Justice of the Peace. In 1264 the name custos pacis appears for the first time in English history. Until the thirty-fourth year of the reign of Edward III. the officers appointed in each county to maintain internal order were invariably described as guardians or conservators of the peace. Originally royal nominees, the conservators of the peace were after the fifth year of Edward I., chosen (at least occasionally) by the whole community in the county court, under the instructions of the king conveyed by the sheriff. But after the deposition of Edward II. the appointment of special custodes pacis was ordained by parliament (1 Edward III. stat. 2, chap. 16). The right of election thus taken away from the people was soon vested in, and has ever since been exercised by, the sovereign. While the power of appointing justices of the peace now practically belongs to the Lord Chancellor, it must be clearly understood that the commission of the peace is in theory the Queen's commission, and that the Lord Chancellor has no such authority over justices of the peace as he possesses over judges of the county courts. The functions of the custodes pacis appointed in 1327 were rapidly and widely extended by subsequent legislation; and 36 Edward III. stat. 1, chap. 12, gave for the first time to the old custodes pacis their familiar modern name. In 1590 a new form of commission was agreed upon, in which all the particulars formerly specified from a number of statutes were comprehended in words of general description. This was presented to the chancellor, accepted, sealed, and with slight variations has continued in use ever since. Under Richard II. justices of the peace attending quarter sessions were entitled to 4s. a day, payable out of the fines and amerciaments at such sessions. It appears, however, that these payments were often made out of the emoluments of the sheriff, and they were abolished. The office of justice of the peace has since been entirely gratuitous; but, after the conversion of the constabulary into police, stipendiary magistrates exercising a summary jurisdiction not unlike that of the justices have been appointed in all large cities and in many large towns. The office of justice of the peace seems to have been held on several occasions by a lady.
It is impossible here to trace minutely the history of the multifarious duties which have at different periods been discharged by the justices of the peace. The statute 11 Henry VII. chap. 3, enabled them to determine all offences except treason and felony without a jury upon information in the king's name. But this act was repealed in the first year of the reign of Henry VIII. In 1653, when the Barebones Parliament made marriage a purely civil contract, justices of the peace were empowered to hear the mutual declarations of the contracting parties. They were authorised by their commission, and still have power, to receive information with regard to any indictable offence. They were also invested with important administrative functions, such as the licensing of ale-houses and the appointment of overseers of the poor or surveyors of highways; and as local authority they transacted the chief county business, controlled the county police, and levied the county rates. The summary jurisdiction of justices of the peace has, however, been defined and restricted by recent legislation, and the Local Government Act of 1888 has transferred to the new county councils most of the administrative powers formerly exercised by the county justices in quarter sessions. See COUNTY, and QUARTER SESSIONS.
There are two classes of justices of the peace—those exercising jurisdiction within counties, and those appointed for boroughs. Under the Municipal Corporations Act, 1882, sect. 158, borough justices have no authority to act at general or quarter sessions for the county. County justices, on the other hand, have primita facie concurrent jurisdiction within any borough which forms part of the county. This presumption is, however, repelled where the borough charter contains an express clause to the contrary—called a non intromitter clause—and the borough has its separate court of quarter sessions. Again, in the case of borough justices no special qualification beyond that of residence in or within seven miles of the borough is required. But a county justice must have an estate of freehold, copyhold, or long leasehold in England or Wales of the clear annual value of £100, or a reversion expectant on leases for lives of £300 a year. By 38 and 39 Vict. chap. 54, it has now been further provided that a person shall be deemed qualified to be appointed a county justice who, being of full age, has for the space of two years immediately preceding his appointment been the occupier of a dwelling-house assessed to the inhabited-house duty at a value of not less than £100, and shall have been rated to all rates and taxes in respect of such premises. No sheriff can act during his shrievalty as justice of the peace for the county in which he is sheriff; and no person can be appointed to act during bankruptcy. The office of justice of the peace, being conferred by the crown, subsists only during the pleasure of the sovereign. The commission appoints all the persons named therein to keep the peace in the county specified, and any two or more of them to inquire of and determine offences committed in such county; in which number some particular justices with legal or special qualifications were formerly directed to be always included, and no business was to be done without their presence. The words of the commission ran quorum aliquem vestrum A, B, C, D, &c. unum esse volumus; and the persons so named were called justices of the quorum. It is now, however, the practice to include nearly all of the justices in the quorum clause.
The functions of justices of the peace are partly administrative and partly judicial. The former, which were exercised at special sessions, used to embrace a great variety of subjects, but since the Local Government Act, 1888, sect. 3, are now practically restricted to the licensing of ale-houses and the appointment of overseers of the poor. The control of the police in counties will henceforth be undertaken by a joint committee of the county council and of the justices in quarter sessions. The latter fall into three classes. (1) The justice of the peace, like the ancient conservator pacis, is empowered to preserve the peace, to suppress riots and affrays, to take security for good behaviour, and to order the apprehension and committal of criminals. (2) At petty sessions the justices are enabled to try certain minor offences summarily and without a jury. (3) The commission of the peace authorises any two or more justices to hear and determine certain graver and indictable offences at quarter sessions. The statute 34 Edward III. chap. 1, confirming 18 Edward III. stat. 2, chap. 2, enabled justices of the peace to try at quarter sessions all felonies and trespasses whatsoever committed within the county. Comparatively recent legislation has expressly excepted from the jurisdiction of quarter sessions the most serious offences in the criminal law, such as murder, perjury, forgery, bigamy, abduction, &c., and only the smaller misdemeanours and felonies are now triable at these courts. The orders and convictions of justices out of sessions can be appealed against to quarter sessions; and an order made at quarter sessions may as a general rule be removed into the Queen's Bench Division of the High Court by writ of certiorari.
As to the liability of a justice of the peace, in the case of a justice acting erroneously within his jurisdiction, an action will not lie without an express allegation and proof of malice and want of reasonable or probable cause. In the case of a justice who either has no jurisdiction or exceeds it, no such allegation or proof is required, but no action can be brought in regard to a conviction or order till it has been quashed upon appeal. §
In Scotland the duty of collecting evidence for the prosecution of criminals rested originally upon the justice-clerk and the sheriff. When it was proposed to hold a criminal inquiry, the sheriff, under the authority of a writ issued by the justiciar, summoned the best and most capable men of each burgh, town, and barony within his shire to appear before the justice-clerk and give information of the crimes done within their respective bounds. This being done, it lay with the justice-clerk to digest the materials thus returned to him, and to make up from them a roll of the offenders' names, and a file of dittay, or indictments for bringing those persons to justice. When the Scotch circuit system was reorganised, a more regular and effective method of taking 'dittay' was adopted; the act of 1587 empowered the king, on the advice of his chancellor, treasurer, and justice-clerk, to appoint 'honourable and worthie persons . . . in degree earles, lordes, baronnes, knights, and special gentlemen landed, experimented in the lovable laws and customes of the realme, actnall indwellers in the same shires . . . to be constant and continual up-takers of dittay.' This is the first statute dealing with the institution of justices of the peace in Scotland. The office was further regulated by acts in 1609, 1617, 1633, and 1661. The form of commission is practically identical with that which was settled for use in England in 1590. There is no property qualification in Scotland; but under 6 Geo. IV. chap. 48, sect. 27, a solicitor cannot be nominated a justice of the peace for any county in which he is practising. By 19 and 20 Vict. chap. 48, sect. 4, the disqualification does not extend to writers or procurators who may be elected magistrates or deans of guild in any burgh. The functions of justices are partly administrative and partly judicial. The Local Government (Scotland) Act, 1889, sect. 11, has transferred to the new county councils the powers and duties of the justices in relation to the following subjects: (1) the execution as local authority of the acts relating to gas-meters, explosive substances, weights and measures, habitual drunkards, and wild birds; (2) the appointment of visitors of public, private, or district lunatic asylums; and (3) the registration of the rules of scientific societies under 6 and 7 Vict. chap. 36. As in England, the justices have still authority in regard to the licensing of ale-houses, the administration of the poor laws, &c. The jurisdiction of justices of the peace is partly civil and partly criminal. In civil questions between master and servant they have jurisdiction to any amount. The justices can entertain applications for the aliment of bastard children. The civil jurisdiction of the justices is now practically superseded by that of the sheriff court, unless to the limited extent allowed by the Small Debt Act (12 and 13 Vict. chap. 34). There is no trace in Scotland of trial with a jury before justices of the peace, as in England at quarter sessions. The ordinary criminal jurisdiction of justices is confined to breaches of the peace, petty thefts, and trifling assaults, punishable by a small fine and imprisonment. A variety of penal statutes have conferred upon the justices of the peace jurisdiction in relation to the revenue, highways, fishings, and public-houses. In Ireland the justice occupies practically the same position as in England.
The institution of justices of the peace exists in the United States of America. In some of the states these magistrates are appointed by the executive, in others they are elected by the people and commissioned by the executive; in some cases they hold office during good behaviour, but as a general rule they are appointed for a limited period. See Bouvier's Law Dictionary and Poore's Federal and State Constitutions.
JUSTICES' CLERK.—The justices' clerk is an officer appointed by justices of the peace in England (who, although not themselves trained lawyers, are yet called upon to administer many branches of the law) to assist them in the discharge of their duties, to advise them as to points of law and practice, to take minutes of the proceedings in every case, to receive and transmit fines, &c. Every clerk appointed after the passing of the Justices' Clerks Act, 1877, unless he has previously held a similar appointment for a period of not less than fourteen years, is required (a) either to be a barrister of not less than fourteen years' standing, or a solicitor to the Supreme Court of Judicature, or (b) to have served for not less than seven years as a clerk to a police or stipendiary magistrate, or to a metropolitan police-court, or to one of the police-courts of the City of London. Under the same statute justices' clerks receive a fixed salary instead of deriving their remuneration, as formerly, from the court fees.