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thereof upon a civil suit, &c.* and for all these and similar Imprisonoffences against decency and good manners, as has been ment in conobserved, the Justices in Session may instantly order the thereof. offender to be apprehended and imprisoned at their discretion. +
out of Court.
Indictment in conse
But they cannot, as the superior courts do, award an Contempt attachment for contempts of their orders committed out of court, but must have recourse to bill of indictment; which, being found, authorizes them to issue a warrant to apprehend the offender, to be dealt with as for any other thereof. misdemeanor. ↑
It is also broadly laid down by many authorities, that Justices are not punishable for what they say, or do, in sessions, unless there be manifest oppression, or wilful abuse of power. § It has even been said that a Justice is not
which come within any of these descriptions, would be an unprofitable waste of time, because in general they are so obvious, intelligible, and decisively distinguishable, that it requires only the application of common discretion to execute the powers which the law has entrusted to the courts. But an instance or two, rather out of the ordinary course of this description of offences, may not be without their use; not only by way of illustration of the general doctrine here laid down, but as a commentary on other offences, which may bear some general resemblance in principle, although none in their particular features. Thus it has been holden to be a great contempt of the process of the court, to refuse to be sworn to give evidence to the grand jury, for which a court of session have a power to fine, and to commit till the fine be paid. 1 Salk. 278.
At a copy-hold court a steward of a manor told a suitor that "he was a resient," who replied "you lie." The steward fined him 201. for contempt, and although no prescription was proved, this was holden good. The steward indeed had not the power, which courts of law have, of imprisoning, but it was decided that an action would lie for the fine. 3 Salk. 33.
And in a county court holden for electing members of parliament, the sheriff was justified in taking a freeholder into custody for making a disturbance, and sending him before a justice to be committed. I Taunt. 146.
And a defendant in a court of justice, acquitted of the original charge against him, may nevertheless be committed, or made to find sureties for every contempt of court during his trial. Cro. Car. 507.
* 2 Hawk. c. 1.
2 Sess. Ca. 176.
+ Staunf. P. C. 73.-4 Black Com. 283.
How ape pointed.
punishable by indictment for words addressed to jurors, in his judicial capacity, however gross they may be ; as where a Justice, in the general session of the peace, said to the grand jury, “ You have not done your duty, you have disobeyed my commands; you are a seditious, scandalous, corrupt, and perjured jury;" for Lord Mansfield, on a motion to quash an indictment against a Justice of the Peace for using such words, is reported to have said as follows: "A Judge of a court of record cannot be put to answer civilly, or criminally, for words spoken in office."
And upon a motion for an information against four Justices for refusing to amend a poor rate, under circumstances of even strong suspicion of improper motives, the same Chief Justice took occasion to say, "it must be a very strong case indeed, with very flagrant proofs of corruption, in which the court would grant an information against Judges acting in a court of record with powers entrusted to them by the constitution.**
THE SHERIFF OF THE COUNTY is the next officer of the session who claims notice. He was by the common law a principal conservator of the peace; and may, ex officio, award process of the peace, and take surety for it; and it is said that the security so taken is a recognizance, and matter of record.† But, as has been previously observed, he cannot, during his shrievalty, act in the capacity of a justice of the peace. And he has no authority to take a bond for the appearance of persons arrested by him, under process issuing upon an indictment at the sessions for a misdemeanor, but must take a recognizance for their appearance. ‡
At the common law this officer was chosen by the county, as the coroner is at this day; but he is now appointed "at the Exchequer by the chancellor, treasurer, and chief baron, taking to them the chief justices." §
The duties of the Sheriff are various and diversified, with
respect to the sessions of the peace, as well previous to, as Must attend during the time of, their sitting. He is to provide and the Sessions, make ready (except when this duty is otherwise provided for specially by statute, or otherwise) a fit and decent place for the justices of the peace to hold their general, and general quarter, sessions in.* It has already been noticed that he is to proclaim the sessions, to return the grand jury, to give notice to all stewards, constables, and bailiffs of hundreds and liberties, coroners, and other officers.
It is the duty of the Sheriff, either in person or by deputy, to attend the sessions of the peace, there to return his precepts, to receive fines for the King, and to take charge of the prisoners. For the county gaol is under the direction of the Sheriff by statute. Insomuch, that if the gaoler, who is merely his servant, suffer a felon to escape, the Sheriff may be indicted, fined, and imprisoned. §
14 Ed. 3. c. 10.-And 19 Hen. 7. c. 10.
§ 1 Hale, 597.-If the justices in session do not insist on the attendance of the Sheriff, either in person, or by his deputy the undersheriff, the omission is merely from courtesy, and not from any want of authority; for the justices in session have power similar to the judges of assize, and for the same reasons. There may, perhaps, not be on record any instance of the exercise of these powers in modern times, in courts of session of the peace; but a very recent one has occurred in the great session of Brecon in Wales, wherein the sheriff was fined on account of absence in 1007. See 4 Chit. C. L. as follows.
Brecon (to wit). Be it remembered that at the great session and gaol-delivery of our Lord the King for the said county, holden at Brecon, in the said county, on Saturday the 30th day of March in the 39th year of the reign, &c. before G. H. and A. M. esquires, justices of our said Lord the King, of the great sessions of the said county, assigned to deliver the gaol of the county aforesaid of the prisoners therein being, and also to hear and determine divers felonies, &c. E. L. L. High-Sheriff of the said county, is duly and solemnly called to appear and give his attendance at this same session, to do and perform those things which to his office do belong and appertain; and as by his Majesty's writ in that behalf, to him directed and delivered, he is commanded; and the said E. L. L. High-Sheriff as aforesaid, not accordingly appearing and attending at this same session, in obedience to his Majesty's said writ, or otherwise to perform the duties of his said office, but contemptuously
Punishable by sessions.
Cannot sell offices.
Cannot return his officers upon inquests.
He is also punishable by the justices in session for any default in executing their writs and precepts; for being an officer of that court, he is of course amenable to it.* But if he have a warrant from a justice of the peace to execute, he is not obliged to do it in person, but may authorize another to execute it; but he is nevertheless answerable for its being regularly done. †
And he cannot excuse himself from executing any precept because of resistance, for he is authorized by statute to take the power of the county in aid of him.‡
He has the appointment of the gaoler upon a vacancy, of the under-sheriff, and of the bailiffs. But he cannot dispose of any of these offices for money, for "none shall buy, sell, let, or take the office of under-sheriff, gaoler, bailiff, or other office pertaining to the office of High-Sheriff, on pain of 500l. half to the King, and half to him that shall sue within two years. §
And the Sheriff shall not return any of his officers upon the inquest, on pain of 40l. half to the King, and half to him that shall sue in the sessions, or elsewhere."||
When a Sheriff goes out of office, the custody of the county gaol is immediately vested in his successor, who of course becomes responsible; and all writs and processes, remaining unexecuted at the expiration of his shrievalty, he is directed by statute to turn over to his successor by indenture and schedule, who is compellable to execute and return the same.**
making default, therefore it is ordered that the said E. L. L. be fined, and he is accordingly by the court here fined and amerced in the sum of 100l. to be by him forfeited and paid to the use of our said Lord the King, for such his contempt and default as aforesaid. And it is further ordered that a levari do issue, under the seal of this court, to the coroners of the said county, or one of them, thereby commanding them, or one of them, to levy the said fine out of the goods and chattels, lands and tenements, of the said E. L. L.
Which fine was levied accordingly,-and the Court of B. R. refused to mitigate the said fine, the record whereof had been removed by certiorari. 8 T. R. 655.
2 Hawk. c. 22.
13 Edw. 1. st. 1. c. 30.
23 Hen. 6. c. 10.
+ 2 Hawk. c. 13.
§ 3 Geo. c. 15.
THE CLERK OF THE PEACE is an essential and constitu- Clerk of the ent part of every session of the peace. He is appointed by the custos rotulorum of the county, but amenable to the justices in session for the execution of his duties, which are various and important. Primarily, they consist in issuing the processes, and recording the proceedings, of the court; but there are various others imposed on him, as well by custom and the necessity of the thing, as by many positive
Under commissions by charter, such as in cities and corporate towns, the person who fills an analogous office, and whose duties are mostly similar, has usually some other title than that of "Clerk of the Peace," generally that of "Town Clerk ;" and his appointment is usually in the disposal of the body corporate whose officer he is, and not in that of the custos rotulorum of the county.
It is directed by statute, that the Clerk of the Peace be To be a sufan able and sufficient person resident in the county; but and may aphe may appoint a deputy with the like qualities, but to be point a deputy. approved and allowed by the custos rotulorum.* ·
We have seen that the custos rotulorum is forbidden to May not pursell the office; and by the same authority the Clerk of the chase his office. Peace is prohibited from purchasing it, under like penalties; viz. “ that if he shall give any reward, fee, or profit directly, or indirectly, or any bond or other assurance to him or to any other person, for such appointment, he shall be disabled from holding the office, and shall moreover forfeit double the value of the thing given for the appointment, to whomsoever shall sue for the same in any of the Courts of Westminster."+
THE FORM OF THE APPOINTMENT.
Whereas the office of the Clerk of the Peace for...... is now Appointment. vacant, by the death of.... esq. late Clerk of the Peace for the said county, Now KNOW ALL MEN by these presents, that the right hon. Thomas Earl of........ Custos Rotulorum of the said county of ........ hath nominated, constituted, and appointed, and by these presents doth nominate, constitute, and appoint O. B. esq. a person skilful in the laws of England, and