maintaining and keeping the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the county, fhould be affigned to keep the peace; and in this manner, and upon this occafion, was the election of the confervators of the peace taken from the people, and given to the king: Still they were only called confervators, wardens, or keepers of the peace, till the ftatute of Edward III. c. 1. gave them the power of trying felons; and they then acquired the more honourable appellation of juftices.

Thefe juftices are appointed by the king's fpecial commiffon under the great feal, the form of which was settled by all the judges in 1590. It appoints them all jointly and feverally, to keep the peace, and any two or more of them to inquire of, and determine, felonies, and other mifdemeanors: in which number fome particular juftices, or one of them, are directed to be always included, and no bufinefs to be done without their prefence, the words of the commiflion running thus, quorum "aliquem veftrum, A. B. C. D. &c., unum effe volumus;" whence each perfon fo named is ufually called a justice of quorum. Formerly it was cuftomary to appoint only a felect number of justices, eminent for their skill and difcretion, to be of the quorum; but now the practice is to advance almost all to that dignity, naming them all over again in the quorum claufe, except perhaps fome one inconfiderable perfon for the fake of propriety; and no exception is now allowable, for not expreffing in the forms of warrants, &c. that the juftices who iffued them are of the quorum. When any juftice intends to act under this commiffion, he fues out a writ of dedimus poteftatem, from the clerk of the crown in chancery, empowering certain perfons therein named to adminifter the ufual oaths to him; which, when he has taken, he is at liberty to act.

Touching the number and qualifications of these justices, it was ordained by flatute 18 Edw. III. c. 2., that two, or three, of the best reputation in each county, fhall be affigned to be keepers of the peace; but these being found too few, it was provided by 34 Edward III. c. 1., that one lord, and three or four of the moft worthy men, with fome learned in the law, fhould be made justices in every county. Afterwards the number of juftices, through the ambition of private persons, became fo large, that it was thought neceflary by statute 12 Ric. II. c. 10., and 14 Ric. II. c. 11. to restrain them at first to fix, and afterwards to eight only; but this rule is now difregarded, and the caufe feems to be, that the growing number of ftatute laws, committed from time to time to the charge ef juftices of the peace, has occafioned alfo (and very reafonably) their increase to a larger number. As to their qualif

cations,

cations, the ftatutes laft cited direct that they fhall be of the best reputation, and moft worthy men in the county; and the 13 Ric. II. c. 7. orders them to be of the most fufficient knights, efquires, and gentlemen of the law; alfo by ftatute 2 Hen. V. ft. 1. c. 4., and ft. 2. c. 1., they must be refident in their feveral counties. At length, because contrary to thefe ftatutes, men of small subflance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by 18 Hen. VI. c. 11. that no juftice fhould be put into commiffion, if he had not lands to the value of 20%. per annum; but, the rate of money being greatly altered fince that time, it is enacted by 5 Geo. II. c. 18., that every justice, except as is therein excepted, fhall have 100l. per annum, clear of all deductions; and, if he acts without fuch qualification, he fhall forfeit one hundred pounds. This qualification is almost equivalent to the 20%. per annum required in Henry the Sixth's time; and of this the juftice muft now make oath. Alfo it is provided by the act 5 Geo. II. that no practising attorney, folicitor, or proctor, fhall be capable of acting as a justice of the peace.

As the office of thefe juftices is conferred by the king, so it fubfifts only during his pleasure; and is determinable, 1. By demife of the crown, that is, in fix months after; but if the fame juftice is put in commiffion by the fucceffor, he is not obliged to fue out a new dedimus, or fwear to his qualification afresh: nor by reafon of any new commiffion, to take the oaths more than once in the fame reign. 2. By exprefs writ under the great feal, difcharging any particular perfon from being any longer a juftice. 3. By fuperfeding the commiffion by writ of fuperfedeas, which fufpends the power of all the justices, but does not totally destroy it, fince it may be revived by another writ called a procedendo. 4. By a new commiflion, which virtually, though filently, difcharges all the former juftices not included in it; for two commiffions cannot fubfift at once. 5. By acceffion to the office of fheriff or coroner; that is to fay, he cannot act as a juftice of the peace during the year he is theriff; but it is not equally clear that the election of a man as coroner difqualifies him to be a justice. Formerly it was thought, that if a man was named in any commiffion of the peace, and had afterwards a new dignity conferred on him, his office was determined, he no longer anfwering the defcription of the commiffion; but now it is provided that, notwithstanding a new title of dignity, the juftice on whom it is conferred fhall ftill continue a juftice.

The power, office, and duty of a juflice of peace depend

on his commiffion, and on the feveral ftatutes which have created objects of his jurifdiction. His commiffion, first, empowers him fingly to conferve the peace, and thereby gives him all the power of the ancient confervators at the common law, in fuppreffing riots and affrays, in taking fecurities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more to hear and determine all felonies and other offences, which is the ground of their jurifdiction at feffions, of which mention has been made.

When two or more juftices are by ftatute obliged to concur in any act, as the appointment of overfeers, and various others, both juftices must be present and do the act together. As the poor laws, the revenue laws, and many other branches of the adminiftration of juftice have thrown a vaft additional power as well as a great accumulation of business into the hands of these magiftrates, it is ufual to allow an appeal from their fummary proceeding to the general or quarter feflions, where the cafe can be more folemnly argued, and fometimes to the commiffioners of the cuftoms or excife. The power of a justice of the peace to convict an offender in a fummary way, without a trial by jury, it is obferved, is in reftraint of common law, and in abundance of inftances a tacit repeal of that famous claufe in the great charter, that a man fhall be tried by his equals; which also was the common law of the land, long before the great charter, even for time immemorial, beyond the date of hiftories and records. Therefore generally nothing is prefumed in favour of this branch of the oflice of a juftice; but the intendment will be againft it; for which reafon, where this fpecial power is given to a juftice by act of parliament, it muft appear that he has ftrictly purfued it; otherwife the common law will break in upon him, and level all his proceedings. So that where a trial by jury is difpenfed with, yet he muft proceed according to the courfe of the common law in trials by juries, and confider himself only as constituted in the place both of judge and jury. Therefore there must be an information or charge against a perfon; then he must be fummoned or have notice of fuch charge, and an opportunity to make his defence; and the evidence against him must be fuchr as the common law approves of, unless the ftatute specially. directs otherwife; then, if the perfon is found guilty, there must be a conviction, judgment, and execution, all according to the course of the common law, directed and influenced by the fpecial authority given by ftatute; and in conclufion, there must be a record of the whole proceedings, wherein the justice muft fet forth the particular manner and circumftances, fo as

if he fhall be called to an account for the fame by a fuperior court, it may appear he has conformed to the law, and not exceeded the bounds prefcribed to his jurisdiction.

LORD LIEUTENANT AND CUSTOS ROTULORUM. The office of lord lieutenant is purely military, he being the principal perfon empowered to regulate the militia in his county; but to the appointment of lord lieutenant is commonly joined that of cuftos rotulorum, in virtue of which he prefides over all the justices of the peace in the county, and new ones are in general put into commiffion on his recommendation. He is nominated by the king's fign manual.

CLERK OF THE PEACE. By ftatute 37 Hen. VIII. c. 1. and 1 Will. c. 21. the cuftos rotulorum fhall appoint an able and fufficient perfon refiding in the county or divifion, to execute the office of clerk of the peace, by himself or his fufficient deputy, (to be allowed of by the faid cuftos rotulorum) and to take and receive the fees, profits, and perquifites thereof, for fo long time only as fuch clerk of the peace fhall well demean himself in his office. But the cuftos rotulorum must not fell the place of clerk of the peace, or directly or indirectly take any reward, or affurance of reward, fee, or profit, for fuch appointment, on pain that the feller and buyer fhall be difabled to hold their respective places, and each forfeit double value of the thing given, to him who fhall fue. The clerk of the peace takes an oath that he has not gained his appointment by corruption, and thofe of allegiance and fupremacy. He draws ordinary indictments for felony, for which his fee is only two fhillings, and if defective, he must prepare new ones gratis; he makes certain returns of fines, forfeitures, outlawries, convictions, and attaints, to the court of king's bench, and to the fheriffs; and he delivers into the court of exchequer an account of all eftreats, which he verifies on oath. He keeps a public office in the county, and his duties are very extensive in all affairs tranfacted at the feffions. Neither clerk of the peace, nor his deputy can act as folicitor, attorney, or agent, or fue out any procefs at any general or quarter feffions, where he fhall execute the office of the clerk of the peace or deputy, on pain of 50l. to him who fhall fue in twelve months, with treble cofts.

CONSTABLES. Conftables are of two forts, high and petty. The former were first ordained by the ftatute of Winchester; are appointed at the court-leets of the franchife or hundred over which they prefide, or, in default of that, by the justices at the quarter feffions; and are removable by the fame autho rity that appoints them. The petty conftables are inferior officers in every town and parish, fubordinate to the high confta

ble of the hundred, firft inftituted about the reign of Edward III. These petty conftables have two offices united in them; the one ancient, the other modern. Their ancient office is that of headborough, tything-man, or bortholder; and thefe are as ancient as the time of Alfred; their more modern office is that of constable merely; which was appointed fo lately as the reign of Edward III., in order to aflift the high conftable; and in general the ancient headboroughs, tythingmen, and borfholders, were made ufe of to serve as petty conftables; though not fo generally, but that in many places they ftill continue diftinct officers. They are all chofen by the jury at the court-leet; or if no court-leet be held, are appointed by two juftices of the peace.

QUALIFICATIONS AND EXEMPTIONS. No perfon is qualified to be a constable who is not an inhabitant of the place for which he is to ferve; and every inhabitant may not be a fit perfon to be appointed to this office, for he ought to be of the abler fort of parishioners; and if a very ignorant or poor person is chofen, he may by law be discharged, and an abler appointed in his room. The perfons exempt from ferving the office of conftable are, the prefident, commons, and fellows of the faculty of physicians and furgeons, in London; apothecaries in London, and within feven miles, being free of the company of apothecaries; and alfo thofe in the country who have ferved feven years apprenticeship; a fworn attorney, or other officer, of the courts at Westminster may have a writ of privilege for his discharge, by reafon of his neceffary attendance in thofe courts; and upon the like reasons, it is taken for granted, that practising barristers at law, and the fervants of members of parliament, have the fame privilege; an alderman of London, for the like reasons, is not compellable: to be a conftable; but it has been holden, that a captain of the king's guards, being prefented to ferve as conftable, in pur fuance of a cuftom in refpect of his lands in a town, cannot. claim this privilege, although he is bound by his office to perfonal attendance on the king; yet fuch office being of late inftitution, cannot prevail against an ancient cuftom. Yet if fuch an officer as before mentioned, or a gentleman of quality, who has no fuch office, or a practising physician, were chofen constable. of a town which has fufficient perfons befides to execute the office, and no fpecial custom concerning it, perhaps he might be relieved by the king's bench; but it seems that even a cuftom cannot exempt fit perfons from ferving the office, where there are not others fufficient to execute it. These points feem not to be entirely fettled; but no ferjeant, corporal, nor private man, ferving in the militia, is, during the time, liable to be a conftable;