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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."

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. 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 probioribus comitatus 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

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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 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 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. III 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

no part of the Christian world hath the like if the same be duly exercised."

Apart from the case of the city of London and with the addition of those who have been authorized by statute to act as justices by virtue of their office, the justices of the peace in England consist now of such persons as are assigned by the Crown to the commission of the peace. Their names are enrolled in a document prepared by the clerk of the Crown in Chancery, issued by the Crown under the great seal, and setting out the authority conferred upon them. A separate commission is issued for each county or riding of a county, and for each borough entitled thereto, the form of the document for a county differing somewhat from that for a borough.

A new commission of the peace may be issued by the Crown at any time, but is not required even upon a demise of the Crown. The names of newly appointed justices are added to the commission by the clerk of the Crown in Chancery, to whom clerks of the peace in counties and town clerks in boroughs must send a statement in January of each year containing the names of all justices assigned to the commission of the peace for their counties or boroughs who have qualified, and, so far as they know, of those who have died during the preceding year."

As soon as may be after accepting office and before exercising his powers, a newly appointed justice is required to take the oath of allegiance and judicial oath in accordance with the Promissory Oaths Act, 31 and 32, Vict., c. 63, Sec. 34. Precedence among county justices is determined by seniority according to the order of the names on the commission of the peace.

The tenure of the office is for life, subject to removal for misconduct and the commission being superseded. Formerly a property qualification was required, but now any person who resides within a county or within seven miles

Halsbury's Laws of England, Vol. 19, p. 536-37.

of it is eligible as a justice of the peace. In Blackstone, 354, it is said:

"The power, office, and duty, of a justice of the peace depend on his commission, and on the several statutes which have created objects of his jurisdiction. His commission, first empowers him to conserve the peace, and thereby gives him all the power of the ancient conservators of 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 to hear and determine all felonies and other offenses; which is the ground of their jurisdiction at sessions. And as to the powers given to one, two or more justices by the several statutes which 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 undersigned slip in his practice, great levity and indulgence are shown to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office; 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 usually severely punished; and all persons who recover a verdict against a justice, for any wilful and malicious injury, are entitled to double costs."

It may be added that justices acting judicially within their jurisdiction are, as any other court of record so discharging its functions, exempt from liability for wrong decisions, want of jurisdiction or an excess of jurisdiction leaves them without this protection. They are defined by Dalton to be "Judges of Record," appointed by the King to be justices within certain limits for the conservation of the peace, and for the execution of divers things comprehended within their commission, and within divers statutes committed to their charge. Their commission nearly the same now as in the reign of Queen Elizabeth reads:

"Know ye that we have assigned you jointly and severally, and every one of you, our justices, to keep our peace in our county of ; and to keep and to cause to be kept all ordinances and statutes for the good of the peace and for preservation of the same, and for the quiet rule

and government of our people made in all and singular their articles, in our said county (as well within liberties as without) according to the force, form and effect of the same: and to chastise and punish all persons that offend against the form of the ordinance or statutes."

In summary convictions, as well as matters to be done at special and petty sessions, their jurisdiction is wholly given to them by statute. The 11 and 12 Vict., c. 42, gives them jurisdiction over indictable offenses, treason, felony or misdemeanor.

The several descriptions of justices of the peace in England are those for counties, ridings, or divisions, borough and city magistrates and stipendiary magistrates, besides the police magistrates of the metropolis and the Lord Mayor, recorder and aldermen of the city of London."

8

The law in Canada with respect to the appointment, qualification and official status of justices of the peace follows substantially the English law. The British North America Act, sec. 92, sub-sec. 14, gives the Provincial Legislatures power to pass statutes authorizing the appointment of justices of the peace, and Provincial statutes provide accordingly for their appointment under the great seal of the province in which they are appointed. In each province there are several ex officio justices of the peace for every county, including in some provinces by statute judges of the various courts, the statutory authority being but a recognition of the common law authority.

The word "Magistrate" is often popularly used, and correctly according to the relation in which it is used, as synonymous with justice of the peace, but it may apply to superior state officers, even the person in whom the sovereign power of the state is vested.

The office of justice of the peace was brought into the United States by the English colonists, and while justices of the peace in the United States may be said technically to have, as a part of the common law of the different states,

6 Paley 4th edit. 15.

7 O'Ke's Mag. Synop.

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