Before the institution of this office, as it now exists, certain public functionaries in England, such as the Lord Chancellor, the Judges of the Queen's Bench, sheriffs, and coroners, were invested with powers, as they still are, for the maintenance of the public peace. Besides these there were, however, in earlier times, persons appointed to that duty by the freeholders in their county courts, under authority of the common law of England, as well as others, who were bound to discharge it by the tenure of their lands. These persons were at length superseded by justices on the accession of Edward III., who issued writs commanding each sheriff to cause the peace to be kept within his bailiwick. The statute 1st Edward III., c. 16, passed soon after, transferred the appointment of these newly created conservators of the peace to the king; and when, by 34th Edward III., c. 1, they acquired the power of trying minor offences, they received the name of Justices. Since that time the sovereign has been constitutionally recognized as the chief conservator of the peace; and commissions are granted at the royal pleasure, authorizing any one to cause it to be kept, with power to punish whoever may break it. The form of the commission was first settled in 1590; and, among the number of those included in the commission, one or more were named—popularly styled Justices of the Quorum—without whose presence the others were not entitled to act. This distinction is, however, not now kept up, and all are equally empowered to act. On their appointment they must take the oaths prescribed by law. Their services are rendered gratuitously; and hence they are usually called the unpaid, to distinguish them from stipendiary magistrates. A variety of statutes were passed between the reign of Edward III. and Henry VI., regulating the numbers, qualifications, and residences of justices in England, but these are not now of much practical importance. In order to exclude persons from the office who were unsuitable on account of their poverty, the statute 18th Henry VI., c. 11, required that each justice should have lands to the value of L20 per annum. To meet the depreciation of money, the statute 5th George II., c. 11, raised the required sum to L100 per annum, clear of all deductions, and subjected every person who acted without that qualification to a penalty of L100. This statute, and the 6th and 7th Vict., c. 73, § 33, disqualify every practising attorney, solicitor, or proctor, from acting as a justice of the peace. The 34th section of the latter of these statutes declares, that this disqualification does not extend to any town, having justices within its limits, by charter or commission. The statute 18th Geo. II., c. 20, continues the requirement, that the English county justice shall possess L100 per annum from heritage, but excepts the justices of the English burghs.

In Scotland, we find the office of justice of the peace mentioned so far back as the Act 1587. In cap. 82 of that year, the sovereign was authorized to grant commission to noblemen of all ranks, and landed gentlemen, actual in-dwellers in the shires, the number for each shire being limited, together with four of the council of every burgh. The following statutes were afterwards passed for the better regulation of the office—1609, c. 7; 1617, c. 8; 1633, c. 26; 1661, c. 38. This last is worthy of perusal. An act, passed in 1686, c. 20, vested the appointment of clerk to the justices in the crown. In 1707 a new commission for Scotland was issued, conferring on justices the same powers, in reference to the customs and excise, as were exercised by justices in England; and the Act 6th Anne, c. 6, declared that justices in Scotland are "authorized to do, use, and exercise over all persons within their several bounds, whatever doth appertain to the office and trust of a justice of the peace, by virtue of the laws and acts of Parliament made in England before the Union, in relation to, and preservation of, the public peace; provided, must necessarily, however, on account of the great number of justices required, be conferred on many persons who have had no training for the discharge of its duties; and, therefore, most statutes which confer a cumulative jurisdiction, require the concurrence of two justices where one stipendiary magistrate (who must necessarily have undergone a professional training) is sufficient. Wherever a justice of peace, however, acts conscientiously and consistently with the statute which he is called on to enforce, he is protected from all personal responsibility; but if he plainly exceed the powers conferred on him by the statute, or if he act maliciously and without reasonable and probable cause, he is justly liable in damages. Malice is not required to be proved where the justice acts grossly irregularly, or plainly beyond his powers. Acting within his powers it is otherwise; but not where, in the words of Lord Corehouse, his proceedings are "extra-judicial, lawless, and oppressive." Lord Chief-Commissioner Adam remarked, however, that, "if there was probable cause, the magistrate is protected, in whatever situation his mind may have been." For their protection in England, see the statute 24th George II., c. 44; and both in England and Scotland, see 43rd George III., c. 141, by which it is declared, that even when their judgments are quashed, the justices in actions of damages, besides the penalties levied, shall not be liable in more than two pence of damages, nor costs of suit, unless the acts complained of "were done maliciously, and without any reasonable and probable cause." Nor are they liable in any consequences, though their judgment is quashed, where they can prove that the plaintiff was guilty of the offence of which he was convicted, and had undergone no greater punishment than the law assigns to such an offence. See also 9th George IV., c. 29, § 26; and 1st William IV., c. 37; and 11th and 12th Vict., c. 44. A calendar month's notice must be given to the justice before the raising of the action, and it must be raised within six months after the act complained of.