CHAPTER XV

ENGLISH JUSTICES OF THE PEACE (1600-1650)

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,