in any court of record, this shall not be intended of the quarter sessions, unless it be specially named in such statute, but only of the courts of record at Westminster. (Gregory's case, 6 Rep. 19, 20; 2 Hale, 29, 30). 7. Their jurisdiction. And it may be here added, that it is a general rule in the construction Superiors not of statutes, that where things of an inferior degree are first mentioned, inferior first menintended, where those of a higher dignity shall not be included under general subsequent tioned. words; as where a statute speaks of indictments to be taken before justices of the peace, or others having power to take indictments, it shall be understood only of other inferior courts, and not of the Queen's Bench, or other courts at Westminster. (Archbishop of Canterbury's case, 2 Rep. 46; 2 Hawk. c. 27, s. 124). All the justices of each district are equal in authority; but, as it Priority of author. would be contrary to the public interest, as well as indecent, that there ity. should be a contest between different justices, it is agreed, that the jurisdiction in any particular case attaches in the first set of magistrates, duly authorized, who have possession and cognizance of the fact, to the exclusion of the separate jurisdiction of all others. So that the acts of any other, except in conjunction with the first, are not only void, but such a breach of the law as subjects them to indictment. (R. v. Sainsbury, 4 T. R. 456; Paley on Conv., by Deacon, 27). It is clear, that magistrates ought not to execute their functions in Justices acting in their own case, but cause the offenders to be convened or carried before their own case. other justices, or desire the aid of some other justice being present. Dalt. c. 173). For, as in many instances, this were unjust, so it is also imprudent; to which purpose the advice of Lord Coke (1 Inst. 377) is applicable, who (upon the occasion of mentioning a certain judge, who made a settlement of his estate, which was void in law, and who also brought an action in his own name, which all the other judges, of his own shewing in the count, were of opinion did not lie) makes this observation: that it is not safe for any man (be he never so learned) to be of counsel with himself in his own cause, but to take advice of other great and learned men. And the reason he gives is, for that men are generally more foolish in their own concerns than in those of other people. Every proceeding which bears this objection in the face of it is absolutely void. (12 Mod. 674, 688; Salk. 398). In a case where a justice of the peace was also surveyor of the highway, and a matter which concerned his office coming in question at the sessions, he joined in making the order, and his name was put in the caption, the order was quashed. So, it has been determined, that, on an appeal to the sessions against an order of removal, those justices who are rated to the relief of the poor in either of the contending parishes have not a right to vote. (R. v. Yarpole, 4 T. R. 71). So, where the order of sessions was made upon an appeal against a rate. (R. v. Paving Commissioners of Cheltenham, 10 Law Journ., N. S., Mag. C., 99). And in the case of R. v. Gudderidge and another, (5 B. & Cres. 459; 8 D. & R. 217; 4 D. & R., M. C., 35, S. C.), it was held, that a justice of the peace who is a rated inhabitant of a parish cannot vote at sessions, either upon the determination of an appeal against the accounts of the overseers of his parish, or upon the propriety of granting a case for the opinion of the King's Bench. Where it appeared, that, of two magistrates by whom an order of removal was signed, one was a churchwarden of the removing parish, the Court held the order to be bad upon this ground-for the same party could not be complainant, and also adjudicate upon the complaint. (R. v. Great Yarmouth, 6 B. & C. 646). By Holt, C. J., the Mayor of Hereford was laid by the heels, for sitting in judgment in a cause where he himself was lessor of the plaintiff in ejectment, though he by the charter was sole judge of the court. (Anon., 1 Salk. 396; 2 Ld. Raym. 766). And there are other instances 7. Their jurisdiction. In some cases empowered to act. When two justices may act When one may act⚫ of justices having been punished by attachment, and others by minal information, for acting as judges in matters in which they then selves were parties. (See R. v. Hoseasan, 14 East, 606). Yet, in some cases, even if the justice shall act in his own cause, seemeth to be justifiable; as when a justice shall be assaulted, or the doing his office especially) shall be abused to his face, and no de justice present with him; then it seems he may commit such until he shall find sureties for the peace or good behaviour, as th shall require but if any other justice be present, it were fitting sire his aid. (Dalt. c. 173; R. v. Revel, 1 Str. 420, 421). The fact of a justice being rated does not exclude him from acting several parochial matters. For it is enacted by stat. 16 Geo. II. s. 1, (which seems to have been made in consequence of some of th cases above mentioned), "That it shall and may be lawful to and all and every justice or justices of the peace for any county, riding, liberty, franchise, borough, or town corporate, within their respect jurisdictions, to make, do, and execute all and every act or acts, or matters, thing or things appertaining to their office as justice or tices of the peace, so far as the same relates to the laws for the maintenance, and settlement of poor persons; for passing and puna vagrants; for repair of the highways; or to any other laws concer parochial taxes, levies, or rates; notwithstanding any such justi justices of the peace is or are rated to or chargeable with the levies, or rates within any such parish, township, or place affected by any such act or acts of such justice or justices as aforesaid." But sect. 3 provides, "That this act, or anything therein, shall not authorize or empower any justice or justices of the peace for any county or riding at large to act in the determination of any appeal to the quarter sessions for any such county or riding, from any order, matter, or thing relating to any such parish, township, or place, where such justice or justices of the peace is or are so charged, taxed, or chargeable as aforesaid; any thing herein contained to the contrary in myse notwithstanding." By the 5 & 6 Vict. c. 57, s. 15, justices may act at any petty, special or quarter sessions in matters in which the board of which he is officio member is interested. There are also other enactments allowing magistrates someti act, although interested, and which will be found under the pr titles. 3. JURISDICTION OF, IN RESPECT OF THEIR NUMBER. It is clear, that, whatsoever any one justice alone may de, f also may lawfully be done by any two or more justices. (Hata, 2 Salk. 477; Dalt. c. 6, s. 8; R. v. Weale, 5 Car. & P. 133), But when a thing is appointed by statute to be done by arbe person certain, such thing cannot be done by or before any thr by such express designation of one, all others are excluded, proceedings therein are coram non judice. (Dalt. c. 6; Foster'1, Rep. 59, 64). An authority given by statute to two cannot be executed by 4 Rep. 46). But by the 3 Geo. IV. c. 23, s. 2, one justice of the peace m the original information or complaint as to an offence, where more justices are empowered to hear and determine. (See the ment and law, tit. "Conviction," Vol. I.) And, independently of this enactment, it has been consider where justices act ministerially, it is not necessary, even in two only can have jurisdiction, that they should meet together act; and long practice seems to allow this. Thus, where a str pointeth a thing to be done by two justices or more, if the offence risdiction. misdemeanour, or matter against the peace, there, upon complaint made 7. Their juof the offence to any of those justices, it seemeth that one of them may rant out his warrant to attach the offender, and to bring him before the ame justice and the other justice so appointed, (at some convenient lace), and then they are to hear and determine the same. (Dalt. c. )(a). presence of each Where an act of Parliament gives power to two justices finally to hear When justices JURISDICTION OF, IN RESPECT OF THE Offence or InJURY COMPLAINED 'o point out the various matters in which justices of the peace, in or he judicial authority and duties of justices of the peace, in some ines, are of a civil kind, as, where they have to adjudicate between er and servant, &c., or to enforce the payment of rates, fines, penalc.; in others, they act as criminal judges, with summary power ermine the guilt or innocence of the accused, by their own imons of the evidence, and to punish the offender. jurisdiction of a justice of the peace out of sessions as such is deeither from his commission, or, as is most usual, from some parr act of Parliament. Jurisdiction and al duties of, in gene sion. the first part of the commission it will be seen, ante, 988, that any By their commismore justices have as well all the ancient power touching the which the conservators of the peace had at the common law, as at whole authority which the statutes have since added thereto. c. 5, p. 15). certain, that, by virtue of the words in their commission, "to nd cause to be kept, all ordinances and statutes for the good of the 'they may execute all statutes whatsoever, made for the better g of the peace, and consequently those of Winchester and West, and all others concerning the peace made before the reign of ÍL., in whose time (as hath been said) justices of the peace were In this subject Lord Hale says, y to the opinion of Lord Coke), justices out of sessions may eir warrant for apprehending charged of crimes without the ce of the sessions, and bind er to appear at the sessions, the offender be not yet in1 Hale, 579). n another place, he says, this doubtful; and that one thing emeth to make against it is, most cases of this nature, he party were indicted, or an on preferred, yet a capias was st process, but a venire facias, ingas. (2 Hale, 113). III. And Mr. Hawkins, on this point, saith thus: It seems, that, anciently, no one justice could legally make out a warrant for an offence against a penal statute, or other misdemeanour cognizable only by a sessions of two or more justices; for that one single justice hath no jurisdiction of such offence, and regularly those only who have jurisdiction over a cause can award process con cerning it; yet the long, constant, universal, and uncontrolled practice of justices of the peace seems to have altered the law in this particular, and to have given them an authority in relation to such arrests, not now to be disputed. (2 Hawk. c. 13, s. 16). TTT 7. Their jurisdiction. By statutes. first instituted: for all those statutes were expressly mentioned in the ancient commissions of the peace, and have always been undoubted taken to be included in these general words of the present commissi And yet none of the statutes which ordain the office of justices of the peace say anything concerning the execution of the said former statutes, so that the power of justices of the peace, in relation to those statutes seems entirely to depend on the Queen's commission, and yet hath ways been unquestionably allowed. From whence it appears, regularly the Queen, by her commission, may authorize whom pleases to execute an act of Parliament. (2 Hawk. c. 8, s. 28). An inquisition of self-murder, if the body cannot be seen, and so inquired of by the coroner, may be taken before justices of the pear for it is a felony, and within the extent of their commission. (1 Hale, So also, if a person hath committed treason, though the justices ha no cognizance of it as treason, yet they have cognizance of it as a fairy and as a breach of the peace; and therefore a justice of the peace, information on oath, may issue his warrant to take the traitor, and take his examination, and commit him to prison. (1 Hale, 580), further as to the meaning of the words "of the peace," ante, 94 The commission assigns the justices to keep the peace, “and fir quiet government of our people; yet it seemeth that the subjects f foreign prince coming into England, and living under the protecti our Queen, shall be subject to, and have the benefit of, the lawy spect of the local allegiance which they owe to her. (1 Hal Besides the statutes relating to the peace named in the cost, there are also many other statutes which are not specified in the mission, and yet are committed to the charge and care of the of the peace, by the express words of such statutes: and tutes are to them a sufficient warrant and commission of the although they be not recited in the commission, and are to be ex by them, according as the same statutes themselves do severly scribe and set down. (Dalt. c. 5. See R. v. Linsdale, 1 Burr. 45). Indeed, the far greater part of the labours of justices out of sess arise from the duties imposed on them by particular statutes. How much, therefore, it becometh them to be well acquainted with the na and construction of statutes, before acting thereon. This certainly easy task at the present day, especially, considering the vast number of statutes, and the uncertain wordings of most of them. Forasmuch as most of the business of a justice of the peace each in the execution of divers statutes, which cannot be sufficiently In like manner, it is not safe for them to trust altogether to the and judgment of their clerks, in drawing warrants and other ments; much less to the skill of parish officers in making orders, and the like; but rather it is advisable to have go forms; and, instead of copies to be taken upon occasion, to m duplicates. A justice of the peace, before taking cognizance of a matter, ing either ministerially or judicially as a justice, should be est ascertaining whether the case in which he is called upon to act be in the limits of his jurisdiction; whether it be one over which jurisdiction, which he may ascertain from his commission, or fr act of Parliament giving him jurisdiction over it, as the case m pen; whether he may act alone without the aid of a fellowwhether the case is laid before him in the limited time, by a proj competent person, on proper information on oath, or otherwise. 7. Their jurisdiction. Powers watched The execution of the powers confided to justices of the peace in summary convictions are generally watched by the courts with jealousy, such summary convictions being derogatory to the liberty of the subject; and all powers given in restraint of liberty must be strictly pursued. with jealousy. (Per Cur., Bracy's case, 1 Salk. 349. And see Wilkins v. Wright, 2 C. & M. 201). In some cases, the justice has a discretionary duty to take cognizance Discretionary of the matter; in others, as is most usual, the duty is imperative. Upon this discretionary power it may be observed, that, where an act of Parliament gives power to the justices of the peace to take order in any matter according to their discretions, this shall be understood according to the rules of reason, law, and justice, and not by private opinion. (Rook's 's case, 5 Rep. 100. See 8 Howell's St. Tr. 55 (notis)). It has been observed, by Lord Mansfield, C. J., that this discretionary power, when applied to a Court of justice, means sound discretion, guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular. (R. v. Willis, 4 Burr. 2539). And Lord Kenyon said, in the case of Wilson v. Rastall, (4 T. R. 737)—"The discretion to be exercised by a Court or a judge is not a wild, but a sound discretion, and to be confined within those limits, within which an honest man, competent to discharge the duties of his office, ought to confine himself.” It should be also here observed, that the superior Court of Queen's Bench will never, or rather ought never to interpose against magistrates, inless they have acted from bad motives and malâ fide; especially where hey are intrusted with an absolute discretion. Where justices of the eace use due discretion, it would be of very dangerous consequences for he superior court to interfere. (See per Lord Mansfield, Ĉ. J., R. v. Tann, 3 Burr. 1716). Again, Lord Mansfield, C. J., has said, in R. v. Young and Pitts, (1 Burr. 556), that where justices of the peace have urisdiction to act discretionarily, and act accordingly, the Court of Queen's Bench has no power or claim to review their reasons, by way f appeal from their judgments, or by way of overruling the discretion ntrusted to them. But, if it clearly appear that justices of the peace ave been partially, maliciously, or corruptly influenced in the exerise of this discretion, and have, consequently, abused the trust reposed n them, they are liable to prosecution by indictment or information, or ven possibly by action, if the malice be very gross and injurious. But, if their judgment be wrong, yet their heart and intention pure, hey cannot be punished if they act within their jurisdiction. (See ost, 1017). The abuse of a discretionary power should be more severely punished han the abuse of a power which is not discretionary. (Per Ryder, . J., in R. v. Justices of Nottingham, Say. Rep. 216, 217). The principle, that, if a justice entertain a reasonable doubt of his urisdiction, the Court will not compel him to do an act which may ubject him to an action, has been established by various cases. "How,' said Abbott, C. J., in delivering judgment, (in the case of R. v. Brodeip, 7 D. & R. 86; 5 B. & C. 239, S. C.), " 'can we order a magisrate to do that which may subject him to an action? If a justice of the peace criminally forbears to discharge his duty, he is amenable for his conduct by information, as for a public offence; but that is a very different thing from commanding him to do that which may subject him to an action." (See further as to this, post, 1023). power. In most cases, a justice of the peace is imperatively called upon to Imperative duty. act; and generally, where a statute directs the doing of a thing for the sake of justice, or the public good, the word may is the same as the word shall, and is imperative on the justice to proceed. (See R. v. Barlow, 2 Salk. 609; 4 B. & Ald. 271; De Beauvoir v. Welch, 7 B. & C. 278; 1 M. & Ry. 18, S. C.; and tit. "Statutes." Vol. V.) In such cases, if |