even of courts of record, which are of so high a nature, and imply a power of keeping the peace within their own precincts, may be claimed by usage, as it seems to be certain that they may, it seemeth that the bare authority of keeping the peace in a certain district may as well be claimed by such usage. 2 Haw. c. 8. $10. The authority which such conservators of the peace, whether Powers of conby election or tenure, or prescription, have at common law, is the servators. same authority which constables of a vill or wapentake have at this day. Id. § 11. Crom. 6. The general duty of the conservators of the peace by the com- Their duty. mon law is to employ their own, and to command the help of others, to arrest and pacify all such who in their presence and within their jurisdiction and limits, by word or deed, shall go about to break the peace. Dalt. c. 1. If a conservator of the peace, being required to see the peace kept, shall be negligent therein, he may be indicted and fined. Id. And if the conservators of the peace have committed or bound over any offenders, they are then to send to or be present at the next sessions of the peace, or gaol delivery, there to object against them. Id. II. Of the Commission of Justices of the Peace. Justices of the peace at this day are of three sorts; 1. By act of parliament; as the bishop of Ely, and his successors, and the archbishop of York, and bishop of Durham, 27 H. 8. c. 24. § 20. 21. 22. 2. By charter, or grant made by the king under the great seal; as mayors and the chief officers in divers corporate towns. 3. By commission. commission. At the first, by the statute of the 1 Ed. 3., which is the first 1 Ed. 3. statute that ordains the assignment of justices of the peace by the Assignment of king's commission, those justices had no other power but only justices by to keep the peace. But the very next year the form of the commission was enlarged, and continued still further to be enlarged, both in that king's reign and in the reign of almost every other succeeding prince, until the 30th year of the reign of queen Elizabeth, when by the number of the statutes particularly given in charge therein to the justices, many of which nevertheless had been a good while before repealed, and by much vain repetition, and other corruptions that had crept into it, partly by the miswriting of clerks, and partly by the untoward huddling of things together, it was become so cumbersome and foully blemished, that of necessity it ought be redressed. Which imperfections being made known to Sir Chr. Wrey, then L. Ch. J. of the king's bench, he communicated the same with the other judges and barons, so as by a general conference had amongst them the commission was carefully refined in the Michaelmas term 1590, and being then also presented to the lord chancellor, he accepted thereof, and commanded the same to be used; which continues with very little alteration to this day. Lamb. c. 9. Which is as follows: George the third by the grace of God of the united kingdom of Form of commission. Jurisdiction of justices out of sessions. In sessions. Great Britain and Ireland, king, defender of the faith, To A. B. Know ye that we have assigned you jointly and severally and every one of you our justices to keep our peace in our county of W. And to keep and cause to be kept all ordinances and statutes for the good of the peace, and for preservation of the same, and for the quiet rule and government of our people made, in all and singular their articles in our said county (as well within liberties as without) according to the force, form, and effect of the same; And to chastise and punish all persons that offend the form of those ordinances or statutes, or any one of them, in the aforesaid county, as it ought to be done according to the form of those ordinances and statutes; And to cause to come before you, or any of you, all those who to any one or more of our people concerning their bodies or the firing of their houses, have used threats, to find sufficient security for the peace, or their good behaviour, towards us and our people; and if they shall refuse to find such security, then them in our prisons until they shall find such security to cause to be safely kept. We have also assigned you, and every two or more of you (of whom any one of you the aforesaid A. B. C. D. &c. we will shall be one) our justices to inquire the truth more fully, by the oath of good and lawful men of the aforesaid county, by whom the truth of the matter shall be the better known, of all and all manner of felonies, poisonings, inchantments, sorceries, arts magic, trespasses, forestallings, regratings, ingrossings, and extortions whatsoever; and of all and singular other crimes and offences, of which the justices of our peace may or ought lawfully to inquire, by whomsoever and after what manner soever in the said county done or perpetrated, or which shall happen to be there done or attempted; and also of all those who in the aforesaid counties in companies against our peace, in disturbance of our people, with armed force have gone or rode, or hereafter shall presume to go or ride; And also of all those who have there lain in wait, or hereafter shall presume to lie in wait, to maim, or cut, or kill our people; And also of all victuallers, and all and singular other persons, who in the abuse of weights or measures, or in selling victuals, against the form of the ordinances and statutes or any one of them therefore made for the common benefit of England, and our people thereof, have offended or attempted, or hereafter shall presume in the said county to offend or attempt; And also of all sheriffs, bailiffs, stewards, constables, keepers of gaols, and other officers, who in the execution of their offices about the premises or any of them have unduly behaved themselves, or hereafter shall presume to behave themselves unduly, or have been or shall happen hereafter to be careless, remiss, or negligent in our aforesaid county; And of all and singular articles and circumstances, and all other things whatsoever, that concern the premises or any of them, by whomsoever and after what manner soever in our aforesaid county done or perpetrated, or which hereafter shall there happen to be done or attempted in what manner soever; And to inspect all indictments whatsoever so before you or any of you taken or to be taken, or before others late our justices of the peace in the aforesaid county made or taken, and not yet determined; and to make and continue processes thereupon against all and singular the persons so indicted, or who before you hereafter shall happen to be indicted until they can be taken, surrender themselves, or be outlawed; And to hear and determine all and singular the felonies, poisonings, inchantments, sorceries, arts magic, trespasses, forestallings, regratings, ingrossings, extortions, unlawful assemblies, indictments aforesaid, and all and singular other the premises, according to the laws and statutes of England, as in the like case it has been accustomed, or ought to be done; And the same offenders and every of them for their offences by fines, ransoms, amerciaments, forfeitures, and other means as according to the law and custom of England, or form of the ordinances and statutes aforesaid it has been accustomed, or ought to be done, to chastise and punish. Provided always, that if a case of difficulty upon the determination of any the premises before you or any two or more of you shall happen to arise, then let judgment in no wise be given thereon before you or any two or more of you, unless in the presence of one of our justices of the one or other bench, or of one of our justices appointed to hold the assizes in the aforesaid county. (a) And therefore we command you and every of you, that to keeping the peace, ordinances, statutes, and all and singular other the premises, you diligently apply yourselves; and that at certain days and places which you or any such two or more of you as is aforesaid shall appoint for these purposes into the premises ye make inquiries; and all and singular the premises hear and determine, and perform and fulfil them in the aforesaid form, doing therein what to justice appertains, according to the law and custom of England; Saving to us the amerciaments, and other things to us therefrom belonging. And we command by the tenor of these presents our sheriff of W. that at certain days and places, which you or any such two or more of you as is aforesaid shall make known to him, he cause to come before you or such two or more of you as aforesaid, so many and such good and lawful men of his bailiwick (as well within liberties as without) by whom the truth of the matter in the premises shall be the better known and enquired into. Lastly, We have assigned to you the aforesaid A. B. keeper of the rolls of our peace in our said county; And therefore you shall cause to be brought before you and your said fellows, at the days and places aforesaid, the writs, precepts, processes, and indictments aforesaid, that they may be inspected, and by a due course determined as is aforesaid. In witness whereof we have caused these our letters to be made patent. Witness ourself at Westminster, &c. George the third, &c.] This manner of issuing the commission in the king's name seems to be founded on the statute of 27 H. 8. c. 24. the 27 H. 8. c. 24. § 2. 6. 19., which enacts that all justices of the (a) It appears formerly not to have been unusual for justices in sessions to reserve cases of doubt or difficulty, and submit them to the judges of assize. This practice has been little resorted to in modern times: though it is sufficiently obvious, that attention to the caution here given might occasionally prevent an erroneous judgment, the hardship of which must on any subject be severely felt, but particularly in a criminal case, where the prisoner is in indigent circumstances and unable to defray the expenses of a writ of error. — Editor. 13 R. 2. st. 1. c. 7. 2 H. 5. st. 2. c. 1. 18 G. 2. c. 20. Qualification. 1 M. Sess. 2. cation. peace shall be made by letters patent under the king's great seal, in the name and by authority of the king; but reserves to all cities and towns corporate which have justices, the liberties which they have enjoyed in that behalf. To A. B., C. D., &c. greeting.] From the persons here named in the commission, it may be proper to consider who may, or may not, be justices of the peace. By the statutes of 13 R. 2. st. 1. c. 7. and 2 H. 5. st. 2. c. 1. The justices shall be made within the counties of the most sufficient knights, esquires, and gentlemen of the law. And by the 18 G. 2. c. 20. § 1. It is enacted as follows; viz. No person shall be capable of being or acting as a justice of the peace for any county, riding, or division, who shall not have in law or equity, for his own use, in possession, a freehold, copyhold, or customary estate for life, or for some greater estate, or an estate for some long term of years, determinable upon one or more lives, or for a certain term originally created for 21 years or more, in lands, tenements, or hereditaments, in England or Wales, of the clear yearly value of 100l. above what will discharge all incumbrances affecting the same, and all rents and charges payable out of or in respect of the same, or who shall not be seised of or entitled to, in law or equity, the immediate reversion or remainder of lands, tenements, or hereditaments, being as aforesaid, leased for one, two or three lives, or for any term of years, determinable on the death of one, two, or three lives upon reserved rents, and which are of the clear yearly value of 3007. By the 1 M. sess. 2. c. 8. § 2. No sheriff shall exercise the c. 8. Disqualifi- office of a justice of the peace during the time that he acts as sheriff. And the reason seems to be, because he cannot act at the same time both as judge and officer, for so he would command himself to execute his own precepts. Dalt. c. 3. Dalt. c. 3. 5 G. 2. c. 18. Ld. Raym. 1030. Also if he be made a coroner, this by some opinions is a discharge of his authority of justice. Dalt. c. 3. But if he be created a duke, archbishop, marquis, earl, viscount, baron, bishop, knight, judge, or serjeant-at-law, this taketh not away his authority of a justice of the peace. 1 Ed. 6. c. 7. Also, by 5 G. 2. c. 18. 2. No attorney, solicitor, or proctor, shall be a justice of the peace for any county, during the time he shall continue in the practice of that business. § 4. But this doth not extend to cities or towns, counties of themselves; or to cities, towns, cinque ports, or liberties, having justices of the peace by charter, commission, or otherwise. § 5. Nor to peers of parliament, or to eldest sons or heirs apparent of such, or of persons qualified to serve as knight of a shire. 7. Nor to heads of colleges or halls in either of the two universities. And by 18 G. 2. c. 20. § 13. This is further extended to divers other persons. By Holt C. J. Though a man be a mayor, it doth not follow that he is a justice of the peace, for that must be by a particular grant in the charter. But although he be not a justice of the peace by the charter, yet there are many cases wherein he hath the same power as a justice of the peace given unto him by particular statutes; as for instance, with regard to the customs, alehouses, Lord's Day, swearing, gaming, weights, servants, fuel, leather, orchards, soldiers, and divers others. Know ye that we have assigned you.] This is founded on the 1 Ed. 3. c. 16. statute of the 1 Ed. 3. c. 16. by which "for the better keeping and maintenance of the peace, the king wills, that in every county, good men and lawful, which be no maintainers of evil, or barretors in the country, shall be assigned to keep the peace." From this act we are to date that great alteration in our con- Lamb. 20. stitution, whereby the election of conservators of the peace was taken from the people, and translated to the assignment of the king. And here we may observe, that the commission hath two parts, Dalt. c. 5. p.15. or consisteth of two different assignments: By this first assignment, any one or more justices have as well all the ancient power touching the peace, which the conservators of the peace had at the common law, as also that whole authority which the statutes have since added thereto. [The second assignment defines their powers in sessions. See title, Sessions, Vol. V.] Jointly and severally, and every one of you.] Whatsoever any Dalt. e. 6. one justice alone may do, the same also may lawfully be done by any two or more justices; but where the law giveth authority to two, there one alone cannot execute it. And yet where a statute appointeth a thing to be done by two Dalt. c. 6. justices 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, it seemeth that one of them may grant out 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. But it seemeth that when a thing is appointed by any statute Dalt. c. 6. to be done by or before one person certain, such thing cannot be done by or before any other; and by such express designation of one, all others are excluded, and their proceedings therein are coram non judice. Our justices.] In that the king calls them our justices, their authority determines of course by his death or demise. But by the 1 Ann. st. 1. c. 8. § 2. No patent or grant of any office or employment shall determine by the king's death or demise, but shall continue in force for six months after, unless in the mean time made void by the successor. Also, before his death or demise, the king may determine the commission at his pleasure; and that either expressed, as by writ under the great seal, or by implication, by making a new commission, and leaving out the former justices' names. But until notice, or publishing of the new commission, the acts of the former justices are good in law. Dalt. c. 3. 1 Dalt. c. 3. An. st. 1. c.8. How far dependent on the king's demise. But to mayors and chief officers in corporations, which have the As to officers in authority of justices of the peace, or of conservators of the peace, corporations. by grant under the king's letters patent to them and their succes sors, the authority remaineth, notwithstanding the king's death or demise. Dalt. c. 3. Neither can the king discharge these at his pleasure: but yet such grants and charters may for some great and general de |