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merely directory. (f) And it has been held that in construing the acts which mention justices in or near the place where the offense was committed, any justice of the county may take cognizance of the matter. (g) Where a statute directed any two justices of the county [*492] to make an * inquiry, and if certain evidence was obtained, empowered "such justices" to make an order, it was held that both acts must be done by the same two magistrates. (h)

7. Exercise of authority whether discretionary or imperative.

Where magistrates are called upon to take cognizance of a matter within their jurisdiction, though their duty is sometimes discretionary it is in most cases imperative; (i) and generally where a statute directs the doing of a thing for the sake of justice, or the public good, the word may is the same as the word shall, and the justices are compellable to act under it. (k) But the words are imperative only when the clause in the statute is for the public benefit. (7) Nor are they to be so construed where, from other parts of the act, it appears the legislature intended otherwise. (m) The meaning of the duty of a magistrate being discretionary is not, however, that he is at liberty to act, or refuse to act, according to his own private opinion or caprice, but he must be guided by the rules of law and reason. (n) A great judge has said, "Discretionary power, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor-it must not be arbitrary, vague and fanciful, but legal and regular." () And another, "The discretion to be exercised by a court or a judge, is not a wild, but a sound discretion, and to be confined within those limits within which an honest. man, competent to discharge the duties of his office, ought to confine himself." (p)

The court of queen's bench is very unwilling to compel magistrates to act, where they have a discretion, and have exercised it by declining to act, after an investigation of the case in which they are called upon to do so. (2)

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(2) 2 Chit. Rep., 251. 5 Barn. & Ald., 691. 2 Dow. & Ry., 176, n.

(m) 7 Barn. & Cress., 278. 5 Burn, 870. (n) 1 Nun & Walsh, 45. Smythe, 11. Rook's case, 5 Co., 100. 8 How. St. Tr., 55, n.

(0) Per Lord Mansfield, Rex v. Willis, 4 Bur., 2539.

(p) Per L. Kenyon, Wilson v. Rastall, 4 T. R., 737.

(q) Smythe, 11. 3 Bur., 1716. 1 Bur., 556. 5 Barn. & Cress., 239. 7 Dow. & Ry., 86.

And it is a principle recognized in numerous cases, that where a magistrate entertains a reasonable doubt of his jurisdiction, he will not be compelled to do an act which may, perhaps, subject him to an action. ()

If justices decline to act, in a case where they are bound to do so, the court of queen's bench, in England, will issue a man

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damus directing them to act. ($) It is presumed a manda- [*493 ] mus would also be granted by the supreme court of this

state, in a proper case, to compel a justice of the peace to perform any official duty which he ought to perform.

It is a general rule that consent will not confer jurisdiction. And it has been held that this rule applies as well to consent in creating a tribunal, as to consent in submitting a matter to a subsisting tribunal which the law has excluded from its cognizance (t)

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OF THE DUTY AND AUTHORITY OF JUSTICES OF THE PEACE, IN CRIMINAL CASES.

1. JUSTICES ACT EITHER MINISTERIALLY OR JUDICIALLY.

2. NOT TO ACT IN THEIR OWN CASE.

3. DUTY AND AUTHORITY AS CONSERVATORS OF THE PEACE.

4. AUTHORITY UNDER LAWS OF THE UNITED STATES.

5. DUTY AS TO STOLEN PROPERTY.

6. DUTY AND AUTHORITY IN RESPECT TO SEARCH WARRANTS.

7. CRIMINAL CONTEMPTS.

8. TAKING DYING DECLARATIONS.

9. RIGHT TO SEARCH PRISONERS.

10. DUTY UNDER THE ACT MORE EFFECTUALLY TO SUPPRESS GAMBLING.

THE duty and authority of justices of the peace in this state, are derived, in some degree, from the common law; but they depend principally upon the several statutes which have created objects of their jurisdiction, defined their powers, or imposed duties upon them. The duties of justices of the peace are arduous, and of various kinds. Some of their minor, or incidental duties will be pointed out in the present chapter.

(r) Rex v. Broderip, 7 Dow. & Ry., 861. 5 Barn. & Cress., 239, 485. 2 Dow. & Ry., 689.

(8) Smythe, 11, 12
(t) 1 Hill, 343.

1. Justices act either ministerially or judicially.

They act ministerially, in preserving the peace, hearing complants against offenders, issuing warrants thereon, examining the informant and his witnesses and taking their examinations, binding over the parties and witnesses to prosecute and give evidence, bailing the supposed offender, or committing him for trial, &c. And they act judicially in cases where they are authorized, either singly or as members of courts of special sessions, to try persons charged with criminal offenses, and to convict and punish them if guilty. Where a justice acts ministerially rather than judicially, he is liable to an action at the suit of the party injured, if he acts illegally; otherwise where he acts judicially. (a)

2. Not to act in their own case.

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Regularly a justice of the peace ought not to execute his office in his own case, but should cause the offenders to be carried before some other justice, or desire the aid of some other justice, being present. () This is a universal and eternal principle of natural justice, [* 495] and recognized by many authorities. (c) It pervades every branch of the law, and is so fundamental a principle as not to be overruled by any prescription; for where a man is a party he can not be a judge indifferent; and no rule of law or reason is better established than that a judge ought to stand indifferent. (d) And it is certain that every proceeding which bears upon its face the objection that the same person was both party and judge, is absolutely void. (e)

In one case in which a criminal information was moved for, against a justice of the peace, who, upon a complaint preferred before him in his magisterial capacity by his own bailiff, convicted and sentenced to punishment a laborer employed on his own farm, for refusal to perform his work according to his contract, the court of king's bench took occasion to animadvert very strongly upon such conduct; declaring that it was a most abusive interpretation of the law that a man should presume to erect himself as a criminal judge in deciding upon an offense against himself." (f) In the case of the Mayor of Hereford (g) it is said by Lord Holt that the mayor was punished

(a) See ante, p., 480.

(b) 3 Burn., 567. Dalt., ch. 173. Co. Lit., 377, b. (c) Smythe, 16. 3 Black. Com., 299. í Salk., 396. 4 T. R., 71.

(d) 1 Nun & Walsh, 65. Co. Lit., 141, a. S

Co., 118. Hob., 87. Palm., 25. 2 Salk., 607. 12 Mod., 687. 1 Str., 640.

(e) 12 Mod., 687. Salk., 398, 607. Palm.. 25. (f) 14 East., 608.

(g) 2 Ld. Raym., 766; S. C. Salk., 396.

for sitting in judgment in a cause where he was interested, though he, by the charter, was sole judge of the court. In another case, Abbott, Ch. J., said, we think it the safer course to hold that magis. trates should not interfere in cases where they are interested. "

(1) But it is said to be in some cases justifiable for a justice to act in his own cause, as when he shall be assaulted or, (in the execution of his office especially), shall be abused to his face, and no other justice present with him; then it is said he may commit the offender until he shall find sureties for the peace, or for his good behavior, as the case may require. (a) But the right to exercise this power, by a justice, in this state, except where it is expressly given to him, may well be doubted, unless the offense amounts to a contempt, such as is defined by the statute. (2 Rev. Stat., 273, 4.) It is inconsistent with the doctrine of Chief Justice Pratt in the case of The King v. Wilkes. (k) He there gives it as his opinion that if a magistrate has a particular knowledge that a person has committed an offense, it is not sufficient ground for him to commit the criminal; but in that case he is rather a witness than a magistrate, and ought to make oath of the fact before some other magistrate; who should thereupon act the official part, by granting a warrant to apprehend the offender; it being more fit that the accuser should appear as a witness than * act as a magistrate. "This advice, " observes Mr. [* 496] Davis, "is so salutary that no arguments seem necessary to recommend it to the magistrates of this country." (7)

3. Duty and authority as conservators of the peace.

By virtue of his authority as a conservator of the peace, a justice may apprehend, or cause to be apprehended, by word only, any person committing a felony, or breach of the peace, in his presence. (m) So, upon his own personal view of offenses committed against the act of 1824, in amendment of the "act for suppressing immorality," a justice has power to order an offender into the custody of a constable for safe keeping (without issuing a warrant), until the offender can be tried. (n) And in suppressing riots, or affrays, he possesses a similar power. (0) But it is said that he can not, without a warrant, authorize the arrest of any person for an affray out of his view. (p) Yet it seems clear, that in such case, he may make his warrant to

(h) 4 Dow. Ry. Mag. Ca., 35.

(i) 3 Bac. Abr., 800, 801. See 1 R. S., 635. (k) 2 Wils., 158.

(2) Davis's Just., 10.

(m) 1 Hale's P. C., 86. 2 R, S., 705, § 8.
(n) 3 Wend., 253.

(0) 1 Russ. on Cr., 255, 256, 273.

(p) Id., 274.

bring the offender before him, in order to compel him to find sureties for the peace. (2) A justice is not only empowered, but is also bound, at his peril, to use his best endeavors to part an affray which happens in his presence; and not only to do his utmost himself, but also to demand the assistance of others, which they are bound to render. And it seems, also, that if there be an affray in a house, a justice or constable may break open the doors to preserve the peace; and if affrayers fly to a house, and he follow with fresh suit, he may break open the doors to take them. (r) (1)

It is a general rule that whenever an arrest by a constable, of his own authority, and without warrant, is either permitted or enjoined by law, in every such case, a fortiori, such arrest by a justice of the peace in person is also permitted or enjoined. (s)

A magistrate is not authorized to arrest and hold in custody a known person, amenable to the law, until another person shall have come to prefer a charge against him. There may be cases of flagrant character and emergent circumstances which will warrant a justice in arresting a person upon whom a strong suspicion of a crime attaches, and who is likely to escape from justice altogether, unless prompely apprehended; but a magistrate has no right to detain a known person to answer a charge of misdemeanor, verbally intimated to him, without a regular complaint. (t) (2)

(q) Id., 273. (r) Id, 274.

(8) 2 Hawk. P. C., ch. 13, § 13. Dalt., ch. 8, § 6 1 Nun & Walsh, 115, 136.

(t) Per Crampton, J., in Atkinson v. Carty, 1 J. & Sy., 387. See also, Rex v. Birnie, 1 Moo. & Rob., 160. 7 Car. & P., 485. 6 Dow. & Ry.,

624.

(1) A magistrate may arrest for an affray, in his own view; but not after it is over. (McKay's Case, 5 C. H. Rec., 95.) So a magistrate, who witnesses an affray, has power to issue a warrant for the arrest of the offenders, of his own motion, at any time within twenty-four hours after the occurrence. (Sands v. Benedict, 2 Hun, 479; S. C., 5 T. & C., 9.) But a justice of the peace, for a misdemeanor, committed in his view, can not pursue the offender, and arrest him outside of the justice's jurisdiction. (Butolph v. Blust, 5 Lans., 84; S. C., 41 How. Pr., 481.)

Magistrate may commit by verbal or written order, for offenses committed in his presence.]-When a crime is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest. (Code Cr. Pro., § 182.)

Order can not be delayed. McKay's case, 3 C. H. Rec., 95. See Butolph v. Blust, 5 Lans., 84; Sands v. Benedict, 2 Hun, 479; Lindsay v. Peo., 67 Barb., 548.

(2) Yet a justice, presiding at a town meeting, may make a parol order for the removal of a disorderly person. (Parsons v, Brainard, 17 Wend., 522.)

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