the sheriffs down to the preceding reign, were chosen by the freeholders at large; agreeably to that principle of popular election in the choice of magistrates, which pervaded the Anglo-Saxon institutions, and seems from the earliest times to have characterized the policy of all those northern nations from which they emanated (a). The act of 1 Edw. 3, (b) at the same time that it removed the choice from the people, by ordaining that thenceforth in every county certain persons should be assigned, i. e. by commission, to keep the peace, insured also a more regular appointment of officers for that purpose throughout the kingdom. The persons so assigned under the authority of that law acquired, about thirty-five years afterwards, the legal title of justices of the peace; by which appellation they were first styled in a statute of the thirty-sixth year of Edw. 3 (c).

Their power and duty, however, at first, was simply that of guarding and taking security for the preservation of the peace; nor was it till a considerable time had elapsed from their first appointment by Edward 3, that they were invested with any judicial authority in relation to other statutory offences, nor until a much later period still, that a discretionary power of conviction was vested in individual justices, without the intervention of a jury or any popular form of trial.

For some time following the first of these periods, when any new statute was passed for the regulation of trade or police, which required particular provisions to be made for its administration, the method was by the statute itself, either to assign the execution of it to the sheriffs of counties, and mayors or other head-officers in boroughs, which was most usual in matters merely affecting the police, or in other cases to declare, that commissioners,

(a) Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt. Tacit. de Mor. Ger.

(b) 1 Edw. 3, st. 2, c. 16.

(c) See the observations of the court upon this subject in R. v. Dunn, 12 A. & E. 617.

sometimes also styled justices, should be appointed for carrying the act into execution; this was more frequently the case in those penal statutes which affected peculiar trades, fisheries, and the like; and such commissioners were either nominated by the act itself, or appointed by commission from the crown, under the authority of the act. By degrees, however, the execution of such penal laws was, by their respective provisions, more frequently vested in the justices of peace, by that denomination; who, being in general the persons best qualified by discretion and knowledge in each district, might, without the trouble of a fresh selection, be most eligibly fixed upon for the performance of that duty; and the former method, at the same time, was gradually disused; so that, towards the middle of the reign of Henry 4, the practice of appointing commissioners for particular acts had almost entirely given way to that of charging the justices of peace with the execution of them (d).

Still, however, their power, in regard to the manner of executing that duty, was restrained to the only mode of judicial inquiry known to the common law, and to which alone a general authority to hear and determine offences could refer. Neither the acts above alluded to, which were to be executed by special justices, nor, at first, those which were referred to the justices of peace by their name of office, contained any other direction as to the manner of their proceeding, than what was conveyed by the expressions authorizing them to hear and determine, or to examine and punish offences against the respective acts; which according to the general principles of law, implies only a power to proceed by the common law method of inquisition and verdict (e).

(d) Some instances, however, of what had formerly been general exist in later times; such, for example, are the Statute of Sewers (23 Hen. 8, c. 5), and the Land Drainage Act, 1861 (24 & 25 Vict.

c. 133), which are administered by special commissioners, appointed according to the provisions of those

acts.

(e) See 4 Co. 74, b, and the authorities there referred to.

The justices, therefore, were under the necessity of holding sessions and assembling jurors for the trial of the smaller offences. The trouble and expense of these meetings to the justices themselves, when there were but few in each county-as, in the thirty-fourth year of Edward 3, not more than eight in the county of Kent (ƒ) -was the occasion that they were not called sufficiently often for the number of offences which required to be disposed of; and therefore it was that the statute of 36 Edw. 3, st. 1, c. 12, commanded that they should be held at least four times in the year: for it is observable that neither this, nor the subsequent statutes, by which it is enforced, 12 Ric. 2, c. 10, and 2 Hen. 5, c. 4, restrain the times of holding the sessions to that number; and the latter expressly adds, "and more often if need be." However, as the justices were not enjoined absolutely to hold them, except at those times, and as the act 12 Ric. 2, c. 10, which assigned them wages for defraying their expenses at the sessions, only made provision for the four principal or quarter sessions, the effect was to limit the actual times of holding the sessions to those periods. As the offences subjected by various statutes to the cognizance of justices became more numerous, and particularly during the reign of Henry 7, when their number was vastly increased, their assembling once in each quarter of a year was found insufficient to afford the despatch, which the nature of those offences required; to provide a remedy for which, without introducing any new and extraordinary jurisdiction, or departing from the ancient mode of conviction by verdict, the statute 33 Hen. 8, c. 10, enacted, that at the Easter sessions, in every year, the justices should diligently peruse and study the statutes therein enumerated (comprehending, in fact, all those in the execution of which they had authority), and should then divide themselves according to hundreds, wapentakes, &c., assigning at least two to each division, who in their (f) Lamb. 33.

respective divisions should (six weeks before each of the general quarter sessions) hold a special sessions expressly for executing those statutes, at which they should inquire of the offences specified, either upon presentment, i.e., by indictment, previously found by the grand jury, or upon information by a private person; but, whether upon indictment or information, as the statute expressly takes notice, the party, previous to any punishment, was always supposed to be convicted by confession or verdict of twelve men; and the same statute contains regulations for impanelling the jury upon those occasions. The opposite inconvenience, however, resulting from this act, of calling the country together every six weeks for the special and general sessions, was very soon felt to be greater than the advantage proposed from it in the disposal of offences; and therefore, four years afterwards, it was repealed by another act, 37 Hen. 8, c. 7, for the reason expressly assigned, viz., "that the king's most loving subjects are much travailed, and otherwise encumbered, in coming and keeping of the said six-weeks' sessions, to their costs, charges, and unquietness;" and, by this latter act, the articles enumerated in the former were referred to the general quarter sessions, as before.

In order, therefore, to avoid the inconvenience of postponing the trial of small offences to the quarter sessions, and in very many cases of committing the party for the intermediate time,-or, on the other hand, of making too frequent calls upon the country, in assembling a jury at shorter intervals, there seems to have been no alternative, as those offences became more and more numerous, than that of entrusting to the justices, out of sessions, a power to hear and determine the matters themselves.

When this expedient was, for the first time, adopted by the legislature, it is not easy, on account of the ambiguous wording of some of the older statutes, to determine with precision. In very early times such a power had been conferred upon them in two cases, which seemed in their

nature to require a speedy interference; but, even in these, it was confined to their own view these are the cases of forcible entries, 12 Ric. 2, c. 2, and of riots, 13 Hen. 4, c. 7; in the latter of which, it may be remarked, this extraordinary jurisdiction is carefully limited by the urgency of the occasion, by which alone, therefore, it was probably thought to be justified; for it is there directed, that if the rioters had departed before the arrival of the justices, so that the view could not be had, they are then to inquire of the matter, not by themselves, but by means of a jury, which they are specially directed in that case to summon. One other instance also occurs of a power to convict without jury, but that was on confession of the party: viz., by the act of 2 Hen. 5, st. 1, c. 4, relating to labourers, which authorized them to examine labourers, &c., on their oath, and on their confession to punish them as if they were convict by inquest.

These two cases of view and confession seem to be the only clear instances in which justices of peace were empowered, in those early times, to inflict punishment upon their own inquiry and judgment. There are, indeed, two other statutes in which such an authority may perhaps be doubtfully inferred. The first is that of 17 Edw. 4, c. 4, against fraud in the making of tiles; which empowered the justices of peace," and every of them, by their discretion, as well by examination as otherwise, to inquire, hear, and determine the offences against that act;" from which large words Mr. Lambard classes this as one of the matters of which a single justice might take cognizance out of sessions, though not without stating a doubt whether the act would bear that construction. The other is the statute 11 Hen. 7, c. 15, against fraud by sheriffs, under-sheriffs, &c., in entering plaints in the county courts; which empowered any justice of the peace, on complaint of the party grieved, to examine the person complained of, "and if on such examination he shall be found in default, he shall be convict and attaint of the offence, without further examination