Chapter 3

JUSTICES OF THE PEACE

The work of Lord Lieutenants and Sheriffs was closely intertwined with that of Justices of the Peace (frequently referred to as Magistrates after c.1800). Their offices helped them create a sense of community and exclusiveness within the landed classes which differentiated them from the lower orders. They were convinced that they could provide better county government than uninformed, and potentially interfering, oppressive and exploitative, outsiders. Central government was not convinced; Lord Burghley was constantly frustrated by the poor quality of many Justices. But a paid bureaucracy was unaffordable. The strength of English government was built upon the unpaid services of the landed gentry.

Justices sitting in Quarter Sessions ruled their counties for more than half a millennia. As James I put it, they were ‘the King’s eyes and ears in the country’. And, even if the Assize judges were ‘never so careful and industrious, if the Justices of the Peace under them put not their helping hands, in vain is all their labour’.1

Justices of the Peace had a three-fold responsibility: they preserved the peace, administered their counties, and acted as arbitrators. Crime was their original raison d’être, and their evolving practice probably had a greater effect upon the development of criminal law than either statute or the influence of professional lawyers. Keepers of the Peace, as Justices of the Peace were originally known, were first commissioned by Richard I in 1195. Their primary role was to arrest suspects, and to inquire into felonies and trespasses. Their powers were steadily widened;² they became Conservators of the Peace in 1327 (the Statute of Westminster), and Justices of the Peace in 1361. In the fourteenth century they began to try indictments, and acquired jurisdiction over economic matters such as prices and wages, and weights and measures. In the sixteenth century, Parliament gradually transferred shrieval criminal jurisdiction to Justices of the Peace, making the Sheriff merely their executive agent. The Tudors added greatly to Justices’ workloads – ‘not loads, but stacks of statutes’, in the much-quoted words of William Lambarde. He estimated in 1602 that there were 309 statutes bearing on their activities, of which 176 had been passed since 1485.3 Religious observance, alehouses and bridges, were just three of the matters they supervised. The Elizabethan Poor Laws (see Chapter 8) were perhaps the heaviest ‘stacks’ they had to bear; these took up much of their time for the following two centuries. Eighteenth-century Parliaments added to individual Justices’ workloads by sharply increasing the number of criminal matters they could deal with summarily.

Justices’ powers were reduced in the nineteenth century. Their ability to follow their own inclinations was greatly restricted by reforms of court procedures. The 1834 New Poor Law Act transferred powers to the newly-created guardians (although Justices were ex officio guardians themselves). County police forces took over the role of collecting evidence for prosecution of offenders. In 1888, the Local Government Act 1888 created county councils, and deprived Quarter Sessions of all their administrative powers. The judicial activities of Justices of the Peace continue to this day, but the 1888 Act marks the end of the period covered by this book.

These changes were accompanied by an increasing flow of printed manuals advising Justices on their powers. William Lambarde’s Eirenarcha went through twelve editions between 1581 and 1619. Michael Dalton’s The Country Justice went through ten editions between 1618 and 1661, and continued to be in print throughout the eighteenth century. Richard Burn’s The Justice of the Peace and Parish Officer went through no less than thirty editions between 1755 and 1869, and served as the standard work in the early nineteenth century. Stone’s Justices’ Manual has been regularly updated (under various titles) since 1842, and is still authoritative. The journal Justice of the Peace, first published in 1837, also includes much useful information. These and other manuals are still invaluable guides to the contemporary work of Justices of the Peace.⁴

Under Acts of 1388 and 1390, Justices were entitled to be paid four shillings per day for attendance at Quarter Sessions. They could also be paid five shillings per day for divisional meetings under the Statute of Artificers of 1563. Payments were regularly recorded on the pipe rolls. Peers and ecclesiastics could not claim, although the names of the former are noted. Justices were also entitled to levy a wide variety of fees. Constables wanting to be sworn in, overseers who wanted their accounts allowed, everyone bound by recognizance, all had to pay a fee.

Burns’ The Justice of the Peace was the leading handbook for the eighteenth and nineteenth-century Justices.

The powers given to Justices were set out in their Commissions, which were re-modelled in 1590, and remained virtually unchanged until 1878.5 Individual justices were empowered to act as conservators of the peace; the justices collectively were empowered to hold sessions and to judge felonies, trespasses, and misdemeanours. They were to leave casus difficultatis (difficult causes – in practice, most felonies) to the Assize judges. The Custos Rotulorum was instructed to bring all writs, precepts, processes and indictments to the sessions for determination.⁶ The Lord Chancellor headed each Commission, followed by other members of the council, the Assize judges, the local nobility, and, finally, the knights and gentlemen. Those who were ‘of the quorum’, that is, supposedly had legal training, were identified. Some of them always had to be present during sessions.

In a status-conscious society, the order in which Justices were listed was important: it determined their seating order, and therefore their status, at both Quarter Sessions and Assizes. Thomas Lovell spent £40 in 1598 to ‘be restored to his former position in the Commission’ for Norfolk.⁷ In the eighteenth century, the importance of such distinctions diminished; from 1753, Justices were named alphabetically – apart from the increasing number of clerics, who were named at the end.

The appointment of Justices of the Peace was the responsibility of the Lord Chancellor,⁸ although members of the Privy Council, and the Assize judges, were automatically appointed. Before the Civil War, Assize judges were expected to nominate candidates. They tried to ensure that some members of the Bench had legal training, and that no area was devoid of Justices. ‘When any desireth to be a justice, he getteth a certificate from divers Justices of the Peace in the county, to the Justices of Assize, certifying them of their sufficiency and ability.’⁹ Recommendations also came from elsewhere. In 1564 and 1587, the bishops were asked to recommend ‘well affected’ gentlemen for appointment. They did not always wait for invitations to make recommendations. Local magnates also had influence. In Somerset, John Poulett secured several appointments in the 1620s through the Duke of Buckingham.¹⁰ In Norfolk, the Duke of Norfolk probably influenced seventeen of the thirty-two appointments to the Bench made between 1558 and 1572.11 Lord Chancellor Ellesmere caused consternation when he announced in 1605 that he only intended to make appointments on the recommendation of Assize judges. The patronage network at court defeated his intention.¹²

During the Interregnum, the security of what many saw as an illegitimate regime was a major issue. That resulted in the nomination of serving army and naval officers as Justices. Thirteen officers were serving as Justices in Hampshire in 1652. Officers of the Restoration navy also served on the Hampshire Bench.¹³

After the Restoration, Lord Lieutenants increasingly assumed supervisory powers over the Bench. From the mid-eighteenth century nominations were increasingly left to them. By 1828, Brougham could comment that ‘such a thing is hardly known as any interference with respect to these nominations by the Lord Chancellor. He looks to the Lord Lieutenant … for the names of proper persons.’¹⁴ Lieutenants in turn sought advice from Clerks of the Peace, chairmen of Quarter Sessions and other leading Justices. Kent’s Lord Lieutenant insisted on hearing the advice of the Justices in the Division where the nominee resided, on the basis that they would have to work with the new appointee.

Most of the actual work was done by prominent gentlemen, or perhaps by clerics. Lords of the Council never appeared at Quarter Sessions and Lord Lieutenants rarely put in an appearance. Local aristocrats were usually absent, at least until the early nineteenth century, when many took prominent roles. Most gentlemen aspired to be Justices of the Peace. Office enabled them to protect their adherents, attack those of opposing interests, and greatly augmented their ability to influence Parliamentary elections. It was their duty to preserve the peace, but they used their discretion to determine in whose interests the peace would be kept. Not all Justices were entirely peaceful: three members of the Shropshire Bench were indicted before their own Bench in 1414.¹⁵ Nicholas Bacon complained in 1565 that many gentry wanted the office ‘to serve the private affection of themselves and their friends as in overthrowing an old enemy or maintaining a friend, a servant or tenant’.¹⁶

In the seventeenth century, most Justices were pre-eminent in their neighbourhoods. In the eighteenth and nineteenth centuries, however, many new Justices gained more prestige from the office than they brought to it. Many sought local prestige from their position, rather than ‘the trouble of doing the duty’, as Lord Cowper put it.17That had always been the case. Assize judges frequently complained of those who neglected to swear their oaths. In Surrey, almost 50 per cent of recognizances issued between 1661 and 1663 were signed by just three of the fifty-one Justices.¹⁸

The proportion of Justices attending Quarter Sessions declined over the centuries. In the early fifteenth-century East Riding, attendance averaged 67 per cent.¹⁹ During the late sixteenth century, between six and twelve attended the Wiltshire Quarter Sessions, although there could be as many as thirty or forty in the Commission.²⁰ James I issued a proclamation requiring Justices to attend Quarter Sessions. Clerks of the Peace were instructed to record their attendance, and to report non-attenders to the Lord Chancellor through the Assize judges.²¹ Nothing changed. Two centuries later, perhaps half of the names on any Commission were those of merely titular Justices, who had never taken their oaths. The Merioneth Clerk of the Peace complained in 1800 that sessions were being lost due to the non-attendance of magistrates – despite the fact that there were about 150 in the county.²²

Attendance at Quarter Sessions was only one measure of Justices’ assiduity. Many who did not attend were nevertheless active locally. They heard the complaints of their neighbours, determined settlement cases, took recognizances, committed prisoners to gaol until the next Sessions, and undertook all the other out-of-sessions work which will be discussed in Chapter 4. More conscientious Justices could find office time-consuming. In Somerset, William Capell bitterly complained that ‘it is sessions with me every day all the day long here, and I have no time for my own occasions, hardly to put meat into my mouth, and to add this of the subsidy is unmerciful’.²³

The number of Justices in Commissions of the Peace gradually increased. A statute of 1388 limited their number in any one county to six, but this was ignored. In Gloucestershire, there were an average of 21.4 names in Commissions between 1461 and 1470, but 39.5 between 1497 and 1509.²⁴The Elizabethan Privy Council tried to reduce numbers, with little success. In 1580, there were 1,738 justices for the whole country.²⁵ There were about 3,000 by the end of the seventeenth century (including those serving in boroughs), but only about 800 active at any one time.26 By 1762, Gloucestershire had no less than 262 Justices,²⁷ although only a small percentage attended Sessions.

Justices of the Peace were appointed collectively by the Crown for the life of the monarch, or until the issue of a new Commission. New Commissions named the whole Bench, rather than individual justices. They were issued irregularly, superseding previous Commissions; Justices not named ceased to be Justices. Gloucestershire received sixty-one Commissions between 1461 and 1509; Cumberland only had fifteen in the same period.²⁸

Certain qualifications were required. From 1439, Justices were expected to hold freehold land valued at more than £20 per annum. In the seventeenth century, they had to be ‘of the most sufficient knights, esquires and gentlemen of the law’ resident within the county.²⁹ In 1732, the qualification for appointment was increased to possession of land worth £100 per annum. Heirs to estates valued at over £300 became qualified in 1745.

Justices appointed to be ‘of the quorum’ were supposed to have some legal qualification, so that they could provide legal advice to their fellow justices. Under Elizabeth, the proportion of members of the quorum to the numbers of working justices rose from about one-third to about three-quarters.³⁰ Gentlemen were seeking the status, rather than educating themselves in the law. By the late seventeenth century, most Justices were ‘of the quorum’.³¹ The legal importance of the quorum was effectively abolished in 1753.

The only other post-Reformation requirements for appointment were to receive the sacrament from a Church of England clergyman, to take the oaths of allegiance and supremacy, and to subscribe to a declaration against transubstantiation (the belief that wine and bread became the Lord’s flesh and blood when consecrated). Roman Catholics and, after 1662, Nonconformists, were excluded – although that did not prevent sympathisers from serving. Under James II, these requirements were relaxed; by 1688, perhaps 24 per cent of Justices were Roman Catholics, although they were dismissed after the Glorious Revolution.³² Quarter Sessions papers record many oaths and subscriptions.

Before a new Justice could act, he had to take out his ‘dedimus potestatem’, that is, take his oaths, and pay his fees. When William Hunt joined the Bench in 1744, he paid 1s 6d for his sacrament certificate,³³ £3-13s 6d for ‘my dedimus potestatum’, 10s 6d to Mr Salmon ‘for his trouble in taking it [the dedimus] out’, 2s to the Clerk of the Peace for being sworn in court, and 10s 6d for his ‘colt-ale’ (conviviality paid for by new Justices).34 Assize judges frequently complained about Justices who neglected to swear their oaths.

There were also social qualifications which, when they were ignored, caused much debate in Parliament, and sometimes dissension on the Bench. The consensus of opinion was expressed by Mr Glascock in the 1601 House of Commons:

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 … justice is never imprisoned or suppressed but by bribery.³⁵

Glascock’s comments could legitimately have been applied to eighteenth-century Middlesex. There, it was not easy to find suitable gentlemen prepared to take on the caseload facing urban Justices. In their absence, the government was forced to rely on ‘trading justices’, who sought the fees Justices could levy. Most were men of obscure origin, regarded with suspicion. In 1780, Burke described the Middlesex Bench as ‘the scum of the earth … some of whom were notoriously men of such infamous characters that they are unworthy of any employ whatever, and others so ignorant that they could scarcely write their own names’.³⁶ Such Justices trod a thin dividing line between outright corruption and simply being over-active. They could easily demand payment for licencing ‘disorderly houses’ which should have been suppressed, or for ignoring prostitutes who should have been arrested. Quarrels amongst neighbours could be stirred up, allowing Justices to take recognizances from the disputants to keep the peace, and then release them from their bonds, whilst pocketing the fees these two actions permitted.

In the Provinces, corruption was limited. There were, admittedly, many ‘sensual and ignorant small squires’, guilty of ‘oppressing their tenants, tyrannising over the neighbourhood, cheating the vicar, talking nonsense and getting drunk at sessions’.³⁷ But most rural Justices had no need for their fees, and did not seek to act arbitrarily or oppressively.

They were, however, exclusive, and unwilling to allow the lower orders to participate in government. When a mere grocer and Wesleyan Methodist was appointed to the Merionethshire Bench in 1833, his fellow Justices refused to work with him.38 Tradesmen appointed to the Bench needed to be sufficiently wealthy to have put trade behind them. If they were, they could achieve social equality with the gentry. The Gloucestershire gentry demonstrated their acceptance of one wealthy clothier by electing him as chairman of the Bench.

Wealthy clergy were also regarded as the social equals of the gentry. Bishops were usually to be found in the Commission of the Peace, being first appointed in 1424. Occasionally, Deans of Cathedrals also served. Before the Reformation, a few heads of religious houses were appointed. Few other medieval clergy were either wealthy or educated. Between 1550 and 1800, clergy wealth and status increased dramatically. The gentry acquired many advowsons formerly held by monasteries; they used them to employ younger members of their family who had the Oxbridge degrees now required by Protestantism. And the enclosure movement dramatically increased the value of many parochial livings. Their incumbents had the status, and were increasingly appointed to the Bench. By c.1800, the more educated, aware and diligent members of the Bench were clergy. In many counties clergy served as chairmen. Indeed, the leading manual for Justices, Richard Burn’s The Justice of the Peace and Parish Officer (1755; 30th edition, 1869) was written by the clerical chairman of the Westmorland Bench. Cobbett complained that many parochial incumbents were ‘better known as Justices of the Peace than as clergymen’.³⁹ By the 1830s, clergy constituted about a quarter of England’s justices. That was their high point; numbers declined to 6.1 per cent of the total in 1887.⁴⁰

At the same time, a new type of Justice began to appear: the industrialist. By the mid-nineteenth century, 50 per cent of appointees in the Black Country were coal and iron masters.⁴¹ Their emergence marked the beginning of the end of gentry dominance of Quarter Sessions, although their numbers were much greater in industrial boroughs which had their own Quarter Sessions. Overall, only 14.9 per cent of the county magistracy were from the middle classes in 1887.⁴²

Justices remained on the Bench until they either died, or were excluded from a new Commission. Exclusion was uncommon, except for political reasons. The Duke of Somerset’s 1548 re-modelling of the Devon and Cornwall Commissions removed traditionalist Justices who might have been able to prevent the Prayer Book rebellion in 1549. Charles I issued no less than 133 new Commissions in 1630.43 Both Charles II and James II conducted significant purges during the 1680s – the latter in order to make room for Roman Catholics. Political purges continued throughout the early eighteenth century, but ceased entirely when Lord Hardwicke became Lord Chancellor in 1737.

Despite purges, exclusion was frequently temporary. The Crown could not afford to dismiss Justices, even when they actively opposed its policy. Lord Burghley’s many attempts to remodel the Bench under Elizabeth failed: those he sought to exclude repeatedly crept back in.⁴⁴ Even in 1637, when many Sheriffs, Deputy Lieutenants, and Justices of the Peace refused to collect Ship Money, all Charles I could do was to threaten dismissal. He was unable to carry through the threat.⁴⁵ During the Interregnum, the Protectorate looked to the Justices for grudging acquiescence in its rule, rather than positive loyalty.

SOURCES

‘There are lies, damned lies, and Commissions of the Peace’. Such was the tongue-in-cheek verdict on sources for Justices of the Peace by the compiler of an extensive listing for Wales.⁴⁶ A variety of different sources are available, although none now provide comprehensive coverage, and all are either prone to error, or liable to mislead if not treated cautiously. Ideally, researchers should consult several of the sources mentioned below.

Commissions of the Peace were the one source which had legal validity, and are always precisely dated. Commissions are now amongst Quarter Sessions records in local record offices, if they have survived. They tended to be ephemeral documents, frequently renewed. Whenever a new Justice was appointed, or an old one dismissed, a new Commision was issued – except in the case of death.

When a new Commission reached the Clerk of the Peace, he summoned new members of the Bench to take their oaths at the next Assizes, notified former Justices that their services were no longer required, and drew up lists of nomina ministrorum for both Assizes and Quarter Sessions. These listed all the officers expected to appear in court, including Justices of the Peace, coroners, escheators, Hundred Bailiffs, High Constables and others. Deaths of Justices are recorded. They were compiled for every session of both courts, and are the only lists of Justices of the Peace prepared at regular intervals directly from Commisions. Nomina ministrorum from Quarter Sessions are now in local record offices; those drawn up for Assizes are in The National Archives, frequently used as wrappers for the indictment files in ASSI series. Many compiled for the Welsh Court of Great Sessions are now in the National Library of Wales.

Commissions of the Peace should have been enrolled on the patent rolls (National Archives, series C 66). Justices paid a fee for enrolment. In practice, enrolment was done carelessly or perhaps not at all. There are none for the Welsh counties between 1564 and 1594. Sometimes, the information entered is misleading. Commissions for each regnal year were entered in alphabetical order, beginning with the Commission for Bedfordshire, which was dated. The dates for other Commissions were given as ut supra – ‘as above’. This is incorrect: the Bedfordshire date has no relation to the dates of other counties’ Commissions. Commissions were also sometimes entered on the roll for a regnal year which did not cover the date they were issued. The same Commission was also frequently entered on two successive patent rolls. Patent rolls cannot be relied on for dates. Nor are they necessarily reliable guides to the names in Commissions. Commissions were sent out long before the rolls were written. Rolls were therefore probably copied from Crown Office entry books (National Archives, series C 193/12-13; for 1601–73, see C 181), not the Commissions themselves. Entry books were regularly kept up to date as new Justices were added to Commissions, and old ones died or were dismissed. Consequently, the names on the patent rolls do not necessarily match the names in particular Commissions.

Copies of the Crown Office entry books, known as libri pacis, were distributed to other government agencies, such as the Privy Council and the Treasury. These were not updated as regularly as their exemplars, and were frequently discarded when their useful life was ended. They can be found in various National Archives series, for example, C 192, C 220, E 163, and amongst the State Papers. Some may also be found amongst private collections in institutions such as the British Library and Cambridge University Library.

The Crown Office also kept docket books recording the dates on which Commissions and other instruments under the great seal were issued. These record the names on the Commission, and also indicate names added or removed from the previous Commission, sometimes with reasons. They do not, however, record deaths of Justices. Docket books are in The National Archives, series C 231/1-8.

The Lord Chancellor made changes to Commissions by sending a fiat (an order) to the Crown Office. These fiats, dating from 1672 to 1974 (National Archives, C 234), record virtually all changes in Commissions. From the late 1730s, they frequently directed that names should be added to a Commission, rather than that a new Commission should be issued. Such Commissions could remain in force for many years.

Individual appointments for the period 1682–1974 are also recorded in fiats recommending appointments (National Archives C 364), which were checked and approved in the Chancellor’s office, and sent to the Clerk of the Crown for entry in new Commissions. Fiats for the removal of Justices can be found with them.

Justices of the Peace are also named in the London Gazette (www.thegazette.co.uk/browse-publications), in the nineteenth century series of Returns of Justices of the Peace included in the Parliamentary papers, and in a wide range of other sources. Their attendance at Quarter Sessions is recorded in order books (see Chapter 5), in estreats sent to the Exchequer, and in the pipe rolls (see Chapter 2). Their signatures can be found on many of the documents which will be considered in subsequent chapters.

FURTHER READING

For a useful introduction, see:

• Moir, Esther. The Justice of the Peace. (Penguin, 1969).

The history of Justices from a legal point of view is recounted in the extensive:

• Skyrme, Sir Thomas. History of the Justices of the Peace. (3rd ed. Barry Rose, 1991).

The origins of the office are discussed by:

• Putnam, Bertha Haven. ‘Transformation of the Keepers of the Peace into the Justices of the Peace 1327-1380’, Transactions of the Royal Historical Society 4th Series 12, 1929, pp.19–48.

• Harding, Alan. ‘The origins and early history of the Keepers of the Peace’, Transactions of the Royal Historical Society 5th Series 10, 1960, pp.85–109.

• Verduyn, Anthony. ‘The selection and appointment of Justices of the Peace in 1338’, Bulletin of the Institute of Historical Research 68(165), 1995, pp.1–25.

For later periods, see:

• Lander, J.R. English Justices of the Peace, 1461-1509. (Alan Sutton, 1989).

• Gleason, J.H. The Justices of the Peace in England, 1558 to 1640: a later eirenarcha. (Clarendon Press, 1969). This includes many lists of JPs for Kent, Northamptonshire, Somerset, Worcestershire and the North Riding of Yorkshire in its appendices.

• Landau, Norma. The Justices of the Peace, 1679-1760. (University of California Press, 1984).

• Glassey, Lionel K.J. Politics and the Appointment of Justices of the Peace, 1675-1720. (Oxford University Press, 1979).

The introductions to a number of published Quarter Sessions rolls (listed in Chapter 5) also give useful information.

For a detailed guide to sources for Justices, see:

• Barnes, Thomas G., & Smith, A. Hassell. ‘Justices of the Peace from 1558 to 1688: a revised list of sources’, Bulletin of the Institute of Historical Research 32, 1959, pp.221–42.

For the Lord Chancellor’s fiats, see:

• Glassey, L.K.J., and Landau, Norma. ‘The Commission of the peace in the eighteenth century: a new source’, Bulletin of the Institute of Historical Research 45, 1972, pp.247–65.

Welsh Justices are fully listed in:

• Phillips, J.R.S. The Justices of the Peace in Wales and Monmouthshire, 1541 to 1689. (University of Wales Press, 1975). This includes a valuable introduction.