OF SESSIONS OF THE PEACE IN GENERAL.

Session of the Peace, what.]—THE term "Session of the Peace" is used to designate a sitting of justices of the peace for the execution of those powers which are confided to them by their commission or by charter (a), and by numerous statutes. The words " of the peace " are used to distinguish such a session from other sessions or sittings, as Session of Parliament, Court of Session in Scotland, and Session of Weights and Measures in London.

The jurisdiction in respect of which sessions of the peace may be holden, is determined by the pleasure of the crown, as expressed in the commission or charter of the justices. The commission of the peace

(a) Thus Edward the Fourth, by charter, granted to the manor of Havering atte Bower, being of ancient demesne of the crown of England, that the steward of the manor, and one of the discreetest tenants or inhabitants thereof, to be from time to time chosen by the tenants and inhabitants, and their successors, should be justices of the peace within the manor. See R. v. Mashiter, 6 Ad. & E. 153; 1 Nev. & P. 314, S.C.;

R. v. Sandford (Governors of), 1 N. & P. 328; and Weatherhead v. Drewry, 11 East, 175. But all powers and jurisdictions to try treasons, capital felonies, and all other criminal jurisdictions whatsoever, granted or confirmed by any law, statute, or charter, to any mayor, corporate officer, or chartered justice of the peace in any borough, were made to cease on 1 May, 1836, by 5 & 6 W. IV. c. 76, s. 107.

B

under which the magistrates of a county derive their powers, dates within the period of legal memory. In early times there were persons of weight and substance in each county, who were called Conservators of the Peace but the authority they enjoyed is unknown, and unquestionably they had no court of record in which they could act as judges. By 1 Ed. III. st. 2, c. 16, intituled, "Who shall be assigned Justices and Keepers of the Peace," it was directed "that in every county good men and lawful, which be no maintainers of evil quarrels in the country, shall be assigned to keep the peace;" but in what manner they were to maintain order, and how they were to execute the authority thus conferred, does not appear, though doubtless they were to take such measures for that object as the old conservators used (b). By 18 Ed. III. st. 2, c. 2, "two or three (c) the best of reputation in the counties shall be assigned keepers of the peace' by the king's commissions; and at what time need shall be, the same, with other wise men and learned in the law, shall be assigned by the king's commission to hear and determine felonies and trespasses done against the peace in the same counties, and to inflict punishment reasonably, according to law and reason, and the manner of the deed." But by stat. 34 Ed. III. c. 1, intituled, “ What sort of persons shall be justices of the peace, and what authority they shall have," it was directed that ،، one lord, with three or four of the most worthy, together with more learned in the law," should be assigned for keeping the peace; power" to take, arrest, and chastise" offenders, was given; and also power "to hear and determine at the king's suit all manner of felonies and trespasses done in the county," according to the laws and customs of the realm.

This statute is said by Lord Holt to have made justices of peace complete judges (d); and in pursuance of its direction, the commissions of the peace issue, under which the magistrates for counties act in the several sessions which we shall presently consider.

The commissions of the peace in general extend over the whole county for which they are granted. But the crown, by its prerogative, may grant such commission for any particular district of a county, either with concurrent or exclusive powers. It may also confer it on as many persons as it thinks proper, to act as justices in and for each of the boroughs and counties of cities and towns named in Schedule (A) of the Municipal Corporation Act, 5 & 6 W. IV. c. 76; and in those of the boroughs in Schedule (B) of that act, to which a commis

(b) See per Holt, C. J., in Harcourt For, 1 Shower, 528.

(c) Six by 12 R. II. c. 10. Eight by 14 R. II. c. 11.

(d) 1 Shower, 528.

sion of the peace shall be granted on petition of the town council. Such persons must, however, reside in the borough, or within seven miles of it, while they act as such justices. However, in towns and places not being counties of themselves (e), the justices of the county at large have concurrent jurisdiction with those of the minor ambit, unless ousted in express terms by a non intromittant clause in the charter or commission (f). It is doubtful whether the mere grant of a court of separate quarter sessions made under 5 & 6 W. IV. c. 76, to a place, over which, at the time of passing that act, both sets of justices had jurisdiction, would oust that of the justices of the county at large (g).

In a late case upon the effect of s. 3, of 5 & 6 W. IV. c. 96, where at the time of passing that act, the county justices had sole jurisdiction over a district in the same parish with a borough having justices of its own, but without any non intromittant clause, it was held that the county quarter sessions retained exclusive jurisdiction over that district, since the act, notwithstanding separate quarter sessions had been granted to the borough under it; for no appeal to the borough sessions had been given by 5 & 6 W. IV. c. 96 (h).

(e) See R. v. Glocestershire (Justices), viz. the Clifton and Bristol case, 4 Ad. & El. 691.

(f) Blankley v. Winstanley, 3 T. R. 379; and Bates v. Winstanley, 4 M. & S. 429, the Leicester cases; and see R. v. Clarke, 5 B. & Ald. 665, the Bath case; R. v. Shepherd, 2 Adol. & E. 298, Marlborough case; Talbot v. Hubble, Strange, 1154; R. v. Sainsbury, 4 T. R. 456, the Southwark case.

(g) See 5 & 6 W. IV. c. 76, s. 3, and post, Chap. III. s. 1.

(h) Reg. v. Bridgewater (Inh.) 2 P. & D. 586, Trin. 1839. Before the passing of the Municipal Corporation Act (5 & 6 W. IV. c. 76), Bridgewater was a borough having less than six, viz. four justices, and a right to hold separate quarter sessions, but the charter had no non intromittant clause. The borough contained only a part of the parish of B. [but the whole of that parish was within the jurisdiction of the borough justices.*] In this state of things, and till 1 Geo. IV. c. 36, appeals against poor rates allowed by

justices of the borough, lay to the borough sessions, there being four justices of the borough. After that act, such appeals might be taken to those sessions, or to the quarter sessions for Somersetshire, at the option of the appellant. The act 5 & 6 W. IV. c. 76 altered the boundaries of the borough, excluding parts of the parish from it; giving them to the county under sec. 8, both as to locality and jurisdiction; and the borough received a separate quarter sessions, a recorder, and seven justices. A poor's rate for the whole parish being afterwards allowed by two county and three borough justices, a party rated appealed to the county quarter sessions against so much of the rate as affected his property situate out of the limits, though within the (ancient) liberties of the borough, on the ground that other property situate in the borough was omitted from the rate. The question of jurisdiction was argued on the effect of the latter part of sec. 3 of the act, and the Queen's Bench held, that the county sessions possessed sole juris

The report of this case in 8 Law Journal, Magistrates' Cases, 72, states this and other facts, the reverse way.

+ Whether these parts of the parish so excluded, had been parts of the ancient borough, did not appear.

Sessions in Cities and Towns.]-Before section 107 of 5 & 6 W. IV. c. 76, it was usual in most cities and towns corporate that the mayor and other justices having jurisdiction there, either concurrent with the county justices or exclusive of them (as in the cases of particular charters or of counties corporate), should hold sessions of the peace at various intervals, to try offences of a minor description committed within the municipal boundaries. In this duty they were generally assisted by a barrister-at-law, who, as recorder or deputy recorder, acted as assessor to the mayor. In general, these sessions had powers similar to those holden for the county, with the exception of some few cases, which, by special exactment, the county sessions alone were competent to determine. The most important of these were appeals against orders of removal: which, by sect. 6, of 8 & 9 W. III. c. 30, were only to be heard at the session of the county, division, or riding wherein the parish or place from whence the removal takes place shall lie, and not elsewhere, any former law or statute to the contrary notwithstanding, although the orders were made by magistrates of a city or town not a county of itself (i).

Appeals against Orders of Removal made by Borough Magistrates.] -The act 5 & 6 W. IV. c. 76, for regulating municipal corporations, provides for holding courts of separate quarter sessions in certain boroughs having councils under that act, by recorders, being barristers of not less than five years' standing, and sitting as sole judges to the exclusion of the borough justices.

diction over the appeal, the legislature not having conferred any on the borough sessions in such a case. The court intimated that the clause intended to leave matters of jurisdiction in statu quo ante; so that those parts of a borough which, at the passing of the act, were not exempt from the jurisdiction of the county justices, still remain within their jurisdiction, and as before passing the act, an appeal would lie from the whole parish to the county, it will so lie now. The rate was confirmed as amended by the sessions; Patteson, J., saying, that as the borough had not more than six justices before the passing of 5 & 6 W. IV. c. 76 (see 1 Geo. IV. c. 37), the point did not arise whether a parish partly within and partly without a borough, has a right of appeal to any sessions whatever in respect of a rate laid on the whole parish, or to the borough

Borough quarter sessions thus

quarter sessions only. See 17 Geo. II. c. 38, s. 4, 5; 5 & 6 W. IV. c. 76, s. 111, and Reg. v. St. Julian's, Shrewsbury, moved in Q. B. Trin. 1840.

(i) See R. v. Wendover, Salk. 490; R. v. Malden, Sett. & Rem. 10; 2 Bott, 959, n. By special proviso in 8 & 9 W. III. c. 30, s. 8, the justices of the peace within the liberty of St. Albans were permitted to hear and determine appeals for the settlement of the poor in their quarter sessions, as they might have done before the making that act. These sections are recited in 9 Geo. I. c. 7, s. 7, which enables justices within the liberty of the borough of St. Peter and hundred of Nassaborough, in Northamptonshire, to hear similar appeals in their quarter sessions, as they might have done before the making 8 & 9 W. III. c. 30.

constituted are courts of record, and have cognizance of all crimes, offences, and matters whatsoever cognizable by any court of quarter sessions for counties in England; and such a recorder has "power to do all things necessary for exercising such jurisdiction, notwithstanding his being sole judge, as fully as any such last-mentioned court" (j).

But it appears very doubtful whether the affirmative words of this section avail to take away from the sessions of the county at large, that exclusive hearing of appeals against orders of removal, which was given them by 8 & 9 W. III. c. 30, s. 6 (k); an act which in terms deprived all other tribunals of that power. Mr. Archbold has, however, stated his opinion to be, that 8 & 9 W. III. c. 30, s. 6, (as well as 17 Geo. II. c. 38, s. 5, and 1 Geo. IV. c. 36,) are virtually repealed by 5 & 6 W. IV. c. 76, s. 105; and that consequently, appeals against orders of removal, as well as appeals against poor rates and overseers' accounts, must now in all cases be to the borough sessions, and not to the sessions of the county. But assuming that the recorder of a borough, having separate quarter sessions, and not being a county of itself, has any jurisdiction in appeals against orders of removal by the last-mentioned act, the quarter sessions of the county seem to have at least concurrent power; for the negative words in 8 & 9 W. III. c. 30, make that act imperative (1) for excluding every other court, and are not directory only. Now affirmative words in a later statute do not repeal a former act, unless there be something wholly inconsistent in the provisions of the two, so that they cannot stand together (m); nor will general words revoke or alter any particular statute, where such words may operate properly without such revocation or alteration (n). It may be observed, that the recorders of boroughs may decide on appeals against convictions, &c. and exercise the criminal and penal functions of a court of county quarter sessions, e. g. in felony and bastardy, without repealing 8 & 9 W. III. c. 30, by exercising exclusive jurisdiction in appeals against orders of removal.

The express terms of 8 & 9 W. III. c. 30, show that in boroughs

(j) Sect. 105. See s. 91, 103.

(k) See this act, ante, p. 4.

(1) 7 B. & Cr. 12; 2 Inst. 448; Dyer, 135; 1 Hale, 694; 3 Inst. 87; and see the argument in Reg. v. Bridgewater (Inh.) 2 P. & D. 589 (22d June, 1839), as to the exclusive wording of the appeal clause in 17 G. II. c. 38, s. 4, 5.

(m) Per Abbott, C. J., in R. v. Pinney and another, 2 B. & Cr. 323. This position has been limited by the same learned

judge to acts unconnected with each other, R. v. Lancashire (Justices), 1 B. & Ald. 637. See per Lord Hardwicke, in Middleton v. Croft, 1 Atkyns, 675; Com. Dig. tit. Parliament (R 9 & 25), and tit. Dismes (M 13); Plowden, 112; Paget v. Foley, 2 Bing. N. C. 689; R. v. Berridge, 3 P. Wms. 461; Langham v. Baker, Hardw. 116.

(n) Lyn v. Wyn, Sir O. Bridg. 327.