody could not be regarded as molesting them in the performance of their duty.
    “ The attorney-general read the 12th sec. of the ordinance of October, 1806, to show that the prisoners, who were committing a breach of the peace, were liable to be arrested; he contended that the guard were the peace officers of the city, having the powers of constables and watchmen ; that the City Council, under their Act of Incorporation, had authority to appoint such officers; and that under similar circumstances, a peace officer, or even a private individual, would have been authorized to arrest. He relied upon the Act of Incorporation. 4 Black. Com., 144, and Dalton’s Sheriff.
    “ I observed to the jury, that the City Council were authorized by the Legislature to make such rules and ordinances as they considered requisite for the security, welfare, and convenience of the city, and for preserving peace and good order within it; that they were also empowered to appoint such officers as they should deem necessary to carry into execution their rules and ordinances ; that, under these provisions of their charter, they had constituted a city guard for the purpose of preserving the peace of the city, and had required the members of that body, among other duties to be performed by them, to apprehend disturbers of the peace, committing noise, tumult, or riot; that it was evident, in this case, that the individuals apprehended, had disturbed the peace; that they were creating *a tumult in the city; that the affray in [--X-417Q which they were engaged, might have terminated in bloodshed, or even L ° murder; that, at a late hour of the night, such outcries could only be suppressed by the guard, as the ordinary civil magistrates could not then be resorted to, and that an ability to put a stop to such tumults was doubtless necessary to the tranquillity and peace of the citizens. But that, nevertheless, if the exercise of the authority of the City Council, through the interference of the guard, was inconsistent with the laws of the land, it could not be maintained by a court of justice; it was therefore incumbent upon me to express an opinion, whether the exercise of such an authority, in such a mode, was a violation of the laws of the State. From time immemorial, constables and watchmen had authority, without warrant, to arrest those whom they saw engaged in an affray or breach of the peace, and to detain them until they should find proper sureties. This practice was not only sanctioned by .the common law, but by the usages, which, I believe, prevailed in all the large cities of the Union, without which, a populous town must frequently be subjected to scenes of violence and disorder. I regarded the city guard, who were peace officers of the city, in the light of watchmen and constables, as possessing the same powers as those officers; and thought, that an arrest by the guard, was no greater infringement of the rights of the citizen, than an arrest under similar circumstances by a constable or a watchman ; that the arming of the guard did not render tlieir authority less legal, it being well known that they were armed for the purpose of inspiring terror among a certain class of our population; that if the guard exceeded their legitimate powers, they were as responsible as any other individual, for their acts; that in saying they might arrest, in certain instances, I did not mean to imply that they might detain individuals arrested, if bail should be directed to be taken; that an- arrest might be legal, and a detention illegal; but in this case it was not necessary *4701 *t° consider any thing more than the legality of the arrest, which J appeared to me to be the sole question to be decided.
    “ The jury found the defendant guilty.
    “A notice was served upon me, that a new trial would be moved for, on the ground : That the Oourt misdirected the jury, in advising them, that it was lawful for the city guard to arrest and confine white men in the manner prescribed by the city ordinance upon this subject.”
    
      Mauger and Elliott, for the motion. Hayne, Attorney-General, contra.
    
      
       A. D. 1783, 7 Stat. 98, § 4.
    
   The opinion of the Oourt was delivered by

Gantt, J.

After the very able view which has been taken by the Recorder, of the nature of the offence of which the party rescued had been guilty, and of the propriety and legality of the power given to the City Council, to cause such offenders against the safety and peace of the city to be arrested, it would be superfluous to add anything in support of the opinions advanced in his report. As to the law of the case, the deductions drawn by him from the facts which the case presents, are considered as correct; and his opinion is adopted as the opinion of this Court.

Richardson, Huger, Bay, Nott and Johnson, JJ., concurred.

See Acts, 1839, 11 Stat. 56, § 10; 1855, 12 Stat. 421.  