WAR DEPARTMENT

WASHINGTON

January 4, 1907.

My Dear Judge:

I thank you very much for the honor you

do me in wishing to dedicate your book to me,

and I shall be glad to have it done.

Very sincerely yours,

(Signed) Wm. H. Taft.

Hon. Charles S. Lobingier,

Judge of the Court of First Instance,

Manila, P. I.

PREFACE TO THE SECOND EDITION.

The original occasion of Part One of this work was the need experienced by the author in attempting to supervise and instruct the justices of the peace of the Twelfth Judicial District, where he was then stationed. The fact that the considerable volume of statute law on the subject, not to mention its judicial and official interpretation, was scattered thru a number of volumes, very often not accessible to the justice, and that there was no one book to which he could be. referred in order to obtain an intelligent and connected understanding of his duties and powers, appeared to make such an undertaking imperative if any real progress were to be expected. The first edition was necessarily in Spanish as out of the fifty nine justices of the district but one is recalled. who had then even a reading knowledge of English. The edition was prepared for, and published in, that district and did not become available elsewhere until its justices were all given opportunity to obtain it at practically the cost of printing.

The early exhaustion of the first edition, the numerous inquiries for the work from different parts of the Archipelago, and the many gratifying assurances that a new edition was needed, have led to the preparation of the present one and its appearance at this time seems to be justified by recent changes in the law. The scope, of this edition, as will be seen, is broader than the first. That was designed primarily and mainly for the justices themselves. The present edition aims to be (1) a manual for magistrates (2) a convenient reference work for lawyers whose practice (whose does not at times?) takes them into the primary courts, (3) a text book for law students and others who may be preparing for a legal or semi-legal vocation, and (4) a guide for constabulary and other peace officers in the direct exercise of their duties, as well as in the hardly less important work of assisting the justices and explaining obscure points in the law.

For the first and, indeed, for each class, it is sought to include all acts or parts of acts relating directly to justice of the peace

courts together with all authoritative interpretations thereof. For the second class, features like the Manila Municipal Court laws have been added, while portions like the "Historical and Comparative" introduction and the elementary notes of explanation are designed particularly for the third class, who should constitute a promising source of supply for future justices of the peace and to whom every opportunity should be offered to fit themselves thoroly for a magistrate's career. The attention of teachers and others who may use the book in this connection is directed to the analytical arrangement of the Table of Contents, enabling it to be used as a rough diagram or syllabus of the subject, showing the correlation of its parts and affording a bird's-eye view of the whole field.

The part relating to evidence, of which more will be said further on, and to civil actions generally, is designed for all classes, including constabulary officers, as that field is not attempted to be covered by the Manual so recently and well prepared for that useful organization.

The author desires here to acknowledge valuable assistance in preparing the first edition rendered by two members of his former court staff-Mr. Norberto Romualdez, Provincial Fiscal of Leyte, and Mr. George C. Taylor, Court Clerk. Acknowledgment of aid is also due to Mr. Clement L. Bouvé, of the Manila Prosecuting Attorney's office, to Mr. Felipe Buencamino, Jr., of the author's present staff, and to other friends-American, Filipino and Spanish, for helpful suggestions and encouraging expressions of appreciation. AUDIENCIA, MANILA, April 30, 1907.

PART ONE

JUSTICE OF THE PEACE COURTS.

Antiquity

TITLE I

HISTORICAL AND COMPARATIVE. *

"

"The office of justice of the peace is the most ancient of which it can be said that its powers are wholly derived from statutes." This is the conclusion of Sir Frederick Pollock, 1 the most eminent of living English jurists. He refers here, of course, to England but it is to that country that and we must look for the origin of the justice of the Origin peace's office as it exists not only in the United States but also in continental Europe and in the Philippines. Nearly three centuries before Pollock another great English jurist had said, of this office: "It is such a form of government for the tranquility and quiet of the realm as no part of the Christian world hath the like if the same be duly exercised.” 2

3

From at least the beginning of the thirteenth century there. existed in England a class of local officers known as "conservatores pacis" or keepers of the peace. These were at first merely ministerial officers but in 1344 they were invested with criminal jurisdiction. 4 In 1360 the permanent office of justice of the peace was instituted, the name dating from about this time. Eventually some civil jurisdiction was acquired, mostly of a ministerial character, but the main functions of the office, in so far as they are judicial, have, in England, always been con

1 13 Harv. L. Rev. 184.

2 Sir Edward Coke, Fourth Institute p. 170.

3 See Howard, On the Development of the King's Peace and the English Local Peace-Magistracy, 1 Neb. Univ. Studies 255, 271 for a luminous discussion of this subject, Cf. 1 Blackstone's Commentaries p. 350 et seq. 4 Howard, Id. 274.

* From a contribution by the author to the Law Quarterly Review, London.

In

2

nected mainly with the administration of the criminal law.1 that country also the justice the justice is a county officer and the position is one of greater dignity and social prestige than in America, 3 whither it was transplanted by the early English colonists, altho in the latter country the justice's court was given civil jurisdiction 4 which was gradually extended until that court has become the one for the trial of small causes, mostly those arising out of

In America

contract.

In France

It was during the stormy period of the revolution that France recreated her judicial system abolishing the ancient courts known as "parlements."5 From England the England the reformers borrowed, for criminal cases, the jury system (the germ of which like that of the English parliament 6 had been taken from France itself) and from the same country they transplanted the office which they rebaptized under the name of juge de paix. This functionary was placed in charge of the lowest of the three grades of tribunals below the Court of Casation the cantonal-and ever since the revolution the canton has beenpreeminently, the district of the juge de paix.7 But while in England, as we have seen, the jurisdiction of the justice had been almost exclusively criminal, in France he was given civil jurisdiction which is now final up to one hundred francs (P40) and which, as to amounts between one and two hundred francs, is subject to appeal. 8 His primary duty, however, is conciliation, and no case can be tried by him until he has, first, sought to bring the parties together. In criminal matters the juge de

1 Howard 1 Neb. Univ. Studies 181.

2 Id. 278; 18 Am. & Eng. Encyc. of Law (2d Ed.) 33, 35.

3 Howard 1 Neb. Univ. Studies 279.

"These Justices of the Peace or magistrates administer summary jurisdiction in the small town and in the rural districts. The position of magistrate is one of influence and honor and is much sought after". Robert Donald (Ed. London Daily Chronicle), British Social Legislation, 83 Outlook, 327.

4 But this, being purely statutory, is construed strictly (Schroeder v Ehlers 31 N. J. L. 44); especially as to actions arising out of tort Taylor v Woods 52 Ala. 474.)

5 These judicial reforms were effected thru the Constitution of 1789-90. See Gardiner's French Revolution (Boston, 1883) 66; 9 Encyc. Brit. (9th Ed.) 600.

6 Id. Vol 19 p. 878.

7 Rougemont, La France (New York, 1886) p. 23.

8 9 Encyc. Brit. (9th Ed) 511.