« ForrigeFortsæt »
The specific qualities, by which they are particularly pointed out, are that “they shall be of the most sufficient knights, esquires, and gentlemen of the law.”* And they must be resident within the counties for which they act.t And must be possessed of, in law or equity, for their own use in possession, a freehold, copyhold, or customary estate, for life, or for some greater estate, or an estate for some long term of years, determinable, upon one or more lives, or for a certain term originally created for twenty-one years or more, in lands, tenements, or hereditaments, in England or Wales, of the clear yearly value of 1001., above what will discharge all incumbrances affecting the same, and all rents and charges payable out of the same; or, be entitled to the immediate reversion of remainder of lands leased for one, two, or three lives, or for any term of years determinable on the death of one, two, or three lives, upon reserved rents of the clear yearly value of 3001., $ and if any Justice shall act without such qualification, he shall forfeit 100l.
* 13 Ric. 2. 7.
† Hen. 5. st. 1. c. 4. but now by 28 Geo. 3. c. 49. any Justice acting as such for any two or more counties, being adjoining counties, may act in all matters and things whatsoever, concerning, or relating to, any or either of the said counties, provided he be resident in one of them.
1 5 Geo. 2. c. 11. ; 18 Geo. 2. c. 20.
$ Therefore it is not sufficient that he be possessed of the qualification required at the time of his taking upon himself the office, but he must continue to possess it, so long as he continues to act, or he will incur the penalty
Action qui tam was tried at York summer assizes, 1817, Wright v. Horton. It was to recover certain penalties for acting as a justice of the peace on several occasions in and for the county of York, not being at the said several times in possession of the property required by law. The facts of the case were, that Mr. Horton, the defendant, had been appointed a justice of the peace for the county of York, at a time when he was possessed of great wealth, had sued out his dedimus, delivered in a schedule of the property on which he claimed his qualification, taken the oaths required, and acted several years as a magistrate, with honour and reputation. Subsequently to this, however, his affairs became deranged, and he was in York Castle at the suit of certain creditors,
And to secure the particular object intended by these provisions, no person shall be capable of acting as a Justice of the Peace, who shall not, before he acts, at some general or quarter session for the county, or division, &c. for which he intends to act, take and subscribe the following oath.*
I, A, B. do swear that I truly and bona fide have such an Oath of estate in law or equity, to and for my own use and benefit, con- qualification. sisting of (specifying the nature of such estate, whether messuage, land, rent, tithe, office, benefice, or what else) as doth qualify me to act as a Justice of the Peace for the county, riding, or division of .......... according to the true intent and meaning of an Act of Parliament made in the eighteenth year of the reign of his Majesty, King George the Second, entitled, “ an act to amend and render more effectual an act passed in the fifth year of his said Majesty's reign, entitled an act for the further qualifications of Justices of the Peace,'" and that the same (except where it consists of an office, benefice, or ecclesiastical preferment, which it shall be sufficient to ascertain by their known and usual names.) is lying, or being, or issuing out of land, tenements, or hereditaments, being within the parish, township, or precinct of .... (or in the several parishes, townships, or precincts of .... and ........) in the county of
(or in the several counties of ... and ........) (as the case may be).
from which place he was released by delivering in a schedule, and making an assignment of all his property, under the provisions of the Insolvent Act of 53 of the King: so that it was impossible he could have any property previously, but what such assignment must have divested himn of; and if he came into possession of any after, to avail himself of it, as a defence to this action, he must have given notice of it, which he had not done. Subsequent, however, 10 his liberation, he had continued to act as a Justice of the Peace, and for the act so done, this action was commenced. It was intimated, that the lady of the defendant was in the receipt of more than sufficient to operate as a qualification ; but it was replied, that the defendant could have no controul over this property, or he ought to have assigned it over with the rest of his effects at the time of his liberation under the Insolvent Act; and if it were indeed, as must be presumed by his not having so done, the separate provision of his wife, over which he had himself no controul, it could not serve him as a qualification, and an answer to this action.
Wood, B. before whom the question was tried, directed the jury to find a verdict on one of the counts of the indictment for a single penalty.
• 18 Geo. 3 c. 29.
Oath to be re
This oath so taken and subscribed, is to be kept among corded.
the records of the sessions, by the clerk of the peace, who
is to deliver an attested copy of it to any person requiring Attested copy the same, on paying two shillings for it, and such attested
copy will be evidence on any issue in any suit brought
under the statute which requires the qualification.* Penalty. Any person who shall act as a Justice without having
taken and subscribed the above oath respecting his qualification, or without being actually qualified according to the declaration contained in it, is liable to a forfeiture of 1001. one moiety to the poor of the parish in which he most usually resides, and the other moiety to whoever will sue for the same, in any of the Courts of Westminster, within
six months after the commission of the offence.* Proof to be on The proof of the qualification is to lie on the defendant, defendant,
and he cannot avail himself of any lands, &c. not contained in such oath, unless he deliver a notice of his intention to insist on such lands, &c. to the plaintiff or his attorney, in writing, at or before the time of pleading, specifying such lands, and the parish and county where situated (except offices and benefices, as before excepted in the oath itself). +
Where the lands contained in the said oath or notice, are together with other lands liable to any charges, rents, or incumbrances, for the purposes of this act, such lands are deemed chargeable only so far as the other lands are not sufficient to pay. And where the qualification or any part thereof consists of rent, it is sufficient to specify in such oath or notice, so much of the lands out of which such rent is issuing, as are of sufficient value to answer
such rent. * Discontinue
After such.notice, the plaintiff is allowed, if he think fit, ance of ac- to discontinue his action on payment of costs, with leave of tions.
the court; but if he discontinue otherwise, or be nonsuit, or have a verdict against him, the defendant will be entitled to treble costs.*
. 18 Geo. 3. c. 29.
These provisions, however, respecting pecuniary qualification, only extend to what are usally denominated “ County Justices; ” that is, to the description of persons, of whose pretensions Government is supposed to know nothing but from the situation they fill in society, in regard to property only. For they do not extend to persons who, from the offices they hold, or the rank in society which they fill, are supposed to be previously and eminently qualified in some way or other for the important trust.
Thus, they do not extend to any city, town, cinque-port, Exceptions. or liberty, having Justices of Peace within their limits.
Nor to any peer or lord of parliament, or to the lords of the privy council, justices of either bench, barons of the Exchequer, attorney or solicitor-general, the justices of the great sessions of Chester and Wales, or to the eldest son, or heir apparent, of any peer or lord of parliament, or of any person qualified to serve as a knight of a shire. Nor to the officers of the board of green-cloth, or the commissioners, and principal officers of the navy, or the two under secretaries of state, or the secretary of Chelsea College, where they usually have been justices. Nor to the heads of colleges, or halls, or the vice-chancellors, or to the mayors of Oxford and Cambridge, but that they may respectively be Justices in the counties of Oxford, Berks, and Canıbridge, and the cities and towns within the same.*
Having dismissed the subject of pecuniary qualification, the next thing to observe, is, that the person who intends to act as a Justice, must sue out a writ from the Chancery, called, from the first words of it, a writ of Dedimus potestatem, to enable him to take “ the oath of office," before some other acting Justice or Justices, to be certified Dedimus po. into the Court, from which it issues, within a time speci- testatem, fied, by the clerk of the
THE FORM OF THE OATII IS AT THIS DAY AS FOLLOWS.
Ye shall swear that as Justice of the Peace in the county of Oath of ofice. M. in all articles in the King's commission to you directed, you
* 18 Geo. 3. c. 29.
shall do equal right to the poor and to the rich, after your cunning wit and power, and after the laws and customs of the realm, and statutes thereof made: And ye shall not be of counsel of any quarrel hanging before you: And that ye hold your sessions after the form of the statutes thereof made: And the issues, fines, and amerciaments that shall happen to be made, and all forfeitures that shall fall before you, ye shall cause to be entered without any concealment (or embezzling) and truly send them to the King's exchequer. Ye shall not let for gift or other cause, but well and truly ye shall do your office of Justice of the Peace in that behalf: And that you take nothing for your office of justice of the peace to be done, but of the King, and fees accustomed, and costs limited by the statute. And ye shall not direct nor cause to be directed, any warrant (by you to be made) to the parties, but you shall direct them to the bailiff of the said county, or other the King's officers or ministers, or other indifferent persons, to do execution thereof.
So help you God.
Oaths of allegiance, &c.
Having thus secured, so far as the possession of property, and the verification of that property, can be supposed to do it, the respectableness of the Justice; and moreover, his incorruptibleness, so far as the obligation of an engagement by oath can secure it; the legislature has next adverted to a security for his loyalty and his conformity, by requiring that, “ every Justice shall, within six calendar months, take the oaths of allegiance and supremacy, and abjuration, and make and subscribe the declaration against transubstantiation in one of the Courts of Westminster, or at the general, or quarter, session of the peace where he shall be or reside, as other persons qualifying for offices," * which oaths and declarations are as follow.
* 25 Car. 2. c. 2.- Geo. 1. st. 2. c. 13.—2 Geo. 2. c. 31.-9 Geo, 2. c. 26.—6 Geo. 3. c. 53.
The oath of allegiance is common to all Governments, and varies but little, in any of them, being merely an obligation to defend the existing state. In England, anciently, every male above twelve years of age was obliged to take this oath in the torn or leet, and it was a high contempt to refuse it. The oath of supremacy was the necessary consequence of abolishing the papal authority at the Reformation. The oath of abjuration was imposed at the Revolution, in order to exclude the Stuart family from pretending to the throne. It has received several alterations, but now stands determined by the 6th of Geo. 3.