PART III.

OF THE POWERS AND DUTIES OF JUSTICES OF THE PEACE UNDER PARTICULAR STATUTES,

CHAPTER I.

OF THE PROCEEDINGS IN CASES OF SUMMARY CONVICTIONS.

JUSTICES of the peace were originally mere conservators of the peace, and had no jurisdiction or authority at all, either to convene the offender before them, or to examine, hear, or determine the cause, but had only coercion or punishment of an ́ offender in some few cases. Dalt. Justice, 24.

Power, however, was very early given to conservators of the peace for suppressing riots and affrays, for taking sureties for the peace, and for apprehending felons, and other inferior criminals, 1 Bl. Com., 354, and securing their appearance to take their trial for the alleged offences before a higher tribunal. Such was the power conferred upon justices of the peace in this state by the act of Feb. 19, 1819. Ante, 11.

Two or more justices of the peace were empowered to hear and determine all felonies and other offences at the sessions. And, in some cases, one justice could hear and determine offences, and punish an offender as convict upon his own view, or upon confession, or upon examination and proof of witnesses. Ante, 3, 4.

By several acts of the legislature of this state, judicial power has been conferred upon one or two justices of the peace to hear and determine in a variety of cases over which they had no jurisdiction by the common law, as in cases of assault and battery, differences between master and apprentice, &c. And, by some of the statutes, a mere ministerial power is given to them, as for taking the acknowledgment or proof of deeds and mortgages, &c.

It is to be regretted that some uniform system of practice is not observed for enforcing the different statutes committed to the charge of justices of the peace, when acting in a judicial capacity. The extensive and important duties which have been imposed upon them, and the various and complicated rules by which they are to be governed in the performance of those duties, render the discharge of them laborious, and often difficult. Although but little inconvenience has been experienced in procuring incumbents who are qualified to discharge

the various functions of this important office, yet it seems to be an object worthy of attention that the rules of proceeding should be as simple and plain as the nature of the duties will admit. By the increase of population, as well as the increase of legislation, the amount of business in the courts of justices of the peace is greatly increasing. And it is on account of the small expense incident to the proceedings in these courts, and the ease and despatch with which business is there determined, that the legislature has been induced to extend the authority and jurisdiction of justices of the peace.

Here it may be remarked, that justices of the peace cannot be too circumspect when called upon to discharge any of the various duties of their office. Instances have been known where individuals, feeling themselves aggrieved, have resorted to some neighboring justice and related in detail the facts attending their case, giving them a coloring, occasioned, perhaps, by an honest resentment, or, perhaps, by malicious design, and thereby biased the mind of the justice. There are many ways in which the human mind may be affected, of which the justice may be in no way sensible. Such influences are the more dangerous, as the justice is not aware of this effect upon him, and, therefore, takes no pains to guard against it. Whenever a justice shall perceive that the facts of a case have been related to him, and he shall feel an inclination in favor of one party more than another, it would be well for him to decline issuing process. It is reprehensible in any individual who shall have made the justice acquainted with his case, to attempt to ascertain his opinion relative to it, for the purpose of determining whether to institute proceedings before him.

The justice to whom application is made for process, ought not to express any opinion in the case before it comes before him to be tried, because his impartiality will, by that means, be affected, and he will feel an anxiety to support those which he has thus prematurely expressed. 1 Chit. Crim. Law, 696. Under such circumstances, there is not only pride of opinion to contend against, but the fear of the censure of the party who may have relied upon the correctness of the opinion expressed by the justice.

After the proceedings are commenced, it is not unusual that the parties are desirous to compromise.

It seems that, any time before judgment is finally pronounced, the courts have power, in cases of misdemeanors which more particularly affect a private individual, to allow a compromise, in order to render some satisfaction to the party immediately injured, and to save the trouble and circuity of a civil action. If the prosecutor declares himself satisfied, it is usual to inflict but a trifling fine for the injury to the public welfare. 1 Chit, Crim. Law, 664. 11 East, 46. 1 Cond. Eng. Ch. R., 502.

The practice of entrusting inferior courts with the power of allowing a compromise, has been censured, as it is

said that prosecutions for assaults are more frequently commenced in those courts for private lucre, than the ends of public justice. 4 Bl. Com., 364.

But it may be urged, on the other hand, that justices of the peace, from their local knowledge and more accurate acquaintance with the character of the parties, are more fit to be entrusted with the peace than the judges of the circuit courts, who generally know little more than the facts detailed in the evidence. 1 Chit. Crim. Law, 8.

A sum agreed to be paid as a compromise for a private misdemeanor, where the compromise was made with the sanction of the court before which the prosecution was instituted, may be recovered in an action at law. 2 Burr, 719. 5 East, 294. 7 Term R., 475.

Bastardy is, in law, but a misdemeanor, which may be compromised or compounded at the discretion of the parties.

3 Scam, R., 378.

Although it is no part of the office of justices of the peace to forbid lawful suits, yet they would do well to be mediators of peace in such suits and controversies as shall arise among their neighbors. Dall. Justice, 10.

And it would not be amiss that justices of the peace should bear in mind the charge given by King James to the judges, "that they do justice uprightly and indifferently, without delay, partiality, fear, or bribery, with stout and upright hearts, with clean and uncorrupt hands, and yet not to utter their own conceits, but the true meaning of the law, not making laws but interpreting the law, and that according to the true sense thereof, and after deliberate consultation, remembering that their office is to declare and not to give the law."

By a statute of this state, justices of the peace are invested with original exclusive jurisdiction in all cases of assault, assault and battery, and affrays.

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It is sometimes the case, that persons guilty of these offences before a justice of the peace and confess themselves guilty, and pay a small and inadequate fine for the purpose of preventing or barring process founded upon the complaint of the injured party. And, with the same design, it has been the practice for a friend of the offender to institute a colorable prosecution. This practice, it is said, has, in some instances, been encouraged and approved by members of the profession. Attempts, however, of this kind are usually abortive, for, in general, the proceedings in consequence of them are of no validity unless they are made and obtained bona fide. Whenever, therefore, applications of this nature are made to a justice, he ought, generally, to decline acting upon them at all, but never in the absence of, or without notice to, the party injured. A sentence thus obtained is no bar to another prosecution for the same complaint. The general effect of such proceedings is nothing more than to show the consciousness of guilt on the

part of the offender, and the want of judgment and, sometimes, integrity on the part of the justice. And when the case is as it has been known to be, that there is an understanding, or rather a combination, between the party and the justice to prevent, in this way, the due course of justice, they are both liable to a public prosecution. Davis' Justice, 21.

The general rules relating to summary proceedings will be considered under the following heads, to wit:

1. Of the complaint or information.

2. Of the summons and warrant.

3. Of the service thereof.

4. Of securing the attendance of witnesses. 5. Of the appearance.

6. Of the adjournment.

7. Of the hearing and trial.

8. Of the conviction and judgment.

9. Of enforcing the conviction and judgment.

1. Of the complaint or information.

There does not appear to be any general enactment regulating proceedings before justices of the peace under the different statutes, and establishing a uniform set of rules to be observed in all cases, with appropriate variations when necessary. From the want of these, it will be found that the proceedings are very different. Sometimes jurisdiction is given to the justice upon the oath of the party aggrieved, and in other cases the complaint or information must be on oath, and in others, perhaps, it may be verbal, without oath. In some of the statutes, the process by which the proceedings are to be commenced is not pointed out, and, consequently, the manner of service is not provided for, and the subsequent proceedings will be found by the acting justice to be as various as the subjects of his jurisdiction. And it would be well that, in each particular case wherein he may be called to act, he should make himself familiar with the statutes relative thereto.

It has been held that it is not necessary that the complaint or information should be in writing, unless required by statute; but when so required, it is imperative. 3 B. & Cres., 649. If the particular statute do not require the information to be on oath, then that form is unnecessary, 3 B. & Cres., 648. 5 Dowl. & R., 558, though the addition of that form will not prejudice. 1 Saund., 262, note 1. But when it is required, then the justice cannot legally act unless such oath has been made. 4 D. & R., 734.

It has, however, been held that a conviction ought to be founded upon a preceding complaint or information. Ld. Raym., 509. And, in practice, it is usual to have it in writing, so as to enable the justice correctly to frame his summons or warrant thereon, and to limit the subsequent evidence.