Fastest Law Search Engine

If you have any question you can ask below or enter what you are looking for!

Justices of the Peace and their Courts




1. JUSTICES OF THE PEACE


The county bench in the 1820s was anglican, landed, and Tory.1 The first was inevitable while the penal laws hampered the recruitment of dissenters; the second was partly the consequence of a property qualification,2 and the third reflected the politics of the lesser gentry and a long Tory ascendancy. Over the following 100 years the first two characteristics became gradually less marked, while the persistence of the third became a matter of acute political controversy.


Changing the social composition and political complexion of the county magistracy was a slow and difficult process because, outside the Duchy of Lancaster (where the Crown’s patronage was exercised by its Chancellor), appointments were generally made upon the recommendation of the lord-lieutenant in his capacity as custos rotulorum.3 The custos usually took advice from chairmen of quarter sessions, clerks of the peace or senior magistrates, but although a few, like the Duke of Ancaster in Lincolnshire, merely transmitted their recommendations, most matched his successor Lord Brownlow in filtering them through their own criteria.4 Even so, it was necessary to have regard to magistrates’ susceptibilities. There was a notorious incident in 1830s Merioneth, whose justices ‘went on strike’ over the supposed degradation of their bench with an appointee who had kept a draper’s shop and was a dissenter to boot, while 60 years later the Duke of (p.908) Devonshire was claimed to feel unable to put millers, maltsters, and suchlike into the commission against the opposition of the justices.5


Most of the territorial magnates subscribed to the Duke of Wellington’s ideal of a justice: ‘magistrates must be gentlemen of wealth, worth, consideration and education; that they should have been educated for the bar, if possible; and that, above all, they should be associated with, and be respected by the gentry of the county’.6 It is no wonder that admission to the bench was ‘possibly the most clear-cut evidence of social acceptance’,7 but it became increasingly difficult to impose such an exalted standard except at the cost of an inconveniently small bench.8


Filling the bench was all the more difficult because many men of the right social rank were reluctant either to accept the nomination or, if they did, to take out the dedimus which entitled them to perform its duties. Some counties were better served than others.9 In the middle of the century it is reckoned that 80 per cent of those who took out their dedimus in Hampshire became active to some degree,10but nationwide it has been calculated that fewer than half were even formally qualified and barely a third were active.11


The most common expedient to supply the deficiency was to appoint anglican clergymen, and though this was unknown in a few counties (e.g. Derbyshire and Sussex), they made up one quarter of the bench in 1831. What is more, they tended to be among the most zealous and conscientious magistrates and so were even more prominent in county affairs than their numbers would suggest; for example, of six county magistrates acting in the vicinity of Wolverhampton in 1827, four were clergymen and in the same decade four of the eight petty sessions chairmen in Northamptonshire were clergymen.12 The Whig administrations of the 1830s, (p.909) and especially the Home Secretary, Lord John Russell, disapproved of clerical justices and rejected nominations unless the lord-lieutenant was able to make an exceptionally strong case.13 However, because justices had become in practice irremovable save for a criminal conviction,14 a strong clerical element persisted in several counties.15 By then it had become possible to appoint dissenters, but there was still a prejudice against them in many counties and the Duke of Newcastle maintained his objections so insolently that he was dismissed from the lieutenancy.16


Though the Whigs gradually succeeded in laicizing the county bench they found it much more difficult to redress the political balance. Brougham was eager to challenge ‘the present strict and absurd rule which really subjects the Government to its own deputies’,17 but although his successors’ efforts provoked protests in Parliament from several lord-lieutenants,18 there could be no wholesale change while the Whigs resisted a social broadening of the magistracy. In some industrializing districts even a resolutely conservative custos like Lord Talbot (Staffordshire 1812–49) could not hold the line, for the few resident gentry took flight just as social unrest, crime, labour disputes, and political agitation demanded a large and active magistracy.19 Talbot and his like had set their faces resolutely against ironmasters and other industrialists, even as the Chancellors of the Duchy had kept out the cotton masters of south Lancashire.20 Even Russell agreed that there were solid objections to factory owners upon the bench,21 and (p.910) the fear that they would not be impartial in master–servant disputes proved well justified;22 but there was no realistic alternative, and since they included many staunch Whig supporters there was every incentive for the Whigs to dilute the policy of exclusion.23 Inevitably and with great rapidity the character of the bench in the potteries, the black country, and south Lancashire changed, the landed interest ceasing to dominate numerically, though they may have continued to feature most strongly in ‘county’ business as opposed to criminal justice.24 The same trend can be detected in other industrial areas,25 though in several places the bench had to be supplemented by stipendiaries.26


Outside the counties of mines and factories change was slower. It was long before farmers were accepted in Lincolnshire, and solicitors were still excluded in many counties, but by the mid-century new purchasers of landed estates, retired from business or professions, rather than their sons, became acceptable,27 and in the next generation active businessmen and doctors were put into the commission. From 16 per cent of new appointments the proportion of ‘middle class’ ones grew to 30 per cent in the 1880s, though some counties the bench might still be described as ‘patrician’.28


The borough magistracy had a rather different history. The power of appointing magistrates in towns with their own commission of the peace was exercised by the corporation with little effectual check by a Lord Chancellor without personal knowledge or reliable informants. In many boroughs the justices were either the corporation themselves or their relations and cronies and they exhibited a ‘tendency…to develop into a small, self-perpetuating oligarchy’.29 Numbers were small—Southampton’s 11 was exceptional—and with no property qualification social standing was often modest. Though some had a good reputation (in Leeds (p.911) ‘their impartial conduct as justices were universally acknowledged’30), in general the Municipal Corporations Commissioners reported ‘a distrust of the Municipal Magistracy, tainting with suspicion the local administration of justice, and often accompanied with contempt of the persons by whom the law is administered’.31


The Commissioners’ solution, adopted by Melbourne’s administration, was to make the Lord Chancellor responsible for appointments, though in practice the Home Secretary took the bigger part.32 In some industrial towns there followed a very rapid change in the social composition of the magistracy, as in Wolverhampton, where within a few years of its charter two-thirds of the justices were ironmasters.33Change was much slower in older, slower growing towns such as Exeter, Lincoln, and York,34 but by the mid-1880s most had become ‘middle-class bailiwicks’, with landed representation declining from around half in 1841 to around a quarter in 1885.35


These changes were the outcome of an intensely politicized process.36 Both parties were unscrupulous in disregarding the personal qualities of candidates and the wishes of the inhabitants to boost their own numbers, injecting party animosity even in a town like Chester where the local leaders wished to moderate it.37 After something of a lull, the appointment of magistrates again became a matter of sharp party controversy in the 1880s. Conservative peers had seen off Lord Albermarle’s attempt to remove the property qualification in 187538 but the demand to introduce an elective element into county government was irresistible and Salisbury promoted the County Councils Act 1888 to limit the damage to Conservative interests. Removing the magistrates’ local government function might have tended to de-politicize appointments to the bench, but they were still valued as political patronage, whose distribution in the counties was a very sore point with Liberals.


(p.912) The drift of the landed classes into Conservatism would in any event have made it difficult to ensure an equal balance between the parties, but the seismic shift in British politics over home rule for Ireland dramatically aggravated the imbalance. Gladstone was left with just three lord-lieutenants out of 4239 and the Conservatives ruthlessly exploited their advantage. Between 1886 and 1906 36 lieutenancies fell vacant and most were filled with youthful Conservative noblemen, threatening to perpetuate a Conservative monopoly of the bench for the foreseeable future, since it was now ‘long established and inviolable usage’ that a lord-lieutenant’s recommendation would not be questioned unless it was objectionable on the face of it.40 Not surprisingly, some Liberals were attracted to an elected or professionalized magistracy41 and when they returned to power in 1892 they expected the Lord Chancellor to redress the balance, Dilke’s resolution having urged that the lord-lieutenant’s recommendation no longer be the basis for appointment.42


In the Duchy James Bryce tore up the Dufferin agreement and did just that,43 but Herschell proved much too cautious for his party’s liking.44 Another ten years of Halsbury, which left Shropshire with just ten Liberal justices against 240 Conservatives, ensured that Loreburn would face even more exigent demands, especially from Wales, where party antagonisms were unpleasantly sharpened by religion and nationalism.45


Loreburn made a promising beginning by removing the property qualification,46 but importunate MPs and whips found him even less pliant than Herschell in refusing to ‘job the judicial bench’47 by adopting ‘the snobs and the hacks whom (p.913) [MPs] wish to reward’.48 His principled stance led to private members’ bills for justices to be elected by county and borough councils,49 and despite Loreburn’s protestation that he had ‘appointed twice as many as have been appointed in any single year, the vast majority being Liberals’, it was awkward that eight of the fifteen newcomers to that bluest of benches, Shropshire, were Conservatives.50


Loreburn’s solution was a royal commission under a trusted ally, Lord James of Hereford, which readily adopted Loreburn’s position of adapting the existing system rather than making radical change. Each county or borough would have an advisory committee chosen by the Lord Chancellor and this would be the source of nominations.51 Loreburn set up the committees without even waiting for parliamentary approval, but they worked very differently from the way the Commission had hoped.52It envisaged a broader social mix among the magistracy and the lessening of party political influences, but though there was soon evidence of the former—‘rapid and dramatic’ in Wales53—party politics became entrenched in the new system. Selection committees, initially chosen for life,54 had a predominantly political character and rather than a source of informed and dispassionate intelligence about likely candidates they became a forum for party bargaining, worsening the ill they were supposed to cure.55


Loreburn’s defence of the number he had appointed was well justified, and since Halsbury had been no slouch, no fewer than 7267 were added to the bench between 1902 and 1908. By 1911 there were 23, 039 in all (including 2171 in Wales), though the number who were active is uncertain.56 However, they were by then distributed more evenly and were probably numerically sufficient for the duties they had to perform.



(p.914) 2. QUARTER SESSIONS



Time and Place


Each county57 was obliged to hold a general sessions at least four times a year and these naturally became known as quarter sessions. Dates were fixed in 1830,58 but by the Assizes and Quarter Sessions Act 1908 (c. 41) justices at a specially convened meeting might postpone or advance the date by up to 14 days. This was to facilitate a better synchronicity with the Assizes, and the same Act permitted the cancellation of a scheduled meeting if no business was known to the clerk of the peace.59


By the 1820s some counties were holding their quarter sessions at several different locations.60 In Suffolk and Sussex this reflected recognized county sub-divisions;61 in Kent it arose out of irreconcilable intra-county quarrels,62 while in Wiltshire, it was a conscious attempt to involve the whole county community.63 Others counties preferred always to meet at one town (e.g. the West Riding of Yorkshire at Pontefract) but routinely adjourned to others.64 Both practices had the drawback of a smaller attendance, making general policy decisions difficult, but this might reflect an understanding that major decisions would be made only at a particular central sessions.65


Roads were so poor in some places that spreading the sessions around the county was the only way to secure a good attendance. In theory the sessions were a grand affair, featuring a full turnout of the county’s great men and high officers and a ceremonial display like a lesser Assize.66 The reality was usually very different. In the winter sessions in particular, attendance was often small and the pomp and circumstance very muted.67 But the turnout had begun to improve, perhaps (p.915) partly because of the growing fiscal demands issuing to landowners from quarter sessions, and on special occasions, as when a county officer was to be elected and political passions were aroused, a veritable swarm of justices might descend.68 The justices who did come were having to stay for longer to get through their business, and more often had to adjourn or hold supplementary meetings; even monthly meetings had become not uncommon.69



Business


Quarter sessions undertook a vast range of miscellaneous business, embracing both criminal trials and appeals and ‘administrative’ business. Longer and more frequent sittings were the consequence of a formidable increase in both.70 The criminal work is more easily measured, at least for illustrative purposes. In Warwickshire convictions for larceny, theft or fraud, which between 1775 and 1788 had averaged only eight a year, had risen to 245.7 between 1823 and 1832, and the number of prisoners in the county gaol rose from 41 in 1775 to 351 in 1835. Warwickshire saw rapid population growth and industrialization, but even in more rural counties criminal business grew alarmingly; committals in Oxfordshire rose from 38 in 1805 to 271 in 1835.71


Administrative business admits of no straightforward measure. Some burdens were reduced after Waterloo, militia and volunteers ceasing to be a concern, and though fear of disorder remained potent, the Regency preoccupation with internal security faded.72 The archaic powers to regulate aspects of economic life to which some justices had clung tenaciously in defiance of the teaching of Scottish economists had also to be relinquished; the last, the Assize of bread, was finally abandoned in 1836.73


In other respects, however, the justices at sessions became ever busier as the nearest approach to a county government, sometimes of their own initiative, sometimes under pressure from above. After Peel’s Act of 1823 the building and (p.916) running of prisons consumed time and money,74 and though statutory provision of lunatic asylums was permissive only, it became a practical necessity in populous counties.75 Oversight of repair and maintenance of highways and bridges naturally became more onerous with increasing traffic and commerce,76 and above all there was the poor law. Not only were quarter sessions busy with appeals from parish officers and with an endless stream of settlement cases77 but justices at sessions were drawn inexorably into devising policies for the whole county; the widely imitated ‘Speenhamland’ scheme of wage supplements was controversial and costly.78 In other ways too this ‘rural House of Lords’79 acted as a legislative body, attempting, not always effectually, to suppress or regulate fairs, begging, beer houses, and other features of rural life magistrates considered undesirable.80


Although assaults on their pleasures and pastimes made the justices unpopular with the poor, it was the cost of local government which imperilled the continuation of the system. The county rate and the poor rate rose alarmingly,81 and as a result, besides radicals who condemned government by justices for its unrepresentative and class-based character and centralizing utilitarians who belittled it for inefficiency and lack of uniformity,82 its critics included conservatives who cared for neither of these things but were indignant at the sheer expense.83 Yet despite the temperate criticisms of several inquiries into county rates84 and Joseph Hume’s bills to establish county finance boards,85 county quarter sessions survived the threatening decade of Whig reforms with their powers and duties largely intact, save one great exception: the revolution in poor relief practically ended the role of quarter sessions.86


(p.917) In several other areas, prisons and asylums are instances where central supervision and regulation made inroads into their virtual autonomy.87 However, the loss of independence in these areas can be overstated, and how much remained is as notable as how much was lost.88 The county was not superseded as the basis for local government by the poor law union districts and when counties were offered the opportunity for a police force in 1839 it was on the quarter sessions that the decision rested.89 Even when counties were obliged to have a police force in 1856 quarter sessions shared operational responsibility in an often cosy but occasionally uneasy relationship with the chief constable.90


There were important new or enhanced responsibilities in other areas, such as arranging assessments for county rates and a steady stream of appeals from the outcomes.91 When controls on liquor licensing were reimposed it was a standing committee of quarter sessions which had to confirm new licences.92 As a residual local authority it was the recipient of a great miscellany of duties, from handling outbreaks of foot and mouth disease in cattle to appointing inspectors of weights and measures and making rules to govern the use of bicycles and traction engines on the highway.93


What had greatly changed was that quarter sessions and the county had ceased to be the basic elements of local government for rural England (and England was still predominantly rural), becoming just one of a bewildering range of authorities, old and new; some with a single function, others with several; some elected, others nominated; and with their boundaries overlapping and confusing.94 The place of quarter sessions in this patchwork was threatened by its exclusive, (p.918) undemocratic character, which would gradually come to override considerations of economy and efficiency.


The position in the boroughs was quite different.95 In some the quarter sessions had become the most powerful element in town government, while in places like High Wycombe it was little more than decorative.96 Either way, the Municipal Corporations Commissioners saw no place for it in the reformed scheme of town government, and with a few exceptions of a ‘quasi-judicial’ character, notably licensing, borough quarter sessions were thereafter confined to criminal jurisdiction.97 More than 50 years later the same fate befell the county justices, though they too retained a role in liquor licensing, along with a miscellany of duties in relation to highways, prisons, and lunatics and a not inconsiderable appellate jurisdiction in bastardy orders, rating appeals, poor law matters, and others.98


The criminal business of quarter sessions had consisted chiefly of petty larcenies and misdemeanours, since it was understood that capital offences and those likely to involve a difficult question of law should be reserved for the Assizes.99 That still enabled the justices to prescribe brutal corporal punishments and transportation, the latter so convenient a means of removing troublesome petty criminals and saving expenditure on the rates, that some benches were tempted to use it rather freely.100 When crime underwent a big surge from the 1790s101 quarter sessions trials did not at first rise in proportion, because the proliferation of crimes made capital by statute took many out of their agreed limits, while an increasing number were being dealt with by the justices ‘out of session’.102However, beginning with Peel’s programme of criminal law reform, capital offences were (p.919)greatly reduced and when in 1842 a formal statutory limitation was placed on quarter sessions’ capacity to try the most serious offences it may in practice have slightly enlarged rather than reduced its operations.103


Nevertheless, from the 1840s the relentless enlargement of petty sessions’ jurisdiction, coupled with the beginnings of a reduction in crime levels,104 ensured that quarter sessions functioned as much as an appeal court as one of original jurisdiction, larceny still making up 70–80 per cent of the latter.105From the 1870s there were persistent suggestions that more of the serious offences should be tried at sessions instead of Assize, but the only major devolution was simple burglary in 1896.106 Most judges were steadfastly opposed to such moves and had a plausible objection in the uncomfortable fact that most quarter sessions chairmen were laymen whose ability to conduct major criminal trials was questionable.107 Nevertheless, by 1900 about three-quarters of jury trials were held at quarter sessions (twice as many at county sessions as in the boroughs).108 Even so, in some rural counties the encroachments of petty sessions and relatively low levels of acquisitive crime robbed the quarter sessions of much of their business.109



Organization


As Eastwood remarks, the quarter sessions was an institution which proved capable of remarkable flexibility in adapting itself to changing circumstances.110 Its essential peculiarity as an agency of government remained, duties being enforced by a quasi-criminal procedure initiated by a presentment, but some participants in the process, such as the hundred jury, had already faded into history and others, such as the grand jury and the high constable, were fast losing their importance.111Presentments now emanated mostly from the justices themselves and the (p.920) administrative side of quarter sessions was becoming less of a public and more of a bureaucratic affair.


From 1819 sessions were explicitly allowed to operate as two courts where the business was likely to exceed three days.112 Criminal business, which had to be held in public, was usually taken first and magistrates often dealt with the rest in private session, sometimes over dinner.113 The private sessions were probably more for convenience than concealment, but it became more difficult to defend the exclusion of press and public and by the mid-1830s more than half of the counties had ceased trying, the others coming into line soon afterwards.114


As business grew, counties sought to improve the ways in which it was handled. Delegating the examination of a bill or a set of accounts to one or more justices with local knowledge or a special interest was superseded by formal committees, and by 1835 most had a committee for prisons and one for finance.115 New permanent officials, the treasurer and the surveyor, made their appearance,116and in many counties a small inner group of regular attenders became established: this was ‘the efficient secret of the Quarter Sessions…orchestrated by an energetic and authoritative chairman and serviced by an efficient clerk of the peace’.117


The key figures in determining how quarter sessions conducted its affairs were the chairman and the clerk of the peace. The former was practically unrecognized by statute until the twentieth century, and even passing references in the Poor Prisoners’ Defence Act 1903 and the Criminal Appeals Act 1907 at most only implied the existence of a permanent chairman.118 Yet by the 1820s many counties elected such a chairman, though Devon at least maintained the older custom of choosing afresh for every session. Others, like Surrey, had a different chairman for each place where the sessions were held, and Surrey was also among those with different chairmen for administrative and criminal business,119 the latter having become so burdensome that in 1832 the county made an unsuccessful (p.921) attempt to emulate Salford in having a salaried chairman.120 Middlesex was even more hard pressed and in 1844 was granted a salaried, legally qualified, assistant judge to preside over trials121 but this was unique. There was a tendency to choose a prominent social figure and counties were encouraged to invite judges of various sorts as the role became more judicial and less administrative.122 A long-serving and hard-working chairman like Sir Christopher Willoughby in Oxfordshire could do much to invigorate and reshape local government, but probably more typical of the nineteenth century was his successor W. H. Ashurst (1822–46), who favoured a more collective style of leadership and led the way into an era of ‘cabinet-style government’. 123


Until 1835 there was a variety of arrangements in the boroughs. In some a Recorder (not always legally qualified) presided over trials; in others the justices chose a temporary chairman and in others still the mayor and alderman held court.124 The Municipal Corporations Act changed all that, imposing a uniform arrangement whereby the Recorder (now always a salaried barrister) became the sole judge; lay justices might sit with him and be consulted at his discretion, but responsibility was his alone.125In the counties the chairman was much less absolute, at least in theory. He was merely primus inter pares, ‘only the mouthpiece of the majority of justices present’, and might be overruled even if he (and the clerk) alone possessed and applied professional legal learning.126 In practice such happenings were rare and probably became rarer with the increasing complexity of the criminal trial. 127


This, and in particular the increasing tendency of prisoners to be legally represented,128 no doubt exposed the shortcomings of many a chairman, though (p.922) harshness in sentencing attracted more criticism.129 Published recollections are mostly of the metropolitan area courts, which are hardly representative.130 Sir William Hardman’s ‘brutal and ferocious’ sentencing was widely condemned131 and similar criticisms were levelled at Sir Peter Edlin and several of his deputies across the river at Clerkenwell Green.132


Administrative and clerical support for county quarter sessions was supplied principally by the clerk of the peace.133 He was appointed by the custos rotulorum and held office during good behaviour, though between 1864 and 1893 he might be dismissed by the quarter sessions for misconduct outside his office.134 The Webbs painted an unflattering picture of the clerks. Most were proteges of the custosand usually employed a deputy to do the work. Both positions were coveted by solicitors, and tended to become attached to particular firms.135 The clerk or his deputy was often careless in his primary task of record-keeping and was concerned chiefly with extorting fees, which were practically unregulated until 1817.136 The justices might be indifferent to exactions from suitors but as the county rate increased they became less complaisant about attempts to charge the county for the clerk’s services, sometimes resulting in recurrent friction and leading to a more systematic scrutiny of accounts.137


(p.923) More recent scholarship substantially modifies this unflattering view, at least for the first half of the nineteenth century. Deputies were not so common,138 clerks were mostly solicitors,139 and if some clerks held several county offices, this gave them a tighter grip on the overall administration, which was necessary for the ‘chief executive officer’ they had in many cases become.140 There were more records to be kept, more returns to be made, and the clerk’s duties look so formidable that it is not surprising that some became full-time officials.141


The move from fees to salaries was very gradual. An early initiative in the West Riding of Yorkshire was abandoned after doubts about its legality, but it was introduced in Hertfordshire and elsewhere on the strength of a recommendation of the County Rate Committee in 1834, receiving a belated statutory sanction in 1851.142 Even then vested interests were so well protected that Sir Richard Wyatt, the clerk of the peace for Surrey, kept his fees until his death in 1904.143


Wyatt was one of many who enjoyed a long tenure, though few could match H. P. Markham’s 58 years (1846–1904) in Northamptonshire.144 The combination of long experience in office, sometimes in several posts, practical irremovability, and close acquaintance with criminal procedure made some clerks arrogant and high-handed, a tendency strengthened when they were made secretaries to the advisory committees on the appointment of justices.145 However, their position was drastically altered by the Local Government Act 1888. The power of appointment was transferred to a standing joint committee of the county council and quarter sessions, with the clerk’s salary fixed by the latter, and he was now to act also as secretary to the new council.146 This made the county clerk’s position closer (p.924) to his borough counterpart, who usually doubled as town clerk. The Municipal Corporations Act 1835 vested the appointment and remuneration of the clerk of the peace in the corporation, and while it did not require the two posts to be held by the same person, for a time at least that remained usual. The chief duties of the borough clerk of the peace were arranging criminal trials: drawing indictments, preparing warrants and orders, and recording judgments.147



3. JUSTICES OUT OF QUARTER SESSIONS



Petty Sessions


The sittings of the justices at general sessions formed only a small part of their activities. The commission empowered them to act in many circumstances either alone or in pairs and to the single justice, often at home, came ‘a succession of cases of every imaginable description’.148 Moreover, the justice was not supposed to be merely a passive recipient of complaints but actively to seek out neglects of public duties and criminal behaviour.149 However, in the eighteenth and early nineteenth centuries Parliament reposed confidence increasingly in what lawyers called ‘the double justice’; pairs of justices were given responsibility for enforcing weights and measures legislation and (with unhappy results) power to sanction the stopping up or diversion of footpaths.150 Quarter sessions too began to delegate to them more ‘county business’, such as that relating to bridges and prisons.


The justices out of sessions were not a court of record and their work was essentially informal. Though writers of manuals urged diligent record-keeping as good practice (and as some security if a justice were haled into the King’s Bench), it was often sketchy and unsystematic.151 The statutes which extended the powers and duties of the county justices seldom restricted their jurisdiction to any defined part of their own county, so a complainant might seek out a justice believed to be favourable and contradictory orders might be issued in ignorance by different justices.152


However, during the eighteenth century the haphazard practices of the justices out of sessions had been reduced to some regularity in most counties.153 Alongside or between special sessions regular, publicly notified meetings of several justices (p.925) for a particular division were held, their frequency depending on the volume of business and the conscientiousness of the justices. In Middlesex, where pressure of business first led to this innovation, some districts were in practically daily session, while in other counties weekly or fortnightly meetings were the rule.154 Most had also imitated quarter sessions by choosing a regular chairman.155 There was nothing to prevent any county justice from attending one of these ‘petty sessions’, but custom confined it to the justices of that division.156 Not all justices welcomed the growth of formality and collective activity, and many continued in the old ways; indeed, petty sessions nowhere displaced the magistrate at home, dispensing justice from his parlour.157


Parliament, however, evinced a clear preference for the new practice. One of Peel’s reforming measures in 1828 permitted quarter sessions to revise the petty sessional divisions every ten years and allowed them to create additional divisions, and an 1836 Act encouraged the alignment of the divisions with poor law unions as far as county boundaries would allow.158 The development of petty sessions has been called ‘the most significant innovation in English county government within the early modern period’.159 It practically eclipsed venerable offices such as the high constable in the oversight of parish administration and steadily accumulated a massive body of summary jurisdiction. In many places the justices coped with business like quarter sessions, by separating criminal work from their innumerable ‘powers of a local and social character’160 often doing the latter in private.161


Yet all this was bestowed upon an institution scarcely mentioned in statute. Petty sessions were still aptly described by the County Rates Commission 1836 ‘rather as a voluntary meeting of magistrates than a court specifically recognized by law. It has neither a regular establishment of officers, nor any formal or authentic memorial of its proceedings.’162


A badly needed overhaul of summary jurisdiction and out-of-sessions business was undertaken by the Attorney-General Sir John Jervis. Jervis’s legislation fell well short of the full consolidation of magistrates’ law he intended,163 and his policy of shifting further criminal business onto an amateur, untrained (p.926) and questionably impartial magistracy did not meet with universal approbation.164 Nevertheless the collection of four statutes—the Summary Jurisdiction Act, Indictable Offences Act, and Protection of Justices Act 1848, and the Petty Sessions Act 1849, put in place a much needed framework.165


The interface of petty sessions and courts of summary jurisdiction was still complicated. A court of summary jurisdiction was held before justices in petty sessions or a stipendiary magistrate. A petty sessions court which exercised that jurisdiction sat on a publicly announced day in a designated petty sessions courthouse. Two justices sitting in an ‘occasional court house’ might still hear and determine cases but their sentencing powers were more limited, while a single justice sitting at a petty sessions house retained a lesser criminal jurisdiction; he was then a court of summary jurisdiction but not a petty sessions court.166


Petty sessions continued to handle an enormous range of not strictly or technically criminal matters, though in some cases—without any obvious logic—their activities were not those of a court.167 Beyond the confines of petty sessions justices still had a range of other powers and duties, such as backing and issuing warrants and in keeping the peace, but by 1914 most of their duties were performed in court.168 Government responsibility for the petty sessions lay with the Home Secretary, and this included vetting the appointment of justices’ clerks.169



Summary Jurisdiction and Committals


Blackstone was perturbed at the statutory inroads made upon the hallowed right to trial by jury by extending summary trial by magistrates.170 He would have (p.927) been even more alarmed at subsequent developments, and he would not have been alone, for though Bentham was in favour there were both Tories and Whigs who deprecated at least some aspects of this tendency. The Tory C. D. Brereton inveighed against its informalities and unconstitutionality171 while Brougham devoted a part of his marathon speech on law reform to attacking magistrates’ justice.172 There were certainly gross defects in both theory and practice. Few of the statutes prescribed a procedure to be followed and few allowed an appeal, leaving only the remote supervision of the King’s Bench as a remedy for injustice, which occurred on a large scale.173 In London there was some degree of regularity and professionalism in the conduct of sessions, but in the country summary justice was sometimes downright perfunctory.174 One or two justices, at home or at an inn, untrained in the law and with only the assistance of a clerk of limited learning and a copy of Burn or some other manual, would often go astray through ignorance, in some cases compounded by prejudice. Poor men were at the mercy of the magistrate, while even the better off might find themselves denied counsel and tried in private, away from the publicity of the newspaper press.175 Borough justices, as in Sheffield, often had a worse reputation than their county counterparts and since the justices took responsibility for keeping public order, their police function in suppressing strikes and demonstrations sat uneasily with their judicial role.176


Suspicions about the biases of magistrates were often well-founded. Landed gentry might be disinterested enough in most matters but scarcely when it came to the game laws or the stopping of footpaths.177

Only gold members can continue reading. Log In or Register to continue