[awarded to the coroner, instead of the sheriff, for execution of the king's writs (r). III. The next species of subordinate magistrates that we are to consider, are Justices of the Peace: the principal of whom is the custos rotulorum, or keeper of the records of the county (s). 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 Those that were so virtute officii still continue; but the latter sort are superseded by the modern justices.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 queen's majesty (t) is by her office and dignity royal the principal conservator of the peace within all her dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is called the queen's (or king's) peace (u). The lord chancellor or keeper; the lord treasurer; the lord high steward of England; the lord mareschal and the lord high constable of England, (when any such officers are in being); and all the justices of the Court of Queen'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, (as we have seen,) a conservator of the peace within his own county (y), as is also (r) 4 Inst. 271. (s) As to the custos rotulorum, see 3 & 4 Edw. 6, c. 1; Harding v. Pollock, 6 Bing. 25; 4 Bl. C. 272. (1) Lambard, Eirenarch. 12. (y) Britton, 3, vide sup. p. 647. [the sheriff (z); 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 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 the second, had contrived to depose her husband by a forced resignation of the Crown, and had set up his son Edward the third 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 by Thomas Walsingham (e), giving a plausible account of the manner 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 (ƒ), 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 county, 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 (z) F. N. B. 81. (a) Lamb. 14. (b) Ibid. 15. (c) Ibid. 17. (d) Lamb. 16. (e) Hist. A.D. 1327. (f) St. 1 Edw. 3, st. 2, c. 16. [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 only called conservators, wardens, or keepers of the peace, till the statute 34 Edw. III. c. 1, gave them the power of trying felonies; when they acquired the more honourable appellation of justices (i).] These justices for counties (j) (being the justices of the peace of whom we proposed under the present head to treat,) [are appointed by special commission under the Great Seal, the form of which was settled by all the (k) judges, A.D. 1590] (7), and continues with little alteration to this day. [This appoints them all, jointly and severally, to keep the peace in the particular county (m) named, and any two or more of them, to inquire of and (j) As to the justices in boroughs, (whose office in boroughs is for the most part similar to that of the county magistrates in counties,) see 7 Geo. 3, c. 21; 4 Geo. 4, c. 27; 4 & 5 Will. 4, c. 27; 5 & 6 Will. 4, c. 76, ss. 7, 8, 9, 101, 103, 104, 107, 109, 111; 2 & 3 Will. 4, c. 64; 6 & 7 Will. 4, c. 105; 13 & 14 Vict. c. 91; R. v. Justices of Gloucestershire, 4 A. & E. 689. Et vide post, bk. IV. pt. 1. Chapter on the Laws relating to Corporations. As to the justices in and near the metropolis, and the commissioners and assistant com missioners of the police of the metropolis, see 10 Geo. 4, c. 44; 2 & 3 Vict. c. 47, c. 71; 3 & 4 Vict. c. 84, c. 89; 11 & 12 Vict. c. 42, s. 29; c. 43, s. 33; 17 & 18 Vict. c. 94, (sched. B.); 18 & 19 Vict. c. 120, s. 245; 19 & 20 Vict. c. 2; 20 & 21 Vict. c. 64. 36. (k) See the form of the writ, Lamb. (1) Lamb. 43. (m) As to the power of county justices to act in towns, being counties of themselves or other places of exclusive jurisdiction, see 9 Geo. 1, c. 7, s. 3; 11 & 12 Vict. c. 42, s. 6. As to the jurisdiction of the county justices in respect of boroughs within their county, 5 & 6 Will. 4, c. 76, s. 111; R. v. Sainsbury, 4 T. R. 451; 2 Arch. Justice of the Peace, p. 26; post, bk. vI. c. xiv. As to the power of county justices to act in detached parts of other counties, in part or wholly surrounded by the county in the commission of which they are, see 2 & 3 Vict. c. 82; 11 & 12 Vict. c. 42, s. 7. [determine felonies and other misdemeanors in such county committed; 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 vestrum 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 of the warrants, &c. that the justice who issued them is of the quorum (n). When any justice] named in the commission [intends to act under it, 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,] (i. e. an oath of office, and of qualification as to estate (o), to which are annexed the oaths of allegiance, supremacy, and abjuration (p); which done, he is at liberty to act. These justices act gratuitously, receiving neither salary nor fees (q). [Touching the number and qualification 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. (n) Stat. 26 Geo. 2, c. 27; 7 Geo. 3, c. 21; 4 Geo. 4, c. 27. (0) As to this qualification, vide post, p. 652. (p) Burn's Justice, by D'Oy. & Will. vol. v. p. 20. (9) In certain populous districts, viz., in the metropolis and elsewhere, it is the practice to appoint paid or stipendiary magistrates, and generally with additional powers. As to these, see 2 & 3 Vict. c. 71, s. 9; 11 & 12 Vict. c. 42, s. 29; 17 & 18 Vict. c. 20; 18 & 19 Vict. c. 126, ss. 16, 19. In general, however, the services of the justices of the peace are strictly gratuitous; and even the antient allowance which they once might claim, for the expenses of their attendance at sessions, has been recently abolished by 18 & 19 Vict. c. 126, s. 21. [III. c. 1, that one lord and three or four of the most worthy men in the county, 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 (s),) 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,] though by 11 & 12 Vict. c. 42, s. 5, any justice of the peace for two or more adjacent counties may act in any of them, if resident in one. And because, contrary to the antient statutes above mentioned, [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 207. per annum. And the rate of money being greatly altered since that time, it is now enacted] by statute 5 Geo. II. c. 18, and 18 Geo. II. c. 20, that every justice of the peace acting for a county, (except such privileged persons as therein mentioned,) must have in possession, and for his own benefit, an estate, either legal or equitable, of freehold, copyhold, or customary tenure, in fee, for life, or such term of years as in the acts specified, of the clear yearly value of 1007. (t); or a rever (s) Lamb. 34. (t) Blackstone remarks (vol. i. p. 353), that this qualification is almost an equivalent to the 201. per annum required in Henry the sixth's time, and cites Bishop Fleetwood's Chronicon Pretiosum. |