dent part of this chapter), they may still lawfully proceed upon the said statute in the same manner as before. Sect. 8. As to the THIRD PARTICULAR, viz. The power of jus- Supra, sect. 4. tices of assize in relation to appellees, it is enacted by the 28 Crom. Jur. 126. Edw. 1. commonly called the statute de appellatis, "that such 66 Dyer, 99. Pl. 62. Stamf. 159. Co. Lit. 263. justices may award process into any foreign county against persons appealed by approvers, and proceed against them, &c.' Sect. 9. It is made a doubt in Dyer's Reports, by what warrant justices of assize hold plea of an appeal of robbery; and it is there holden, that they do it by virtue of the commission of gaol-delivery. But it seems, that it ought not to be intended to be the meaning of this report, that justices of assize have no jurisdiction as to an appeal of robbery, without an express commission of gaol-delivery; for since justices of assize, as such, have power by the abovementioned statute de finibus to deliver gaols of all manner of prisoners, after the form of the gaol-deliveries of the shires wherein they sit, why should they not, by force of those general words, deliver such gaols of persons proceeded against by way of appeal commenced before them, as well as of those proceeded against by way of indictment, as it seems to be taken for granted in other books that they may? and therefore it seems to 22 Ed. 4. 19. be reasonable to take the abovementioned report of Dyer in this aB.appeal, 113. sense, that justices of assize may hold plea of appeals of robbery by the commission of gaol-delivery, given them implicitly by the said statute de finibus, in respect whereof they seem to have all the power of justices of gaol delivery, whether given them by the common law or by statute, as fully appears from what immediately follows the abovementioned passage in the said report, wherein it is said, that "the statute of 3 Hen. 7. c. 1. gives justices Dyer, 99. "of assize the power by express words as to appeals of death;" but it is certain, that the said statute of Henry the seventh does not expressly mention justices of assize, but saith only," that the "wife, &c. may commence an appeal before the sheriff and coroners, or before the king in his bench, or justices of gaol-delivery;" and yet it is holden in the said report, that this statute expressly extends to justices of assize; from which it seems manifestly to follow, that such justices are taken to be included under the ge- 13 Co. 32. neral notion of justices of gaol-delivery. Sect. 10. As to the FOURTH PARTICULAR, viz. The power of justices of assize in relation to conspirators, maintainers, and other offenders of the like nature, it is enacted by 28 Edw. 1. c. 10. commonly called Articuli super chartas," that justices assigned " to take assizes, when they come into the county to do their office, "shall upon every plaint made unto them of conspirators, false in"formers, and evil procurers of dozens, assises, inquests and juries, "award inquest thereupon without writ, and shall do right to the "plaintiffs without delay." And by 4 Edw. 3. c. 11. it is further enacted," that the jus"tices of assize, whensoever they come to hold their sessions or "to take inquest upon nisi prius, shall inquire, hear, and deter"mine, as well at the suit of the king as at the suit of the party, of "maintainers, bearors, conspirators, &c." And the like is ordained by 20 Edw. 3. c. 6. by which it is enacted, D 2 4 Inst. 159. 4 Inst. 159. Register, 188. 1 Hale, 350. 2 Hale, 403. Raym. 67. 22 Ed. 4. 19. a. acted, "that such justices shall have commissions to inquire of maintainers and common embraceors, &c." 66 Sect. 11. Also by 5 Edw. 3. c. 10. it is enacted, "that the jus"tices before whom any assize, inquest, or jury shall pass, may inquire and determine the offence of any juror in taking money "of either party, &c." " that no Sect. 12. But by 38 Edw. 3. c. 12. it is ordained, justice, &c. inquire of offices of the said offence, but only at the "suit of the party, or of other, &c." Sect. 13. And by 32 Hen. 8. c. 9. it is further enacted," that "the justices of assize of every circuit within this realm, and else"where within the king's dominions, shall in every county within "their circuits, twice in the year cause open proclamation to be "made, as well of the said statute as of all others made against "unlawful maintenance, champerty, embracery, &c." Sect. 14. As to the FIFTH PARTICULAR, viz. The power of justices of assize in relation to the offences of sheriffs, gaolers, and other officers, it is enacted by 20 Edw. 3. c. 6. " that jus"tices of assize shall have commissions sufficient to inquire of "sheriffs, escheators, bailiffs of franchises and their ministers, " and of the gifts which they take to execute their office, &c." 66 Sect. 15. Also by 23 Hen. 6. c. 10. it is enacted, "that justices "of assize in their sessions shall have power to inquire, hear, and "determine of office without special commission, of and upon all sheriffs, under-sheriffs, clerks, bailiffs, gaolers, coroners, stewIards, bailiffs of franchises, or any other officer or minister doing contrary to the said statute, as by extorting money for the omitting of an arrest, or shewing ease or favour to those who "shall be arrested, or by admitting persons to bail, or denying them the benefit of it, contrary to the form of the said "statute." 66 66 Sect. 16. Also, by 1 Hen. 8. c. 7. it is enacted," that justices "of assize and of the peace shall have authority to inquire of and determine, as well by examination as by presentment, the de"fault of coroners, in not taking an inquest without fee or re"ward, on the view of the body of any person slain by misad"venture." Sect. 17. As to the SIXTH PARTICULAR, viz. The power of justices of assize in relation to capital offences tried by writ of nisi prius, it is enacted by 14 Hen. 6. c. 1. "that the justices be"fore whom inquisitions, inquests, and juries, shall be taken by "the king's writ of nisi prius, shall have power in all cases of fe"lony and treason to give their judgments as well where a man "is acquit of felony or of treason, as where he is hereof attainted, "the day and place where the said inquisitions, inquests, and "juries be so taken, and then from thenceforth to award execution to be made by force of the same judgments." Sect. 18. In the construction of this statute it hath been 2 Hale, 41. 403. holden, that if the plaintiff in appeal be nonsuited before justices of nisi prius, they have no power to arraign the defendant at the suit of the king on the declaration in the appeal, as justices before whom an appeal is originally commenced may do. And the reason of this construction seem to be this, because the statute only mentioning that justices of nisi prius shall give judgment where the defendant is acquitted or attainted, leaves their jurisdiction upon a nonsuit as it was before. But it seems certain, that on the acquittal of an appellee such justices have power to inquire of the abettors, and also of the sufficiency of the plaintiff to answer the damages; for since the statute of Westminster the Dyer, 120. second, ch. 12. gives such power to the justices before whom an Crom. Jur. 212. appeal shall be heard and determined; and now by force of 22 Ed. 4. 19. 14 Hen. 6. it may be heard and determined before justices of 10 Ed. 4. 14. nisi prius, it seems necessarily to follow, that justices of nisi 2 Inst. 386. Bro. Nisi Prius, prius shall have such power since the same statute of 14 Hen. 6. 27. And from the same reasoning it seems also to follow, that such 2 Hale, 32. justices may give judgment for the damages; but constant experience hath overruled it to the contrary. As to THE SEVENTH PARTICULAR, viz. For what counties justices of assize may be commissioned. Sect. 19. It is enacted by 8 Rich. 2. c. 2." that no man of "law shall be from thenceforth justice of assize, or of the com"mon deliverance of gaols, in his own county." Sect. 20. Also it is enacted by 33 Hen. 8. c. 24. " that no justice, nor other man learned in the laws of this realm, shall "use nor exercise the office of justice of assize within any county "where the said justice was born, or doth inhabit, on pain of "one hundred pounds, &c. Provided that the said act shall not "extend to any person who shall be clerk of assizes, and associate "to any justice of assize, nor to any mayor, sheriff, recorder, "steward, bailiff, sewter, or other officer being born or dwelling "within any city, borough or town within this realm of England, "&c. nor to justices of either bench for taking, hearing, or de"termining assizes in the one bench or the other, nor to the "justice, justice-clerk or clerks, of assizes in the duchy and "county-palatine of Lancaster." 4 Inst. 160. + Sect. 21. These two acts of Richard the Second and Henry 4 Comm. 268. the Eighth are explained and amended by 21 Geo. 2. c. 27. by which it is enacted, "that the justices of either bench, the ba"rons of the exchequer, or any other persons learned in the law, "who shall be appointed justices of oyer and terminer or gaol"delivery in any county in England, may use and exercise the "said offices of oyer and terminer and gaol-delivery in such "county, notwithstanding they or any of them shall have been "born and do inhabit within any such county, without incurring "the penalty of one hundred pounds imposed by 33 Hen. 8." Sect. 22. And by 19 Geo. 3. c. 74. s. 70. it is further enacted, "that wherever the courts of assize, nisi prius, oyer and "terminer, or gaol-delivery, for any county at large in England, "shall be held in or near any city or town that is also a county of itself, and at the same time with the like or any of the like "courts for the said city or town, the lodgings of the judge or 66 "judges "judges shall be construed and taken to be situate both within "the county at large, and also within the county of such city or "town, for the purpose of transacting the business of the assizes "for such county at large, and for the county of such city or "town, during the time such judges shall continue therein for "the execution of their several commissions." St. Tr. 317. (a) Lamb. b. 1. c. 3. 14. 19. CHAP. VIII. OF THE COURT OF CONSERVATOR OF THE PEACE. CONSERVATORS OF THE PEACE, by the common law, were of two sorts, FIRST: Those who, in respect of their offices, had power to keep the peace, but were not simply called by the name of "conservators of the peace," but by the name of such offices, SECONDLY, Those who were constituted for this purpose only, and were simply called by the name of conservators or wardens of the peace. Sect. 1. Of the first sort, THE KING (a) is certainly the principal, from whom all authority of this kind was originally derived, and who still continues to have the same in his own person. Yet (b) B. Recog. it is said, (b) that he cannot take a recognizance for the keeping of the because it is a rule in law, that no one can take any peace, recognizance, who is not either a justice of record, or by com(c) Lamb. b. 1. mission. Also it seems certain, that (c) no duke, earl, or baron, as such, have any greater authority to keep the peace than mere private persons. Dalt. c. 1. c. 3. (d) Dalt. c. 1. Lamb. b. 1. c. 3. Crom. 6. 1 Leon. 70. 71. 2 Wils. 289. 10 H. 6. 7. Sect. 2. The (d) lord chancellor or lord keeper of THE GREAT SEAL, the lord high steward of England, the lord marshal, and lord high constable of England, and every justice of the king's bench, and, as some say, the lord treasurer, have, as incident to their offices, a general authority to keep the peace throughout all the realm, and to award process for the surety of the peace, and to take recognizance for it. And the master of the rolls hath also the like power, either as incident to his office, or at least by prescription. †But neither privy counsellors nor secretaries of state are conservators of the peace. Sect. 3. Also every court of record, as such, hath power to Lamb. b. 1. c.3. keep the peace within its own precinct, as hath been more fully shewn ch. 1. sect. 15. And the justices of gaol-delivery may take surety of the peace from a prisoner before them, who was committed for not finding such surety. (e) Lamb. b. 1. c. 3. 12 H. 7. 17. Sect. 4. Also every SHERIFF is a principal (e) conservator of the peace within his county, and may without doubt, ex officio, award process of the peace, and take surety for it. And it seems the better (f) opinion, that the security so taken by him is by (f) Recog. 5. the common law looked on as a recognizance or matter of re B. Peace, 13. F. N. B. 81, 82. cord, Qu. B. Recog. 5. 14. 16. 18. cord, and not as a common obligation or matter in pais only; Lamb. b. 1. for that it is taken by him by virtue of the king's commission, by c. 13. which he is entrusted with the custody of the county, and consequently has by it an implied power of keeping the peace within (a) See the such county; and it is a general (a) rule, that whatsoever is done books above by virtue of the king's commission ought to be taken as a matter 9 E. 4. 30, 31. of record. cited. Sect. 5. Also every (b) CORONER is another principal conser- (b) Crom. 6. vator of the peace within the county of which he is coroner, and Lamb. b. 1. c.3. may certainly bind any person to the peace who makes an affray in the presence. But it seems the better opinion, that he hath no authority to grant process for the peace; and it seems clear, that the security taken by him for the keeping of the peace (except only where it is taken by him as a judge of his own court for an affray done in such court), is not to be looked on as a recognizance, but as an obligation; because it is not taken by one who acts as a judge of record, or by the king's commission, as all (c) (c) See the recognizances ought to be. Sect. 6. Also every high and petit CONSTABLE are by the common law conservators of the peace within their several limits, and may take such order for the keeping of the same, as hath been more fully shewn book 1. chap. 63. sect. 13, 14, &c. Book cited S. Crom. 6. SECONDLY, Conservators of the peace by the common law, 1 Comm. 34. 9. who were constituted for that purpose only, and were simply 4 St. Tr. 562. called by the name of conservators or keepers of the peace, were of two kinds-Ordinary, and Extraordinary. Those of the first kind were either by tenure, or by election, or by prescription. 11 St. Tr. 319. Sect. 7. CONSERVATORS OF THE PEACE by tenure, were Co. Lit. 106. those who held lands of the king by this service, among others, Lamb. b. 1. c. 3. of being conservators of the peace within such a district. 12. Sect. 8. CONSERVATORS OF THE PEACE by election were 49 Hen. 3. those who were chosen to such office in pursuance of the king's 2 Inst. 174. writ to such purpose (as all sheriffs anciently were, and as all coroners still are) by the freeholders of a county in the county court, after which election it was usual for the king to send another writ to the persons so chosen, commanding them diligently to attend their said office till they should receive a command from the king to the contrary. Sect. 9. CONSERVATORS OF THE PEACE by prescription were B. Peace, 18. those who claimed such power from an immemorial usage in Prescrip. 79. themselves and their predecessors or ancestors, or those whose 22 Ed. 4. 35. estate they had in certain lands, to exercise the like power, which wholly depended upon such usage, both as to its extent, and the manner in which it was to be exercised. Lamb. b. 1. c. 3. 3 Bac. Ab. 286. Sect. 10. It is (d) questioned indeed by some, whether any (d) 21 Ed. 4.67. such power can be claimed by usage? Yet if the power of hold- Bro. Peace, 18. ing pleas, and even courts of record, which are of so high a na- 4 Leo. 149. ture, and imply a power of keeping the peace within their own precincts, |