Commonwealth v. Leach

1 Mass. 59

Opinion

Thacher, J.

I am of opinion that the statutes of 1 Ed. III. c. 16, and 34 Ed. III. c. 1, respecting the jurisdiction and powers of justices of the peace have been adopted, used, and approved here, and are to be considered as part of our common law; that the offence charged in the indictment is cognizable by the Court of Sessions, and, therefore, that judgment ought not to be arrested.

Sedgwick, J.

Justices of the peace, whether acting individually or in sessions, are creatures of statute ; and their powers are given them by the statutes.—2 Hawk. 61, 8.—It appears to me, generally speaking, that the English statutes which were in force at the time of the emigration of our ancestors from that country, are common law here. *The statutes of Ed. III. have been [ * 61 ] adopted and practised upon here, and are, therefore, to be considered as part of our common law. This is decisive of the question before the Court, as the offence charged in the indittme I is, by those statutes, within the jurisdiction of the Sessions.

Strong, J.

I have no doubt upon the question. Justices of Ine peace have exercised this authority for a long time ; certainly as far back as the memory of any of us reaches, probably much farther; which affords a strong presumption that the statutes of Ed. III. have been considered as common law here. Usage in like points has always been taken as evidence of what is our own law—common law.

Dana, C. J.

The term common law ought not to be construed so strictly as is contended for by the counsel for the defendant. Generally when an English statute has been made in amendment of the common law of England, it is here to be considered as part of our common law. For instance, the statute of 7 Ja. I. c. 5, and 21 Ja. I. c. 12, giving double costs to an officer who is sued out of his county, for any thing done by him in the execution of his office, being made in amendment of the common law, is adopted here, and is part of our common law. So also the statute of Anne, respecting negotiable notes. Usage of the country establishes and makes the common law of the country. No one, probably, can recollect the period when the Courts of Sessions have not exercised the authority which is now excepted against. Justices of the peace have this authority expressly given them in their commissions. It appears to me that they have uniformly exercised it, and that without being questioned ; and, therefore, that the law is to be consid ered as settled. Per Cur. unanimously.

Footnotes

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(a)

Motion overruled.

[Commonwealth vs. Leach, 3 Mass. 59.—Blankard vs. Galdy, 2 Salk. 411; 2 Peer Williams, 75.—Campbell vs. Hall, Cowp. 204.—Case of Sir Thomas Picton, 30 How. State Trials, 903.—Attorney-General vs. Stewart, 2 Meriv. 143.—Commonwealth vs. Knowlton, 2 Mass. 534.—Van Ness vs. Paccard, 2 Peters, S. C. R. 144.—Wilford vs. Grant, Kirby, 114.—Terrett & Al. vs. Taylor & Al., 9 Cranch. 43.—The Town of Pawlet vs. Clark, 9 Cranch. 242.—Glass Factory vs. Reid, 5 Cow. 587.—State vs. Buchanan & Al., 5 Har & Johns. 356.—Ed.]