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THE LAW MAGAZINE.

ART. I.-UNPAID JUSTICES OF THE PEACE.

1. Observations upon the Institution of unpaid Justices of the Peace. London. 1829.

2. A Return of the Number of Persons committed to Prison on Summary Convictions in England and Wales, in the year ending Michaelmas 1835, by one or more Justices of the Peace acting out of Quarter Sessions. Ordered by the House of Commons to be printed August, 1836.

THE institution of Justices of the Peace has been frequently a subject of discussion, in parliament, in reviews, and in pamphlets. Besides the numerous legislative enactments relating to the duties of the office, the beneficial operation of the institution itself, as an unpaid body of magistrates, has been brought into question, but always, we think, regarded in a point of view much too narrow. That some amendments are wanted in the constitution and jurisdiction of that body we are persuaded, but are equally persuaded that none are required which strike at its principle-the administration of the law by unpaid magistrates.

A more extensive power of appeal from their decisions, and security for the appointment of honourable and independent men, and the rejection of all others, must be the bases of whatever improvement can be made; and, upon those bases, very slight alterations may be productive of great improvement. To change the principle of the original institution as a body receiving no stipend, would produce effects probably beside the intentions of any friend to such a measure, and certainly beyond his capacity to foresee.

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In all governments, and perhaps in exact proportion to their civilization, every institution of importance operates not only directly upon the immediate subjects of its intended action, but extends far through the texture of society with an indirect and collateral influence, beyond the power of observation to follow to its extreme limits; nor can any just judgment be formed as to the wisdom of disturbing a long-established institution, by limiting our examination to its direct effects, by discarding all estimation of its remote and collateral tendencies, of its relative position to other existing establishments.

Objections very powerful in theory to a new system about to be introduced, which has not yet interwoven itself with manners, habits, ranks, and the complicated relations of social life, lose their weight with respect to the same system when it has been long in operation, and become mixed with and modified in its practice by other establishments, which receive and convey an influence of reciprocal operation. The trial by jury in civil causes is an illustration of this truth; for however questionable it may be, and questionable no doubt it is, whether a jury is not a defective tribunal for the decision of civil causes, considered in itself, yet no one can doubt that the position it holds in relation to the judge and the advocate, improves them both as instruments for the administration of justice, mitigating the discretion of the one, and enlarging the freedom of the other, so as to create by the union of the three a noble judicature, worthy of a free and civilized people. Thus, though in theory it may appear that the functions. exercised by the justices of peace require a more peculiar application to the knowledge of law, than far the greater number can be supposed to give; yet, after a due regard to the general result of their proceedings--to the antiquity of the institution, and therefore its close connection with other branches of our jurisprudence, as well as with the usages of the people—to the number of persons required to render the system efficientto the gratuitous nature of their services, infinitely more valuable from its moral influence upon themselves and others, than from the saving it causes in the national expenditureto the necessity, if these services are transferred to other hands, of establishing a body of paid officers dependent upon the crown for their performance-it will be found that any

violent disturbance of the foundation of the system would be attended with the greatest practical inconvenience.

To warrant organic changes in an ancient institution, it is not enough to show the existence of theoretic anomalies, nor even of some practical evils; but probable assurance should be given that the proposed change will not only remove those evils, but will come unaccompanied with a more pernicious train. With politicians who would change the forms in which practical benefits are administered, because they want those rounded proportions so delightful to the fancy of a thorough doctrinaire, it is in vain to argue; but those who aim only at useful results, and yet measure their objects by a standard of imaginary perfection, should remember, that, life being a choice of evils, to attempt the creation of a system freed from that abiding and essential ingredient, imperfection, is to encounter the certainty of failure.

A very short sketch of the origin, nature, and extent of the judicial powers of this institution, will show how important a part it forms of our civil establishments, and therefore how little fitted to admit of violent alteration.

The constitution of justices of the peace is founded upon that of conservators of the peace, which existed by common law. The conservators of the peace consisted as well of persons who were such in virtue of particular offices, as of others claiming the power by prescription, or obliged to exercise it by tenure of lands, or such as were elected in the county court before the sheriff " de probioribus et potentioribus comitatus sui in custodes pacis." But the power of these officers, compared with that of the more modern justices of peace first created in the reign of Edward the Third, was extremely limited; it extended to the committing to prison all those who broke the peace, or binding them by recognizance to keep it; their jurisdiction as to felonies, and the judicial powers they now possess, were given them by various statutes. in the reign of that king, when they acquired their present appellation of justices.

The occasion upon which the people lost the right of electing conservators of the peace was upon the deposition of

11 Black. 349.

Edward the Second by his queen, and the substitution of his son, mentioned as follows by Blackstone :--" 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, giving a "plausible account of his manner of obtaining the crown; to "wit, that it was done ipsius patris bene placito; 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, that for the better main"taining and keeping 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 on this occasion was the election of the "conservators of the peace taken from the people, and given "to the king; this assignment being construed to be by the "king's commission. But still they were only called con

servators, wardens, or keepers of the peace, till the stat. "34 Edward III. c. 1, gave them the power of trying felonies, " and then they acquired the more honourable appellation of "justices.'

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How far it might be desirable at that period of our history, that a body invested with the limited powers then intrusted to the conservators, should be elected by the voice of the people, is not within the scope of this inquiry; it was not irrational that those who chose the knights of the shire to represent their interests in parliament, should be entrusted with the choice of officers who, in a political point of view, were of no comparative importance; but it is clear that unless the choice of these conservators had been shifted from the people to the crown, they never could have been converted into the modern justices of peace, without a violation of the first principles of security for the impartial administration of law, an appointment to judicial functions independent of popular canvass.

It is not our intention to discuss the vast variety of duties cast by the legislature upon this body; their extent is witnessed by the four thick volumes of Burn, omitting the law.

1 1 Black. 350.

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