in this chapter). Again, it seems that they have power to fine any parties who before the conclusion of a trial should publish a report of its progress contrary to their order to that effect (t).

Defendants guilty of contemptuous or violent behaviour may be committed, or obliged to find sureties for good behaviour, for the outrage on public justice, though acquitted on the original charge (u). Where there are several delinquents, they must be fined separately, and not jointly, except of necessity, as where a whole vill is to be fined (v).

Quarter Sessions have no power of Attachment.]—But the court of quarter sessions cannot, like a superior court, take a man's body by command of a writ, or attachment, for a contempt of their order committed out of court, but the proper method is by indictment, which, when found, entitles them to issue a warrant to apprehend the offender, to be dealt with as in cases of any other misdemeanour, though his disobedience do not amount to a breach of the peace (w).

Protection of Magistrates for their Acts in Session.]-It appears clear, that no judicial act done by justices when sitting as a court of record, affords a ground of action against all or any of them (x). A

(t) See R. v. Clement, 4 B. & Ald. 227, &c.

(u) Cro. Car. 507; Comb. 40; 2 Hawk. c. 46, s. 11.

(v) 2 Hawk. c. 10, s. 16; Com. D. tit. Leet, (N 4); Morgan v. Brown, 4 Ad. & E. 515.

(w) See, however, as to the discretion of abstaining from this power of arrest, 1 Chitty, Cr. L. 13.

(x) Hamond v. Howel, 1 Mod. 184; 2 Mod. 218, thus stated by Lord Tenterden, in Garnett v. Ferrand, 6 B. & C. 625. "Hamond and other jurymen had been fined and imprisoned by the court at the Old Bailey for acquitting certain persons of a riot whom the evidence showed to be guilty. This was certainly a very strong exercise of authority, calculated to excite, and in fact exciting great public interest. It was determined by the court of common pleas on a suit of habeas corpus that the fine and imprisonment was contrary to law, and the parties were discharged out of custody. After this, Hamond brought an action of trespass against the Recorder of London, one of the judges in the commission, for this imprisonment. The defendant by his plea showed the proceed.

ings before the commissioners, and averred that the jury had pronounced a verdict against plain evidence, and the direction of the court in matter of law. The plaintiff traversed the finding against evidence; and upon the pleadings it was held that the action did not lie, because the defendant was a judge of record. This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions they may be free in thought, and independent in judgment, as all who are to administer justice ought to be. And it is not to be supposed beforehand, that those who are selected for the administration of justice will make an ill use of the authority vested in them. Even inferior justices, and those not of record, cannot be called in question for an error in judgment, as long as they act within the bounds of their jurisdiction. In the imperfection of human nature it is better even that an individual should occa. sionally suffer a wrong, than that the general course of justice should be impeded and fettered by constant and per

justice of the county and borough of Poole told the grand jury at a general session, "You have not done your duty; you are a seditious, scandalous, corrupt, and perjured jury." For this language an indictment was found against him, but quashed as unprecedented. Lord Mansfield is reported to have said, "Neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office. If the words spoken are opprobrious, or irrelevant to the case, the court will take notice of them as a contempt, and examine them on information: and if any thing of mala mens is found on such inquiry, it will be punished suitably" (y).

He then says, that to proceed by way of indictment is improper. But for extra-judicial language used on or off the bench of justice, a magistrate seems liable. Fraud or misconduct of magistrates in session, in proceeding notwithstanding the issuing of a certiorari, may be the ground of a criminal information against them (z). An information was moved for against four persons, who were churchwardens and overseers of Seaford, and also the only justices of the peace for the borough, for refusing to put a substantial householder on the poor rate, with a view to deprive him of his elective franchise, and for refusing to amend the rate on appeal to them in sessions. The court refused the rule to show cause, saying, "that as they were acting in a court of record, with powers entrusted to them by the constitution, it must be a very strong case indeed, with flagrant proofs of their having acted from corrupt motives, that would warrant a rule for an information" (a). But this case, as well as Lord Tenterden's judgment on Garnett v. Ferrand, in p. 86, shows that where corruption can be clearly established against magistrates acting illegally, they will be open to criminal information.

SECTION III.

OF THE SHERIFF OF THE COUNTY.

Duties of Sheriff in respect of Sessions.]-The sheriff (shireve) of the county fills an office which existed before the conquest, and is the

petual restraints and apprehensions on the part of those who are to administer it. Corruption is quite another matter; so also are neglect of duty and misconduct in it; for these I trust there is, and always will be, some due course of

punishment by public prosecution."
(y) R. v. Skinner, Lofft, 55.
(z) 7 T. R. 373. R. v. Seton. See
Chap. XIII. s. 3.

(a) 1 Bla. Rep. 432, R. v. Seaford (Justices).

principal officer of the crown within the shire (b). He is bound to provide and make ready a fit and decent place for holding the sessions, unless where this duty is otherwise regulated by statute (c). It is his duty to proclaim the sessions in proper places in his bailiwick, to return the grand jury, and to give notice to all stewards, constables, bailiffs of hundreds and liberties, and other officers, to be present and do their duties at the sessions. He ought also to attend the sessions by himself or his undersheriff on the justices' summons, to return the precept (d), receive fines for the king, and take charge of prisoners (e), and if he neglect to do so, it is said he may be fined by the court (ƒ). The county gaol is placed under his direction by early statutes (g); the gaoler is merely his deputy; and it is even laid down, that if a gaoler should allow a felon to escape, the sheriff would be liable to indictment (h); but it may be doubted whether he would be held, at the present day, criminally liable for the neglect of a servant appointed by him, unless himself guilty of fraud.

(b) Co. Lit. 168 a; Com. Dig. tit. County (B) 4 Rep. 33; Stra. 171. As the principal duties of the sheriff have no reference to the business of the sessions, his office is but slightly noticed in this work.

(c) Dalt. J. c. 372.

(d) See form, ante, p. 55. (e) Dalt. J. c. 372.

(f) But the authority cited for the court of quarter session fining the sheriff does not establish the position; as it is the case of a fine imposed by a court of great sessions in Wales, which had, until the abolition of those courts, jurisdiction analogous to courts of assize, and to the superior courts at Westminster, Dougl. 6, n. The sheriff of Brecon was, in 1799, fined by the court of great sessions, 1007. for non-attendance, which sum was levied, and the court of king's bench refused to lessen it on certiorari, R. v. Loveden, 8 T. R. 615. The following is the record of the fine :

"Brecon, to wit: Be it remembered that, at the great sessions of gaol delivery of our lord the king for the said county, holden at Brecon in the said county on Saturday, the 30th day of March, in the 39th year of the reign of our lord the now king, before George Hardinge and Abel Moysey, esquires, justices of our said lord the king of the great sessions of the said county, assigned to deliver the gaol of the county aforesaid of the

He is, however, bound to

prisoners therein being, and also to hear and determine divers felonies, trespasses, and other misdemeanours committed in the said county, E. L. Loveden, Esq., high sheriff of the said county, is duly and solemnly called to appear and give his attendance at this same sessions, to do and perform those things which to his office do belong and appertain, and as by his said Majesty's writ in that behalf to him directed and delivered, he is commanded; and the said E. L. Loveden, high sheriff as aforesaid, not accordingly appearing and attending at this same sessions, in obedience to his Majesty's said writ, or otherwise to perform the said duties of his office, but contemptuously making default; therefore it is ordered that the said E. L. Loveden be fined, and he is accordingly by the court here fined and amerced in the sum of 1007.; to be by him forfeited and paid to the use of our said lord the king for such his contempt and default aforesaid. And it is further ordered that a levari do issue, under the seal of this court, to the coroners of the said county, or one of them, thereby commanding them, or one of them, to levy the said fine out of the goods and chattels, lands and tenements of the said E. L. Loveden."

(g) 14 E. III. c. 10; 19 H. VII. c. 10; Dalt. c. 159; Lord Raym. 424, R. v. Fell.

(h) 1 Hale, 597.

execute the writs and precepts of justices in session, and is responsible for default to the court of which he is an officer, though he may execute any process by deputy (i). Resistance furnishes him with no excuse for leaving process unexecuted, because he is empowered by statute to take the power of the county to his aid (j). Being liable for escapes, he has the appointment of a gaoler upon a vacancy (k); as also of the under-sheriff, and the bailiffs; but he cannot dispose of any of these offices for money; as it is enacted, by 3 G. I. c. 15, that “ none shall buy, sell, let, or take the office of under-sheriff, gaoler, bailiff, or other office pertaining to the office of high-sheriff, on pain of £500, half to the king, and half to him that shall sue within two years." He was prohibited from returning any of his officers in any jury panel, under the penalty of £40; this enactment is repealed (1), but these persons are now exempted from serving as jurors, and are not to be inserted in the lists (m). At the expiration of his period of office, the custody of the county gaol is immediately vested in the next sheriff, with the responsibility attendant on his predecessor; and he is directed to turn over, by indenture with a schedule, all writs and processes then remaining unexecuted, and all prisoners by their names, and the causes for which they were committed to him, to such successor, who is bound to execute and return the writs and keep the prisoners safely (n). In point of practice, the high sheriff rarely attends the sessions in person, but is represented there by his under-sheriff or deputy (o).

SECTION IV.

OF THE CLERK OF THE PEACE.

How appointed.]-The clerk of the peace is an officer, by whatever name called, whether clerk and attorney for the crown, clerk of the justices, or clerk of the peace, who is appointed to assist the justices assembled in quarter sessions, to hear and determine felonies and trespasses under st. 34 Ed. III. c. 1, in drawing the indictments, arraigning the prisoners, joining issue for the crown, entering their judgments, awarding their process, and making up and keeping their records (p).

(i) Hawk. B. 2, c. 22.

(j) 13 Ed. I. st. 1, c. 30.

(k) The case of Gaols cited in Mitton's ca. 4 Rep. 34.

(1) 23 H. VI. c. 9, ss. 1, 5, repealed by 6 G. IV. c. 50, s. 62.

(m) 6 G. IV. c. 50, s. 2; post, tit.

Jurors.

(n) 20 G. II. c. 37.

(0) As to his returning a jury of bystanders on exhaustion of the jury-panel, see post, tit. Jurors.

(p) Per Vaughan, B. in D. Proc., 6 Bing. 67. citing Year-Book, 2 H. VII. p. 31, pl. 2.

He is, as we have seen, appointed by the custos rotulorum, as of right, by common law (q), but is responsible to the justices in session for the due performance of its duties, according to 37 H. VIII. c. 1 (r), which in its preamble recites the evils which had arisen from the ignorance and inattention of this officer. He should be an able person, learned and instructed in the laws of the realm; and by 1 W. & M. sess. 1, c. 21, s. 5, is to be an able and sufficient person, residing in the county, riding, division, or other place for which he is appointed. He is to execute his office in person," or by his sufficient deputy, instructed in the laws of the realm, so that the same deputy be admitted, taken, and reputed, by the said custos rotulorum, to be sufficient and able to exercise, occupy, keep and enjoy the same office of clerkship of the peace" (s).

As the custos is prohibited from selling, so his appointee is forbidden to purchase this office; for it is enacted, "that if he shall give any reward, fee, or profit, directly or indirectly, or any bond or other assurance, for such appointment, he shall be disabled from holding the office, and shall forfeit double the value of the thing given for the appointment, to whomsoever shall sue for the same" (t). In cities and towns corporate there was usually an analogous officer, who performed correspondent duties, under some other title, as that of "town clerk,” and was generally appointed, not by the custos rotulorum, but by the body corporate of which he was an officer. Since 5 & 6 W. IV. c. 76, the duties of town clerk are distinguished from those of clerk of the peace in a borough. As to this, and also as to quarter sessions in boroughs, see post.

Duration of Office.]-The office of the clerk of a peace of a county riding, &c. is for "so long as he shall well demean himself in his said office"(u); and, therefore, he has an estate of freehold for life in the office, on condition of behaving well; so that he cannot be dispossessed, except for misbehaviour, and by a competent tribunal; nor does his estate determine by the death or removal of the custos (x). He can be appointed for no other term; and, therefore, an appointment during pleasure is void, and the party so appointed no clerk of the peace.

(q) Ante, 64. See Harding v. Pollock, 6 Bing. 25. As to this appointment in Lancashire, see id. 33; in Durham, 6 W. IV. c. 19; in Yorkshire, Ely, &c., 6 & 7 W. IV. c. 8.

(r) Repealed 3 & 4 Ed. VI. c. 1, and revived 1 W. & M. sess. 2, c. 21, s. 4.

(s) 37 H. VIII. c. 1, s. 3; 1 W. & M. sess. 1, c. 21, s. 6.

(t) 1 W. & M. sess. 1, c. 21, s. 8. (u) 1 W. III. sess. 1, c. 21, s. 5. (x) 4 Mod. 167, 173, 293; Harcourt v. Fox, cited 6 Bing. 35.