Oath of qualification.

of a dwelling-house, assessed to the inhabited house duty at the value of not less than one hundred pounds, within any county, riding or division, in England or Wales, and shall during that time have been rated to all rates and taxes in respect of the said premises, and who is otherwise eligible, shall be deemed to be qualified to be appointed a justice of the peace for such county, riding or division: Provided that no justice appointed, in respect of the qualification in this section mentioned, shall continue to act as a justice of the peace for any county, riding or division, after he shall have ceased for twelve calendar months to have within such county, riding or division, such qualification."

Before a gentleman appointed to the office of a justice of the peace can act, he must take three oaths; the first is that of qualification, and is provided for by the 18 Geo. 2, c. 20, s. 1, and runs in these words :

"I, A. B., do swear that I truly and bona fide have such an estate in law or equity to and for my own use and benefit, consisting of [specifying the nature of such estate, whether messuage, land, rent, tythe, office, benefice or what else] as doth qualify me to act as a justice of the peace for the county, riding or division of according to the true intent and meaning of an act of parliament made in the eighteenth year of the reign of his Majesty King George the Second, intituled 'An act to amend and render more effectual an act passed in the fifth year of his present Majesty's reign, intituled "An act for the further qualification of justices of the peace, and that the same (except where it consists of an office, benefice or ecclesiastical preferment, which it shall be sufficient to ascertain by their known and usual names) is lying or being, or issuing out of lands, tenements or hereditaments, being within the parish, township or precinct of or in the several parishes, townships or precincts of in the county of several counties of [as the case may be].'

or in the

Although the foregoing oath has in its terms application to a property qualification only, yet as the second section of the before-mentioned statute of the 38 & 39 Vict. c. 54, enacts, that "the enactments concerning the description of property "qualification and other provisions and penalties, having "reference to the qualification now required by law, shall be "applicable with reference to the qualification required by "this act," it would seem that where the qualification is that of residence only, the same oath must be taken modified to meet the altered qualification.

By the 3rd section of the 18 Geo. 2, c. 20, a penalty of 1007. is imposed upon any justice who acts as such without having

taken and subscribed the above oath, or without being qualified. (See Woodward v. Watts, 2 El. & Bla. 452; 22 L. J., M. C. 149.)

The second and third oaths are the oath of allegiance and the judicial oath. These are required by the 6th section of the Promissory Oaths Act, 1868 (31 & 32 Vict. c. 72), to be taken by each of the officers named in the second part of the schedule of the act (justices of the peace for counties and boroughs being amongst them), as soon as may be after his acceptance of office. They are as follows:

Oath of Allegiance.

"I, do swear that I will be faithful and bear true alle- Promissory giance to her Majesty Queen Victoria, her heirs and successors, oaths required according to law. So help me God."

Judicial Oath.

"I, do swear that I will well and truly serve our sovereign Lady Queen Victoria in the office of and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or illwill. So help me God."

By s. 7 of the 18 Geo. 2, c. 20, "if any officer specified in "the schedule hereto declines or neglects, when any oath re"quired to be taken by him under this act is duly tendered, "to take such oath, he shall, if he has already entered on his "office, vacate the same, and if he has not entered on the "same be disqualified from entering on the same; but no "person shall be compelled, in respect of the same appoint"ment to the same office, to take such oath or make such "affirmation more times than one." As to Jews, Quakers and others permitted to make affirmations, s. 11 enacts, "when

an oath is required to be taken under this act, every person "for the time being by law permitted to make a solemn affir"mation or declaration instead of taking an oath may, instead "of taking such oath, make a solemn affirmation in the form "of the oath hereby appointed, substituting the words "solemnly, sincerely and truly declare and affirm' for the "word 'swear,' and omitting the words 'So help me God.'"

to be taken.

By the Promissory Oaths Act, 1871, 34 & 35 Vict. c. 48 Before whom (which repeals numerous acts on the subject), after reciting in oaths to be part thus s. 6 of the Act of 1868, and that "it is desirable,

46

with a view to the revision of the statute law, to define the "manner in which such oaths are to be taken," enacts, "that

taken.

Persons who may be justices without

estate quali

fication.

Borough and city magistrates;

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"each such officer shall take the said oath before such persons "as her Majesty may from time to time appoint; or, in England, before the Lord High Chancellor of Great Britain, or "in the Court of Chancery, Queen's Bench, Common Pleas, or Exchequer, in open court before one or more of the judges of such court,-or in open court at the general or quarter sessions of the peace for the county, borough or "place in which the person taking the oaths acts as justice." There are other persons who may be justices within the counties for which they act officially without the qualification by estate, or the oath thereof, such as county court judges (9. & 10 Vict. c. 95, s. 21), the vice-warden of the stannaries of Cornwall and Devon (18 & 19 Vict. c. 32, s. 29), and the police magistrates of the metropolis (2 & 3 Vict. c. 71, s. 1; 11 & 12 Vict. c. 42, s. 31); but they must take other oaths taken by justices of the peace (2 & 3 Vict. c. 71, s. 3). By 28 & 29 Vict. c. 124, s. 5, the superintendents of her Majesty's Dockyards are to be in all places justices of the peace in respect of all offences specified in the act, and of all matters relating to her Majesty's Naval Service, and the stores, provisions and accounts thereof.

In boroughs within the Municipal Corporations Act, the magistrates are also appointed by the crown through the Lord Chancellor (5 & 6 Will. 4, c. 76, s. 98), at the instance of persons upon whose judgment the government for the day relies; or the Lord Chancellor of his own motion makes the appointment; and it is signified to the clerk to the justices. They are not required to possess any pecuniary qualification (s. 101), but they must reside in the borough or within seven miles of it (s. 98), or occupy a house, shop, warehouse, or other premises within the borough (24 & 25 Vict. c. 75, s. 3). The council of the borough may resolve to have a salaried police magistrate or magistrates, upon which her Majesty will appoint a qualified barrister-at-law for that office (5 & 6 Will. 4, c. 76, s. 99). The oaths to be taken by these magistrates were regulated by s. 104; but now the Promissory Oaths Acts, 1868 and 1871, mentioned supra, apply to them and the mayor also. The borough justices, however, before they can act are still required to make the declaration set out in the 104th section of the 5 & 6 Will. 4, c. 76. The mayor for the time being of every borough is a justice of the peace of and for such borough, and continues to be such justice

during the year succeeding, unless disqualified, and during his mayoralty has precedence in all places within the borough-precedence of mayor; (s. 57); and by 24 & 25 Vict. c. 75, s. 2, "shall, during the "time of his mayoralty, have precedence over all justices of "the peace acting in and for such borough, and be entitled to "take the chair at all meetings of justices held within the borough at which he may be present by virtue of his office

66

in certain

"of mayor, subject to these provisoes; firstly, that the mayor exception "of a borough shall not by virtue of this section have any cases. "precedence over the justices of the peace acting in and for

66

the county, riding or division of a county in which any such borough is situate unless when acting in relation to the "business of such borough, or over any stipendiary magistrate "engaged in administering justice; and, secondly, that by "virtue of this section the mayor of Cambridge shall not "have any precedence over the Vice-Chancellor of the Uni"versity of Cambridge, and the mayor of Oxford shall not "have any precedence over the Vice-Chancellor of the Uni"versity of Oxford." The recorder is also a justice (5 & 6 Will. 4, c. 76, s. 103). Other cities (including the City of London. London) and boroughs not within the 5 & 6 Will. 4, c. 76, have mayors and justices by charter or grant from the crown.

Stipendiary magistrates are salaried police magistrates in Stipendiary some of the provincial towns and populous districts under the magistrates. Municipal Corporations Act, 5 & 6 Will. 4, c. 76, s. 99, or under local acts, and are appointed by the Home Secretary on behalf of the crown; but the stipendiary may appoint a deputy with the approval of the Home Secretary (32 & 33 Vict. c. 34, s. 2). The 26 & 27 Vict. c. 97, s. 3, enables the local board of a city or place having 25,000 inhabitants to resolve on the expediency of having a stipendiary magistrate, and to fix the salary, upon which the Home Secretary on the part of the crown appoints him.

II. THE NATURE OF THE DUTIES OF JUSTICES.

The authority of justices of the peace is either ministerial Authority of or judicial. The ministerial functions of justices consist of justices either ministerial or receiving informations or complaints for indictable offences, judicial. (triable at quarter sessions or assizes), and also for offences Ministerial. or matters determinable in a summary way,-causing the

Judicial.

This work classed in three distinct parts.

How proceed

ings regulated and duties of justices defined.

party charged to appear and answer, either by summons or by warrant, and taking the examinations and bail or committing for trial, &c.; and, in the case of summary convictions or orders, causing such conviction or order to be executed by warrant of distress or of commitment; and also appointing parish officers, allowing parochial rates, &c. Their judicial functions consist of the trial of offenders at general or quarter sessions, and the hearing and adjudicating upon informations out of such sessions for summary offences, and upon complaints for nonpayment of money for wages, parochial rates, &c.; disputes between masters and servants in certain trades; landlords and tenants; as to the fairness of parochial rates; disputes between members and officers of building and friendly societies; and many others of a similar character; the latter being of a civil, while the former partake of a criminal nature, but the whole being generally termed the summary jurisdiction.

In the present work the subjects within the range of justices of the peace out of quarter sessions are classed in three distinct and easily recognized parts: the first relating to Summary Convictions (occupying the whole of Vol. I.), the second relating to Indictable Offences, and the third to Special and Petty Sessions Matters (these two parts occupying the remaining Vol. II.). In the first part, the preliminary or initiatory proceedings are ministerial, while the hearing and adjudicating is judicial;-in the second, the proceedings are wholly ministerial;—and in the third, they are of a miscellaneous character, being in some cases judicial and in others ministerial.

With regard to the first part (Summary Convictions) and a portion of the third part (Petty Sessions Matters) the proceedings before the justices are in most cases regulated, and their general duties defined, by the 11 & 12 Vict. c. 43; while in other cases the proceedings are mostly matters of special enactment in the statute or statutes by virtue of which the jurisdiction is created; and with respect to the second part (Indictable Offences) the 11 & 12 Vict. c. 42, regulates all the proceedings and duties of justices out of sessions.