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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.




THEIR OFFICE. 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.' 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

2 Lambard's Eirenarch, 12.

1 Vol. 23 Law Quar. Rev. 310.



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

3 Lamb. 14.

4 Hawk. P. C. 32, 33.

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. l., 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

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

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