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Continued to the Present Time
COUNTIES OF WESTMORLAND AND CUMBERLAND.
The SEVENTEENTH EDITION: Including the
To which is added,
and such others as have passed in the present Sellion.
IN FOUR VOLUMES.
PRINTED BY A. STRAHAN AND W. WOODFALL,
FOR T. CADELL, IN THE STRAND.
Juftices of the peace.
USTICES of the peace are judges of record, ap
pointed 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 cbarge. Dalt. c. 2.
And a record or memorial made by a justice of the peace, of things done before him judicially in the execution of his office, thall be of such credit, that it hall not be gainsaid. One man may affirm a thing, and another man may deny it; but if a record once say the word, no man hall be received to aver or speak against it; for if men should be admitted to deny the same, there would never be any end of controversies. And therefore to avoid all contention, while one faith one thing, and another faith another thing, the law reposeth itself wholly and solely in the report of the judge. And hereof it cometh, that he cannot make a substitute or deputy in his office, seeing that he may not put over the confidence that is put in him. Great cause therefore have the justices to take heed that they abuse not this credit ; either to the oppression of the subject by making an untrue record, or the defrauding of the king by suppressing the record that is true and lawful. Lamb. 63–66.
Hereof allo it cometh, that if a justice of the peace certify to the king's bench, that any person hath broken the peace in his presence, upon this certificate such perfon shall be there fined, without allowing him any traverse thereton Dalt. c. 70.
And that I may treat intelligibly concerning this office (of which L. Coke says the whole christian world hath not the like, if it be duly executed, 4 Int. 170.) I will set
1. The office of conservators of the peace at the
common law, before the institution of justices
of the peace.
11. The commission of the justices of the peace,
founded on the statute law.
the peace, not falling under any particular
title of this book. VI. Their indemnity and protection by the law, in
the rigbt execution of their office ; and their punishment for the omision of it.
1. The office of conservators of the peace at the com
mon law, before the institution of justices of the peace.
Of ancient times such officers or ministers, as were inftituted either for preservation of the peace of the county, or for execution of justice, because it concerned all the subjects of that county, and they had a great interest in the just and due exercises of their several places, were by force of the king's writ in every several county chosen in full or open county by the freeholders of that county: As before the institution of justices of the peace, there were conservators of the peace in every county, whose office (according to their names) was to conserve the king's peace, and to protect the obedient and innocent subjects from force and violence. These conservators, by the ancient common law, were by force of the king's writ choSen by the freeholders in the coonty court, out of the principal men of the county; after which election so made, and returned, then in that case the king directed a writ to the party so elected, to take upon him and execute che office until the king should order otherwise. And thus the coroners ftill continue to be chosen in full county: As also the knights of the thire for the parliament. 2 Inft. 558, 559
Besides there conservators of the peace properly so called, there were and are other conservators of the peace by virtue of certain fices: As for instance;
(1) The lord chancellor, and every justice of the king's bench, have, as incident to their offices, a general authority to keep the peace throughout all the realm, and to award process for the surety of the peace, and to take recognizance for it. 2 Haw. 32.
(2) Also, every court of record, as such, hath power to keep the peace within its own precinct. Id.
(3) Also, every justice of the peace is a conservator of the peace. Crom. 6.
(4) Also, every sheriff is a principal conservator of the peace, and may without doubt ex officio award process of the peace, and take furety for it. And it seems the better opinion, that the security so taken by him is by the common law looked on as a recognizance, or matter of record, and not as a common obligation. 2 Haw. 33.
(5) Also, every coroner is another principal conservator of the peace, and may certainly bind any person to the peace, who makes an affray in his presence. But it seems the better opinion, that he has no authority to grant process for the peace; and it seems clear, that the security taken by him for the keeping the peace (except only where it is taken by him as judge of his own court for an affray done in such court) is not to be looked on as a recognizance, but as an obligation. Id.
(6) Also, every high and petit constable are, by the common law, conservators of the peace, 2 Haw. 33.
And it is said, that if a constable fee persons engaged in an affray, or upon the very point of entering upon it, as where one shall threaten to kill, wound, or beat another, be may imprison the offender of his own authority for a reasonable time, till the heat shall be over, and also afierwards detain him till he find surety of the peace by obligation. i Haw. 137.
But it is said, that a constable hath no power to arrest a man for an affray done out of his own view; for it is the proper business of a constable to preserve the peace, not to punish the breach of it; nor doth it follow from his having power to compel those to find fureties who break the peace in his presence, that he hath the same power over those who break it in his absence. 1a.
There were also other conservators of the peace by te. Conservators by nure; who held lands of the king by this service, among others, of being conservators of the peace within such a diftrict. 2 Haw. 33. Also there were other conservators of the peace by pre
Conservators by Scription; who claimed such power from an immemorial prescription usage in themselves and their predecessors or ancestors, or A 2