A Brief History Of The Law Of Arrests
The question greatly oversimplifies and misstates the history of the law authorizing arrests in common law countries.
There have always been arrests of people not in the act of committing a crime, prior to indictments for a great many offenses. Grand juries (which are what indictments come from) are now mostly residual and archaic with many U.S. states dispensing with them because they provide little or no material benefit to defendants in most cases. Grand juries can be replaced by giving prosecutors the power to issue investigative subpoenas to investigate crimes where probable cause for a prosecution does not yet exist, and allowing for post-arrest adversarial preliminary hearings to determine probable cause that provides much more meaningful review of prosecution decisions than grand jury indictments.
The authority of a magistrate, rather than a grand jury, to constitutionally issue an arrest warrant based upon probable cause has U.S. Constitutional roots in the Fourth Amendment to the U.S. Constitution (1791) in federal criminal cases, stating:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall 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.
State practice in the late 18th century in the U.S. was substantially similar.
In the 20th century, the Fourth Amendment requirements were applied to state and local governments under the incorporation doctrine, although many states had already done so through state constitutional provisions with language similar to the federal Fourth Amendment to the U.S. Constitution. The seminal cases applying the Fourth Amendment warrant and warrantless arrest requirements to all of the states at the U.S. Supreme Court level were: Wolf v. Colorado, 338 U.S. 25 (1949) (dicta applied core provisions to the states), Mapp v. Ohio, 367 U.S. 643 (1961), Ker v. California, 374 U.S. 23 (1963) (warrantless searches and seizures), and Aguilar v. Texas, 378 U.S. 108 (1964) (warrant requirement).
Positive Legal Authorization To Make Arrests
Arrests in most states and under federal law are authorized by statute, although I suspect that there are a few jurisdictions where this authority still arises as a matter of common law rather than statute.
Federal laws statutes authorizing arrests can be found, for example, in all federal criminal cases, here, and designated the FBI as a federal law enforcement agency with the authority to make arrests here.
In Colorado, the basis legal authority to make arrests is provided in multiple statutory sections at Article 3 of Title 16 (Criminal Procedure). The most commonly used section of that Article is Colorado Revised Statues § 16-3-102, governing arrests by law enforcement, which states:
(1) A peace officer may arrest a person when:
(a) He has a warrant commanding that such person be arrested; or
(b) Any crime has been or is being committed by such person in his
presence; or
(c) He has probable cause to believe that an offense was committed and
has probable cause to believe that the offense was committed by the
person to be arrested.
A fairly typical modern statute authorizing the use of force by law enforcement to make such arrests in a criminal code based upon intellectually influential but not widely adopted the Model Penal Code is Colorado Revised Statutes § 18-1-707 which provides (with provisions related to deputized citizens, citien's arrests, and detention facilities omitted; bold headings in brackets are inserted editorially) that:
[Ordinary Arrests By Law Enforcement]
(1) Except as provided in subsections (2) and (2.5) of this section, a
peace officer is justified in using reasonable and appropriate
physical force upon another person when and to the extent that he
reasonably believes it necessary:
(a) To effect an arrest or to prevent the escape from custody of an
arrested person unless he knows that the arrest is unauthorized; or
(b) To defend himself or a third person from what he reasonably
believes to be the use or imminent use of physical force while
effecting or attempting to effect such an arrest or while preventing
or attempting to prevent such an escape.
[Arrests Made Using Deadly Physical Force By Law Enforcement]
(2) A peace officer is justified in using deadly physical force upon
another person for a purpose specified in subsection (1) of this
section only when he reasonably believes that it is necessary:
(a) To defend himself or a third person from what he reasonably
believes to be the use or imminent use of deadly physical force; or
(b) To effect an arrest, or to prevent the escape from custody, of a
person whom he reasonably believes:
(I) Has committed or attempted to commit a felony involving the use or
threatened use of a deadly weapon; or
(II) Is attempting to escape by the use of a deadly weapon; or
(III) Otherwise indicates, except through a motor vehicle violation,
that he is likely to endanger human life or to inflict serious bodily
injury to another unless apprehended without delay.
[Chokeholds]
(2.5)(a) A peace officer is justified in using a chokehold upon
another person for the purposes specified in subsection (1) of this
section only when he or she reasonably believes that it is necessary:
(I) To defend himself or herself or a third person from what he or she
reasonably believes to be the use or imminent use of deadly physical
force or infliction of bodily injury; or
(II) To effect an arrest, or to prevent the escape from custody, of a
person whom he or she reasonably believes:
(A) Has committed or attempted to commit a felony involving or
threatening the use of a deadly weapon; or
(B) Is attempting to escape by the use of physical force; or
(C) Indicates, except through a motor vehicle, that he or she is
likely to endanger human life or to inflict serious bodily injury to
another unless he or she is apprehended without delay.
(b) For the purposes of this subsection (2.5), “chokehold” means a
method by which a person holds another person by putting his or her
arm around the other person's neck with sufficient pressure to make
breathing difficult or impossible and includes, but is not limited to,
any pressure to the throat or windpipe, which may prevent or hinder
breathing or reduce intake of air.
[Definitions and Caveats]
(3) Nothing in subsection (2)(b) or subsection (2.5) of this section
shall be deemed to constitute justification for reckless or criminally
negligent conduct by a peace officer amounting to an offense against
or with respect to innocent persons whom he is not seeking to arrest
or retain in custody.
(4) For purposes of this section, a reasonable belief that a person
has committed an offense means a reasonable belief in facts or
circumstances that if true would in law constitute an offense. If the
believed facts or circumstances would not in law constitute an
offense, an erroneous though not unreasonable belief that the law is
otherwise does not render justifiable the use of force to make an
arrest or to prevent an escape from custody. A peace officer who is
effecting an arrest pursuant to a warrant is justified in using the
physical force prescribed in subsections (1), (2), and (2.5) of this
section unless the warrant is invalid and is known by the officer to
be invalid.
Note, however, that this statute purports to authorize some arrests that 4th Amendment case law has held are unconstitutional (not all of which are easily summarized succinctly).
