JUSTICE OF THE PEACE FOR

IRELAND

CHAPTER I.

APPOINTMENT OF JUSTICES OF THE PEACE.

JUSTICES of the Peace are first styled by that appellation in the statute 36 Edw. III. c. 12, 1363. In Ireland the first statute in which they are mentioned is 28 Hen. VI. c. 2, 1459.

The method of the appointment of magistrates is this:

(1) Counties. Justices are usually appointed by the Lord Chancellor, on the recommendation of the Lieutenant of the County. They can be appointed by the Lord Chancellor on his own initiative. The proposed recipient of the office receives the following letter:

LORD CHANCELLOR'S SECRETARY'S OFFICE,
FOUR COURTS, DUBLIN.

SIR,-I am directed to inform you that the Lord Chancellor, on the recommendation of His Majesty's Lieutenant of the County of

has signed the warrant for your appointment to the Magistracy of that County.

The Commission of the Peace will be issued to you on the understanding that, without receiving further sanction from the Lord Chancellor, you will only attend the Petty Sessions of the district of

Application for the Commission should be made to this office, accompanied by payment (which may be by cheque) of the fees, which amount to £2.—I am, &c.

Magistrates should note the understanding above mentioned. Attendance at other Petty Sessions districts is not always attributed to disinterested zeal.

All magistrates, whether ex officio or appointed by commission, must, before acting as magistrates, qualify by taking the magisterial oaths, as prescribed by the Promissory Oaths Act, 1868 and 1871, and the Oaths Act, 1888 and 1909.

"dedimus" has now fallen into desuetude.

The document called a "dedimus

OATHS TO BE TAKEN AND MANNER OF TAKING SAME.

By the Promissory Oaths Act, 1868 (31 & 32 Vict. c. 72), justices of the peace are required to take the Oath of Allegiance and the Judicial Oath.

These oaths are as follows:

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I. Oath of Allegiance.

I, A. B., do swear by Almighty God that I will be faithful and bear true Allegiance to His Majesty, King George the Fifth, His Heirs and Successors, according to Law. So help me, God.

II. The Judicial Oath.

(Signature.)

I, A. B., do swear by Almighty God that I will well and truly serve Our Sovereign Lord, King George the Fifth, in the Office of Justice of the Peace for the and that I will do right to all manner of people after the Laws and Usages of this Realm without Fear or Favour or Ill-will. So help me, God.

(Signature.)

The Promissory Oaths Act, 1871 (34 & 35 Vict. c. 48, s. 2), specifies how these oaths may be taken (see, however, the provisions of the Oaths Act, 1909, as to the optional manner of taking the oath), and as regards Ireland they may be taken as follows:

Before such persons as His Majesty may from time to time appoint. Or, before the Lord Chancellor, or the Court of Chancery, or the King's Bench, in open Court, before one or more of the judges of such Court.

Or, at the Quarter Sessions of the Peace for the County in which the person taking the oaths acts as justice. (See 31 & 32 Vict. c. 72; 34 & 35 Vict. c. 48; 51 & 52 Vict. c 46.)

Pursuant to the provisions in that behalf of sect. 2 of the Promissory Oaths Act, 1871, His Majesty has, by Royal Letter, been pleased to direct that the following persons shall, in addition to the foregoing, and as hereinafter mentioned, be authorised and appointed to administer to justices of the peace the oaths required by law to be taken by justices of the peace, viz. the Inspector-General, the Deputy Inspector-General, the Assistant Inspectors-General of the Royal Irish Constabulary, and the Clerk of the Crown and Hanaper in respect of all Ireland.

The Lieutenant of each county, in respect of his said county.

The Divisional Justices in and for the Police District of Dublin Metropolis when sitting in Court, in respect of the county and city of Dublin.

Resident magistrates appointed in pursuance of the Act 6 Will. IV., sitting at Petty Sessions in respect of the several counties and boroughs in which by the said Act they are authorised and empowered to act as justices of the peace. This includes all counties and boroughs adjoining the particular county in which such resident magistrates may be stationed.

New magistrates, appointed by ordinary Commission of the Peace, can be sworn in before the persons authorised as above mentioned, on production of their commission.

The chairmen of county and district councils, and chairmen of town commissioners-who become magistrates under the Local Government Act, for the term of and by virtue of their office, and who are not named

in the ordinary Commissions of the Peace-can also be sworn in as magistrates before the persons authorised as above mentioned, on production of a certificate from the secretary or clerk of the council that such person has been elected chairman, and has made the declaration accepting office. Such certificate, save in the case of the chairman of a county council, should also state whether the population of the district according to the last published census is above or below 5000. The certificate and signed copy of the oath should be transmitted at the earliest opportunity to the Clerk of the Crown and Hanaper, Four Courts, Dublin.

(2) Boroughs.-Magistrates for boroughs are appointed pursuant to the provisions of sect. 157 of 3 & 4 Vict. c. 108 (Municipal Corporations Act).

As regards Galway and Carrickfergus, mentioned in this section, the separate commission of the peace has been abolished, and the theretofore existing borough magistrates became county magistrates. There are six county boroughs, and magistrates of the adjoining counties thereto cannot adjudicate within them. These are Cork, Dublin, Belfast, Londonderry, Limerick, and Waterford.

As regards the boroughs of Clonmel, Kilkenny, Drogheda, and Sligo, county magistrates have concurrent jurisdiction with the borough magistrates.

(3) Ex officio magistrates under the Local Government (Ireland) Act, 1898.

(a) The chairman of a county council becomes a magistrate for the county.

(b) The chairmen of urban and rural district councils with a population of over 5000 also become county magistrates, but, except when sitting in Quarter or General Sessions, shall act only in the Petty Sessions district or districts comprising the district of their council, or any part of that district.

The chairman of a rural county district with a population of under 5000 does not become a magistrate under the Act.

The chairman of the council of an urban county district with a population of under 5000, and also the chairman of commissioners of any town, becomes a magistrate with the limited jurisdiction conferred by sect. 29 of the Towns Improvement Act, with the same powers as if he had been appointed by the Lord Chancellor under sect. 29 of the Towns Improvement Act.

A chairman of town commissioners who, by virtue of sect. 26 (2) of the Local Government Act (Ireland), 1898, becomes a justice of the peace, is not a duly qualified justice of the peace for the purposes of taking part in the General Licensing Quarter Sessions for the division of the county [R. (Gilchrist) v. Tyrone JJ., 34 I. L. T. R. 9].

CHAPTER II.

OF THE LIMITATION OF THE JURISDICTION OF JUSTICES.

SECTION I.-OF TITLE.

"THERE is no doubt," says the Lord Chief Baron, "of the ordinary rule that upon a bona fide claim of title to land being made before justices, their jurisdiction ceases. It does not arise from any legislative enactment, but is an old legal maxim, applicable to summary trials in general, which has been so generally acted on for ages, that it is assumed to be intended to be applied by every Act relating to such matters, though not specifically mentioned, unless a contrary intention is clearly indicated" (Johnston v. Meldon, 30 L. R. I. 27).

This is generally called a bona fide question of title.

The word "bond fide" has, not unjustly, acquired a sinister reputation under the Licensing Acts. When used as a compound adjective, it means "honest, genuine, not make-believe."

The Reports are full of cases upon the subject, and there is no intention in this chapter to attempt to guide magistrates through a wilderness of single instances. But the wearied pilgrim through many cases cannot fail to be struck by the fact that magistrates most frequently go wrong in two ways-viz. either by treating the matter as some preliminary objection hardly worth considering seriously, or by summarily overruling the point, and proceeding to attract jurisdiction to themselves when they do not in reality possess it. The proper manner in which a question of title, when raised, should be treated is this

Magistrates should consider it as a separate and distinct issue in itself, and should carefully decide it before they proceed to adjudicate upon the case before them. The question to be considered is: the genuineness and honesty of the question of title which is raised.

In the words of Baron Dowse, "The justices should try whether the defendant entertained an honest and reasonable belief that he had a right to act as he did, and not to take it upon themselves to decide the question of right irrespective of the defendant's belief" (Matthews v. Carpenter, 16 L. R. I. 421).

And he proceeds: "The justices thought the defendant had no right to act as he did, and they disregarded his belief upon the subject."

Lord Blackburn says (R. v. Stimpson, 4 B. & S. 309): "The general rule of law applicable to justices exercising summary jurisdiction is, that they are not to convict where a real question as to the right of property is raised between the parties. Then their jurisdiction ceases and the question of right must be tried by a higher tribunal. For the justices by convicting would be settling a question of property, conclusively and without remedy if their decision happened to be wrong." He further says: "The question for us (i.e. the King's Bench Judges) is,

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whether there was reasonable evidence on which the justices could find that a claim of title was not bona fide set up by the defendants. I am of opinion there was not; and the conviction, therefore, must be quashed."

In Johnston v. Meldon (supra), the Lord Chief Baron refers to the cases of R. v. Cridland, 7 E. & B. 863 and R. v. Stimpson (supra), and continues: "I may add that the judgments in the case of Queen (Gillen) v. Justices of Donegal (5 Ir. Jur., N.S., 185), recognise the application of the general principle to the Act before us here (5 & 6 Vict. c. 106); but, irrespectively of the dicta in that case, nothing short of a decision binding in law upon this Court would induce me to hold that this rule, well described by Crompton, J., as a great principle of law,' did not apply to titles to fisheries; which especially as here, where the title is alleged to be in a person not a riparian proprietor, necessarily depend upon an investigation of facts for a long antecedent period, and usually involve abstruse questions of law absolutely beyond the competence of justices. The rule is that no Court of limited jurisdiction can give itself jurisdiction by any decision on a point on which the limits of its jurisdiction depend, and which point is collateral to the merits of the case.'

The rule here alluded to is the rule laid down by Coleridge, J., in Bunbury v. Fuller, 9 Exch. 40.

Three matters should be noted

(1) A bona fide claim of a right-of-way ousts the jurisdiction of magistrates (Cole v. Miles, 57 L. J. M. C. 132).

(2) Where an assault is proved before magistrates to have arisen out of an assertion of title to lands, or any interest therein, or accruing therefrom, their jurisdiction is ousted. And the word "title" (in the proviso to sect. 46, 24 & 25 Vict. c. 100) governs not only the word "land" but also the words " any interest therein or accruing therefrom."

(3) Magistrates cannot proceed to inquire into, and determine by

summary conviction, any excess of force alleged to have been used in the assertion of title under this section (R. v. Pearson, L. R. 5 Q.B. 237).

Finding of facts.-It sometimes happens that magistrates are empowered by statute to ascertain a certain fact. In such cases, even though their decision necessarily involves a question of title, nevertheless their jurisdiction exists. For example, in the case of Williams v. Adams (2 B. & S. 312), on the hearing of a complaint under 5 & 6 Will. IV. c. 50, for leaving rubbish on a highway, the defendant, who was owner of the land on both sides of the road, claimed that the soil was his, subject only to a private right-of-way; and it was contended that this raised a question of title which the justices could not decide. It was held that this was not so, for the title of the land was not disputed, but only the question of highway or no highway, which was the question for the justices to decide.

So also in ex parte Vaughan (L. R. 2 Q.B. 114), Mellor, J., points out: "If there was evidence to found jurisdiction, and the question of title is a necessary ingredient in the inquiry, the justices must go on, and determine the question of title. But that is distinguishable from the