Alfo every fheriff is a principal confervator of the peace within his county, and may ex officio award process, and take furety for it; and it feems the better opinion, that furety fo taken is to be looked on as a recognizance or matter of record, and not as a common obligation, because it is taken by virtue of the king's commiflion. 2 Hawk. c. 8. f. 4.

Allo a coroner is another principal confervator of the peace, and may bind any one to the peace who fhall make an affray in his prefence; but he is faid to have no autho rity to grant procefs for the peace: and it feems that the fecurity taken by him for the peace is not to be looked on as matter of record, but as matter in pais, only except where it is taken by him as judge in his own court for an affray in his prefence. Crom. 6. Lambarde, b. 1. c. 3. 2 Hawk.

c. 8. f. 5.

Alfo every high and petit conftable 2 are, by the common law, confervators of the peace within their several limits, and may take order for the keeping of the fame. 2 Hawk. c. 8. f. 6.

2. Confervators of the peace by the common law, who were conftituted for that purpofe only, and were fimply called by the name of confervators or keepers of the peace, were of two kinds,―ordinary and extraordinary. 2 Hawk. c. 8. f. 6.

Thofe of the firft kind were either by tenure ;-or by election;-or by prefcription. Ibid.

Confervators of the peace by tenure, were thofe who held lands of the king by this fervice, among others, of being confervators of the peace within fuch a district. Co. Lit. 106. 2 Hawk. c. 8. f. 7.

Confervators of the peace by election, were those who were chofen to fuch office in purfuance of the king's writ to fuch purpofe (as all fheriffs anciently were, and as coroners ftill are), by the freeholders of the county court; after which election it was ufual for the king to fend another writ to the perfons fo chofen, commanding them diligently to attend their faid office, till they should receive a command from the king to the contrary. 2 Inft. 174. 2 Hawk. c. 8. f. 8.

Confervators of the peace by prefeription, were thofe By prefeription. who claimed fuch power from an immemorial ufage in themselves and their predeceffors, or ancestors, or those whofe eftate they had in certain lands, to exercife the like power, which wholly depended upon fuch ufage, both as

the peace.

to its extent and the manner in which it was to be exercised. 2 Hawk. c. 8. f. 9.

But it feems, that the power of such confervators of the peace, whether by tenure, election or prefcription, was no greater than that of conftables at this day, uniefs it were enlarged by fome fpecial grant or prescription. Dalton, b. 1. § 3. Crom. 6 2 Hawk. c. 8. f. 11.

Extraordinary The extraordinary confervators of the peace were perfons confervators of fpecially commiflioned, in times of imminent danger, either from rebels or foreign invaders, to take care of and defend fuch a particular diftrict committed to their charge, and to preferve the peace within the limits of it; and thefe had power to command the fheriff with his whole poffe to aid and aflift them. Lambarde, b. 1. c. 3. 2 Hawk. c. 8. f. 12.

II. How juftices of peace were first instituted.

When queen Ifabel, the wife of Ed. II. had contrived to depofe her husband by a forced refignation of the crown, and had fet up his fon Ed. III. in his place 3; this being a thing then without example in England, it was feared would much alarm the people; efpecially as the old king was living, though hurried about from caftie to caftle, till at laft he met with an untimely death. 1 Black. Com. 350.

To prevent therefore any rifings, or other difturbance of the peace, the new king fent writs to all the theriffs in England, giving a plaufible account of the manner of his obtaining the crown: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of difinheritance, and lofs of life and limb. Ibid.

In a few weeks after the date of thefe writs, it was or dained, by the ftatute i Ed. 3. c. 164, that in every county good men, which be no maintainers of evil, or barretors, fhall be affigned to keep the peace.

And by 18 Ed. 3. ftat. 2. c. 2, two or three 5 of the best reputation in the counties fhall be affigned keepers of the peace by the king's commiflion, and at what time need

3 See Hift. Eng. A. D. 1327.

L.

4 As the justices of peace were firft inftituted by this statute, a person cannot be a justice of peace by prefcription. 4 Leon. 149.

Neither can fuch juftices of peace have any jurisdiction, but what the statutes give them, by reafon of their having been ereated within time of memory. Salk. 406.

5 See note 6, infra.

fhall

fhall be, the fame with other wife and learned in the law fhall be affigned to hear and determine felonies and trefpaffes done against the peace.

In this manner, and upon this occafion, was the elec tion of the confervators of the peace taken from the people, and given to the king. 1 Black. Com. 351.

But till they were only called confervators, wardens, or keepers of the peace, till the ftatute 34 Ed. 3. c. 1. gave them the power of trying felonies; and then they acquired the more honourable appellation of juftices. 1 Black. Com. 351.

And by the faid ftat. 34 Ed. 3. c. 1, it is enacted, that in every county of England fhall be affigned for the keeping of the peace, one lord, and three or four of the most worthy men in the county, with fome learned in the law; and they fall bave power to refrain evil doers, rioters, and all other barretors, and to purfue, arreft, take, and chaftife them according to their trefpafs or offence, and cause them to be imprisoned and punifhed; and alfo to inquire of those that have been pillors and robbers beyond the fea, and go wandering and will not labour, and to take and arreft all that they find by indictment or by fufpicion, and put them in prifon, and to take of them that be not of good fame, furety for their good abearing; and also to hear and determine at the king's fuit, all manner of felonies and trepaffes done in the fame county.

And it is enacted, by 2 Hen. 5. ftat. 2. c. 1, that juftices of peace fhall be made of the moft fufficient perfons dwelling in the counties, by the advice of the chancellor 7, and of the king's counfel, without taking other perfons dwelling in foreign coun ties, except lords and the juftices of affizes, named by the king and his council; and except alfo the king's chief stewards of the duchy of Lancaster.

III. Their commiffion; manner of appointing them; and by what means their authority may determine.

Juftices of the peace are judges of record appointed by the king, to be juftices within certain limits, for the con

6 The rule in this as well as other ancient ftatutes touching the number of juftices is now difregarded, and the caufe feems to be (as Lambarde obferved long ago), that the growing number of ftatute laws committed from time to time to the charge of justices of the peace, have occafioned alfo (and very reasonably) their increafe to a larger number. 1 Black. Com. 352.

7 The power of Chancery extends only to putting them in, and cannot af terwards punish them for misbehaviour; the redress is to move the King's Bench for an information, and afterwards the complainant may apply to Chancery to turn them out of the commiffion. 2 Atkyns, 2.

H 2

fervation

1. By statute.

2. By charter.

fervation of the peace, and for the execution of divers things comprehended within their commiffion, and within divers ftatutes committed to their charge. Dalton, c. 2.

Dal

It seems that juftices of the peace are at this day of three forts, and are appointed or created by three means. ton, c. 3. § 5.

That is to fay, 1. By act of parliament. 2. By charter or grant made by the king under the great feal. 3. By

commiilion.

1. First; by act of parliament; as the bishop of Ely and his fucceffors, and their temporal stewards of the ifle of Ely (for the time being), fhall be juftices of peace within the faid ifle, and fhall use and have within the said ifle all fuch power as doth belong to any juftice of peace within any county. 27 Hen. 8. c. 2.4. S.,20.

And fo of the bishop of Durham and his temporal chancellor, within the county palatine of Durham; and alío the archbishop of York and his temporal chancellor, within the fire and liberty of Hexham, otherwife Hextoldsbam. 27 Hen. 8. c. 24. f. 21, 22.

And by 9 Geo. 3. c. 30, it fhall be lawful for the treasurer, comptroller, furveyor, clerk of the acts, or any commillioner of the navy, in all places whatsoever, to execute the office and duty of a juftice of the peace, in caufing any perfon charged with forging or procuring to be forged, any letter of attorney, bill, ticket, certificate, alignment, laft will or other power, or with publishing the fame as true, in order to receive any wages, pay or other allowance, due to any officer, feaman, or other perfon in the fervice of his majesty, or with taking, or procuring falje oaths to be taken for any of the purpofes aforefaid, or to obtain a probate of any will or letters of adminiftration, in order to receive fuch wages, pay or other allowance, or with fealing or embezzling any naval flores, the property of his majesty, to be apprehended, committed, and profecuted for the fame; and all conftables, headboroughs, keepers of gaols and other officers, are to execute and obey all fuch warrants as fhall be iffued by the perfons aforefaid, touching any of the matters herein before contained. f. 5.

2. Secondly; by grant made by the king by his letters patent under the great feal, as mayors and the chief officers in divers corporate towns; and fuch the king cannot discharge again at his pleasure, but they fhall continue and enjoy their jurifdiction according as their letters patent do enable them. Lambarde, 26. Dalton, c. 3. § 6.

And therefore if the king granteth to a mayor, or other head officer of a city or town corporate, and their fucceffors, to be juftices of peace in their city or town, and

after

after maketh out a commiffion of the peace to others there, yet the authority and jurifdiction of the mayor remaineth good, becaufe it was granted to them and their fucceilors, and is not revocable at the king's pleafure, as the commiffion of the peace is. Dalton, c. 3. § 6.

Neither doth the authority of fuch officers ccafe by the death of the king, br by his refignation. Dalton, c. 3. §10. But fuch grants and charters may notwithstanding for fome great and general defect of, or mifcarriage in, the execution of the powers and authorities therein granted, be repealed, and the liberties feized. Dalton, c. 3. § 6.

So alfo may the king upon reafonable caufe moving him, left there fhould be a failure of juftice, grant concurrent commiffions of the peace, within fuch incorporations. Ibid. But although a man be a mayor, yet it doth not follow that he is a juftice of the peace, for that must be by a particular grant in the charter S. 2 Lord Raym. 1030.

Lion.

3. The third fort of juftices of peace are by commiffion in the king's name, made of common courfe under 3. By commif the great feal of England, and these are to be appointed by the difcretion of the lord chancellor or lord keeper of the great feal, according to the before-mentioned ftatute of 2 Hen. 5. fat. 2. c. 1. Except within the county palatine, of Lancaster, where the juftices of peace are to be made and ordained by commiffion under the king's ufual feal of Lancafter. Dalton, c. 3. § 7. 27 Hen. 8. c. 24. S. 5.

And the conftituting juftices of peace is now inherent in and infeparable from the crown; it being enacted by 27 Hen. 8. c. 24. f. 2, that no perfon whatfoever fhall have authority to make any juftices of peace; but that all fuch minifters fhall be made by letters patent under the king's great feal, in the name and by authority of the king, and his heirs, kings of this realm.

And the form of the commiffion" is as follows:

The form of the

GEORGE the Third, by the grace of God, of Great Britain, commilion. France and Ireland king, defender of the faith, and fo forth, to AB, CD, &c. greeting;

Know ye that we have affigned you jointly and severally and every one of you our juftices to keep our peace in our county of W, and to keep and caufe to be kept all ordinances and ftatutes for the

8 However, he hath in many cafes the fame authority as a juftice of peace under the words of particular acts of parliament, as in refpect of alehoufes, gaming-houfes, foldiers, and divers other matters.

9 See p. 99. fupra.

10 Except within the county palatine of Lancaster, as before obferved. 11 This form was fettied by the judges about the 33d year of queen Eliz, Hak. c. 8. f. 22.

H 3

good