CHAPTER XLIX.

COLLECTION AND DISPOSAL OF FINES AND COSTS IN CRIMINAL CASES.

FORMS USED BY SHERIFFS IN PROCEEDINGS FOR INCREASE OF DAMAGES.

PRELIMINARY OBSERVATIONS.

OF THE OFFICE OF JUSTICE OF THE PEACE

ITS ANTIQUITY.

WHILE the great antiquity of the office of justice of the peace is mentioned by numerous writers on the subject, the exact time of its establishment remains in great doubt.

One says it was first recognized in English law under William the Conqueror; another, that in Easter Term, 6 Edw. I, prima fuit institutio justiciariorum pro pace. conservanda; another, that the office was established in all the counties of England by Henry III, in 1263, yielding to the demands of the Earl of Leicester, the head of the barons in their attacks on the king; while a learned antiquary declares that the office was made by Edward III, in 1327. All agree, however, that in those early times, the name of justice of the peace was unknown, but that guardian and keeper, or conservator of the peace, were the appellations applied to the magistracy which had cognizance of the peace.

The king was the principal conservator of the peace within his dominion, from whom the administration of justice in all causes was originally derived; and the lord chancellor, king's justices, inferior judges, high constable, sheriffs, tythingmen, and many others were, ex officio, con

Polydore

-2 Lord Coke.-3 2 Hume's Hist, Eng. 51.-4 Sir Henry Spellman.

servators of the peace," some by tenure or prescription, some by election in pursuance to a writ directed to the sheriff for that purpose, and others appointed by commission from the king. 6

For the better keeping and maintaining of the peace, it was enacted "that in every county, good men and lawful, that were no maintainers of evil or barrators in the county, should be assigned to keep the peace." These, however, were but auxiliary to the others named under other titles, none of whom had, at that time, any judicial authority civil or criminal.

Three years later, the powers of these officers were enlarged by giving to them the authority to take indictments. In the eighteenth year of the reign of the same king, they were empowered, for the first time, to "hear and determine" certain felonies and trespasses." But their judicial authority was greatly increased sixteen years afterwards, when these offices were first denominated "justices of the peace." 10

The commissions of conservators of the peace not unfrequently contained a special charge to enforce the observance of certain specified statutes, some one, some another.11 Subsequently, the statutes enumerated all of their duties, so that it was declared in the language of those times that "justices of the peace cannot meddle with anything but such as the statutes empower them, for they have their whole power by the statutes, and no authority by the common law." 12

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Our ancestors brought with them the office but none of the powers which belonged to it there except such as

5 Lamb, 12; 2 Reeves's Eng. Law, 469.-6 Lamb, 16, 17.-7 Stat. Ed. III, 3 c. 16.-8 Stat. 4 Ed. III, c. 2. Stat. 18 Ed. III, c. 2.-10 Stat. 34 Ed. III.-11 2 Reeves's English Law, 472.-12 1 W. Jones, 170; 1 Sid. 292.

are enumerated in the statutes creating the office and defining its powers here. And hence it may be said here, as in the mother country, that the office of justice of the peace is a creature of the statute, and derives none of its general authority from the common law.18

APPOINTMENT AND QUALIFICATION.

There are three grades of offices known in this State under the general appellation of justice of the peace, viz., justice of the peace, justice of the peace and of the quorum, and trial justice. As a general rule their jurisdiction is confined to a single county,—to that in which they resided at the time of their appointment. But a few persons, including the ex-presiding officers of the two branches of the legislature, and ex-councillors are appointed to be justices of the peace and of the quorum "within and for each and every county through the State."

All justices of the peace, including trial justices, are nominated, and, with the advice and consent of the council, appointed by the governor. They hold their offices during seven years, if they so long behave themselves well, at the expiration of which term they may be reappointed. But for misdemeanor in office, they may be removed by impeachment; or may be removed by the governor, with the advice and consent of the council, on the address of both branches of the legislature.3

Every person appointed a justice of the peace receives a notice thereof from the secretary of State. On receipt of such notice, the appointee must, if he desire to be

13 Com. v. Foster, 1 Mass. 487; Martin v. Fales, 18 Me. 23.

1 Const. Art. V, Part 1, § 8; R. S. c. 83, § 1.-2 Const. Art. VI, § 5; R. S. c. 88, § 1-3 Const, Art. IX, § 5.- R. S. c. 2, § 39.

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commissioned and qualified, pay to the treasurer of State, or of his county, the sum of five dollars, and on the receipt of the evidence of such payment, the secretary of State will "cause the proper commission to be immediately made, under the direction of the governor," and, after it has received the signature of the governor, to be delivered to the appointee "or to any person appointed by him to receive it."6

Every person commissioned as justice must, before entering upon the discharge of his official duties, take and subscribe, before any one member of the council, or before any magistrate commissioned by the governor for that purpose, the following oath :

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"I — do swear, that I will support the constitution of the United States, and of this State, so long as I shall continue a citizen thereof. So help me God.

"I do swear, that I will faithfully discharge, to the best of my abilities, the duties incumbent on me as [justice of the peace, justice of the peace and of the quorum, or trial justice, as the case may be] according to the constitution and the laws of the State. So help me God.” 8

If, however, he be conscientiously scrupulous of taking and subscribing an oath, he may take and subscribe an affirmation in the foregoing form, substituting in the place of the word "swear" the words "do affirm under the pains and penalties of perjury," and omitting the words. so help me, God.” 9

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The officers other than members of the council before whom justices are required to take and subscribe the oath required by the constitution, and generally known by the

5 R. S. c. 114, § 1.-6 R. S. c. 2, §§ 39, 40.-7 Const. Art. IX, § 1; R. S. c. 2, §§ 85, 86; R. S. c. 83, § 2.-8 Const. Art. IX, § 1; R. S. c. 83, § 2.9 Const. Art. IX, §1; R. S. c. 82, § 93.