This is a certiorari directed to Stephen Kirby, Esq., one of tho justices of the peace of the county of Gloucester, commanding him to send up his proceedings touching a certain warrant issued by him on the 13th of January, 1818, for the levying and collecting of certain fines adjudged against certain persons belonging to tho second battalion of the second regiment of the Gloucester *178brigade, in tbe said warrant named, for neglect of military duty; and, also, to send up the list of delinquents delivered to him by the brigade paymaster, upon which the said warrant was granted, together with all things touching and concerning the same, as fully and entirely as before him the same remained.

To this certiorari the said justice has returned in these words : “ I do herewith send to the justices of the Supreme Court of Judicature the tax warrant by me issued, as within I am commanded. And I do further certify, that I put my name to the said tax warrant without seeing or having-delivered to me any return list of delinquents, nor does any such list remain with me, nor have I any record or proceeding whereby I can make any more full return.”

From this return it appears that there are contained in the said warrant the names of two hundred and twenty-five persons, and that the aggregate of the fines to be levied amounts to $910. This is certainly, both as to the number of persons affected, and the amount of money .to be made, a matter of no small consideration; and yet the proceeding is taken, as appears by the affidavits, upon the mere suggestion of a military officer, without any list of delinquents returned to the justice by the officer whose duty it is to make such return, without any certificate of the fines having been imposed by any competent court, without any entry made, without any paper filed, without anything of record to which the parties affected can have recourse to test the regularity of the proceeding.

It is true, that in behalf of the state they have produced the affidavit of the brigade paymaster, in which he states that he drew the warrant himself; that upon seeing the justice passing his office, he called him in to sign it, and he did sign it; that the list of delinquents annexed to it was made out by him, in part, before the signing, and was completed by him, afterwards, by adding a number, of names thereto; and that he took those 'names from returns made *179to him in due form of law. But though it has been made a matter of much interest to support this warrant, though much pains have been taken, and many witnesses examined, not one of these returns has been produced here.

Now, what does all this amount to ? does the affidavit of the paymaster at all better the matter ? taking the thing as he states it to he, is it, in any measure, a compliance with the law, either upon his part or on the part of the j ustice ? In what, is it anything more than the brigade paymaster getting the justice to sign the warrant, and then annexing to it, what, indeed, is the very essence of it, such names as delinquents, and such fines opposite to them as he might think fit; and that without any judgment or discretion of the justice exercised thereon, without any entry or other document to which recurrence can be had for redress ? Can it be, that the property of two hundred and twenty-five citizens can be made liable to seizure, and their persons to imprisonment, upon proceedings like these ? Certainly not in a free country, where rights are defined by law, where no man can bo touched in his person, property, or reputation without the lawful judgment of a competent tribunal, and that recorded, or in some way registered, so that it may be carried up and reconsidered by the tribunals of the last resort. It is manifest, therefore, that this warrant was issued improvidently and without authority ; and that, therefore, it must be set aside as to all those who have come before the court as the prosecutors of this writ.

From this view of the case, Mr. Justice Foed dissented; but, by the Chief Justice and Justice Bossell,

Let the warrant be set aside as to the prosecutors of this writ of certiorari.