JUSTICES OF THE PEACE OUT OF SESSION
Before the nineteenth century, most of the work of individual Justices was done out of Sessions, either sitting on their own, or with one or two others. The lone Justice was the first port of call for complainants. The many cases brought before them by the poor indicate that the latter expected at least a modicum of justice: servants accused their employers of withholding wages, apprentices accused their masters of ill treatment, paupers sought relief from the parish. Vagrants, thieves, poachers and mere drunkards were brought before Justices by parish constables. Unemployed labourers were ordered to find masters; paupers were removed to their parish of settlement; vagrants were punished.
The single justice heard allegations, interviewed complainants and witnesses, examined the accused and determined whether there was evidence warranting appearance at Quarter Sessions. He could instigate inquiries, issue warrants and prepare indictments. Those who came before him could be ‘encouraged’ to ‘volunteer’ for service in the army or navy, and thus avoid formal prosecutions. One of his most potent weapons was the power to demand that a person enter into a recognizance (discussed below).
The Justice might be asked to sign overseers’ accounts, to approve nominations of overseers, and to issue certificates of various sorts. Sometimes, he took part in campaigns against particular social ‘vices’, such as church ales, profane swearing and non-attendance at church. His powers over the sale of staple commodities, such as bread and ale, meant he could forestall disturbances by ensuring that sufficient food was available in times of shortage or famine. He could arrange for orphans to be looked after, ensure the equitable administration of poor relief and resolve disputes between neighbours.
The informal arbitration Justices provided was highly valued by their communities. Quarter Sessions frequently referred disputes to individual Justices to settle out of court. They were more concerned with restraining their neighbours’ conflicts than with enforcing impersonal regulations. Their task was to restore personal relationships, rather than to secure convictions. In the mid-eighteenth century, the Wiltshire justice William Hunt found that much of his work in dealing with cases of assault and theft constituted acting as an arbitrator. Appearance in court was a last resort.1
Slander was another area where Justices intervened. In Boldon (Durham), Edmund Tew dealt with several rumours of sexual infidelity, and with a woman upset at being accused of witchcraft.2 Such arbitration was in gradual decline by c.1800. Parish notables ceased to seek judicial mediation, and rural Justices withdrew from close involvement in the lives of those they governed.3
RIOT
Keeping the peace was an important role for the individual Justice. If serious disturbances broke out, it was his personal responsibility to take action. From 1714, he was authorised to read the Riot Act and to call for troops to put down rioting. Rioting was not always easy to deal with. In 1586, a barge carrying food was stopped on the Severn by a crowd of 500 to 600 people. Justices who read the Riot Act failed to disperse them, and the Sheriff’s attempt to arrest the ringleaders failed. Two weeks later another barge was stopped.4
ADMINISTRATION OF JUSTICE
Individual Justices dealt with criminal activities ranging from the pettiest misdemeanour to serious offences such as rick-burning, poaching and murder. However, until the eighteenth century they could only exercise summary jurisdiction over misdemeanours, such as vagabondage; everything else went to Quarter Sessions and perhaps from thence to Assizes. In 1663, only some seventy offences were subject to the Justices’ summary jurisdiction; by 1776, the number was over 200. The right to trial by jury was gradually abrogated as summary jurisdiction was extended. Game offences previously indictable at Quarter Sessions were increasingly tried summarily, without a jury. When, in 1855, Justices were given summary powers against industrial theft, prosecutions in the Black Country increased dramatically. Prosecutors expected sympathetic hearings before magistrates who were fellow employers. Juries were much less willing to convict.5
In civil matters, Justices had wide supervisory powers over vestries and parish officers, with the final say in the appointment of most parish officers (apart from the churchwarden). They oversaw the operation of the Poor Law (see Chapter 8), and allowed accounts. Between 1653 and 1660, they also conducted marriages; no less than 584 were conducted by the Justices of Leeds (Yorkshire).6 Individual justices signed certificates of burial in woollen, issued passes for vagrants, permitted labourers to go into other counties in search of harvest work (they needed a settlement certificate), licensed the sick to go to Bath or Buxton for their cure, and took the oaths of postal workers not to open the mail in their care. Quarter Sessions frequently delegated matters such as bridge repairs and the oversight of gaols to individual Justices. In the eighteenth century, Parliament transferred some responsibilities, such as the inspection of weights and measures, and the diversion or closing of footpaths, from Quarter Sessions to individual Justices.
Justices frequently acted on their own authority, sometimes even without statutory backing. The precise wording of statutes could easily be ignored. Convicts were sent to Houses of Correction when the penalty actually prescribed was the stocks. Vagrants were ‘passed’ to their place of settlement without a whipping, which was quite illegal. The standard textbook commented that ‘Kings have been censured for setting themselves above the law, but Justices of the Peace have been suffered to pass unnoticed’.7
Appeals against the judgements of individual justices could be made to Quarter Sessions, or, by writ of certiorari, to the central courts. In practice, four-fifths of appeals to Quarter Sessions were by parish officers appealing against removal orders that would cost them money.
Some tasks were exercised in pairs. Settlement examinations, and maintenance orders for bastards, both required two Justices. Roman Catholics wanting to travel also required permission from two Justices. Assaults by servants upon masters, game law infringements and making ‘deceitful cloth’ were amongst the offences which could be punished by two Justices sitting together. After 1815, roads and footpaths could be closed by any two Justices acting summarily. Liquor licencing and highway maintenance both required special sessions. The rise of Petty Sessions in the eighteenth century gradually decreased the powers which Justices could exercise alone.
CRIMINAL PROCEDURE
When a complaint was made to a Justice of the Peace, he took depositions from the complainant and any witnesses. Apprehension of the offender was up to the victim, although constables could raise the hue and cry if called upon to do so. From the eighteenth century, many rewards for information on crimes were advertised in the newspapers; they can be searched for a fee using the British Newspaper Archive (www.britishnewspaperarchive.co.uk).
Upon arrest, the accused was examined by the Justice. Examinations were important documents in the prosecution of offenders. The Justice’s task was more that of a policeman than a judge: he was ‘charged to assemble a prosecuting brief that would stiffen and supplement the case presented orally by the victim-prosecutor in court’.8 He was not expected to look for evidence in favour of the defendant. The accused was normally examined first to see if he would confess; then witnesses were asked to comment on the prisoner’s examination. Inadequate examinations by Justices frequently frustrated trials at both Quarter Sessions and Assizes.
The best opportunity for the accused to defend himself was the initial examination. It was then that he had ‘his first and last chance to give a coherent explanation in his defence’.9 One in six cases of felonious property crimes that came before individual justices were dismissed.10 Nevertheless, if the Justice was faced with a sworn accusation by a victim who was prepared to prosecute, he had to either bail the accused or commit him for trial. As late as 1746, Michael Dalton argued that ‘even though it shall appear to the Justice that the prisoner is not guilty’ his best course was to commit him.11 That must partly explain why Grand Juries subsequently threw out many indictments.
In the eighteenth century, the role of the examining Justice gradually changed. Increasingly, Justices conducted their examinations in public, enabling defence lawyers to be present. They, of course, endeavoured to prevent their clients incriminating themselves – which was the point of the examination. By the end of the century, defendants could crossexamine witnesses. The Indictable Offences Act of 1848, finally established the principle that the magistrate’s examination was to be a judicial inquiry, in which the defendant might be discharged, rather than a gathering of evidence for the prosecution.12 The collection of evidence became the responsibility of the new police forces. Following examination, Justices could either commit defendants to prison, or grant them bail. Bail was granted by recognizance.
RECOGNIZANCES
The recognizance13 is perhaps the commonest type of document emanating from individual Justices. It is a bond whereby the person bound undertakes to perform a specific action or pay a monetary penalty to the Crown. Two sureties stood bound with the principal. If the condition was fulfilled, the recognizance became void. The names, abodes and occupations of those bound are given, together with the name(s) of the Justice(s) involved. Recognizances are therefore useful sources for tracing individuals, for assessing the extent to which Justices of the Peace were assiduous in their duties, and for researching the occupations prevalent in particular places.
Recognizances frequently required the persons bound to appear at the next Quarter Sessions, or perhaps the Assizes, in order to answer charges. Recognizances in these cases served as bail, and were useful means of controlling suspected or accused persons without committing them to the county gaol. They could not, incidentally, be confined anywhere else.
There were other uses too. Quarrelling neighbours might be bound to keep the peace towards each other. Victims of crime were bound in order to ensure that they undertook prosecutions. Witnesses might also be bound to appear. The fathers of bastards had to enter bonds to pay maintenance. Alehouse keepers, badgers (itinerant pedlars) and others, had to enter into recognizances to keep the conditions of their licences. Officers, such as High Constables, had to enter into bonds for the proper conduct of their duties; those liable to be summoned to musters sometimes had to give security for their appearance. Recognizances could be used to control bad behaviour, such as drunkenness or defamation; offenders could be bound over to be of good behaviour. Barrators – those who stirred up quarrels and strife – could be bound over to keep the peace; if a Justice was subsequently able to reconcile the parties, the recognizance might be marked concordantur – ‘they are agreed’.
Occasionally, recognizances provide useful information on the reasons for binding. Those taken by Sir Timothy Lowe of Bromley (Kent) frequently give very full explanations of the circumstances at issue, and describe the characters of those bound. For example, two men accused of excessive wife-beating were bound over to stop doing so; each was instructed to ‘well and honestly order and govern his said wife and not otherwise chastise and correct her than lawfully and reasonably’. Sir Timothy’s early seventeenth-century recognizances were apt to describe men in terms such as ‘a person of disorderly behaviour, a fighter, a frequenter of alehouses, a player of unlawful games’, or ‘a person of evil demeanour, a common quarreler, a common drunkard, a common slanderer of honest persons and one that maketh debate betwixt man and wife and an accustomed rayler against the King’s Majesty’s honest subjects’.14
Recognizances may be found amongst Quarter Sessions records. Some were endorsed with a discharge, indicating that the matter had been settled without recourse to Quarter Sessions. Sometimes, a more formal release from the recognizance was drawn up. Many led to no further action. Clerks of the Peace kept registers of recognizances.
WARRANTS
Warrants were the means by which Justices of the Peace, both individually and collectively, issued their orders, for example to search for stolen goods or to require the appearance of a suspected felon before them. Warrants could be directed to a variety of officers: the Sheriff, the bailiff, the constable or even private individuals. Unfortunately, not many survive; copies were rarely kept. They did, however, lead to suspects appearing before Quarter Sessions, and to the preparation of innumerable recognizances.
JUSTICING BOOKS
Much of the out-of-Sessions activities of Justices went unrecorded. However, handbooks for Justices usually recommended that they keep records of the cases which came before them. Many ‘Justicing Books’ survive; there are at least ten for Kent alone.15 They were private documents, so are most likely to be found amongst family papers. They reveal the great variety of matters that came before individual Justices. The Justicing Book of Sir Richard Colt Hoare of Stourton (Wiltshire) records, on its first page, that in the summer of 1785 he dealt with a case of assault, a complaint ‘against Samuel Read for having run away from his service’, and the mother of an illegitimate child who had to swear to its paternity.16 Sir Richard Wyatt‘s deposition book is entirely devoted to examinations, informations and depositions.17 Thomas Dixon did not attend Quarter Sessions between 1791 and 1798, but his Justicing Book shows he was a moderately busy Justice ‘in my house at Riby’.18
Sir Richard Colt Hoare, Justice of the Peace. Frontispiece to his History of Modern Wiltshire.
The wide area over which a Justice of the Peace could exercise his authority is illustrated by the Justicing Book of Edward Tew, the rector of Boldon (Durham); cases came to him from an area extending from South Shields almost to Durham. Tew dealt with many coastal traders. He removed one pauper as far as Dartmouth (Devon), although whether he actually arrived at his destination is not known.19 Many entries concern the failure of employers to pay their servants, or to provide them with sufficient food. Tew also recorded many letters written to overseers and employers; one wonders whether his letter-writing was typical of other justices.
JUSTICES’ LETTERS
Many letters from Justices can be found amongst Quarter Sessions records. They cover a wide range of subjects – purveyance, poor relief, and crime amongst them. In 1608, William Ingram sent his apologies for absence from Worcestershire Sessions to the Clerk of the Peace; in 1613, there was a letter complaining that there were too many inns around Droitwich whose publicans did not attend church.20
FURTHER READING
The activities of justices out of sessions are discussed in:
• Oberwiteler, P. ‘Crime and authority in eighteenth century England: law enforcement on the local level’, Historical Social Research 15(2), 1990, pp.3–34.
Much can be learnt from the notebooks of individual justices, which recorded their deliberations in and out of sessions. A number of these have been published, as have various official papers collected by Justices. Those used here include:
Durham
• Morgan, Gwenda, & Rushton, Peter, eds. The Justicing Notebook (1750-64) of Edmund Tew, Rector of Boldon. (Surtees Society 205, 2000).
Middlesex
• Paley, R. ed. Justice in Eighteenth Century Hackney: the Justicing Notebook of Henry Norris and the Hackney Petty Sessions Book. (London Record Society Publications 28, 1991).
• Saunders, H.W., ed. The Official Papers of Sir Nathaniel Bacon of Stiffkey, Norfolk, as Justice of the Peace, 1580-1620. (Camden 3rd series 26, Royal Historical Society, 1915).
• Brook, F.W., ed. ‘Supplementary Stiffkey papers’, Camden Miscellany 15. (Camden 3rd series 52, Royal Historical Society, 1936).
• Rosenheim, James M., ed. The Notebook of Robert Doughty, 1662-1665. (Norfolk Record Society 54, 1989).
Surrey
• Silverthorne, Elizabeth, ed. The Deposition Book of Richard Wyatt, J.P., 1767-1776. (Surrey Record Society 30, 1978).
Wiltshire
• Crittall, Elizabeth, ed. The Justicing Notebook of William Hunt, 1744-1749. (Wiltshire Record Society 37, 1982).