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2 Haw. 33

those whose estate they had in certain lands, which wholly depended upon such usage, both as to its extent, and the manner in which it was to be exercised.

Thus it is said, that a mayor of a corporation may be a conservator of the peace by prescription. Crom. 6.

It is questioned indeed by some, whether any such power can be claimed by usage; yet if the power of holding pleas and even of courts of record, which are of so high a nature, and imply a power of keeping the peace within their own precincts, may be claimed by ulage, as it seems to be certain that they may; it seemeth that the bare authority of keeping the peace in a certain district may as well be claim

ed by such usage. 2 Haw. 34. Power of conser

The authority which such conservators of the peace, whether by election, or tenure, or prescription, have at common law, is the same authority which conftables of a

vill or wapentake have at this day. Crom. 6. 2 Haw. 34. Thiir duty.

The general duty of the conservators of the peace by the common law, is to employ their own, and to command the help of others, to arrest and pacify all such who in their presence, and within their jurisdiction and limits, by word or deed, thall go about to break the peace. Dait. 6.1.

And if a conservator of the peace, being required to see the peace kept, thall be negligent therein, he may be indicted and fined. Id.

And if the conservators of the peace have committed or bound over any offenders, they are then to send to, or be present at, the next feffions of the peace, or gaol delivery, there to object againīt them. Id.

vators,

II. Of the commission of justices of the peace. Justices of the seace at ihis day are of three forts: 1. By act of parliament; as the bishop of Ely and his succefiors, and the archbishop of York, and bishop of Durham, 27 H.8. c. 24.

2. By charter, or grant made by the king under the great seal; as mayors and the chief officers in divers corporale founs. 3. By commiffion.

At the first, by the statute of the 1 Ed. 3. which is the first statute that ordains the assignment of justices of the peace by the king's commiflion, those justices bad no other power but only to keep the peace. But the very next year ihe form of the commission was enlarged, and continued Bill further to be enlarged, both in that king's reign and in the reign of almost every other succeeding prince, until the josh year of the reiga of Q. Elizabe:h, when by the 11

number

wih very

number of the statutes particularly given in charge therein to the justices, many of which nevertheless had been a good while before repealed, and by much vain repetition, and other corruptions that had crept into it, partly by the miswriting of clerks, and partly by the untoward huddling of things together, it was become so cumbersome and fou ly blemished, that of neceflity it ought to be redrefied. Which imperfections being made known to Sir Chr. Wrey, then L. Ch. J. of the king's bench, he communicated the fame with the other judges and barons, so as by a general conference had amongst them, the commiflion was carefully refined in the Michaelmas term 1590, and being then also presented to the lord chancellor, he accepted thereof, and commanded the fame to be used ; Which continues

very little alteration to this day. Lamb. c. 9. Wbich is as follows:

George the third, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and so forth, To A. B. C. D. &c. greeting. Know ye that we have a signed you, jointly and

severally and every one of you cur justices to keep our peace in our county of W. And to keep and cause to be kept all ordinances and falutes for the good of the peace, and for preservation of the Jome, and for the quiet rule and government of our people made, in all and singular their articles in our faid county (as well within liberties as without) according to the force, form, and effea of the same ; And 10 chajiise and punish all persons that offend against the form of those ordinances or flatutes, or any ine of them, in the aforesaid county, as it ought to be done according to the form of those ordinances and flatutes; And to cause 19 come before you, or any of you, all those who to any one or more of our people concerning their bodies or the firing of their bouses bave used threats, to find sufficient security for the peace, of tbeir good behaviour, touards us and our people; and if they shall refuse to find such security, then them in our prisons until they small find such security to cause to be safely kepi.

We have also allignent you, and every two or more of you (of whom any one of you i he afore aid A. B. C. D. &c. we will shall be one) our justices to inquire the truth more fully, ty the sa:b of good and luwful men of the aforesaid county, by whom the truth of the matter hall be the better known, of all and all manner of felonies, poisonings, inchantments, forceries, arti magick, trespasses, forestillin's, regratings, ingrossings, and extortions we haij over; and of all and singular other crimes and offences, of ubiib the justices of our peace may or ought lawfully to inquire, by whomsoever and after what manner soever, in the said aunty dine or forpetrated, or which shall happen to be there done or atten pted; and also of all those who in the aforesaid county in companies against our peace, in difturbo ance of our people, with armed forie have gore or rode, or hereafter fall presume to go or ride ; And also of all those who have there lain in whit, or hereafter Mall presume to lie in wait, to maim or cut or kill our people; And also of all vieluallers, and all and singulor other persons, uho in the abuse of v.eights or weatures, or in felling virtuals, against the form of the ordinarices and statutes, cr any one of them iherefore inade, for the common benefit of England, and our people thereof, have off inviei or attempted, or hereafter pall

, prejume in the foid county to offenil or atiempt; and also of all sheriff, bailiffs, Newards, contables, keepers of gasls, and other officers, who in the execution of their offices about the premises, or any of them, have unduly bhaved themselves, or hereafter fall prejume to behave themselves unduly, or have been, or fall happen hereafier to be careless, remiss, or negligent in our afirefaid ccunty; And of all anel sirguiar articles and circumStances, and all other things whatsoever, that concern the pre

milles or any of them, by whatever, and after what manner foever, in cur aforefuid county rione or perpetrated, or which hereafter shall there happen to be done or attempted in what manner foever ; And to inspei? all ind. 27ments whaifuever so before you or any of you taken or 10 be taken, or before others late our judices of the peace in the aforefrid cunty made or taken, and no! yet determined ; and io make one continue processes thirup.n. against all and fougular the persons fo indicted, or who before you heredifter mail happen to lie indicied ; until they can lie takin, furrenter themelves, or be ou'lawed: And is hear and determine all and singul.ır the seleniis, puissnings, inchantments, forceries, arts magick, troppofis, forestallings, regratings, ingrelings, extortions, unlawful ujem:blies, indiciments aforesaid, und all and fingulur other the premislės, according to the laws and finutes of England, as in the like case it has vern accustomed, or onght to be done ; And ihe jame offenders, and every of them for their offences, by fines, ransoms, amerciaments, forfeitures, and cober means as according to the law and custom of England, or form of the ordinaries and flatutes aforesaid it has been ditulomed, or ought to be done, to chastife and punish.

Provideid always, that if a case of difficulty, upon the determination of any the premillés, before you, or any two or more of you, fall happen to arije; then lit judgmont in no wise be giver tle?????, before you, or any two or more of 38., unless in ike prejince of one of our justices of the one or other benih, er of one of cur juslices appointed to hold the alizes in the aforejaid founty.

And

And therefore we command you and every of you, that to keeping the peace, ordinances, flatutes, and all and fingular other the premisses, you diligently apply yourselves; and that at certain days and places, which you or any such two or more of you as is aforesaid shall appoint for these purposes, into the premises ye make inquiries; and all and singular the premisses hear and determine, and perform and fulfil them in the aforesaid form, doing therein what to justice appertains, according to the law and custom of England : Saving to us the amerciaments, and other ibings to us therefrom belonging.

And we command by the tenor of these presents our seriff of W. that at certain days and places, which you or any such two or more of you as is aforesaid, fall make known to him, he cause to come befire you, or such two or more of you as aforesaid, so many and such good and lawful men of bis bailiwick (as well within liberties as without) by whom the truth of the matter in the premiffes shall be the better known and inquired into.

Lastly, we have aligned to you the aforejaid A. B. keeper of the rolls of our peace in our faid county:

faid county: And therefore you fall cause to be brought before you and your faid fellows, at the days and places aforesaid, the writs, precepts, processes, and in. diaments aforesaid, that they may be inspected, and by a due course determined as is aforesaid.

In witnejs whertof we have caused these our letters to be made patent. Witness ourself at Westminster, &c.

George the third, &c.] This manner of issuing the commission in the king's name, seems to be founded on the statute of the 27 H. 8.,c. 24. which enacts, that all justices of the peace shall be made by letters patent under the king's great seal, in the name and by authority of the king; but reserves to all cities and towns corporate which have justices, the liberties which they have enjoyed in that behalf.

To A. B. C. D. &c. greeting] From the persons here named in the commiffion, it may be proper to consider, who may, or may not, be juftices of the peace.

By the statutes of 13 R. 2. c. 7. and 2 H. 5. 1. 2.6. 1. The justices shall be made within the counties of the most Jufficient knights, esquires, and gentlemen of the law :

And by the 18 G. 2. 6. 20. it is enacted as follows: viz. No person thall be capable of being or acting as a justice of the peace for any county, who shall not have in law or equity, for his own use, in poffeffion, 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 21 years or more, in lands, tenements, or hereditaA 4

ments,

Dalt. c. 3:

ments, in England or Wales, of the clear yearly value of 100l. above what will discharge all incumbrances affecting the fame, and all rents and charges payable out of the same, or who shall not be intitled to the immediate reverfion or remainder of lands leased for one, two, or three Jives, 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 300l.

By the 1 M. ST. 2. c. 8. No sheriff shall exercise the office of a justice of the peace, during the time that he acts as sheriff. And the reason seems to be, because he cannot act at the same time both as judge and officer, for so he would command himself to execute his own precepts,

Also if he be made a coroner, this by some opinions is a discharge of his authority of justice. id.

But if he be created a duke, archbishop, marquis, earl, viscount, baron, bilhop, knight, judge, or serjeant at law, this taketh not away his authority of a justice of the peace. i Ed. 6. c. 7. Dalt. c. 3.

Also, no attorney, solicitor, or proctor, Ihall be a justice of the peace for any county, during the time he shall continue in the practice of that business. 5 G. 2. c. 18. 9. 2. But this doth not extend to charter justices.

By Holt Ch. J. Though a man be a mayor, it doth not follow that he is a justice of the peace, for that must be by a particular grant in the charter. L. Raym. 1030. But although he be not a justice of the peace by the charter, yet there are many cases, wherein he hath the same power as a justice of the peace given unto him by particular itatutes; as for instance, with regard to the customs, alehouses, Lord's day, swearing, gaming, weights, fervants, fuel, leather, orchards, soldiers, and divers others.

Know ye that we have aligned you) This is founded on i the statute of the i Ed. 3. c. 16. viz. for the better keep

ing and maintenance of the peace, the king wills, that in every county, good men and lawful, which be no maintainers of evil, or barretors in the country, shall be assigned to keep the peace.

And from this act we are to date that great alteration in our constitution whereby the election of conservators of the peace was taken from the people, and translated to the assignment of the king. Lamb. 20.

And here we may observe, that the commission hath two parts; or confifteth of two different allignments: By this firft aflignment, any one or more justices have as well all

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