¶1*272The opinion of the court was delivered by
¶2The prevalent notion that a justice of the peace has concurrent power to inquire into the circumstances of a sudden or violent death, upon view of the body, has doubtless arisen from inadvertence to the source of the coroner’s authority. In England, and perhaps in Pennsylvania, justices of the peace have authority, in certain cases, to take inquisitions by the examination of witnesses; but the 4 Ed. 1, St. 2, which is in force with us, commands the coroner alone to go to the place where any one is slain or has suddenly died; and, by warrant to the bailiffs or constables, to summon a jury from the neighbouring towns to inquire into the manner of the killing, or the circumstances of the death. He is not expressly directed to take the inquest on view of the body, but a direction to that effect is to be inferred from the duty imposed on him of repairing to the spot; and it has always been held that an inquisition taken otherwise is void, particularly in the case of the Welchmen, (Poph. 109.) But it is because this species of inquisition, and no other, is entrusted to the coroner, and to him exclusively, that the common law inquisition, by the examination of witnesses before commissioners or justices, either of oyer and terminer or of the peace, must still be taken where the body cannot be found; as is said in The King v. Parker, (2 Lev. 141;) and the King v. Aldenham, (Id. 152.) In Foxley's case, (5 Rep. 111,) it is said to have been resolved in Laughton’s case, by Poph am, C. J., and the whole court, that if the body be cast into the sea, or buried so secretly that the coroner cannot have the view, the justices of the peace, justices of oyer and terminer, or others who have authority to inquire of felonies, may take a presentment of it. From the words of the statute it results also that the coroner’s jurisdiction is a special one, and that no one else can take an inquisition in the manner prescribed. Accordingly, it was said in the King and Queen v. Bunney, (2 Salk. 190,) that if his inquisition be quashed, he must take a new one super visum corporis as he did before ; but that if a melius inquirendum be granted on a male se gessit, the new inquiry must be before sheriffs or commissioners, not super visum corporis, but upon affidavits ; for that none but the coroner can inquire super visum corporis, and he is no longer to be trusted. To the same effect is Stanlack’s case, (1 Vent. 182,) in which it is said the King’s Bench may inquire, or make commissioners to inquire ; but not super visum corpor is. In the case of the Wardens and Commonalty of Saddlers, (4 Rep. 57,) it was indeed said by Lord Coke to have been resolved by Chief Justice Finieux, in the reign of Henry the seventh, that an inquisition taken by the chief justice of the King’s Bench, as supreme coroner of all England, upon view of the body of one killed in open rebellion, was good and worked a forfeiture of his estáte. It is to be remarked of that case, that the resolution had regard to a forfeiture; and that no decision of a de*273pendent judiciary betwixt a sovereign so rapacious and his subject, ought to be drawn into precedent for any thing. The chief justice of the King’s Bench is doubtless a coroner by virtue of his office, as others are coroners, without election, by charter or commission of privilege; and even were they coroners within the purview of the statute—and the authorities quoted show that they are not—it surely could not be pretended that justices of the peace are such. They are not coroners in name ; nor have they ever been called so. In a few special cases they have power to take inquisitions by the testimony of witnesses; but they have neither part nor lot in the power confined by the 4 Ed. 1, from which alone authority to take inquisitions on view of the body is derived. It is indeed said by Hawkins, (B. 2, ch. 9,) that the statute is wholly directory and affirmative of the common law; but whether it be so or not, it permits none but the coroner to 'exercise the power specified in it,, as we must suppose the common law did. It is in force, as I have said, in Pennsylvania; but I know of no authority of our own in relation to the point in contest, unless my decision in the Commonwealth v. Brock, may be called so. At a court of oyer and terminer, held by me as president of the eleventh judicial district at Wilksbarre, in 1814, the prisoner was capitally convicted of the murder of one Dixon; but a new trial was awarded on- great consideration, because an inquisition super visum corporis, taken by a justice of the peace, had been put before the jury; and that was the first instance, I believe, in which a new trial was granted in a capital case, for any reason whatever. It results in the case- before us, that the warrant, having issued as it did on an inquisition taken coram'non judice, is illegal and void by the ninth article and sixth section, of the constitution, which declares that no warrant to search any place or to seize any person or things, shall issue without probable cause supported by oath or affirmation.
¶3Prisoner discharged.