A History of Police in England

by W. L. Melville Lee

Before 1328, the so-called justices were executive officers only, "they were little more than constables on a large scale";[43] but in this year, Edward the Third, who had recently come to the throne, considerably extended their powers by entrusting to them the examination and punishment of law-breakers.

The King reserved to himself the right of nominating those who should hold the office, and, throughout his long reign, continued to take the liveliest interest in his Justices of the Peace. He ordered that they should be connected with the county for which they were appointed, by holding therein a certain amount of landed property, a qualification which has been retained for many centuries. He made it a condition that they should be bons gentz et loiaulx; and for fear lest the granting of judicial powers to local officials should open the door to extortion on the one hand, and to ignorant maladministration on the other, was very careful as to the class of man he selected. For this reason, the pleadings of Parliament notwithstanding, he could not be induced to give up the privilege of appointing his own nominees, and even the democratic tendencies of modern times have left the appointment of Justices of the Peace in the hands of the Crown. Another Statute[44] (also passed in 1328) ordained that no man should "go offensively" or "ride armed" before the new magistrates—a wise enactment designed to protect them from being brow-beaten and intimidated by those great nobles who sought to obtain their own ends through the awe inspired by the display of a large armed retinue.

In 1333[45] Edward informed the Commons that one of his principal reasons for calling them together was to take counsel with them concerning the means that should be adopted for preserving the peace, and to this end charged them to assist him to the best of their ability. The Commons readily accepted the invitation, and subsequently lost no opportunity of expressing the interest they took in the Justices of the Peace, whose office was the constant theme of suggestions and petitions, which, however, the King, who preferred to take his own line, usually disregarded.

Of the several Statutes that were successively passed dealing with the office in question, the most important became law in 1360.[46] "In every county in England, there shall be assigned for the keeping of the peace, one lord, and with him three or four of the most worthy men in the county, together with some learned in the law, and they shall have power to restrain offenders, rioters, and other barretors, and to pursue, arrest, take, and chastise them, according to their trespass or offence; and to cause them to be arrested and duly punished according to the law and custom of the realm, and according to that which to them shall seem best to do by their discretions and good advisement; ... and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour toward the King and his people ... and also to hear and determine at the King's suit all manner of felonies and trespasses done in the same county according to the laws and customs aforesaid."

Two years after the Statute above quoted had been enacted, the Justices were empowered to sit quarterly for the transaction of business,[47] and before long Quarter Sessions absorbed the major portion of the executive and administrative government of the county.[48]

When Richard II. ascended the throne, the Justice of the Peace was thus firmly established as one of the permanent institutions of the kingdom. Since that time, the office has passed through many vicissitudes, experiencing many a rise and many a fall; but through all these changes, the Statute quoted above, which first defined his position, has always been referred to when any doubt arose as to the powers a Justice may exercise by virtue of his commission, and its meaning has been stretched and extended by degrees until, as Burn says, "there is scarcely any other Statute which hath received such a largeness of interpretation."[49]

It will be observed that in addition to the powers given to Justices for the punishment of offences against the peace, express authority was also conferred upon them by the same instrument for the prevention of such offences, for they were specially ordered to "take sufficient surety and mainprise of all them that be not of good fame." We have seen how under the decennary or tything system, all freemen were bound to find sureties for the preservation of the peace, and we have watched the decay of that system after the Norman invasion; in the provisions of this Act of Parliament, however, we may discover at least a partial revival of the ancient plan of demanding guarantees against any contingent infraction of the public peace, and of associating in a joint pecuniary responsibility the actual or potential peacebreaker with his immediate neighbours.[50] The "sufficient security" which Justices were authorised to take might be of two kinds—"Surety of the Good Behaviour" and "Surety of the Peace," and the security might be by Bail or by Mainprise, the difference between the two being "that mainpernors are only surety, but bail is a custody; and therefore the bail may retake the prisoner, if they doubt he may fly, and detain him."[51] ... Sureties of the Good Behaviour and Sureties of the Peace were granted on suspicion or on the flimsiest sort of evidence; for instance, "any suspected person who lives idly, and yet fares well, or is well apparelled, having nothing whereon to live," any common gamester, or the reputed father of a bastard child, or an eaves-dropper even, might be called upon to find mainpernors or bail; and so great discretion was required on the part of the Justices, who had to decide such knotty points; it was consequently of the highest importance that these officers should be familiar with the districts in which their duties were performed, and legal erudition was a consideration subordinate to personal character and local knowledge. When the Law was young evidence was received for what it was held to be worth, without distinction as to whether it might be hearsay, circumstantial, or direct; the word of a thane would prevail against the evidence of six ceorls; in fact the credibility of every witness was appraised in proportion to his social position, just as a man's life had formerly been estimated at a distinct valuation, and scheduled according to a recognised scale.[52]

The feudal system had taught the retainer to look to the Lord of the Manor for the redress of any grievance that he might have against his neighbour. To the tribunal of the Manor, also, he was wont to bring family differences for settlement; here the father would recount the follies of his son, and the wife complain of the habits of her husband: for, just as the priest was the spiritual adviser to his congregation, so, in many instances, was the Lord of the Manor the lay-counsellor to the dwellers on his estate. It was essential, therefore, that the Justice, who had to perform many of the duties formerly attaching to the feudal lord, should be a local man and a man of position; people would have nothing to do with a stranger, or with one who, in their opinion, was a man of no account, however great a lawyer he might be.