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   Chapter 15 ENGLISH JUSTICES OF THE PEACE (1600-1650)

The American Nation: A History — Volume 1: European Background of American History, 1300-1600 By Edward Potts Cheyney Characters: 22286

Updated: 2017-12-01 00:02

However extensive the duties of the officers whose functions are described above, the real men-of-all-work in the counties at this time were the justices of the peace. The law required that a justice of the peace must have lands and tenements to the value of L 20 a year, the amount of the legal knight's fee; [Footnote: 18 Henry VI., chap. xi] but ordinarily he had much greater property. John Evelyn's father, who has been so often referred to as a typical country gentleman of the early seventeenth century, had an estate of L 4000 a year when he was successively sheriff and justice of the peace. [Footnote: Evelyn, Diary, year 1634] The justice of the peace, like the sheriff, the lord- lieutenant, and the coroner, was expected to perform his public services as part of his patriotic duty. It is true that certain statutes provided that part of the fines for any violation should go to the justices before whom the violators were prosecuted; two or three others gave small fees to the justice for affixing his seal or signing a document; but these were apparently casual efforts to secure enforcement, and can have brought no appreciable return to the justices. The law gave each justice 2s. for each day of quarter- sessions up to three days; but this could have produced at most only 6s., and seems to have been usually jointly expended by the magistrates in a dinner.

In an interesting speech by a Mr. Glascock in the House of Commons, December 16, 1601, two equally undesirable justices are described- first, the one "who from base stock and lineage by his wealth is gotten to be within the commission"; the other "a gentleman born, virtuous, discreet, and wise, yet poor and needy. And so only for his virtues and qualities put into the commission. This man I hold unfit to be a justice, though I think him to be a good member in the commonwealth. Because I hold this for a ground infallible-that no poor man ought to be in authority. My reason is this: he will so bribe you and extort you that the sweet scent of riches and gain taketh away and confoundeth the true taste of justice and equity." [Footnote: Townshend, Proceedings, 953, 954] But burdensome as the duties of a justice must have been, and almost unpaid as they were, the office does not seem to have been avoided as was that of sheriff. Probably such service was taken as a matter of course by the gentry, and compensation was found in the stamp of social position it placed upon them, and in the sense of power, as well as of a patriotic fulfilment of duty. It was sometimes a matter of complaint that "with us these magistrates have been so unsuitably appointed that a county justice is made a jest in comedies, and his character the subject of buffoonery and laughter." [Footnote: Carey, English Liberties, 275] This is an obvious reference to Justice Shallow and other worthies of the dramatists. It is dangerous to make too serious an inference from contemporary comedies, because certain personages soon became stock characters and ceased to have any very close relation to actual life, and in this particular instance Shakespeare was probably gratifying an old grudge.

Nevertheless, there was evidently some foundation for this picture of the county justice. Dorothy Osborne, in one of her delightful letters to Sir William Temple, in giving her requirements for a husband, pokes fun at such ambitions. "He must not be so much of a country gentleman as to understand nothing but hawks and dogs, and be fonder of either than his wife; nor of the next sort of them whose aim reaches no further than to be Justice of the Peace, and once in his life High Sheriff, who reads no book but statutes, and studies nothing but how to make a speech interlarded with Latin that may amaze his disagreeing poor neighbours, and fright them rather than persuade them into quietness." [Footnote: Letters of Dorothy Osborne to Sir William Temple, letter 36 (ed. by Parry), p 171] With all these criticisms, and in the face of occasional ineptitude, the body of justices of the peace included much ability. It was scarcely possible for a justice to act without some knowledge of Latin, as almost all the records and documents which he would have to make, read, or sign were in that language. A succession of text-books on the duties of the office, the more important of them appearing in many successive editions, proves an intelligent interest and demand for instruction in their duties. Moreover, the men who served as justices were often well known in other ways, many of them as sheriffs, as members of Parliament, and in still other capacities. They were of families who provided the active men of enterprise of the period. The list of Devonshire justices in 1592 includes Sir Francis Drake, Sir Ferdinando Gorges, Gilberts, Carews, Seymours, Courtenays, and other names prominent among the men who laid the foundations of the maritime greatness of England and of the existence of America. Of the fifty-five, twenty-eight were at one time or another high-sheriffs of the county, twenty more were then, or became afterwards, knights, six sat in the House of Commons, and three in the House of Lords. [Footnote: Hamilton, Devonshire Quarter- Sessions, 3, 330-348.]

The justices of the peace were fair representatives of that great class of rural gentry which exercised so strong an influence over the destinies of England in the sixteenth, seventeenth, and eighteenth centuries. From this class were drawn all the county officials who have been named, except the lord-lieutenant; from it were chosen the county representatives to Parliament; and in it were found the strength and the weakness of the English political system. James I., in appealing to the country gentry to continue to live on their estates in their counties, said to them, "Gentlemen, at London you are like ships in a sea, which shew like nothing, but in your country villages you are like ships in a river, which look like great things." [Footnote: Bacon, Apothegms, in Works (Spedding and Heath ed), VII., 125.]

Out of this body of rural gentry from twenty to sixty in each county were chosen by the lord-chancellor to serve as justices of the peace. [Footnote: Lambard, Eirenarcha, book I., chap. v.] The "commission of the peace," by which the justices were appointed and from which they drew their powers, was a formula well known and constantly quoted and commented upon, and added to from time to time until late in the sixteenth century. In was then, in 1590, revised and formulated anew by Sir Christopher May, Chief-Justice, with the advice of all the other judges of the time, and has not been changed from that day to this. [Footnote: Ibid., book II., chap. vii.]

The justices of the peace performed some of their duties separately, acting individually as circumstances required, or as proved convenient to themselves. Other powers they could exercise only when two or more acted together and concurrently. Still others, and those far the most important and dignified, they performed in a body at their "quarter- sessions." What things a justice might do singly, what two, three, or four justices might do together, and what they might do only in the formal sessions of the whole body of justices of the peace of the county were defined partly in the statutes, partly in the commission under which they acted.

The regular or quarter-sessions were meetings held four times a year- in October, midwinter, spring, and midsummer-at which all the justices of the peace of the county were supposed to be present. There were, besides, occasional irregular sessions, or meetings of the regular sessions adjourned from one time to another. In corporate towns the city officers acted as justices of the peace, reinforced usually by some others especially appointed; and each town followed its own customs as to meeting in general sessions.

Although the law contemplated the attendance of all the justices of the county at each quarter-sessions, as a matter of fact the attendance was very irregular and incomplete, few of the records, so far as published, showing an attendance of as many as a dozen out of perhaps forty or fifty. Most of them evidently came riding up to quarter-sessions if it suited their convenience and remained away if it did not, restricting their services to those duties which could be performed in their own neighborhoods, and leaving to a few active, regular, and hardworking magistrates the responsibilities of the higher work. [Footnote: West Riding Sessions Rolls; Manchester Quarter-Sessions, passim.]

Of those who made up quarter-sessions one at least must be "of the quorum." This expression is taken from the commission of the justices of the peace, which in the clause giving to the justices the power to inquire and determine by oath of the jurors as to felonies and other offences and to punish them, after naming all those to whom the commission for that county is issued, says, quorum aliquem vestrum, A, B, C, etc., unum esse volumus (of whom we wish you, A, B, C, etc., to be one), naming presumably such as were learned in the law or otherwise especially trustworthy. [Footnote: Lambarde, Eirenarcha, book I., chap. ix.] As without the presence of one of the "quorum" no quarter-sessions could be held, to be a "justice of the peace and of the quorum" was to be one of a select list of the justices. One-third or one-half of the list of those in the commission were usually named also in the quorum. In addition to the justices there should, according to law, be present at quarter-sessions, in the first place, the custos rotulorum, or keeper of the rolls of the sessions, the "custalorum" of Justice Shallow. [Footnote: Merry Wives of Windsor, act i., sc. i.] This was always one of the justices of high rank indicated to the lord- chancellor for appointment by the king himself, [Footnote: 37 Henry VIII., chap i.] and was very apt to be the lord-lieutenant of the county. He could be, and probably was, usually represented at the sessions by a deputy, who was a person of considerable importance and influence, upon whom much responsibility was placed by the statutes, and whose abilities must have been constantly relied upon by the magistrates. The title of this deputy was "clerk of the peace," the predecessor apparently of the American county clerk. He was usually familiar with the law, and his knowledge of precedents and procedure must often have stood the unlearned justices in good stead, besides the work which he performed in drawing up indictments, writing orders, and keeping records.

Besides the custos and the clerk, the sheriff or his deputy were bound to be present prepared to empanel jurors and execute process; as well as the jailer ready to produce his prisoners; the superintendent of the county house of correction; all jurors who had been summoned by the sheriff; all persons who had been bound over by single justices to appear at quarter-sessions; all high constables and bailiffs of hundreds; and the coroners. [Footnote: Dalton, Officium Vicecomitum, chaps, xxxiv., clxxxv.] The quarter-sessions should,

by law, be kept for three continuous days if there was any need; [Footnote: 12 Richard II, chap. x.] but, as a matter of fact, sessions seldom lasted more than a day, and a contemporary complains that "many doe scantly afford them three whole hours, besides the time which is spent in calling of the county and giving of the charge." [Footnote: Lambarde, Eirenarcha, book IV., chap. xix.]

The powers and duties of the justices of the peace in quarter-sessions and separately were so considerable and varied as to tax the ability of an Elizabethan or Jacobean text-book writer to reduce them to simplicity of statement, or to the compass of five or six hundred pages of enumeration. Many of these powers were general, arising from the nature of the office for the "conservation of the peace"; but the great mass of their duties was placed upon them by statutes. Ten early statutes are enumerated in the commission itself, before coming to the inclusive "and cause to be kept all other ordinances and statutes made for the good of our peace and the quiet rule and government of our people." From the middle of the fifteenth century forward, the enforcement of the greater number of new laws was placed primarily in the hands of the justices of the peace.

As time passed on legislation became more and more minute and inclusive. Few interests in human life escaped the paternal attention of government under the Tudors and Stuarts, and this great mass of enactment it became the duty of the groups of country gentry in the counties and of the civic magistrates of the towns to put into force. A writer of the time enumerates two hundred and ninety-three statutes passed previous to 1603 in which justices of the peace are mentioned and given some jurisdiction or duties. [Footnote: Lambarde, Eirenarcha, book IV., chap, xix., Table, App.] Under Elizabeth alone there were seventy-eight, ranging from the "preservation of spawn and frie of fish" to those "touching bulls from Rome." The infrequent and short- lived parliaments of James I. added thirty-six to the list. [Footnote: Dalton, The Country Justice, Table of Contents.]

Although many of these laws are repetitions, some others temporary or local, still others insignificant, yet, on the other hand, some of them opened up whole new fields of activity to the justices: as, for instance, those placing upon them, after 1563, the administration of the Act of Apprentice; and, after 1581, the responsibility for the search for and punishment of popish recusants. A whole code of law, procedure, and precedent grew up on these two subjects, besides others scarcely less extensive.

Quarter-sessions had nothing to do with civil suits, and cases of treason, murder, and certain other high crimes were excluded from their competence. Apart from this restriction and these offences, there was little difference between sessions and assizes, between the jurisdiction of the learned judges of the king in their half-yearly circuit and that of the county magistrates in their quarter-sessions. Before them both grand and petty juries were empanelled, indictments drawn up, prisoners tried for assault, burglary, horse-stealing, witchcraft, pocket-picking, keeping up nuisances, cheating, failure to attend church, and almost all other offences of which seventeenth- century Englishmen were capable. If convicted they were placed in the stocks, whipped, or hanged. In Devonshire, in the midwinter sessions of 1598, out of sixty-five culprits who were tried eight were hanged; at midsummer, out of forty-five eight were hanged, thirteen flogged, seven acquitted, and seven, on account of their claim of benefit of clergy, were branded and then released. [Footnote: Hamilton, Devonshire Quarter-Sessions, 33.]

The justices in sessions or singly also performed much administrative work, such as the oversight and repair of bridges, the granting of licenses to ale-houses, the establishment of wages, the binding out of apprentices, and the relief of wounded soldiers. Many laws passed under Elizabeth and James I. admitted of exceptions when approved by one or more justices of the peace, and there was thus constant occasion for granting to individual persons or at special times permission to export grain, to turn their barley into malt, to build cottages without land attached, to carry hand-guns, to buy and sell out of market-hours, to beg, and other dispensations from the rigorous application of the law. [Footnote: Ibid., 27, 164, etc.]

The punishing of recusants and the discipline of those who refused or neglected to go to church was, as already stated, an active occupation of the justices.

At certain times, such as the period just following the Gunpowder Plot, when the search was for Catholics, and somewhat later, when the search was for Puritans and Separatists, the Privy Council brought severe pressure upon the justices to fulfill these duties, and numerous prosecutions were brought by them. In Middlesex during the reign of James I. the indictments averaged eighty-five per year for religious offences, and sometimes at one session there were as many as one hundred and fifty persons indicted. [Footnote: Middlesex County Sessions Rolls, II., III.; Hamilton, Devonshire Quarter-Sessions, 27, 74, etc.; Cal. of State Pap., Dom., 1633-1634, p. 531.]

The justices were constantly called upon to act in special emergencies or to give special relief. If a man's thatched cottage were burned, the nearest justice might authorize him to make an appeal to his neighbors for help to rebuild; if a whole village or town suffered from a more extensive fire, the justices in their sessions quartered the homeless people in various parishes, announced a subscription, and, calling constables and leading villagers before them, exhorted them to liberal voluntary gifts, and appointed a subcommittee to administer the funds for relief; if a pestilence appeared, a tax-rate for immediate assistance was levied, and the justices supported the sick and enforced the quarantine; if food became scarce and high-priced the justices forbade its export from the county or conversion into malt, and even announced a maximum market-price for it. When weavers or other artificers were out of work the justices set to work to induce masters to employ them or merchants to buy their goods, or, as a last resort, levied a rate for their support. If news came of the capture of a number of English sailors or merchants by Barbary pirates, collections were taken up by the justices of the maritime counties for their redemption. In all such exigencies it was the justices of the peace who were expected to tide over the special temporary difficulty or need.

Besides the ancient regulative duties of the justices, and besides those that were definitely given them by successive statutes, they were constantly subject to the commands and instructions of the Privy Council. In 1592, soon after the remodelling of the commission, a circular letter was sent by the Privy Council to certain commissioners in each county requiring them to call a special meeting of all justices of the peace, at which the oath of office and the oath of supremacy must be taken by each, or they must retire from the commission of the peace. [Footnote: Hamilton, Devonshire Quarter-Sessions, 36, 48; Nichols, Hist. of the Poor Law, 252; Hist. MSS. Commission, Report XIV., App. IV., 42.] This seems to have been preparatory to a more strict discipline and oversight of their actions, for communications from the council now became more frequent and more drastic. In requiring them to fulfil their duties as magistrates the Privy Council spoke categorically in the name of the king in a constant series of letters, couched often in such harsh terms of reproof as to make it hard to realize that the justices were gentlemen of rank and dignity, fulfilling laborious services practically without compensation. In 1598 vigorous letters were sent to the various counties calling the attention of the justices to the recently enacted poor law, and requiring them to see it put into execution. [Footnote: Leonard, "the Poor Law," 143.] From this time forward to the outbreak of the civil war the pressure of the council on the justices became stronger and stronger. In January, 1631, a "Book of Orders" was issued by the Privy Council giving instructions in greater detail to the justices as to their duties, especially in regard to the poor law, and requiring them to make reports every three months to the sheriffs, who were to transmit these reports to the justices of assize, who were in turn to send them to certain members of the Privy Council deputed for the purpose. The judges of assize were also to report directly to the king if they learned of the negligence of any of the justices of the peace. [Footnote: Ibid., 158, etc.] "The Book of Orders" was reissued from time to time and its requirements followed up.

An attempt was made by these means to introduce a system of "thorough" in the affairs of local government during the period of the personal government of Charles I., analogous to that attempted in the higher ranges of government by Wentworth, Laud, and their fellow-members of the Privy Council. The great instruments of this plan were the justices of the peace, acting within the limits of their respective counties, carrying out the manifold duties imposed upon them by law, under constant pressure from the Privy Council and the king. After even this partial enumeration of the services of the justices of the peace and of the supervision kept over them, one can readily appreciate the feeling of the justices of Nottingham who complained that they had "little rest at home or abroad." [Footnote: "Cal. of State Pap, Dom," 1631-1633, p. 18.]

The centre of gravity of local government in England was in the county. The power which put its machinery in motion was that of the central government; but the actual administration was in the hands of the sheriff, the lord-lieutenant, the coroner, and the justices of the peace. The county bounded the sphere of activity of all these officials. The commission of any group of justices named the county in which they were to exercise their functions, and outside of its boundaries all their powers dropped from them. The coroner could not hold an inquest outside of his own county, and even the lord-lieutenant could exercise his military functions only within the shire or shires named in his commission. When, in 1603, James I. rode southward from Edinburgh on the news of the death of Elizabeth, and crossed the border at Berwick, he was met by the sheriff of Northumberland and escorted by him to the borders of Durham, where he was met by the sheriff of that county, and so from shire to shire through the whole length of England till he reached London.

The basis of representation in Parliament was the county: the counties formed the districts for all the circuit courts; national taxation was largely distributed by counties, and, as has been seen, local jurisdiction and administration were largely in the hands of county officials.

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