said, on an application to quash an indictment against a justice for scandalous words spoken by him in session, in which he had addressed the grand jury as "a seditious, scandalous, corrupt, and perjured jury," that a judge of record cannot be put to answer civilly or criminally, for words spoken in office. (j) This, however, may well be doubted where the words, though spoken in the seat of office, and during the sitting of the court, are extrajudicial and wholly beside the functions of the magistrate, or after these functions are discharged. In the case of The King v. the Inhabitants of Seton, (k) Lord Kenyon intimated, that in case of fraud or misconduct of magistrates in session, in proceeding, notwithstanding the issuing of a certiorari, it might be the ground of a criminal proceeding against them; and added, that he believed there were instances in which a criminal information had been granted against magistrates acting in sessions. In the case of The King v. the Justices of Seaford, (/) which was a motion for an information 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 his elective franchise, and, upon appeal to them in sessions, refusing to amend the rate, the Court of King's Bench said, "that as they were acting in a court of record, with powers intrusted 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;" and they therefore refused the rule to 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 occasionally suffer a wrong, than that the general course of justice should be impeded and fettered by constant and perpetual 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." (k) 7 T. R. 373. (j) The King v. Skinner, Lofft, 55. (7) 1 Bla. Rep. 432. E Duties of the shew cause. But it may be inferred from this case, and from the judgment of Lord Tenterden, in Garnett v. Ferrand, (m) that if a clear case of corruption could be made out against magistrates acting illegally in session, they would be liable to criminal proceedings. § 3. OF THE SHERIFF OF THE COUNTY. The Sheriff of the County has important duties to perSheriff in respect form in respect of the sessions. (n) He is bound to proof the sessions. vide and make ready a fit and decent place for holding the sessions, unless where this duty is otherwise regulated by statute.(o) It is his duty to proclaim the sessions, to return the grand jury, and to give notice to all stewards, constables, bailiffs of hundreds and liberties, and other officers. He ought also to attend the sessions by himself or his deputy on summons, to return his precepts, receive fines for the king, and take charge of prisoners; and, if he neglect to do so, he may be fined by the court. (p) The (m) Ante, p. 48, n. (i) (n) 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. Dalt. J. c. 372. This power was exercised by the Court of Great Sessions for Brecon, in the year 1799, where Mr. Loveden, the sheriff, was fined 100l. for non-attendance, which was levied, and the record of which was removed into the King's Bench by certiorari, and which they refused to mitigate; the King 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 Moyses, 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 prisoners therein being, and also to hear and determine divers felonies, trespasses, and other misdemeanors 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 100.; 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 county gaol is placed under his direction by statutes; (q) 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; (r) but it may be doubted whether he would be held, at the present day, criminally liable for the neglect of a servant appointed without fraud. He is, however, bound to execute the writs and precepts of justices in session, and responsible for default to the court of which he is an officer, though he may execute any process by deputy. (s) 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. (t) He has the appointment of a gaoler, upon a vacancy, of the under-sheriff, and the bailiffs; but he cannot dispose of any of these offices for money; as it is enacted, by 3 Geo. 1. 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 500l., half to the King, and half to him that shall sue, within two years." He is prohibited from returning any of his officers upon the inquest, under the penalty of 401., half to the king and half to the plaintiff. (u) At the expiration of his period of office, the custody of the county gaol is immediately vested in his successor, with the responsibility attendant on the first; and he is directed to turn over, by indenture and schedule, all writs and processes then remaining unexecuted, to such successor, who is bound to execute and return them. (v) § 4. OF THE CLERK OF THE PEACE. The Clerk of the Peace is, as we have seen, appointed How appointed. by the Custos Rotulorum, (w) but he is responsible to the justices in session for the due performance of his duties. According to the direction of an ancient statute, he should be an able and sufficient person resident within the county; but he may execute the office by such deputy, of like qualities, whom the Custos may allow and approve. (x) levari do issue, under the seal of this court, to the coroners of the (q) 14 Ed. 3. c. 10; 19 Hen. 7. c. 10. (r) 1 Hale, 597. (t) 13 Ed. 1. st. 1. c. 30. Duration of office. Suspension and dismissal. Oaths of office. Duties. As the custos is prohibited from selling, so the officer is forbidden to purchase, the 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." (y) In cities and towns corporate there is usually an analogous officer, who performs correspondent duties, under some other title, as that of "town clerk," and who is generally appointed, not by the custos rotulorum, but by the body corporate of which he is an officer. The office of the Clerk is "so long as he shall well demean himself;" and, therefore, he has an estate of freehold for life in the office, on condition of behaving well; and, therefore, he cannot be dispossessed, except for misbehaviour, by a competent tribunal, nor does his estate determine by the death or removal of the custos. (z) 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. But if the Clerk of the Peace misdemean himself in his offices, and the charge be exhibited in writing against him in the Court of Quarter Session, such court, on due examination and proof openly heard before them, may suspend or discharge him. (a) On such vacancy, the custos rotulorum may appoint another; and if he neglect to do so before the ensuing Quarter Sessions, the justices assembled may appoint to the office. (b) Extortion is one of the offences for which this power of the sessions may be exerted. (c) The order of sessions removing a party so charged, need not set forth the evidence on which it is founded. (d) On entering upon his office, the Clerk of the Peace, besides taking the oaths of allegiance, supremacy, and abjuration, must take the following oath. I, A. B. do swear, that I have not paid nor will pay any sum or sums of money, or other reward whatsoever, nor have given nor will give any bond or other insurance to pay any money, fee, or profit, directly or indirectly, to any person or persons whomsoever, for such nomination and appointment; so help me God. The Clerk of the Peace, by himself or his sufficient de (y) 1 W. and M. Sess. 1. c. 21. s. 8. (d) The King v. Lloyd, 2 Stra. 996. (z) 4 Mod. 167. 173. 293. (b) Id. Ibid. puty, must be in constant attendance on the Court of Quarter Sessions. He gives notice of its being holden or adjourned; issues its processes; records its proceedings; and does all the ministerial acts necessary to give effect to its decisions. It is his duty, when prosecutors do not choose to seek professional assistance elsewhere, to draw the bills of indictment for felony at a fee of only 2s. each; and if an indictment so prepared be found defective, he is bound to provide another gratis, on pain of forfeiting 51. to any who will sue. (e) He has also been said to be amerciable in the Court of King's Bench, for gross errors in indictments framed by him, and brought before that court on certiorari; (f) and though, perhaps, at the present day he would scarcely be held responsible for mere error, there is no doubt that if an indictment drawn by him were of immoderate and oppressive length, it might be referred to the master, and the Clerk of the Peace might be ordered to pay the costs of such parts of it as should be found manifestly superfluous. (g) It seems however, that the obligation to draw indictments at the statutable fee of 2s. is confined to cases of felony; and in case of misdemeanor, he may make reasonable charges to prosecutors requiring his assistance. In the actual course of the sessions, it is the duty of the Clerk of the Peace to read the acts directed to be read in sessions; to call the jurors, and make known their defaults and excuses to the court; to call the parties under recognizance, whether to prosecute, plead, or give evidence; to present the bills to, and receive them from, the grand jury; to arraign prisoners; to receive and record verdicts; to administer all oaths; and make true entries of all proceedings. By an ancient statute, (h) he is bound to certify to the Court of King's Bench the names of such as shall be outlawed, attainted, or convicted of felony; and by a modern provision (i) he is required to make annual return of persons tried at sessions to his Majesty's Principal Secretary of State for the Home Department, under penalty of 1007. He is also compelled to deliver to the sheriff, within twenty days after 29 Sept. yearly, a perfect abstract or schedule of all fines and other forfeitures in sessions: (k) and to deliver duplicates of these upon oath yearly to the Barons of the Exchequer, on pain of forfeiting 50., half to the King, and half to (e) 10 and 11 W. 3. c. 23. (f) Lilly's Pract. Reg. 71. |