III.
to consider, are justices of the peace; the principal of whom is
the custos rotulorum, or keeper of the records of the county. The
common law hath ever had a special care and regard for the conservation
of the peace; for peace is the very end and foundation
of civil society. And therefore, before the present constitution of
justices was invented, there were peculiar officers appointed by
the common law for the maintenance of the public peace. Of
these some had, and still have, this power annexed to other offices
which they hold; others had it merely by itself, and were
thence named custodes or conservatores pacis. Those that were so
virtute officii still continue; but the latter sort are superseded by
the modern justices.
principal conservator of the peace within all his dominions; and
may give authority to any other to see the peace kept, and to
punish such as break it: hence it is usually called the king's peace.
The lord chancellor or keeper, the lord treasurer, the lord high
steward of England, the lord mareschal, and lord high constable
of England (when any such officers are in being) and all the
justices of the court of king's bench (by virtue of their offices)
and the master of the rolls (by prescription) are general conservators
of the peace throughout the whole kingdom, and may
commit all breakers of it, or bind them in recognizances to keep
it[y]: the other judges are only so in their own courts. The coroner
is also a conservator of the peace within his own county[z];
as is also the sheriff[a]; and both of them may take a recognizance
or security for the peace. Constables, tythingmen, and the like,
are also conservators of the peace within their own jurisdictions;
and may apprehend all breakers of the peace, and commit them
till they find sureties for their keeping it[b].
conservators of the peace, were chosen by the freeholders in full
county court before the sheriff; the writ for their election directing
them to be chosen "de probioribus et melioribus in comitatu suo
in custodes pacis[c]." But when queen Isabel, the wife of Edward
II, had contrived to depose her husband by a forced resignation
of the crown, and had set up his son Edward III in his
place; this, being a thing then without example in England, it
was feared would much alarm the people; especially as the old
king was living, though hurried about from castle to castle; till
at last he met with an untimely death. To prevent therefore any
risings, or other disturbance of the peace, the new king sent
writs to all the sheriffs in England, the form of which is preserved
by Thomas Walsingham[d], giving a plausible account of the
manner of his obtaining the crown; to wit, that it was done
ipsius patris beneplacito: and withal commanding each sheriff that
the peace be kept throughout his bailiwick, on pain and peril of
disinheritance and loss of life and limb. And in a few weeks after
the date of these writs, it was ordained in parliament[e], that,
for the better maintaining and keeping of the peace in every
county, good men and lawful, which were no maintainers of
evil, or barretors in the country, should be assigned to keep the
peace. And in this manner, and upon this occasion, was the
election of the conservators of the peace taken from the people,
and given to the king[f]; this assignment being construed to be by
the king's commission[g]. But still they were called only conservators,
wardens, or keepers of the peace, till the statute 34 Edw. III.
c. 1. gave them the power of trying felonies; and then they acquired
the more honorable appellation of justices[h].
under the great seal, the form of which was settled by all the
judges, A. D. 1590[i]. This appoints them all[k], jointly and severally,
to keep the peace, and any two or more of them to enquire
of and determine felonies, and other misdemesnors: in
which number some particular justices, or one of them, are directed
to be always included, and no business to be done without
their presence; the words of the commission running thus, "quorum
aliquem vestrum, A. B. C. D. &c. unum esse volumus;"
whence the persons so named are usually called justices of the
quorum. And formerly it was customary to appoint only a select
number of justices, eminent for their skill and discretion, to be of
the quorum; but now the practice is to advance almost all of them
to that dignity, naming them all over again in the quorum clause,
except perhaps only some one inconsiderable person for the sake
of propriety: and no exception is now allowable, for not expressing
in the form of warrants, &c, that the justice who issued
them is of the quorum[l].
it was ordained by statute 18 Edw. III. c. 2. that two, or three,
of the best reputation in each county shall be assigned to be keepers
of the peace. But these being found rather too few for that
purpose, it was provided by statute 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, shall be made justices in every
county. But afterwards the number of justices, through the ambition
of private persons, became so large, that it was thought
necessary by statute 12 Ric. II. c. 10. and 14 Ric II. c. 11. to
restrain them at first to six, and afterwards to eight only. But
this rule is now disregarded, and the cause seems to be (as Lambard
observed long ago[m]) that the growing number of statute
laws, committed from time to time to the charge of justices of
the peace, have occasioned also (and very reasonably) their encrease
to a larger number. And, 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. c. 10.
orders them to be of the most sufficient knights, esquires, and
gentlemen of the law. Also by statute 2 Hen. V. st. 1. c. 4. and
st. 2. c. 1. they must be resident in their several counties. And
because, contrary to these statutes, men of small substance had
crept into the commission, whose poverty made them both covetous
and contemptible, it was enacted by statute 18 Hen. VI. c. 11.
that no justice should be put in commission, if he had not lands
to the value of 20l. per annum. And, the rate of money being
greatly altered since that time, it is now enacted by statute
5 Geo. II. c. 11. that every justice, except as is therein excepted,
shall have 100l. per annum clear of all deductions; and, if he acts
without such qualification, he shall forfeit 100l. which[n] is almost
an equivalent to the 20l. per annum required in Henry the sixth's
time: and of this qualification[o] the justice must now make oath.
Also it is provided by the act 5 Geo. II. that no practising attorney,
solicitor, or proctor, shall be capable of acting as a justice
of the peace.
subsists only during his pleasure; and is determinable, 1. By the
demise of the crown; that is, in six months after[p]. 2. By express
writ under the great seal[q], discharging any particular person,
from being any longer justice. 3. By superseding the commission
by writ of supersedeas, which suspends the power of all the justices,
but does not totally destroy it; seeing it may be revived
again by another writ, called a procedendo. 4. By a new commission,
which virtually, though silently, discharges all the former
justices that are not included therein; for two commissions
cannot subsist at once. 5. By accession of the office of sheriff or
coroner[r]. Formerly it was thought, that if a man was named in
any commission of the peace, and had afterwards a new dignity
conferred upon him, that this determined his office; he no longer
answering the description of the commission: but now[s] it is
provided, that notwithstanding a new title of dignity, the justice
on whom it is conferred shall still continue a justice.
on his commission, and on the several statutes, which have created
objects of his jurisdiction. His commission, first, empowers him
singly to conserve the peace; and thereby gives him all the power
of the antient 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 of them to hear and determine
all felonies and other offences; which is the ground of their jurisdiction
at sessions, of which more will be said in it's[**sic] proper
place. And as to the powers given to one, two, or more justices
by the several statutes, that 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 is shewn to him in the courts of law;
and there are many statutes made to protect him in the upright
discharge of his office[t]: which, among other privileges, prohibit
such justices from being sued for any oversights without notice
beforehand; and stop all suits begun, on tender made of sufficient
amends. But, on the other hand, any malicious or tyrannical
abuse of their office is sure to be severely punished; and all persons
who recover a verdict against a justice, for any wilful or malicious
injury, are entitled to double costs.
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 comprize 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 antient and modern practice, collected with great care and
accuracy, and disposed in a most clear and judicious method.
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.
is frequently said to be derived from the Saxon, koning-staple,
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 H. 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, turnaments, and feats of arms, which were performed
on horseback. This great office of lord high constable
hath been disused 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[u]: but from his office, says Lambard[w], 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[x], 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. The former were first ordained by the statute of
Winchester, as before-mentioned; and 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
removeable by the same authority that appoints them[y]. 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 Edward III[z]. These petty constables have two offices
united in them; the one antient, the other modern. Their
antient office is that of headborough, tithing-man, or borsholder;
of whom we formerly spoke[a], and who are as antient 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 constable[b]. And
in general the antient 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 peace[c].
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 upon these
offices, it is perhaps very well that they are generally kept in
ignorance. 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 intended of the day time, in order to apprehend rioters,
and robbers on the highways; the manner of doing which is left
to the discretion of the justices of the peace and the constable[d],
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[e]) and it begins at 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 the summer season, to apprehend all rogues,
vagabonds, and night-walkers, and make them give an account
of themselves. The constable may appoint watchmen at his discretion,
regulated by the custom of the place; and these, being
his deputies, have for the time being the authority of their principal.
But, with regard to the infinite number of other minute
duties, that are laid upon constables by a diversity of statutes, I
must again refer to Mr Lambard and Dr Burn; in whose compilations
may be also seen, what duties belong to the constable or
tything-man indifferently, and what to the constable only: for
the constable may do whatever the tything-man may; but it does
not hold e converso; for the tithing-man has not an equal power
with the constable.
End of section 36
