JUSTICE OF THE PEACE.

PART I.

OF THE ORIGIN, ELECTION, AND OFFICE OF JUSTICE OF THE PEACE.

CHAPTER I.

OF THE ORIGIN AND OFFICE OF JUSTICES OF THE PEACE IN ENGLAND.

It is said that justices of the peace are so called because they be judges of record, and, withal, to put them in mind (by their name) that they do justice, which is, to yield to every man his own according to the laws, customs, and statutes, without respect of persons. Dalt. Justice, 7. They are appointed by the king for the conservation of the peace, and for the execution of divers things comprehended within their commission and within divers statutes committed to their charge. 3 Burn's Justice, 1. A court of record is that court which hath power to hold plea, according to the course of the common law, of real, personal, and mixed action, as the King's Bench, Com. Pleas, &c. 1 Inst. 117, 260. The Sheriff's Tourn is a court of record, and so is the Court Leet; it being the king's court, granted, by charter, to the lords of hundreds or manors. The oject of both of these courts is the preservation of the peace, and the chastisement of divers minute offences against the public good. 4 Bl. Com., 273. All courts of record are the king's courts in right of his crown and royal dignity, and, therefore, no other court hath authority to fine or imprison; so that the very erection of a new jurisdiction with power of fine and imprisonment, makes it instantly a court of record. 3 Bl. Com., 24. A court not of record is, where the proceedings are not according to the course of the common law, nor enrolled, as the county court, &c. 1 Inst., 117. 2 Roll. Abr., 574. A court not of record is the court of a private man, whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow subjects. Such are the Courts Baron incident to every manor,

and other inferior jurisdictions where the proceedings are not enrolled or recorded; but as well the existence as the truth of the matter therein contained shall, if disputed, be tried and determined by a jury. 3 Bl. Com., 25.

Justices of the peace are judges of record. (Yea, that every justice of the peace, by himself, is a judge of record, and one upon whose sole report and testimony the law reposeth itself very much, appeareth more plainly if you observe these things following :)

1. He is made under the great seal, which is a matter of record;

2. Every justice of the peace hath judicial power given unto him by the commission.

3. Also, by some statutes they have judicial power given them; for they may make a record of a force by them viewed, and may thereupon fine and imprison the offenders; yea, one justice of the peace, in some cases, may, also, hear and determine offences, and punish an offender as convict, upon his own view, or upon the confession of the offender, or upon the examination and proof of witnesses.

4. His warrant (though it be beyond his authority) is not disputable by the constable or other inferior minister, but must be obeyed and executed by them. But this must be understood when the justice of the peace hath jurisdiction of the cause for, or concerning, which he hath granted his warrant, for, otherwise, the constable, or other officer executing his warrant, seemeth to be punishable.

5. He may take a recognizance for the peace, &c., which is a matter of record, and which none can do but a judge of

record.

6. His record, (or testimony,) in some cases, is of as great force as an indictment upon the oath of twelve men, and, in some other cases, of greater force than an indictment.

7. He, also, may make out process upon indictments or informations against offenders, &c., and that out of their sessions, (in some cases.) Dalt. Justice, 8.

A record or memorial, made by a justice of the peace, of things done before him judicially, in the execution of his office, shall be of such credit that it shall not be gainsaid. One man may affirm a thing, another may deny it, but if a record once say the word, no man shall be received to aver or speak against it, for if men should be admitted to deny the same, there would never be any end of controversies. And, therefore, to avoid all contention, while one saith one thing and annother saith another thing, the law reposeth itself wholly and solely in the report of the judge. And hereof it cometh that he cannot make a substitute or a deputy in his office, seeing that he may not put over the confidence that is put in him. Great cause, therefore, have the justices to take heed that they abuse not this credit either to the oppression of the sub

ject by making an untrue record, or defrauding of the king by suppressing the record that is true and lawful. 3 Burn's Justice, 1. Their orders being judicial acts, are only voidable, for they continue orders until avoided; but the authority given to justices of the peace ought to be exactly pursued, and so it ought to appear in their orders. Dalt. Justice, 9.

Of ancient times, such officers or ministers as were instituted either for the preservation of the peace of the county, or for execution of justice, because it concerned all the subjects of that county, and they had a great interest in the just and due exercise of their several places, were, by force of the king's writ, in every several county, chosen in full or open county by the freeholders of that county: as before the instition of justices of the peace, there were conservators of the peace in every county, whose office (according to their names) was to conserve the king's peace, and protect the obedient and innocent subjects from force and violence. These conservators, by the ancient common law, were, by force of the king's writ, chosen by the freeholders in the county court, out of the principal men of the county, after which election so made and returned, then, in that case, the king directed a writ to the party so elected to take upon him and execute the office until the king should order otherwise. 3 Burn's Justice, 2.

It is reported that William the Conqueror ordained justices of the peace about the year 1070; yet justices of the peace had not their being almost three hundred years after, viz., until 1327, at which time justices or commissioners of the peace were first created by Stat. of 1 Ed. 3, by which statute it was ordained in parliament that, for the better maintaining and keeping of the peace in every county, good men and lawful should be assigned to keep the peace. Dalt. Justice, 6. Under this statute, the election of conservators of the peace was taken from the people and given to the king; this assignment being construed to be by the king's commission. 1 Bl. Com., 351. And yet the Stat. of 36. Eliz. is the first that nameth them justices of the peace. Dalt. Justice, 6.

The power, office, and duty of justices of the peace depend on their commissions and on the several statutes passed in the reign of Ed. 3, and many other statutes made since, which have created objects of their jurisdiction and greatly enlarged their authority. Dalt. Justice, 6. 1 Bl. Com., 354. The commission first empowers a justice singly to conserve the peace, and thereby gives him all the powers of the ancient conservators of the peace. It also empowers any two or more to hear and determine all felonies and other offences, which is the ground of their jurisdiction at the sessions. 1 Bl. Com., 354. This power was first given to them by the Stat. of 18. Ed. 3, and was afterwards confirmed and enlarged by divers statutes. 3 Burn's Justice, 19. And, in some cases, one justice of the peace may also hear and determine of

fences, and punish an offender as convict, upon his own view, or upon confession, or upon examination and proof of witnesses. Dalt. Justice, 125.

And it will be observed that justices of the peace, out of their sessions, are now armed with far more ample authortiy and power than the ancient conservators of the peace were; for the justices of peace have double power given them, the one of jurisdiction to convene the offenders before them (by their warrant) and, in divers cases out of their sessions, to examine, hear, and determine the cause; the other of coercion (viz., after the cause heard,) to constrain them to the obedience and observance of their order and decree, which, notwithstanding, must be according to the rules of law and justice. Whereas the ancient conservators of the peace had no jurisdiction or authority at all, either to convene the offender before them, or to examine, hear, or determine the cause, but had only coercion or punishment of an offender in some few cases. Dalt. Justice, 24.

Dalt.

Whatsoever any one justice alone may do, (either for the keeping of the peace, or in other execution of the commission or statutes,) the same, also, may lawfully be done and performed by any two or more justices; but where the law giveth authority to two, there one alone cannot execute it. Justice, 25. And yet, where a statute appointeth a thing to be done by two justices of the peace or more, if the offence be any misdemeanor or matter against the peace, there, upon complaint made of the offence to any of those justices of the peace, it seemeth that one of those justices may grant his warrant to attach the offender, and to bring him before the same justice and the other justice so appointed, (at some convenient place,) and then they to hear and determine the same. 3 Burn's Justice, 9. And it seems to be a general rule that, when a thing is appointed by any statute to be done by, or before, one person certain, that such thing cannot be done by, or before, any other; but that it ought to be done as the statute appointed, and by such express designation of one, or power given to one, all others are excluded. Dalt. Justice, 26. Where a statute requires any act to be done by two justices, it is, in general, an established rule that, if the act is of a judicial nature, or is the result of discretion, the two justices must be present to concur and join in it, otherwise it will be void. But where the act is ministerial, they may act separately, as in the allowance of a poor rate. This is the only act of two justices which has been construed to be ministerial, and the propriety of this construction has been justly questioned. 3 Term. Rep., 380. It has, however, been held that an order of removel, signed by two justices separately, is not void, but voidable, and can only be avoided by an appeal to the sessions. 4 Term. Rep., 596.

The commission of the peace, in itself, doth leave little or

nothing to the discretion of the justice of the peace, but doth limit them to proceed according to the customs, laws, and statutes; and, indeed, to leave too much to discretion, were to open a gap to corruption. And yet, all considerable circumstances can neither be comprehended in the commission, nor foreseen at the time of the making of the statutes; therefore, some things are referred to the consideration of the justices of the peace, and left to be supplied by them in their discretion. Dall. Justice, 22.

Discretion is a knowledge or understanding to discern between truth and falsehood, between right and wrong, and not to do according to our wills and private affections; and, although authority may, in some instances, be given to justices of the peace to do according to their discretion, that yet their discretion ought to be limited and bounded with the rules of reason, law, and justice; and their proceedings must be according to the laws. Discretion is, to discern by the right line of the law and not by private opinion. Dalt. Justice, 23. When any thing is left to any person to be done according to his discretion, the law intends it must be done with sound discretion and according to law. Jac. Law Dic., tit. Discretion.

And no way better shall the discretion of a justice of the peace appear, than if he (remembering that he is lex loquens) shall contain himself within law, and shall not use his discretion but only where both the law permitteth and the present case requireth. Dalt. Justice, 24.

The power and authority of a justice of the peace is limited to be exercised only within the county where he is in commission; and he shall not deal in, or punish, any trespass, or any other like offence, committed in any other county against any penal statute, though such offender shall be brought before him, except the statute shall expressly enable him so to do. Neither shall any justice of the peace, for the time that he shall be out of the county where he is in commission, take any recognizance, or any examination, or otherwise to exercise his authority in any matter that shall happen within the county where he is in commission; neither can he cause one to be brought before him out of the county where he is in commission into the other county; for, being out of the county where he is in commission, he is but as a private man. Dalt. Justice, 25. Although justices have no coercive power when out of the county; yet, it is said that recognizances and informations voluntarily taken before them, in any place, are good. And Lord Hale says, that a justice of the peace may do a ministerial act out of his county, as examining a party robbed whether he knows the felons; but that he cannot do a compulsory act, as committing a person for not giving recognizance. 3 Burn's Justice, 10.

Regularly, justices of the peace ought not to execute their office in their own case, but cause the offender to be convey