forfeitures and penalties, the King will take advice thereupon; but he wills that the accus- Appendix No. 4. tomed law in such cases be duly executed. In the same Parliament the Commons further petition the King, that justices of the peace may hold their sessions, according to the statutes, and that they shall have have half a mark each for every day that they hold their sessions, and their clerks, two shillings, out of the fines and amerciaments, &c.; also, that justices of the peace be elected by the present Parliament; and that their number be limited to eight, who are to be of the most sufficient knights and esquires of the county, two of whom are to be skilled in the law; also, that each justice of the peace is to deliver, by indenture, an estreat of the fines, issues, and amerciaments inflicted by himself, to the sheriff of his county; and that sheriffs have warrant to pay the said justices their wages from sessions to sessions, &c. To which the King replied, that, as to the wages of justices, it is agreed that each knight shall have four shillings, each esquire two shillings, and their clerks twelve pence, for each day that they hold their sessions in the town prescribed: also, that they shall hold their sessions four times a-year, for two or three days together, in each county, according to the size of the county, or the business to be performed; and, as to the indentures, and the mode of payment of their wages, the King approves thereof; but, with respect to the number and names of the justices being submitted to Parliament in writing, the King will take advice thereupon; also, that the justices shall have the power of hearing and determining homicides, and other things before written; and that they shall be sworn to do right in the same manner as the King's other justices are. Upon the termination of this Parliament, the Lords temporal, being at a grand council, caused the ordinance made in Parliament, touching the power of justices of the peace, to be read, in the presence of the Chancellor, Treasurer, and all the judges, and themselves; because, they said, that their intent was not clearly understood or enrolled in that Parliament; that, amongst other articles and points, the same justices of the peace should have power to hear and determine all manner of extortions, as well at the suit of the King, as of the party, and of certain other articles comprised in the said power. They also made another declaration, concerning a note to be inserted in the commission, by the advice of all the justices, as well of both benches as others; and that note having been read before the whole council, they approved of its being passed under the great seal in that form. The forms of the amended commissions are set out on the Parliament roll of the third year of this reign. Then certain persons are to be appointed conservators of the peace, according to the statutes of Winton, Northampton, and Westminster, to punish offenders against those statutes. The same conservators are also appointed justices to inquire upon oath, as well within liberties as without, into all manner of offences, such as larcenies, robberies, homicides, murders, and other felonies, transgressions, forestallings, regratings, extortions, &c., in the counties wherein they are committed or perpetrated; also, to inquire into offences against the laws, to repress unlawful assemblies, the statute of liveries, hostelries, weights and measures, labourers, &c., and to issue process against all those indicted for those offences, as well at the suit of the King as of other persons. Provided always that, in difficult cases of extortion, no judgment shall be given, except in the presence of one of the King's judges of either bench, or judge of assize. The ustices are also to hear and determine all felonies or other offences indicted before them as justices of the peace. In the fifth year of Richard II.*, the Commons beseech the King (on account of the unusual number of robberies and larcenies committed in the realm at that time) that justices of the peace may be invested with power to proceed to gaol delivery; to which the King acceded, provided there were three persons present at least, one of whom should be learned in the law. In the Parliament of the seventh yeart of the same reign, justices of the peace were empowered to examine vagabonds, and bind them to good behaviour, or commit them to prison. Similar power was given to officers of the peace. In the ninth year of the same reign, the statute of purveyors and buyers was ordered to be enforced; and that justices of the peace should have power to hear and determine the same. In the twelfth year, it was ordained that, in every commission of the justices of the peace, there should be assigned but six justices, with the justices of the assize, and that the said justices should keep their sessions every quarter of the year; also, that they should have for their wages four shillings a day, during their sessions. In the thirteenth year,§ the Commons pray, that justices of peace be made anew, from the most sufficient knights, esquires, and lawyers, of the several counties; and that the said justices be sworn, before the Chancellor and King's council, duly to execute the various statutes and ordinances made for the conservation of the peace; also, that they hold their sessions four times a year, at least, and at the same periods throughout the realm; taking for their wages four shillings per day, as was established by the Parliament holden at Canterbury. To this petition the King made this answer: The King wills, that justices of the peace be newly appointed, in each county throughout England, of the most sufficient knights, esquires, and gentlemen of the law, notwithstanding the statute made at Cambridge; and that the said justices should take the oath duly to observe the execution of the statutes and ordinance touching their offices; and, in the same year, it was by statute so enacted.¶ * Rot. Parl. 5 Ric. II. Nc. 96 Rot. Parl. Ric. II. Stat. 7 Ric. II. c. 5. Stat. 12 Ric. II. c. 3 and 10. Appendix No. 4. In the 14th year of the same reign*, eight justices of the peace are ordered to be assigned in each county, and if any duke, earl, baron, or banneret, be in the commission of the peace, and hold sessions with other justices their colleagues, yet they shall not take any wages for the said office. The various statutes passed in the 13th, 14th, 15th, 16th, 17th, and 20th years of Richard II., recognized and multiplied the powers of justices of the peace, by giving them power to execute the Statute of Northampton, to settle the wages of labourers and servants, to punish unlawful huntings, and regraters of wood, false weights in the staple, unlawful wearing of liveries, unlawful fishings, contrary to the Statute of Westminster. In the 17th the Commons pray, that, in every commission of the peace, there shall be at least two lawyers assigned to proceed to the trial of felons and robbers; which the King consents to; and it is thereupon so enacted, as appears by c. 10 of the Acts of this session. From the foregoing statements it is evident that the justices of the peace, up to this period, could, of themselves, do many things for its conservation; but, in cases of Oyer and Terminer, that they could only act in public sessions. The political divisions of society, consequent upon the usurpation of the House of Lancaster, having almost produced a civil war, the maintenance of public peace became an object of great solicitude to Henry IV. That monarch, therefore, reposed great confidence and trust in his council, regarding those matters, knowing that it is more easy to prevent the peace from being broken, than to restore it afterwards, even with an armed power. The council advised the King to issue new commissions to justices of the peace and the sheriffs throughout the realm, commanding them to use their utmost endeavours to suppress all riots and civil commotions. It also recommended that, in each county, a certain number of the most efficient men of good fame should be retained by the King, and associated with those in the commission of the peace, and that such persons should be paid a reasonable salary, according to their condition in life; and for the better support of such charge, that the King should retain, in his hands, all the lordships and revenues which fell to the Crown by way of forfeiture. By a minute of the council, it appears that letters patent, under the great seal, were ordered to be directed to justices of the peace and sheriffs throughout the kingdom, instructing them to make proclamation against all unlawful assemblies, &c. By statute (5 Hen. IV. c. 3) it was ordained, that in all commissions of the peace to be made from that time forward, this article should be inserted: "That justices of the peace have power to make inquiry, at their sessions, from time to time, as to the watch upon the sea-coast, as under the Statute of Winton, 13 Edward I., and to punish defaulters according to the law of the said statute;" and by the 10th chapter of the same it was thus enacted, "Because divers constables of castles within the realm of England have been by the King's commission appointed justices of the peace, and under colour of such commission they take up people to whom they bear ill-will, and imprison them in their castles until they pay fine and ransom for their deliverance, it is ordained and established, that no person shall be imprisoned by any justice of the peace, but only in the common gaol, excepting by those lords who have gaols within their franchise." By statute 7 Hen. IV. c. 8, justices of the peace in every county have the power to inquire into all deceits practised by arrow-head makers, and to punish such offenders. By statute 13 Hen. IV. c. 8, justices of the peace and sheriffs are empowered to arrest rioters, inquire into and record their offences; and it is ordained that a certificate of the justices and sheriff shall certify matter to the King in council, which shall be equivalent to the verdict of a jury; the traverse of such a certificate to be tried in the King's Bench. Justices of the peace, omitting to execute this act, to be fined £100. By statute 1 Henry V.,§ justices of the peace are empowered to inquire into, hold pleas, and punish offences against the chapter which relates to the measuring of corn. By the second statute, in the second year of Henry V., it was ordained, at the special request of the Commons, that thenceforwards justices of the peace should be appointed from the most sufficient men in the counties, reident respectively therein, by the advice of the Chancellor and King's council, without taking other persons dwelling in different counties, excepting in the case of some few official personages named in the statute; from which time it seems that justices of the peace have always been nominated by the King's council: and, by the fifth chapter in the same statute, justices of the peace have power to inquire into, hear, and determine of certain treasons and felonies committed by the Welsh and their adherents, as well at the King's suit as at the party's; also, if offenders do not appear before the said justices to answer according to law, till they by the custom of the realm be outlawed, justices shall signify the same to the lord of the seiguory where such offenders reside. The statute of labourers¶ was ordered to be firmly kept and put in due execution; and that justices of the peace be empowered to send their writs to sheriff's commanding them to issue such process as the law requires to bring fugitives and labourers before them as justices of the peace, to answer for all contempts and trespasses, in the same manner as the justices have power to send to every sheriff for the felons indicted before them; also that justices of the peace in the quorum shall be resiant in their respective counties, unless they be one or other of the King's judges, &c.; aud that they shall hold sessions four times a-year. Justices of the peace shall also have power to examine labourers and masters upon oath. *Stat. 14 Ric. II. c. 11. Stat. 13 Ric. II. c. 7, 8, 13; Stat. 14 Ric. II. c. 4, 12; Stat. 15 Ric. II. c. 2; Stat. 16 Ric. II. c. 4; Stat. 17 Ric. II. c. 9; Rot. Parl. 17 Ric. II., No. 4; Stat. 20 Ric. II. c. 2. § Stat. 1 Hen. V. c. 10. || Stat. 2 Hen. V. c. 1. 8 Fœd. 124. By statute of the same year, justices of the peace have power to inquire into all heresies, Appendix No. 4. as that of Lollards, their maintainers, favourers, &c., and to award a capias against all offenders, and sheriffs are bound to arrest all such persons so indicted; and to have the power of inquiry into all escapes from prison, also into the value of the lands and rents of persons so indicted, &c. By statute 3 Henry V.,† justices of the peace are empowered to inquire and award process, and to hear and determine as to felons guilty of coining; but by the statute of the following year, in cases of felons for coinage, justices of the peace have power to inquire into such matters, and thereupon to issue process of capias against those who shall thereof be indicted before them. The power of justices of the peace, during the two preceding reigns, had arrived at its zenith; and consequently there remained but few additional powers which could be conferred upon them by Henry VI. It would therefore be tedious to enter into a detailed account of the number of offences which they had the power of inquiring into, hearing, and determining, and which were recognized and recapitulated in this reign. In the 11th year of it, however, a very important enactment took place, founded upon a petition of the Commons to the King upon the subject, namely,§ that those indictments and processes (begun before justices of the peace who should be removed by the appointment of new commissions, prior to those suits and indictments being determined) should nevertheless be continued by the new justices as if no new commission had been made. Still the Parliament did not seem to take that deep interest in the appointment of those officers which it had thentofore done. The evil consequence of which is apparent by the petition of the Commons, in the 18th year of this monarch's reign. The Commons inform the King, that by various statutes made in the time of his progenitors, it had been ordained, that justices of the peace should be selected from amongst the most sufficient men in each county; yet, notwithstanding those statutes, great numbers of very needy persons had been appointed to fill that office in several counties, whose poverty made them both covetous, and contemptible in the eyes of the inhabitants, and that their extortions and oppressions were daily increasing and required speedy remedy. The Commons, therefore, pray the King to ordain and establish in the present Parliament, that no justice of the peace be appointed in any county unless he have lands and tenements to the value of £20 per annum; and if any one should be appointed without such qualification, that he is to certify the same to the Chancellor, who will appoint another person in his stead; and if he do not within one month so inform the Chancellor of his insufficiency, he shall incur a penalty of £20. This ordinance, however, is not to extend into cities, towns, or boroughs, which are of themselves counties incorporate, nor to those in which justices of the peace are appointed by royal commission. To this the King replied, "Le Roi le voet;" provided always, that if there be not men sufficient, having lands and tenements of the said value skilled in the law, and of good governance, within any such county, that the Chancellor for the time being, according to his discretion, shall have power to put in their stead other discreet persons learned in the law, although not possessed of lands or tenements to that value. And it was consequently so enacted, forming the 11th chapter of the statutes of that year. In this and the succeeding reigns a very important increase of the numbers of justices of the peace, and change in the mode of appointing some of them, took place. The King, by his royal charters, conferred upon the mayors and aldermen of the principal cities and boroughs in the kingdom, and their successors, the office of justices of the peace within their several jurisdictions, besides the usual numbers appointed by royal commissions, who generally retained their office during the reign of each monarch. Notwithstanding the augmentation of their numbers, it was found in the reign of Henry VII. that justices of the peace were negligent of their duties, and remiss in executing the laws; and it became necessary to pass an Act in the fourth year of this reign, concerning the performance of their duties. In the 20th year of this reign, a very important decision took place, which completely proves, if further proof were necessary, that the Crown alone can appoint justices of the peace, and that it cannot delegate the power of appointing justices of the peace, all such grants being void ab initio. In Michaelmas term, 20 Hen. VII. a case was argued in the King's Bench, arising out of a charter granted to the Abbot of St. Alban's, and his successors, conferring upon them the privilege of appointing the King's justices of the peace within the liberties of St. Alban's. The Attorney-General objected, amongst other points, that the King could not grant to any person the right of appointing his justices, in which opinion the Court agreed, and the chief justice (Fineux) declared such a grant to be void, because the Crown could not make a grant to any man of a right to appoint justices by a patent, ¶ for a patent is not of record, and there *Stat. 2 Hen. V. c. 7, 8, and 9. This opinion and decision of the Court of King's Bench could not affect the Duchy of Lancaster, for the Duke of Lancaster, eo nomine, (before that title was annexed to the Crown of England in the reign of Henry IV.) had enjoyed jura regalia within his extensive possessions from the creation of the Duchy. That sovereign subject, the Duke of Lancaster, exercised within his Duchy and Palatinate of Lancaster, jura regalia almost unlimited, such as issuing writs for the election of a coroner, for the election of members of Parliament, appointing his own sheriff, justices of the peace, justices of Oyer and Terminer, and justices of gaol delivery: he also made grants of pardon to felons, &c. Some of such rights may also have been inherent in the other Palatinates of Chester and Durham, which, if deemed of importance, can be ascertained. There are upon record some grants to ecclesiastical corporations of the royal privilege of cognizance of breach of the peace, such, for instance, as that granted by King John to the Abbots of Reading, "in tota possessione sua omnem justitiam de assaltu, et furtis et murdris, et sanguinis effusione, et pacis fractione, quantum ad Regiam pertinet potestatem, et de omnibus forisfacturis." See the petition to the King in Council upon this claim, in 4 Edw. III. No. 57. Privileges somewhat similar were 2 D Appendix No. 4. fore could not make a justice of record, that being a right annexed to the Crown, from which it could not be severed; and that, for a similar reason, grants to pardon felonies, or to make denizens, were void, as thereby conferring upon subjects a right too great to be intrusted to any other hands than those of the Government, without being liable to great abuse. This was a very important decision upon the subject, for it seems that Henry VII. must have been in the habit of making such grants. In the eighth year of his reign, he granted* to the Abbot and Convent of Peterborough a privilege of appointing three or more persons to be justices of the peace in and for the borough of Peterborough, and within all the lordships of the Abbot of Peterborough. Notwithstanding the decision of the Court of King's Bench, the number of similar appointments rendered it necessary, however, in the next reign to make a public statute on the subject, intituled, "An Act for recontinuing the liberties of the Crown,"† which completely removes any doubt that might have existed on this subject. From the foregoing statements, I think, it may be collected, that the primary duties of justices of the peace were simply those of conservators of the peace; that in declaring and limiting their powers, by the Statute of Winton, their functions became thus approximated nearer to those of directors and counsellors to the sheriff in his pursuit and apprehension of felons; but as population increased, civil commotions, the advancement of foreign trade, the refinements of luxury, and other causes dependent thereon, changed the customs and manners of the kingdom, and produced many alterations in our law and constitution. Crimes became too general, too numerous, and some of them too insignificant, for the judges to attend to, and thus the office of conservator of the peace was found to be a useful auxiliary to the superior courts, in easing them of trifling matters, and gradually assumed a judicial importance never contemplated at its first creation. It will also be seen that (up to the period when Sir Christopher Wray, with the other judges of England assembled, and after carefully perusing the ancient forms of commission of the peace, made various salutary alterations therein,§) the clause appointing conservators of the peace was the first in the commission, and the clauses conferring the judicial authority of hearing and determining felonies, which followed next in order, were distinct from the conservatory clause. Having thus merely sketched out a history of the office of justice of the peace, (from its institution to the reign of Hen. VIII.) as briefly as the nature of the subject would permit, without entering into a too tedious detail of the various and accumulated powers intrusted to those magistrates, I here take leave of the subject, as from the period to which I have traced it; all remaining information relative to the subject may be derived from the works of Lambard, Dalton, Fitzherbert, and Burn, authors whom I have not had time to consult on this occasion, nor, indeed, have I felt it necessary to do so, as their works are of course already familiar to one who has so much distinguished himself by his knowledge upon the subject. "Were not the judicial functions (simply of hearing and determining charges of offences against the law, and awarding punishment, and of the procedure thereto,) separated from the functions of a police, or watch and ward, pursuit and apprehension?" "Were not the justices of the peace, in addition to the sheriff, the directors of the police, superintendents of preventive measures other than simple punishments?" Answers to both of those questions are either included or implied in the preceding state ments. "What sort of person was the better sort of parishioner" who was ordered to be appointed as constable? and what was the substantial householder in the reign of Elizabeth?" The better sort of parishioner, and substantial householder were, as I apprehend, in those days, of a class somewhat similar to that of persons so denominated at present; that is, of the same rank and influence in society during the reign of Elizabeth as such persons hold in the reign of William IV., allowing for the difference in the value of money, and some changes in the relative condition of the various classes of society, which it is here unnecessary to dwell upon further than merely to intimate that £50 per annum would then have probably enabled a man to establish his household on a footing as respectable as an income of £300 in these more generally luxurious times. The following descriptions, taken from writers in the reigns of Edward VI., and his sister Queen Elizabeth, will corroborate the truth of the above remark. Bishop Latimer, in a sermon preached before Edward VI., March 8, 1549, gave the following account of his family: 66 men. My father was a yeoman, and had no lands of his own, only he had a farm of three or four pounds a year at the uttermost, and hereupon he tilled so much as kept half-a-dozen He had walk for an hundred sheep, and my mother milked thirty kyne. He was able and did find the King a harness, with himself and his horse, while he came to the place that he should receive the King's wages. I can remember that I buckled his harness when he went unto Blackheath Field. He kept me to school, or else I had not been able to have preached before the King's Majesty now. He married my sisters with £5, or 20 nobles, a piece, so that he brought them up in godliness, and fear of God. He kept hospitality for his attached to the Universities of Oxford and Cambridge. See petitions to the King in Council, 14 Edw. II. No. 21. Rot Pat. 17 Ed. III. Rot. Parl. 13 Ric. II. No. 14. Rot. Pat. 4 Hen. V. With the exception of the Duke of Lancaster (who has a Court of Chancery of his own), it cannot, I think, be pre- * Charter dated 27th June, 8 Hen. VII. See two cases on the same subject in Hol. 139, and Bulstr. 160. § I believe, though I am not certain, that the form of the commissions of the peace sanctioned by those judges in poor neighbours, and some alms he gave to the poor; and all this he did of the said farm, Appendix No. 4. where he that now hath it payeth £16 by year, or more, and is not able to do anything for his prince, for himself, nor for his children, or give a cup of drink to the poor." Of yeomen he says, "Yeomen are those which, by our law, are called legales homines, freemen borne English, and may dispend of their owne free land in yearlie revenue to the sum of 40s. sterling or £6 as monie goeth in our times. That word is derived from the Saxon term Zeoman or Geoman, which signifieth (as I have read) a settled or staid man. Such I meane as being married, and of some yeares betaketh himselfe to staie in the place of his abode, for the better maintenance of himselfe and his familie, whereof the single sort have no regard, but are likelie to be still fleeting, now hither now thither, which argueth want of stabilitie in determination and resolution of judgement, for the execution of things of anie importance. This sort of people have a certaine preheminence and more estimation than labourers, and the common sort of artificers; and these commonlie live wealthilie, keepe good houses, and travail to get riches. They are also for the most part farmers to gentlemen, or at the leastwise artificers; and with grazing, frequenting of markets, and keeping of servants, (not idle servants as the gentlemen doo, but such as get both their owne and part of their master's living,) do come to great welth, insomuch that manie of them are able and do buie the lands of unthriftie gentlemen, and often setting their sonnes to the schooles, to the universities, and to the ins of court; or otherwise leaving them sufficient lands whereupon they may live without labour, doo make them by those means to become gentlemen: these were they that in times past made all France afraid. And, albeit, they be not called Master as gentlemen are, or Sir as to knights appertaineth, but onlie John and Thomas, &c., yet have they beene found to have doone verie good service; and the Kings of England in foughten battels were woont to remaine among them, (who were their footmen,) as the French Kings did amongst their horsemen, the Prince thereby shewing where his chiefe strength did consist." He then proceeds to say that "The fourth and last sort of people in England are daie-labourers, poore husbandmen, and some retailers, (which have no free land,) copie-holders, and all artificers, as tailors, shoe-makers, carpenters, brick-makers, masons, &c. This fourth and last sort of people, therefore, have neither voice nor authoritie in the commonwealth, but are to be ruled, and not to rule others: yet they are not altogether neglected; for in cities and corporate towns (for default of yeomen) they are fain to make up their inquests of such manner of people. And in villages they are commonlie made churchwardens, sidemen, ale-conners, now and then CONSTABLES, and manie times injoie the name of hedboroughs. No. 5. Form for assisting in the Examination of Prisoners. 1. What is your name, age, and the offence for which you are in prison? 2. Are you single, married, or a widower? Have you children-how many? 3. What has been your calling or occupation. 4. Are your parents living? If not, what was your age when they or either of them died? 5. If either father or mother be dead, has the survivor married again? If so, how long ago? 6. Are you illegitimate, or a foundling? 7. Where were you brought up? At the house of your parents, or at that of any other relation or friend? or in the workhouse, or in the streets, being left without care and control? 8. Of what calling were your parents? Did they, or either of them, continue long in any service? 9. Of what character was your father? Was he honest, industrious, and sober? 10. Of what character was your mother? Was she honest, virtuous, industrious, and sober? 11. Did your parents regularly attend a place of worship, and require you to accompany them? 12. What care was taken of you by your parents? Did you ever run away from them? What induced you to do so? Were you punished for doing so; and in what way? 13. Did the occupation of either of your parents necessarily take them much from home? 14. Did you attend any school? If so, for how long, and at what description of school; whether dame school, national school, British and foreign school, Sunday-school, church school, or dissenting school? 15. Were you taught to read and write? 16. Can you now read and write? If so, whether well or indifferently? Can you generally understand what you read? Of what description of books has your reading consisted? Are you accustomed to read? * This work was printed in 1586, and dedicated to Sir William Broke. Appendix No. 5. |