The coroner is chosen for life: but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king's writ de coronatore exonerando, for a cause to be therein assigned, as that as he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it. (s) And by the statute 25 Geo. II. c. 29. extortion, neglect, or misbehaviour, are also made causes of removal.24 The office and power of a coroner are also, like those of the sheriff, either judicial or ministerial; but principally judicial. This is in a great measure ascertained by statute 4 Edw. I. de officio coronatores; and consists, first, in inquiring, when any person is slain, or dies suddenly, or in prison, concerning the manner of his death. 25 And this must be "super "visum corporis." (s) for, if the body be not found, the coroner cannot sit. (1) 26 He must also sit at the very place where the death happened: and his inquiry is made by a jury from four, five, or six, of the neighbouring towns, over whom he is to preside. If any be found guilty by this inquest of murder or other homicide, he is to commit them to prison for farther trial, and is also to inquire concerning their lands, goods, and chattels, which are forfeited thereby: but, whether it be homicide or not, he s F. N. B. 163. 164. 27 s 4 Inst. 271. t Thus, in the Gothic constitution, before any fine was payable by the neighbourhood, for the slaughter of a man therein, de corpore delicti constare opportebat; i. e. non tam fuisse aliquem in territorio isto mor tuum inventum quam vulneratum et caesum. Potest enim homo etiam ex alia causa subito mori." Stiernhook de jure Gothor. l. 3. c. 4. lowed for an inquisition, in case of murder or manslaughter, to be paid by the offender, if he have goods, if not, then by township. And by 25 Geo. II. c. 29. s. 1. for every inquisition (except in a gaol) twenty shillings is allowed, and also nine-pence per mile for travelling from his usual place of abode to take the inquisition, to be paid out of county rates. By sec. 3. If the inquisition be on a body dying in prison, justices may allow what they think fit, not exceeding twenty shillings, to be paid in like manner. By sec. 3. this act don't extend to coroners of the king's household, &c. nor coroners of the admiralty, nor of county palatine of Durham, nor of city of London, &c. See 7 T. R. 52. It is discretionary, whether the justices will allow the fee under the 25 Geo. II. c. 29. s. 1. 11 East, 229. And a coroner, under this act, is not entitled to any compensation for the miles travelled by him in returning from the inquisition. 2 B. & A.203. Chitty. (24) In lord Buckhurst's case, 1 Keb. 280. the coroner not returning his inquisition to the next gaol delivery, but suppressing it, was discharged from his office and find 1001. (25) When an unnatural death happens, the township are bound under pain of amerciament to give notice to the coroner. 1 Burn J. 25 ed. 786. Indeed it seems indictable to bury a party who died an unnatural death, without a coroner's inquest, id.; and if the township suffer the body to putrify, without sending for the coroner, they shall be amerced, id. When notice is given to the coroner, he should issue a precept to the constable of the four, five, or six next townships, to return a competent number of good and lawful men of their townships, to appear before him in such a place, to make an inquisition touching that matter; or he may send his precept to the constable of the hundred. 2 Hale, 59. 4 Edw. I. st. 2. Wood. Inst. b. 4. c. 1. As to form of inqui sition, see 2 Lord Ray. 1305. Burn J. 1 vol. 25 ed. 787. 9. If the constables make no return, or the jurors returned appear not, they may be amerced. 2 Hale, 59. It seems that a coroner ought to execute his office in person, and not by deputy, for he is a judicial officer. 2 Hale, 58. Wood. Inst. b. 4. c. 1. 1 Burn J. 24 ed. 787: 789. 3 Bar. & Ald. 260. The jury appearing, is to be sworn, and charged by the coroner to inquire, upon the view of the body, how the party came by his death. 2 Hale, 60. See form of charge, 4 Edw. I. st. 2. called the statute de officio coronatoris. 1 Burn J. 24 ed. 787. The coroner must hear evidence on all hands, if offered to them, and that upon oath. 2 Hale, 157. Leach, 43. When the inquest is determined, the body may be buried. 4 Edw. I. st. 2. As to the manner of holding inquests, &c. on parties dying in prisons, see Umfreville's Coron. 212. 2 Hale, 61. 1 Burn J. 24 ed. 789. Chitty. (26) 3 B. & A. 260. If the body be interred before the coroner come, he must dig it up; which may be done lawfully within any convenient time, as in fourteen days. 2 Hawk. c. 9. s. 23. 1 Burn J. 24 ed. 787. If the body cannot be viewed, the coroner can do nothing but the justices of the peace, or of oyer and terminer, may inquire of it. 1 East, P. C. 379. Hawk. b. 1. c. 27. s. 12, 13. 1 Burr. 17. Chitty. (27) But it is not necessary that the inquisition be taken at the same place where the body was wed; but they may adjourn to a place more convenient. 2 Hawk. c, 9. s. 25. must inquire whether any deodand has accrued to the king, or the lord of the franchise, by this death and must certify the whole of [349] this inquisition (under his own seal and the seals of his jurors), (u) together with the evidence thereon, to the court of king's bench, or the next assizes. 28 Another branch of his office is to inquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. Concerning treasure-trove, he is also to inquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure; " and that may be well perceived (saith the old "statute of Edw. I.), where one liveth riotously, haunting taverns, and "hath done so of long time;" whereupon he might be attached, and held to bail, upon this suspicion only. The ministerial office of the coroner is only as the sheriff's substitute. For when just exception can be taken to the sheriff, for suspicion of partiality (as that he is interested in the suit, or of kindred to either plaintiff or defendant), the process must then be awarded to the coroner, instead of the sheriff, for execution of the king's writs. (v) 29 III. The next species of subordinate magistrates, whom I am to consider, are justices of the peace; the principal of whom is the custos rotulorum, or keeper of the records of the county. The common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. And, therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. Of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named custodes or conservatores pacis. Those that were so virtute officii still continue: but the latter sort are superseded by the modern justices. The king's majesty (w) is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break [350] it hence it is usually called the king's peace. The lord chancellor or keeper, the lord treasurer, the lord high steward of England, the lord mareschal, the lord high constable of England (when any such officers are in being), and all the justices of the court of king's bench (by virtue of their offices), and the master of the rolls (by prescription), are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it: (x) the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county; (y) as is also the sheriff; (2) and both of them may take a recognizance or security for the peace. Constables, tything-men, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace and commit them, till they find sureties for their keeping it. (a) Those that were, without any office, simply and merely conservators of u Stat. 33 Hen. VIII. c. 12. 1 & 2 P. & M. c. 13. 2 West. Symbol. § 310. Crompt. 264. Tremain. P. C. 621. 4 Inst. 271. w Lambard. Eirenarch. 12. x Lamb. 12. y Britton. 3. z F. N. B. 81. a Lamb. 14. (28) The coroner's inquest must be returned upon parchment, or it cannot be received as a record. Mr. Christian says, he has known a judge fine a coroner for returning his inquest upon paper. (29) As to justices of the peace in general, see Burn J., Williams J., Dickinson J., tit. Justices of the Peace, Com. Dig. Justices of the Peace, Bac. Ab. Justices of the Peace, and elementary writers there referred to. Chitty. the peace, either claimed that power by prescription; (b) or were bound to exercise it by the tenure of their lands; (c) or, lastly, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen " de probioribus et potentioribus comitatus sui in custodes pacis." (d) But when queen Isabel, the wife of Edward II., had contrived to depose her husband by a forced resignation of the crown, and had set up his son, Edward III. in his place; this, being a thing then without example in England, it was feared would much alarm the people especially as the old king was living, though hurried about from castle to castle; till at last he met with an untimely death. To prevent therefore any risings, or other disturbance of the peace, the new king sent writs to all the sheriffs in England, the form of which is preserved [351] by Thomas Walsingham, (e) giving a plausible account of the man ner of his obtaining the crown; to wit, that it was done ipsius patris bene placito and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance and loss of life and limb. And in a few weeks after the date of these writs, it was ordained in parliament, (f) that, for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the country, should be assigned to keep the peace. And in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king; (g) this assignment being construed to be by the king's commission. (h) But still they were called only conservators, wardens, or keepers of the peace, till the statute 34 Edward III. c. 1. gave them the power of trying felonies ; and then they acquired the more honourable appellation of justices. (i) These justices are appointed by the king's special commission under the great seal, the form of which was settled by all the judges, A. D. 1590.(j) This appoints them all, (k) jointly and separately, to keep the peace, and any two or more of them to inquire of and determine felonies and other misdemesnors in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence: the words of the commission running thus, “ quorum aliquem ves"trum, A. B. C. D. &c. unum esse volumus;" whence the persons so named are usually called justices of the quorum. And formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the quorum; but now the practice is to advance almost all of them to that dignity, naming them all over again in the quorum clause, except perhaps only some one inconsiderable person for the sake of propriety: and no exception is now allowable, for not expressing in the form [352] of warrants, &c. that the justice who issued them is of the quo rum.(1) When any justice intends to act under this commission, he sues out a writ of dedimus potestatem, from the clerk of the crown in chancery, empowering certain persons therein named to administer the usual oaths to him; which done, he is at liberty to act. Touching the number and qualifications of these justices; it was ordained by statute 18 Edw. III. c. 2. that two or three, of the best reputation in each county, shall be assigned to be keepers of the peace. But these being found rather too few for that purpose, it was provided by statute 34 Edw. III. c. 1. that one lord, and three, or four, of the most worthy men in the coun ty, with some learned in the law, shall be made justices in every county. But afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by statute 12 Ric. II. c. 10. and 14 Ric. II. c. 11. to restrain them, at first to six, and afterwards to eight only. But this rule is now disregarded, and the cause seems to be (as Lambard observed long ago), (m) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their increase to a larger number. And, as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county; and the statute 13 Ric. II. c. 7. orders them to be of the most sufficient knights, esquires, and gentlemen of the law. Also by statute 2 Hen. V. st. 1. c. 4. and st. 2. c. 1. they must be resident in their several counties.30 And because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute 18 Hen. VI. c. 11. that no justice should be put in commission, if he had not lands to the value of 201. per annum. And the rate of money being greatly altered since that time, it is now enacted by statute 5 Geo. II. c. 18. that every justice, except as is therein excepted, shall have 100l. per annum clear of all deductions: and, if he acts without such qualification, he shall forfeit 1007. This qualification(n) is almost an equivalent to the 201. per annum required in Henry the Sixth's time: and of [353] this () the justice must now make oath. Also it is provided by the act 5 Geo. II. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace. 31 As the office of these justices is conferred by the king, so it subsists only during his pleasure, and is determinable, 1. By the demise of the crown; that is, in six months after. (p) But if the same justice is put in commission by the successor, he shall not be obliged to sue out a new de m Lamb. 34. n See bishop Fleetwood's calculations in his chronicon pretiosum. p Stat. 1 Ann. c. 8. o Stat. 18 Geo. II. c. 20. (30) But the 28 Geo. III. c. 49. empowers any justice of the peace for two or more adjoining counties, to act in any of them, if resident in one; but such residence must appear in the proceeding. And a justice acting for a county at large, may act within a city or precinct, being a county of itself, situate or adjoining the county at large, provided the matter do not arise within such city, &c. And the 1 & 2 Geo. IV. c. 63. empowers justices of counties, ridings, or divisions, to act within any city, town, or other precinct, having exclusive jurisdiction, but not being counties themselves within such counties. Chitty (31) By the 18 Geo. II. c. 20. a party to become a justice of the peace, must have in possession, either on law or equity for his own use and benefit, 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 life or lives, or for a certain term originally created for twenty-one years, or more, in lands, tenements, or hereditaments, in England, or Wales, of the clear yearly value of 100%. above all incumbrances, &c. or else must be entitled to the immediate reversion or remainder of, and in such lands, &c. leased for one or more lives, or for a term determinable on the death of one or more lives, upon reserved rents of the yearly value of 3001. and he must take the oath thereby prescribed of his being so qualified, and if he be not so qualified, he forfeits 1002. for acting. But by sec. 13, 14, 15. there is a proviso, that this act does not extend to corporation justices, to peers, &c. or the eldest son or heir apparent of any peer or person qualified to serve as a knight of the shire, or to officers of the board of green cloth, &c. or to the principal officers of the navy, under-secretaries of state, heads of colleges, or to the mayors of Cambridge and Oxford. It has been decided that a person, to be qualified for the office, must have a clear estate of 100%. per annum in law or equity, for his own use, in possession. Holt. C. N. P. 458. The acts of a justice of the peace, who has not duly qualified, are not absolutely void; and therefore, persons seizing goods under a warrant of distress, signed by a justice who had not taken the oaths at the general sessions, nor delivered in the certificate required, are not trespassers, though the magistrate be liable to the penalty, and to be indicted. 3 B. & A. 266. dimus, or to swear to his qualification afresh: (9) nor, by reason of any new commission, to take the oaths more than once in the same reign. (r) 2. By express writ under the great seal, (s) discharging any particular person from being any longer justice. 3. By superseding the commission by writ of supersedeas, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a procedendo. 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner. (t) Formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now (u) it is provided, that notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice. The power, office, and duty of a justice of the peace depend on his commission, and on the several statutes which have created objects of his jurisdiction. His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the ancient conser[354] vators at the common law, in suppressing riots and affrays, in tak 32 ing securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more to hear and determine all felonies and other offences; which is the ground of their jurisdiction at sessions, of which more will be said in its proper place. And as to the powers given to one, two, or more justices by the several statutes, which from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. And therefore, if a well-meaning justice makes any undesigned slip in his practice, great lenity and indulgence are shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office; (w) which, among other privileges, prohibit such justices from being sued for any oversights, without notice beforehand; and stop all suits begun, on tender made of sufficient amends. But, on the other hand, any malicious or tyrannical abuse of their office is usually severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs. * q Stat. 1 Geo. III. c. 13. t Stat. 1 Mar. st. 1. c. 8. s Lamb. 67. r Stat. 7 Geo. III. c. 9. (32) See form of commission, 3 Burn. J. 24 ed. 129. and the construction of it, as to the justice's power and duty, id. 129 to 144.; and as to the oaths of office, and qualification to be taken by justices of the peace, see 3 Burn. J. 145 to 152. (33) A justice of the peace acts ministerially or judicially. Ministerially, in preserving the peace, hearing charges against offenders, issuing summons or warrants thereon, examining the informant and his witnesses and taking their examinations, binding over the parties and witnesses to prosecute and give evidence, bailing the supposed offender, or committing him for trial, &c. See the conduct to be observed, 1 Chitty's Crim. L. 13 to 116. In cases where a magistrate proceeds ministerially, rather than judicially, if he acts illegally he is liable to an action at the suit of the party injured; as if he maliciously issues a warrant for felony, without previous oath of a felony having been committed. 2 T. R. 225. 1 East, 64. Sir W. Jones. 178. Hob. 63. 1 Bulst. 64. So if he refuse an examination on the statute hue and cry. 1 Leon, 323, Judicially, as when he convicts for an offence. His conviction, drawn up in due form, and unappealed against, is conclusive, and cannot be disputed in an action, 1 Brod. & Bing. 432. |