have created objects of his jurisdiction. His commission, first, empowers him singly to conserve the ] e peace; and thereby gives him all the power of the ancient conservators at the common law, in suppressing riots and affrays, in taking 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 (15), of which more will be said in its proper place. And as to the powers given to one, two (16), 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; which, among other privileges, prohibit such justices from being sued for any oversights without notice

w Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c. 44.

(15) The sessions cannot be held without the presence of two justices. (16) 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 con. cur and join in it, otherwise it will be void; as in orders of removal and filiation, the appointment of overseers, and the allowance of the indenture of a parish apprentice; but where the act is merely ministerial, they may act separately, as in the allowance of a poor rate. This is the only act of two justices, which has yet been construed to be ministerial; and the propriety of this construction has been justly questioned. 3 T. Rep. 380.

But it has been held, that an order of removal signed by two justices separately is not void but voidable, and can only be avoided by an appeal to the sessions. 4 T. R. 596.

beforehand; and stop all suits begun, on tender made of sufficient amends (17). But, on the other hand, any malicious or tyrannical abuse of their office is usually severely

(17) It behoves every magistrate to be acquainted with the law and the extent of his authority, and he may be compelled to make an ade. quate compensation to those who suffer by his ignorance or inadvertence: but to protect him from being harassed by vexatious actions, it is provided, that he shall have notice of any action commenced against him, and the cause of it, one month before the writ is sued out, or a copy of it served upon him, by a writing from the attorney, of the party, who shall indorse upon it his name and residence. The notice must specify the precise writ or process intended to be sued out. And if the notice calls it an actian on the case, it will not be sufficient if an action of trespass is brought. 7 T. R. 631. The magistrate may afterwards tender amends, and plead such tender with the general issue and any other plea. And if the sum tendered be thought sufficient by the jury, he shall obtain a verdict with costs. This action must be commenced within six months after the injury complained of. 24 Geo. II. c. 44.

If a magistrate abuses the authority reposed in him by the law, in order to gratify his malice, or promote his private interest or ambition, he may be punished also criminally by indictment or information. But the court of king's bench have frequently declared, that though a justice of peace should act illegally, yet, if he has acted honestly and candidly, without any bad view or ill intention whatsoever, the court will never punish him by the extraordinary mode of an information, but will leave the party complaining to the ordinary method of prosecution by action or indictment. 2 Bur. 1162. And in no case will the court grant an information unless an application for it is made within the second term after the offence committed, and notice of the application be previously given to the justice, and unless the party injured will undertake to bring no action. And if the party proceeds both by action and indictment, the attorney general will grant a noli prosequi to the indictment. Indeed, where a justice has committed an involuntary error, without any corrupt motive or intention, it may be questioned whether it is an indictable offence; for the act in that case is either null and void, or the justice is answerable in damages for all the consequences of it. It is the object of all punishment to prevent a repetition of the act; and it it would be absurd to punish a man for an involuntary act, or for that which he has neither power nor will to avoid.

punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs (18).

It is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. I must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprise almost every object of the justices' jurisdiction: and in the mean time recommend to the student the perusal of Mr. Lambard's eirenarcha, and Dr. Burn's justice of the peace; wherein he will find every thing relative to this subject, both in ancient and modern practice, collected with great care and accuracy,

and disposed in a most clear and judicious method. [355] I SHALL next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom.

IV. FOURTHLY, then, of the constable. The word constable is frequently said to be derived from the Saxon, koningrepel, and to signify the support of the king. But as we borrowed the name as well as the office of constable from the French, I am rather inclined to deduce it, with sir Henry Spelman and Dr. Cowel, from that language: wherein it is plainly derived from the Latin comes stabuli, an officer well known in the empire; so called, because, like the great constable of France, as well as the lord high constable of England, he was to regulate all matters of chivalry, tilts, tournaments, and feats of arms, which were performed on horseback (19). This great office of lord high constable hath been disused

(18) That is, where the judge certifies in court that the injury was wilful and malicious.

(19) We may form a judgment of his power, and the condition of the people of this country in the fifteenth century, from the following

in England, except only upon great and solemn occasions, as the king's coronation and the like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII; as in France it was suppressed about a century after by an edict of Louis XIII: but from his office, says Lambardy, this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. For the statute of Winchester, which first appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to arms and

armour.

CONSTABLES are of two sorts, high constables, and petty constables. The former were first ordained by the statute of Winchester, as before mentioned; are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removable by the same authority [356] that appoints them 2. The petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of Edw. III. These petty constables have two offices united in them; the one ancient, the other modern. Their ancient office is that of headborough, tithing-man, or borsholder; of whom we formerly spoke, and who are as ancient as the time of king Alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of Edward III, in order to assist the high

x Philip's life of Pole. ii, 111.

y of constables. 5.

z 13 Edw. 1. c. 6.

a Salk. 150.

bSpelm. Gloss, 148.
c page 115.

clause in a commission in the 7 Edw. IV. to Richard earl Rivers; Plenam potestatem et auctoritatem damus et committimus ad cognoscendum et procedendum in omnibus et singulis causis et negotiis de et super crimine læsæ majestatis, seu ipsius occasione, cæterisque causis quibuscunque, summariè et de plano, sine strepitu et figur â judicii, solâ facti veritate inspectâ. Rym. Foed. tom. xi. p. 582.

constabled. And in general the ancient headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. They are all chosen by the jury at the court leet; or if no court leet be held, are appointed by two justices of the peacee.

THE general duty of all constables, both high and petty, as well as of the other officers, is to keep the king's peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put into these offices, it is perhaps very well that they are generally kept in ignorance (20). One of their principal duties, arising from the statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward, guard, or custodia, is chiefly applied to the day time, in order to apprehend rioters, and robbers on the highway; the manner of doing which is left to the discretion of the justices of the peace and the constable f: the hundred being however answerable for all robberies committed therein, by day light, for having kept negligent guard. Watch is properly applicable to the night only, (being called among our

Teutonic ancestors wacht or wacta 8) and it begins at [357] the time when ward ends, and ends when that begins: for, by the statute of Winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town, especially in

(20) If their powers are dangerous, they ought to be curtailed by the legislature; but surely every officer ought to know the extent of his duty and authority.