JUSTICES OF THE PEACE

JUSTICES OF THE PEACE are persons of interest and credit, appointed by the king's commission to keep the peace of the county where they live.

Of these some for special respect are made of the quorum, so as no business of importance may be de-

Justice. spatched without the presence or assent of them or one of them. Every justice of peace has a separate power, and his office is to call before him, examine, issue warrants for apprehending, and commit to prison all thieves, murderers, wandering rogues; those that hold conspiracies, riots, and almost all delinquents which may occasion the breach of the peace and quiet of the subject; to commit to prison such as cannot find bail, and to see them brought forth in due time to trial; and bind over the prosecutors to the assizes. And if they neglect to certify examinations and informations to the next gaol-delivery, or do not bind over prosecutors, they should be fined. A justice may commit a person that doth a felony in his own view without a warrant; but if on the information of another, he must make a warrant under hand and seal for that purpose. If complaint and oath be made before a justice of goods stolen, and the informer, suspecting that they are in a particular house, shows the cause of his suspicion, the justice may grant a warrant to the constable, &c. to search in the place suspected, to seize the goods and person in whose custody they are found, and bring them before him, or some other justice. The search on these warrants ought to be in the day time, and doors may be broke open by constables to take the goods. Justices of peace may make and persuade an agreement in petty quarrels and breaches of the peace, where the king is not entitled to a fine, though they may not compound offences or take money for making agreements. A justice hath a discretionary power of binding to the good behaviour; and may require a recognizance, with a great penalty of one for his keeping of the peace, where the party bound is a dangerous person, and likely to break the peace, and do much mischief; and for default of sureties he may be committed to gaol. But a man giving security for keeping the peace in the king's bench or chancery, may have a supersedeas to the justices in the county not to take security; and also by giving surety of the peace to any other justice. If one make an assault upon a justice of peace, he may apprehend the offender, and commit him to gaol till he find sureties for the peace; and a justice may record a forcible entry on his own possession; in other cases he cannot judge in his own cause. Contempts against justices are punishable by indictment and fine at the sessions. Justices shall not be regularly punished for any thing done by them in session as judges; and if a justice be tried for any thing done in his office, he may plead the general issue, and give the special matter in evidence; and if a verdict is given for him, or if the plaintiff be nonsuit, he shall have double costs; and such action shall only be laid in the county where the offence is committed, 7 Jac. 5. 21 Jac. cap. 12. But if they are guilty of any misdemeanour in office, information lies against them in the king's bench, where they shall be punished by fine and imprisonment; and all persons who recover a verdict against a justice for any wilful or malicious injury, are entitled to double costs. By 24 Geo. II. cap. 44. no writ shall be sued out against any justice of peace, for any thing done by him in the execution of his office, until notice in writing shall be delivered to him one month before the suing out of the same, containing the cause of action, &c. within which month he may tender amends; and

if the tender be found sufficient, he shall have a verdict, &c. Nor shall any action be brought against a justice for any thing done in the execution of his office, unless commenced within six months after the act committed. Justices.

A justice is to exercise his authority only within the county where he is appointed by his commission, not in any city which is a county of itself, or town corporate, having their proper justices, &c. but in other towns and liberties he may. The power and office of justices terminates in six months after the demise of the crown, by an express writ of discharge under the great seal, by writ of supersedeas, by a new commission, and by accession of the office of sheriff or coroner.

The original of justices of the peace is referred to the fourth year of Edward III. They were first called conservators or wardens of the peace, elected by the county upon a writ directed to the sheriff: but the power of appointing them was transferred by statutes from the people to the king; and under this appellation appointed by 1 Edward III. cap. 16. Afterwards the statute 34 Edw. III. cap. 1. gave them the power of trying felonies, and then they acquired the appellation of justice. They are appointed by the king's special commission under the great seal, the form of which was settled by all the judges, A. D. 1590; and the king may appoint as many as he shall think fit in every county in England and Wales, though they are generally made at the discretion of the lord chancellor, by the king's leave. At first the number of justices was not above two or three in a county, 18 Edw. III. cap. 2. Then it was provided by 34 Edw. III. cap. 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. The number was afterwards restrained first to six and then to eight, in every county, by 12 Ric. II. cap. 10. and 14 Ric. II. cap. 11. But their number has greatly increased since their first institution. 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. cap. 7. orders them to be of the most sufficient knights, esquires, and gentlemen of the law; and by the 2 Hen. V. stat. 1. cap. 4. and stat. 2. cap. 1. they must be resident in their several counties. And by 18 Hen. VI. cap. 11. no justice was to be put in commission, if he had not lands to the value of 20l. per annum. It is now enacted by 5 Geo. II. cap. 11. that every justice shall have 100l. per annum, clear of all deductions; of which he must make oath by 18 Geo. II. cap. 20. And if he acts without such qualification, he shall forfeit 100l. It is also provided by 5 Geo. II. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace.

Justices of the Peace within Liberties, are justices of the peace who have the same authority in cities or other corporate towns as the others have in counties; and their power is the same; only that these have the assize of ale and beer, wood, and victuals, &c. Justices of cities and corporations are not within the qualification act, 5 Geo. II. cap. 17.

Fountain of Justice, one of the characters or attributes of the king. See PREROGATIVE.

By the fountain of justice the law does not mean the

author or original, but only the distributor. Justice is not derived from the king as from his free gift; but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir, from whence right and equity are conducted, by a thousand channels, to every individual. The original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to each individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates who with more ease and expedition can hear and determine complaints: and in England this authority has immemorially been exercised by the king or his substitutes. He therefore has alone the right of erecting courts of judicature: for though the constitution of the kingdom hath intrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary that courts should be erected, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. And hence it is that all jurisdictions of courts are either immediately or immediately derived from the crown; their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers.

It is probable, and almost certain, that in very early times, before our constitution arrived at its full perfection, our kings in person often heard and determined causes between party and party. But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depository of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament. And in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the stat. 13 W. III. c. 2. that their commissions shall be made, not, as formerly, durante beneplacito, but quandiu bene se gesserint, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. And now, by the noble improvements of that law in the statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demise of the crown (which was formerly held immediately to vacate their seats), and their full salaries are absolutely secured to them during the continuance of their commissions; his majesty having been pleased to declare, that he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown."

In criminal proceedings or prosecutions for offences, it would still be a higher absurdity, if the king personally sat in judgment; because, in regard to these, he appears in another capacity, that of prosecutor. All offences are either against the king's peace, or his crown and dignity; and are so laid in every indict-

ment. For though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. And this notion was carried so far in the old Gothic constitution (wherein the king was bound by his coronation oath to conserve the peace), that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king's coronation oath; dicebatur fregisse juramentum regis juratum. And hence also arises another branch of the prerogative, that of pardonning offences; for it is reasonable that he only who is injured should have the power of forgiving. See PARDON.

In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative. For which reason, by the statute of 16 Car. I. c. 10. which abolished the court of star-chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy-council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided in a free constitution, than uniting the provinces of a judge and a minister of state. And indeed, that the absolute power, claimed and exercised in a neighbouring nation, is more tolerable than that of the eastern empires, is in a great measure owing to their having vested the judicial power in their parliaments; a body separate and distinct from both the legislative and executive: and if ever that nation recovers its former liberty, it will owe it to the efforts of those assemblies. In Turkey, where every thing is centered in the sultan or his ministers, despotic power is in its meridian, and wears a more dreadful aspect.

A consequence of this prerogative is the legal ubiquity of the king. His majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice. His judges are the mirror by which the king's image is reflected. It is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject. And from this ubiquity it follows, that

the king can never be nonsuit; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court. For the same reason also in the forms of legal proceedings, the king is not said to appear by his attorney, as other men do; for he always appears, in contemplation of law, in his own proper person.

From the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. See PROCLAMATION.