fhall forfeit 100%. This qualification" is almost an equivalent to the 20l. per annum required in Henry the fixth's time and of this the justice must now make oath. Also it is provided by the act 5 Geo. II. that no practising attorney, folicitor, or proctor, shall be capable of acting as a justice of the peace. As the office of thefe juftices is conferred by the king, fo it fubfifts only during his pleasure; and is determinable, 1. By the demife of the crown; that is, in fix months after ". But if the fame justice is put in commiffion by the fucceffor, he fhall not be obliged to fue out a new dedimus, or to fwear to his qualification afresh : nor, by reafon of any new commission, to take the oaths more than once in the fame reign'. 2. By exprefs writ under the great feal, discharging any particular perfon from being any longer juftice. 3. By fuperfeding the commiffion by writ of fuperfedeas, which fufpends the power of all the juftices, but does not totally destroy it; feeing it may be revived again by another writ, called a procedendo. 4. By a new commission, which virtually, though filently, discharges all the former justices that are not included therein; for two commiffions cannot fubfift at once. 5. By acceffion of the office of sheriff or coroner', Formerly it was thought, that if a man was named in any commiffion of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer anfwering the defcription of the commiffion; but now it is provided, that, notwithstanding a new title of dignity, the juftice on whom it is conferred shall still continue a juftice. THE power, office, and duty of a juftice of the peace depend on his commiffion, and on the several statutes which have created objects of his jurifdiction. His commiffion, firft, empowers him fingly to conferve the peace; and there n See bishop Fleetwood's calculations in his chronicon preti fum. • Stat. 18 Geo. II. c. 20. P Stat. 1 Ann. c. 8. 4 Stat 1 Geo. III. c. 13. Z3 r Stat. 7 Geo. III. c. 9. t Stat. 1 Mar. ft. 1. c. 8. by by gives him all the power of the antient confervators at the common law, in fuppreffing riots and affrays, in taking fecurities for the peace, and in apprehending and commiting felons and other inferior criminals. It alfo empowers any two or more to hear and determine all felonies and other offences; which is the ground of their jurisdiction at seffions, of which more will be faid in it's proper place. And as to the powers given to one, two, or more justices by the feveral ftatutes, which from time to time have heaped upon them fuch an infinite variety of business, that few care to undertake, and fewer understand, the office; they are fuch and of fo great importance to the public, that the country is greatly obliged to any worthy magiftrate, that without finifter views of his own will engage in this troublesome service. And therefore, if a well-meaning juftice makes any undefigned flip in his practice, great lenity and indulgence are fhewn to him in the courts of law; and there are many ftatutes made to protect him in the upright discharge of his office ; which, among other privileges, prohibit fuch justices from being fued for any overfights without notice beforehand; and ftop all fuits begun, on tender made of fufficient amends. But, on the other hand, any malicious or tyrannical abuse of their office is ufually feverely punished; and all perfons who recover a verdict against a juftice, for any wilful or malicious injury, are entitled to double cofts. It is impoffible upon our prefent plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magiftrates. I muft therefore refer myself at present to fuch subsequent part of these commentaries, as will in their turns comprize almoft every ob ject of the juftices' jurifdiction: and in the mean time recommend to the ftudent the perufal of Mr Lambard's cire narcha, and Dr Burn's juftice of the peace; wherein he will find every thing relative to this fubject, both in antient and modern practice, collected with great care and accuracy, and difpofed in a moft clear and judicious method, w Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c. 44. I SHALL I SHALL next confider fome officers of lower rank than thofe which have gone before, and of more confined jurifdiction; but still such as are univerfally in ufe through every part of the kingdom. IV. FOURTHLY, then, of the conftable. The word conftable is frequently faid to be derived from the Saxon, koning-rapel, and to fignify the fupport of the king. But, as we borrowed the name as well as the office of conftable from the French, I am rather inclined to deduce it, with fir Henry Spelman and Dr Cowel, from that language: wherein it is plainly derived from the Latin comes ftabuli, an officer well known in the empire; fo called becaufe, like the great conftable of France, as well as the lord high constable of England, he was to regulate all matters of chivalry, tilts, tournaments, and feats of arms, which were performed on horfeback. This great office of lord high constable hath been difufed in England, except only upon great and folemn occafions, as the king's coronation and the like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII; as in France it was fuppreffed about a century after by an edict of Louis XIII *: but from his office, fays Lambard, this lower conflablefhip was at firft drawn and fetched, and is as it were a very finger of that hand. For the statute of Winchester, which first appoints them, di rects that, for the better keeping of the peace, two conftables in every hundred and franchise shall infpect all matters relating to arms and armour. CONSTABLES are of two forts, high conftables, and petty conftables. The former were first ordained by the statute of Winchester, as before-mentioned; are appointed at the court leets of the franchise or hundred over which they prefide, or, in default of that, by the juftices at their quarter feffions; and are removable by the fame authority that appoints them 2. The petty conftables are inferior officers in every town and parish, fubordinate to the high conftable Philip's life of Pole. ii. 111. Y of conftables. 5. Z 4 2 13 Edw. I. c. 6. of BOOK I. of the hundred, firft inftituted about the reign of Edw. III. These petty constables have two offices united in them; the one antient, the other modern. Their antient office is that of headborough, tithing-man, or borfholder; of whom we formerly spoke, and who are as antient as the time of king Alfred: their more modern office is that of conftable merely; which was appointed (as was obferved) fo lately as the reign of Edward III, in order to aflift the high conftable. And in general the antient headboroughs, tithing-men, and borfholders, were made ufe of to ferve as petty constables; though not fo generally, but that in many places they still continue diftinct officers from the conftable. They are all chofen by the jury at the court leet; or if no court leet be held, are appointed by two justices of the peace *, THE general duty of all conftables, both high and petty, as well as of the other officers, is to keep the king's peace in their feveral diftricts; and to that purpofe they are armed with very large powers, of arrefting, and imprisoning, of breaking open houfes, and the like: of the extent of which powers, confidering what manner of men are for the most part put into thefe offices, it is perhaps very well that they are generally kept in ignorance. One of their principal duties, arifing from the ftatute of Winchester, which appoints them, is to keep watch and ward in their refpective jurisdictions. Ward, guard, or cuftodia, is chiefly applied to the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the dif cretion of the juftices of the peace and the conftable: the hundred being however anfwerable for all robberies committed therein, by day light, for having kept negligent guard. Watch is properly applicable to the night only, (being called among our Teutonic ancestors wacht or wala) and it begins at the time when ward ends, and ends when that begins: for, by the statute of Winchester, in walled towns the gates fhall be closed from sunsetting to sunrising, and watch fhall be kept in every borough and town, efpecially in the fummer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. The constable may appoint watchmen, at his difcretion, regulated by the custom of the place; and thefe, being his depu ties, have for the time being the authority of their principal. But, with regard to the infinite number of other minute duties, that are laid upon conftables by a diverfity of ftatutes, I must again refer to Mr Lambard and Dr Burn; in whose compilations may be alfo feen, what powers and duties belong to the constable or tithing-man indifferently, and what to the constable only for the constable may do whatever the tithing-man may; but it does not hold e converfo, the tithingman not having an equal power with the conftable. V. We are next to confider the furveyors of the highways. Every parish is bound of common right to keep the high roads, that go through it, in good and fufficient repair; unless by reafon of the tenure of lands, or otherwise, this care is configned to fome particular private perfon. From this burthen no man was exempt by our antient laws, whatever other immunities he might enjoy: this being part of the trinoda neceffitas, to which every man's eftate was subject; viz. expeditio contra hoftem, arcium conftructio, et pontium reparatio. For, though the reparation of bridges only is expreffed, yet that of roads alfo must be understood; as in the Roman law, ad inftructiones reparationefque itinerum et pontium, nullum genus hominum, nulliufque dignitatis ac venerationis meritis, ceffare oportet, And indeed now, for the most part, the care of the roads only feems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by ftatute 22 Hen. VIII. c. 5. If the parifh neglected these repairs, they might formerly, as they may ftill, be indicted for such their neglect; but it was not then incumbent on any particular officer to call the parifh together, and fet them upon this work; for which reafon by the ftatute |