THE JUSTICE of the PEACE, AND PARISH OFFICER. BY RICHARD BURN, LL. D. LATE CHANCELLOR OF THE DIOCESE OF CARLISLE, Continued to the Prefent Time By JOHN BURN, Efq. his Son, ONE OF HIS MAJESTY'S JUSTICES OF THE PEACE FOR THE The SEVENTEENTH EDITION: Including the An APPENDIX, containing the Act refpecting ALIENS, IN FOUR VOLUME S. VOL. III. LONDON: PRINTED BY A. STRAHAN AND W. WOODFALL, 1793. (I) Justices of the peace. USTICES of the peace are judges of record, appointed by the king, to be juftices within certain limits, for the confervation of the peace, and for the execution of divers things comprehended within their commiffion, and within divers ftatutes committed to their charge. Dalt. c. 2. And a record or memorial made by a juftice of the peace, of things done before him judicially in the execution of his office, fhall be of fuch credit, that it fhall not be gainfaid. One man may affirm a thing, and another man may deny it; but if a record once fay the word, no man fhall be received to aver or fpeak against it; for if men fhould be admitted to deny the fame, there would never be any end of controverfies. And therefore to avoid all contention, while one faith one thing, and another faith another thing, the law repofeth itfelf wholly and folely in the report of the judge. And hereof it cometh, that he cannot make a fubftitute or deputy in his office, feeing that he may not put over the confidence that is put in him. Great caufe therefore have the juftices to take heed that they abufe not this credit; either to the oppreffion of the fubject by making an untrue record, or the defrauding of the king by fuppreffing the record that is true and lawful. Lamb. 63-66. Hereof all it cometh, that if a juftice of the peace certify to the king's bench, that any perfon hath broken the peace in his prefence, upon this certificate fuch perfon fhall be there fined, without allowing him any traverse thereto. Dalt. c. 70. And that I may treat intelligibly concerning this office (of which L. Coke fays the whole chriftian world hath not the like, if it be duly executed, 4 Inft. 170.) I will set forth, VOL. III. A A 1. The Confervators by eletion. Confervators by office. I. The office of confervators of the peace at the common law, before the inftitution of justices of the peace. II. The commiffion of the justices of the peace, III. Oaths to be taken by justices of the peace. V. Some general directions relating to justices of VI. Their indemnity and protection by the law, in the right execution of their office; and their punishment for the omiffion of it. 1. The office of confervators of the peace at the common law, before the inftitution of justices of the peace. Of ancient times fuch officers or minifters, as were infituted either for prefervation of the peace of the county, or for execution of juftice, because it concerned all the fubjects of that county, and they had a great interest in the juft and due exercifes of their feveral places, were by force of the king's writ in every feveral county chofen in full or open county by the freeholders of that county: As before the inftitution of juftices of the peace, there were confervators of the peace in every county, whofe office (according to their names) was to conferve the king's peace, and to protect the obedient and innocent fubjects from force and violence. Thefe confervators, by the ancient common law, were by force of the king's writ chofen by the freeholders in the county court, out of the principal men of the county; after which election fo made, and returned, then in that cafe the king directed a writ to the party fo elected, to take upon him and execute the office until the king fhould order otherwife. And thus the coroners ftill continue to be chofen in full county: As also the knights of the fhire for the parliament. 2 Inft. 558, 559. Befides thefe confervators of the peace properly fo called, there were and are other confervators of the peace by virtue of certain offices: As for inftance; (1) The (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 procefs for the furety of the peace, and to take recognizance for it. 2 Haw. 32. (2) Alfo, every court of record, as fuch, hath power to keep the peace within its own precinct. Id. (3) Alfo, every juftice of the peace is a confervator of the peace. Crom. 6. (4) Allo, every fheriff is a principal confervator of the peace, and may without doubt ex officio award process of the peace, and take furety for it. And it feems the better opinion, that the fecurity fo 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) Alfo, every coroner is another principal confervator of the peace, and may certainly bind any perfon to the peace, who makes an affray in his prefence. But it feems the better opinion, that he has no authority to grant procefs for the peace; and it feems clear, that the fecurity 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 fuch court) is not to be looked on as a recognizance, but as an obligation. Id. (6) Alfo, every high and petit conftable are, by the common law, confervators of the peace. 2 Haw. 33. And it is faid, that if a conftable fee perfons engaged in an affray, or upon the very point of entering upon it, as where one fhall threaten to kill, wound, or beat another, may imprifon the offender of his own authority for a reasonable time, till the heat shall be over, and alfo afterwards detain him till he find furety of the peace by obligation. 1 Haw. 137. But it is faid, that a conftable hath no power to arrest a man for an affray done out of his own view; for it is the proper business of a conftable to preferve the peace, not to punish the breach of it; nor doth it follow from his having power to compel thofe to find fureties who break the peace in his prefence, that he hath the fame power over those who break it in his abfence. Id. There were alfo other confervators of the peace by te- Confervators by nure; who held lands of the king by this fervice, among others, of being confervators of the peace within fuch a diftri&t. 2 Haw. 33. tenure. Allo there were other confervators of the peace by pre- Confervators by fcription; who claimed fuch power from an immemorial prefcription. ufage in themfelves and their predeceffors or ancestors, or |