policy of our ancient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people; (i) and as verderors of the forest still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. For this purpose there is a writ at common law de coronatore eligendo ; (j) in which it is expressly commanded the sheriff "quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere." And in order to effect this the more surely, it was enacted by the statute (k) of Westm. 1, that none but lawful and discreet knights should be chosen: and there was an instance in the 5 Edw. III, of a man being removed from this office, because he was only a merchant. (7) But it seems it is now sufficient if a man hath lands enough to be made a knight, whether he be really knighted or not: (m) for the coroner ought to have an estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehavior; (n) and if he hath not enough to answer, his fine shall be levied on the county as the punishment for electing an insufficient officer. (0) Now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands, so that, although, formerly no coroners would condescend to be paid for serving their country, and they were, by the aforesaid statute of Westm. 1, expressly forbidden to take a *reward, under pain of a great forfeiture to the king; yet for many years past [*348] they have only desired to be chosen for the sake of their perquisites: being allowed fees for their attendance by the statute 3 Hen. VII, c. 1, which Sir Edward Coke complains of heavily; (p) though, since his time, those fees have been much enlarged. (q) (14) The coroner is chosen for life; but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or, by the king's writ de coronatore exonerando, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it. (r) And by the statute 25 Geo. II, c. 29, extortion, neglect, or misbehaviour, are also made causes of removal. The office and power of a coroner are also, like those of the sheriff, either judicial or ministerial; but principally judicial. This is in great measure ascertained by statute 4 Edw. I, de officio coronatoris; and consists, first, in inquiring, when any person is slain, or dies suddenly, or in prison, concerning the manner of his death. And this must be "super visum corporis;" (8) (15) for, if the body be not found, the coroner cannot sit. (t) (i) 2 Inst. 558. (7) 2 Inst. 32. (p) 2 Inst. 216. (j) F. N. B. 163. (t) Thus, in the Gothic constitution, before any fine was payable by the neighborhood, for the slaughter of a man therein, "de corpore delicti constare oportebat; i. e. non tam fuisse aliquem in territorio isto mortuum inventum, quam vulneratum et cơsum. Potest enim homo etiam ex alia causa subito mori." Stiernhook de Jure Gothor. 1, 3. c. 4. (14) Fees are now abolished, and coroners are paid by salary. Statute 23 and 24 Vic. c. 116. And it may be added that the office is usually held by men of respectable character and standing. (15) [When an unnatural death happens, the township are bound, under pain of amercement, to give notice to the coroner. 1 Burn. J. 25th ed. 786. Indeed, it seems indictable to bury a party who died an unnatural death, without a coroner's inquest: Id.; and if the township suffer the body to putrify, without sending for the coroner, they shall be amerced. Id. When notice is given to the coroner, he should issue a precept to the constable of the four, five or six next townships, to return a competent number of good and lawful men of their townships, to appear before him in such a place, to make an inquisition touching that matter; or he may send his precept to the constable of the hundred. 2 Hale, 59; 4 Edw. I, st. 2; Wood. Inst. b. 4, c. 1. As to form of inquisition, see 2 Lord Ray. 1305; Burn, J. 1 vol. 25th ed. 787, 789. If the constable make no return, or the jurors returned appear not, they may be amerced. 2 Hale, 59. It seems that a coroner ought to execute his office in person. and not by deputy, for he is a judicial officer. Id. 58; Wood. Inst. b. 4, c. 1; 1 Burn, J. 24th ed. 787, 789; 3 Barn. and Ald. 260. The jury appearing is to be sworn, and charged by the coroner to inquire, He must also sit at the very place where the death happened; (16) and his inquiry is made by a jury from four, five or six, of the neighboring towns, over whom he is to preside. If any be found guilty by this inquest, of murder or other homicide, he is to commit them to prison for farther trial, and is also to inquire concerning their lands, goods, and chattels, which are forfeited thereby: but whether, it be homicide or not, he must inquire whether any deodand has accrued to the king, or the *lord of the franchise, by this death; and [*349] must certify the whole of this inquisition (under his own seal and the seals of his jurors, (u) together with the evidence thereon,) to the court of king's Another branch of his office is to enquire concernbench, or the next assizes. ing shipwrecks; and certify whether wreck or not, and who is in possession of the goods. Concerning treasure-trove, he is also to inquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure; "and that may be well perceived (saith the old statute of Edw. I,) where one liveth riotously, haunting taverns, and hath done so of long time:" whereupon he might be attached, and held to bail, upon this suspicion only. The ministerial office of the coroner is only as the sheriff's substitute. For when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant,) the process must then be awarded to the coroner, instead of the sheriff, for execution of the king's writs. (v) (17) III. The next species of subordinate magistrates, whom I am to consider, are justices of the peace; the principal of whom is the custos rotulorum, or keeper of the records of the county. The common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. And therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. Of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were Those that were so, virtute thence named custodes, or conservatores pacis. officii, still continue; but the latter sort are superseded by the modern justices. (a) Stat. 33 Hen. VIII, c. 12. 1 and 2 P. and M. c. 13. 2 West. Symbol. § 310. C. 621. (v) 4 Inst. 271. Cromp. 264. Tremain P. upon the view of the body, how the party came by his death. 2 Hale, 60. See form of charge, 4 Edw. I, st. 2, called the statute de officio coronatoris. 1 Burn, J. 24th ed. 789. The coroner must hear evidence on all hands, if offered to them, and that upon oath. 2 Hale, 157; 1 Leach, 43. When the inquest is determined, the body may be buried 4 Edw. I, st. 2. As to the manner of holding inquests, &c., on parties dying in prisons, see Umfreville's Coron. 212; 2 Hale, 61; 1 Burn, J. 24th ed. 789; 3 B. and A. 260. If the body be interred before the coroner come, he must dig it up; which may be done lawfully within any convenient time, as in fourIf the body cannot be viewed, the teen days. 2 Hawk. c. 9, s. 23; 1 Burn, J. 24th ed. 787. coroner can do nothing: but the justices of the peace, or of oyer and terminer, may inquire of it. 1 East, P. C. 379; Hawk. b. 1, c. 27, s. 12, 13; 1 Burr. 17. But it is not necessary that the inquisition be taken at the same place where the body was viewed: but they may adjourn to a place more convenient. 2 Hawk. c. 9, s. 25.] (16) [It seems probable that in ancient times the whole inquisition was taken with the body lying before the coroner and jury, or at least that the body was not buried till the inquisition was concluded. Now, however, it is sufficient if the coroner and jury have together a view of the body (such a view as enables them to ascertain whether there are any marks of violence on it, or any appearances explanatory of the cause of death), and the latter are there sworn by the former in the presence of the body. These two, however, are indispensable conditions to the proceeding by the coroner: see R. v. Ferrand, 3 B. and A. 260: where, therefore, circumstances render a compliance with them impossible, the coroner cannot inquire, unless indeed he have a special commission for the purpose; but justices of the peace, or of oyer and terminer may. 2 Hawk. P. C. c. 9, s. 25.] (17) In the United States coroners are generally chosen in the same manner as sheriffs, and possess powers and duties corresponding to those of coroners in England. There is no similar office under the federal system, but for the service of process, when the marshal is disqualified, a special designation is made of a disinterested person by the court or a judge thereof. 1 Stat. at Large 87. The king's majesty (w) is, by his office and dignity royal, the principal conservator of the peace within all his dominions; *and may give authority to any other to see the peace kept, and to punish such as break it: hence [*350] it is usually called the king's peace. The lord chancellor, or keeper, the lord treasurer, the lord high steward of England, the lord mareschal, the lord high constable of England, (when any such officers are in being,) and all the justices of the court of king's bench, (by virtue of their offices,) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it: (x) the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county; (y) as is also the sheriff; (2) and both of them may take a recognizance or security for the peace. Constables, tything-men, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace and commit them, till they find sureties for their keeping it. (a) Those that were, without any office, simply and merely conservators of the peace, either claimed that power by prescription; (b) or were bound to exercise it by the tenure of their lands; (c) or lastly, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen "de probioribus et potentioribus comitatus sui in custodes pacis." (d) But when Queen Isabel, the wife of Edward II, had contrived to depose her husband by a forced resignation of the crown, and had set up his son Edward III, in his place; this, being a thing then without example in England, it was feared would much alarm the people: especially as the old king was living, though hurried about from castle to castle, till at last he met with an untimely death. To prevent therefore any risings or other disturbance of the peace, the new king sent writs to all the sheriffs in England, the form of which is preserved by *Thomas Walsingham, (e) giving a plausible account of the manner of his obtaining the crown, to wit: that it was done ipsius patris beneplacito [*351] and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance, and loss of life and limb. And in a few weeks after the date of these writs, it was ordained in parliament, (ƒ) that for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the country, should be assigned to keep the peace. And in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king; (g) this assignment being construed to be by the king's permission. (h) But still they were only called conservators, wardens, or keepers of the peace, till the statute 34 Edw. III, c. 1, gave them the power of trying felonies; and then they acquired the more honourable appellation of justices. (i) These justices are appointed by the king's special commission under the great seal, the form of which was settled by all the judges, A. D. 1590. (j) This appoints them all, (k) jointly and severally, to keep the peace, and any two or more of them to inquire of and determine felonies and other misdemeanors: in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence; the words of the commission running thus, "quorum aliquem vestrum A. B. C. D. &c. unum esse volumus;" whence the persons so named are usually called justices of the quorum. And formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the quorum; but now the practice is to advance almost all of them to that dignity, naming them all over again in the quorum clause, except perhaps only some one inconsiderable person for the sake of propriety; and no exception is now allowable, *for not expressing in the form of warrants, &c., that the justice who issued ["352] (e) Hist. A. D. 1327. (w) Lambard, Eirenarch, 12. (k) (y) Britton, 3. (d) Lamb. 16. (z) F. N. B. 81. them is of the quorum. (1) When any justice intends to act under this commission, he sues out a writ of dedimus potestatem, from the clerk of the crown in chancery, empowering certain persons therein named to administer the usual oaths to him; which done, he is at liberty to act. Touching the number and qualifications of these justices, it was ordained by statute 18 Edw. III, c. 2, that two or three, of the best reputation in each county, shall be assigned to be keepers of the peace. But these being found rather too few for that purpose, it was provided by statute 34 Edw. III, c. 1, that one lord, and three or four of the most worthy men in the county, with some learned in the law, shall be made justices in every county. But afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary, by statute 12 Ric. II, c. 10, and 14 Ric. II, c. 11, to restrain them at first to six, and afterward to eight only. But this rule is now disregarded, and the cause seems to be (as Lambard observed long ago,) (m) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their increase to a larger number. And as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county; and the statute 13 Ric. II, c. 7, orders them to be of the most sufficient knights, esquires, and gentlemen of the law. Also by statute 2 Hen. V, st. 1, c. 4, and st. 2, c. 1, they must be resident in their several counties. And because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute 18 Hen. VI, c. 11, that no justice should be put in commission if he had not lands to the value of 201. per annum. And, the rate of money being greatly altered since that time, it is now enacted by statute 5 Geo. II, c. 18, that every justice, except *as is therein excepted, shall have 100l. per annum clear [*353] of all deductions; and, if he acts without such qualification, he shall forfeit 1007. This qualification (n) is almost an equivalent to the 201. per annum required in Henry the Sixth's time; and of this (0) the justice must now make oath. Also it is provided by the act 5 Geo. II, that no practicing attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace. (18) As the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. By the demise of the crown; that is, (m) Lamb. 34. 7) Stat. 26 Geo. II, c. 27. See also stat. 7 Geo. III, c. 21. (6) Stat. 18 Geo. II, c. 20. (18) By the 18 Geo. II, c. 20, a party, to become a justice of the peace, must have in possession, either in law or equity, for his own use and benefit, 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 life or 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 100l. above all incumbrances, &c., or else must be entitled to the immediate reversion or remainder of and in such lands, &c., leased for one or more lives, or for a term determinable on the death of one or more lives, upon reserved rents of the yearly value of 3001., and he must take the the oath thereby prescribed of his being so qualified, and if he be not so qualified, he forfeits 1001. for acting. But by sec. 13, 14, 15, there is a proviso, that this act does not extend to corporation justices, to peers, &c., or the eldest son or heir apparent of any peer or person qualified to serve as a knight of the shire, or to officers of the board of green cloth, &c., or to the principal officers of the navy, under secretaries of state, heads of college, or to the mayors of Cambridge and Oxford. It has been decided that a person to be qualified for the office must have a clear estate of 1007. per annum in law or equity, for his own use, in possession. Holt. C. N. P. 458. The acts of a justice of the peace, who has not duly qualified, are absolutely void; and therefore, persons seizing goods under a warrant of distress, signed by a justice who had not taken the oaths at the general sessions, nor delivered in the certificate required, are not trespassers, though the magistrate be liable to the penalty, and to be indicted. 3 B. and A. 266. So much of 5 Geo. II, c. 18, as excludes attorneys and solicitors from acting as justices of the peace, was repealed by 6 and 7 Vic. c. 73, s. 1; but by s. 33, of the same act, this prohibition was renewed, with a proviso, s. 34, that it should not extend to any city, town, cinque port or liberty, having justices of the peace within their respective limits and precincts by charter, commission or otherwise. And under the corporation reform act, 5 and 6 Ŵm. IV, c. 76, borough justices are not required to have any qualification by estate. in six months after. (p) But if the same justice is put in commission by the successor, he shall not be obliged to sue out a new dedimus, or to swear to his qualification afresh: (q) nor, by reason of any new commission, to take the oaths more than once in the same reign. (r) 2. By express writ under the great seal, (s) discharging any particular person from being any longer justice. 3. By superseding the commission by writ of supersedeas, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ called a procedendo. 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once 5. By accession of the office of sheriff or coroner. (t) Formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission; but now (u) it is provided, that, notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice. The power, office, and duty, of a justice of the peace depend on his commission, and on the several statutes which *have created objects of his juris diction. His commission, first, empowers him singly to conserve the *[354] peace; and thereby gives him all the power of the ancient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more to hear and determine all felonies and other offenses; which is the ground of their jurisdiction at sessions, of which more will be said in its proper place. And as to the powers, given to one, two, or more justices by the several statutes, which from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate that, without sinister views of his own, will engage in this troublesome service. And therefore if a well-meaning justice makes any undesigned slip in his practice, great lenity and indulgence are shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office; (w) (19) which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; (20) and stop all suits begun, on tender made of sufficient (p) Stat. 1 Ann. c. 8. (q) Stat. 1 Geo. III, c. 13. (r) Stat. 7 Geo. III, c. 9. (8) Lamb. 67. (19) The principal statute now in force on this subject is 11 and 12 Vic. c. 44; which is even more liberal than the statutory provisions mentioned in the text. (20) [A justice of the peace acts ministerially or judicially. Ministerially, in preserving the peace, hearing charges against offenders, issuing summons or warrants thereon, examining the informant and his witnesses and taking their examinations, binding over the parties and witnesses to prosecute and give evidence, bailing the supposed offender, or committing him for trial, &c. See the conduct to be observed: I Chitty's Crim. L. 31 to 116. In cases where a magistrate proceeds ministerially, rather than judicially, if he acts illegally he is liable to an action at the suit of the party injured; as if he maliciously issues a warrant for felony, without previous oath of a felony having been committed. 2 T. R. 225; 1 East, 64; Sir W. Jones, 178; Hob. 53; 1 Bulst. 64. So if he refuse an examination on the statute hue and cry. 1 Leon. 323. Judicially, as when he convicts for an offence. His conviction, drawn up in due form, and unappealed against, is conclusive, and cannot be disputed in an action. 1 Brod. and Bing. 432; 3 Moore, 294; 16 East, 13; 7 T. R. 633, n. a.; though if the commitment thereon was illegal, trespass lies: Wicks v. Clutterbuck, M. T. 1824; J. B. Moore's Rep. C. P.; and if he corruptly and maliciously, without due ground, convict a party: Rex. v. Price, Caldecot, 305; or refuse a license, he is punishable by information or indictment, though not by action. 1 Burr. 556; 2 id. 653; 3 id. 1317, 1716, Bac. Ab. Justices of the Peace, F.; 1 Chitty's Crim. L. 873 to 877. So an information will be granted for improperly granting an ale license. See 1 T. R. 692; J. Burn, J. 24th ed. 48, tit. Alehouses; 4 T. R. 451. In some cases a mere improper interference appears to be thus punishable: thus, where two sets of magistrates have a concurrent jurisdiction, and one set appoint a meeting to license alehouses, their jurisdiction attaches so as to exclud the others, though they may all meet together on the first |