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not altered or impaired by a non-consenting creditor, who later proves her claim and takes her share of the distribution. The rights in question are altered and impaired by the acceptance or rejection of the composition offer. As the voluntary act of the non-consenting creditor has in no sense contributed toward the acceptance of the composition, she has not impaired or altered the remedy of the surety against the principal. Any later receipt of the benefits of the composition, in no way affects the relation of the principal toward the surety. So the subsequent proof of claim and taking of the avails under the composition would not release the surety.
On the other hand, it might well be taken that she had made her choice at the time that she voted upon the acceptance of the composition. With the facts before her, she had chosen to retain her rights against the sureties and > absolve the principal debtor. By voting negatively, she had aligned herself as opposed to the composition because, or partly because, if she voted affirmatively, she released her security (using the word in the popular and not in the bankruptcy sense). Consequently to keep her remedy against the surety, she must not take part in the composition, or accept the fruits thereof.
Again it might be urged that ratification is equivalent to previous consent, and that, by proving her claim and accepting the avails, she had, in effect, bound herself with the majority who made the composition a fact.
Even more strongly, it might be submitted, that the liabilities of the sureties are fixed by the action of the particular creditor with respect to the composition. If she accepts the composition she releases the sureties. If she repudiates the composition, she retains her remedy against the sureties. The time or mode of acceptance are immaterial. Even if, though at the time of voting upon the composition, she voted in disaffirmance thereof, yet she later accepted the avails therefrom, she must be held to accept the same. She cannot "take the benefits of the composition, and avoid its obligations. Any other conclusion leads to absurdity. For example:
Y and Z are sureties. Their creditor consents to the composition and accepts his proportion of the consideration. Y and Z are released. B and C are sureties. Their creditor does not vote in favor of or against the composition. Yet, when the composition is accepted by sufficient others and confirmed, she proves her claim, and gets a proportion of the consideration equal to that received by the creditor of Y and Z. Yet, because of her refusal to assent to the composition in the first instance, her sureties are still bound to her. This is to render the law ridiculous. All creditors accepting the avails of the one composition must release their security (popular sense), or none.
And thus, in the end, we find ourselves involved in a quandry. Should we adhere consistently to the principle which we accepted at the out-set, viz: That the impairing or altering of the remedy of the surety against the principal is the criterion of release, then we must admit that a nonconsenting creditor, who claims the profit of a composition procured without his assistance, has not impaired or altered the remedy of the surety against the principal. Yet if we permit such a creditor to share in the distribution, and still pursue the sureties, such creditor obtains an unfair advantage over the consenting creditor, who, by his consent, released the debt.
In the absence of authority, the problem remains unsolved.
Gr. P. Garrett.
JUSTICES OF THE PEACE; THE ORGIN OF
It is to England that the office of justice of the peace, now established throughout Continental Europe as well as in the United States and the Philippines, owes its origin.1 Before its existence other agencies having for their object the same purpose of conserving the peace and order of civil society in England were constituted and those who discharged for the first such important functions, generally referred to as custodians or conservators of the peace, may fitly be called the predecessors in office of the justices of the peace. These conservatives of the peace, properly socalled, were appointed for every county for the protection of the King's subjects from force and violence and generally the preservation of the King's peace, the King himself being the fountain head of the peace of his kingdom. They were chosen by the freeholders in the county court before the sheriff, out of the principal men in the county, in pursuance of the King's writ directed to them for that purpose. Each one so elected was also by royal writ commanded to take upon himself and execute his office until the King should otherwise order. In addition to the persons so elected a number of other servants of the state possessed ex officio the same general authority of conserving the King's peace as it was euphoniously called. "The King's majesty is by his office and dignity royal, the 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."2 Such ex officio keepers of the peace are mentioned by Lambard as follows: "The lord chancellor or
i Vol. 23 Law Quar. Rev. 310. 2 Lombard's Eirenarch, 12.
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keeper, the lord treasurer, the lord high steward of England, when such offices are in being, and all the justices of the Court of King's Bench, who may commit all breakers of the King's peace, or bind them in recognizances to keep it. The other judges are such conservators also in their own courts, the coroner within his county, as is also the sheriff, both of whom may take a recognizance or security of the peace. Of the sheriff it is said that as keeper of the peace he is the first man in the county and superior to any nobleman therein, during his office. Black Com. 344. Constables are also conservators of the peace within their jurisdictions and may accordingly apprehend all breakers of the peace and commit them till they find sureties for keeping it.3
Persons might have also their authority as conservators of the peace by tenure or by prescription, they holding lands of the King by such and other services, or claiming the authority from immemorial usage in themselves and their ancestors.4 The Master of the Rolls held the office by prescription.
The transition from the system of keeping the King's peace by such conservators to the time when a new scheme was permanently adopted throughout England is historically traced, on Lambard's authority, in Blackstone's Com- . mentaries (351), as follows:
"Those that were, without any office, simply and merely conservators of the peace, either claimed that power by prescription; or were bound to exercise it by the tenure of their lands; or, lastly, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen de proMbribus comitatvA sui in custodes pacis. 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, 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 bis 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 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; this assignment being construed to be by the King's permission. But still they were only called conservators, wardens, or keepers of the peace, till the statute, 34 Edw. Ill c. 1., gave them the power of trying felonies; and then they acquired the more honorable appellation of justices."
It was thus that the election of those charged with the conservation of the peace as keepers thereof was taken from the people and given to the King, Edw. III, who assumed the right of appointing such persons in 1327 and the right has since been continuously exercised by the Crown. The statute (1344) 18 Edw. 3 Stat. 2, Sec. 2, enacted that "two or three of the best reputation in the counties shall be assigned keepers of the peace by the King's Commission, and at what time need shall be the same with other wise and learned in the law shall be assigned by the King's Commission to hear and determine felonies and trespasses done against the peace in the same counties, and to inflict punishment reasonably according to law and reason and .the manner of the deed." The name "Justice" was first given to such officers in 1360, by statute, 34 Edw. III, c. 1. Before they were given jurisdiction to try felonies their duties were not judicial but merely ministerial. Various other English statutes have since been passed regulating, and bestowing new duties of, the office, so that as in the United States, their duties are practically statutory, including the common law duties which gave their office the great importance which Sir Edward Coke (4th Just., p. 170) attached to it when he said: "It is such a form of government for the tranquility and quiet of the realm as