The History of Justices of the Peace (Magistrates)

 

Origin of the Office
The part played by lay magistrates in the judicial system of England and Wales can be traced to the year 1195. Richard I in that year commissioned certain knights to preserve the peace in unruly areas. They were responsible to the King for ensuring that the law was upheld. They preserved the "King's Peace", and were known as Keepers of the Peace.

The title Justices of the Peace derives from 1361, in the reign of Edward III. An Act of 1327 had referred to "good and lawful men" to be appointed in every county in the land to "guard the Peace". Justices of the Peace (referred to as magistrates in WYMCS) still retain (and occasionally use) the power conferred or re-conferred on them in 1361 to bind over unruly persons "to be of good behaviour". The bind over is not a punishment, but a preventive measure, intended to ensure that people thought likely to offend will not do so.

For the following 600 years, and continuing today, Justices of the Peace have undertaken the greater part of the judicial work carried out in England and Wales on behalf of the Sovereign. For most of that time - until the invention of our modern system of local government in the 19th Century - JPs also administered the country at a local level. They fixed wages, built and controlled roads and bridges, and undertook to provide and supervise locally those services thought by the Monarch and by Parliament to be necessary for the welfare of the country.

Commission of the Peace
The present work of Justice of the Peace is almost entirely judicial, but certain of their responsibilities e.g. for the licensing of the premises selling alcohol, are retained from the days when they were also regulators and administrators of the counties. On appointment a JP was (and still is) inscribed by name on the Commission of the Peace for the county concerned. It was as members of the Commission of the Peace that Justices became virtual rulers of England and Wales at local level, For centuries, those appointed to the Commission were either land owners or merchants of great substance, whose social position and economic power was so strong that their authority went undisputed. This is reflected in the fact that even today JP's hold no badge or certificate of appointment.

Quarter Sessions
An Act of 1361 provided that JP's should meet to conduct local business four times a year. This was the origin of Quarter Sessions, which continued until replaced by Crown Courts in January 1972. Although they retained their original name for more than 600 years, many of them were in continuous session in the closing years of their long record.

'The Great Unpaid'
JP's are often referred to as 'the great unpaid'. In fact, under an Act of 1389 the early Justices received a 'subsistence allowance' of four shillings a day. This appears to have lapsed, presumably because for centuries most JP's were well-to-do landowners who would not bother about 'expense accounts'.

Tough on Poachers
As so many of these first JP's were landowners, it is not surprising that as early as 1389 the first Game Law was passed. The old JP's had the reputation of being tough on poachers; who were usually well known to those before whom they appeared.

Power to fix wages and services
The administrative duties of JP's began to develop in the closing years of the 14th Century and continued until 1888. As early as 1389 they acquired powers to regulate wages and control the cost of living by fixing prices. The Act provided that victuallers 'shall have reasonable gains according to the discretion and limitations of the said Justices'. So long as the economy was predominantly rural, the pressure on both wages and prices came from such natural causes as inclement weather and poor harvests. Such factors as the cost of land and buildings hardly entered into the reckoning. The establishment of industries in the medieval 'wool' towns brought new problems with which the JP's were ill equipped to deal. Most of the new employers were in competition with the landowners for labour.
17 May 1999

Legal Qualifications of JP's
Much has been said about JP's being untrained until recently but, in fact, many landowners were members of the Inns of Court. This, however, was not to assist them in administering the criminal law but to equip them for the prudent management of their estates. Usually their study of the law did not go very deep. Shakespeare's Master Shallow and Falstaff were typical. They were roistering fellows whose fondest memories are summed up in Faistaffs line 'we have heard the chimes at midnight, Master Shallow'. For all that, at least 50 editions of works for the guidance of Justices had been published by 1600, and so effective had their rule become, that Sir Edward Coke described it as "such a form of subordinate government for security and quiet of the realm as no part of the Christian world hath the like".

Parish Constables
In 1576, JP's were required to build 'houses of correction' in which rogues and vagabonds could be detained. These were apprehended by village constables - unpaid parishioners conscripted for service annually.

Religious Influences
The Reformation, followed by alternating Catholic and Protestant ascendancy, affected the Justices as well as every other section of the community. JP's had their names removed from the Commission for non-attendance at their parish church. A screening operation carried out by the bishops in 1564 revealed that of 850 JP's examined, more than half were suspected of being recusants. A purge followed, and in 1579 every JP was required to swear fidelity to the established religion. Confidence was temporarily restored, and when the Spanish Armada threatened England, the Justices again proved fully capable of maintaining the Queen's peace.

The System under Pressure
In the third quarter of the 16th Century the rule of the JP's began to be questioned. It was alleged that many of them neglected their duties or were incapable of performing them. In the words of Elizabeth Is Lord Keeper: "Her Majesty may be driven, clean contrary to her most gracious nature and inclination, to appoint and assign private men for profit and gain sake to see her penal laws to be executed". At the same time it was acknowledged that many were conscientious. These, however, were said to be over-burdened and unable to meet the increasing demands of their office.

Duties expanded
In 1590 a new Commission was introduced redefining the duties of JP's. Seven years later they were given responsibility for the administration of the Poor Law. Meanwhile, their duties in operating the criminal law were increasing so rapidly that Labarde's work on the duties of Justices ran to more than 700 pages. The most controversial ordinance affecting JP's was the Act of 1652 empowering them to perform marriages and making all other forms of the ceremony illegal. When this exclusive right was repealed it became necessary to regularise the position of those already married by JP's by providing in the Act of Charles II that such marriages were to be held valid.

Social Fluctuations in Appointments
Under the Commonwealth, the social distribution of appointments widened. There were fewer noblemen and more esquires in the Commission. This trend, however, was reversed at the Restoration. The nobilityreturned to power and were the instruments of the Crown in enforcing measures against dissenters. They enforced uniformity in worship as their forerunners had done under Elizabeth I, but religious fluctuations again brought confusion. James II tried to pack the Commissions with his adherents.

Land Interest Weakened
The revolution of 1688 brought radical changes. In 1700, 74 Middlesex Justices were removed from the Commission. Property qualifications rather than political or religious allegiance carried weight. In 1732 the property qualification, which had remained Commission. Property qualifications rather than political or religious allegiance carried weight. In 1732 the property qualification, which had remained unchanged since 1439, was raised. It was held 12 years later that it was "of the utmost consequence to provide against persons of mean estates" being appointed. The Lord Lieutenant appointed "Only men of substance" on the recommendation to the Crown. In the second half

Petty Sessions
As early as the 16th Century, JP's had divided themselves into local groups to deal with vagrancy, poor relief etc. In 1605, local sessions for the dispatch of urgent business not requiring jury were instituted by an order of the Privy Council. As the work increased these came to be known as Petty Sessions, but not until 1828 did they become established by statute. In that year the county Justices were authorised to divide their counties into Petty Sessional Districts. In each of these the JP's engaged a local attorney to act as clerk.

Effect of the Industrial Revolution
With the 19th Century the movement of population to the towns brought new problems. The 'county' families moved out of the newly urbanised districts into neighbouring countryside. The 'trading Justices' chiefly associated with Middlesex, but who were also prominent in Lancashire, came in. In the second half of the 18th Century a large number of clergymen had served as Justices. Some had, in fact, been chairmen of Quarter Sessions. The Reverend W.R. Hay, who held a valuable living at Rochdale worth £2,500 a year, was probably the first. Another clergyman, the Reverend Richard Burn, Vicar or Orton in Westmoreland, was a chairman of Quarter Session, and published in 1755 his great work "The Justice of the Peace and Parish Officer". The edition published in 1869 was in five volumes.

During the change from rural to urban conditions, many of these clerical Justices played a prominent part, particularly in improving conditions in county gaols. In 1832, of the 5,300 active JP's, one in every four was in holy orders.

JP's relieved of administrative duties
Between 1829 and 1888, JP's were relieved of some of their major administrative duties with the exception of liquor licensing, and it was thought widely that they would soon be relieved of their judicial duties also. The historian Maitland wrote "The JP is cheap, he is pure, he is capable but he is doomed, he is to be sacrificed to a theory on the altar of the spirit of the age". Since he wrote those words, the judicial responsibilities of JP's have increased almost annually.

The effect of progressive urbanisation
Before 1835, Justices in towns were appointed in accordance with rights granted by charter. The Municipal Corporations Act 1835 provided for them to be nominated by the Lord Chancellor for the boroughs in consultation with local advisers, while, for the county benches, he continued to confirm the nomination of the Lord Lieutenants, who had their own methods for finding suitable candidates. The appointment of both was vested in the Crown acting on the Lord Chancellor's advice. The exception to the rule was Lancashire, where both county and borough magistrates were nominated by the Chancellor of the Duchy.

The system of appointment challenged
The Liberal Government in 1906 challenged this system of appointment, which led to a preponderance of Conservatives on the benches. The property qualification was abolished for county magistrates. Lord Loreburn, as Liberal Lord Chancellor, nominated 7,000 magistrates between January 1906, of whom 3,197 were liberals. The Royal Commission on the Appointment of Justices of the Peace 1910, recommended the institution of an Advisory Committee system, and by the end of 1911, Advisory Committees on which Liberals and Conservatives were usually equally represented had been set up in most counties to advise Lords Lieutenants on nominations. Ten or twelve years later, the boroughs also had formed Advisory Committees. Appointment to these Committees was for life until 1925, when Lord Cave introduced appointment for six years and ordered half the Committees to retire by rotation every three years.

The Magistrates' Association
The system of administration of justice by lay magistrates is more than 600 years old but it was not until 1920 that it was proposed to establish an association of magistrates. The idea came from Alderman Wilkins, a magistrate for Derby, and at the invitation of the Lord Mayor of London about 200 magistrates met at the Guildhall in the City of London, which resulted in the first meeting of the Magistrates' Association at Central Hall, Westminster on 28 October 1921, at which Lord Haldane was elected the first President.

The Association is governed by a Council composed of members from throughout the country and the first Council meeting - at which 29 members were present - was held at the Home Office on 25 November 1921.

Although in its early years the Association's membership was fairly small, it included among its members some very illustrious justices. Margery Fry, who was one of the first women to be appointed a justice in 1921, was a driving force in the Association.

The Association encouraged its members to undertake basic training immediately after appointment and to keep up with changes in law and procedure. It was not until 1949, when the Royal Commission drew attention to the subject, that the real importance of training was recognised by the government. Most of the Commission's recommendations regarding training were implemented in the Justice of the Peace Act 1949, which provided that the magistrates' courts committees should make and administer schemes of instruction in accordance with arrangements made by the Lord Chancellor.

At its inaugural meeting in 1921 the Association had around 500 members. By its Silver Jubilee in 1945 it had 5,288 members and 16,354 at its fiftieth Anniversary in 1970. In 2001, the Association's membership was over 28,000 of which over 26,000 are active (ie serving) magistrates. The Association can claim to represent over 85% of magistrates on the bench as well as many on the supplemental lists.

Royal charter
The Association was granted a royal charter in 1962 and subsequently assigned a coat of arms. Under the charter, the Lord Chancellor of the day is ex officio President of the Association and the Lord Mayor of London an ex officio Vice President.

Training of Magistrates
The changes introduced by the Criminal Justice Act 1948 and the Justices of the Peace Act 1949 proved so far reaching that in 1953 a system of Magistrates' Courts Committees was established, with responsibilities for administering Magistrates' Courts, engaging staff and providing courses on instruction for Justices. Ten years later anxiety was widespread about their failure to fulfil their training function on an adequate scale by voluntary means and, after discussion with The Magistrates' Association, which by this time had gained considerable expertise in its training role, The Lord Chancellor introduced compulsory training for all newly appointed magistrates in 1966. Statutory responsibility for this remained with Magistrates' Courts Committees; but the Association found itself called upon to play a rapidly expanding role in promoting training conferences and organising courses of instruction. Nationally, the Magistrates' Association arranged a series of training activities, for the most part as residential conferences, focusing on issues of current concern. These are intensive, hard-working meetings whose object is to establish and maintain a good level of practice throughout the magistracy as a whole. Its 58 Branches also conduct training programmes on a local level.
 

The Justices of the Peace Act 1968
This Act provided for the gradual reduction of the age of retirement from the bench from 75 to 70, and confirmed the position of the Clerk as legal adviser to the Justices. The fact that 98% of all cases, which come before the criminal courts of England and Wales are disposed of by JP's with no required legal qualifications continues to surprise many people. The justification is based largely on the relationship which had developed over the years, and in 1968, received statutory authority, between JP's and their clerk - the JP's bearing sole responsibility for their findings on fact and on the credibility of witnesses, the clerk advising them on the law and the extent of their powers.
 

Crown Courts replace Assizes and Quarter Sessions
The Courts Act 1971 drastically altered the legal system which had continued for 600 years by providing for the abolition of courts of Assizes and Quarter Sessions and their replacement by a new Crown Court. In a presidential address to the Association, Lord Hailsham described this as 'by far the biggest measure of law reform in this particular field for at least a century and, in some respects, since the institution of the assize system in the reign of Henry II'. It was concerned mainly with the re-organisation of the higher courts, but it was important for JP's because it enlarged their powers by enabling them to exercise full jurisdiction in Crown Courts over the whole of England and Wales.