JOURNAL OF LAW.

PUBLISHED AT THE UNIVERSITY.

Vol. I.

APRIL, 1904.

No. 4.

The Justice of the Peace.

We are moved to write about this very important constitutional officer in our system of home rule, as the Irish patriots call it, or local self government as we are accustomed to say. It will be observed that in addition to his judicial functions, he is by the Constitution invested with other duties, both legislative and executive, thus mingling the three departments of government, legislative, executive and judicial in the exercise of his one office. And yet we have never heard applied to him the contention recently made in this State with regard to the Corporation Commission, that it is an unconstitutional body because in its duties are mingled, both executive and judicial functions. Time and space would not permit an extended inquiry into the origin of this ancient and honorable office, although the inquiry might be an interesting one.

Suffice it to say, that it probably comes down to us as introduced in the time of Edward I, the English Justinian, in whose reign, as all men know, so many salutary improvements were made in the administration of the law. Blackstone ascribes it to even a later period in his entertaining style: "But when Queen Isabel, the wife of Edward II, contrived to depose her husband by a forced resignation of the crown and had set up his son, Edward III, in his place, this being a thing then without example in England, it was feared would much alarm the people; especially as the old king was living, though hurried about from castle to castle till at last he met with an untimely death. To

prevent therefore any risings or other disturbances of the peace, the new king sent writs to all the sheriffs in England giving a plausible account of the manner of his obtaining the crown, to-wit: that it was done "by the good pleasure of his father," 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 maintaining and keeping of the peace, in every county, good men and lawful which were no maintainers of evil, or barrators in the country, should be assigned to keep the peace.

And in this manner and on this occasion was the election of conservators of the peace taken from the people and given to the king, this assignment being construed to be by the king's commission."

The late Judge Cantwell, in his, at one time, very useful revisal of Swain's Justice, a noted book in its day, says:

"The power to appoint Justices of the Peace continued in North Carolina, from its first settlement, a branch of the royal prerogative, until by the act of Congress of the United States it was declared, with other sovereign powers, to vest in the people of this State, who, in December of the same year (1776), in the 33d section of the Constituion of the State ordained as follows:

"The Justices of the Peace, within the respective counties of this State, shall in the future be recommended to the Governor for the time being, by the representatives in general assembly, and the Governor shall commission them accordingly."

The mode of appointment thus prescribed continued unchanged up to the adoption of the Constitution of 1868, by which instrument their election was give to the people.

"In each township there shall be biennially elected, by the qualified voters thereof, a clerk and two justices of the peace, who shall constitute a board of trustees, and

shall under the supervision of the county commissioners, have control of the taxes and finances, roads and bridges of the townships, as may be prescribed by law. The General Assembly may provide for the election of a larger number of Justices of the Peace in cities and towns and in those townships in which cities and towns are situated."

The convention of 1875, amended this article so as to give to the General Assembly full power to modify, change or abrogate any and all of the provisions of Article 7 of the Constitution, in regard to county government and the election of Justices of the Peace. So that now the manner of their selection and the duties of their office are in the power of the General Assembly-and nearly all of their executive duties have been transferred to the board of county commissioners. We believe that Code Section 717 still stands, requiring them to meet annually with the board of commissioners on the first Monday in June. And the county commissioners may call them together not oftener than once in three months. But there is now no necessity for these meetings. So it will be seen that while by the Constitution they may be invested with large, varied and important political functions, this matter is left entirely to the General Assembly. But their judicial functions and jurisdiction are fixed by Article 4 of the Constitution and may not be changed by the legislature except in one particular, and that is in the direction of enlarging their jurisdiction in cases of tort, and has been acted upon already. The jurisdiction of the justice, both civil and criminal is largely greater than it was before 1868. His court having no clerk nor official seal, is still held not to be a court of record, although he is required to keep and preserve a docket and transmit the same to his successor. He has all the powers of a judge to punish for contempt, and with the extended jurisdiction both civil and criminal, he is a judicial officer of great power, and, sometimes, dignity. The oath of office which he is required

to take is most solemn and comprehensive. He may not be said to come from the people, like the judge of the superior court who at once upon his qualifications is set apart from them and started on his rounds, and not permitted to remain in one district long enough to form partialities, nor to hold the courts of the same district oftener than once in four years. To most of the people he is simply known as "the judge."

Ask the ordinary citizen or juror what was the name of the judge who presided in his county twelve months ago, if you want to realize the evanescence of fame, although the charge of this judge to the grand jury was pronounced by the county newspaper to be the best that was ever delivered in that county.

As for the justices of the Supreme Court, with a few very brilliant exceptions they soon are emancipated into a sort of Nirvana, "the world forgetting, by the world forgot," until some political exigency calls one of them back again.

But the Justice of the Peace! He is always with the people. It is he who marries many of them, who takes the acknowledgment of their deed, indeed, who often writes it for them to execute, and the private examination of the wife. When the hushand passes away, he attends to the laying off the widow's year's support. He is ex-officio, notary public, and commissioner of affidavits. His wide jurisdiction makes his court the forum for most of the litigation between the plain people as some call them, the poor men whose contracts seldom embrace larger sums than two hundred dollars, or torts, than fifty. His jurisdiction covers most misdemeanors, and he investigates charges of higher crimes. His court is open all the time for all purposes, so he is brought and kept in closest touch with the people and per force becomes their adviser in many matters where the amount involved is too small to warrant the employ of counsel. Be he elected by the people as he is in some counties, or by the General As