Sir Peter Benson Maxwell (1817-1893).

An introduction to the duties of magisitrates and justices of the peace online

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done oy Justices of the Peace by virtue of any law in force.

Thus they have power to deal with certain minor offences under
53 Geo. 3, c. 155, s. 105, and Code of Cr. Pro., s. 42. See Piinsep,
ed. 1869, Appendix B.

Servants of the Government who are appointed Justices of the Peace
for places other than Calcutta, Madras, and Bomb.iy, have, under
this enactment, power to commit for trial European British and
Christian subjects of Her Majesty within the dominions S{ Princes
and in States in India in alliance with Her Majesty.

The Act further provides a form of declaratiim to be made by
persons to be appointed Justices of the Peace, and gives power to
dismiss to the authorities empowered to appoint them. All Justices
of the Peace appointed by commissicm prior to the passing of this
Act are to be deemed to have been appointed under the Act]

The duties of a [Magistrate or] Justice of the Peace are twofold.
He has to adjudicate upon a number of lesser offences and breaches of
the law, and he has to preserve the peace. The former is called his
summary jurisdiction. In the discharge of the latter duty, it is his
business to prevent breaches of the peace, and when they occur, to
suppress them, and to apprehend the offenders and send them for
trial before the [higher Court,] when their offences are not such as
he has power himself to adjudicate upon.

These subjects may be conveniently treated by considering, first,
the general limits of the Magistrate's or Justice of the Peace's juris-
diction ; secondly, the metliod of proceeding in his summary juris-
diction; thirdly, his powers of preventing breaches of the peace;
fourthly, his powers of suppressing them and of dealing with offenders
against the criminal law. A» all his powers are derived from Acts
of Parliament or of the Legislative Council, some remarks will be
added under a fifth head, upon the principal rules which are applied
by the Courts to the construction of enactments ; and as a knowledge
of the Law of Evidence is indi8j)ensable for the due discharge of
judicial duties, an attempt will be made, in conclusion, to state and
explain the general principles of that branch of the law.



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DUTIES OF A MA6ISTBATE



CHAPTER I.

THE LIMITS OF THE MAGISTRATE'S JURISDICTION.

The office of a Magistrate [and here is included a Justice of
the Peace] is a judicial office ; it cannot^ therefore, be held by a
minor — Bac. Abr. Infancy, E. A judicial office, further, cannot, in
the absence of statutory or other sufficient authority, be delegated —
Molins V, Werby.y I Lev., 76; 4 Inst, 88; and as no such authority
is given to a Magistrate, he cannot appoint a deputy.

Before a Magistrate acts in the exercise of ms office, it is his duty
to take the oath [or declaration] prescribed by law — [see with regard
to the oath or declaration the Code of Cr. Pro, by Prinsep, 3rd
ed., 5; and Act II of 1869, s. 7.] His neglect to do this, however,
does not invalidate his acts ; it only exposes him to punishment for
his breach of the law — The Margate Pier Company v. Hannand,
3 B. & A., 266.

When a Magistrate is called upon to act, the first question for his
consideration is whether he has jurisdiction. This depends on the
following circumstances : —

1. He must be a Magistrate for the place for which he is required
to act. An Act giving authority to do an act to " any" Magistrate,
or to any Magistrate " living near the place" where the act is to be
done, or where the offence was committed, or the offender is found,
is understood to be limited to those Magistrates who have general
jurisdiction to act for the district for which the act is to be done —
Be Peerless, 1 Q. B., 143; Talbot v. Hubble, 2 Stra., 1154, para. 3;
jR, V. Chandler, 14 East, 267. When an Act expressly designates the
Magistrates who are to do an act, all others are excluded. Thus, if
it is to be done by the "next" Magistrate, he alone who answers that
description has authority to do it ; if i# is to be done by a Magistrate
*^in" or "near" the place, or one "of the division," any Magistrate
of the place or county is competent — Sander^s case, 1 Wms, Saund.,
262. But if authority is given to any Magistrate " for the division,"
this expression is wide enough to include every county Magistrate,
though he does not generally act in it — R, v. Price, Caldecott, 305 ;

B, V. Rawlins, 8 C. & P., 439 ; and see Re Broadhurst, 32 L. J. M.

C, 168; R. V. Hughes, 26 L. J. M. C, 133. If an Act gives jurisdic-
tion over an offence committed at sea to the Magistrates "in or near"
the place to which the offender is taken or carried, the jurisdiction
is limited to the Magistrates of the place to which he is first taken
or carried — Kite and Lane"* s case, 1 B & C, 101.



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AND JUSTICE OF THE PEACE IN INDIA. 5

2. In the next place, all judicial acts of a coercive character, done
by Magistrates, must be done within the locality to which their
authority is limited— 2 Hale P. C, 50 ; B. v. Stockton, 7 Q. B., 520 ;
jR. V. Totnessy 11 Q. B., 80. Thus, a Magistrate could not issue a
warrant to apprehend a person within the limits of his jurisdiction, and
to bring the prisoner before him out of the limits of his jurisdiction ;
nor could he, while out of it, issue a warrant to commit a person for a
crime, or for not giving recognizances (Inf., c. 3.) — 2 Hale, 50 ;
2 Hawk P. C., Bk. 2, c. 8, s. 44.

It is said, indeed, that he may do, out of his jurisdiction, acts which
are not of a compulsory or coercive character ; for instance, that he
may take an information of a robbery or other offence in respect of
which he has only an ancillary jurisdiction (see Inf., c. 4), and the
recognizances of the informant out of the limits of his jurisdiction —
Helier V. Hundred de Benhursty Cro. Car., 211. But it is doubted
whether a Magistrate can, beyond the local limits of his jurisdiction,
properly receive an information on oath, to found a subsequent sum-
mary proceeding of a penal nature before himself, when he shall return
within those limits — f aley Conv., 5th ed., 19.

For example, the allowance of an indenture of apprenticeship has
been repeatedly held invalid, when it did not appear to have been
done in the locality for which the act was done, because it was a
judicial act — jR. v. Hamstall Eidware, 3 T. R., 380; R. v. Totness,
11 Q. B., 80; R. v. Bloomsbury, 24 L. J. M. C, 49; Staverton
V. Ashburton, 4 E. j& B., 526; 24 L. J. M. C, 53.

A judicial act may, perhaps, be defined as one which is to be done
or not, as the judgment of the person required to do it dictates ; while
a ministerial act is one which the law requires to be done, without
reference to the judgment, when certain circumstances exist. The
former is discretionary, the latter imperative ; and an act is not the less
ministerial because it requires the exercise of the judgment in the
preliminary task of determining whether all the facts exist which are
necessary basis of the ministerial act required to be done. To
make an order, or to adjudicate upon the guilt or innocence of an
accused person, is a judicial act, depending altogether on the view
which the Magistrate, in the exercise of his judgment, takes of the
law and the facts of the case. But the mere entering upon the
enquiry is ministerial ; the law casts on him the duty of holding it ;
the discharge of that duty is, in fact, initiatory to the judicial pro-
ceeding, and the Magistrate has no discretion to exercise as to
whether he shall hold it or not — Ferguson v. Earl of Kinnouly 9 CI.
& F., 251, 263, 313, better known as the Auchterarder case. So,
when an act deprives a successful plaintiff of costs, unless the Judge
certifies that the case falls within a certain class, the grant or
refusal of the certificate is a judicial act, for it rests entirely in the
Judge's discretion, turning on the view which he may take of a
question of law or fact — Forsdike v. Stone, L. R. 3 C. P., 607 ; but
when an Act provides that if Justices dismiss a complaint, they shall
grant a certificate of the dismissal to the applicant for it, the grant of
it is a purely ministerial act, which it is imperative on them to perform
ns soon as it appears that the complaint was in fact dismissed —



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6 DUTIES OF A MAGISTBATfi

Hancock v. Somes, E. & E., 795; 28 L. J. M. C, 196. To admit
an accused person to bail is a judicial act — Linford v. Fitzroy,
13 Q. B., 240 (Inf., c. 4., s. 6) ; but to issue a warrant of dis-
tress to enforce a rate has been held ministerial- — Sweetman v.
Guest, L. K. 3 Q. B., 262; Exp. May, 31 L. J. M. C, 161,—
for it is not within the jurisdiction of the Magistrates to make the
rate or to determine whether the order imposing the rate is yalid^
or whether they shall enforce it or not. They have no judicial order
to make on such an application ; they are bound to grant a distress
warrant, if the circumstances exist which the law requires ; that is to
say, if they find that the rate has been in fact made by oflScers having
jurisdiction to make it ; that the lands rated are within the district
of those who made it ; that the party rated is in the occupation of
them ; that he is the party summoned to pay ; and that he has not paid
the rate ; all which enquiries, it is obvious, involve the exercise ot the
judgment — Groenvelt v. Barwell, 1 Lord Raym., 471 ; Weaver v. Price,

3 B. & Ad., 409; Lord Amherst v. Lord Somers, 2 J. R., 372 ; Milward
v. Caffin,2W. Bl, 1350; The Bristol Poor v. Wait, 1 A. & E.,
264; ISirmingham v. Shaw, 10 Q. B., 868; Staverton v. Ashburton,

4 E. & B., 526; 24 L. J. M. C, 53. The appointment of a public
officer, involving the exercise of discretion, is a judicial act — R. v.
Forrest, 3 T. R., 38; R. v. Great Mar low, 2 East, 244; Penny v.
Slade, 5 Bing. N. C, 319.

In another respect, this distinction between judicial and ministerial
acts is imj)ortant. When two or more Magistrates are empowered
to act judicially, they must be present and acting together during the
whole hearing, to listen to the evidence and consult together — see R.
y. Hamstall Redware, 3 T. R., 380 ; Billings y. Prinn, 2 W. Bl., 1017 ;
and other authorities collected in Bum's J. Tit. Justices of the Peace,
8. 4; and R. v. Great Marlow, 2 East, 244. So if they are to act "on
view," — that is, on the result of personal inspection, instead of the
evidence of witnesses, — they must view in company together — R, v.
JJ. of Cambridge, 4 A. & E., 111. But where the act is ministerial, it
is not necessary that they should meet together to do it. — Re Hopper,
L. R. 2. Q. B., 367.

3. When authority to do an act is conferred by law to two or more
Magistrates, it cannot lawfully be done by less than the prescribed
number ; but when power to deal with an offence is given to two or
more, long and inveterate usage, if not principle, authorizes a single
Magistrate to issue a summons or warrant, or to do any other similar
act preliminary and ancillary to the hearing and determination of the
case^ — Dalt., c. 6 ; 2 Hawk r. C, c. 13, s. 16, — unless the particular
Act under which the proceeding is taken provides otherwise — see ex.
gr. R. V. Griffin, 5 Q. B,, 155.

4. Whether the same Macistrate who, received the infonnation is
alone competent to hear and determine the case, or whether this may
be done by another Magistrate, is a question on which no general rule
can be laid down. The Common Law is necessarily silent on the sub-
ject, as the authority of Magistrates is derived from Statutes, and the
ouestion must resolve itself in every case into one of construction of
tne Act of Parliament [or of the Legislature] under which the



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AND JUSTICE OP THE PEACE IN INDIA. 7

prooeeding is taken, to determine what the Legislature intendedin
that particular case — see per Parke, B., in Tarry v. Newman^ 15
M. & W., 645, 654.

But when a case is brought under the adjudication of a Magistrate,
or a number of Magistrates, the other Magistrates of the district cease
to have any jurisdiction over it Thus, where it was competent to
both the Justices of Surrey and the Justices of London to license ale-
houses in the same division, and the former, at their meeting for that
purpose, refused a license to an applicant, a meeting held on a subse-
quent day by the Justices of London, at which they granted a license
to the same applicant, was held illegal ; and the Justices who held it,
indictable for the breach of the law — R. v. Sanisbury^A: T. R., 451, —
though the second meeting would have been unobjectionable but for
this attempt to wrest the jurisdiction — Brown v. Nicholson ^ 28 L. J.
M. C, 49. A^ortiori^ when Magistrates have done an act within their

i'urisdiction, it is not competent for others to undo it, for this would
>e to constitute themselves a Court of Appeal from their fellow Magis-
trates. Thus, when Justices appointed four overseers, and one of
the latter was afterwards excused by other Justices who appointed
another in his stead, it was held that the exoneration and new appoint-
ment were invalid acts — -R. v. Great MarloWy 2 East, 243. A
Ma^trate, however, may lawfully adjudicate upon a case, although
the mformation or complaint was made before another — Dalt., c. 6 ;
and per Cur. in Jones v. Gurdon^ 2 Q. B., 600, 613, — unless, indeed,
the language of the Act which gives jurisdiction over the matter
does not admit this — see, for instance, Exp. Sharpe^ 33 L. J. M.
C, 152; R. V. Pickfordy 30 L. J. M. C, 133; and Inf., c. 5.

The Police Act of 1856, s. 22, provides for the establishment of
Police Courts in the presidency towns, and for the appointment of
Magistrates of Police, who may sit and act as such Magistrates in
those Courts. It also requires that they shall be appointed Justices
of the Peace, and gives to each of them all the powers and jurisdic-
tion which are by law vested in two Justices of the Peace. [See also
Act II of 1869, s. 4; Act IV of 1866 (Bengal), s. 22 ; Act VIII of
1867 (Madras), s. 10.]

5. " No one should be a Judge in his own cause," — that is, a
cause to which he is a party, or in the result of which he has a
direct and certain pecuniary or proprietary interest. " It is against
reason," says Littleton, " that if wrong be done to any man, he
thereof should be his own judge ; for by such a way, if he had
damages but to the value of an half-penny, he might assess and
have therefor nn hundred pound, which should be against reason" —
Co. Litt., s. 212. It is also against an Act of Parliament, as old as
the reign of Henry 6, which enacted that Justices of the Peace who
exercised their office in their own cases should be punished for it in
the Star Chamber — 8 Hy. 6, c. 19. The Mayor of Hereford was " laid
by the heels" for sitting in judgment in a cause where he himself
was the plaintiff, though he was the sole Judge of the Court — Anon.,
1 Salk., 396 ; and where a prosecution was instituted under the Salmon
Fishery Act of 1861, by the agents of an association for the preserva-
tion of salmon, the conviction wasE. & B., 853 ; Morden v. Porter, 29 L. J. M.
C, 213 ; 7 C. B. N. S., 641 ; Leffg v. Pardoe, 30 L. J. M. C, 108 ; R. v.
Stimpsony 32 L. J. M. C, 208 [but " in all these cases the nature
of the title must be shown before it can be permitted to have the effect
of arresting the case in its progress; it must be made to appear that it
is not a mere cobweb title that is set up, but that it is such as to raise
a real and substantial doubt to whom the property belongs"] — The
Warriory 2 Dods, 288 [which was a case in the High Court of
Admiralty, having jurisdiction in causes of possession, but not in
questions of disputed title, the principle is laid down as above by
Lord Stowell] ; there must be some show of reason in the claim. It
must be a bond fide and honest assertion of a ri^ht, and not a
mere pretence set up for the purpose of ousting uie Magistrate's
jurisdiction; and the Magistrate should be satisfied that there is
some reasonable ground for the defendant's assertion of title — R. v.
fVrottesley, I B. & Ad., 648 ; Cornwell v. SanderSy 32 L. J. M. C, 6 ;
Pease v. C hay tor y ib.y 121. For this purpose, he should require that
the point on which the defendant relies should be stated specifically —
JFZ. V. Blackburny ib.y 41. The assertion that the defendant acted in
the belief that he had a right would not be enough. The fact that
others had previously acted like him is not enough — R. v. Dodson, 9 A.
& E., 704 ; Cornwell v. Sanders, 32 L. J. M. C, 6. Further, the right
or title claimed must be one that is known and recognized by the law.
If it is not, it cannot be said that any title is set up ; and, therefore,
the jurisdiction of the Magistrate is not ousted. Thus, to set up a



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AND JUSTICE OP THE PEACE IN INDIA. 11

right to shoot over the land of another, or to fish in his private fish-
ery, being a non-navigrable river, merely because the defendant and
everybody who chose had been in the habit of shooting and fishing
there, would not be to claim title, for no such right exists in law ; and
« plea of any such right would be no defence to an actual action
of trespass — Lealt v. Ftnc, 30 L. J. M. C, 207 ; Hudson v. McRae^
33 L. J. M. C, 65 ; see also Lloyd v. JoneSy 6 C. B., 81 ; and
Calcraft V. Gibbs, 5 T. R.* 19. On the other hand, where a per-
son charged with fishing in a river, in which the prosecutor claimed
a private right of fishing, contended that he had a right to fish there,
as it was a tidal river, and as the public had fished in it for forty
years; it was held that the jurisdiction of the Justices was ousted,
and that they ought to have abstained from adjudicating — R. v.
Stimpson, 32 L. J. M. C, 208. Here, primd facie, the defendant had
the right he claimed — Carter v. Murcot^ 4 Burr., 2163, for the public
has, of common right, the right to fish in the sea, creeks, and arms of
the sea, and in tidal rivers as high as the tide goes — Lord Fitztoalter*s
case, 1 Mod., 105, though a private person may [in England] have
an exclusive right of fishmg there by prescription, presuming a grant
prior to Magna Charta — Hairs Bight of Sea, 48.

The title of a third person cannot be set up as a defence, unless
the defendant claims under it — C^rnwell v. Sander s^ 32 L. J,
M. C, 6.

[ In some eases the Legislature expressly empowers the Magistrates
to act even though title should be set up ; for example, the Uriminal
Procedure Code, s. 318, which enables the District Magistrate to
make a summary order for the possession of land without reference to
title, in cases where he anticipates a breach of the peace. The
question of title is there left to be settled by the Civil Court]

Where this question is involved, the act done is, in general,
divested of all criminal character. See remarks on Mem rea. Inf.,
c. 2, s. 4; Leattv. Vine, 30 L. J. M. C, 207; and Hudson v. Mac-
Rae, 33 L. J. M. C, 65. To cut down another man's trees is a breach of
the criminal law, but to cut down one's own trees is a lawful exercise
of dominion over his property. As Chief Justice Holt said in
R. V. Speedy 1 Lord Raym, 583, " the intent is to punish rogues and
vagabonds, and not persons who, by mistake, exceed what the law
warrants ;" so, if A. requires B. to give up to him an article in his hands,
and B. refuses, on which A. assaults him with force enough to compel
him to give up the article ; if the article belongs to B., there is clearly
an assault, perhaps a robbery ; but if it be the property of A., his
act is justifiable; for if one wrongfully detams the chattel of
another, after he has been requested to deliver it up, the owner has a
right to use as much force as is necessary to retake his property, in
the same way and degree as he is entitled to use force for the defence
of his property, if an attempt is made to take it while in his posses-
sion — Blades v. HiggSy 31 L. J. C. P., 151 [and see Indian Penal
Code. 8. 81]. If a case of this kind came before the Magistrate, he
should not entertain it, for he could not try whether A. was the
rightful owner or not. It would be his duty to hold his hand as soon
as he saw that A. honestly claimed the article as his.



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12 DUTIES OF A MA6ISTBATB

This rule, however, does not apply where the question of title is
of the very essence of the enquiry, or where it is the manifest intention
of the Legislature that the question of title shall be decided. Thus,
where the defendant, in proceedings to turn him out of a parish house
under the 59 Geo. 3, c. 12, sets up title, the Justices are not thereby
ousted of their jurisdiction, as the question of title is necessarily
involved in the point which they are required to determine, — vtr.,
whether the defendant unlawfully refuses to leave the premises, or has
unlawfully entered them — Exp, Vau^han, L. R. 2 Q. B., 114. So
where Justices are required to determme whether a tenant has fraudu-
lently removed his goods from the premises in order to avoid payment
of the rent, they must, if it be necessary, determine the question of
title if it is raised — Coster v. Wilson, 3 M. & W., 411. This also
follows where the matter for adjudication is exclusively within the
jurisdiction of the Magistrate, and it cannot be determined without
deciding the question of title — Hertford Union v. Kimpton, 25 L. J.
M. C, 41. A fortiori, the assertion of title does not oust the jurisdic-
tion when the question is immaterial, and, therefore, calls for no decision.
Thus under the Police Act of 1856, s. 37, a forcible entry upon
property, taking possession with violence, falls within the summary
jurisdiction of the Magistrate, and that jurisdiction would not be
ousted by the plea that the land was the properly of the party charged
with having forcibly entered, because whether it was his or not is
immaterial; he is as punishable for entering upon his own as upon
his neighbour's land with violence [see also Act IV of 1866 (Bengal),
8. 29; Act VIII of 1867 (Madras), 8.20; and Code of Cr. Pro., c. 22].
In Williams v. Adams, 31 L. J. M. C, 109, it was held that the
owner of land on both sides of a road (and who, therefore, was the
owner of the soil of the road) was properly convicted by Justices of
the offence of laying rubbish on it, though he set up in his defence
that the road was not a public road, and that he was the owner of the
soil; for the Justices had jurisdiction to decide whether the road was
a highway or not, and if it was, it was immaterial whether the property
in the soil was in the defendant [and see Code of Cr. Pro., c. 20, and
Conservancy Act, 1856].^

7. Having satisfied "himself that he is not incapacitated on any of
the above grounds from doing any act applied for, or taking cogni-
zance of any matter brought before him, the Magis^trate must next
ascertain whether, upon the facts as represented to him, it is within
his jurisdiction, as regards the subject-matter, the place, the time, the
person proceeded against, and sometimes, also, the person instituting
the proceedings. Thus, if a breach of the criminal law is said to have
been committed, his jurisdiction will depend first —

(a). On the nature of the alleged offence. No attempt can be made
here to make a list of the various matters over which Magistrates have
jurisdiction. It is enough to observe that their jurisdiction rests
wholly on enactments, wnether of Parliament or of the Legislative
Councils. The power of summary adjudication by Magistrates is
unknown to the Common Law. When an Act speaks of the Queen's
Courts, itis understood not to apply to Justices exercising a summary
jurisdiction — 2 Hale, 29; Gregory's case, 6 Rep., 20; R. v. Crisp, 1 B.



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AND JUSTICE OF THE PEACE IN INDIA. 13

& A.y 282; and see R. v. Steventon, 2 East, 362; and when an offence
ia created without naming any tribunal for its trial, it is not triable
by Magistrates in their summary jurisdiction. To give Magistrates
such jurisdiction over it, the Act must commit it to them in express
terms, or by necessary implication.

{b,) Next, the place where the offence was committed is to be re-
garded. As a general rule, it may be said that the criminal jurisdiction
of Magistrates is limited to offences committed within their district ;
for instance, if a person does an act in one district which is a nuisance
in another, the Magistrates of the latter would have no jurisdiction to



Online LibrarySir Peter Benson Maxwell (1817-1893)An introduction to the duties of magisitrates and justices of the peace → online text (page 6 of 49)