14 & 15 Vict. c. 55, s. 9.

That it shall be lawful for the justices of the peace at their general or quarter sessions, &c., notice being given at the preceding quarter sessions that a motion will be made for such purpose, and the council or other governing body in any borough in England and Wales from time to time, if they see fit so to do, to recommend to one of Her Majesty's principal Secretaries of State that the clerk of the peace, the clerk of special and petty sessions, and the clerks of the justices of the peace within their several jurisdictions, or any of such clerks as aforesaid be paid by salaries in lieu of fees and other payments, or where any such clerks are for the time being paid by salaries by virtue of any order made under this act, or otherwise, to recommend that the amounts of all or any of the salaries for the time being payable be reconsidered, or that all or any of such clerks for the time being paid by salaries be paid by fees in lieu of salary, and where payment by salary in lieu of fees, or the reconsideration of the amounts of any salaries is recommended, to state the amount of salary which in the opinion of such justices, council, or governing body should in each case be paid, and every such recommendation being signed by the chairman of the court of general or quarter sessions, or the mayor or other head officer of the borough shall be transmitted to the Secretary of State; and it shall be lawful for such Secretary of State, when any such recommendation is so made to him, by order under his hand, if he so think fit, to direct that all or any of the clerks, to which such recommendation refers, be paid by salary, and to fix the amount of salary to be so paid, or vary the amount of salary for the time being payable to any such clerk, or to direct that any such clerk for the time being paid by salary be paid by fees in lieu of salary; and such Secretary of State shall cause copies of every order made under this enactment affecting any clerk of the peace or any clerks of special sessions, or petty sessions, or clerks to the justices within the district of any clerk of the peace to be transmitted to such clerk of the peace, to be by him distributed where occasion shall require to such other clerks as aforesaid; and the salary for the time being payable to any such clerk under any such order shall be paid out of any county rate, or rate in the nature of a county rate: provided, also, that no order shall be made in pursuance of any recommendation of the council, or governing body of any borough, in relation to the mode of payment or the amount of salary of any such clerk other than the clerk of the peace for such borough, unless the justices of such borough, at a meeting of such justices, approve of such recommendation, and such approval be certified to such Secretary of State under the hand of the chairman of such meeting.

Section 10 then provides that certain descriptions of business may be excepted out of the

salary. Section 11 directs that where a clerk is Fees to the paid by salary in lieu of fees, the latter are to clerk. be paid to the county treasurer, in aid of the county rate, or, in a borough, to the treasurer, in aid of the borough fund, and the clerk is duly to account for them.

The act then, by section 12, enacts, that where a clerk is thus paid by salary, any justice or justices before whom any proceedings is had wherein a fee is payable, which should be accounted for by the elerk, may remit such fee in whole or in part, for poverty, or other reasonable cause, in their or his discretion, making an entry of all such fees remitted, with the cause

thereof.

Before the passing of this statute, it was to be regretted that there were no means of remunerating the clerk to the justices by a fixed salary, instead of fees; much inconvenience and detriment to the cause of justice often arose out of the system; magistrates frequently found themselves fettered in their decisions by the necessity of exacting the clerk's fees, and they were often compelled to visit parties with a pecuniary infliction because they could not, in justice to their clerk, deprive him of his remuneration. In paying this functionary by a fixed salary, the hands of the justices are left unfettered; the justices have a power to excuse, in fitting cases, the payment of fees; the odium which often attaches personally to the clerk for demanding that which, after all, is fairly his due, is removed; his remuneration is paid upon a more satisfactory and certain basis, and the administration of justice by magistrates is freed of a system which is daily becoming more obnoxious in public opinion. It is to be hoped that powers so wisely bestowed upon justices will not be suffered to remain dormant and unexercised.

Study of the law by justices.

Although the justices will do well in all cases of doubt involving any question of law or practice, to seek the advice of their clerk and act upon it, no magistrate should be so little informed upon the law which he is called upon to administer, as to be entirely dependent upon this functionary for assistance; nor can such assistance as he may receive from this quarter be in any way an excuse for his not storing his mind with at least the ordinary principles of law, and the rules of evidence. No gentleman ought for an instant to think of acting as a justice of the peace, who has not furnished his mind to a certain extent with a fair share of legal learning. To be entirely dependent upon his clerk for legal information, is to be a mere automaton-an impediment in the way of the administration of justice, rather than otherwise, and we can easily conceive how perfectly embarrassing and distressing must be the position of such a magistrate, when sitting to adjudicate in the presence of litigant parties, who are assisted by their counsel or attorneys. In such a case, although with the aid of his clerk, he will, no doubt, arrive at a just conclusion, yet that ignorance of the ordinary principles of law or the rules of evidence, which at almost every moment will drive him to his clerk for information, will expose him to the deteriorating criticisms of the suitors, and will infinitely detract from the influence and importance of his judgments. The magistrate who desires to realize the full influence and utility of his office, will have prepared himself by some amount of legal study, for the post which he occupies. With the rules of evidence more especially, he should be familiar, since, notwithstanding he has his clerk to refer to, it is the function of the justice alone to regulate the course of proceeding in any given case, and to keep in order and to

the point, the litigant parties who are before him; without, therefore, a general knowledge of the rules of law and evidence, it is morally impossible that a justice can preside at the hearing of a case with either satisfaction to himself or to the suitors; without such a knowlege, no regularity of proceeding is at all likely to be observed (unless, indeed, the clerk usurps a function which does not properly belong to him, and becomes himself the magistrate), and the justice loses that which of all things it is necessary he should obtain, namely, the confidence and respect of the suitors. We would, therefore, strongly counsel justices, before entering upon the active duties of their office, to consult and render themselves familiar with some of those useful works devoted to the explanation of our criminal and parish law, and the subjects generally brought under the cognizance of magistrates, and amongst others we may refer to Russell on Crimes, Burn's Justice, and the three recent acts for the administration of justice by justices of the peace, namely, the 11 & 12 Vict. cc. 42, 43, and 44, wherein an immense body of necessary and practical information will be found collected.

CHAPTER IV.

DUTIES AT PETTY AND SPECIAL SESSIONS. HOW TO ACT WHEN INTERESTED IN THE SUBJECT; STRICT IMPARTIALITY, &c.

THERE are comparatively few duties which appertain to the office of a justice of the peace which he is not called upon to perform, either as a member of the Court of Quarter Sessions or

Duties of justices in petty or special sessions.

as a magistrate sitting in petty or special sessions. Occasionally it occurs that in his individual and ministerial capacity, a justice is required to back warrants of apprehension, to take declarations or administer oaths, to grant summonses, suppress riots, and perform other special duties pointed out by particular acts of Parliament; but these duties, for the most part, simple in themselves and readily comprehended, it will be unnecessary more particularly now to refer to, since they will be found circumstantially defined in those various enactments to which, on an occasion arising for their performance, reference should be made. With these general remarks we will at present proceed to consider somewhat in detail the duties of justices as they are to be performed in petty and special sessions.

Under this head we purpose, for the convenience of arrangement, including all the functions which a justice either must or may perform at a petty or special sessions; for although there are many duties, such as the taking of depositions prior to a committal for trial, which need not be performed at a petty sessions, yet as the rules governing the procedure of a justice will apply alike whether he act in concert with others or entirely alone, no useful purpose will be accomplished by making a distinction which the subject does not necessarily require.

We have before pointed out the difference which exists between a petty and a special sessions, and the peculiar features of each; and as these distinctions apply rather to the purposes for which these sessions are held, and the mode by which they are brought into existence, than the form of proceeding during their progress, the two descriptions of procedure will be treated as in all respects the same, unless some special reference be made to denote that the one is referred to and not the other. It will be con