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passed during the last session; as well as the Foreign Enlistment Act, and an elaborate judgment in a case arising out of it of his Lordship Chief Justice Draper, which, in consequence of its importance, has been inserted at full length.
The author would express the hope, that the dissertation on evidence, also inserted in the Addenda, may be found of some service in enabling magistrates to further the ends of public justice.
A complete set of forms has been added, supplying almost every requirement of a Justice. Many of these forms may be found in the statutes, some have to be sought in the more elaborate works on magisterial duties published in England, and others have been framed by the author to meet the peculiarities of certain cases or enactments.
The necessity for a very full index, for the use of unprofessional readers, has been deeply felt by all who have performed magisterial duties. This want has, time after time, been brought under the author's notice, in his official capacity; and he has, in some measure, endeavoured in this publication to respond to the reiterated demand. No exertion has been spared to make the index as complete as possible; and, by indexing almost every point of importance under various heads, the author hopes to have rendered the discovery of the law on any point, within the scope of the work, comparatively easy.
In committing his work to the public, the author would express a hope, that his efforts may meet with the approval of the profession, and the magistrates, and contribute in some degree to the better adıninistration of public justice in Upper Canada.
Toronto, 31st May, 1865.
OF THE OFFICE OF A JUSTICE OF THE PEACE.
The office of Justice of the Peace was originally created by Edward III., A. D. 1327, and the first statutory provision to be found relating to the duties connected therewith, was made in the first year of the reign of that King; when it was ordained that Justices of the Peace should be assigned by the King's Commission.
MEANING OF “JUSTICE OF THE PEACE.”—Justices of the Peace are defined by the learned Dalton, to be “ Judges of Record, “ appointed 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 charge.”
Justices of the Peace may be divided into two classes, namely, those appointed by commission, and those who are such for the time being, merely by virtue of holding some other office, as Mayors and Aldermen of cities and Reeves and Deputy-reeves of townships.
The power and duties of a Justice of the Peace depend on his commission, and on the several statutes which have created objects of his jurisdiction. His commission empowers him singly to conserve the peace; and thereby gives him all the powers of the ancient conservators at the common law, to suppress riots and affrays, to take securities for the peace, to commit felons and other inferior criminals. It also empowers any two or more of them to hear and determine felonies and misdemeanors, which is the ground of their jurisdiction at sessions. The power and duties, given to one or more Justices by the statutes, are so numerous and responsible, that much time, care, and attention are required from the Justice who desires legally and carefully to perform the duties imposed upon him.
The Justice of the Peace must look to these statutes for direction and guidance. He must remember that the power given to him summarily to convict, is in restraint of the common law, and to a certain extent a tacit repeal of that famous clause in the Great Charter, that a man shall be tried by his equals. The danger is great, if a Justice act on the erroneous idea so often embodied in the popular expression, that he should decide according to conscience. If this mean in strict accordance with written law, it would be correct, but if only in harmony with his own views and impressions of right and wrong, very erroneous. A rigid adherence to the statute law, is the surest safeguard to a Justice of the Peace, protecting him from the liability of too often vexatious actions, and the public from wrong and illegality.
So numerous, however, are the duties imposed on County Magistrates, so arduous and responsible in many cases have they become, that in addition to this, education, ability, and matured habits of business are necessary for their proper and efficient discharge. These remarks apply more particularly to summary proceedings before Justices. The Law Journal, for December, 1863, in an article, though written in too condemnatory a spirit, contains many truths worthy of attentive consideration; at the same time, the remedies proposed, with the exception of the first, would be of very doubtful advantage. We quote the article in part, as follows :
“Our attention has been directed to the very imperfect state of the law in reference to procedure before Magistrates, in cases in which they are authorized to convict summarily.
“No branch of criminal administration is more frequently brought into operation than this; and the very extensive powers committed to magistrates are little understood and very seldom exercised in the manner required by law. Occasionally cases are reported in the superior courts exhibiting this fact; but a vast number come before the Quarter Sessions, in the form of appeals from the convictions of Justices, and in nearly every case, the convictions are found to be insufficient in form or in substance, and are accordingly quashed. In some instances, this arises from ignorance or carelessness of the convicting Justice; but in the great majority of cases the fault does not lie at the door of the magistrates, but in the system under which he is authorized to act.
“The magistracy are increasing in number, and the mischiefs we allude to increase in at least the same ratio. It is a great evil when offenders are allowed to escape by reason of informality in the proceedings to convict them, and the constant recurrence of this evil is calculated to weaken the force, if not of all laws, at least of those for the prevention and punishment of small crimes and misdemeanors. A notorious offender, a willful Sabbath breaker, or one who violates the wholesome restrictions on innkeepers, for example, is charged with the offence before a magistrate. He is summoned, appears, and the evidence taken bringing the charge home to him, is convicted of the offence, and a fine imposed upon him. The magistrate, from some cause, fails to put the conviction in legal form. The defendant appeals to the Quarter Sessions, and the conviction is quashed. Surely this is calculated to encourage opposition to authority, and to foster crime; and yet these things may occur without much fault on the part of the convicting Justice. True, it may be urged that men should not be appointed to an office, the duties of which they are not fitted by education to perform ; but if that rule were acted on in the present state of the law, not two magistrates in each County in Upper Canada would be found equal to their work.
“Attempts have been made, by enactments, from time to time, to simplify procedure, and it was partially done up to a certain period; but there never has been any general law of procedure governing all cases of summary conviction, and no full set of forms has ever been given by the legislature, applicable to the various cases within the magistrates' jurisdiction. If it be said that a treatise on the duties of magistrates would remedy the evil, our reply is at best it would only do so in part, for few who have not been regularly trained can apply
general rules and principles (which only could be given), laid down in a text-book, to particular cases, if at all complex in their nature.
“Any one who has taken the trouble to examine the convictions returned by magistrates, will bear us out in the assertion, that in nine of every ten special cases, the convictions are bad, void, or voidable for some defect. Magistrates should not exercise their office in peril of actions against them at every step, nor be feeble as ministers of justice, because imperfectly informed as to the nature and limits of their powers and the mode in which their judgments are to be rendered effective."
It must be remembered that the mere fact of the name of any gentleman being in any commission, will not authorize him to act as a Justice of the Peace, until he has duly qualified on real estate of the clear value of twelve hundred dollars, and also taken the oaths of office, allegiance, and qualification. Any person acting in the capacity of a Justice of the Peace not having qualified, or not possessing the proper qualification, shall for every such offence forfeit and pay the sum of one hundred dollars. (Con. Stat. C. c. 100, s. 6).
A Justice of the Peace has authority, in the first instance, over all offences against the law, from the highest felony to the most trifling misdemeanor; and it is his duty to take cognizance of all such offences committed within his jurisdiction.
The acts of a Justice of the Peace are either ministerial or judicial. He acts ministerially, in preserving the peace, receiving complaints against persons charged with indictable offences, issuing summonses or warrants thereon, examining the informant and his witnesses, binding over the parties to prosecute and give evidence, bailing the supposed offender, or committing him for trial. He acts judicially, in all cases of summary jurisdiction. His conviction, drawn up in due form, and unappealed against, is conclusive, and cannot be disputed by action; though if he act illegally, maliciously, or corruptly, he is punishable by information or indictment.
All offences cognizable by a Justice of the Peace are divisible into two general classes, namely: firstly, those which the law requires to be sent to a higher tribunal for final trial, wherein