It was not, however, in the superior courts of law alone that the principle made itself felt. Its working, if less evident on the surface, may be traced no less clearly in the exercise of petty jurisdiction by the justices of the peace sitting without a jury. But here the mutual relation of the two elements was reversed. The justice of the peace was in most cases a landowner, a country gentleman, not skilled in law. In the earlier period the commission included a number of trained lawyers, who were said to be of the quorum, because without the presence of one of them the justices were not by law competent to act.[174:1] But in process of time the trained lawyers ceased to be appointed, while the names of almost all the justices came to be inserted in the quorum clause;[174:2] and thus it happened that judicial authority was vested in a squire who knew little of the law he was called upon to administer. But the justice supplied, in fact, the lay, not the professional, element in his own court; the requisite legal knowledge being usually furnished by his clerk, who was learned in the law; or, at least, learned in the duties of the justice of the peace as set forth in the statutes and in the manuals published for the purpose.
The office of clerk of the peace for the county must be of considerable age, for it is referred to in a statute of Richard II. in 1388.[174:3] But besides this office, which is a public one, it has been the habit time out of memory for an active justice to retain a private clerk of his own to assist him when acting as a single magistrate; such a clerk being paid partly out of the justice's pocket, partly from the fees that accrued.[175:1]
As Portrayed in Literature.
More important than the age of these offices is the question of the real power exerted by their holders. That the influence of a clerk over the justice who employed him has long been both great and notorious is clear from the frequent references to it in literature. Early in the seventeenth century Fletcher, in "The Elder Brother," makes Miramont say to Brissac:[175:2]—
"Thou monstrous piece of ignorance in office!
Thou that hast no more knowledge than thy Clerk infuses."
Near the end of that century the same idea was expressed with singular frankness in a manual on "The Office of the Clerk of the Peace," published in 1682. In an address "to the reader," which precedes the second part of the volume, the author explains the object of the book. After saying of the justices of the peace that their birth is a glory to their seats, he continues:—
"But divers of these Gentlemen having not been conversant in the Practice of the Ordinary Courts of Justice, often in the absence of those worthy Persons, who be associated with them for their Learning in the Law, meet with many difficulties and discouragements."
Coming down to the eighteenth century there is the case of Squire Western and his clerk in "Tom Jones"; and later in the same novel the scene in the inn at Upton, where the strange justice is unwilling to act because he has not with him his book or his clerk. The reader will probably remember Justice Foxley and his clerk in "Redgauntlet"; and also Dickens's burlesque of the relation in the scene at Ipswich, where after much whispering between the justice (Mr. Nupkins) and his clerk (Mr. Jinks) the magistrate says to Mr. Pickwick:—
"An information has been sworn before me that it is apprehended you are going to fight a duel, and that the other man, Tupman, is your aider and abettor in it. Therefore—eh, Mr. Jinks?"
"Certainly, Sir."