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CHAPTER V.

JUSTICE OF THE PEACE.

Importance of the Office.-Nomination.-Qualification.-Expiry of Office.-Compass of Functions.-Quorum.-Jurisdiction.-Summary Procedure.

ENGLAND will be governed in an aristocratic spirit, yet in a manner wholly free, so long as a certain measure of governing power, and a large extent of the administration of criminal law, is in the hands of independent gentlemen who dispense justice within their district, not according to the mere directions of a governing minister, but in conformity with law and statute-so long as the educated class make it the aim and purpose of their life, to serve the state without burthening the budget, and salaried officials do not oust justices of the peace. With reason does Lord Coke say of the office-"That if it is admistered in a fitting manner the whole of Christendom has not its equal." Legal tact and an uniform spirit of justice, prevent it from lapsing into a mere weapon in the hands of a governing class. The coarse and ignorant gentry of the 17th and 18th centuries, it must be owned, frequently abused the powers entrusted to them.* Such abuses still occasionally occur, but the refined education of the higher classes, the publicity of procedure, the sentiment of justice, which pervades the general mind, affords a far different guarantee from that which is offered by the "patrimonial jurisdiction" elsewhere prevailing. This office does not exist for the mere advantage of the land-holding class; it was summoned into life when the Plantagenets were sufficiently strong, by means of good internal administration, to uphold the royal power against the feudal aristocracy. The Queen's majesty is, by her office and dignity royal, the chief conservator of the peace within all her dominions, and may give authority to any other to see the peace

In matters of high importance, particularly in cases relating to game, the justice was not always attentive to these admonitions of his clerk; for, indeed, in executing the laws under that head, many justices of peace suppose they have a

large discretionary power, by virtue of which, under the notion of searching for and taking away engines for the destruction of game, they often commit trespasses, and sometimes felony, at their pleasure. Fielding, Tom Jones.

kept, and to punish such as break it. The Lord Chancellor, Lord Treasurer, Lord High Steward, Earl Marshal, the Lord High Constable, and all justices of the Queen's Bench, by virtue of their office, and the Master of the Rolls by prescription, are general conservators of the peace throughout the whole kingdom. The coroners and sheriffs, in their county, and constables and tything men, within their respective jurisdictions, are also conservators of the peace. Finally, by virtue of their office, the Archbishop of York, and the Bishops of Durham and Ely.

The office was originally acquired, for the most part, by the election of the county freeholders, occasionally also by prescription; sometimes even as appendant to an estate. The right of election by the inhabitants of the county was abolished by 1 Edw. III., c. 16; the nomination has since proceeded from the sovereign.

It was ordained by statute, 18 Edw. III., that two or three of the best reputation in each county should be assigned to be keepers of the peace; but these being found too few for the purpose, it was provided by 34 Edw. III. c. 1, that one lord and three or four of the most worthy men in the county, with some learned in the law should be made justices in every county.

They were to be residents in the county for which they were named (2 Hen. V. stat. 1, c. 4, and stat. 2, c. 1), and by 13 Rich. II. c. 7, were to be the most substantial knights, esquires, and gentlemen in the same. By 14 Rich. II. c. 11 the number in each county was restrained to eight; but this is now disregarded. The qualification of £20 annual income introduced by 18 Hen. VI. c. 2 was considerably augmented by 18 Geo. II. c. 20. Since then no one can become justice of the peace who has not 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 terms of years as in the Act specified, of the clear yearly value of £100, or a reversion or remainder expectant upon such lease as in the Act mentioned, with reserved rents of the clear yearly value of £300 per annum. Practising attorneys, solicitors, and proctors are excluded from the office. A property qualification is not required in the case of-(1) peers and lords of parliament, their sons and heirs; (2) the sons and heirs of any one possessing £600 yearly income; in other words, the former qualification of a commoner eligible to parliament; (3) the mem

bers of the privy council; (4) the judges of the Common Pleas and Court of Exchequer; (5) the solicitor and attorney-general; (6) the judges in corporate towns; (7) the vice-chancellors of the universities and heads of colleges.

The position of justice of the peace serves as the initiation preparatory to all public functions; every man of family hastens to get named to the office, which is not of a political or party nature, and is granted by the sovereign, on the proposal of the Lord Chancellor, by commission under the great seal. The sovereign can nominate as many justices of the peace as may be deemed expedient. The office subsists during the pleasure of the crown, and is determinable by demise of the crown, but since the reign of Anne may hold over for six months afterwards. If the same justice is put in commission by the successor, he shall not be obliged to sue out a new dedimus, or to swear to his qualification afresh; nor, by reason of any new commission to take the oaths more than once in the same reign.

A justice of the peace may be dismissed by express writ under the great seal, or by accession of the office of coroner, or of sheriff during the year of shrievalty. A writ of supersedeas merely induces suspension of the commission, which by a writ de procedendo may be revived. When a new commission is granted, those not specially named therein are excluded.

The power, office, and duty of a justice of the peace depend on his commission. They are deputed to administer justice and do right by way of judgment; to keep the Queen's peace, and punish such as break it; to quell riots and affrays, to take securities for the peace, and apprehend and commit felons and other inferior criminals. They grant beer and trading licenses, assess the county-rates in general or quarter sessions, and direct their collection; appoint the overseers of the poor, inspectors of highways, and the lower police-officials. Under the system anterior to the poor-law their powers were very extensive. Edward III. granted them the right not only to apprehend all felons, but also the power of trying felonies in conjunction with a jury whenever specially commissioned. It was formerly customary to appoint only a select number of justices eminent for their skill and discretion to be of the quorum, the words of the commission running thus:"Quorum aliquem vestrum, A. B. C. D., etc. unum esse volumus." The practice now is to advance almost all of them to that

dignity, the skill and discretion being taken to exist; the "learned in the law" are in great measure supplanted. By special statutes the judicial authority of justices of the peace has been gradually extended. A right to appeal from decisions of individual justices or their special session to the quarter sessions formerly existed, and thence a further right of appeal lay to the courts of law. It is open to every one, in case there be valid grounds for suspecting that the justices of the peace are partial or unduly influenced, to apply for a writ of certiorari to the Queen's Bench.*

Blackstone complains greatly of the summary jurisdiction of justices of the peace, whereby on the ground of special statutes they may proceed without a jury, a jurisdiction which extends moreover to a great number of offences.† He says, "The burthensome increase of the business of a justice of the peace discourages many gentlemen of rank and character from acting in the commission. This trust, when slighted by gentlemen, falls, of course, into the hands of those who are not so, but the mere tools of office. And then the extensive power of a justice of the peace, which even in the hands of men of honour is highly formidable will be prostituted to mean and scandalous purposes, to the low ends of selfish ambition, avarice, or personal resentment."‡ The fears foreshadowed by Blackstone have been realised in many instances; the Municipal Corporation Act of 1835 has released the gentry from dispensing justice, substituting salaried police magis

trates.

Justices of the peace who have not studied law practically are amply provided with legal literature to meet their want of knowledge.§

* Bl. iv., 320.

+ Bl. iv., 280.

Bl. iv., 282.

§ "The justice declined exccuting his

office, as he said he had no clerk present, and no book about justice business, and that he could not carry all the law in his head." -Fielding, Tom Jones.

CHAPTER VI.

LEGISLATION FOR THE POOR PREVIOUS TO THE POOR LAWS OF 1834.

Pauper System under the Plantagenets.-Under the Tudors.--Disappearance of Small Landholders.-Spoliation of the Monasteries.-Enactments of Edward VI. -Poor Laws of Elizabeth.-Parish to Afford Maintenance.-Overseers of the Poor.-Destruction of Cottages.-Blackstone's Opinion concerning the Poor

Laws.

THE law of settlement has been already described; its rigours become explicable on considering that the charge of the poor was made a burthen upon a small communal district, in other words, the parish, and that everyone who was bound to pay the rates naturally strove to shift the burthen from his own shoulders.

Party-spirit in England has invested history with its own colours, thus rendering it almost impossible to explain the sudden appearance, under the Tudors, of a proletarian class. To investigate at large the English pauper system is beyond our purpose, we must rest satisfied with collecting the necessary data bearing upon pauper legislation, adducing incidentally the opinions of men of different parties as to the origin of pauperism. Till the reformation there had been no temporal legislation in England in relation to the poor; they were supported by the Church, the monasteries, and the sovereign, as well as by means of voluntary gifts. The Church enjoined every clerk, under pain of excommunication, to give from his superfluity to the poor; laymen were earnestly urged to act in like manner.* A canon of 1281 (9 Edw. I.) directed that non-resident rectors should provide for the wants of the poorer parishioners. An old ordinance, preserved in the "Mirror of Justice," enjoined that the poor should be maintained by the rector of the church, out of the tithes contributed, "that no man die of default of sustenance." The council of Oxford further decreed that bishops should keep an almoner, as praying and reading sufficeth not for a bishop." The sovereign also had

* Pashley, 149.

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