Justice 
 
 AND 
 
 Police 
 
 F. W. MAITLAN D 
 
 J^'^tiUtfT'^iiJt^
 
 GIFT OF 
 
 SEELEY W. MUDD 
 
 and 
 
 GEORGE 1. COCHRAN MEYER ELSASSER 
 
 DR. JOHN R. HAYNES WILLIAM L. HONNOLD 
 
 JAMES R. MARTIN MRS. JOSEPH F.SARTORI 
 
 to the 
 
 UNIVERSITY OF CALIFORNIA 
 
 SOUTHERN BRANCH 

 
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 ausstiff aitn ^olift 
 
 THE ENGLISH CITIZEN 
 
 HIS RIGHTS AND RESPONSIBILITIES
 
 JUSTICE AND POLICE 
 
 BY 
 
 F. W. MATTLANl) 
 
 Honton 
 MACMILLAN AND CO. 
 
 1885 
 
 The liigUl of Translation and licpruiluction is Rtserved 
 
 8597^
 
 Richard Clay & Sons, 
 bread street hill, london, e.g., 
 
 and at Bunr/ay, SuJToJk.
 
 J N 
 n9 5 
 
 PREFACE. 
 
 It was at one time lioped tliat the book in this Series 
 oil Justice and Police would be written by Mr. C. P. Ilbert. 
 But he was called away to the Council Board of India, 
 
 <^ and after a while the work was placed in my hands. 
 
 CV 
 
 05 My already great regret that the book comes not from 
 H 
 
 him but from me has been increased by reading two 
 
 4,} chapters of the unfinished work that he left behind him. 
 
 •H They were about the County Courts and the relation 
 between Equity and Law, and I have had the great 
 advantage of using them in the i-evision of what I had 
 already wintten on the same topics ; but for no part of 
 this book can he be held answeralile. I am also deep 
 in debt to many writers on English law, but above all 
 to Mr. Justice Stephen and Dr. Rudolph Gneist. This 
 book is so short and slight that I must content myself 
 with a general and inadequate acknowledgment of my
 
 vi PREFACE. 
 
 dehts. Seeing that to treat my huge subject exhaust- 
 ively was out of the question, it has been my endeavour 
 to notice those things which, though of common import- 
 ance, may not be perfectly well known to every reader 
 of newspapers — noii suhtilia sed utilia, as an illusti-ious 
 writer said when he undertook a simila task six 
 hundred years ago. 
 
 F. W. M,
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 rAf;r, 
 
 THE DOMAIN" OF EXGLI.SH JUSTICE ] 
 
 CHAPTER II. 
 
 CIVIL AND CRIMINAL JUSTICE 1-2 
 
 CHAPTER III. 
 
 THE COUNTY COURTS 20 
 
 CHAPTER IV. 
 
 LAW AND EQUITY 31 
 
 CHAPTER V. 
 
 THE HIGH COURT AND THE COURT OF Al'l'KAI 43 
 
 CHAPTER VI. 
 
 THE HOUSE OF LORD.«; AND THE CHANCELLOR ;'7 
 
 CHAPTER VII. 
 
 CIVIL EXECUTION AND BANKRUPTCY 69 
 
 CHAPTER VIII. 
 
 THE COUNTY MAGISTRACY 79
 
 viii CONTENTS. 
 
 CHAPTER IX. 
 
 PAGE 
 BOROUGH JUSTICES AND PAID MAGISTEATES 94 
 
 CHAPTER X. 
 
 THE CONSTABULAUY 105 
 
 CHAPTER XI. 
 
 AKKEST, MAGISTERIAL EXAMINATION, AND SUMMARY 
 
 JURISDICTION 118 
 
 CHAPTER XII. 
 
 PROSECUTION 136 
 
 CHAPTER XIII. 
 
 THE CRIMINAL COURTS 152 
 
 CHAPTER XIV. 
 
 A CRIMINAL TRIAL 163
 
 JUSTICE AND POLICE. 
 
 CHAPTEE I. 
 
 THE DOMAIX OF ENGLISH JUSTICE. 
 
 The word Justice on our title-page will not lead any 
 English citizen to expect a book on English law in 
 general. Sometimes by this word we seemingly do mean 
 the whole law. Thus when we speak of courts ad- 
 ministering justice we mean that they administer law. 
 But by coupling Police with Justice we narrow the 
 meaning of the latter word. By the Justice and Police 
 of a country are meant those institutions and processes 
 whereby that country's law is enforced ; whereby, for 
 example, those who are wronged obtain their legal 
 remedies, and those who commit crimes are brought 
 to their legal punishments. These institutions and 
 processes are themselves fixed and determined by law, 
 but the law which fixes and determines them is only a 
 part, and a subsidiary part, of the whole law. Thei^e is 
 a large body of rules defining crimes and the punish- 
 ments of those who commit them, rights and the remedies 
 of those who are wronged, but there is also a bodv of
 
 2 JUSTICE AND POLICE. [CH. 
 
 rules defining how and by whom, and when and where, 
 rviles of the former kind can be put in force, and rules 
 of the latter kind are our subject-matter. Therefore, 
 were the fiction not too audacious, we might conveniently 
 suppose ourselves to know all the English law which 
 defines rights and remedies, crimes and punishments ; 
 the difference, for instance, between manslaughter and 
 murder, between real and personal property, the offences 
 for which a man may be sent into penal servitude, and 
 those for which he may be imprisoned. But there is no 
 need of any such fiction. However technical the law on 
 these matters may be, the English citizen is likely to 
 know enough about it to allow of his understanding such 
 brief account as can here be given of the means whereby 
 that law becomes a coercive power. He knows in all 
 grave yet common cases whether he is doing a crime or 
 no, whether his neighbour is wronging him or no, and 
 this knowledge will serve for everyday life. Were it 
 not so, there would be no law, or, which is much the 
 same thing, law would be a set of rules about as useful 
 as those of heraldry. 
 
 The rules then that we are to consider are subsidiary, 
 they exist for the sake of other rules which they pre- 
 suppose. Still they are of great concern to all. It will 
 little avail us that our law about rights and remedies, 
 crimes and punishments, is as good as may be, if the 
 law of civil and criminal procedure is clumsy and in- 
 efficient. On the other hand, a system of Justice and 
 Police cannot but do for a nation much other work 
 besides that which it is set to do directly ; it will shape 
 the national character, and some awkwardness and insuf- 
 ficiency for its immediate ends may be forgiven it, if it 
 invites and compels the people at large to an active
 
 I.] THE DOMAIN OF ENGLISH JUSTICE. 3 
 
 interest and personal participation in the work of 
 the law. 
 
 But let the scope of our undertaking be limited as 
 narrowly as may be, still it will be too wide unless we 
 start with the resolve of attending only to main outlines 
 and things of daily use, to the neglect both of details 
 and of all that is vinused or unusual, however curious or 
 picturesque it may be. For instance, of the Ecclesiastical 
 Courts we must say nothing, or no more than this, that 
 they have a memorable history ; that, now and again, 
 cases touching doctrine and ritual come before them 
 which rouse deep feeling and influence the future of the 
 national Church ; but that such cases are very rare, and 
 that the regular work done by these tribunals (if regular 
 work they can be said to do) is trivial. And there are, 
 at least on paper, manoiial and other courts, and pos- 
 sible proceedings which for the same reason must go 
 unnoticed. The history of England has been so un- 
 broken, its very revolutions so legal, that many ancient 
 institutions preserve a nominal being long after all real 
 life has left them. 
 
 A more definite boundary lies in this, that we are to 
 speak of England, not of Great Britain, nor the United 
 Kingdom, still less of that great collection of lands which 
 we call the British Empire. With us, then, England 
 will include Wales, but not Scotland, Ireland, the Isle 
 of Man, or the Channel Islands. This is the usage of 
 our Statute Book, in which, ever since 1747, the name 
 England has comprehended Wales. For a long time 
 before that — we may say ever since 153.5 — Wales, for 
 all the greater purposes of Justice and Police, had formed 
 part of England, and though until 1830 it had certain 
 courts of its own, still it was not more divided from 
 
 B 2
 
 4 JUSTICE AND POLICE. [ch. 
 
 England than were the counties palatine, such as Chester, 
 from the rest of England. Scotland, on the other hand, 
 has both substantive law of its own and also an inde- 
 pendent system of judicature, magistracy, and police. 
 Ireland has most of its laws in common with England, 
 but it also has a set of courts, judges, magistrates, 
 constables, all to itself. 
 
 At most points there is far more likeness between the 
 English and the Irish, than between the English and 
 the Scotch organisation. There is, for example, a system 
 of law courts in Ireland which is very like the English, 
 while the Scotch is quite different. On the other hand, 
 we sometimes find more similarity between England and 
 Scotland than between England and Ireland. Such is 
 the case if we look at the organisation of what we call 
 " the police force," the body of paid constables. Ireland 
 as a whole has a police force in a sense in which Scotland 
 has and England has, not a police force, but many 
 police forces. What, then, we have to say of England 
 will in the main be true of Ireland also. Scotland, too, 
 and England have learnt, and are learning, so much 
 from each other, and have so long formed part of one 
 United Kingdom, whose laws are made by the self-same 
 Parliament, and interpreted by the self-same court of 
 last resort, that though it would still be rash to argue 
 that what is law on one side of the border is law on the 
 other also, none the less, any one who looks beneath 
 technicalities to the weightier matters of the law will 
 see that the two countries are not very foreign to each 
 other, and become less foreign year by year. 
 
 But it is not with similarity or dissimilarity that 
 we have to do so much as with independence, and 
 the three countries in their Justice and Police are
 
 I.] THE DOMAIN OF ENGLISH JUSTICE. 5 
 
 independent of each other. As regards the supreme 
 executive control, England is a little more closely bound 
 to Scotland than to Ireland, since " the Irish Executive 
 is still kept distinct, at least outwardly, from that of the 
 rest of the United Kingdom." ^ The powers over the 
 police forces, for example, which for England and 
 Scotland are exercised by the Home Secretary, are 
 exercised for Ireland by the Lord-Lievitenant. Just 
 at one point, and that the highest, the three judicial 
 systems coincide ; the House of Lords is the court 
 of last resort for the three countries ; it hears 
 appeals from the English, the Irish, the Scotch courts. 
 In this respect the Channel Islands and the Isle of Man 
 are more remote from us. The appeal from their courts 
 is not to the House of Lords but to the Judicial Com- 
 mittee of the Privy Council, the com^t of last resort for 
 India and the Colonies. Of this great court we shall 
 hardly have to speak again, for though it may be the 
 most notable court held in England, yet it is not, 
 save for some little matters, an English coiu-t, a court 
 for England. It is, for instance, the final court of appeal 
 from those ecclesiastical courts of which we are to say 
 no more, but the work that it; does as such is only a very 
 small part of its business. From of old the King in 
 Council had exercised an extraordinary jurisdiction, foi' 
 the most part of a penal kind, in cases which the ordi- 
 nary tribunals could not meet. The misuse of this powei- 
 under the Stuarts gained for this tribunal an ill fame, 
 for it was the Court of Star Chamber, and in 1640 this 
 power was taken away. Bu.t just then from the smallest 
 beginnings another judicial function of the Council was 
 becoming considerable. As a court of appeal for all the 
 ^ Citizen Series, Traill, Central Government, p. 68.
 
 6 JUSTICE AND POLICE. [cH. 
 
 king's lands beyond the seas, the field of its work has 
 constantly grown as conquest and colonisation have given 
 the king new lands in every corner of the world. In 
 1833 the judicial business of the Council, which until 
 then had been done in a somewhat casual fashion, was 
 intrusted to a Committee which was to be composed of 
 such privy councillors as should be holding or have held 
 certain high judicial posts, and in 1871 four paid judges 
 were appointed. At present, as will be seen hereafter/ 
 a scheme is at work, the result of which will be that the 
 paid judges of this court and those of the House of 
 Lords, the other great court of last resort, will be the 
 same persons. 
 
 But when we say that England has a system of 
 Justice and Police separate from those of Ireland and 
 Scotland, it is not meant that these two members of 
 the United Kingdom bear to the English system quite 
 the same relation as that borne by foreign countries, 
 such as France, or even that borne by British territories, 
 such as Canada, The subject is complex because it is 
 governed by many particular rules, but the general 
 nature of these may be indicated. It is true that when 
 the question is whether a criminal prosecution can be 
 maintained or a civil action brought in an English 
 court, the crime having been committed, or the cause 
 of action having arisen in some place out of England, 
 the answer will commonly be the same whether that 
 place be Dublin, or Montreal, or Berlin. In each case 
 it is a place " beyond the jurisdiction " of the English 
 court. The old, and still the main, rule of our criminal 
 law is, that for a crime done on land out of England 
 a man cannot be tried in an English court albeit he 
 1 See below, p. 59.
 
 I.] THE DOMAIN OF ENGLISH JUSTICE. 7 
 
 is the Queen's subject. To start with, the criminal law 
 was very thoroughly localised ; not raerely the boundar}- 
 of England, but the boundary of each county and of 
 each hundred was of great concern. As to the 
 hundred, that has long ceased to have importance, but 
 it is still the primary rule that a man must be tried by 
 a jiuy of the county in which the crime was done. 
 Statutes have made very many exceptions to this rule ; 
 but still it is the rule. Crime, then, done in no county, 
 the ordinary English covirts could not punish ; but to 
 them has now been transferred a jurisdiction which the 
 court of the Admiral had over crimes done at sea, and 
 some considerable inroads have been made on the rule 
 that a crime done on land out of England cannot be 
 tried here. There is a special law as to crimes 
 done in India, and if treason, mvirder, or manslaughter 
 is committed on land out of the United Kingdom 
 by a subject of the Queen, he can be tried for it in 
 England. 
 
 And so with civil actions. The important question as 
 regards the place at which an act was done, or at which 
 the subject of dispute is situate, is whether it is in 
 England, not whether it is within the United Kingdom 
 or the Queen's dominions. How the competence or the 
 decision of an English court will be affected by the fact 
 that such a place is beyond the jurisdiction, it would be 
 long to tell. " Our courts are said to be more open to 
 admit actions founded upon foreign transactions than 
 those of any other European country ; but there are 
 restrictions in respect of locality which exclude some 
 foreign causes of action .... svich as trespass to 
 land."^ An English court will not entertain an action 
 ^ Mr. Justice Willes, Law Reports, 6 Queen's Bench, p. 28.
 
 8 JUSTICE AND POLICE. [cH, 
 
 for the recovery of land in Austria or in Lanarkshire ; 
 on the other hand, a man who is resident in England 
 can be sued in England for a debt contracted by him 
 in Paris : put Peebles for Paris, the result is the 
 same. 
 
 But if we regard, not the competence of an English 
 court to entertain a suit or prosecution, but the executive 
 power of making persons and things which are not in 
 England amenable to English justice, then Scotland and 
 Ireland are more closely connected with England than 
 are the colonies, and much more closely than the lands 
 of foreign states. For the arrest of one who has com- 
 mitted a crime, England is organised as a whole, and 
 the United Kingdom as a whole, and the British Empire 
 as a whole. There are warrants for the apprehension of 
 criminals which will authorise their arrest in any part 
 of England ; but the usual warrants issued by justices 
 of the peace cannot at once be executed save within 
 the disti-ict (usually a county or town) for which the 
 justice is justice, or in case of fresh pursuit, a some- 
 what wider space. If the warrant is to be put in force 
 in any place beyond these limits, it must first be 
 ''backed," endorsed, by one who is a justice for that 
 place. Now, in this respect the United Kingdom is 
 a whole. The warrant of a Yorkshire justice can be 
 made an available authority for arresting a man in 
 Caithness by the same simple process that woiild make 
 it available in Kent. But if the criminal has fled to 
 any of the Queen's dominions (let us say to a colony) 
 outside the United Kingdom, the procedure for bringing 
 him to trial in England is by no means so simple. In 
 a case of grave crime he can indeed be arrested and sent 
 to England, but the process is set about with safeguards
 
 I.] THE DOMAIN OF ENGLISH JUSTICE. 9 
 
 against oppression. It involves, first, a presumptive 
 proof of the charge before a colonial magistrate ; 
 secondly, an opportunity for applying to a colonial 
 covu't of law, which has a discretionary power of dis- 
 charging the fugitive if to send him back to England 
 seems oppressive or too severe a punishment ; and, 
 lastly, an order by the colonial governor, who again 
 has a discretion to exercise. In this matter there is 
 reciprocity between the several parts of the Queen's 
 dominions ; and in sending a fugitive back from England 
 to a colony, the Home Secretary plays the part which 
 in the reverse process is assigned to the colonial governor. 
 But if the fugitive is in a foreign land, then he will be 
 beyond the reach of English or British justice. The 
 foreign state may surrender him, and may be bound by 
 treaty to surrender him. Great Britain has now many 
 treaties with foreign states for the reciprocal extradition 
 of those accused of certain crimes, and there is a definite 
 procedure in this country for the extradition of those 
 whom we are thus bound to surrender. But to 
 execute its own coercive processes in foreign countries, 
 English or British justice makes no endeavour, and 
 of course there are good reasons why none should be 
 made. 
 ^ If we look at the means of compelling a person to 
 give evidence concei'ning matters which are before an 
 English court, we see again this triple organisation. 
 A person may be summoned as a witness from any part 
 of England, and if he does not come he can be punished 
 by the court that summoned him. Then again, English 
 coui'ts can summon a witness from Scotland or Ireland, 
 and if he does not come he can be punished by a Scotch 
 or Irish court. From any of the Queen's dominions
 
 10 JUSTICE AND POLICE. [ch. 
 
 outside the United Kingdom lie cannot thus be sum- 
 moned, but in aid of litigation in an English court a 
 commission may be sent out to the colony to take his 
 evidence there, and if he will not give it a colonial court 
 can punish him. If however he is in the land of a foreign 
 state, then it rests with that state to compel him or not to 
 give evidence for the purpose of English litigation ; we, 
 for our part, do provide processes whereby a person in 
 England can be compelled to give evidence to be used 
 before foreign tribunals. 
 
 Again, the civil judgments of an English court can 
 be made available in Scotland and Ireland, and those 
 of a Scotch or Irish court in England, by a simple 
 process of registration which involves no further liti- 
 gation. But the judgment of a foreign, or even of a 
 colonial court, cannot be thus enforced in England. 
 Speaking very generally, we may say that an 
 English court will treat the judgment of a foreign 
 or colonial court as deciding finally between the 
 parties to the litigation any question which it pro- 
 fessedly decides ; but if the person against whom it 
 has been given has lands or goods in England, these 
 cannot be seized until an English action has been 
 brought and an English judgment has been given 
 against him. 
 
 What, however, has here been said about the organisa- 
 tion of the United Kingdom as a whole for Justice and 
 Police, and the looser organisation of the British Empire, 
 does but indicate the effect of statutes for the more 
 part quite modern. This organisation has been slowly 
 created as failures of justice have brought home to Par- 
 liament the need of connecting together more closely the 
 several lands over which it bears sovereign sway. Possibly
 
 I.] TPIE DOMAIN OF ENGLISH JUSTICE. 11 
 
 the connection will become yet closei*. There was a time 
 when each county in England might have been said to 
 have an independent system of Justice and Police ; but 
 we who are to speculate about neither the future nor 
 the past, shall do well to think of England as a territory 
 which has one system all to itself.
 
 CHAPTER II. 
 
 CIVIL AND CEIMINAL JUSTICE. 
 
 A NATURAL division of our subject has already svig- 
 gested itself. The main objects of justice are to afford 
 remedies for the infringement of rights, and to insure 
 the punishment of crime. Now, the notion of punish- 
 ment seems quite distinct from that of exacting redress. 
 The criminal in the interest of the community is hanged 
 or imprisoned. Any person whom his crime has wronged 
 gains nothing by this punishment. The debtor, at the 
 instance of his creditor, is forced to pay what is due ; if 
 he will not pay, his goods or lands will be seized in order 
 that the claim against him may be satisfied. Here the 
 creditor obtains something very definite, while the debtor 
 is not punished, he suffers no harm or loss beyond what 
 is necessary in order that another may have his due. 
 This distinction between remedial justice and penal 
 justice is likely to show itself in the law of every age 
 and every country that we can compare with our own, 
 by giving rise to two different systems ; there will be 
 criminal cases and civil cases, a criminal procedure and 
 a civil, perhaps criminal covirts and civil courts. This 
 distinction is, in general, well marked in England. It 
 is true that for civil and criminal trials the same judges
 
 CH. 11.] CIVIL AND CRIMINAL JUSTICE. 13 
 
 have been largely employeil, that the prosecution of 
 crimes has been left very much to the public at large, 
 that a trial has been conducted in much the same form 
 and spirit whether it would end in sentence of death or 
 in judgment for damages. But, for all this, a civil action 
 is one thing, a criminal prosecution is quite another. A 
 few contrasts should be noted at once. 
 
 Of coui'se, though a wrong is often no crime, and a 
 crime is often no wrong, still there are many acts which 
 are both wrongs and crimes. A man may be guilty of 
 high -treason or many other crimes against public order 
 without giving any one a cause of civil action ; and even 
 of crimes which are classed as offences against property, 
 many can be committed without any one being injured ; 
 the forger is punished though he has not defrauded any 
 one. On the other hand, the notice-board which tells 
 us that " Trespassers will be prosecuted " is, if strictly 
 construed, a, wooden falsehood ; a mere trespass on the 
 land of another may be the subject of a civil action, but 
 not of a criminal prosecution. Still, very often the same 
 act is both a crime and a wrong. An assault is a case 
 in point, and so is a theft. The defamatory libel that 
 is a wrong is, at least very generally, a crime also. But, 
 with a few exceptions, the I'ule holds good in England 
 that no remedy or redress can be had in criminal pro- 
 ceedings. One exception may serve to illustrate the rule : 
 the civil remedy of judicial separation can be obtained 
 by a wife against her husband in criminal proceedings 
 founded on an aggravated assault. ^ But this is modern 
 and still anomalous. Indirectly a prosecution may do 
 
 ^ Statute, 1878, chap. 19. In the exercise of then- summary penal 
 jurisdiction magistrates can sometimes give a small remedy in the 
 form of "amends" or "compensation."
 
 U JUSTICE AND POLICE. [cu. 
 
 the person wronged a great service. One who has been 
 libelled may clear his good name as effectually by pro- 
 secuting his libeller as by bringing a civil action ; but 
 the one proceeding will give him nothing, the other will 
 give him compensation ; the one will lead to the criminal's 
 punishment, the other will not. 
 
 Then, again, though the crime be a wrong, the person 
 wronged has no exclusive or peculiar title to prosecute 
 the offender. In this country any person can prosecute 
 any person for any crime. But a prosecution is theoreti- 
 cally a proceeding on the part of the Queen, and she has 
 two checks upon the power of the prosecutor. She can 
 pardon crimes, whether before or after trial, and can 
 also stop criminal proceedings ; the one power is exer- 
 cised by the Home Secretary, the other by the Attorney- 
 General ; but the Queen cannot forgive a wrong done to 
 one of her subjects, or stop a civil action which he brings. 
 On the other hand, a person wronged by a crime can 
 release the offender from the claim for civil redress, but 
 not from the penal consequences of his act ; an agree- 
 ment not to prosecute would, at least in most cases, be 
 void, and in some cases the making of it would itself be a 
 crime. It has also been supposed that if a wrongful act 
 is a felony the person wronged cannot come by his civil 
 remedy until the offender has been prosecuted ; but it 
 has become doubtful how, or even whether, this rule can 
 be enforced, and certain that the offender cannot rely on 
 his unprosecuted crime as defence to a civil action. 
 Lastly, criminal proceedings will not (if we neglect one 
 or two small matters) prevent civil proceedings, nor will 
 a civil action prevent a prosecution ; the thief is liable 
 to be both punished and compelled to make redress. 
 
 But the suggested division of our subject between
 
 II.] CIVIL AND CRIMINAL JUSTICE. 15 
 
 Civil Justice and Criminal Justice would not be ex- 
 haustive unless we used the word criminal in a wide 
 sense. As we shall hereafter see, there are two main 
 methods of getting a man punished : (1) an indictment, 
 which will lead to a trial by jury ; (2) summary pro- 
 ceedings before magistrates, in the which there will be 
 trial without jury. Now, some of the misdoings, the 
 indictable offences, which might be punished by the 
 former method and very many of the misdoings which are 
 punished by the latter cannot be called crimes, unless that 
 word may import but little blame or none at all. Against 
 a man who being bound by law to repair a bridge has 
 left it unrepaired, proceedings may be taken which in 
 form will be much the same as those to which he would 
 be open if he had perjured himself, for he has 
 committed an indictable misdemeanour. This may be 
 considered an exceptional case, and the graver criminal 
 procedure is not often used, save when there is a charge 
 of what all would call a crime. But with the summary 
 procedure this is not so. Many serious offences may be 
 punished by such means, but also those small breaches 
 of public law of which an honest and law-abiding man 
 may well be guilty. If we call these crimes, then Par- 
 liament in its every session invents many new crimes. 
 For such offences we have no shorter technical term than 
 offences punishable wpon summary conviction. It must 
 be noticed however that if we should depart somewhat 
 from common usage in calling these offences crimes, still 
 we should not depart from a usage which has been sanc- 
 tioned by our courts and statutes. Proceedings before a 
 magistrate which may end in the infliction of a small 
 fine upon one who has not sent his child to school, or who 
 has beaten his carpet in the street, are, accoi'ding to our
 
 16 JUSTICE AND POLICE. [ch. 
 
 books, criminal proceedings, and certainly they are pro- 
 ceedings which end in punishment, not in redress or relief. 
 
 However, it may save misunderstandings if we, for 
 our own purposes, adopt the following convention : a 
 crime shall be an indictable offence, one for which a man 
 may be indicted by a grand jury and tried by a petty 
 jury ; a minor offence shall be one for which the offender 
 cannot be indicted, but can be punished after trial with- 
 out jury. It will be convenient at once to add that in 
 our books of criminal law it is written that "every 
 crime is either treason, felony, or misdemeanour." ^ The 
 word treason may speak for itself. The distinction 
 between felonies and other crimes is very old ; it comes 
 to us from a time when almost all felonies were capital 
 crimes, and when it was nearly, or quite, correct to 
 define a felony as a crime for which a man forfeits lands 
 and goods. In course of time the distinction has become 
 capricious, and of no great substantive importance ; that 
 is to say, we know little about the punishment that a 
 criminal will get when we know only that his crime is 
 felony or (as the case may be) misdemeanour. On the 
 whole, a felony will be a bad crime, but there are bad 
 crimes which are not felonies ; perjury, for instance, is 
 a misdemeanour, and the distinction between the larceny 
 which is, and the obtaining by false pretences which is 
 not, a felony, is often very subtle ; both would be called 
 theft by any but lawyers. This distinction still com- 
 plicates criminal procedure ; for there is often one rvile 
 for felony, another for misdemeanour ; probably this old 
 classification of crimes will disappear before long, but its 
 existence must be remembered. 
 
 There are some apparent anomalies which deserve a 
 ^ Stephen, Digest of Criminal Law, art. 15.
 
 II.] CIYIL AND CRIMINAL JUSTICE. 17 
 
 moment's notice. In this country the ordinary civil 
 procedure has been often employed for what in substance 
 vras a penal pm-pose. We refer to the penal action, or 
 action for a money penalty. The King, as already said, 
 has power to pardon crimes and to stay criminal pro- 
 ceedings. It may be that these powers are nowadays 
 exercised only for the most laudable purposes, but the 
 use of them has been jealously dreaded by Parliaments. 
 Therefore, Acts of Parliament have often enforced public 
 duties, and in particular the duties of public officials, 
 not by denouncing against those who should break them 
 any such punishment as fine or imprisonment, but by 
 giving an action of debt against such persons for the 
 recovery of a fixed sum of money. Sometimes such 
 action has been given to " the party grieved," to any 
 person, that is, who is wronged by the breach of duty. 
 In such cases it may be possible to regard the action as 
 an action for a remedy, though the remedy may be out 
 of all proportion to the wrong. To take one famous 
 example, the Habeas Corpus Act of 1679 is studded 
 with heavy money penalties. In substance these were 
 meant to be punishments extremely sure and effective, 
 which no king or minister could prevent, mitigate, or 
 forgive, and just for this reason the mode appointed for 
 exacting these large penalties was not in form a criminal 
 proceeding ; it was an action for debt by the party 
 grieved. The sum that he would thus obtain might 
 well be far more than what would compensate any 
 wrong done to him ; but compensation was not the 
 object ; the officer who kept men in prison unlaAvf ully 
 was to be punished severely, whether the King liked 
 it or no. This is a famous example ; liut the same 
 machinery has been used for many less notable purposes. 
 
 c
 
 18 JUSTICE AND POLICE. [cn. 
 
 But often a statute has given an action for a penalty, 
 not merely to the person, if any such there be, who is 
 wronged, but to any one of the people who chooses to 
 avail himself of it ; in other words, to a common in- 
 former. In form there is just an action for a debt, and 
 the procedure is the ordinary civil procedure ; but in 
 truth the object often is to punish one who without 
 invading any private right has been guilty of a breach 
 of public law. Important rules are from time to time 
 sanctioned in this way. To act, for instance, as a mem- 
 ber of a local board, or as office holder in a municipal 
 corporation without being lawfully qualified, subjects a 
 man to a penalty of £50, i-ecoverable by an action, which 
 in the one case may be brought by any one, and in the 
 other by any burgess. So the regulation of divers trades 
 and professions has been enforced by penal actions, penal 
 in substance, civil in form, given to persons in general, 
 or to persons grieved, or again to some corporation, the 
 Goldsmiths' Company, the Law Society, the Pharma- 
 ceutical Society, or the like. Our Parliaments, careful 
 rather of ends than of means, have been inventive of 
 such expedients for insuring obedience to public law. 
 
 It will not have been amiss to glance at this matter if 
 thereby we have reminded ourselves that in our law (the 
 product of many forces acting through many ages) the 
 dis*tinctions will not always be found just where we now 
 should draw them. There are some proceedings in our 
 courts about which it is quite possible to raise the 
 question whether they are civil or criminal. The regular 
 means of trying whether the occupant of a public office 
 has any right ta the post, e.g., whether he who is acting 
 as mayor of a town has been duly elected, is a proceed- 
 ing (in " (|uo warranto ") which once was distinctly
 
 li.J CIVIL AND CRIMINAL JUSTICE. 19 
 
 penal and which there Avas some reason for technically- 
 calling criminal, until a statute of last year declared that 
 it was to be deemed civil. But still we shall do well to 
 make the distinction between civnl and criminal justice 
 a main outline of our work.^ 
 
 ^ It may well be doubted whether every proceeding iu a court of 
 law can conveniently be called either civil or criminal, but we are 
 somewhat deeply committed to this theory by Acts of Parliament. 
 
 c 2
 
 CHAPTER III. 
 
 THE COUNTY COURTS. 
 
 Until lately, our system of civil courts was very in- 
 tricate, and no explanation could be given of it without 
 a long historical preamble. It has now become fairly 
 simple and symmetrical. Its chief features are these. 
 'There is one court of first instance for the whole of 
 England, with an unlimited competence, namely, the 
 High Court of Justice. Its judicial work is done partly 
 at sittings held at Westminster in the building known 
 as the Royal Courts of Justice, partly at sittings held 
 periodically at divers towns, assize towns, throughout 
 the country. What we may call the ofiicial work, pre- 
 paratory and subordinate to this judicial work, is done 
 partly at a gi'eat ofiice at Westminster, partly at district 
 registries scattered abovit England. From this court 
 there lies an appeal to the Court of Appeal which sits at 
 Westminster. The High Court and Court of Appeal 
 taken together are styled the Supreme Court of Judi- 
 cature. From the Court of Appeal there lies an appeal 
 to the HoiTse of Lords. These courts are central and 
 "superior." Besides these there are some five hundred 
 County Courts, which are local, " inferior," and of limited 
 competence, and whence an appeal lies to the High
 
 cu. III.] THE COUNTY COUliTS. 21 
 
 Court. There are a few other local courts which, in no 
 bad sense, may be called eccentric. This is a rude sketch 
 to be made somewhat more precise hereafter. We may 
 look first at the County Courts which, if the least splendid, 
 are none the less of great importance. 
 
 Nothing in the history of English law has been more 
 momentous than the very thorough centralisation of its 
 judicial system, and the consequent aggregation in 
 London of the whole body of lawyers. Before 1846 
 there had been a period, to be measured rather in cen- 
 turies than in years, dvu-ing which the only civil coui-ts 
 of at all a general competence were the courts at West- 
 minster. We may say not untruly that in 1800 almost 
 all the judicial work of the kingdom was done by four- 
 teen men. Each of the three courts of common law. 
 King's Bench, Common Pleas, Exchequer, had four 
 judges; in the Chancery there were two judges, the 
 Chancellor and the Master of the Rolls. Wales, it is 
 true, and a few palatinates had courts of theii' own ; 
 there were some other local coui-ts of vast antiquity but 
 trifling real value, and the ecclesiastical courts did a good 
 deal of business that was not of a very spiritual kind ; 
 still it is almost true that he who had aught against his 
 neighbour had to seek his remedy in Westminster Hall. 
 Once a year into the four northern counties, twice a 
 year through the rest of England, the common law 
 jvidges went as Commissioners of Assize to try actions ; 
 but these actions were depending in courts at West- 
 minster, and many proceedings in them could only be 
 taken at Westminster ; there was the seat of judgment, 
 and thither the tribes went up. If the administration 
 of common law was centralised, the administration of the 
 supplemental law called equity was still more centralised ;
 
 22 JUSTICE AND POLICE. [cH. 
 
 it was all centre ; the two Chancery judges never sat 
 out of London. In dispensing penal justice a much larger 
 number of men, Justices of the Peace, took an active 
 part, and probably it was this large local magistracy 
 which made the concentration of civil justice as tolerable 
 as it was. 
 
 Far back in the middle ages there had been local 
 courts in plenty. "VVe must not here say anything of 
 their decline and fall ; only let us note, to prevent con- 
 fusion, that from time immemorial there had been 
 " county courts," wherein, vinder the presidency of the 
 sheriff, all freeholders of the shire might sit as judges. 
 But, long ago, these courts had ceased to do much 
 business. A statute of 1278 was construed as fixing 
 forty shillings as the limit of their jurisdiction. They 
 were thus hemmed within a boundary, which, though 
 nominally it was never altered, became always narrower 
 as the value of forty shillings became less. The discovery 
 of Mexico and Pervi altered the meaning of several rules 
 of English law, the letter of which remained unchanged ; 
 it extended the county franchise and the sphere of capital 
 crimes ; it also made our petty tribunals very petty 
 indeed. They dragged on an almost useless existence 
 until 1846, when the contentious jurisdiction was taken 
 away from " the old county courts " and transferred to 
 "the new county courts," Avhich were then created.^ The 
 new courts are connected with the old by a very thin 
 thread of statutory theory, and a name which is singu- 
 larly inappi-opriate. The old courts have still a phantom 
 being, though not as judicial tribunals. The statute 
 book authoiises the modern county voter to believe, if 
 he can, that when in strictest secrecy he is dropping his 
 1 The County Courts Act, 1846.
 
 in.] THE COUNTY COUUTS. 23 
 
 voting paper into the ballot box, he is attending a county 
 court of the old type held by the sheriff ; and such a 
 court the sheriff would still have to hold if any one were 
 to be outlawed, but outlawry has gone out of use.^ Of 
 the two county courts, the old and the new, we may say 
 that the one, if it exist at all, is not a law court, while 
 the other, though an active law court, has nothing to do 
 with the coimty. 
 
 During the last century and the earlier part of this, 
 the pressing demand for cheap and local justice was 
 staved off by the occasional and sporadic creation of 
 little covu'ts, courts of conscience, or courts of requests. 
 About a hundred of these were erected as now this town, 
 now that, made its voice heard. In general a body of 
 unpaid commissioners, of local tradesmen or the like, 
 was empowered to adjudicate without jury upon very 
 small debts. Not until 1846 was the serious step taken 
 of creating a new system of courts throughout the land, 
 though already in 1830 Brougham, inspired by Bentham, 
 had proposed the plan which in the main was at last 
 adopted. The limit to the competence of the new courts 
 was fixed in the first instance at £20, but so soon as 
 1850 it was raised to £50,'^ and from that time to the 
 present hardly a session of parliament has gone by which 
 has not by small instalments added something to their 
 powers. 
 
 The whole of Eogland, save the city of London (^\•hicll 
 later legislation has brouglit pi-actically, though not 
 nominally, within the system), was parcelled out into 491 
 districts. This scheme can be, and has been, modified 
 by Orders in Council, and there ai'e now, it is believed, 
 501 such districts. In England it is not to be expected 
 
 1 See below, p. 139. - The County Courts Ad, 1850.
 
 24 JUSTICE AND POLICE. [ch. 
 
 that the territorial arrangement that serves for any one 
 purpose will serve for any other, but on the whole it is 
 not very improbable that a county court district will be 
 coterminous with a poor law union. ^ Its boundary may 
 well cut the boundary of a county, for it belongs to a 
 scheme of geography which takes little heed of county 
 limits. Each district has generally but one place at 
 which the court is held, but in some districts there are 
 two or more " court towns." Then, again, these districts 
 are grouped into fifty-six circuits, each of which has 
 usually one judge and no more. The number of dis- 
 tricts in a circuit varies from one to seventeen ; one 
 circuit stretches into seven counties, several into five or 
 six ; over this circuit-grouping the Lord Chancellor has 
 a certain control. But it is the district, not the circuit? 
 still less the county, that is our unit when we are con- 
 sidering the competence of a court ; for each district has 
 a separate court. " The County Court of Suffolk, holden 
 at Beccles and Bungay," is a tribunal as distinct from 
 " the County Court of Suffolk, holden at Lowestoft," 
 and from " the County Court of Norfolk, holden at 
 Great Yarmouth " (though these three lie in one circuit), 
 as it is from " the County Court of Cornwall, holden at 
 Penzance." The name County Court is indeed misleading, 
 a concession to antiquarianism. 
 
 The judge is appointed by the Lord Chancellor from 
 among barristers of seven years standing ; he can be re- 
 moved by the Chancellor for inability or misbehaviour ; 
 he is disqualified from sitting in the House of Commons, 
 and from practising as a barrister ; his salary is charged 
 
 ^ As to tlie poor-law geography, see Citizen Series, T. W. Fowle, 
 The Poor Law, pp. 110-11, and M. D. Chalmers, Local Government, 
 p. 53.
 
 in.] THE COUNTY COURTS. 25 
 
 on the consolidated fund. Each court has its registrar and 
 high-bailiff ; the same person usually tills both offices ; he 
 is a solicitor appointed by the judge with the Chancellor's 
 approval, dismissible by the Chancellor at discretion ; 
 he performs important functions of a ministerial and 
 executive kind, and with the leave of the judge he can 
 give judgment in some undefended cases. A court is 
 held in each court town, usually once in every month, 
 except September ; but this arrangement, like many 
 other matters concerning these courts, is subject to the 
 orders of the Chancellor. In Liverpool, for example, 
 which has two judges, a court is held almost every day. 
 The judge belongs to the circuit, but the registrar be- 
 longs to the district, and has in the court town an office 
 constantly open, whereat he conducts the secretarial 
 work of the court. 
 
 The jui'isdiction of a County Court is limited in two 
 ways. First, it is geographically limited ; it is a court 
 for a district. By this is not meant that its judgments 
 and orders cannot be enforced against persons and things 
 outside the district ; it can summon a witness from any 
 pai't of England, and fine him £10 if he does not come, 
 and goods which are not in the district can be seized and 
 sold under its judgments. But its competence to enter- 
 tain a complaint is confined by the district boundary. 
 There are some more special rules connecting jurisdic- 
 tion with geogi'aphy (if, e.g., one would recover posses- 
 sion of land, one must go where the land lies), but 
 the most general rule is that one may sue a man in 
 the court of any district in which he dwells or carries 
 ou business. The rules about this matter are simple, 
 and have occasioned little trouble. The part of the 
 world which men call London, and which statutes
 
 26 JUSTICE AND POLICE. [cH. 
 
 call the Metropolis, has nine courts besides the City of 
 London Court (which is practically a county court for 
 the city), but for many purposes the districts of these 
 ten courts are treated as a single district. 
 
 But the jurisdiction of these courts is limited in 
 another way. As already said, it has been doled out by 
 Parliament piecemeal, and at the present moment the 
 result is elaborate, and not very logical. But, in rough, 
 the outlines may be thus stated. With not many ex- 
 ceptions, a County Court can entertain any civil action 
 that the High Court can entertain, and can give therein 
 any remedy that the High Court can give, if only the 
 sum of money or the value of the property at stake does 
 not exceed a certain sum. The great exception is this, 
 that an action for malicious prosecution, libel, slander, 
 seduction, or breach of promise to many, cannot, how- 
 ever small be the sum claimed, be begun in the County 
 Court. Also, no jurisdiction has been given to these 
 covirts in matrimonial causes ; they cannot decree divorce 
 or judicial separation. The pecuniary limits in other 
 cases are various. The most important is this, that in 
 an ordinary action for debt or damage the amount 
 claimed must not exceed £50 ; claims for debts and 
 damages for a less sum are the staple business of the 
 Couuty Courts, but, oddly enough, there are some con- 
 tracts which can be enforced though £500 is at stake ; 
 this is a relic of the time when there were courts of 
 equity distinct from courts of law. If the action be for 
 the partition of an estate, the distribution of a trust 
 fund, the winding-up of a partnership, £500 is the limit, 
 and there are other limits for actions concei'uing lands, 
 for testamentary actions and for admiralty actions. 
 Again, ^ save for a considera])le district comprising
 
 III.] THE COUNTY COURTS. 27 
 
 London, the jurisdiction in bankruptcy matters belongs 
 to the County Courts, and here there is no money limit. 
 But the banki'uptcy scheme stands apart from the regular 
 County Covirt scheme; the jurisdiction has been given to 
 a smaller number of courts, which, therefore, have for 
 tliis purjx)se wider territories, and much important 
 judicial work is intrusted to the registrar of the court.^ 
 Lastly, litigants can agree to give the court jurisdiction 
 in some cases, which but for such agreement would have 
 lain outside its sphere. 
 
 The truth is that the power of these courts has been 
 slowly growing, and has not grown with equal rapidity 
 in all directions ; but, at present, we shall be right in 
 thinking of them as courts whose main, though by no 
 means only, duty is to adjudicate upon claims for debt 
 or damage to the amount of £50. It must be under- 
 stood, however, that in general they have no exclusive 
 jurisdiction. In most cases the County Court is but an 
 alternative for the High Court. The plaintiff can go to 
 the latter if he pleases, and it can give him relief. Still, it 
 may be very imprudent to go to the High Court. One who 
 takes thither a case that he might have taken to a County 
 (*ourt may find that one of three things will happen : a 
 judge of the High C'ourt will order the removal of the 
 action into the County Court, or though the plaintiii is 
 successful in his suit he will not recover from the de- 
 fendant the costs of the action, or he will only be allowed 
 such costs as he would have incurred had he chosen the 
 cheaper procedure. There are several rules on the 
 subject which turn on the nature of the action and the 
 amount at stake, but they leave much to the discretion 
 of the judge. No more need be said than that it is 
 ^ See below, p. 76.
 
 28 JUSTICE AND POLICE. [ch. 
 
 seldom wise to take to the High Court a claim which 
 could be decided in the county, unless one is prepared 
 to show that difficult matter bf law, or some other good 
 cause makes the choice reasonable. 
 
 It is worth noticing as a sign of the times that under 
 quite recent statutes there are a few actions and other 
 proceedings which can be begun only in a County Court. 
 This is the case with actions brought by workmen against 
 their masters under the Employers' Liability Act, 1880. 
 So, when a still later Act ^ gave to farmers a new right to 
 compensation for improvements, it gave an appeal to the 
 county court judge from the arbitrators who decide in 
 the first instance, and this no matter how large the sum 
 in dispute. Many proposals have been made for enlarg- 
 ing, and even for removing altogethei', the money bar- 
 riers which now confine these courts. Such proposals 
 cannot here be discussed, but it will have been observed 
 that during the last fifty years the judicial organisation 
 of England has undergone a great change. It would be 
 a mistake to think that £50 is a small sum. Of course, 
 there is no absolute standard for the importance of a 
 sum of money ; £5 is as important to one man as £500 
 to another ; but there is a sense in which £50 can truly 
 be said to be a large sum : most of the contentious liti- 
 gation in England is about smaller simis than this. 
 When it is added that every year more than a million 
 actions are begun in the County Coui-ts, and moi^e than a 
 million and a half of money is obtained under their 
 judgments, it will be seen that they are already doing 
 work on a large scale. 
 
 The procedure in them is fairly simple, and it is 
 believed that an intelligent suitor has seldom much diffi- 
 ^ Afjricultural Holdings Act, 1883.
 
 III.] THE COUNTY COURTS. 29 
 
 culty in conducting his case without professional help. 
 And such he is not likely to have if his claim be quite 
 small Both solicitors and barristers practise in these 
 courts, but the litigants very often appear in person. 
 yn The normal trial in a County Court is tiial before 
 a judge who decides both fact and law without a 
 jury. In any case with leave of the judge, and if 
 the claim exceed £5 then without such leave, either 
 party can insist on a trial by jury. There will be 
 but five jurors ; they must be unanimous in their 
 verdict. As a matter of fact, however, juries are 
 very seldom employed.' From the judge's deter- 
 mination on any point of law, but not from his 
 decision on matters of fact, there is an appeal to the 
 High Court if the sum which can be recovered in the 
 action exceeds =£20, or if the judge gives leave. With 
 the leave of the High Court, but not without, there is a 
 further appeal to the Court of Appeal, and so to the 
 House of Lords. 
 
 Outside this, general system stand a few other local 
 courts which differ widely in history, in competence, in 
 usefulness. The county of Lancaster preserves the pala- 
 tine privilege of having its own Chancery, a court 
 which is valued by the thickly-peopled shire. The court 
 of the Yice- Warden of the Stannaries is chiefly con- 
 cerned with the mining companies of Cornwall and 
 Devon. The City of London has a Loi-d Mayor's 
 Court, Manchester a Court for the hundred of Salford, 
 Liverpool its Court of Passage, Bristol its Tolzey 
 Court. These, and two or three others, do some 
 
 - In 1883, the actions determined with a jury were 949, with- 
 out 610,009.
 
 30 JUSTICE AND POLICE. [ch. iir. 
 
 considei-able business. It is reckoned that there are 
 some twenty -eight of these anomalous Jocal courts, but 
 many have done nothing for some years past ; they have 
 been worsted in a struggle for existence with the new 
 County Coui-ts.
 
 CHAPTER IV. 
 
 LAW AND EQUITY. 
 
 New as are the county courts, tlie central courts of 
 which we are now to speak are in some sort newer 
 yet, for they came into being only in 1875, The 
 change that was then accomplished was great, and 
 perhaps, will seem greater as time goes on. But 
 it was a very technical change, and those quite 
 unacquainted with its nature may be inclined to think 
 it nominal. Before, it may be said, there were Courts of 
 Chancery, Queen's Bench, Common Pleas, Exchequer, 
 Probate, Divorce, Admiralty, and also appeal courts or 
 courts of error, the Court of Appeal in Chancery, the 
 Exchequer Chamber ; afterwards there was a High Court 
 of Justice and a Court of Appeal, but the former had its 
 Chancery, its Queen's Bench, its Common Pleas, its 
 Exchequer, its Probate, Divorce, and Admiralty Divi- 
 sions, and though two of these five divisions, the Common 
 Pleas and Exchequer, have since been abolished, the other 
 three remain. Before, there was common law and there 
 was equity ; it is said that the two are " fused " and 
 admirjstered concurrently ; but it is familiar to all 
 that lawyers are still talking of law and equity, of legal 
 riglits and equitable rights, and so forth. Is not then
 
 32 JUSTICE AND POLICE. [cH. 
 
 the alteration but verbal, or at most a matter of minute 
 detail ? It may be possible in this chapter to say some- 
 thing which shall help towards an understanding of the 
 change. 
 
 That concentration of civil jvistice to which we have 
 already referred did England one good service. It se- 
 cured a common law ; law, that is, common to the whole 
 land. This seems the original meaning of the phrase 
 common laxo ; it is law for England, not for this county, 
 or that borough, though afterwards new contrasts give 
 it a narrower meaning, and it is opposed both to statute 
 law and to equity, law administered only by that new 
 court, the Chancery How much law there really was 
 common to the whole land during the first hundred 
 years or so after the Conquest, is a question which will 
 never be answered very fully ; but of this we may be 
 sure, that even if there were not already full grown 
 many local peculiarities which the King's Court ignored 
 and therefore extirpated, still nothing but a strong 
 central control would have prevented their growth in 
 rank abundance. Instead of the myriad local customs 
 of France and Germany, we at a very early time came 
 by a common law. And this was not brought about by 
 the importation from abroad of ready-made law. It is 
 true that in the thirteenth century the King's Court 
 already had professional jvidges, ecclesiastics for the 
 most part, and the best learning of the time, no matter 
 its origin, did not remain a thing for doctors and 
 scholars. But it was worked into a web of genuinely 
 English law. The administration of that law was not 
 left to a few judges ; the good and lawful men of the 
 shire had an active share in the work. Trial by a sworn 
 inquest of neighbours, the mode of trial which came to
 
 IV.] LAW AXD EQUITY. 33 
 
 be trial by jury, had results of greater valvie than that 
 of insuring, if it did insvire, truer answers to questions 
 of fact than could have been had by other means. While 
 yet judges in declaring law were, according to our modern 
 use of words, freely making law, this mode of ti-ial kept 
 common law and common opinion in harmony ; law was 
 the national schoolmaster, but the judges in their law- 
 making were restrained from theories too fine for every- 
 day wear. And so a common law struck deep root and 
 became very stubborn and tough. 
 
 Also it became stunted and hide-bound. The process 
 of making law by judicial decisions sets limits to itself. 
 Precedents were remembered and respected ; cases were 
 reported ; our series of reports goes back to the days of 
 Edward I. The process of making law became much 
 slower ; it was held that no new form of civil action 
 could be invented without the sanction of Parliament. 
 The sacred canon was closed, the age of gloss and 
 coinriicnt, and it must be added, of evasion and non- 
 natural interpretation had begun. Parliament had come 
 into being as the one proper organ of legislation, and 
 had hanselled its powers by passing a set of statutes, 
 bold and thorough, for the like of which we must turn 
 from the days of Edward I. to those of William IV. 
 But such legislative activity was not to continue ; it 
 was a reaction against accumulated grievances ; those 
 grievances remedied. Parliament left the common law 
 much to itself. 
 
 Its growth had now been checked. It went on 
 growing, indeed, and has never ceased to gi-ow. Many 
 rules that now pass as "common law" can be traced 
 no fvirther than some judicial decision in the present 
 century. But development could only take place within
 
 34 JUSTICE AND POLICE. [ch. 
 
 the limits set by a theoretically complete system of the 
 possible forms of litigation, theoretically complete, but 
 really inadequate to meet the new wants of new times. 
 The limits were strained by interpretation, and much 
 new matter was brought within them by a copious use 
 of fictions, and yet the law was not adequate. But no 
 one would admit its inadequacy. Besides indolence and 
 shiftlessness, besides the influence exercised by a body 
 of lawyers all trained in one school, we must reckon as 
 a cause of this conservatism a sincere but political 
 attachment to the common law as a sure defence 
 against the royal power. This shows itself early in an 
 increasing dread of anything that is supposed to savour 
 of Roman law. Little enough was known of that law, 
 less as time went on ; but of this Englishmen were 
 assured, that it presupposed a ruler above the law while 
 the King of England, though below no man, was below 
 the law. This reverence for the common law gained 
 strength when, the baronage being crippled by civil 
 strife, the King and commons stood face to face ; and it 
 finally justified itself when the royal power dashed 
 against the law and fell back broken. This made 
 a durable impression. In Blackstone's book, for ex- 
 ample, we may see an inveterate dread of legislation. 
 He seems to think it above the skill of earthly law- 
 givers seriously to improve away the faults of the 
 common law without depriving " the subject " of a 
 bulwark, or at least a palladium. 
 
 In this strong feeling which waxed from age to 
 age may be found the cause of " eqiiity," of the Chancery 
 and its strange career. By the end of the thii-teenth 
 century the King's Court, or Council, had given birth to 
 three ordinary tribunals — those three courts of common
 
 IV.] LAW AND EQUITY. 35 
 
 law which were living in 1875. To begin with, each 
 had its proper business ; the King's Bench, the pleas of 
 the crown, including all breaches of the king's peace ; 
 the Common Pleas, the ordinary civil actions ; the 
 Exchequer, matters touching the royal revenue. This 
 is but a rough statement ; really the spheres of the 
 King's Bench and Common Pleas overlapped, and this 
 facilitated a practice of stealing work from the Common 
 Pleas which was begun by the King's Bench and adopted 
 by the Exchequer, for more business meant more money. 
 In the end it came about that while each court had some 
 work all its own, each could entertain any of the common 
 civil actions. The story is curious but not of any moment, 
 for the law administered by these three covirts was the 
 same common law. But by their side there gradually 
 grew Tip another court to administer otlier law. It came 
 to supply a want, but an unacknowledged want. 
 
 In giving birth to the three law courts, the King's 
 Court (or Council, as we must now call it) had not 
 perished. The work of ordinary judicature had gone 
 from it, but it was the supreme administrative body, 
 and the distinction between administrative, legislative, 
 and judicial functions was not then as plain as it is 
 now, nor indeed were the powers of the Council very 
 sliarply distinguished from the powers of that body 
 which was becoming a House of Lords. The function 
 of hearing appeals from the ordinary courts, or rather 
 of correcting their errors, became centred in the House 
 of Loi'ds, but still there was justice to be done by the 
 King and his Privy Council, justice in cases which the 
 common law would not meet. So the Council exercised 
 a. penal jurisdiction : specially it punished the mis- 
 demeanours of the powerful who by bribery and 
 
 D 2
 
 36 JUSTICE AND POLICE. [CH. 
 
 intimidation would escape punishment if left to the 
 dealings of less exalted courts. As Parliament gained 
 strength it protested strenuously against this use of 
 power, and at last what had become the criminal juris- 
 diction of the Star Chamber was abolished. 
 
 But again, petitions for extraordinary relief in civil 
 cases were addressed to the King and referred by him to 
 his Chancellor. He was the King's principal secretary, 
 a member of the Council and the specially learned 
 member, and to him it was natvu'al to send the sup- 
 pliants for extraordinary relief. In course of time 
 complaints were addressed not to the King but directly 
 to his Chancellor. In the fifteenth century petitions of 
 this kind, bills in chancery, were appeals for exceptional 
 favour. Their tone is the humblest ; they ask relief for 
 the love of God and that peerless Princess His Mother, 
 or for His sake who died on the rood-tree a Good Friday, 
 and if the Chancellor will give ear his poor petitioner will 
 ever pray for the increase of his good Lordship. The 
 suppliant is poor, old, sick, his adversary is rich and 
 powerful, will bribe and intimidate, or has by accident or 
 trick obtained some advantage of which he cannot be 
 deprived by the ordinary courts. To restrain an un- 
 conscionable or inequitable use of legal rights is not 
 (such seems the theory) to override the law, it really is 
 to do what the law means to do, but is prevented from 
 doing by causes not to be foreseen. 
 
 The Chancery might have remained an office for 
 the dispensation of discretionary royal grace closely 
 analogous to the grace that the Queen still dispenses 
 when she pardons a criminal ; but a strange combina- 
 tion of causes provided it with an ampler field of woi'k 
 and made it an ordinary court of law, though of a law
 
 IV.] LAW AND EQUITY. 37 
 
 that was still called equity. Landowners struggling to 
 free themselves from ancient law, coveting, for instance, 
 that power of leaving lands by will which law denied them, 
 found that the Chancery would aid them in this matter 
 by enforcing a kind of obligation of which the older 
 courts would take no heed. The story is long and has 
 been told better than elsewhere in a book of the present 
 series;^ so here it must be enough that the Chancellor 
 would enforce the obligations known as uses, trusts, or 
 coutidences, and that already in the fifteenth century 
 these obligations became very common. Equity and 
 good conscience had thus acquii-ed a special subject- 
 matter which was enlarged as time went on. Business 
 flowed into the new court, and what at first may have 
 been a more or less arbitrary administration of favours, 
 became a true jurisdiction wielded in regular judicial 
 fashion. It is true that, until lately, chancery judges 
 occasionally used large phrases about good conscience 
 and natural equity, which might have seemed to imply 
 that they were prepared to enforce, according to their 
 own lights, the whole duty of man ; but gradually it had 
 -^)ecome settled that the Chancery, like any other English 
 court, could only administer existing rules to be found, fail- 
 ing statute, in judicial decisions. This change was visible 
 to Blackstone as a completed change. He found it neces- 
 sary to explain away the theory of equity " propagated by 
 our principal antiquaries and lawyers." "The system of 
 our coiu'ts of equity is a laboured, connected system, 
 governed by established rules and bound down by prece- 
 dents, from which they do not depart, although the reason 
 of some of them may perhaps be liable to objection." ^ 
 
 ^ Citizen Scries, F. Pollock, Th/i Land Laics, Chap. IV. 
 ^ Commentaries, Vol. III. p. 432. 
 
 8 ^ 1) i ^
 
 38 JUSTICE AND POLICE. [ch. 
 
 In short, the respect for judicial decisions manifested 
 itself in a new field ; equity became in fact, though not 
 in name, law, supplementaiy law, and the process of 
 making law by means of judicial decisions is, as already 
 said, a self-limiting process. Indeed, during the last 
 century that part of English law called equity became 
 on many topics singularly detailed and minute. 
 
 It is difficult, then, to describe what equity has been 
 for the last hundred years without either attempting to 
 summarise its particular doctrines, or barely saying that 
 it was such part of Enghsh law as was administered 
 only by courts of equity. Taking the latter course, we 
 must say " by coui-ts of equity," and not " by the Court 
 of Chancery," for the Exchequer developed an " eqviity 
 side " which was suppressed in 1841 ; the chanceries 
 of the palatinates became courts of equity, and the 
 House of Lords, which already was the court of last 
 resort for the common law, succeeded, after a sharp 
 struggle with the Commons, in establishing its power 
 to hear appeals from the Chancery. But we may 
 perhaps mark the character of equity by calling it 
 supplemental law. From the first the theory had been 
 that eqiiity had come not to destroy but to fulfil, and 
 the success of the Chancery, which was jealously watched 
 by Pai'liament, had depended on at least an outward 
 observance of this theory. Fulfilment might sometimes 
 look rather like destruction, and just twice or thrice 
 there were serious collisions between the courts, but, 
 except now and then for a critical moment, there was 
 no contradiction between equity and common law. The 
 functions of equity were, and we must say, are, first to 
 give for certain infringements of rights known to the 
 common law better remedies than that law gave ;
 
 IV.] LAW AND EQUITY. 39 
 
 secondly, to enforce certain duties not enforced by 
 common law. From the Chancery, for example, might 
 be had an injunction commanding my neighbour to pull 
 down a wall wrongfully built by him so as to darken 
 my windows, while the common law salve for this 
 wrong would be damages assessed by a jury — the 
 common law panacea. The great example of merely 
 equitable rights is the right one has for whom another 
 holds property in trust, and the fondness of Englishmen 
 for elaborate settlements and wills has made such rights 
 very common. 
 
 In all matters of procedure there was a great differ- 
 ence. In this century, but before the change of 1875, 
 several statutes were passed which tended to narrow 
 the gulf, but originally it was wide. In the Common 
 Law Court questions of fact were tried by a jury ; 
 questions of law were decided by a court of four judges. 
 The Chancery could not summon a jury ; occasionally it 
 would direct that questions of fact should be tried in 
 a Common Law Court, but commonly the Chancellor, 
 sitting alone, decided fact and law. Before the one 
 tribunal witnesses were examined and cross-examined 
 orally ; the other decided on the evidence afforded by 
 written affidavits. Only lately has it been possible in 
 a common law action for either party to give evidence ; 
 often the main object of a suit in equity was to extract 
 information from the defendant. These and other 
 differences were grave, the minor differences were in- 
 numerable. The suit in equity in all formal respects, 
 its pleadings and pi-ocesses, was so unlike the action at 
 law that few lawyers were masters of both. 
 
 To suggest any reason for the prolonged existence of this 
 dual system would not be easy. It was very fruitful of
 
 40 JUSTICE AND POLICE. [ch. 
 
 litigation, of suits in equity brouglit to prepare the way for 
 actions at law, or brouglit in order to stop actions already 
 begun, to say nothing of actions and suits in which an 
 ill-advised plaintiff would discover that he had gone to 
 the wrong court. But some explanation may be found 
 in the persistent survival of the notion that the 
 equitable jurisdiction was still in some sense extra- 
 ordinar}^. During the trou.bled seventeenth century 
 political theories are involved. Bacon can tell James 
 that the Chancery is *' the court of your absolute 
 power," ^ and James can use it to humble the stiff- 
 necked lawyers. It is not soon forgotten that Chancery 
 and Star Chamber are twin sisters, and during the 
 Commonwealth there was good hope that the one would 
 be sent to follow the other. Even when the reaction 
 had come, and all projects of law reform had fallen into 
 bad repute, no one but a Chancery lawyer had a hearty 
 word for the Chancery. Blackstone, though he is civil 
 to this as to all existing arrangements, keeps all his 
 hymns and laudatory reflections for courts whose pro- 
 cedure is more in harmony with the genius of our 
 nation. Englishmen seem to have been unwilling to 
 face the truth that there was among them a court 
 engrossing a vast business, deciding the nicest questions, 
 and all this without a jury. 
 
 The difficulty of amalgamating the courts did not 
 grow much less by lapse of time, but at last it was 
 surmounted by the Judicature Acts of 1873 and 1875. 
 The High Court is a court both of common law and 
 equity, and administers the two concurrently, accord- 
 ing to the procedure defined by a single body of 
 rules. It may occur to the reader that this being so, 
 ^ Spedding, Letters and Life of Bacon, Vol. Y., p. 252.
 
 IV.] LAW AND EQUITY. 41 
 
 there can no longer be any meaning in the contrast 
 between common-law and equity. But there still is a 
 meaning, and probably these phrases will be current for 
 some time to come. The " fusion " was but a change 
 in procedure. The j^rinciple of that change was that 
 the net residt which could formerly have been obtained 
 by proceedings in two courts should thenceforth be 
 obtained by a proceeding in one. Rights and remedies 
 were in general to remain as before ; the means of 
 obtaining remedies were to be simpler. But when a 
 lawyer hears that a right is merely equitable, he already 
 knows much about the rules applicable to such a right, or 
 at least knows where to look for them. In dealing with 
 such a right, the High Court will act upon rules deve- 
 - loped in the Chancery — rules of equity. These names, 
 then — common-law and equity — are compendious phrases 
 which are likely to live yet a while ; but already modern 
 statutes have been taking from them their point, and 
 in course of time the contrast may be forgotten. For 
 example, no chapter of the law had been more 
 elaborately glossed by equity than that relating to the 
 property and civil capacity of a married woman. Our 
 law on this topic had become fixed at an early time. 
 The married woman was incapable of contracting ; 
 marriage gave to her husband large lights in her land 
 and made him the owner of her goods. Equity, on the 
 other hand, permitted the creation of trusts which would 
 secure for her what practically was property of which 
 she could freely dispose, and a power of making some- 
 thing very like a contract. A new statute has 
 completely altered the law, and is gradually making 
 matters of ancient history some of the boldest doctrines 
 of equity.
 
 42 JUSTICE AND POLICE. [ch. iv. 
 
 In 1875, then, the three common-hiw courts and the 
 Chancery were amalgamated. Some other courts of 
 less general importance were thrown into the crucible. 
 There was the Court of Admiralty, which had a long 
 and adventurous history of its own ; there were the 
 Court of Probate and the Court of Divorce, both created 
 in 1857, to receive, with some additional powers, that 
 jurisdiction over testamentary and matrimonial causes 
 which had until then belonged to the ecclesiastical 
 courts. On the 1st of November, 1875, a date to be re- 
 membered, the new Supreme Court of Judicature came 
 into being. On the 4th of December, 1882, a date 
 hardly less memorable, it took possession of the new 
 home that Mr. Street had built for it. Geogi'aphy still 
 allows us to say that its home is Westminster, though 
 the old Hall, the first abode of English Justice, is void.
 
 CHAPTER V. 
 
 THE HIGH COURT AND THE COURT OF APPEAL. 
 
 We turn now to that Supreme Court of Judicatiu-e 
 ■whicli was created in 1875. It consists, says the 
 statute that made it, of two permanent divisions — the 
 High Court of Justice and the Court of Appeal. Really, 
 each of these divisions is a distinct tribunal. There is 
 convenience in having a name which may stand for the 
 two taken together ; in being able to say, for instance, 
 that a committee of the judges of the Supreme Court 
 can make rules for the Supreme Court ; but still no 
 judicial work is done by the Supreme Court that is not 
 done either by the High Court or by the Court of 
 Appeal.^ 
 
 Of the High Coui-t there are twenty-three jvidges, of 
 the Coiu't of Appeal nine ; of the two taken together 
 twenty-nine. This falls out thus : of the High Court 
 there are tkree divisions ; the Chancery Division has 
 five judges besides its president the Chancellor : the 
 Queen's Bench Division has fifteen judges, of whom one, 
 
 ^ As " the Supreme Court " and " the High Court" must often 
 be mentioned hereafter, the difference between them should be 
 noted. These names are not very happy, but Parliament has forced 
 them upon us.
 
 44 JUSTICE AND POLICE. [ch. 
 
 the Lord Chief Justice, is its president : the Probate, 
 Divorce, and Admiralty Division has but two judges, 
 one of whom presides over the other : the Court of 
 Appeal has six ordinary judges, one of whom is the 
 Master of the Rolls, while the other five bear the title 
 Lords Justices ; but the Presidents of the three Divisions 
 of the High Court are also members of the Court of 
 Appeal. 
 
 Of the Chancellor's position hereafter ;i the other 
 judges are appointed by the Queen ; ^ they are paid by 
 salaries charged on the consolidated fund ; they hold 
 office during good behaviour, but the Queen can remove 
 them on an address presented by 'both Houses of 
 Parliament. A barrister of ten years' standing may 
 be appointed a judge of the High Court ; to be an 
 ordinary judge of the Court of Appeal one must have 
 been a barrister for fifteen years, or a judge of the 
 High Court for one year. The judges cannot sit in the 
 House of Commons, but it often falls out that at least 
 one judge is a peer, and can sit and vote in the House 
 of Lords. Of late a fashion of appointing to judgeships 
 none but friends of the Ministry has been disregarded ; 
 but at no time on this side of the Revolution has there 
 been much cause for complaining that judges have been 
 political partisans. The presidents of the three divisions 
 have a certain power of arranging the work of their 
 divisions ; the Chief Justice and the Master of the Rolls 
 have also a cei-tain honourable pre-eminence and some 
 special powers aud duties (the latter, for example, is 
 head of the Public Record Office), but in general the 
 judges are equals. 
 
 Now the High Court is a court for the whole of 
 1 See below, p. 64. - See below, p. 65.
 
 v.] THE HIGH COURT AND COURT OF APPEAL. 45 
 
 England, and, subject to what has been said about cases 
 which must be taken in the first instance to some inferior 
 tribunal,^ it is an " omni-competent " court of civil juris- 
 diction, that is to say, it can entertain actions of every 
 kind and give to every one whatever remedy our law 
 (including our equity) has for his case. Then, again, it 
 is the court to which appeals can be brought from the 
 county and other inferior courts. Then again, as we 
 shall see hereafter, it is the great court for criminal 
 justice. But also it does a gi'eat deal of woi-k, the 
 nature of which will perhaps hardly be suggested by the 
 words civil and criminal jurisdiction. It exercises what 
 we may call a corrective control over the proceedings of 
 all lower courts and magistrates, ordering them to hear 
 and determine this case which lies within, prohibiting 
 them from meddling with that matter which lies beyond, 
 their jurisdiction. But further, the King's Bench had 
 and the High Com-t has, a large power of compelHng 
 public officers of all kinds, public corporations of all 
 kinds, to perform this or that public duty. The direct 
 control thus exercised over public officers not by an 
 official bureau, but by a coiu-t of law, has been a very 
 remarkable featm-e of English justice. Hitherto we 
 have done almost entirely without any special tribunals 
 to entertain such complaints as a man may have to make 
 against those who are entrusted with public duties or 
 coercive powers. Such complaints came before the old 
 courts, they come before the High Court, as litigious 
 proceedings to be heard and determined in the ordinary 
 way according to the law of the land. Some special 
 tribunals there are for the decision in a more or less 
 judicial, a more or less administrative, fashion of 
 ^ See above, p. 28.
 
 46 JUSTICE AND POLICE. [ch. 
 
 questions touching certain public duties ; the Railway- 
 Commission is the most serious instance, the Charity 
 Commission is another ; but hitherto such tribunals 
 have not played a large part in English history, and the 
 writ of prohibition whereby the King's Bench used to 
 keep the ecclesiastical courts from transcending their 
 proper bounds has of late been often used to teach the 
 Eailway Commission that it is but an inferior court. 
 Occasionally, too, the final decision of a question of law 
 is committed by statute to one of the great departments 
 of the central government for instance, to the Local 
 Government Board — but this also is as yet rare.^ 
 
 To each division of the High Court certain business 
 is specially assigned. Often a plaintiff has a choice ; 
 sometimes there is but one division to which he ought to 
 go. Now this distribution of business though it may be 
 the result of, is none the less a very different thing from 
 the old distinction between courts of law and courts of 
 equity. Any: division can now deal thoroughly with 
 every action ; it can recognise all rights whether they be 
 "legal" or "equitable;" it can give whatever relief 
 English law (including "equity") has in store for the 
 litigants. Also it is a mere matter of convenience 
 which rules made by the judges might at any moment 
 alter and the divisions themselves might be abolished 
 without any Act of Parliament by an Order in Council 
 
 ^ I refer more particularly to the power the Board has under 
 Acts relating to the relief of the poor of deciding that expenditure 
 was or was not lawful, and the power the same Board has under 
 the Public Health Act of hearing what is called "an appeal." As 
 to the so-called " equitable jurisdiction" of this Board see T. W. 
 Fowle, The Poor Law, p. 108, as to the Eailway Commission, Sir 
 T. H. Farrer, The State in its relation to Trade, p. 117.
 
 v.] THE ITIGIT COURT AND COURT OF APPEAL. 47 
 
 made on the recommendation of the judges. ^ If now 
 a plaintiff makes the mistake of going to the Avrong 
 division, it is a mistake which will occasion but little 
 trouble ; there is a mode whereby an action at any stage 
 of its existence may be transferred from one division to 
 another, and the division to which it comes by mistake 
 can i-etain it and do justice in it. The separation of 
 testamentary and matrimonial causes fi-om all other 
 litigation is not unnatural, for an action to obtain 
 a divorce or probate of a will is unlike other actions. 
 In a less degree the same is true of maritime causes, so 
 the Probate Division has a well-defined province of its 
 own. It is more difiicult without an enumeration of 
 particulars to describe the special work allotted to the 
 Chancery and the Queen's Bench Divisions, for in part 
 the allotment is only explicable by the fact that cases 
 of a certain sort used to go to the Chancery, others to 
 courts of law. But also in part the allotment is deter- 
 mined by the existence in the Chancery Division of a 
 machinery for taking accounts. A great deal of the 
 business in this division is not contentious litigation. 
 That love of making elaborate dispositions of property, 
 which "equity" fostered, turned the Chancery into a 
 large property office taking charge — not gratuitously — 
 of a vast amount of wealth, and administering (after 
 payment of costs) the various complicated trusts to 
 which that wealth was subject. This work is still done 
 by the Chancery Division, and upwards of seventy 
 million pounds is so invested as to be subject to its 
 orders. To it, for example, are assigned actions for the 
 taking of partnership and other accounts, for the sale 
 
 ^ The Common Pleas and Exchequer Divisions were abolished by 
 Order in Conncil of 16 December, 18S0.
 
 48 JUSTICE AND POLICE. [ch. 
 
 and distribution of the proceeds of property subject to 
 any charge, for the partition of estates, for the execution 
 of trusts. On the other hand, the Queen's Bench 
 Division has the criminal jurisdiction, the control over 
 the magistracy, revenue cases, cases touching parlia- 
 mentary elections and electoral rights, the bankruptcy 
 business of the High Court, and to it there generally 
 go most of the simple civil actions in which the plaintiff 
 claims a debt dvie to him or damages for a trespass, a 
 libel or the like. The chief practical import of this 
 arrangement is that in cases of a kind specially assigned 
 to the Chancery Division there will be no trial by jury 
 without the leave of the judge. The broad rules about 
 pleading and procedure are much the same in the two 
 divisions ; an attempt has been made to preserve the 
 best, to abolish the worst, parts of the two old systems ; 
 for instance, unless the parties agree the evidence must 
 now be given orally and in open court, though a judge 
 can direct that in a particular case evidence shall be 
 given in writing or before a commissioner. To some 
 extent, it must be allowed, the fusion of law and equity 
 is more perfect on paper than in practice ; old habits which 
 centuries have formed are not destroyed in ten years. 
 
 It has long been the English ideal that judicial work 
 should be done by a small number of highly-paid judges 
 acting in constant concert with each other, and despite 
 the rapid growth of population and wealth the number 
 of judges in the superior courts has increased but very 
 slowly.^ Possibly the smallness of the number may 
 
 ^ Each common-law court had long had four judges ; one judge 
 was added to each court in 1830, another iu 1868. T}'.e number of 
 Chancery judges was raised from two to seven by the creation in 
 1813 of a Vice-Chancellor, in 1841 of two more Vice-Chanucllors, 
 and in 1851 of two Lords Justices of Appeal.
 
 v.] THE HIGH COURT AND COURT OF APPEAL. 49 
 
 be mislejidin<^. It will easily be understood that the 
 doing of justice involv^es a great deal of work that is 
 not judicial, and that this ministerial work must be 
 done by a staff of clerks and other officers. But this is 
 not all ; a great many questions between litigants are 
 decided in the first instance by one who is not a judge. 
 The old notion of an action at law was that the parties 
 should at their own risk choose their ground and then 
 stake all upon the issue of one pitched battle. Modern 
 litigation, on the other hand, involves the decision of 
 question after question as it arises. Attempts to do 
 complete justice, to set at rest, if possible, in one action 
 all disputes that there are between plaintiff and de- 
 fendant, to allow as little influence as may be to mere 
 mistakes or accidents of procedure, make necessary a 
 power of determining many preliminary (or, as they are 
 called, " interlocutory") questions, such as whether and 
 on what terms one of the parties may obtain this or that 
 procedural advantage, may insist upon the production of 
 this document or an answer to tliat question. Such power 
 is exercised in some cases by a judge sitting privately in 
 chambei's. The less momentous matters are brought, in 
 the first instance, before a Master of the Supreme Court ^ 
 or before a District Registrar. A great deal of important 
 and really judicial business in the taking of accounts and 
 the like, is done by a staff of Chief Clerks in the chambers 
 of the Chancery Division. Still, this is only the first 
 instance, and, in general, every litigant can have every 
 question (unless it is merely about costs) argued 
 
 ^ For the future there are to be twenty Masters ; five years' 
 practice as hamster or sohcitor qualifies a man for the post ; the 
 appointments are made by the Chancellor, Chief Justice, Master of 
 the Rolls ; the tenure is "good behaviour."
 
 50 JUSTICE AND POLICE. [CH. 
 
 solemnly and publicly thi^ee times — to wit, before High 
 Court, Court of Appeal, House of Lords. For instance, 
 the House of Lords may have to decide whether before 
 the trial of an action, and as a mere preliminary step, 
 the plaintiff can oblige the defendant to answer certain 
 interrogatories. 
 
 The district registries of the High Court are new.^ 
 Some seventy or eighty of the county court districts, 
 those containing the large towns, have such registries, 
 but the system does not cover the whole country. If a 
 defendant dwells or carries on business in one of these 
 favoured districts, the proceedings in the action pre- 
 liminary to the trial can be conducted in the registry, 
 and the registrar, who is usually the county court 
 registrar also,^ has the powers that are exercised in 
 London by the masters. By means of these registries 
 and the periodical circuits of the judges, many actions 
 are now brought and determined without any resort to 
 London. 
 
 It is a mistake to suppose that the only, or even the 
 chief, object of civil courts is to decide disputes. Their 
 ultimate object is to prevent wrongful acts and defaults, 
 their immediate object to provide remedies. Now, in 
 the vast majority of cases in which a man to his neigh- 
 bour's harm does what he ought not to do, or leaves 
 \indone what he ought to do, there is no dispute or 
 possibility of dispute. Especially is this true of debts. 
 What then is wanted is that the pressvire of the law 
 shall be brought to bear upon the debtor as quickly as 
 
 ^ There are also district registries of the Probate Division, whereat 
 wills can he proved when there is no dispute. But these have a 
 different history and therefore a different geogra[)liy. 
 
 - See above, p. 25.
 
 v.] THE HIGH COrr.T AXD COURT OF APPEAL. 51 
 
 possible. This we may too readily forget. The actions 
 which make a stir, which interest hiwyers and laymen, 
 are the actions which are fought ; but it is in the actions 
 "which are not fought, still more in the actions that are 
 not brought, that a good system of procedure shows its 
 goodness. To a perception of this truth are due many 
 modern changes. In about a quarter of the actions that 
 are begun, the plaintilf without any trial or judicial 
 proceeding at once obtains a final judgment against the 
 defendant, because the defendant has no defence and 
 does not appear. In many other cases the plaintiff 
 urging a simple claim for payment of a debt, obtains 
 a final judgment in a very rapid fashion. If the 
 plaintiit verifies his claim by oath, then the defendant 
 can be called on to satisfy a judge that there is really 
 some defence, and if he fails, there will be judgment 
 against him. By far the greater part of the civil 
 justice that is done at all is now done qiiickly and 
 noiselessly and without anything occurring that any 
 newspaper would notice in the dullest season. 
 
 But within our limits we can only hint at the vast 
 mass of cases which are totally or practically undefended. 
 The same must be said of the pleadings in an action, 
 the means by which one party gives the other notice of 
 his claim or defence. It becomes always more difticult 
 to describe these things briefly, because every reform, 
 and of late reforms have come rapidly, leaves pi^ocedure 
 less formal, and therefore less describable. It must be 
 enough that the defendant is called before the couit by 
 a royal writ of summons, on the back of which the 
 plaintiff has stated the substance of his demand, tliat 
 except in some simple cases the defendant can demand 
 fuller information, a statement of claim, that the 
 
 E 2
 
 52 JUSTICE AND POLICE. [cir. 
 
 defendant must deliver a stateTnent of defeMce, that 
 there is sometimes further pleading, that the case raised 
 by these pleadings is the case to be tried, but that a 
 judge even at the trial has a large power of allowing an 
 amendment of the pleadings, and of controlling the 
 whole procedure by apportioning costs. A very com- 
 plete control over costs is the regulator of the system. 
 Commonly, the unsuccessful has to pay to the successful 
 party the costs that the latter has incurred, or rather 
 such part of them as are allowed as proper, (for this 
 allowance or " taxation" of costs there are special officers, 
 taxing masters, whose determinations may be reviewed 
 by the court), but the cost of any particular proceeding 
 which is deemed needless or vexatious can be thrown on 
 the victor, and he may occasionally have to pay all costs 
 of the action. In the County Courts there is even less 
 pleading. Usually there is but a notice to the defendant 
 of what it is that the plaintiff wants, and only in certain 
 particular instances need the defendant inform the 
 plaintiff of the defence that will be urged at the trial. 
 
 A criminal case, as already said, has still a local 
 character ; it can only be tried by a jury of the shire in 
 which, according to the indictment, the crime has been 
 done ; the jurors must come from the venue, vicinage, 
 neighbourhood. Until lately, this was true also of 
 many civil actions, but now, except in very few cases, 
 the question where an action in the High Court shall be 
 tried is treated as a question of mere convenience. The 
 plaintiff can choose whether it shall be tried at the 
 Royal Courts in the Strand or at any one of the 
 assize towns, though his choice, if unreasonable, may 
 be overruled. If it is tried at the Royal Courts it 
 will be tried by a judge of the High Court without a
 
 v.] THE HIGH COURT AXD COURT OF AITEAL. 53 
 
 jury, or with a jury drawn from Middlesex or the city 
 of London. If it is tried at an assize town, it will be 
 tried by some commissioner of assize (who will probably 
 be one of the judges of the Supreme Court) without a 
 jury, or with a jury drawn from the shire in which that 
 town is situate. In either case the tribunal before which 
 it is thus tried is the High Court of Justice, and the 
 presiding judge or commissioner can there and then pro- 
 nounce the judgment of that court. The counties are 
 visited by commissioners of assize twice a year for the 
 purpose of trying ci\"il actions, but at some northern 
 towns, civil as well as criminal business is taken foui- 
 times a year. Of commissioners of assize we shall have 
 more to say below.^ The judges of the Chancery Divi- 
 sion do not preside over trials with jui-y, except when 
 they are sent out as commissioners of assize, so that if 
 (as well may happen) an action in that division is to be 
 tried with a London or Middlesex jury, the trial will be 
 before a judge of the Queen's Bench Division. 
 
 There are two main modes whereby a case is tried in 
 the High Court. It is tried with jury, or it is tried 
 without jury. In the causes which are specially assigned 
 to the Chancery Division there is no trial by jury unless 
 by leave of the judge. Such actions may often involve 
 serious questions of fact, and questions which touch the 
 good name of the parties. An action for the cancella- 
 tion of a deed, for example, will go to the Chancery 
 Division, and will frequently involve a charge of gi'oss 
 fraud. But the person charged with the fraud will have 
 no right to trial by jury. Such cases have, heretofore, 
 been tried without a jury in the Court of Chancery ; 
 they are tried without a jury still ; it seems impossible 
 ^ See p. 152.
 
 54 JUSTICE AND POLICE. [cH. 
 
 to give any other reason for the fact. But in an action 
 of any one of the most common and simple types, any 
 questions of fact that there may be will be submitted to 
 a jury if either party has required this. A simple notice 
 given by one party to the other will secure a jury if the 
 action be grounded on slander, libel, false imprisonment, 
 malicious prosecution, seduction, breach of promise of 
 marriage ; in other cases the party must obtain an order 
 for trial by jury, but to such an order he has a right. 
 The requirement of this formality, which is new, seems 
 likely to diminish the number of cases tried by jury. 
 Trial by a single judge, who decides both fact and law, 
 is rapidly becoming a very common mode of civil trial. 
 In the county courts a long expei^iment has proved that 
 in a vast majority of cases litigants do not care to have 
 a jury, at all events, a jury of five ; and to all seeming, 
 those who have cases in the High Court will not use 
 their right to a jury if thereby they are put to the 
 slightest trouble. It is believed that in mercantile dis- 
 putes of a certain class, the right to a special jury ^ is 
 still valued ; cases of libel, breach of promise of mar- 
 riage, and so forth, one of the two parties will almost cer- 
 tainly desire to bring before a jury ; but the fact should 
 be recognised, be it liked or not, that the trial by jury of 
 civil cases is itself on its trial, and the verdict is going 
 against it. 
 
 The trial by jury of a civil case is so like the trial of 
 a criminal case, that the two shall be treated together 
 hereafter. Whether there be a jury or no, it is only in 
 rare cases that a trial takes place before more than one 
 judge. When he tries the case without jury he is judge 
 of fact and law, and his judgment is the judgment of 
 '■ As to special juries, see below, p. 165.
 
 v.] THE HIGH COURT AND COURT OF APPEAL. 55 
 
 the High Com-t, from which there lies an appeal to the 
 Court of Appeal. That court sits only at the Royal 
 Courts ; ordinarily three of its' judges are sitting together 
 in one room, and three others in another ; some matters 
 can be heard by two judges, but generally there must be 
 three. By the appeal all questions of fact and law may 
 be reopened, and though usually the evidence given in 
 the High Court is the basis of the decision, still the 
 Appeal Coui't can and will for special cause admit new 
 evidence. In no case is a jury employed, either in the 
 House of Lords or in the Court of Appeal. 
 
 When there is trial by jury, the judge leaves to the 
 jury such questions of fact as arise, and, assuming that 
 the verdict is correct, gives the judgment of the High 
 Court. If, making the same assumption, the defeated 
 litigant thinks the judgment wrong, he can go to the 
 Court of Appeal, and thence to the House of Lords. 
 If, however, he is dissatisfied with the verdict, he ap- 
 plies for a new ti'ial, urging that the judge misdirected 
 the jury, that the verdict was against the weight of 
 evidence, or the like. This application he makes to 
 what is called a " divisional court " of the High Court, 
 which can order or refuse a new trial, and from this 
 decision he or his opponent may appeal to the Court of 
 Appeal, and so the question whether there is to be a 
 new trial may be bi-ought even before the House of 
 Lords. 
 
 Certain business of the High Court must be done by 
 a " divisional court," that is to say, by two or more of 
 its judges sitting together without a jury. It is in the 
 form of a tribunal thus constituted that the High Court, 
 besides hearing applications for new trials, hears appeals 
 from inferior com-ts, exercises its super^-isory control
 
 56 JUSTICE AND POLICE. [ch. v. 
 
 over the magistracy, and in general does sucli part of its 
 work as does not consist in trying civil actions.^ In 
 some of these cases there can be no appeal from its 
 decision, in some others none without its leave. But 
 what matters shall be brought before a divisional court 
 and what before a judge sitting alone is one of the many 
 things that can be determined by rules made by the 
 committee of judges to which Parliament has intrusted 
 the duty of supplementing the statute-book.^ 
 
 ^ Since tlie abolition of the Common Pleas and Exchequer 
 Divisions, the word divisional in the phrase " divisional court " 
 lias lost most of its point. Practically it means a court constituted 
 by two or more judges of the Queen's Bench Divisiou. 
 
 ^ See below, p. 66.
 
 CHAPTER VI. 
 
 THE HOUSE OF LORDS AND THE CHANCELLOR. 
 
 From almost every order or judgment of the Court of 
 Appeal an appeal may be made to the House of Lords, 
 which, it is needless to say, is one member of our 
 supreme legislative body. But besides this it is a court 
 of law. Such is the theory, and such, subject to some 
 explanation, is the fact. Every person who has a light 
 to sit, debate, and vote, when the House is about its 
 legislative business is also entitled to sit, debate, and 
 vote, when the question is whether the judgment of some 
 lower law court shall be affirmed or reversed. But 
 concerning the constitution of this House we will not 
 speak, for the main facts are well known, and practically 
 our court of last resort is a very different thing from 
 that assembly of lords, spiritual and temporal, which 
 takes part in legislation. 
 
 In the last century it became customary for the Lords 
 to leave their judicial business to be done by such only 
 of their number as were distinguished lawyers. Occa- 
 sionally the other lords, " lay lords," as contrasted with 
 *' lawloi'ds," interfered, but their interference became 
 uncommon. So late as 1844 certain lay lords were with 
 difficulty dissuaded from meddling with some grave
 
 58 JUSTICE AND POLICE. [cH. 
 
 questions of law which arose out of the famous trial of 
 Daniel O'Connell. But they were dissuaded, and we may 
 now regard it as a rule not likely to be broken, though 
 a rule not in any way enforced by law, that those lords 
 only who are learned in the law are the judges of this 
 court of appeal. 1 
 
 As a matter of fact the only lords who now act as 
 judges are the Lords of Appeal. These are, first, the 
 Lord Chancellor ; secondly, the paid Lords of Appeal in 
 Ordinary, of whom there are now three ; and thirdly, 
 such other members of the House as are, or have been, 
 judges of the superior courts of England, Ireland, or 
 Scotland. In the ordinary course of affairs there will 
 be at least one lord alive who has formerly been 
 Chancellor ; the Lord Chief Justice has very commonly 
 been a peer, and peerages are sometimes given to other 
 judges, or retired judges. Not long ago as many as 
 eight lords were collected to hear a case of some diffi- 
 culty, but this was an unusually large number. No case 
 can be heard unless three Lords of Appeal are present, 
 and the number present is generally but three or four. 
 The most regular attendants are the Chancellor and the 
 Lords of Appeal in Ordinary. These last have but a 
 very short history. In 1876, after many ^schemes for 
 " ending or mending " this court of appeal had come to 
 naught, its constitution was strengthened. Power was 
 given the Queen to appoint Lords of Appeal in Ordinary. 
 
 ^ On 9tli April, 1883, the case of Clarke v. Bradlaugh beint; 
 before the House, three "law lords" were for reversing the judg- 
 ment, one for affirming it ; Lord Denman, who must bo accounted 
 a layman, expressed his agreement with this one law lord {Times, 
 10th April, 1883) ; but.thisdncident does not appear in the Journals 
 of the House, and the judgment was reversed without any formal 
 division.
 
 VI.] THE HOUSE OF LORDS AND THE CHANCELLOR. 59 
 
 At first there were to bo two, and two were at once 
 appointed ; ultimately there were to be four ; at present 
 there are three. In order to explain this scheme we 
 must refer to the other great court of last resort, the 
 Judicial Committee. There were four paid members of 
 tliat court. In 1876 it was provided that when two of 
 them should have died or resigned, a third Lord in 
 Ordinary might be appointed, and that when the re- 
 maining two should have died or resigned the number of 
 these Lords might be raised to four. The first of these 
 events has happened, and when the second happens the 
 Queen will have power to appoint the fourth Lord. It is 
 the duty of these Lords, if they are Privy Councillors, to 
 sit on the Judicial Committee as well as in the House of 
 Lords, so that in course of time the two ultimate tribunals 
 of the British Empire will have as their paid judges 
 the same five persons, the Chancellor and four Lords in 
 Ordinary. 
 
 To be appointed a Lord in Ordinary, a man must have 
 held one of certain high judicial offices, or practised for 
 fifteen years as a barrister in England or Ireland, or as 
 an adv^ocate in Scotland. It should be remembered that 
 this is a court for Ireland and Scotland, as well as for 
 England. Of the three lords at present in being, one 
 liad made his fame as an English judge, another as an 
 Irish judge, another as Lord Advocate, the chief law 
 officer of Scotland. They hold their offices duiing 
 good behaviour, but can be removed by the Queen 
 on an address presented by both houses of Parliament. 
 While they hold office they are for all purposes members 
 of the House of Lords, and can debate and vote as well 
 when the house is acting as a legislative assembly as 
 when it is acting as a court of law. Their position is
 
 60 JUSTICE AND POLICE. [ch. 
 
 not unlike that of the bishops ; the dignity of a Lord of 
 Appeal in Ordinary does not descend to his heirs. 
 
 By this means the theoretical identity of the court of 
 last resort with the Upper House of Parliament was 
 preserved, and at the same moment some of its worst 
 consequences were destroyed. Until 1876 the court of 
 law called the House of Lords only sat dui'ing the session 
 of Parliament, but now it sits when Parliament is 
 prorogued, and it might sit even when Parliament was 
 dissolved. For the results of the identity we must look 
 rather to some matters of form which make a sharp 
 contrast between the House of Lords and the Judicial 
 Committee. In the former, when the litigants or their 
 counsel have been heard, the proceedings are veiy much 
 those of a deliberative assembly. Each lord makes his 
 speech, gives his advice to the House for or against the 
 reversal of the judgment that is under discussion ; there 
 is a debate and a division, and if the votes be equally 
 divided, the judgment is affirmed. On the other hand, 
 when a case is before the Judicial Committee, only one 
 opinion, that of the majority, is delivered. It takes the 
 form of reasons why the Committee will advise the Queen 
 to affii-m or reverse the decision in question, and this 
 advice being adopted, eif ect is given to it by an Order in 
 Council. Whether this advice represents the opinion of 
 all, or only of some of the judges is not publicly an- 
 nounced. For each of these modes of procedure some- 
 thing might be said, but the open voting of the House of 
 Lords seems to be better liked than the artificial unan- 
 imity of the Privy Council. 
 
 The importance in this country of a last court of 
 appeal is very great, and but a small part of that 
 importance is to be found in the fact that its judgment
 
 VI.] THE HOUSE OF LORDS AND THE CHAKCELLOR. 61 
 
 is a final decision of a particular dispute. Law is modified 
 by judicial decisions. For centuries past English judges 
 in deciding a case not covered by statute have held 
 themselves bound by the rules in accordance with which 
 cases have been previously decided. It is just this 
 reverence for past decisions that at once enables and 
 compels them, from time to time, to make new law ; 
 " judge-made law," as some call it, is the natural outcome 
 of an effort to leave as little as possible to judicial 
 discretion. New habits, new wants, beget new questions 
 which, in one way or another, law courts must decide, 
 questions which could not have been foreseen by the 
 judges of an earlier time. To bring the new cases under 
 the old rules is to alter the old rules. In any particular 
 instance the change may be minute and subtle, and there 
 may be room for doubt whether or no the old rule has 
 been slightly modified ; but as decision follows decision, 
 it at last becomes obvious that a substantial addition 
 has been made to the law. In this country the practice 
 of looking for law in judicial decisions has produced a 
 fairly definite standard whereby is measured the authori- 
 tative force of the rule upon which a court has grounded 
 its judgment. To mention only what is directly con- 
 nected with our present topic, the rule whereby the 
 House of Lords decides a case is law for all English 
 courts ; the House of Lords itself has disclaimed any 
 power of di.sregarding what it has once deliberately 
 adopted as law. No lower court can by its decisions 
 make a rule that shall be binding on a higher court ; 
 nevertheless, the higher pay respect to the judgments 
 of the lower and seldom overrule them, save when there 
 is some discord between several decisions. But discord 
 there sometimes is ; an unforeseen and ciutical case brings
 
 62 JUSTICE AND POLICE. [ch. 
 
 to light a latent contradiction, and then a court of appeal 
 is compelled to say that a rule which has passed as law 
 is not law. It would be no easy task to give to one who 
 had never studied the subject a just notion of the power 
 that the House of Lords has of authoritatively declaring 
 that to be law which theretofore was but questionably 
 law, or of the mode in which that power is exercised ; 
 but enough has been said to suggest that the constitution 
 of the highest court of law is in England a matter of the 
 utmost moment. Possibly our laws allow to a litigant 
 rather too many opportunities of haling his adversary 
 from court to court, but so long as English law keeps its 
 present form, there is great need of a court of last resort 
 which is not over-burdened with business, and can speak 
 with all the more decisive authority because it speaks 
 seldom and at leisure. No more than about forty or 
 fifty English cases come yearly before the House of 
 Lords ; Scotland will provide fifteen or thereabouts, and 
 Ireland five or six. 
 
 Before the recent reformation the House of Lords 
 frequently exercised the right of requiring the presence 
 of the judges at the hearing of an appeal, and of asking 
 their opinions on questions of law, opinions which the 
 lords were free to adopt or reject. To take this 
 course has now become uncommon, because the House is 
 well supplied with law lords, but a modern case in which 
 the judges were summoned may serve as an example of 
 English litigation in its most sumptuous form. 
 
 An action came on for trial at the Newcastle Summer 
 Assizes, 1876 ; it involved a difficult question of law. 
 In April, 1877, this question was argued in the High 
 Court before three judges of the Queen's Bench Division. 
 In December, 1877, that court's judgment was given for
 
 VI.] THE HOUSE OF LORDS AXD THE CHAXCELLOR. 63 
 
 the defendants, but the judges wore divided, two against 
 one. In May, 1878, it came before the Court of Appeal, 
 which in December, 1878, decided that the defendant 
 was not entitled to judgment ; but again the judges were 
 divided, two against one. In November, 1879, it was 
 argued before the House of Lords, which desired that 
 there might be further argument in the presence of the 
 judges, and such argument there was in November, 1880, 
 seven judges being in attendance. In March, 1881, these 
 seven delivered their answers to five questions which had 
 been put to them, answers which were not unanimous. 
 In June, 1881, the five lords who had heard the appeal 
 agreed in dismissing it, and the plaintiff was ultimately 
 successful. The various judicial opinions given on 
 this case would fill a much larger book than the 
 present. 
 
 The House of Lords has potentially other judicial 
 functions besides those of an apjDellate tribunal. For 
 treason or for felony a member of that House can only 
 be tried by his peers, but, as during the last hundred 
 years there has been but one such trial, we may well 
 l)ass this matter by as very trivial ; for a misdemeanour 
 a peer is ti'ied just as though he were a commoner. 
 Again, the House of Lords might have to hear the im- 
 peachment either of a lord or of a commoner. An 
 impeachment is a criminal proceeding in which the 
 (yommons are the accusers and all the Lords are the 
 judges, both of fact and of law. In the past it has been 
 a powerful engine whereby Parliament has controlled 
 the ministers of the Crown, but there is little likelihood 
 of its being used in the immediate future. If a man 
 has committed what really is a crime, he can be prose- 
 cuted in the everyday fashion, while if he has been guilty
 
 64 JUSTICE AND POLICE. [cH. 
 
 of some misdoing that is no crime, it is better to let it 
 go unj)nnished than to invent new hiw for the occasion. 
 To this it may be added that a modern House of Com- 
 mons will hardly be brought to a practical admission 
 that in order to control the Queen's ministers it needs 
 the aid of the House of Lords. The last impeachment 
 was that of Lord Melville in I8O6.1 
 
 We have had occasion many times to mention the 
 Lord Chancellor. He is, as it were, a link between the 
 judicial and the executive systems. Certainly his 
 position is as singular as it is splendid. In the first 
 place, he is according to settled usage a member of the 
 Cabinet. This of course is no rule of law, for, as is 
 well known to all, the Cabinet is an entity not known to 
 the law. Whatever legal powers its members may 
 have as privy councillors and as holders of certain high 
 offices, the Cabinet as a body has no legal powers what- 
 ever. Still, the Cabinet is a great fact, and to be a 
 member of it is to be a member of what is really a 
 supreme executive council which has vast practical power, 
 not only in administration, but in legislation also. Of 
 this body the Chancellor is a member. Then, again, 
 even were he no peer he would sit as Speaker of the 
 House of Lords, though without any right to debate or 
 vote. But in practice (except perhaps for a day or two 
 after his appointment to the chancellorship) he always 
 is a peer, and though Speaker of the House, can debate 
 and vote like another peer ; indeed, he is one of the 
 chief expounders and defenders in the House of Lords 
 of the ministerial policy. He is the foremost of those 
 Lords of Appeal who do the judicial work ascribed to 
 the House of Lords. He is the president of the Court 
 ^ See Citizen Series, Traill, Central Government, p. 28.
 
 V!.] THE HOUSE OF LOKDS AND THE CHAXCELLOR. cr, 
 
 of Appeal, of the High Court of Justice, of the Chancery- 
 Division of the High Court. He is always a Privy Coun- 
 cillor and a member of the Judicial Committee. He 
 does not in practice sit in the High Court, but he 
 habitually presides in the House of Lords, he not un- 
 frequently sits as a member of the Judicial Committee 
 he occasionally sits in the Court of Appeal. 
 
 As a matter of fact, the chancellorship is always given 
 to a very distinguished lawyer, sometimes to one who 
 has been a judge, sometimes to one who has not ; but 
 there is no law which confines the choice that can be 
 made by the Queen or her Prime Minister, and there 
 would be plenty of ancient precedents for the choice 
 of a bishop. Also, it will be understood that though th.e 
 Chancellor is a judge, he differs from all the other judges 
 in that they hold office during good behaviour, that is, in 
 effect, until death or resignation, while the Chancellor 
 holds office nominally during the Queen's good pleasure, 
 practically according to the well understood rules that 
 make the disapprobation of the House of Commons fatal 
 to the career of ministers and ministries.^ 
 
 The Lord Chancellor has much to do with the appoint- 
 ment of judges of many different grades. The judges 
 of the superior courts are appointed by the Queen, but 
 it is believed that according to usage the Queen acts on 
 the recommendation of the Chancellor when a new 
 judge is to be appointed, unless the vacant place be that 
 of the Chancellor or the Lord Chief Justice, and then on 
 the recommendation of the Prime Minister. The Chan- 
 cellor himself, and without refei'ence to the Queen, 
 appoints the county court judges, and can remove them 
 and the coroners also for inability and misbehaviour. 
 ^ See Citizen Series, Traill, Central Gorernmcnt, chap. ii. 
 
 F
 
 66 JUSTICE AND POLICE. [cii. 
 
 The Queen can appoint and remove the justices of the 
 peace, but, in fact, the appointments are made by the 
 Chancellor, and it is believed that the Queen's pleasure 
 is not usually taken. Over such officei^s as the county 
 court registrars, some of whom exercise an important 
 bankruptcy jurisdiction, the Chancellor has great power. 
 But he has yet other powers of the first importance. 
 By the statutes which have remodelled the system of 
 civil judicature. Parliament has placed in divers hands a 
 very large power of supplementing those statutes by 
 general rules of procedure, of from time to time repealing 
 old rules, and making new, and a rule of this kind may 
 be a very momentous law quite capable of determining 
 whether the remedy to be had by a law-suit is worth the 
 having. The procedvire, for instance, of the Supreme 
 Court within wide limits set by statute is regulated by a 
 large body of detailed rules, a " code of civil procedure " 
 we well might call it, made by legislative power thus 
 delegated. For the Covmty Courts there is another long 
 code ; bankruptcy procedure is regulated by yet a third. 
 The power has been placed in divers hands, but a very 
 large share in the hands of the Chancellor. For the 
 Supreme Court, rules can be made by five judges (of 
 whom the Chancellor must be one) out of a committee of 
 eight, four of whom are selected by the Chancellor. For 
 the County Courts, rules can be made by a committee of 
 five of their judges selected by the Chancellor, and the 
 rules require his approval. The last remodelling of the 
 bankruptcy laws gave a liberal licence of rvile-making to 
 the Chancellor and the Board of Trade, that is to say, to 
 two members of the ministry. These delegations of 
 legislative power are new and very remarkable. Also 
 the Chancellor has, under recent statutes, a power of
 
 VI.] THE HOUSE OF LORDS AND THE CHAXCELLOK. 67 
 
 determining by general rules tlie price at which justice 
 shall be sold, or, in other words, the fees that shall be 
 taken in the civil courts, but this being a financial matter 
 the concurrence of the Treasuiy is required. The fees to 
 be taken in the County Courts can be settled by the 
 Treasury with the consent of the Chancellor ; those to be 
 taken in bankruptcy proceedings by the Chancellor with 
 the sanction of the Treasury. 
 
 This mode of levying i-evenue deserves a passing notice. 
 The plaintiff in a County Court, to take one instance, 
 must at the outset of his action pay one shilling in the 
 pound on the amount that he claims, and again before 
 the action is heard he must pay another two shillings in 
 the pound. The method of raising money in the High 
 ( /ourt is rather different. These fees form part of the 
 costs of the action, which, as a general rvile, the successful 
 can recover from the unsuccessful litigant. ISTormally, 
 therefore, the tax falls in the end upon the party who 
 lias been in the wrong. But obviously this is not al- 
 ways the case vinless to sue one who succeeds in evading 
 justice, or one who has not wherewith to satisfy your 
 claim, is necessarily to be in the wrong. Tt might seem 
 then that a more direct means of attaining the desired 
 end would be to tax, in the first instance, the person 
 whom, the judgment proves to have been in the wrong, 
 and to supply any deficiency in the revenue by imposing 
 moderate fines upon all those that have suffered 
 injustice. 
 
 The Chancellor, then, is a judge of all the great law 
 courts, who habitually presides in the greatest, and he is 
 also the cabinet minister who exercises such controlling 
 power as the central Government has over the adminis- 
 tration of civil justice, and as regards those County Com-ts^ 
 
 K 2
 
 GS JUSTICE AND POLICE, [cii. vi. 
 
 wliicli are becoming of great importance, this power is 
 not small. The functions of the Home Secretary have 
 been described by Mr. Traill ; ^ some of them will be 
 noticed hereafter. Were there any need, which there 
 i.s not, to borrow foi-eign terms, we might say that the 
 Chancellor is the Minister of Civil Justice, the Home 
 Secretary the Minister of Criminal Justice and Police ; 
 but each of these names would have to be used in a 
 narrow sense, and the line is not drawn exactly where a 
 theorist would draw it. The House of Commons is the 
 place for the Home Secretary ; the House of Lords for 
 the Chancellor. The Home Seci-etary is the head of a 
 large and powerful permanent department; the Chan- 
 cellor is not. The Chancellor is always a learned 
 lawyer, while it is merely our good fortune if the Home 
 Secretary has illuminated the science of international 
 law or the practice of quarter sessions. 
 
 ^ Central (rovcrnment, p. 55.
 
 CHAPTER YJl. 
 
 CIVIL EXECUTION AND BANKRUPTCY. 
 
 In the last resort the judgments of a civil court must 
 be executed by force. Goods and lands must be seized 
 and sold, and in some instances persons must be im- 
 prisoned. Before noticing the manner in which execution 
 is done, we must glance at the persons who do it. The 
 county courts have for this work officers of their own, 
 high bailiffs,^ but the judgments of the High Court are 
 still executed by the slieriifs. A plaintiii:, for example, 
 wlio has judgment for a debt, can obtain a writ whereby 
 the Queen bids the sheriff of a county levy the sum out 
 of the goods of the debtor within that county. 
 
 Now the whole history of Eoglish Justice and Police 
 might be brought under this rubric, The Decline and 
 Fall of the Sheriff. The sheriff of the Norman I'eigns 
 is little less than a viceroy, very strictly answerable to 
 the king, but with great power over all the men of the 
 shire. The shire is let to him at a rent, and he makes 
 what he can out of its administration. But for some 
 seven centuries he has been losing first this function, 
 then that, and we know him now as a country gentle- 
 man who, it may be, much against his will, has been 
 ^ See £)bove, p. 25.
 
 70 JUSTICE AND POLICE. [m. 
 
 endowed for a single year with high rank and burdened 
 with a curious collection of disconnected duties, the 
 scattered fragments of powers that once were vast. He 
 receives the Queen's judges on their circmts, he acts as 
 returning officer in parliamentary elections, he summons 
 jurors, he executes civil judgments, he has a care that 
 the condemned murderer is hanged. These, and a few 
 others, are duties that have to be done, if not by him 
 then by subordinates, and besides, there are many things 
 which according to law books he might do, but which he 
 never does. He might call ovit the power of the county 
 (posse comitatus) to apprehend a criminal with hue and 
 cry, but justices of the peace and police constables have 
 long rendered needless this rusty machinery. Still he is 
 the greatest man in the county, and may look down 
 upon the lord-lieutenant himself as upon a creature of 
 yesterday. 
 
 His appointment is not accomplished without elaborate 
 ceremonies of which little must here be said. Lists are 
 kept for each shire of persons fit and liable to serve. 
 There is no property qualification more distinct than 
 this, that the sheriff ought to have land in the county 
 sufficient to answer to the king and his people ; but, in 
 fact, he will be some considerable landowner. The lists 
 are supplied with new names by the sheriffs who suggest 
 them to the judges on circuit. Then on the morrow of 
 St. Martin (12th November) at a meeting at which some 
 of the ministers and of the judges are present, three 
 names are taken from each list, usually the first three, 
 but any one there named has an opportunity of urging 
 an excuse, such as want of means. The three names 
 are submitted to the Queen and she, in practice, chooses 
 the first and marks her choice by pricking a hole opposite
 
 VII.] CIVIL EXECUTION AXD BANKRUPTCY. 71 
 
 that name in the list that is laid before her. Certain 
 towns have acquired the privilege of being counties of 
 themselves (sometimes they are called counties corporate 
 as contrasted with counties at large) and of electing their 
 own sheriffs. 1 The election is now made annually by the 
 town council. In general this privilege was acquired, at 
 earliest, in the fifteenth century, but London has enjoyed 
 it from a much older time, and the two sheriffs of London 
 are the one sheriff of Middlesex. 
 
 Almost all the duties of the sheriff are performed for him 
 by an undersheriff. The sheriff is bound by law to appoint 
 some fit and proper person to be undersheriff. Commonly 
 he appoints some solicitor of high standing, and though 
 there is nothing to prevent each new sheriff" from naming 
 a new undersheriff, still the same person is often under- 
 sheriff for many years, and in some instances the oflSce 
 has become well nigh hereditary.^ In theory, a sheriff, 
 in practice an undersheriff, has much business to do 
 which requires experience of legal routine. In particular, 
 civil execution, though less hazardous than it was but a 
 few years ago, is still risky work. If a sheriff does not 
 obey a writ he is liable to be punished in a summary 
 fashion, for the High Court keeps a tight hold over him. 
 Again, he is civilly liable if he does not seize what he 
 ought to seize, or seizes what he ought not to seize, as, 
 e.g., the goods of a wrong person, and there are many 
 
 ^ Bristol, r'anterlniry, Chester, Exeter, Gloucester, Lincoln, 
 Lichfield, Norwich, Worcester, York, Caermartlien, Haverfordwest, 
 Hull, Newcastle, Nottingham, Poole, Southampton. In 1841 
 Covfjntry wa.s merged in the county of Warwick. Oxford also has 
 a sheriff, but i.s not a county. 
 
 " There is, I believe, at least one instance in which it has been 
 " in a family " for more than a century.
 
 72 JUSTICE AXD POLICE. [cii. 
 
 rules to be observed as to when doors must and when 
 they must not be broken, and so forth, about which, in 
 general, the sheriff himself will know veiy little. For 
 the conduct of all this business the sheriff himself is 
 primarily responsible ; in fact, however, the under- 
 sheriff contracts to indemnify him, and in return 
 receives the fees and percentages which are payable 
 for the doing of civil execution and the like. The work 
 of actually seizing goods and arresting persons is done 
 by bailiffs, who have bound themselves with sureties to 
 the sheriff' for the faithful discharge of their duties ; 
 policemen are not employed for civil execution. Practi- 
 cally then, the shrievalty is, nowadays, an institution 
 whereby a country gentleman is compelled to guarantee 
 for one year the proper performance of impoi-tant work 
 in which he takes no active part. It is to the credit of 
 English pviblic spirit that such an institution is still 
 possible. 
 
 Now a marked line has of late been drawn between 
 those orders of a civil court which direct a man to pay 
 money, and those Avhich direct him to do, or abstain 
 from doing, some other thing. The latter can be 
 enforced by imprisonment. If a man disobeys an 
 injunction which forbids his building a wall, he can 
 be sent to gaol. The courts have large discretionary 
 powers of keepiug such persons in prison until they 
 submit to do what they are bid. On the other hand, 
 a judgment for money must in general be enforced by 
 other means. The plaintiff obtains a writ whereby the 
 sheriff is ordered to levy the sum due. At an early 
 date our law touching the exaction of debts became 
 very severe. This was the result, for the more part, of 
 deliberate legislation. The creditor had the power of
 
 vii.] CIVIL EXECUTION AXD BAXKRUPTCY. 73 
 
 keeping his debtor in gaol until the debt was paid; if 
 the debtor could not pay, he might be imprisoned for 
 the rest of his days. But it is a mistake to suppose 
 that the debtor was punished as an offender. A time 
 when the non-payment of a just debt is deemed a 
 crime may lie before us : it does not lie behind us. Tlie 
 imprisonment of a debtor, " the taking his body in 
 execution," was a means whereby the creditor might 
 extort payment and satisfy resentment ; but this was 
 , his private right. There is no need to tell how grave 
 a scandal our debtors' prisons became. After the law 
 had already been much mitigated, imprisonment for 
 debt was abolished in 1869. 
 
 No man can now be sent to gaol merely because he 
 has not paid money which in a civil action he has been 
 ordered to pay, save in certain cases specified by statute 
 in which he can be imprisoned for a year at the most. 
 But these are cases in which the ground of the order is 
 no mere civil debt, though it may be a merely civil 
 claim. A trustee, for instance, who disobeys an order 
 bidding him pay trust money may thus be imprisoned. 
 But in such a case a judge can use his discretion, and 
 the imprisonment is to be regarded, in part at least, a.s 
 punishment inflicted on one who has acted di.shonestly. 
 Again ; if, after an order directing him to pay money, 
 a person has the means of paying but does not pay, then 
 he can be committed to prison for six weeks or less, but 
 will be discharged upon making payment. It has been 
 xirged by those most competent to speak that the power 
 to inflict a short term of imprisonment is the most 
 effectual and most humane means of compelling the 
 payment of small debts. Until last year the law had 
 a look of injustice, for a man who owed less than £5U
 
 74 JUSTICE AND POLICE. [cir, 
 
 could not become bankrupt and thereby shuffle off his 
 debts. A process has now been introduced whereby 
 those whose debts do not reach that sum may be freed 
 therefrom. A liberal power has been given to the 
 county court judge of deciding on what terms such 
 freedom shall be granted. He can, for instance, order 
 the debtor to pay a certain fraction of all his debts on 
 pain of going to prison. The regular bankruptcy pro- 
 cedvire is too elaborate to meet such cases ; it remains 
 to be seen whether they can be met by an analogous 
 but summary method.^ 
 
 When a man cannot pay all his debts it is nowadays 
 thought better that his property should be divided rate- 
 ably among his creditors, than that the rule should be 
 "first come, first served." Also it has been considered 
 sound policy that, his property being taken from him, 
 he should, under certain conditions, be allowed a new 
 start. Neither of these principles is to be found in our 
 early law. We passed through the middle ages without 
 any bankruptcy law at all, and the statutes of Tudors 
 and Stuarts recognise only the first principle, not the 
 second. It is the eighteenth century, " poor bankrupt 
 century," before a debtor can be fi-eed from a debt 
 without the consent of him to whom it is due.^ At first 
 this was the privilege of traders only, but by slow 
 desrrees it was extended to others. It is well to re- 
 member this, otherwise we might take too gloomy a view 
 of our prospects. The experience of the last sixty years 
 
 ^ See Citizen Series, Farrer, The State in its Bclction to Trade, 
 p. 35. 1 make what is here said of bankruptcy the shorter because 
 Sir T. H. Farrer has dealt with this subject ; but when he wrote, 
 the Bankruptcy Act of 1883 was still in the future. 
 
 1 An unsuccessful experiment was made in 1697 by an Act, 8 and 
 9 "Will. IJL, c. IS, which was repealed in the next year.
 
 VII.] nVIL EXECUTION AND EANKEUPTCY. 75 
 
 might make us believe that once every decade it will be 
 admitted that the existing law is a disgrace to us, that a 
 new code will be introduced and welcomed by all practical 
 men, and that then the dismal tale will repeat itself. 
 But beneath what seems a hopeless periodicity, there has 
 been steady progress towards the doctrine that a man's 
 inability to pay his debts is a matter of public concern, 
 and not a matter merely between him and his creditors. 
 There have been backslidings, due to a reaction against 
 the bad old law about imprisonment for debt. It 
 became fashionable to say that law begins by treating 
 insolvency as a crime, and ends by treating it as a matter 
 in which the state has no other interest than that which 
 it has in all civil litigation. But still one can trace in 
 the statute book the growth of the opinion that in- 
 solvency, though not a crime, and though possibly a 
 misfortune, is a subject that the state must investigate 
 in its own interest, since presumably it is the outcome of 
 dishonesty. 
 
 The debateable question has been whether the body of 
 creditors, acting by a majority and an elected represen- 
 tative, can be trusted to administer the debtor's aifairs 
 under the merely judicial supervision of a law court, 
 without neglecting the interests of minorities and the 
 interest of the state. If every creditor wanted just to 
 get as large a dividend as possible then he would fairly 
 represent the public interest ; but what he wants is a 
 maximum of di\adend for a luiuimum of trouble, and 
 this distinction is important. Between 18G9 and 1883, 
 an attempt was made to dispense with administrative 
 officials, but the latter year saw the creation of a new 
 and powerful organism, a body of Official Receivers, the 
 salaried servants of a central bureau. Of these there
 
 76 JUSTICE AND POLICE. [cii. 
 
 are some sixty-five ; they are appointed and dismissible 
 by, and answerable to, the Board of Trade. An official 
 receiver is attached to a court or several courts having 
 l)ankruptcy jurisdiction. 
 
 The scheme of biinkrutcy courts differs somewhat from 
 the scheme of ordinary civil courts, though it is made up 
 of the same factors. For London (using that name in a 
 large sense) the primary court is the High Court ; one 
 judge of its Queen's Bench Division is specially charged 
 with the bankruptcy business, but many things can be 
 done in the first instance by one of four Bankruptcy 
 Registrars of the High Court ; the appeal is to the 
 Court of Appeal, and with its leave to the House of 
 Lords. The rest of England is parcelled out into some 
 130 districts, each of which has for its bankrviptcy court 
 some county court, and thence the appeal is to a divi- 
 sional court of the High Court, and with its leave to the 
 Court of Appeal, whose decision will be final. There is 
 no appeal at all unless £50 is at stake, or the court 
 appealed from gives leave. 
 
 Now when there is a proved inability to pay debts, 
 then at the instance of debtor or creditor, the court can 
 make " a receiving order." The debtor is now on the 
 high road to bankruptcy. The official receiver takes 
 possession of his property, and summons a meeting of 
 creditors. The debtor must be publicly examined in 
 court touching his conduct, dealings, and property, and 
 it is the receiver's duty to take part in this examination. 
 A majority of creditors representing three-fourths in 
 value of the debts may resolve that, instead of bank- 
 ruptcy, some composition shall be accepted. But they 
 cannot decide this finally ; the matter must come 
 before the court, and the court, which will have before
 
 VII.] CIVIL EXECITTION AND BAXKEUPTCY. 77 
 
 it a report from the receiver, may reject the sclieme, 
 because it is unreasonable or unfair to certain creditors, 
 or because the debtor has been guilty of misconduct, e.g., 
 of inducing insolvency by hazardous speculation. If no 
 arrangement be sanctioned, then the debtor will be 
 adjudged bankrupt, and until discharged will be a 
 disgraced man. He will not be able to sit in Parlia- 
 ment, his place as member of a municijial council, of a 
 school board or the like, will be vacated, nor may he act 
 as justice of the peace. If he obtains credit for £20, 
 without disclosing the fact that he is bankrupt, he is 
 guilty of a misdemeanour. While he is undischai^ged, 
 whatever property comes to him belongs to his creditors. 
 He can obtain his discharge from the court, and this will 
 wipe out such debts as could be proved in the bank- 
 ruptcy, and make him once more capable of owning 
 property ; but there is rigorous new law wliich if suc- 
 cessful will mean that a debtor who is discharged has 
 proved to the satisfaction of a court informed by a 
 public inquisitor, that the insolvency was not due to 
 criminal or non-criminal misconduct. In no bad sense 
 we call the official receiver a public inquisitor, and such 
 he seems to be. It is for him to investigate, for the 
 court to decide. 
 
 Of the mode in which the debtor's property is collected 
 and distributed this is no place to speak ; naturally it is 
 a complex matter. The object of our present law seems 
 that of giv^ing to the body of creditors and their elected 
 trustee as large a control as is consistent with the de- 
 tection of the debtor's misdoings, and the protection of 
 the creditors themselves against pi-ofessional harpies. 
 But we may note that bankruptcy procedui'e lies now 
 half way between civil and criminal procedure. One of
 
 78 JUSTICE AXD TOLICE. [cu. vii. 
 
 its admitted objects is to discover wlietlier or not the 
 debtor ought to be prosecuted for some one of tho>e 
 many forms of commercial misconduct that recent 
 statutes have made crimes. A bankruptcy court can- 
 not itself try the debtor for a crime ; he will be tried in 
 the ordinary way ; grand jury and petty jury will be 
 against him before he is convicted ; but the bankruptcy 
 court can commit him for trial, and order the Treasui-y 
 Solicitor^ to prosecute. Whether or no the new Act 
 is succeeding is a question about which opinions diii'er ; a 
 trustworthy answer can not yet be given. 
 
 1 See below, p. 146.
 
 CHAPTER VI ri. 
 
 THE COUNTY MAGISTKAC'Y 
 
 Turning now to our Criminal Justice and Police, we 
 liave first to notice that most thoroughly English of 
 English institutions, the Commission of the Peace. This 
 we owe to the fourteenth century. Along with that 
 concentration of civil justice of which we have spoken 
 there went a concentration of criminal justice. That 
 such justice should not be in the hands of the sheriff — a 
 resident provincial viceroy — had been an object of 
 national striving ; that it should not be in the hands of 
 the feudal lords, the king was determined. So for a 
 long while the shire was dependent on the occasional visi- 
 tations of judges commissioned by the king, while what we 
 may call its police was still under the sheriff's control. 
 Clearly this organisation was very insufficient ; there 
 was a felt need of resident judges, and, in our terms, 
 police magistrates. Many experiments were tried, and 
 it seems long uncertain what form the new institution 
 will take. Possibly the coroners represent one of these 
 experiments, and one that has failed, for these officers 
 elected by the county soon became of no very great im- 
 portance. Then there appear some shadowy persons who 
 bear the title of keepers or conservators of the peace, and
 
 80 JUSTICE AND POLICE. [en. 
 
 they also are, at least at times, elected officers. For a 
 while the national mind seems bent on an elective 
 magistracy, but in the end the principle of royal ap- 
 pointment prevails. From the year 1360 we may date 
 the existence of justices of the peace as a definite per- 
 manent institution. 
 
 It grew with the nation's growth, and the sheriff who 
 had become an annual officer fell into the background. 
 Four times a year the justices at their quarter sessions 
 could hear and determine criminal cases, trying with a 
 petty jury those whom a grand jury indicted. The 
 arrest of offenders, the suppression of riots and tumults, 
 constituted another great department of their duty, and 
 gradually they gained as the sheriff lost the control over 
 the constabulary. But this was by no means all, for 
 Parliament began to cast upon them business the most 
 miscellaneous. Under the Tudors and Stuarts, the 
 justices, their number always increasing, gradually 
 became rulers of the county acting under the super- 
 vision of the King's Council and the King's Bench, and 
 carrying into effect both judicially and administratively 
 the many detailed statutes relating to police and social 
 economy. The practice of committing to them all the 
 affairs of the shire became habitual and still obtains. 
 Within the pi"esent century, it is true, the province of 
 the justice has in some directions been narrowed by the 
 creation of other organs of local government.^ Elected 
 boards have been entrusted with many matters affecting 
 public well-being, which an earlier generation, had it 
 provided for them at all, would have consigned to the 
 justices, but the judicial powers of the justices have 
 
 1 See Citizen Series, Fowie, Poor Law, chaps, iii. , iv.
 
 VIII.] THE COUNTY MAGISTRACY. 8] 
 
 steadily grown as the number of offences summarily 
 punishable has rapidly increased. 
 
 To come to present times : those towns which have 
 justices of their own being for a while neglected, the 
 area over which a justice's commission extends is 
 normally a county ; in other words, each county has a 
 separate commission of the peace ; but besides the fact 
 that each of the three ridings of Yorkshire, each of the 
 three parts of Lincolnshire has its own commission, there 
 are still a few exceptional districts, " liberties," which 
 enjoy the same privilege.^ From the first it was intended 
 that the office should be held by great landowners of the 
 county and at a later time a definite property qualification 
 was establislied. At present, to put the matter briefly, 
 an estate in land worth XI 00 a year or the occupation 
 of a dwelling house assessed at £100 a year, will qualify 
 a man to be a county justice ; but privy councillors, peers, 
 the eldest sons of peers, county court judges, and some 
 other holders of public office, need not have this qualifi- 
 cation. In old times it was the fashion to name among 
 the justices some men learned in the law, without the 
 presence of one of whom [quorum) certain business 
 requiring legal skill could not be undertaken ; these 
 were the quorum ; but in time it became usual to make 
 all justices members of the quorum, and in this and 
 other ways the distinction has lost its importance.- In 
 old times again the justices Avere paid four shillings a 
 
 ^ Now that the liberty of St. Alban's lias been merged in Hert- 
 fordshire, the Isle of Ely is the only liberty of any great extent ; 
 but the smaller liberties of Ripon and Peterborough have quarter 
 sessions which do criminal justice as well as other business. 
 
 ^ For a long time it was customary to omit the name of ow-e justice 
 from the clause constituting the quorum, but even this last relic of 
 the old practice has, I believe, vanished. 
 
 G
 
 82 JUSTICE AND POLICE. [cH. 
 
 day for attending sessions, hut for a long while past the 
 office has in fact been honorary, and now it is so even 
 in theory; patriotism, a love of piiblic affairs, the honour 
 and glory of the thing, have supplied names enough for 
 a commission of the peace. 
 
 One member of the commission is appointed to keep 
 the rolls — the records of the justices ; in other words, 
 he is Gustos Rotulorum.' The Lord-lieutenant's was to 
 start with a military office, which came gradually into 
 being during the Tudor times as the expediency became 
 apparent of having at the head of the county's military 
 force some more permanent commander than an annual 
 sheriff. As the appointment of a royal lieutenant 
 became regular, and the creation of a standing army 
 made the county militia of less importance, the office 
 was in practice united with that of Gustos Rotulorum. 
 The Lord-lieutenant (though rather as Gustos than as 
 Lieutenant) became the honorary head of the county 
 magistracy. It is usual, though by no means necessary, 
 for him to be a peer. The appointment is regarded 
 as a piece of patronage to be bestowed on a friend of 
 the Ministry, but once appointed, though the Queen 
 might at any moment dismiss him, he is generally Lord- 
 lieutenaiit for life. 
 
 The justices are appointed by the Queen, that is, by 
 the Ghancellor, who commonly acts on the recommenda- 
 tion of the Lord-lieutenant. From time to time a new 
 
 ^ "Shallow. Sir Hugh, persuade me not ; T will make a Star- 
 cliamber matter of it ; if he were twenty Sir John Fal staffs, he 
 should not abuse Robert Shallow, Esquire. 
 
 " Slender. In the county of Gloucester, justice of the peace and 
 coram. 
 
 " Shal. Ay, cousin Slender, and Custalorum. 
 
 " Slen. Ay, and Ratolorum too."
 
 VIII.] THE COUNTY MAGISTRACY. 83 
 
 commission is issuerl, or new names are inserted in the 
 old commission.^ The justices hold office during the 
 Queen's pleasure, and can be dismissed without the 
 assignment of any reason ; but, as a matter of fact, a 
 justice is not removed save for grave cause. Justices, 
 it should be needless to say, can sit in either House of 
 Parliament. The number of justices was once quite 
 small — six or eight for a shire ; it is now large indeed : 
 but very many — perhaps one-half — of those who are 
 named in a commission are but titular justices ; they 
 have not taken the requisite oaths and so become 
 " acting magistrates." ^ 
 
 The commission of the peace, which still follows a 
 form settled in 1590, is too wordy to be here printed. 
 By it the Queen informs the justices that she has 
 assigned them and every of them her justices to keep 
 the peace within a certain county, and to keep, and 
 cause to be kept, all ordinances and statutes for the 
 good of the peace and the quiet rule and government 
 of her people, and to chastise and punish all who 
 offend against those ordinances and statutes. She then 
 authorises them, or any two of them, to hear and 
 determine all felonies and other crimes and offences of 
 
 ■■ It is, I believe, the modern practice to issue a new commission 
 (a) at the beginning of a new reign, (b) wlien a new Custos is 
 appointed, (c) when the old commission is so full of names that 
 further interpolation is impossible. 
 
 " Elaborate statistics are given in Parliamentary Papers, 1856, 
 vol. 1. I do not think there has been an exhaustive official return 
 for many years. The following numbers of "acting magistrates" 
 are taken from recent directories : Rutland 25, Nottinghamshire 
 108, Monmouth 144, Cornwall 155, Derbyshire 186, West Riding 
 422, Lancashire above 800. It is, I believe, usual to name all 
 ]irivy councillors in every commission, and also to put all the 
 judges in every commission by a generic description. 
 
 G 2
 
 84 JUSTICE AND POLICE. [en. 
 
 which justices of the peace ought to inquire. A reader 
 not versed in legal history would make but little out of 
 the words of the commission, and in truth the duties of 
 the modern justice are for the more part either created 
 or at least regulated by statutes passed long after those 
 Avords had become stereotyped. 
 
 We cannot read without amusement the complaint 
 of an Elizabethan writer touching the vast mass of 
 statute-law with which the justices had been burdened. 
 He feared their backs would be broken by these " not 
 loads but stacks of statutes." ^ Since his day English 
 gentlemen have shown that their backs are pretty broad. 
 All his poor little " stacks of statutes," when set beside 
 the products of modern legislation, would be a molehill 
 beside a mountain. Long ago lawyers abandoned all 
 hope of describing the duties of a justice in any 
 methodic fashion, and the alphabet has become the one 
 possible connecting thread. A justice — if we trust our 
 text-books — must have something to do with "Railways, 
 Rape, Rates, Recognisances, Records, and Recreation 
 Grounds ; " with " Perjury, Petroleum, Piracy, and Play- 
 houses;" with "Disorderly Houses, Dissenters, Dogs, 
 and Drainage." This haphazard arrangement is pro- 
 bably unavoidable ; for, as a great German writer has 
 said,^ the functions of the English justice are as 
 multifarious as those of the modern state. It is easy 
 to suggest that at least a distinction between judicial 
 and administrative functions is possible, and between 
 extreme cases the distinction is obvious enough. But 
 often the line of demarcation is uncertain or obscure. 
 For instance, the licence of justices is required for many 
 
 ^ Lambard, Eircnarcha, Bk. I., cap. 7. 
 " Gneist, Sdf-Government, § 33.
 
 vin.J THE COUNTY MAGISTRACY. 85 
 
 purposes, and nothing but a study of the statute which 
 makes it needful will tell us whether it must be granted 
 as the applicant's due so soon as certain facts are 
 proved, or whether, and within what limits, there is a 
 discretionary power of refusing it. Our local govern- 
 ment has been carried on with judicial forms and in 
 a judicial spirit. Our county rulers have been, not 
 prefects controlled by a bureau, but justices controlled 
 by a court of law. In separating, therefore, a justice's 
 judicial from his administrative functions, we run some 
 danger of putting asunder what law and history have 
 joined together. Still, the qviestion is fair : What sort 
 of things has a justice to do 1 
 
 I. Four times a year, at dates determined by statute, 
 the justices hold a court of general sessions of the peace 
 for the county — Quarter Sessions. Similar courts can be 
 held at other times, and are then called General Sessions ; 
 but the distinction is of little moment, and it is not 
 uncommon to speak of all such sessions as quarter 
 sessions. Two justices are enough to constitute such 
 a court, but, in fact, a considerable number of justices 
 from all parts of the shire attend, and the meeting is 
 a law-court and governmental assembly for the whole 
 county.^ 
 
 (a) It is a court with high criminal jurisdiction, 
 which can tiy all crimes save an excepted class reserved 
 for yet higher courts. That class (which is likely to be 
 curtailed rather than extended) includes all capital crimes, 
 all crimes for which a person not previously con- 
 victed may suffer penal servitude for life, and a number 
 of the more serious misdemeanours — perjury, forgery, 
 
 ^ In some comities quarter sessions are held only at, one town ; 
 iu others at two or more.
 
 8G JUSTICE AND POLICE. [ch. 
 
 bribery, libel, and some others.^ The trial is a formal 
 trial, with a petty jury of those indicted by a grand 
 jury, and is just like a trial at the Assizes. The justices 
 elect their own chairman, and he performs many of the 
 duties which at the Assizes would be done by the judge. 
 He charges the gi'and jury, sums up the evidence, pro- 
 nounces sentence ; still, the sentence is that of the whole 
 court, and he is but the first among equals. 
 
 (6) Then this is the court to which there go appeals 
 from the convictions and orders of those *' Courts of 
 Summary Jurisdiction" of which hereafter. There 
 is no general right of making such an appeal ; the 
 right, if it exists at all, must be given by statute ; 
 still, there very commonly is such a right, especially 
 when a conviction leads to imprisonment without option 
 of a fine. These appeals are heard without jury. 
 
 (c) Complaints against local rating supply Quarter 
 Sessions with much business. The recent creation of 
 assessment committees, constituted of poor-law guar- 
 dians, has provided what may be called a tribunal of 
 first instance for the hearing of such complaints, to 
 which Quarter Sessions serve as an appeal court. 
 
 (d) As will be seen below,^ the justices assembled at 
 Quarter Sessions exercise an important control over the 
 county constabulary. 
 
 (e) Then, again, they form a council (a " local 
 authority," as the statute-book has it), to which many 
 statutes, old and new, have assigned powers and ducies 
 of a governmental kind. Sometimes their function is 
 
 ^ About half of the criminal trials take place at county sessions, 
 about a quarter at borough sessions, the rest at the Assizes or the 
 Central Criminal Court. 
 
 - P. 111.
 
 VHI.] THE COUNTY MAGISTilACY. 87 
 
 directly executive, sometimes supervisory. It is hard 
 to find apt abstract words, but the maintenance of the 
 county bridges is an old, the slaughter of cattle infected 
 with foot-and-mouth disease is a new, example of busi- 
 ness which is under the immediate ordering of the Court 
 of Quarter Sessions, while over highways its power is less 
 direct, though it can constitute the highway districts, and 
 compel the board that governs such a district to do its 
 duties. Then it levies rates, whereout it defrays the 
 costs of this county business, and also in the fii'st 
 instance the cost of the county police-force and of 
 criminal prosecutions, though much of this is paid iu 
 the end out of the national exchequer.^ Again, not only 
 does it issue particular orders and make particular 
 appointments (as when it places a district under the 
 ban as " a place infected with pleuro-pneumonia ; " when 
 it divides the county into petty-sessional districts, into 
 coroners' districts, into polling districts ; when it appoints 
 a county analyst and inspectors of weights and measures), 
 but it can make general rules touching the use on high- 
 ways of bicycles and locomotive engines ; touching the 
 verification of weights and measui-es ; touching the fees 
 to be taken in courts of summary jurisdiction. Such 
 work brings it under the control of the gi'eat central 
 ofiices — the Privy Council, Home Office, Board of Trade, 
 Local Government Board. It has lately lost the direct 
 government of the prisons, which, as national, not 
 county, business, has been transferred to the Home 
 
 ^ County expenditure is thus classified : (1) police, (2) prosecu- 
 tions, (3) reformatories, (4) lunatic asylums, (5), shire halls and 
 judges' lodgings, (6) militia storehouses, (7) county bridges, (8) con- 
 tributions for main roads, (9) register of electors, (10) salaries of 
 county officers.
 
 88 JUSTICE AND POLICE. [cii. 
 
 Secretary and Prison Commissioners ; but at Quarter 
 Sessions the justices appoint from out their number a 
 committee bound to visit the prisons at frequent in- 
 tervals, to hear complaints, and to report abuses. Another 
 visiting committee manages the lunatic asylum, which 
 is provided at the cost of the county. Another com- 
 mittee can confirm, or refuse to confirm, new licences for 
 the sale of strong drink granted at petty sessions. These 
 are but illustrations and example.s. 
 
 II. The justice's commission comprehends the whole 
 county ; still there has been in fact a minuter localisation. 
 Many statutes required that this or the other matter 
 should be done out of Quarter Sessions by two justices, 
 and a meeting of two or moi'e justices about such busi- 
 ness came to be called a Petty Session. Further, it was 
 required that some duties should be performed at fixed 
 intervals, and the meetings thus i-equired by statute got 
 the name Special Sessions or Special Petty Sessions. 
 Naturally a justice looked chiefly after his own neigh- 
 bourhood, and for some purposes this division of labour 
 was recognised by law. But geography having become 
 obscure, the justices at Quarter Sessions were in 
 1828 empowered to divide the county into tracts for 
 the purposes of the special sessions. Then in 1836 there 
 was an attempt to make the " petty sessional division " 
 coincident with the then new " poor-law union." The 
 coincidence could be but rough, since the latter often 
 transcends, while the former cannot transcend the county 
 boundary. In 1881 the number of these sessional divi- 
 sions was 715. Practically in each division we shall 
 find a nvimber of resident justices who seldom, if ever, act 
 except in that division or at Quarter Sessions, who have 
 a court house for the division at which they meet
 
 viii.] THE COUNTY MAGISTRACY. 89 
 
 periodically, who have their own elected chairman, who, 
 in short, constitute " the bench" of that division. But 
 this is rather a matter of "custom, courtesy, and con- 
 venience " than of law.i For all, or at least most, judicial 
 purposes, the shire is an undivided whole, and a case 
 that can be heaixl by two justices can be heard by any 
 two. For some administrative purposes, e.g., the grant- 
 ing of licenses, the division is a unit ; matters connected 
 with that district can only be done at sessions held in 
 and for that district. 
 
 (a) That summary jurisdiction (i.e., jurisdiction exer- 
 cised by a magistrate or magistrates determining fact 
 and law without a jury), which is yearly becoming of 
 greater importance, grew up in a curious accidental 
 fashion. Statute after statute prescribed that this and 
 that petty offence might be punished sometimes by one 
 justice, sometimes by two or more, but very seldom was 
 the slightest hint given as to how, or when, or where, 
 the case was to be tried. Only in the present centuiy 
 have we begun to think of the summary jurisdiction as 
 normal, and to regulate by general statutes the mode in 
 which it must be exercised. The effect of modern legis- 
 lation has been that no sentence save the pettiest (the 
 maximum is a fortnight's imprisonment or a twenty- 
 shilling fine) can be inflicted, save after a trial before at 
 least two justices sitting iu some place regularly ap- 
 pointed for such business, " a petty sessional coui-t 
 house." For a tribunal thus constituted we have the 
 new technical name " a Petty Sessional Court." Some 
 sentences within the limit just mentioned can be in- 
 flicted by two justices in a place less formally devoteil 
 
 ^ Any one who wishes for a fuller and better account of these 
 nutters should read Mr. Knox Wigram's Junticcs' Note Book.
 
 90 JUSTICE AND TOLICE. [ch. 
 
 to judicial business (" an occasional court house "), which 
 none the less must be open to the public, and some can 
 be inflicted by a single justice at a petty sessional court 
 hoiase ; in these last instances the tribunal is " a Court of 
 Summary Jurisdiction," though not "a Petty Sessional 
 Court." ^ The times for holding courts for the. exercise 
 of this summary jurisdiction are not fixed by law, but are 
 arranged by the justices. For some large towns a court 
 will be formed daily ; in the open country fortnightly 
 intervals are common. 
 
 For the more part, the justice thus done is of a penal 
 kind, and results in the infliction of fines or imprison- 
 ment, and of this hereafter ; ^ but in some cases its 
 exercise can be accompanied by an award of amends or 
 compensation to the person injured, and, in a few, the 
 court has a true civil jurisdiction. It can give a civil 
 remedy in a dispute between employer and workman, 
 within a £10 limit ; a seaman's wages if less than £50, 
 water rates, gas rents, cab fares, can be recovered before 
 it. Orders directing men to pay money for the support 
 of their illegitimate children (bastardy orders) are a 
 staple commodity of Petty Sessions. Accessible as are 
 the County Courts, they are not accessible enough for all 
 these purposes. 
 
 (b) Orders for cutting down a tree which overhangs a 
 highway, for the destruction of meat unfit for food, of 
 obiscene books, of dangerous dogs, for the removal of a 
 corpse to a mortuary, of a pauper to his place of settle- 
 
 ^ "A Coui't of Summary Jurisdiction" is the genus whereof " a 
 Petty Sessional Court " is the species. Both terms are quite 
 modem. As will be noted below, a stipendiary magistrate has the 
 power of two justices. 
 
 ^ See below, p. 125.
 
 VIII.] THE COUNTY MAGISTRACY. 91 
 
 ment, for closing a polluted source of water supply, are 
 specimens of orders which justices (sometimes one justice) 
 can make, and in this region we pass almost imperceptibly 
 from judicial to administrative business. And so with 
 licensing : besides the intricate system of licenses for 
 the sale of drink, pawnbrokers, keepers of billiard 
 rooms, storers of gunpowder and of petroleum, agri- 
 cultural gang-masters, baby-farmers, require licenses. 
 
 (c) Then, in some cases, justices in Petty Sessions are, 
 for their division, the "local authority" entrusted for 
 certain purposes with thoi-oughly administrative work ; 
 gunpowder, petroleum, baby-farms, would again supply 
 us with instances. The appointment of overseers of the 
 poor, the allowance of poor-rates, the settling of the jury 
 lists are business of a somewhat similar kind. 
 
 III. The preliminary inquiry in criminal cases, the dis- 
 charge or commitment of the accused, form another great 
 branch of a justice's duty which will demand attention 
 hereafter. 1 This has nowadays become regular judicial 
 work, though it can be done by a single justice, and by 
 one not sitting in open court. 
 
 TV. Closely connected with this is the issuing of 
 Avarrants for the apprehension of accused persons. 
 There are many warrants, too, for the searching of 
 houses and the like that a justice can grant ; some for 
 the purpose of detecting serious crime, as when there is 
 search for stolen goods or countei'f eit coins, some for the 
 detection of minor offences, offences against the Factory 
 Acts, the keeping of a gaming house, and so forth ; 
 pawnbrokers and old-metal dealers are specially liable 
 to visitations under a justice's warrant. 
 
 V. To keep the peace is the justice's oldest duty. It 
 ^ See below, p. 129.
 
 92 JUSTICE AND POLICE. [oh. 
 
 is now performed chiefly by means of orders given to 
 police constables, but on occasion the justice is himself 
 expected to intervene and quell disturbance, to appoint 
 special constables, to call in military force, and the like. 
 Whenever twelve persons are riotously assembled, the 
 justice should resort to the place where the disturbance 
 is, and among the rioters, or as near to them as he can 
 safely come, read a certain proclamation bidding them 
 disperse in the Queen's name (this is called " reading the 
 Eiot Act "), and if thereafter they continue rioting by 
 the space of one hour, they are felons, who can be sent 
 into penal servitude for life.^ 
 
 VI. In countless other ways has the justice of the 
 peace been made useful ; for instance, in superintending 
 the enlistment of soldiers, the billeting of troops, the 
 impressment of carts for military service, the relief of 
 the poor in urgent cases, the restraint of lunatics. In 
 a woi'd, he is the state's man of all work. 
 
 That all this multifarious business should be transacted 
 by amateurs is of course only possible because the justices 
 have assistants who contribute professional knowledge, 
 and are skilled in the due routine. There is first the 
 Clerk of the Peace for the county, dismissible only for 
 misconduct, appointed by the Gustos Kotulorum, or, should 
 he make no appointment, then by Quarter Sessions. He 
 has in his hands all the secretarial work of the county, 
 and most miscellaneous work it is ; indeed, he is the 
 centre of the whole system. Then each petty sessional 
 division has its clerk to the justices. Under modern 
 statutes the clerks are to be paid by salaries, and the 
 fees which used to be their reward (for even criminal 
 business is not done without some taking of court fees) 
 1 The Riot Act is Stat. 171 4 (1 Geo. I., stat. 2, cap. 5).
 
 VIII.] THE COUNTY MAGISTRACY. 93 
 
 go to tlie county treasury. Projects for the transfer to 
 elected boards of the more purely administrative functions 
 of the justices are in the air, and undoubtedly for such 
 projects there is much to be said, but whether they will 
 not destroy the county magistracy must be a serious 
 question. Of that magistracy we can still wi'ite with 
 Sir Edward Coke, "It is such a form of subordinate 
 government for the tranquillity and quiet of the realm, 
 as no part of the Christian world hath the like, if the 
 pame be duly exercised." ^ 
 
 ^ Fourth Institute, p. 170.
 
 CHAPTER IX. 
 
 BOROUGH JUSTICES AND PAID MAGISTRATES. 
 
 To be exempt from the shire organisation was long 
 the ambition of the English town, and clivers boroughs 
 acquired by royal charter the privilege of having their 
 own justices of the peace. Of these justices hy charter, who 
 were usually elected officers, there is no need to speak, 
 for the country was practically purged of them by the 
 Municipal Reform of 1835, and the last relics of the old 
 state of things are at this moment being swept away.^ 
 In 1835, all the most considerable of the then incor- 
 porated boroughs, to the number of 178, were reconsti- 
 tuted according to a uniform model, and since then a 
 corporation of the same type has been created in many 
 other towns. But about 106 places which claimed an 
 organisation of a more or less municipal kind were not 
 included in the reform ; in some the corporation had 
 ceased to exist, save as a name, while others were- passed 
 by as unimportant. These retained, and retain, in fact 
 or theory, their old constitutions, and at this hour there 
 are still some decayed towns which have unref ormed cor- 
 porations and elective magistrates endowed with a high 
 criminal jurisdiction which they never exercise. But 
 
 1 Statute, 1883, chap. 18.
 
 CH. IX.] BOROUGH JUSTICES AND PAID MAGISTRATES. 95 
 
 their doom is sealed. At latest on Michaelmas Day, 
 1886, these corporations will perish, these towns will 
 become mere bits of county, unless, in the meantime, 
 they obtain royal charters, which will turn them into 
 municipal boroughs of the now orthodox type. So (with 
 a saving for the still unreformed city of London) we 
 have only to speak of what may be called the new- 
 fashioned municipal boroughs, and we have only to 
 consider them as units in a system of Justice and 
 Police.^ 
 
 These boroughs fall into thi'ee classes : (1) those which 
 have no separate Commission of the Peace, (2) those which 
 have such a Commission, but no Court of Quarter Sessions, 
 (3) those which have the separate Commission, and also 
 Quarter Sessions.- To take the most exalted class 
 (" quarter session boroughs ") first : these have indeed a 
 Court of Quarter Sessions, but this is a court in which 
 there is but a single judge, namely, the Recorder of the 
 borough, and he is no amateur justice. He is appointed 
 by the Queen from among barristers of five years' stand- 
 ing, he holds office during good behaviour, and the 
 borough pays him a salary which in practice is hardly 
 more than nominal, for the office is honourable and not 
 very bvirdensome, nor does it prevent its holder from 
 practising as a barrister. He holds the Quarter Sessions 
 four times a year, and his main business is that of 
 trying with a jury those crimes committed within the 
 borough, which are not of the class reserved for the 
 higher comets. ^ The jxirors at the Quarter Sessions for 
 
 ^ As to the constitution of the municipal borough, see Citizen 
 Series, Chalmers, Local Government, chap. v. 
 
 ^ The number of boroughs in each of the three classes is approxi- 
 mpteiy (1) 46, (2) 100, (3) 105. 
 
 ^ See above, p. 85.
 
 95 JUSTICE AND POLICE. [rn. 
 
 these boroughs are burgesses, and the expense of pro- 
 secutions falls, in the first instance, on the borough. 
 For purposes of local finance the distinction between 
 these and other boroughs is of importance, but this does 
 not concern us. 
 
 Then for every borough there are normally, at least 
 two justices of the peace. The mayor, who is elected 
 by the council, is justice by virtue of his office, and 
 unless he becomes disqualified, he is justice for one year 
 after he ceases to be mayor. But to most boroughs, 
 except the smallest, the Queen has granted a separate 
 commission of the peace. The number of names in the 
 commission varies from the seventy or eighty justices 
 of Liverpool and Manchester to the five or six of little 
 towns. These justices, like the county justices, are 
 appointed by the Queen (Lord Chancellor), are unpaid, 
 and hold office during good pleasure. While acting, 
 such a justice must reside in the borough or its out- 
 skirts, or have a house, warehouse, or the like in the 
 borough, but no property qualification is required of 
 him and he is not entrusted with any high criminal 
 jurisdiction, for as already said, even if the borough 
 has Quarter Sessions of its own, the professional recorder 
 will be the one jvidge of that court. The borough justice 
 has, however, for his borough many of the powers that 
 a county justice has for his county ; the summary juris- 
 diction, the preliminary examination of criminals, the 
 issuing of warrants of arrest, the conservation of the 
 peace, and so forth, are his. But in general the county 
 justices also can exercise these same powers in and for 
 the borough ; the borough is but a part of the county 
 which has some additional justices of its own. This is 
 always the case if the borough has no Court of Quarter
 
 IX.] BOROUGH JUSTICES AND PAID MAGISTRATES. 97 
 
 Sessions. Among the "quarter sessions boroughs " we 
 find a further distinction, for here the question whether 
 the county justice is excluded depends on the question 
 whether he was excluded on the 9th of September, 1835, 
 and this, again, depends upon the charters the borough 
 had before that date ; some such charters did, while 
 some did not, forbid the intermeddling of the county 
 justices, and this distinction is still preserved.^ 
 
 It must be understood, however, that in boroughs, no 
 matter to what class they belong, a great deal of business 
 of the governmental kind, which for the county outside 
 borough boundaries is done by justices at Quarter Sessions 
 or Petty Sessions, falls to the elected Town Council. Thus, 
 in the administration of the acts which aim at preventing 
 cattle disease, the Town Council for the borough is co- 
 ordinated with the Quarter Sessions for the county, while 
 to protect the townsfolk against dangerous dogs the 
 Town Council has the powers which justices in Petty 
 Sessions exercise for the benefit of their sessional 
 division. Again : a control over the borough con- 
 stabulary resembling that which Quarter Sessions has 
 over the county constabulary belongs not to the borough 
 justices but, as will be seen hereafter,^ to a " watch 
 committee " of the Council. 
 
 Unless within less than two years Parliament takes 
 the city of London in hand, that city will possess the 
 one municipal corporation that does not conform to the 
 modern model. Of that corporation as a governing 
 
 1 A clause in a charter forbidding such meddling is generally 
 called a " non-intromittant clause." This classification of the 
 quarter sessions boroughs turns rather on their past good fortune 
 than on their present importance. Liverpool, I think, does not 
 exclude the county justices, while Windsor does. 
 
 2 See below, p. 112. 
 
 H
 
 98 JUSTICE AND POLICE. [rn. 
 
 body we have not to speak,i but many of its officers 
 take an active part in the dispensation of justice. The 
 mayor and each of the aldermen is a justice of the peace 
 for the city which is a county in itself and outside the 
 limits of the Middlesex commission. Any one of these 
 city justices sitting at the Mansion House or the Guild- 
 hall has indeed some unusual powers, for he can hear 
 many cases which could not be heard by less than two 
 justices of a commoner type. This is the provision which 
 the civic constitution makes for summary justice and for 
 the preliminary examination of criminal cases. Then the 
 mayor and aldermen are nominally justices of the Central 
 Criminal Court, which has jurisdiction over all crimes 
 committed within the city and a large circumjacent terri- 
 tory. They do not take any real part in the trial of 
 such cases, but much of the work is actually done by 
 the Recorder of the city, who is elected by the aldermen, 
 and by the Common Serjeant and the judge of the City 
 of London Court, who are elected by the Common 
 Council, the very gravest cases being usually reserved 
 for a judge of the High Court. The Recorder, again, 
 sits as judge in the Mayor's Court, which has juris- 
 diction in civil cases arising within the city, while the 
 City of London Court has become in fact a county 
 court of the new pattern having the city for its 
 district. 
 
 From these institutions distinctive of London proper, 
 we pass to one which was long distinctive of "the 
 Metropolis," for as yet we have no better name for 
 the vast town which has agglomerated itself outside 
 the city walls. This town, we must remember, was 
 in the eye of the law no town ; it had no legal being ; 
 •* See Chalmers, Local Government, p. 145.
 
 IX.] BOROUGH JUSTICES AND PAID MAGISTRATES. 09 
 
 it was but a collection of townships and manors, 
 parishes and extra-parochial places, which owned no 
 common ruler save King and Parliament. Geography 
 and remote history had done their worst for the 
 Metropolis : the commissions of the peace for Middlesex, 
 Surrey, Kent, and Essex, converged on the disorderly 
 mass, while separate commissions for Westminster and 
 the Liberty of the Tower confounded confusion. Unity 
 of action was impossible, the individual magistrate was 
 not controlled by the spirit of corporate magistracy, and 
 metropolitan Justice and Police fell into bad ways. 
 In the last century there arose men who gained the bad 
 name of " trading justices," and made a profit of their 
 powers by the taking of fees. To put an end to this, 
 rather than to do anything else was the object of a series 
 of statutes, which ended by giving us professional magis- 
 trates and a new police force under the control of Royal 
 Commissioners and the Home Secretary. 
 
 In 1792 seven "public offices," which came to be 
 called " police offices," were established, at each of which 
 three justices of the peace, appointed by the King and 
 commissioned for both Middlesex and Surrey, were to 
 attend daily. All fees taken by them were to be paid 
 to a receiver, and no other justice was to take fees within 
 a certain large district. Out of these fees, or, if they 
 would not suffice, out of the consolidated fund, each of 
 the twenty-one justices was to be paid a salary of £400, 
 while over the provision of buildings and so forth the 
 Home Secretary was to have a control. 
 
 An Act of 1800 established an eighth police office (or 
 rather a ninth, for the Bow Street Office has an earlier 
 history) ; and the three paid justices (" special justices " 
 they were called) of this Thames Police Office were to 
 
 H 2
 
 100 JUSTICE AND POLICE. [en. 
 
 be commissioned for Middlesex, Sui-rey, Kent, Essex, 
 Westminster, and the Tower. ^ These Acts were only 
 temporary, but they were repeatedly re-enacted with im- 
 provements. The salary of these justices, or "police magis- 
 trates," as the later Acts call them, slowly grows from £400 
 to <£1,500; the hours of attendance, on the other hand, 
 are shortened ; at first they are 10 to 8, afterwards 10 to 
 5. What this indicates is the great change which during 
 this period is making the duties of the justice in ci-iminal 
 cases more and more judicial. These paid justices were 
 seldom lawyers ; it is first in 1839 that the King's choice 
 is confined to barristers of seven years' standing.^ One 
 of their chief duties had been to appoint and control a 
 small band of paid constables attached to each office. 
 Even in 1829 when "a new police force" for "the 
 Metropolitan Police District " was formed, this was done 
 by establishing in Westminster one more police " office," 
 provided with two paid justices of the peace, who, under 
 the Home Secretary, were to rule the new constabulary. 
 In 1839 these two " justices " receive the new name of 
 "Commissioners of Police of the Metropolis;" the 
 judicial and execvitive duties comprised in the old con- 
 servation of the peace fall apart, and we are left with 
 learned magistrates and gallant commissioners. 
 
 In the Metropolis there are now twenty-three police 
 
 1 Bentham ( Works, Vol. V., p. 335) says that he drew this Act ; 
 ^' without the change of a word it became law." A sketch of the 
 Bill will be found in Vol. X., p. 331. The Act is chap. 87 of 1800. 
 
 2 " There were only three ban'isters ; the rest were composed of a 
 major in the army, a starch maker, three clergjrmen, a Glasgow 
 trader, and other persons who, from their occupations, could not 
 but be considered as utterly unqualified to perform the duties of 
 magistrates." See a speech by Sir Kobcrt Peel in Bentham, Works, 
 Vol. v., p. 346.
 
 IX.] BOROUGH JUSTICES AKD PAID MAGISTRATES. 101 
 
 magistrates, each of whom is a justice of the peace 
 for Middlesex, Svirrey, Kent, Essex, Hertfordshii^e, 
 Westminstei*, and the Libei^ty of the Tower. This is the 
 teiritory over which he has jurisdiction, but his warrants 
 for the apprehension of suspected persons and the like 
 can, without endorsement, be executed outside that 
 territory. Sitting in his Police Court he is for many 
 purposes equivalent to two justices acting concurrently, 
 and, indeed, has a few powers which no other justice 
 has. There are now within the metropolitan limits 
 thirteen " Police Courts " (a phrase which in the statute 
 book gi-adually supplants "police offices"), each of which 
 has its own magistrates assigned to it, but for modifying 
 this system the Home Secretary has considerable powers. 
 It has been regarded as a matter of national concern 
 and the cost of it falls on national funds, which, how- 
 ever, get the benefit of fines and penalties which in other 
 places would go to the treasury of the county or borough. 
 When a Police Court has been set up and a district 
 assigned to it, that district becomes to a large extent 
 exempt from the interference of the justices for the 
 county, Middlesex, Sm^rey, or whatever it may be : so 
 that for what we ordinarily call London (save the 
 City), the smnmary jurisdiction and the preliminary 
 examination of criminals are now in professional 
 hands. 
 
 Besides the institution of a paid magistracy and the 
 creation of the Central Criminal Court,^ the vast volume 
 of the Metropolis has caused another modification of the 
 general English system. Quarter or General Sessions of 
 the peace for Middlesex are held twice a month, and 
 since 1844 there has presided at these sessions for 
 ^ See below, p. 160.
 
 102 JUSTICE AND POLICE. [CH. 
 
 the hearing of appeals and of criminal cases a paid 
 " Assistant Judge ; " he is appointed by the Queen, and 
 his salary is defrayed half by the nation half by the 
 county. 
 
 Other places have followed the example of London in 
 acquiring stipendiary magistrates. So early as 1813 
 Manchester obtained such a magistrate. Then, in 1835, 
 a general provision was made for the reformed boroughs ; 
 they might have stipendiary magistrates if they chose 
 to ask for them and pay for them, and a like provision 
 has since been made for populous places which are not 
 boroughs. In such cases the magistrate is appointed by the 
 Queen, must be a barrister of seven (or in some instances 
 five) years' standing, and is paid out of local funds. These 
 "stipendiaries " do not hold office by the judicial tenure 
 of good behaviour, they, like other justices of the peace, 
 are only justices during the Queen's good pleasure. Con- 
 sidering that for the last fifty years it has been open for 
 any large town to equip itself with a paid magistrate, 
 we are bound to suppose that Englishmen are well 
 satisfied with the unpaid and unprofessional justices 
 of their counties and boroughs, for the number of 
 places which have called a lawyer to their aid is 
 very small. ^ 
 
 We must not end this account of the justices, paid 
 and unpaid, without mentioning that supervisory control 
 
 ^ The following list of places having paid magistrates is, I be- 
 lieve, con-ect ; in some cases there is a special Act of Parliament : 
 Birkenhead, Birmingham, Brighton, Cardiff, Hull, Leeds, Liver- 
 pool, Manchester (city), Manchester (division), Merthyr Tydvil, 
 Middlesborough, Pontypridd, Salford, Sheffield, Staffordshire 
 Potteries, Swansea, West Ham, Wolverhampton. For Chatham 
 and Sheerness there is a magistrate paid by the nation, whose 
 jurisdiction extends over the estuary of the Thames.
 
 IX.] BOEOUGH JUSTICES AND PAID MAGISTRATES. 103 
 
 which the Court of King's Bench exercised over all 
 inferior courts, a control which has been inherited by 
 the High Court. The scope of this control comprises 
 all the inferior courts, the County Courts, for example ; 
 but it is of special importance in connection with the 
 magistracy. This traditional power is quite distinct 
 from any appellate jurisdiction that statutes may have 
 given to the High Court. That court, for instance, has 
 by statute power to hear appeals on points of law from the 
 County Courts, and from the Courts of Summary Juris- 
 diction ; but, apart from this, the High Court controls 
 all inferior courts, ordering them (by writ of mandamus) 
 to hear and determine cases which are within their com- 
 petence, prohibiting them (by writ of prohibition) from 
 meddling with matters which are beyond their com- 
 petence, and taking to itself (by writ of certiorari) any 
 case in which there has been or is like to be a failure of 
 justice. 
 
 The nature of this control is perhaps best illustrated 
 when the High Court enforces against some justice or 
 judge of a lower court the rule that no one biassed by 
 pecuniary interest should act as judge. Since the days 
 when "the Mayor of Hereford was laid by the heels" 
 for sitting as judge in his own cause, this rule has 
 been applied with a rigour which, were the principle at 
 stake not so important, might seem pedantic. Nor is it 
 applied only to "inferior courts;" the House of Lords 
 has applied it to the decree of a Lord Chancellor,^ but it 
 
 ^ On which occasion Lord Campbell said, "It is of the last 
 importance that the maxim, that no man is to be a judge in his 
 own cause should be held sacred. And that is not to be confined to 
 a cause in which he is a party, but applies to a cause in which he 
 has an interest. . . . We have again and again set aside proceedings
 
 104 JUSTICE AND POLICE. [ch. ix. 
 
 is constantly applied to justices of the peace ; they are 
 summoned, in the Queen's name, to show cause why the 
 proceedings taken before them should not be brought 
 into the High Court and there quashed, i.e. made void. 
 "We have here no appeal by a defeated litigant who 
 brings his adversary from a lower to a higher tribunal, 
 but a matter between the Queen on the one side and 
 some of her justices on the other. To secure a full and 
 fair hearing of every case before magistrates who have no 
 sinister interest and who are legally competent to decide 
 the case, rather than to secure correct decisions of ques- 
 tions of fact or law, has been the object of the control 
 which the High Court by means of royal writs exercises 
 over the lower courts. Especially important has been 
 the writ of certiorari for removing proceedings from the 
 lower courts to the High Court in order that the latter 
 may be certified thereof and do justice therein, and 
 though in not a few cases statutes have in general 
 terms " taken away the certiorari" i.e. have directed 
 that certain proceedings shall not be removed, still it is 
 considered that even then the writ can be issued if 
 the lower tribunal plainly exceeds its powers or acts in 
 a flagrantly irregular way. 
 
 in inferior tribunals, because an individual who had an interest 
 in a cause took a part in the decision. And it will have a most 
 salutary influence on these tribunals when it is known that this High 
 Court of last resort, in a case in which the Lord Chancellor of 
 England had an interest, considered that his decree was on that 
 account not according to law, and should be set aside." (3 House 
 of Lords Cases, 759-793.)
 
 CHAPTER X. 
 
 THE CONSTABULARY. 
 
 It may seem to us a matter of course that there is a 
 large body of policemen, highly organized on a military 
 plan, paid to maintain order, detect crime and arrest 
 offenders.^ But all this is very new ; it has come into 
 existence during the last sixty years ; indeed, down to 
 1856 there was no law for the whole of England re- 
 quiring that there should be paid policemen. The 
 general law was that every township should have its 
 constable. To serve his turn in that office was the duty 
 of every man of the township, and to serve (certain 
 lawful fees excepted) for nothing. In places where the 
 old local courts survived the constable was elected by 
 his neighbours ; elsewhere he was appointed by the 
 
 ^ The word police did not, I tliink, become common until late in 
 the last century. Johnson just admits it, but only as a French 
 word used in England ; for him police is ' ' the regulation and 
 government of a city or country so far as regards the inhabitants." 
 The group of words, 2^olice, 2Joliey, jmlity, politics, 2^olitic, political, 
 politician, is a good example of delicate distinctions. I hardly dare 
 venture a definition oi police, but will suggest, " such part of social 
 organization as is concerned immediately with the maintenance of 
 good order, or the prevention or detection of offences." TM Police 
 as an equivalent for th,e police force, the tody of police constables, is 
 very modern.
 
 106 JUSTICE AND POLICE. [ch. 
 
 justices; the man chosen might provide a substitute. 
 The constable had a good many small statutory duties to 
 do, and a general duty of obeying the lawful orders of 
 the justices, but his main " common law " duty was to 
 arrest oifenders, and for that purpose he had some 
 powers which the private man had not. These are still 
 important ; it is mainly because he is a constable, an 
 oflB.cer long known to the law, that he whom we call a 
 policeman differs from other men. 
 
 The last century which did most of its legislation by 
 means of local Acts, provided in this place and that divers 
 more or less efficient supplements for this rude institu- 
 tion, paid watchmen for the towns and so forth, but 
 these, though interesting, we must pass by as temporary 
 expedients which have left few traces on our present 
 law ; we can pass from the constable of the common law 
 to the constable of those yet recent statutes which have 
 created the new police force.^ 
 
 So late as 1842 a gallant effort was made to put new 
 life into the old constabulary. ^ The general principle 
 was placed upon the statute book that in the country at 
 large every able-bodied man resident within any parish 
 between the ages of 25 and 55, rated to the poor rate or 
 county rate at £4 or more, is liable to serve as constable 
 for that parish, unless specially disqualified or exempted. 
 But the list of exemptions was comprehensive ; men of 
 the professional class had no mind for constabulary 
 duties. On the statute book that principle remains 
 written ; but it has become a dead letter. The machinery 
 provided was briefly this : lists of persons liable to serve 
 
 1 By far the best history of the English constabulary known to 
 me is in Gneist, Self- Government, § 77-82, 
 - Statute, 1842, chap. 109.
 
 x] THE CONSTABULARY. 107 
 
 for the parisli are annually drawn up by the overseers of 
 the poor ; these are submitted to justices holding a special 
 session for the division, who thereout choose and appoint 
 for each parish so many constables as they think needful ; 
 substitutes are allowed ; a man who has served in person 
 or by substitute is exempt until every other parishioner 
 liable to serve has taken his turn ; within the county 
 and all adjoining counties this constable has all the 
 powers of a constable, but he is not bound to act outside 
 his parish without the special warrant of a j ustice ; he 
 may earn certain fees, otherwise he is unpaid. Thirsty 
 years later, " the establishment of an efficient police in 
 the counties of England and Wales has rendered the 
 general appointment of parish constables unneces- 
 sary," so, for the future, no parish constable shall be 
 appointed unless the justices at Quarter Sessions think 
 this necessary.^ The Act of 1 842 can still be enforced 
 if need be ; the able-bodied man, not specially exempted, 
 is liable to be constable of his parish or to find a fit sub- 
 stitute ; but this statute seems as obsolete as the laws of 
 Ethelbert. We have been living very fast. 
 
 But though we have now a professional police force 
 and the old parish constabulaiy has vanished, still under 
 an Act of 1831 ^ there is a machinery for compelling 
 men to serve as special constables, and this we 
 ought to notice, as it might on occasion be employed. 
 On the oath of a credible witness that any riot or 
 felony has taken place, or may be reasonably appre- 
 hended, two justices can appoint as special constables 
 any persons resident in the neighbourhood who are not 
 exempt from serving the office of parish constable. A 
 Secretary of State can order that even the exempt shall 
 
 1 Statute, 1872, chap. 92. ^ Statute, 1831, chap. 41.
 
 108 JUSTICE AND POLICE. [«;h. 
 
 be made constables, and can himself direct that special 
 constables shall be appointed throughout the county. 
 To refuse to serve, or to disobey lawful orders, will 
 subject the appointed constable to a £5 fine. The 
 special constable will have the same powers, and enjoy 
 the same special protection that law gives to the ordinary 
 constable. 
 
 A full history of the new police would probably lay 
 its first scene in Ireland, and begin with the Dublin 
 Police Act passed by the Irish Parliament in 1786.^ 
 There were to be paid constables in Dublin endowed 
 with large new powers under the orders of three " com- 
 missioners of police." In 1787 another act was passed 
 for Ireland in general, and thenceforward there was 
 legislation which in the end established a " Royal Irish 
 Constabulary." What was called the Middlesex Justices 
 Bill of 1792 was a copy in faint colours of the Dublin 
 measure.2 The paid "justices" at each of the seven 
 "public ofiices " were to appoint six paid constables; the 
 maximum wage was 12s. a week. ISTumbers and wages 
 increase ; in 1802 there are eight constables at 16s. ; in 
 1811 there are twelve at a guinea ; in 1813 the Home 
 Secretary settles the wages ; in 1821 the number is to 
 be "sufficient." Other paid officers there are, "the 
 horse patrole," the parish watchmen, all tending to come 
 more under the control of the new justices (police 
 magistrates) and of the Home Secretary. 
 
 In 1829 a new Metropolitan Police force is created, 3 
 
 ^ Irish Stat., 26 Geo. III., c. 24. SeeFroude, English in Ireland, 
 B. vii. c. 2. 
 
 ^ See above, p. 99. 
 
 ^ It is, I suppose, unnecessary to explain why the policeman is a 
 bobby and a peeler.
 
 X.] THE CONSTABULARY. 109 
 
 and it has become expedient " to constitute an office of 
 police, which, acting under the immediate authority of 
 one of His Majesty's principal Secretaries of State, shall 
 direct and control the whole of such new system of 
 police." Two persons are to be appointed to execute the 
 duties of a justice of the peace at the said office. Ten 
 years later and these two justices have become " Com- 
 missioners"; in 1856 these two Commissioners give way 
 to one Commissioner and two Assistant Commissioners, 
 ruling a Metropolitan Police District which has grown 
 rapidly since it was first formed, but a disti'ict in which 
 the city of London is an exempt island. 
 
 That city did not lag long behind ; an Act of 1839 
 created for it a constabulary of the new type, but put 
 the force very much under the control of the civic cor- 
 poration. Meanwhile occasion had been taken of the 
 great municipal reform to insist that each new-fashioned 
 borough should have a body of paid constables governed 
 by a committee of the town council. In 1839 a per- 
 missive Act enabled justices at Quarter Sessions to create 
 a paid county constabulary. Then there was a long 
 struggle ; some counties did, some did not adopt the Act ; 
 many maintained to the last that the new force was 
 unnecessary. This time of hesitation was ended by a 
 statute of 1856 ; in all counties which had not yet 
 availed themselves of the old Act a new constabulary 
 was to be created next winter. Thus was England 
 policed. On the Home Secretary's certificate that during 
 the past year a county or borough force efficient in 
 number and discipline had been maintained, a sum not 
 exceeding a quarter of the cost of paying and clothing 
 the constables was, if the Treasury thought fit, to be borne 
 by the nation, while the residue would fall on the county
 
 110 JUSTICE AND POLICE. [cir. 
 
 or borough. In 1875 the restriction which limited this 
 Treasury subvention to a certain fraction of the cost was 
 suspended for a year ; yearly since then it has been 
 suspended for another year ; in fact the Treasury now 
 pays half the cost.^ To carry out this plan of aiding out 
 of national funds those places which maintained efficient 
 constabularies, three Royal Inspectors were appointed 
 who yearly review the covinty and borough establish- 
 ments, men, police stations, and so forth, and report 
 thereon to the Home Secretary. 
 
 Thus the police forces of England are (1) the metro- 
 politan force, (2) county forces, (3) borough forces, (4) 
 the city of London force ; ^ the last we must pass 
 by ; the general constitution of the others should be 
 noted. 
 
 (1) The territory of the metropolitan force is in area 
 but a small part of England, still it has for its share 
 more than a sixth of the whole population, a quarter of 
 the crimes, a third of the policemen. ^ Now here there 
 
 ^ For the year ending Michaelmas, 1883, £1,322,526 was paid 
 from national revenue. The total charge of the police was £3, 367, 678, 
 which, however, includes many items besides pay and clothing of 
 constables. The City of London enjoying an honourable independence 
 receives nothing from the public purse. 
 
 ^ In 1882-3, the numbers of the men in these several forces were : 
 (1) 12,663, (2) 11,255, (3) 9,685, (4) 885 ; total, 34,488. Population 
 (last census), 25,974,439. 
 
 3 The Metropolitan Police District includes, I believe, every parish 
 (save the city) of which any part is within twelve miles of, or of 
 which no part is distant more than fifteen miles from. Charing Cross. 
 It must not be confused with (1) the aggregate of districts assigned 
 to the metropolitan police courts, (2) the district of the Central 
 Criminal Court, (3) the area subjected to the Metropolitan Board 
 of Works. This police force has the charge also of certain royal dock- 
 yards remote from London, Woolwich, Portsmouth, Devonport, 
 Chatham, Pembroke.
 
 X.] THE COKSTABULARY. Ill 
 
 is perfect centralization, no " local authority " has any- 
 thing to do witli the system. A Commissioner and two 
 Assistant Commissioners holding office during the Queen's 
 pleasure regulate and command, appoint and dismiss the 
 constables, but a supreme supervisory control is given to 
 the Home Secretary, What is more, the peculiar cir- 
 cumstances of modern London have made necessary the 
 subjection of this huge town to a police regimen such as 
 exists in no other part of England. The Metropolitan 
 Commissioner can make orders and regulations not only 
 for his force but also for the public. He has liberal 
 statutory powers for regulating street traffic, for licensing 
 cabs, and so forth. For other towns similar, though less 
 extensive, powers can be exercised, but they are en- 
 trusted to the town council or to an elected board and 
 not to the commander of the police force. Schemes for 
 giving the Metropolis a municipal constitution are now 
 under discussion, but it seems improbable that the new 
 corporation will be endowed with the powers of the 
 commissioner ; he has become very necessary to us. 
 
 (2) Over a county.force the justices in Quarter Sessions 
 have a considerable authority. They determined in the 
 first instance the number of the constables to be em- 
 ployed, and it is they who, with the consent of the 
 Home Secretary, can increase or diminish that number. 
 They also with his approval appoint a Chief Constable, 
 whom they can dismiss. This Chief Constable has the 
 general disposition and government of the constables, 
 subject to the lawful oi-ders of Quarter Sessions and the 
 Home Office regulations. It is for him with the approval 
 of Petty Sessions to appoint, and it is for him at his 
 pleasure to dismiss his subordinates. But the whole 
 establishment is subjected to the general rules for the
 
 112 JUSTICE AND POLICE. [cH. 
 
 government, pay and clothing of the constables which 
 the Home Secretary can make from time to time, and 
 this central control is brought home to the county by 
 the Royal Inspectors, on whose report will depend the 
 receipt of a Treasm-y subvention. ^ 
 
 (3) A municipal borough may if it pleases maintain 
 its own police force, but if it has less than 5,000 in- 
 habitants and takes this course, it will do so at its own 
 expense, the Treasury can give no aid. Or again, its 
 Council may agree with the county 'justices for a con- 
 solidation of forces, and the consolidated force will be 
 commanded by the county's Chief Constable. Some con- 
 siderable towns are content to be thus " policed by the 
 county," and, on the other hand, some petty places prefer 
 to " police themselves." ^ The Town Council from 
 time to time appoints some (not more than a third) of 
 its members to form with the mayor a ''watch com- 
 mittee," which can act by a majority of those present 
 at its meetings, provided there be three present. This 
 committee appoints, dismisses, governs the constables. 
 The chief officer of a borough force is called Head (not 
 chief) Constable, but he is not so independent of the 
 
 ^ County forces there are 59 ; geography-book-counties, 52 ; 
 deduct Middlesex, which is wholly within the metropolitan district, 
 count Yorkshire for 3, Lincolnshire for 3, Sussex for 2, Suffolk 
 for 2, and add Isle of Ely and Soke of Peterborough. In Rutland 
 the chief constable commands 13 men, in Lancashire, 1,300. 
 
 2 There are 164 borough forces or thereabouts, ranging in strength 
 from the 900 men of Liverpool to the 1 man apiece of sundry small 
 towns. Here is another distinction among boroughs which I think 
 cuts all those mentioned in the last chapter. Gloucester, with a 
 commission of the peace and quarter sessions, has no police force of 
 its own ; the Cornish St. Ives, without a commission of the peace, 
 polices, or lately policed, itself.
 
 X.] THE CONSTABULARY. 113 
 
 watch committee as the chief constable is of the county 
 justices.! 
 
 Though we have not then (perhaps Ave ought to add 
 " as yet ") one constabulary for the whole of England, 
 still a great deal has been done to fashion at least all 
 the larger constabularies on a single uniform model, a 
 model that may be called military, with regular grades 
 of subordination — superintendents, inspectors, sergeants, 
 constables, with promotion from the lower to the higher 
 ranks, a scheme of superannuation, and so forth, and 
 the command of these forces is mainly in the hands of 
 officers who have served in the army.^ But hitherto 
 the new institution has been successfully worked without 
 subjecting the constable to a special penal discipline at 
 all comparable to that to which soldiers are subject : 
 there is no coiu-t-martial for the policeman. A county 
 constable may be dismissed at the will of the Chief 
 Constable. The Chief Constable if he thinks one of his 
 men remiss or negligent in his duties can reduce him in 
 rank or fine him one week's pay. If he resigns or 
 withdraws from duty without a month's notice he 
 forfeits aiToars of pay, and on summary conviction 
 before justices can be fined £5 ; on a summary con- 
 viction for any neglect or violation of duty he can be 
 
 ^ A High Constable, again, belongs to an older order of tilings ; 
 he is becoming extinct. 
 
 2 As a fair specimen, take the "West Riding force : chief con- 
 stixble (£700 a year), deputy chief constable (£190), chief clerk 
 (£240), 21 superintendents (£150 to £190), 29 inspectors (£100 to 
 £109), 127 Serjeants (about 30s. to 34s. a week), 770 constables 
 (about 23s. to 29s. a week). In the internal organization of the 
 force, " constable " is the name for a man in the lowest rank ; but 
 generically all are constables, and a policeman's rank has very little 
 influence on his legal relation to the public. 
 
 I
 
 114 JUSTICE AND POLICE. [cir. 
 
 fined ,£10 or condemned to a month's hard labour; but 
 on the whole he has been left very much to the general 
 law, and if guilty of crime or minor offence can be 
 treated like another offender. 
 
 It has been the English policy to separate police 
 from politics, therefore the paid policeman, be he Chief 
 Constable or of the lowest rank, is subjected to political 
 disabilities. The county constable cannot vote for the 
 county or any adjoining county, or any borough therein, 
 and if he endeavours to influence the election by per- 
 suasion or dissuasion, he incurs a penalty of £20, to be 
 sued for by the common informer ; this is a good instance 
 of the way in which the "popular action" has been 
 used.^ Nor, again, can his name be placed in any jury 
 list. 
 
 Now hitherto the main office of the new constabulary 
 as of the old has been to quell disturbance and to bring 
 criminals and other offenders to justice, by arresting them 
 and carrying them before a magistrate for preliminary 
 examination or summary conviction, and of the power of 
 making arrests we speak in the next chapter. But 
 already Parliament has utilized this handy disciplined 
 force for many miscellaneous purposes more or less 
 directly connected with the prevention of offences. As 
 a grave instance we may take what is called " police 
 supervision." When a man is convicted a second time 
 of felony, or certain of the worst misdemeanours, in 
 addition to aU other punishment he can be sentenced to 
 be subject to the supervision of the police for seven 
 years after he comes out of prison. During that period 
 he wiU be bound to notify to the chief police officer of 
 the district every change of his abode, and monthly to 
 ^ See above, p. 18.
 
 X.] THE CONSTABULARY. 115 
 
 report liimself.^ A convict who has been liberated on a 
 ticket-of-leave has to do the same, and any failure to 
 perform this duty will have for him very serious penal 
 consequences. As a pettier instance we might note the 
 law's dealings with chimney sweepers. In order to 
 prevent the employment of children as climbing boys, 
 one who would carry on the trade of sweeping chimneys 
 must obtain a certificate from the chief police officer of 
 the district. This, however, is mere registration, for 
 the certificate cannot be denied ; but at least in one case 
 we have gone further. It is unlawful to follow the 
 calling of a pedlar without a licence. He who wishes to 
 be a pedlar goes to the chief police officer who, if satisfied 
 that the applicant is of good character, will grant the 
 licence ; in case of a refusal there may be an "appeal " 
 from this police decision to a Court of Summary Juris- 
 diction. Such an enactment as this shows that we are 
 beginning to understand the manifold conveniences of a 
 police bureau of the continental type ; but at present 
 we are still somewhat backward and prefer as licence 
 givers the two or more justices to the chief officer of 
 police. 
 
 In closer connection with the power of making arrests, 
 there stand some other powers of the constable. He is 
 the usual executant of the warrants which magistrates 
 grant wlien there is to be search for stolen goods or the 
 like ; under warrants similarly granted it is he that can 
 search the shops of pawnbrokers and old-metal dealers, 
 and there are now cases in which an authority in writing 
 from the chief police officer of the district will serve as 
 well as a magistrate's warrant. In the Metropolis, too, 
 the Police Commissioner can order a superintendent and 
 
 ^ In 1883, 1448 persons were sentenced to police supervision. 
 
 I 2
 
 116 JUSTICE AND POLICE. [CH. 
 
 constables to enter an unlicensed theatre and to take 
 into custody all persons who are there without lawfial 
 excuse. But without any warrant at all there are 
 visitations which a constable can make. To prevent or 
 detect certain violations of the Licensing Acts he may 
 enter any public house, for example.' If it occurs to 
 Parliament that steam threshing machines ai'e dangerous 
 things which ought to be fenced, then straightway "any 
 constable may at any time enter on any premises on 
 which he has reasonable cause to believe that a threshing 
 machine is being worked contrary to the provisions of 
 this Act for the purpose of inspecting such machine." ^ 
 But all this is yet new and exceptional ; a general 
 system of police supervision is not to be created in a 
 day. 
 
 But besides what he can do as constable, the modern 
 policeman can very often do many things because some 
 " local authority " has appointed him inspector under 
 one of those modern acts of parliament which subject 
 human affairs to authoritative inspection. Thus con- 
 cerning the police of Northumberland we read : ^ "The 
 superintendents are all appointed inspectors under the 
 following Acts : Weights and Measures, Food and Drugs, 
 Explosives, and Contagious Diseases (Animals), under 
 which last named Act, three inspectors, five sergeants, 
 and two constables are also appointed inspectors. One 
 sergeant is appointed inspector of cattle trucks on the 
 
 ^ An Act of 1872 (chap. 94, sec. 35) contained this sweeping 
 provision: "A constable may at all times enter any licensed pre- 
 mises, he may also examine every room and part of such premises, 
 and take an account of all intoxicating liquor stored therein." In 
 1874 this counsel of perfection was mitigated. 
 
 2 Statute, 1878, chap. 12. 
 
 ? Report of H.M. Inspectors of Constabulary, 1884, p. 175.
 
 X.] THE CONSTABULARY. 117 
 
 various railways within the county. The police also act 
 in part as inspectors of common lodging-houses, and in 
 relief of tramps." In most or all of these cases the 
 " local authority " is free to employ as inspectors any 
 fit persons, but finds that policemen are the fittest, so 
 the policeman when making an inspection will be acting 
 as appointed inspector and not as constable, a distinction 
 which the inspectees (if we may coin a word) may 
 perhaps think important, perhaps not. In truth, the 
 very large inspectorial powers given by this statute and 
 by that are becoming consolidated in the hands of the 
 police.
 
 CHAPTER XI. 
 
 ARREST-r MAGISTERIAL EXAMI NATION — SUMMARY 
 JURISDICTION. 
 
 Now touching the arrest of offenders some dis- 
 tinctions must be taken. The arrest is made with or 
 without a magistrate's warrant ; it is made for felony 
 or some other oiience ; it is made by a private person, 
 or by a constable or other peace officer.^ An illegal 
 arrest is of course a serious matter ; therefore we will 
 first take a statement of the common (non-statutory) 
 law from Mr. Justice Stephen's History : — 
 
 " 1 . Any person may aiTest any person who is actually committing 
 or has actually committed any felony. 
 
 " 2. Any person may arrest any person whom he suspects on 
 reasonable grounds to have committed any felony, if a felony has 
 actually been committed. 
 
 "3. Any constable may arrest any person whom he suspects 
 on reasonable grounds of having committed any felony, whether in 
 fact any such felony has been committed or not. 
 
 ■^ It seems probable that justices, sheriffs, and coroners, have at 
 least some of the special powers of constables, but there is little 
 modern authority on the topic, since it is not now considered one 
 of their regular duties to seek out and arrest offenders.
 
 CH. XI.] ARREST. 119 
 
 " The common law did not authorise the arrest of persons guilty 
 or suspected of misdemeanours, except in cases of an actual breach 
 of the peace eitlier by an affray or by violence to an individual. In 
 such cases, the arrest had to be made not so much for the purpose 
 of bringing the offender to justice as in order to preserve the peace, 
 and the right to arrest was accordingly limited to cases in which the 
 person to be arrested was taken in the fact, or immediately after its 
 commission." ^ 
 
 The distinction between the power of the private man 
 and that of the constable is so impoi-tant that a second 
 statement may be welcome : " Under the common law, if 
 a felony were actually committed, a person might be 
 arrested without a warrant by any one, if he were 
 reasonably suspected of having committed the felony ; 
 and a constable could go further : if he had reasonable 
 ground for supposing that a felony had been committed, 
 and reasonable ground for supposing that a certain 
 person had committed the supposed felony, he might 
 arrest him, though no felony had actually been 
 committed." - 
 
 But on this basis of common law an elaborate super- 
 structure has been raised by modern statutes, which 
 have largely extended the power of summary arrest 
 allowed to the private man, and still more largely the 
 power of the constable. Any person may now, without 
 warrant, arrest any pei'son whom he finds committing 
 any crime at night, and may arrest at any time any per- 
 son whom he finds committing any one of several great 
 classes of crime. One of these classes comprehends the 
 various forms of theft and crimes cognate to theft, another 
 
 ^ Stephen, Hist. Crim. Line, Vol. I., p. 193. 
 " Mr. Justice Blackburn, Law RcjmHs, Queen's Bench, Vol. I., 
 p. 456.
 
 120 JUSTICE AND POLICE. [ch. 
 
 coinage offences, and there are others. Some of these 
 crimes are felonies, some misdemeanours ; but the power 
 thus given by statute is not a power to arrest on suspi- 
 cion or even on certain knowledge that a crime has been 
 committed ; it only exists when a person is " found 
 committing " the crime. Again, to constables statutes 
 have given powers of summarily arresting persons found 
 committing any of many other offences some of which 
 are not (in our sense) ^ crimes, especially what are 
 called " street offences." Within the Metropolitan 
 Police District there prevails a special code which 
 denounces small punishments against various petty 
 nuisances committed in the open street, riding on the 
 footway, beating carpets, throwing things out of 
 window, leaving cellar-traps open, and so forth ; and 
 a somewhat similar code prevails in every "urban 
 district." ^ Persons who are found committing these 
 street offences a constable can arrest without warrant, 
 if he cannot ascertain their names and residences. 
 Divers acts of cruelty to animals are offences punish- 
 able on summary conviction, and a constable may 
 arrest for these without warrant if he sees them, or is 
 informed of them by a person who gives his name and 
 abode. So the man who is drunk and disorderly in a 
 public place may be arrested. Indeed, the catalogue 
 of offences for which a constable may take one into 
 custody flagrante delicto is long. Then again (more 
 particularly within the Metropolitan District) constables 
 have certain powers of apprehending those who, in 
 
 ^ See above, p. 16. 
 
 - This includes the municipal boroughs and some other 
 places. See Citizen Series, Chalmers, Local Government, p. 
 109.
 
 XI.] ARREST. 121 
 
 certain suspicious circumstances, are apparently about 
 to commit crimes. 
 
 The outline of these statutory powers is irregular and 
 not to be briefly defined. A power of immediate arrest 
 is requisite for the punishment of some small offences, 
 and not nearly so requisite in the case of some grave 
 crimes. If a man is " wanted " for bigamy (which is 
 a felony), perjury, bribery, or the like, there is no great 
 need for arresting him without warrant, but there is 
 little chance of punishing street offences unless the 
 offender can be apprehended on the spot. 
 
 When no arrest has been made, and it is desired that 
 a person accused of crime shall be committed for trial, 
 then an information must be laid before a justice, who 
 will issue a summons against that person, or a warrant 
 for his apprehension. The information is a statement 
 that he has committed, or is suspected of having com- 
 mitted, the crime, and if, as is most usual, a warrant 
 is to be issued without any previous summons, the 
 information must be in writing and sworn. A summons 
 will contain a brief statement of the accusation, and an 
 order requiring the accused to appear at a given time 
 and place. It must be served upon him personally, or, 
 if he cannot conveniently be met with, left with some 
 person at his last or usual abode. If he fails to appear, 
 a warrant can be issued for his apprehension ; but, as 
 already said, the justice having a sworn information 
 before him can, if he thinks fit, issue a warrant in the 
 first instance, and generally does so. The warrant must 
 state the substance of the charge, and must name or 
 describe the person to be arrested, and will order some 
 constable, or other person named in it, or generally the 
 constables of the area over which the magistrate's com-
 
 122 JUSTICE AND POLICE. [ch. 
 
 mission extends, to appx^ehend the accused. Teiritorially 
 the magistrate has power to cause his arrest, if either 
 he be resident within that area, or (according to the 
 information) the crime was committed within that area ; 
 but if the arrest is to be made elsewhere, then, as a 
 rule, the warrant must be backed ^ by some magistrate 
 commissioned for the place where the arrest is to be 
 made. The apprehending constable must have with 
 him the warrant, and show it if required. Unless there 
 is some grave and apparent irregularity the constable 
 must obey the warrant, and in so doing will have the 
 law on his side. 
 
 A police constable enjoys some special protection ; for 
 assaulting him when in the execution of his duty one 
 may be punished summarily by a £20 fine or six months 
 imprisonment, which is a severer sentence than can be 
 passed after a summary conviction for a common assault 
 on a private man ; while to assault any person with 
 intent to resist lawful apprehension is a serious in- 
 dictable crime. But the law expects of bystanders 
 more than benevolent neutrality ; it expects them to 
 assist a constable who in making an arrest calls for 
 their aid, and it will punish them if they refuse assistance. 
 
 Thus far as to the means for compelling the apj)ear- 
 ance of one who is charged with a crime. If it is 
 desired to bring before a Coiu't of Summary Jurisdiction 
 one who has been guilty of a minor offence and who is 
 not in custody, the process is much the same. An 
 information is laid before a magistrate whose com- 
 mission extends over the place where the deed was 
 done, and he, unless the charge seems groundless, issues 
 a summons, or, if he thinks fit and the information is 
 ^ See above, p. 8,
 
 XI.] ARREST. 123 
 
 verified by oath, a warrant. In most cases only a 
 summons is issued in the first instance, and if this 
 fails a warrant is granted. 
 
 The object of an arrest should, in all cases, be merely 
 to bring the person apprehended before a magistrate as 
 soon as may be, and any unnecessary delay or use of 
 excessive force will be dangerous to the person guilty 
 of it. In case of an arrest without warrant for one of 
 the minor offences, if it will not be practicable to bring 
 the arrested person before a Court of Summary Juris- 
 diction within twenty-four hours, a superintendent or 
 inspector of police, or other officer in charge of a police 
 station, must inquire into the case and, unless the 
 ofEence seems serious, discharge the accused on his 
 giving reasonable security for his appearance in 
 court. 
 
 It has been convenient thus far to make little dis- 
 tinction between crimes and offences which can be 
 summarily punished, but the purpose for which an 
 accused person is compelled to appear is not the same 
 in both cases. If charged with a crime that cannot be 
 summarily punished, the object is that a justice shall 
 make bvit a preliminary examination of the case, and 
 if there seems good ground for further proceedings, 
 commit the accused to prison or take bail for his 
 appearance, so that in one way or the other he will be 
 forthcoming for trial at a future day ; if charged with 
 a minor offence, then the object is that he shall at once 
 be tried by a Court of Summary Jurisdiction. But in 
 some instances, when the accused comes before the 
 magistrate it cannot be known whether there will be 
 a summary conviction or a commitment for trial. In 
 certain circumstances justices of the peace can now deal
 
 124 JUSTICE AND POLICE. [CH. 
 
 finally with certain indictable crimes. This is yet new, 
 the result of changes in the law made in our own day. 
 If a " child " — that is, a person who seems to be under 
 the age of twelve — is charged with any crime save 
 homicide, the court may, with the consent of the parent 
 or guardian, try the case summarily instead of sending 
 it for trial by jury, but can impose no longer imprison- 
 ment than a month's, no heavier fine than forty shillings. 
 If a "young person " — that is, one apparently between 
 the ages of twelve and sixteen — is charged with certain 
 crimes which may generically be called thefts,^ the court 
 may, with his consent, proceed to try him summarily, 
 and the maximum punishment is here three months' 
 imprisonment with hard labour, or a £10 fine. If an 
 " adult " is charged with theft to an amount not 
 exceeding forty shillings, he may, with his consent, be 
 summarily tried ; while, if he pleads guilty to theft, no 
 matter how much be stolen, the court may, if it thinks 
 fit, sentence him, but six months hard labour is the 
 heaviest punishment at its command. A serious case 
 of theft would not thus be adequately punished, and 
 Would be sent for trial to Quarter Sessions. So, on the 
 other hand, there are a considerable number of offences 
 for which a Court of Summary Jurisdiction has been 
 empowered to awai'd imprisonment for more than three 
 months, and these were not indictable offences, but 
 new power has been given to the accused to make 
 them indictable if he pleases. If charged with such an 
 offence the magistrate will, at the outset, ask him 
 whether he will take a summary trial, and if he refuses, 
 
 ^ This is meant to include embezzlements, receipt of stolen goods, 
 attempts to steal.
 
 XI.] SUMMARY JUEISDICTIOX. 125 
 
 then, after preliminary examination, he can be com- 
 mitted to take his trial before a jury.^ In all these 
 cases magistrates are required to explain the nature of 
 the choice which the law has given to the accused. If 
 there is to be a summary trial, then, save for very petty 
 cases, there must be a Petty Sessional Court,^ and the 
 indictable offences can only be summarily tried on a 
 day appointed for the purpose of which public notice 
 has been given. 
 
 We can now take our last glance at summary penal 
 justice, and then turn to the more elaborate criminal 
 procedure. 
 
 The province of this summary justice is indeed varie- 
 gated, as may be guessed when we say that of the eighty- 
 two departments into wliich for statistical piu-poses it is 
 divided, the largest is " drunkenness, and drunk and 
 disorderly" (with 193,000 cases a year), while next 
 comes " offences against the Elementary Education 
 Acts" (97,000); then "common assault" (67,000), 
 then " offences against local acts and borovigh bye- 
 laws" (47,000), then "simple larceny" (38,000).3 At 
 the one end of the scale there are what would commonly 
 be called the smaller crimes, assaults, thefts, malicious in- 
 jviries to property ; at the other the mere disobediences to 
 statutory rules framed to secure some public good, such 
 as health, education, the well-being of factory childi'en, 
 a revenue from excise and customs, or the like ; and 
 between these poles there lie the breaches of good order 
 
 ^ But this does not apply to assaults ; for these one may some- 
 times get more than three months' imprisonment without the choice 
 of trial by jury. 
 
 ^ See above, p. 89. 
 
 3 Judicial Statistics, 1883 ; these are the round numbers.
 
 126 JUSTICE AND TOLICE. , [ch 
 
 such as disoi'derly cli-uukenness and vagabondage in its 
 various forms, the " street offences," the pettier kinds 
 of dishonesty — adulteration, the use of false weights, 
 cruelty to animals, some electoral malpractices, and many 
 other particulars not to be classified. The whole is the 
 outcome of statute ; legislation has been minute, and the 
 offender must be brought within the very words of some 
 particular clause, for the Common Law knows nothing 
 of this summary jurisdiction. Rather more than 725,000 
 cases are yearly determined : it would be prudent to bet 
 four to one, imprudent to bet five to one on a conviction. 
 More than 400,000 fines are inflicted, and more than 
 80,000 imprisonments, about half of which do not 
 endure for more than fourteen days, very few for 
 more than three months, and about one in 1,000 for 
 more than six months. In a few of the worst cases 
 the covu-t can pass no sentence but one of imprisonment, 
 with or without hard labour; in many cases it has a 
 choice between fine and imprisonment ; in many others 
 it can in the fii-st instance only impose a fine. As a 
 general rule the statutes only fix a maximum punish- 
 ment, and a liberal power of awarding less is left to the 
 court. The maximum fine or money penalty varies 
 gi'eatly from case to case, from the five shillings for 
 the breach of a school board bye-law, to the ten shillings 
 for being found drunk in the highway, and the favourite 
 forty shillings up to the heavy penalties by which revenue 
 law protects itself. Then again, if the penalty be not 
 at once paid the court can in some cases at once commit 
 the delinquent to prison for a certain time, but the 
 imprisonment will come to an end when the fine and 
 costs are paid ; in other cases the first process for obtain- 
 ing payment will be a distress, that is, a seizure and sale
 
 XI.] SUMMARY JURISDICTION. 127 
 
 of goods, and if goods enough cannot be found then there 
 will be imprisonment. The moneys thus raised go some- 
 times to the Crown, sometimes to the police superannua- 
 tion fund, occasionally to the person who has suffered 
 harm, generally to the treasury of the county to 
 which the Court of Summary Jurisdiction belongs. The 
 court can order a convicted defendant to pay the 
 prosecutor his reasonable costs, and can make a similar 
 order against the prosecutor and for the defendant if the 
 charge be dismissed. 
 
 Between the crimes and the minor offences there is 
 this great difference. According to our law a man may 
 be indicted no matter how long a time has passed since 
 the supposed crime was committed ; there are some ex- 
 ceptions to the rule, but they are few ; on the other 
 hand, Parliament in creating offences which are to be 
 summarily tried has generally fixed some time longer or 
 shorter within which proceedings must be begun, and 
 now we have this general rule that if no other period 
 be fixed then no information can be laid but within six 
 months after the offence was committed. 
 
 In these cases the procedure is called "summary," 
 but we must not be misled by the word. There is a full 
 trial in open coiu-t conducted according to the general 
 principles of English justice. There is a process for 
 compelling the attendance of witnesses on behalf of 
 either party, for arresting such witnesses if need be, for 
 committing them to prison if they refuse to testify. 
 Either party may conduct his own case or be heard by 
 his solicitor or counsel. The elaborate rules of evidence 
 in force in the higher courts are in force here also ; the 
 witnesses are sworn, examined, cross-examined, and will 
 commit perju.ry if they swear to a lie. In general the
 
 128 JUSTICE AXD POLICE, [en. 
 
 defendant can give no evidence, but exceptions to this 
 rule are on the increase and very likely will spread from 
 the sphere of minor offences to that of crimes. There 
 is power to convict a person who, having been duly 
 summoned, does not appear ; but this is sparingly exer- 
 cised, it is deemed better to order his arrest, and if he 
 cannot be arrested then there is little use in con-\'icting 
 him. In case he is sentenced to imprisonment Avithout 
 option of a fine, and in many other cases also, he can 
 appeal to Quarter Sessions, and the whole matter, fact 
 and law, may be reopened ; or again, any person aggrieved 
 may bring a qviestion of law before the High Court 
 where it will be heard by at least two judges ; this is 
 done by requiring the justices to " state a special case," 
 i.e. to set out the facts as found by them ; if they decline 
 (as they may if they think the appeal frivolous), then he 
 can apply to the High Court for an order directing them 
 to state the case.^ 
 
 How vital a part of the English system the summary 
 determination of cases that are truly criminal has be- 
 come may best be shown by figures. In 1883, about 
 14,000 persons were tried for crime before a jury, while 
 the number of summary convictions for the one offence of 
 simple larceny was above 27,000 ; the number of persons 
 convicted by juries did not amount to 12,000, while more 
 than 19,000 sentences of imprisonment for a longer period 
 than a month were passed by magistrates without any 
 
 ^ In 1883 there were but 157 appeals to Quarter Sessions (40 
 of these from bastardy orders), and some 40 special cases were 
 argued in the High Court. The case is heard by " a divisional 
 court." If the proceedings are "criminal proceedings " within the 
 largest sense of that phrase (and such they generally are) there is no 
 further appeal to the Court of Appeal.
 
 XI.] MAGISTERIAL EXAMINATIOK". 129 
 
 trial by jury. No apology, therefore, should be expected 
 of us for having devoted much of our small space to the 
 summary jurisdiction : we have been turning towards 
 the rising sun. 
 
 And now suppose that a person accused of a crime is 
 brought before the magistrate, and that a summary 
 trial is out of the question. The object of the exam- 
 ination which takes place is to see whether there is such 
 evidence against him as raises " a strong or probable 
 presumption " of his guilt ; if, in the magistrate's 
 opinion there is not, then he will be discharged from 
 custody, otherwise he will be committed or bailed for 
 trial. This preliminary examination of accused persons 
 has gradually assumed a very judicial form ; it is in 
 effect a preliminary trial. The place in which it is 
 held is indeed no " open court," the public can be 
 excluded if the magistrate thinks that the ends of 
 justice will thus be best answered; but any use of 
 this power of exclusion is uncommon. There is com- 
 pulsory process for securing the attendance of witnesses 
 both for and against the accused. A witness gives his 
 evidence on oath and is liable to cross-examination, for 
 which purpose solicitors and counsel are often employed. 
 The evidence for the prosecution is first given, and then 
 the magistrate — unless he at once dismisses the charge 
 — addresses the accused in some such words as these : 
 "Having heard the evidence, do you wish to say any- 
 thing in answer to the charge ? You are not obliged to 
 say anything unless you desire to do so ; but whatever 
 you say will be taken down in writing, and may be 
 given in evidence against you upon your trial." After 
 this (" the usual caution " of our police reports), the 
 accused can make his statement and call witnesses to 
 
 K
 
 130 JUSTICE AXD POLICE. [cii. 
 
 prove liis innocence, and then it will be for the magis- 
 trate to say whether the case is to be dismissed or sent 
 for trial. 
 
 If not discharged the accused will be committed to 
 prison or bailed so that he may stand his trial at 
 Quarter Sessions, Assizes, or Central Criminal Court, in 
 case an indictment is there found against him. When 
 a person is said to be hailed this means that he and some 
 surety or sureties have entered into a recognizance, have 
 been hound over, for his appearance at the trial. When 
 a pei'son enters into a recognizance he acknowledges that 
 he will owe the Queen a specified sum in case something 
 be done or not done. A man may thus be bound over 
 to keep the peace, to be of good behaviour, to be forth- 
 coming at a trial, or the like. Thus, if he be bailed for 
 ti'ial and does not appear, there will be a stringent 
 process for enforcing the debt that has become due to 
 the Crown against him and his sureties, the persons 
 who are his hail, who have given hail or gone hail for 
 him.i The question, " gaol or bail 1 " is generally for 
 the magistrate's discretion. In case of treason he 
 cannot allow bail without an order from a Secretary 
 of State or the High Court. In case of felony, or any 
 one of many misdemeanours specified by statute, he can 
 allow bail if he thinks fit. In case of the unspecified 
 
 ^ The word lias been twisted. To start • with, to hail means 
 to commit a thing to a person, to entrust a person with a 
 thing. In the language of our law, if A lends B a chattel, or 
 deposits a chattel with B for safe custody or the like, A 
 bails the thing to B. A is the bailor, B the bailee, there is a 
 bailm,ent. So, in strictness, it is the magistrate who bails the 
 ascused to his sureties for safe custody, and if the sureties fear that 
 the accused will not be forthcoming, they can arrest him and deliver 
 him to prison
 
 XI.] MAGISTEEIAL EXAMINATION. 131 
 
 misdemeanours he must allow bail. Among the speci- 
 fied misdemeanours are perjury, obtaining by false 
 pretences, riot, assault on a peace officer. Libel is an 
 example of the offences for which bail must be allowed. 
 It is for the magistrate, however, to decide on the 
 amount of the bail to be demanded, and the sufficiency 
 of any proposed surety ; but the Bill of Rights 
 vaguely prohibits a demand for "excessive" bail. 
 The taking of bail, as will be seen below, is be- 
 coming uncommon ; railways and steamships and 
 large towns are making it imprudent. While the 
 examination is proceeding the magistrate has a similar 
 discretion to exercise, for he can from time to time 
 i-emand the accused for further examination and oixler 
 that he be detained in custody during the interval, or 
 suiSer him to be at large having entered into a reeogni 
 zance with or without sureties for his further appear- 
 ance ; but the interval may not exceed eight days. One 
 who thinks himself nnlawfully imprisoned can question 
 the legality of his detention by means of the wi-it called 
 habeas corpus. 
 
 The habeas corjius belongs to the class of prerogative 
 writs whereby, from an early time, the King's Court 
 exercised its supreme control over all the justice of the 
 realm. He who as sheriff, gaoler, or otherwise, was 
 detaining another in prison might by the writ be com- 
 manded to have the body of that other before the King's 
 Court to undergo and receive whatever that court should 
 award in his behalf. It became a summary remedy for 
 those unlawfully imprisoned, and in course of time a 
 protection for the subject against an illegal detention 
 even under the special command of the King himself. 
 That despite such command the writ should be granted, 
 
 K 2
 
 132 JUSTICE AND POLICE. [ch. 
 
 that such command should be no sufficient answer to 
 the writ, that the writ should issue promptly and be 
 punctually obeyed, these were the objects of famous 
 struggles in the seventeenth century. Nowadays, 
 there is not much reason to fear that any one will 
 be imprisoned in a purely arbitrary way, but an appli- 
 cation for this -^Tit is still the ready mode for bringing 
 before the High Court the question whether or no an 
 imprisonment is lawful. 
 
 The great purpose that is served by the magisterial 
 examination in criminal cases may be best seen from 
 figures. During 1883 the number of persons arrested 
 for crime and not summaiily tried was 20,450. Of 
 these 5,192 were discharged by the magistrates ; 13,745 
 were committed to prison for trial ; only 1,331 were 
 bailed for trial ; 39 were committed to prison for want 
 of sureties ; 143 were on bail for further examination 
 when the statistics were made up. Much, then, is 
 done by this preliminary investigation towards filtering 
 innocence from guilt. If a man is sent to trial by 
 a magistrate it is highly probable that he will be 
 convicted. 
 
 The magisterial examination serves other purposes 
 also. The evidence given by the witnesses is taken 
 down in writing, and these " depositions " are signed 
 by the witnesses and by the magistrate. Use can 
 thereafter be made of them in divers ways, both by 
 the prosecuting party and by the accused, who is 
 entitled to have a copy of them. 
 
 " The perpetuation of testimony is, no doubt, one of the various 
 great incidental advantages arising from the provisions of the 
 statutes relating to the duties of justices in these matters. In the 
 first place, those who have to frame the indictment have the
 
 XI.] MAGISTERIAL EXAMINATION. 133 
 
 advantage of seeing the whole of the evidence on the depositions, and 
 of being able to adapt the indictment to it. The judge also is 
 enabled to make himself acquainted with the facts before the trial. 
 Again, if there is any discrepancy between the deposition of a 
 witness and his statement at the trial, this may afford substantial 
 grounds for shaking his evidence. Lastly, if a witness dies, or is 
 too ill to attend, his testimony is perpetuated." ^ 
 
 But it should be understood that only in quite rare 
 cases can these depositions be read as evidence at the 
 trial ; this can be done when it has first been proved 
 that the deponent is dead or too ill to travel, or is being 
 kept out of the way by the other side ; but a deponent 
 who is called as a witness may be confronted with his 
 previous testimony in case he contradicts it. One of 
 the objects of the preliminary examination is to compel 
 those who are able to give testimony for or against the 
 accused to appear as witnesses at the trial ; and this 
 is done by " binding them over " to give evidence, tliat 
 is, compelling them to enter into recognizances, so that 
 if they are not forthcoming they will be debtors to the 
 Crown. 
 
 There is one other form of preliminary investigation, 
 namely, the coroner's inquest, but of this much has 
 been said in another book of this series that we need 
 not repeat,^ and the matter is hardly of first importance. 
 It is the duty of a coroner to hold an inquest if he has 
 reason to believe that any person has come to his death 
 by any foul play, or that he has died suddenly from 
 
 ^ From a judgment of Chief-Justice Cockburn, Law RcimHs, 
 Queen's Bench Division, Vol. V., p. 7. 
 
 " Chalmers, Local Govenwncnt, pp. 95-98, and for the borouglt 
 coroner, see pp. 80, 81.
 
 134 JUSTICE AND POLICE. [ch. 
 
 some unknown cause, or if lie has died in prison ; and 
 there are special provisions for bringing to the coroner's 
 notice deaths in lunatic asylums and baby-farms. The 
 inquest is held with a jury, which must consist of twelve 
 or more — ^twelve must agree before there can be a 
 verdict, but, subject to this rule, the opinion of the 
 majority prevails. The coroner has power to compel 
 the attendance of witnesses ; evidence is given upon 
 oath. It is usual to allow counsel or solicitors repre- 
 senting the family of the dead man, or any person who 
 is under suspicion, to cross-examine the witnesses and 
 address the jury. When there is a verdict of murder 
 or of manslaughter, the coroner can bind over the 
 witnesses to give evidence at the trial, and he will send 
 their dejiositions to the coiu't before which the trial will 
 take place. The inquest may be useful for other pur- 
 poses, but the main legal power that it has is that of 
 finding a verdict of murder or manslaughter against 
 some person. Then the coroner ought to issue a warrant 
 for that person's apprehension and commit him to prison ; 
 in case of manslaughter he can take bail. This verdict 
 is equivalent to an indictment, and the accused can be 
 put on his trial before a petty jury without any pro- 
 ceedings before a grand jury. As a matter of fact, 
 however, this is seldom, if ever, done. In general a 
 murderer, before he comes to the gallows, will have 
 against him (1) the decision of a magistrate that there 
 is probable cause for putting him on his trial ; (2) the 
 verdict of a coroner's jury; (3) a bill of indictment found 
 by a grand jury ; (4) the verdict of a petty jury : but 
 it should be understood that either the second and 
 fourth, or the third and fourth of these are all that 
 is essential. The investigation before a magistrate is
 
 XI.] MAGISTERIAL EXAMINATION. 135 
 
 not essential, and a man may well be hanged though 
 there has been no coroner's inquest.' 
 
 ^ As to official inquiries into the causes of railway accidents, 
 explosions, &c., see Citizen Series, Farrer, The State and Trade, 
 p. 156. Possibly such inquiries will in time supersede the coroner's 
 inquest, but they have no legal result ; they merely obtain infor- 
 mation which may, or may not, lead to a prosecution ; witnesses 
 however can be compelled to attend and give evidence on oath.
 
 CHAPTER XII. 
 
 PROSECUTION. 
 
 The arrest of the person suspected of crime, his 
 examination before a magistrate, his commitment to 
 prison or release on bail, though usual, are not necessary 
 steps in our criminal procedure. A prosecution may 
 begin with an indictment, or with a criminal informa- 
 tion, or, in case of murder or manslaughter, with 
 a coroner s inquisition ; unless and until there is one 
 of these a man cannot be put upon his trial before 
 a petty jury. Of the coroner's inquisition enough has 
 been said, and the criminal information shall be noticed 
 hereafter ; ^ so we turn to the indictment, which is by 
 far the most common means of bringing a criminal to 
 trial by jury. It has an ancient origin. From the twelfth 
 century onwards the King's judges were sent through 
 the country to inquire, by the oath of good and lawful 
 men of the neighbourhood, concerning crimes committed 
 within that neighboui-hood. The representatives of the 
 neighbourhood became, in coin-se of time, what we know 
 as the grand jury, and their sworn accusations were 
 known as presentments or indictments. The grand 
 jurors were accusers who pledged their oaths to the 
 truth of their accusation, and to this day an indictment 
 ^ See below, p. 143,
 
 CH. XII.] PROSECUTIOK". 137 
 
 is in form an accusation made by the gi\\nd jurors. 
 "The jurors for ovir lady the Queen upon their oaths 
 say " that (to curtail the story), on such a day and at 
 such a place, John feloniously and of his malice afore- 
 thought did kill and murder Peter, against the peace of 
 our said lady the Queen, her crown and dignity. The 
 grand jui'ors still have it in their power to indict a man, 
 although no one else has made, or is making, any charge 
 against him ; but, as a matter of fact, this is not now 
 done. Some one prefers a bill of indictment to the 
 grand jui-ors — a_ document stating, e.g. that John has 
 murdered Peter — and the grand jurors, after hearing 
 in private evidence for the prosecution but not for the 
 defence, endorse the bill Avith the words " a true bill," 
 if they think that there is a case which slioidd go to 
 trial, or with " no true bill," if the charge seems 
 groundless. In the former case the accused, if in 
 custody, will be discharged ; but he is not acquitted : 
 another indictment for the same crime may be preferi-ed 
 against him. In the latter case he will be " arraigned " 
 — called upon to answer the accusation. The grand 
 juiy must consist of not less than twelve or more than 
 twenty-three men. Of the qualification of grand jxirors 
 we shall speak below. ^ There can be no indictment 
 unless twelve at least concur. 
 
 As already said, the first notice that a man may have 
 of a criminal charge made against him may be notice 
 that the indictment has been found, and, being indicted, 
 a warrant for his arrest can at once be obtained and he 
 can be brought to trial. Also it is to be remembered 
 that " any person may present a bill to any grand jury 
 accusing any other person whatever of any crime what- 
 •• See below, p. 165.
 
 138 JUSTICE AXD POLICE. [cH. 
 
 ever."^ To this liberty of secret accusation some bounds 
 were first set in 1859. There are certain crimes for 
 which one cannot now be indicted unless the consent of 
 the xVttorney- or Solicitor-General or a judge has been 
 obtained, or unless one has been committed by a 
 magistrate or bailed to answer an indictment, or unless 
 the bill has been preferred by a person who has been 
 bound over to prosecute. Any one however may insist on 
 being so bound over, though the magistrate thinks the 
 charge groundless ; but in such case, should the accused 
 be acquitted, he will be entitled (a man wi-ongly indicted 
 is, in general, not entitled) to recover his costs from his 
 accuser. The list of crimes in question is not long ; it 
 comprises such as were supposed to be often the subject 
 of vexatious indictments — perjury, conspiracy, libel, 
 obtaining by false pretences, and a few others ; 
 it might well be made longer. But though it is 
 still the general rule that a person may first heai- 
 that he has been charged with a crime after he has 
 been indicted, still such cases are now compara- 
 tively rare. In the usual course he is examined 
 by a magistrate and committed, or bailed, for trial. 
 The witnesses are bound over to appear at the trial, 
 and some one is bound over to prosecute — sometimes 
 the person who has been injured, sometimes a police- 
 man, sometimes the magistrate's clerk. There is a 
 considerable diversity of practice in different parts of 
 the country, and in some towns one and the same 
 person — a solicitor — is bound over to prosecute in every 
 case.2 The magistrate's clerk then forwards the depo- 
 
 ^ Stephen, Digest of Criminal Procedure, art. 191. 
 
 ^ I believe that Liverpool set this fashion. It has been followed 
 with variations at Birmingham, Bolton, Leeds, Manchester, 
 Newcastle, and some other places.
 
 XII.] PROSECUTION". 13: 
 
 sitions to the court in which the ti'ial is to take place : 
 if it is to be at Quarter Sessions, they go to the Clerk of 
 the Peace for the county or borough ; if at the Assizes, 
 then to the Clerk of Assize.^ From these depositions he 
 frames a bill of indictment, unless the prosecutor chooses 
 to employ his own solicitor for this purpose. Then, at 
 the opening of the Assizes or Sessions, the judge, recorder, 
 or chairman, having the depositions before him, charges 
 the grand jury, that is, explains to them any matters 
 of law concerning the various cases which seem to need 
 explanation. The grand jurors retire to consider the 
 bills, and in secret they hear the evidence for the 
 prosecution, sometimes permitting the presence of the 
 prosecutor's solicitor. Theii" inquiry is quite inde- 
 pendent of that which has taken place before the 
 magistrate. The grand jury system saves a certain 
 number of innocent persons from the shame and annoy- 
 ance of public trial, and seems necessary so long as 
 proceedings before a magistrate are not made essential 
 in all cases ; but such proceedings are now so usual 
 that for a grand jury to ignore a bill has become a 
 rather rare event. ^ 
 
 When a true bill is found then there will be a trial, 
 iinless indeed the person indicted is not in custody and 
 cannot be apprehended. If he cannot be found, then, 
 theoretically, he can be outlawed. An outlawry would 
 
 ^ There is a Clerk of Assize for each chcuit ; he is appointed by 
 the senior of the ju<lges on the circuit when a vacancy occurs, is 
 paid a salary voted by Parliament, holds office during good 
 behaviour. His main functions are to prepare indictments and 
 tax costs. 
 
 ^ In 1883, "no ti-ue bill" was found in 530 cases, while more 
 than 14,000 went to trial.
 
 140 JUSTICE AND POLICE. [ch. 
 
 be a tedious process conducted by the sheriff ; the out- 
 law, in case of felony or treason, would be in the same 
 position as if he had been tried and convicted, and even 
 in case of misdemeanour his goods would be forfeit. 
 But no use is noAv made of this ancient process. We 
 have extradition treaties Avith many foreign states, and 
 a fugitive offender seldom leaves behind him property 
 that is worth taking. But there being an indictment 
 and a prisoner, the trial will go forward. If there is 
 some private prosecutor interested in the event, then he 
 very likely will have put the matter into the hands of 
 a solicitor who will have got up the case, seciu-ed the 
 attendance of witnesses, and retained some banister 
 to conduct the proceedings in court. When this does 
 not happen, the custom at some Sessions is to allot the 
 prosecutions to the barristers who attend those Sessions 
 in rotation, copies of the depositions taken before the 
 magistrate serving as their instructions. If there is no 
 advocate for the prosecution, then the judge or chairman 
 has to examine the witnesses. If no witnesses are 
 forthcoming, then the accused is acquitted, otherwise 
 the trial will proceed as mentioned below.^ It is a trial, 
 not between two private litigants, but between our lady 
 the Queen of the one part, and the accused of the other 
 part. When once the indictment is found, the so-called 
 prosecutor cannot, while, on the other hand, the Queen's 
 Attorney-General can, stay further proceedings. This 
 he can do by " entering a 7iolle 2^'i'osequi," which will 
 bring to an end all proceedings upon the indictment in 
 question, though it will leave the accused open to be 
 indicted again for the same offence. This power is 
 
 1 P. 164.
 
 xii.] PROSECUTION. 141 
 
 sparingly used to prevent prosecutions that are obviously 
 vexatious. 
 
 But for all this our law has left the prosecution of 
 criminals very much in the hands of the public.^ Un- 
 doubtedly that law is now in a state of transition, and 
 prosecutions are coming more and more under official 
 control ; but before the present condition of affairs can 
 be described we must refer to an important cause of 
 change. The expense of prosecutions has gradually been 
 thrown upon the public. Formerly he who took upon 
 himself to bring a criminal to justice did so at his own 
 cost. By slow degrees this has been altered. A statute 
 of 1752 began the practice of throwing the costs of 
 prosecuting felons upon the county. At present the 
 costs of a prosecution for felony, or for any one of the 
 common misdemeanours, can be allowed by the court 
 which tries the case, whether the prosecution be or be 
 not successful, and the costs of witnesses for the defence 
 can be similarly allowed. When costs are to be thus 
 allowed they are taxed (i.e. , the amount is fixed) by an 
 officer of the court, and the amount so fixed can be 
 obtained from the county treasury. Until 1836 these 
 costs were a local burden, and they still fall on the 
 county in the first instance, but since that year one half, 
 and since 1846 the whole, of these costs has been repaid 
 to the counties by the nation. There is no statute which 
 directs this payment, but a vote for the requisite sum 
 is taken each year and sanctioned by the annual Appro- 
 
 ^ To speak of the English system as one of private prosecutions is 
 misleading. It is we who have public prosecutions, for any one of 
 the public may prosecute ; abroad they have state prosecutions or 
 official prosecutions.
 
 142 JUSTICE AKD POLICE. [cH. 
 
 priation Act.^ The assumption by the nation of this 
 burden has necessitated an arrangement, by which tlie 
 amount of costs to be allowed is brought under the 
 control of the- Home Office, and has helped to change 
 our view of the duties of the state as regards the 
 prosecution of crime. ^ 
 
 Of course the executive government, the King and his 
 Ministers, has, on occasion, itself put the criminal law in 
 motion, more especially for the punishment of treasonable 
 offences ; and though a state trial in its legal incidents 
 lias differed but little from a trial for petty larceny, still 
 the King has had officers charged with the duty of 
 bringing to justice the greatest offenders and endowed 
 for that purpose with some special powers. 
 
 The Queen's Attorney and Solicitor-General " the law 
 officers of the Crown " are, we may say, the two most 
 distinguished lawyers whose services the Ministry of the 
 day has been able to secure. Theoretically they hold 
 office during the Queen's pleasure, practically their 
 tenure is the ministerial tenure ; ^ they arc not according 
 to usage members of the Cabinet, but they share its 
 parliamentary fortunes. It is desirable and expected 
 that they shall be members of the House of Commons, 
 and answer to that House for their doings. They are 
 paid for their public duties partly by salaries, partly by 
 fees ; their office does not prevent their being retained 
 as advocates by private litigants. In practice it falls to 
 
 ^ As to the Appropriation Act, see Traill, Central Government, 
 p. 46. 
 
 2 In 1882, about £120,000 was paid liy the Treasury for prosecu- 
 tions at Assizes, Sessions, and Central Criminal Court, and about 
 £24,000 for summary penal proceedings. These figures do not 
 include the cost of the prosecutions instituted by the Treasury 
 itself, of which, see below. 
 
 ^ As to which, see Traill, Central Government, pp. 26- 30.
 
 XII.] PROSECUTION. 143 
 
 them to support the ministerial case in the House of 
 Commons when legal questions are raised, and one or 
 both of them will generally take charge of such govern- 
 ment bills as concern legal procedure. Again, when any 
 difficult questions of law arise in any of the great de- 
 partments of state, cases are submitted to the law officers 
 for their opinions. They are the legal advisers of the 
 executive government. 
 
 Apart from these constitutional duties the Attorney- 
 General has certain special powers and functions, most, 
 if not all, of which might, were his place vacant, be 
 exercised by the Solicitor-General. To begin with 
 criminal matters : the Attoi-ney-General can accuse a 
 person of, and place him on his trial for, any mis- 
 demeanour (but not any treason or felony) without 
 indictment or any proceedings before a grand jury. 
 This he does by "filing a criminal information"; he 
 informs the High Com't that such an one has committed 
 such a crime ; this accusation serves in place of an in- 
 dictment, and there follows a trial with a petty jury. 
 In the past this procedure has been used for the punish- 
 ment of seditious libels and the like, but it has become 
 very uncommon, and even those whose crimes may be 
 called political are now indicted in the visual way, the 
 Attorney-General conducting the proceedings in court. 
 These informations (" ex officio informations ") by the 
 Attorney-General must be distinguished from the 
 criminal informations filed by the Master of the Crown 
 Office (one of the Masters of the Supreme Court),^ on the 
 complaint of some private person. It is in the power 
 of the High Com't on such a complaint to order that an 
 information for a misdemeanour shall be filed by this 
 ^ See above, p. 49.
 
 144 JUSTICE AND POLICE. [ch'. 
 
 master, and when this is done the accused can be brought 
 to trial by a petty jury, much as though an indictment 
 had been found against him. But the court only allows 
 this in very few cases, e.g. , when some oflBcer of state has 
 been libelled and is desirous of at once contradicting the 
 charge, or when some magistrate is accused of very grave 
 misconduct in his office. Both parties are heard by the 
 court before an order is made for filing the information, 
 and practically a decision of the court that there is good 
 ground for an information here takes the place of the 
 finding of a true bill by a grand jury. But this procedure 
 is quite exceptional.^ 
 
 Then again the' Attorney-General, as already said,^ can 
 stop a criminal prosecution by his nol/e jrrosequi. Also 
 he can gi^xnt or refuse his fiat for a Avi-it of error, which 
 writ, as will be seen below,^ is the means whereby 
 judgment in a criminal case can be reversed. It is said 
 to be his duty to give his fiat if there is reasonable cause 
 for the application, but there is no legal process for 
 compelling him to do so. Sometimes again a statute 
 imposes a money penalty for an offence {eg., that of 
 sitting in the House of Commons without having taken 
 the prescribed oath) and gives the penalty to the Crown ; 
 the Attorney-General institutes proceedings for the re- 
 covery of such penalties. He also represents the Crown 
 in many forms of litigation which are not penal. Pro- 
 ceedings by him (exchequer informations) are the means 
 whereby debts due to the Crown, on account of the 
 imperial taxes or otherwise, can be recovered in the 
 
 ^ Seemingly in 18S3 no criminal information was filed either by 
 the Attorney-General or the Master of the Crown Office. Jud. 
 Stat. 1883, Pt. II., p. 6. 
 
 2 See above, p. 140. » P. 171.
 
 xn.] PROSECUTION. 145 
 
 High Court. In such cases he is set in motion by the 
 department of state concerned to receive the money, the 
 Treasury it may be, or the Inland Revenue. And there 
 are other cases in which he represents the Queen in the 
 protection of public, rather than royal or governmental, 
 interests. Thus, pi-oceedings to prevent or remove by 
 the injunction of the High Court nuisances which are 
 nuisances to the public at large are brought by him, and 
 he must in general be a party to any litigation touching 
 the application of property devoted to charitable purposes ; 
 but in these cases he somewhat readily permits the use 
 of his name by any private person who has reasonable 
 cause for interference, retaining, however, a control over 
 the action which can be exercised if necessary. There 
 are other instances of less moment. Nor is he always 
 the active party in litigation, for it sometimes falls on 
 him to defend the Crown against claims. No action, 
 indeed, can be brought against the Queen, but proceed- 
 ings can be taken which are very like an action. A 
 " petition of right " by the person who thinks himself 
 wronged is presented through the Home Office to the 
 Queen, who declares it her pleasure that right shall be 
 done ; and then there is what in truth is a lawsuit 
 between this petitioner as plaintiff, and the Queen, 
 represented by her Attorney, as defendant. Complaints 
 of anything done by the Queen herself we need not 
 imagine, but by this procedure, for example, damages 
 can be obtained for breach of a contract made on her 
 behalf by the head of some department who has power 
 to contract in her name. 
 
 The law officers have not been, and are not, at the 
 head of any permanent public department. There was 
 not until lately, and even yet there hardly is, any one 
 
 L
 
 146 JUSTICE AND POLICE. [.ii. 
 
 department charged with a general duty of enforcing, by 
 legal proceedings, the claims of the Crown or of the 
 executive. But such a department has been slowly 
 coming into existence, that of the Solicitor to the 
 Treasuiy. The legal work of the various great central 
 offices has gradually been consolidated in one bureau, 
 presided over by an ofl&cer who, though called a solicitor, 
 has in fact been a barrister of high standing, a member 
 of the civil service who does not "go in and out with 
 the Ministry." The work done by him, and by his small 
 staff of assistant solicitors and clerks, is most miscel- 
 laneous ; perhaps we give the best idea of it by 
 saying that he does for these offices, the Treasury, the 
 offices of the Secretaries of State, and some others, the 
 business that is done for a private man by his family 
 solicitor. His department has gradually been devouring 
 other institutions. He is now, for example, Queen's 
 Proctor, and charged as such with the duty of inter- 
 vening in divorce cases if there is reason to suspect that 
 the parties are colluding with each other, or keeping 
 back evidence from the court. He also looks after the 
 rights of the Crown when a person dies intestate and 
 without kin, and is constituted that person's legal 
 representative ; and he performs the solicitor's part in 
 a great deal of litigation between the Queen (i.e., the 
 executive government) and her subjects, the law officers 
 acting as advocates and ad\asing counsel. 
 
 A great deal of criminal business came gradually into 
 his office. In 1855 he could still say that such business 
 was almost the least important part of his work. But 
 such business there was. In the cases, once commoner 
 than they are now, in which the Attorney-General in- 
 .«?tituted a prosecution for a political crime, the Treasury
 
 XII.] PROSECUTIOX. 147 
 
 Solicitor had acted as the solicitor for the prosecution, 
 investigated the facts, arranged the evidence, and so 
 forth. Then again, the prosecution of coinage offences 
 had been in the hands of a public officer, the Solicitor to 
 the Mint, and when his place was abolished this work 
 came to the Treasury Solicitor. Then he was sometimes 
 directed to institute a prosecution for a crime directly 
 touching one of the great departments. But it was the 
 formation of the Metropolitan Police that brought him 
 into contact with common offences. It became the 
 practice of the police magistrates to bind over policemen 
 to prosecute when there was no private prosecutor ready. 
 The policemen in cases of difficulty applied through the 
 Metropolitan Commissioner for legal assistance. For a 
 while this was given by a Home Office Solicitor, but 
 afterwards, his place being abolished, by the Treasuiy 
 Solicitor. In cases of murder, manslaughter, and 
 violent assaults on the police, the Home Secretary 
 would direct him to see to the prosecution. Such 
 cases were quite few ; in 1855 it was said that there 
 were about forty a year. Then the Home Secretary 
 began on rare occasions to direct a prosecution in country 
 cases. The crimes of fraudulent bankrupts (crimes for 
 which those who suffer by them are often unwilling to 
 pi'osecute) found new work for the Treasury Solicitor. 
 In 1879 the number of prosecutions conducted by him 
 had risen to 459, but 210 of these were Mint cases, and 
 79 banki'uptcy cases. An assistant of his, or a country 
 solicitor employed by him for the occasion, would attend 
 the magisterial examination, prepare the evidence for 
 trial, and instruct counsel. At the Central Criminal Court 
 the same barristers were always engaged for the prose 
 cutions thus directed by the Home Office. In this as in 
 
 L 2
 
 148 JUSTICE AND POLICE. [.n. 
 
 other instances the vast " metropolis " has been the 
 determining cause of great changes. 
 
 Meanwhile the whole theory of public prosecutions 
 had been abundantly discussed. Englishmen began to 
 see that they had against them the practice of almost all 
 other countries. In Scotland, for instance, there are 
 public officers tkroughout the country, procurators 
 fiscal, whose duty it is to investigate criminal cases and 
 prepare them for trial under the control of the Lord 
 Advocate, and a prosecution instituted by a private man 
 thoiigh theoretically permissible is practically unknown. 
 Even in Ireland there has been developed out of English 
 law, and appai-ently without legislation, a system of 
 Crown Solicitors and Crown Counsel controlled by the 
 Irish Attorney-General which has very largely superseded 
 prosecution by private persons. During a quarter of a 
 century commissions and committees reported on the 
 subject, and several ambitious schemes were laid before 
 Parliament, applauded, and forgotten. The main com- 
 plaints against our procedui-e were, that prosecutions 
 were compounded, that prosecutions were instituted for 
 vexatious purposes, that, when there was no private 
 prosecutor with means, cases came to trial in an un- 
 prepai'ed state. It became a mark of enlightenment to 
 demand the immediate creation of a complete system of 
 public prosecutors ; but beyond this demand there was 
 extremely little agreement. To say nothing of details, 
 it has been very generally believed that to put the 
 control of the criminal law into the hands of state officials 
 is not the way to make that law respected. It is better 
 that some rogues should go quit, and some guiltless men 
 be vexed by false charges, than that there should 
 be any room for even a groundless suspicion that party
 
 XII.] PROSECUTION. Ii9 
 
 politics have or can have anything to do with criminal 
 law. This has been felt and has hitherto delayed what 
 perhaps is the fated progress of events. 
 
 At last, in 1879, after five-and-twenty years' discus- 
 sion, a measure, which proved to be a very small 
 measure, was passed. A Director of Public Prosecutions 
 was to be appointed by the Home Secretary, he was to 
 be an experienced lawyer, paid by salary. He was (1) 
 to give advice to private prosecutors, justices, magistrates' 
 clerks, policemen, and the like ; and (2) himself to in- 
 stitute criminal proceedings according to rules to be 
 made by the Attorney-General with the approval of the 
 Chancellor and Home Secretary. In 1883 his office was 
 abolished, or rather it was enacted that the Treasury 
 Solicitor should for the future be also Director of Public 
 Prosecutions. Practically the functions exercised by 
 the Director had been very much those which there tofoi'e 
 had been exeixised by the Home Office, that is, he had 
 directed the Treasury Solicitor to prosecute in cases of 
 the same sort as those in which such direction had 
 formerly been given by the Home Secretary. The 
 existence of a separate department for this purpose 
 seemed unnecessary. For the future then the Treasury 
 Solicitor, subject to such regulations as just mentioned, 
 is to take up the prosecution if he thinks fit without the 
 need of any orders. The chief and head constables are 
 to bring to his notice crimes committed within their 
 districts. He and his stalS will personally see to London 
 cases, but it seems to be intended that country cases 
 shall be managed by agents, local solicitors, employed 
 for the occasion and paid by the piece. The choice 
 of counsel to conduct these prosecutions is seemingly 
 left to the Attorney-General. There is (in theoiy) to be
 
 150 JUSTICE AND POLICE. [ch. 
 
 no interference with the right of any person to institute, 
 undertake, or carry on any criminal proceeding. In what 
 kind of cases the Treasury Solicitor shall interfere is left 
 pretty much a question to be decided from time to time 
 by the Attorney-General, Lord Chancellor, and Home 
 Secretary, but seemingly it is not at present proposed that 
 bis operation?! shall be extended far beyond their former 
 limits ; that is to say, he will take up cases of difficulty, 
 cases in which there is reason to fear a failure of justice. 
 Until this year such cases have been very rare, some five 
 or six hundred annually out of some fourteen thousand 
 prosecutions, and of these five or six hundi'ed about one 
 half have been coinage cases. We have not yet made 
 any large inroad on that system of non-governmental 
 prosecutions of which foreigners can see the merits if we 
 can not, and it must be added that the Treasury Solicitor 
 in his prosecutions has hardly any legal powers of any 
 kind that ai-e not possessed by any other prosecutor or 
 his soUcitor.^ 
 
 Already it has been made the Director's duty to take 
 up every case in which a Bankruptcy Court orders the 
 prosecution of any offence arising out of, or connected 
 with, bankruptcy proceedings, and he is specially charged 
 to institute prosecutions for corrupt or illegal electoral 
 practices, " No criminal prosecution shall be commenced 
 against any proprietor, publisher, editor, or any person 
 responsible for the pu1)lication of a newspaper, for any 
 
 ^ The history of projects of public prosecutions, and of the 
 Treasury Solicitor can be traced in Select Committee on Public 
 Pro.9eciitors, Pail. Papers, 1854-6, Vol. XII., p. 1 ; 1856, Vol. VII., 
 p. 347 ; Fifth Export of Judicature Commission^ Pari. Papers, 1874, 
 Vol. XXIV., p. 319 ; Committee on Office of Public Prosecutor, 
 Pari. Papers, 1884, C. 4016. See also Self-Government, § 76 ; 
 Stephen, History, Vol. I., p. 493.
 
 XII.] PROSECUTION. 151 
 
 libel published therein, without the written fiat or 
 allowance of the Director of Public Prosecutions, or Her 
 Majesty's Attorney-General in Ireland, being first had 
 and obtained " ; ^ this is a rare, it is believed unique, 
 example of a kind of legislation that may become 
 common. 
 
 1 Statute, 18S1, ch. 60, sec. 3.
 
 CHAJPTER XIII. 
 
 THE CRIMINAL COURTS. 
 
 The courts which receive indictments and try the 
 indicted are, (1) the county and borough Quarter Sessions, 
 and (2) the High Court. This (if we neglect the right 
 of a peer to be tried by his peers) seems to be a correct 
 statement, l)ut it needs explanation, and we should be 
 better conforming to common usage were we to say that 
 the trial, if it does not take place at Quarter Sessions (of 
 which enough has been said ^), will take place before 
 (a) the Queen's Bench Division of the High Court, (6) a 
 court constituted by Commission of Assize, of Oyer and 
 Terminer, or of Gaol Delivery, or (c) the Central Criminal 
 Court. To clear up this matter, i-eference must needs 
 be made to a long history, hardly to be told both 
 accurately and very briefly, but unfortunately the 
 statute book requires us to make the effoi-t. 
 
 For what are the Assizes 1 To start with, an assize 
 (assisa) means a session, a sitting, for instance, of the 
 king with his councillors, and if at such a session an 
 ordinance is made, that ordinance also will be called an 
 assize ; thvis an ordinance made at Clarendon is the 
 Assize of Clarendon. Henry II. made many famous 
 
 ^ See above, p. 85.
 
 CH. XIII.] THE CEIMIXAL COURTS. 153 
 
 assizes, and among others some which introduced a new 
 procedure for settling disputes about the possession of 
 lands. Lawsuits in whicli this procedure was used got 
 the name assizes. To determine them, recourse was had 
 to the oath of a body of neighbours, and this body also 
 was called an assize ; for the word assize had to do hard 
 work. The assize in this last sense was not quite the 
 same thing as a jury ; it was an early form of that which 
 came to be a jury. Royal commissioners were sent 
 through the country to determine these lawsuits, or, as 
 the phrase went, to take the assizes ; such commissioners 
 were Justices of Assize. Such lawsuits were possible 
 until the 1st June, 1835. Since that day it has been 
 impossible for any one to bring an assize against another, 
 and long before that day the assize had really been 
 supplanted by more modern forms of litigation. So, 
 when the Queen commissioned some one to take assizes, 
 she apparently commissioned him to do what could not 
 be done.^ 
 
 But back in the thirteenth century a statute gave to 
 justices so commissioned a power which grew, while that 
 which came to them in the words of their commission 
 declined. The King's Courts of Common Law had become 
 localised at Westminster, and trial by jury had become a 
 common mode of trial. When an action in one of these 
 courts was ready for trial, then it had been the practice 
 to summon to Westminster a jury from the county to 
 which that action belonged — a Cornish jury for a Cornish 
 action ; jurors from no other county would know tlie 
 facts, and it was necessary that they should know the 
 facts, for the jurors of those days were the witnesses. 
 
 ^ See Glossary to Stubbs's Select Charters, s.v. assisa, and the 
 learned article on Assize in the Penny Cyclopaedia,
 
 154 JUSTICE AND TOLICE. [CH. 
 
 But in 1285 ^ it was ordained that tho trial of such actions 
 should take place in tlie county hefore the Justices of 
 Assize. The Court then in whicli the action was depend- 
 ing, instead of bidding tl\e sheriff l)ring Cornishmen to 
 Westminster, would tell him to have the jurors at 
 Westminster on a certain day, unless before that day 
 (nisi jmus) Justices of Assize should come into Cornwall. 
 As a matter of course, the Justices of Assize came into 
 Cornwall, and there tried the case with a Cornish jury ; 
 they tried it at 7iisi 2mu8, and such trials at nisi prius 
 before Justices of Assize there were in the year 
 1875. 
 
 The counties of England were long grouped into six 
 circuits in which assizes were taken twice a year. On 
 each occasion commissions were issued whereby the king 
 appointed two of the Westminster judges, and the 
 serjeants-at-law who practised on the circuit, his justices 
 to take the assizes of the counties in that circuit. As a 
 matter of fact, one of the two judges would transact the 
 business to be done under the commission of assize, while 
 the other would sit under other commissions to be men- 
 tioned below. The one would sit ''on the civil side," 
 the other " on the criminal side," the one in black, the 
 other in scarlet. The trial, therefore, generally took 
 place before a judge of one of the three Common Law 
 Courts. Ancient statutes had ordained that one of the 
 justices trying the case should be a judge of one of 
 these courts or a sei'jeant-at-law. Ancient statutes, it 
 is true, had also aimed at keeping the doings of these 
 professionals under the eyes of knights of the shire. 
 The Charter of 1215 conceded that there should be four 
 
 1 Stat. 13, EJw. 1, cap. 30.
 
 XIII.] THE CRIMINAL COURTS. 155 
 
 such knights associated with the justices. ^ But, in 
 course of time, as the jealousy of the king's judicial 
 power decreased, a practice grew up of associating with 
 the judges and Serjeants, not knights of the shire but 
 mere officers of the court, the clerk of assize and his 
 subordinates. This association became matter of form, 
 but of form punctually observed. The real judicial work 
 fell to the Westminster judges ; but it should be under- 
 stood that such a judge, let us say of the Common Pleas, 
 when sitting at Exeter to try an action depending in one 
 of the Westminster courts, was sitting there, not as a 
 judge of the Common Pleas, but as a royal commissioner 
 sent out for this one occasion to take the assizes of 
 Devonshire, and he could try a King's Bench case just 
 as readily as a Common Pleas case. If there were a press 
 of work he would ask a Serjeant to try some cases, and 
 this the Serjeant could do ; for he, just as much as the 
 judge, was a Justice of Assize named in the commission. 
 In 1850, serjeants-at-law becoming scarce, queen's coun- 
 sel were put on the same level with them for this purpose, 
 and the names of the queen's counsel on the circuit were 
 usually put in the commission of assize, so that one of 
 them was competent to sit as a Jiistice of Assize, and 
 tlieref ore to try a case at nisi jjri^is. 
 
 But the powers, or at least the main powers, of the 
 judges on circuit in respect of crimes were derived from 
 other commissions, that of gaol delivery and that of oyer 
 and terminer. The former, according to modern practice, 
 was directed to the two Westminster judges, the Ser- 
 jeants, queen's counsel, and circuit officers, and constituted 
 
 1 See charter of 1215, art. 18.; charter of 1217, art. 13 ; stat. 
 13 Ed. I., c. 30; 27 Ed. I., c. 4 ; 12 Ed. II., c. 3 ; U Ed. III., 
 c. 16.
 
 156 JUSTICE AND POLICE. [cii. 
 
 them, or any two ^ of them (of whom one was to be a 
 judge, Serjeant, or queen's counsel), the Queen's justices 
 to deliver the county gaol. The latter was directed to 
 the same persons, and to some great noblemen and land- 
 owners of the district, and appointed them, or any two 
 or more of them, the Queen's justices to inquire of, hear, 
 and determine {oyer et terminer) all felonies or other 
 crimes in the counties of the cii'cuit ; but in this case, 
 again, one of the acting justices was to be one of the 
 two Westminster judges, a serjeant, or a queen's coun- 
 sel. Very possibly the inclusion in this commission of 
 some freeholders of the shire is a trace of the once 
 popular demand that a free man shall have the judg- 
 ment of his peers. 2 In fact, however, for some time 
 back, trial under either of, these commissions has been 
 trial before a single justice, usually before one of the 
 two Westminster judges, though occasionally a serjeant 
 or a queen's counsel tried some cases at the judge's 
 reqviest. 
 
 The courts periodically and temporarily created by 
 these commissions were entirely distinct from the courts 
 at Westminster ; but one of these Westminster courts, 
 the Queen's Bench, had a high criminal jurisdiction all 
 its own. In Avhatever county it was holden, it was for 
 that county a Court of Oyer and Terminer, could receive 
 indictments for that county, and do justice upon the 
 
 ^ A reader curious of legal fictions should consult Lcverson v. 
 The Queen, Law Reports, 4 Queen's BeTich, 394. Despite the words 
 of the commission, it is "the inveterate practice" that a single 
 judge tries the case. 
 
 2 Gneist, Verfassungsgeschiehte, § 19 [ed. 1882, p. 295, note]. 
 According to modern interpreters there is not much practical 
 difference between these two commissions, i.e., they authorise 
 nearly the same things.
 
 XIII.] THE CRIMINAL COURTS. 157 
 
 indicted. Theoretically it was not bound down to 
 Westminster as was the Court of Common Pleas, but 
 in fact Westminster was its settled home, and before 
 it therefore could be tried those indicted by a grand jury 
 of Middlesex. But then, again, it had a control over all 
 other criminal courts. It could, by writ of certiorari,^ 
 order, e.g., the Quarter Sessions for Kent to transmit to 
 it an indictment received at those sessions, and, this done, 
 the accused would stand his trial at the bar of the Queen's 
 Bench, a Kentish jury being summoned for that purpose 
 to Westminster, or (as would be the case unless the 
 matter was of grave public importance) the Queen's 
 Bench would order the Kentish sheriii" to send a jury to 
 Westminster on a certain day nisi prius Justices of 
 Assize should visit Kent. In this last case, the accused 
 would be tried in Kent by a justice sitting under the 
 commission of assize, and empowered therefore to try 
 at nisi p-ius, cases depending in the Westminster courts. 
 
 " The Assizes," then, came to mean sittings held under 
 these commissions. Usually the same two judges had 
 all three commissions, and commissions were issued every 
 spring and summer. In the present century it became 
 the practice to send commissioners to deliver the gaols 
 in the winter also, a practice which was gradually ex- 
 tended from the home counties to the rest of England, 
 (for the Queen could issue commissions of oyer and ter- 
 miner and gaol delivery when it pleased her) and the 
 phrase, "the Assizes," was somewhat loosely tised to 
 signify a sitting of these royal commissioners, whether 
 they had or had not the commission of assize. 
 
 We have spoken of these things in the past tense, but 
 so far as criminal business is concerned we might, with 
 ^ See above, p. 104.
 
 158 JUSTICE AND POLICE. [rii. 
 
 but a few nomiual changes, have spoken in the present. 
 In 1875, when the okl courts were abolished, the criminal 
 jurisdiction of the Queen's Bench was transferred to the 
 new High Court, and was assigned to its Queen's Bench 
 Division, Avhich (Uvision (taking, for this purpose, the 
 form of a " divisional court," ^ a tribunal constituted by 
 two or more judges) can now do exactly, or almost 
 exactly, what we have described the Queen's Bench as 
 doing. Then, furtlier, there was " transferred to and 
 vested in " the new High Court the jurisdiction of the 
 courts created by commissions of assize, oyer and ter 
 miner, and gaol delivery, and it was declaied that such 
 jurisdiction should for the future not be exercised 
 except by the High Court. But it was also declared 
 that the Queen might, by commission of assize, or any 
 other commission, assign to any judges of the High 
 Court, or other persons usually named in commissions of 
 assize, the duty of determining, within any district 
 fixed by the commission, any causes depending in the 
 High Court, or the exercise of any civil or criminal 
 jurisdiction capable of being exercised by the High 
 Court ; and any commissioner engaged in the exercise of 
 sucli jurisdiction was to be " deemed to constitute a court 
 of the said High Court of Justice." 
 
 As a matter of fact, the old commissions are still 
 issued in almost their old form. At present, commis- 
 sioners are sent out four times a year, in summer and 
 winter to take both civil and criminal business, in spring 
 and autumn to take only criminal business, except in a 
 few populous districts, where civil business also is taken. 
 But the court which such a commissioner now holds is 
 the High Court of Justice, or, if our statute-makers will 
 ^ See above, p. 55.
 
 xiii.] THE CRIMINAL COURTS. 159 
 
 have it so, " a court of the said High Court of Justice." ^ 
 This as regards civil cases marks a considerable change. 
 The old commissioner of assize, sitting at nisi prius, was 
 not the Queen's Bench, or any other of the Westminster 
 coui'ts, and, roughly speaking, his business was merely 
 to conduct the trial by jury of questions of fact in an 
 action depending in one of the courts at Westminster. 
 The commissioner now holds the court in which the 
 action is depending, viz., the High Court, and he, sitting 
 at the assize town, can dispose completely of the whole 
 action, decide all questions of law, and pronounce the 
 judgment of the High Court. As regards criminal cases, 
 the change has been slighter, for the commissioner of oyer 
 and terminer, or of gaol delivery, could always dispose 
 finally of indictments ; the court he held could give 
 judgment and sentence, and bid the sheriff do execu- 
 tion, and even the commissioner of assize sitting 
 at 7iisi jyrius to try indictments pending in the 
 Queen's Bench had, by statute, similar powers. The 
 changes here, then, have been small, and of a very 
 technical kind ; they are in words and names rather 
 than in our law ; and, indeed, despite statutory direc- 
 tions, we are hardly yet accustomed to " deem " that the 
 criminal courts held under the old commissions are courts 
 of the High Court of Justice. ^ 
 
 ^ A lationalistic reader may urge that if a court is a court of a 
 court, the court of which it is a court is either itself or some other 
 court, and that either alternative is absurd. A reference to the 
 omnipotence of parliament is, perhaps, the only answer possible ; 
 but certain technical difficulties were thus inelegantly surmounted. 
 
 - One of these technical changes was brought to light by the 
 recent case of the Mignonette {Times, 1884, Nov. 26, Dec. 3, 5, 
 10). It seems to me that there maybe others of which it has not 
 yet been necessary to take any account.
 
 160 JUSTICE AXD POLICE. [ch. 
 
 Now as to tlie Central Criminal Court. Above we 
 have spoken of the unfortunate situation of modern 
 London, built as it is at a confluence of counties.^ In 
 1834, the city, the whole of Middlesex, and the suburban 
 parts of Essex, Kent, and Surrey were constituted a 
 single territory, a single "venue," for the purpose of 
 indictments and criminal trials. The king was em- 
 powered by statute to issue commissions of oyer an,d 
 terminer and gaol delivery for this district, and such 
 commissions were to be standing commissions, they were 
 lo hold good until new commissions should be issued. 
 Such commissions might include, by generic description, 
 the judges of the common law courts, the three judic-ial 
 oflicers of the city ,2 the lord mayor and aldermen, certain 
 other officers, e.g., the Chancellor, and any other persons 
 whom the king might name, and these were to be judges of 
 a new court called the Central Criminal Court. Sittings 
 under these commissions were to be held at least twelve 
 times a year. Commissions were issued ; it is needless to 
 state their antique terms. A trial at the Central Criminal 
 Court (" Justice Hall in the Old Bailey," a place long 
 ago conseci-ated to criminal trials, became its home) in 
 fact meant trial before one of the three civic judges, or, 
 if the case were grave, before a judge of one of the three 
 common law courts. Seemingly, this tribunal also must 
 now " be deemed to constitute a court of the said High 
 Court of Justice," though we have not yet got into the 
 way of calling it so.^ Practically the change is small. 
 
 1 See above, p. 98. ^ See above, p. 97. 
 
 3 This seems the result of sees. 16, 22, 29, 76, of the Judicature 
 Act of 1873, but I am not aware that any one has yet called the old 
 court by the new name. I regret, therefore, that I must make this 
 statement without giving reasons.
 
 XIII.] THE CRIMINAL COURTS. 161 
 
 The judge who tries the graver cases is a judge of the 
 High Court, and no longer a judge of one of the three 
 common law courts ; other cases are tried by the re- 
 corder, the common serjeant, or sometimes the judge of 
 the City of London Coui^t. 
 
 To cease " deeming " and come to facts : an indicted 
 commoner not tried at Quarter Sessions will really be 
 tried by a single judge of the Supreme Court ; or possibly 
 if the crime be not of the worst, by some queen's counsel 
 or one of the city judges, or possibly (but this is im- 
 probable) he will be tried at the bar of the Queen's Bench 
 Division by two or more of its judges. The judges of the 
 Chancery Division and those of the Appeal Court have 
 sometimes been sent on circuit, but just at present the 
 practice is to keep them in town, and get the circtiit 
 work done by the judges of the Queen's Bench Division. 
 
 Of the assize geography it would be vain to say much. 
 After having been unaltered for ages it has hitely been 
 subjected to many experiments. To start with the county, 
 whether a " county at large " or "a county corporate,"' 
 is the local unit, it isa "venue," but for some time back th(^ 
 importance of the counties corporate has been declining, 
 since a crime committed in one of them can be tried in the 
 adjacent or circumjacent county at large. Then each county 
 had its assize town or towns ; in Somerset, for example, 
 the spring assizes were held at Taunton, the summer at 
 Wells and Bridgewater alternately. Then in this cen- 
 tury Yorkshire was divided into two venues, Lancashire 
 into three, and Leeds, Liverpool, and Manchester became 
 assize towns ; a similar honour has just been conferred 
 on Birmingham, and Warwickshire has been divided 
 into two venues. Of the circuits there have been many 
 ^ See above, p. 71. 
 
 M
 
 162 JUSTICE AXD POLICE. [cii. xiii. 
 
 modifications, and last year a practice was begun of 
 putting all the judges in all the commissions, so that 
 any one of them can go to the help of an over-worked 
 brother. This circuit system is flexible, for it is 
 governed as of old by the royal will, which nowadays 
 means that large changes can be made in it without any 
 legislation if the Chancellor and the judges think tit. 
 The old law which gives to a crime a local character is 
 a dill'erent matter, and very possibly it will soon be 
 swept away. At least within the central criminal dis- 
 trict trial quickly follows committal, for justice is done 
 at the Old Bailey once a month, and for the rest of 
 England there are quarterly guol deliveries and quarter 
 sessions.
 
 CHAPTER XIY. 
 
 A CRIMINAL T R I A L. 
 
 A PERSON indicted has more than one opportunity of 
 objecting to the indictment as not adequately charging 
 him with any crime known to the law. He can do this 
 at the outset when he is arraigned — that is, called upon 
 to plead— or again after the verdict, though of some 
 defects he must take advantage before the verdict or 
 not at all, for they will be " cured " by a verdict against 
 him. On the whole, though, the accused is no longer 
 likely to escape by reason of a merely formal slip, as he 
 did in the good old days when barbarous law was tem- 
 pered by luck, an indictment must still be a very definite 
 statement of a specific crime or specific crimes, for which 
 and for no other crimes the accused can be tried. One 
 may sometimes be indicted of a gi-eater crime and found 
 guilty of a lesser that would be included in that greater — 
 one may be indicted for murder and found guilty of man- 
 slaughter ; but one cannot be indicted for murder and 
 found guilty of theft. The rules about this matter and 
 about charging a man with several crimes in one indict- 
 ment are complicated by the distinction between felony 
 and misdemeanour, but we may fairly say that the 
 accused will have to meet some definite charge or 
 
 M 2
 
 1G4 POLICE AND JUSTICE. [CH. 
 
 cliarges expressed in language which, tliough needlessly 
 verbose, will be precise.^ Beyond the indictment there 
 is no written pleading. The accused, unless he can 
 plead a royal pardon, or that he has been already 
 acquitted or convicted of the same charge, pleads by 
 word of mouth "guilty," or "not guilty;" if the 
 former, then he is sentenced, if the latter, his guilt 
 must be proved against him. 
 
 " The jury being sworn, the trial proceeds. It consists 
 of the following steps. The prisoner is given in charge 
 to the jury by the officer of the court. Tlie counsel for 
 the Crown states his case and calls his witnesses to prove 
 it. If the prisoner calls no witnesses, or calls witnesses 
 to character only, the counsel for the Crown may (unless 
 the prisoner is undefended by counsel) at the end of his 
 evidence sum up its effect to the jury. The prisoner, 
 or his counsel, then makes his defence, and calls his 
 witnesses. If he calls witnesses the counsel for the 
 Crown has a right to reply, and if the Attorney- 
 General or Solicitor-General prosecutes in person, he 
 has a right to reply whether the prisoner calls witnesses 
 or not. The judge then sums up the evidence. The 
 jury return their verdict. If they acquit the prisoner, 
 he is discharged. If they convict him, he is asked in 
 cases of felony what he has to say why judgment should 
 not be passed upon him, and unless he says something in 
 arrest of judgment, he is sentenced." ^ 
 
 The outlines of a trial by jury are familiar to English 
 
 ^ At present, criminal procedure is much more antique than civil 
 procedure ; but a Code of Criminal Procedure, as well as a Code of 
 substantive Criminal Law, has for some time past beeu awaiting the 
 leisure of Parliament. 
 
 •■* Stephen, Hist., Vol. I., p. 303.
 
 xiv.J A CRIMIXAL TRIAL. 16f. 
 
 citizens ; the history and the praises of this institution 
 can be found elsewhere ; we can here notice only a few 
 salient points. The duty of serving vipon juries is laid 
 upon men between the ages of twenty-one and sixty who 
 have a certain property qualification, high when compared 
 with that which now gives the county franchise. To put 
 the matter shortly, one who is a householder rated at 
 £20 (or in Middlesex, £30), or has an interest in land 
 worth £10 or £20 (according to the nature of the 
 interest) is bound to serve. But for jurors, both grand 
 and petty, at the borough sessions the qualification is 
 lower ; they need but be burgesses of the borough, and 
 this implies no more than rate-paying residence.^ It is 
 said to be doubtful whether the grand jurors at the 
 assizes need be qualified by property, but they are 
 usually county justices. Then there ai-e disqualifications 
 and exemptions. Persons attainted of treason or felony, 
 or convicted of infamous crime, are disqualified unless 
 they have been pardoned, and peers, members of Parlia- 
 ment, the clergy of all confessions, practising lawyers 
 and doctors, and many other persons have been ex- 
 empted for reasons that are not very obvious. Then 
 there is a difference between common juries and special 
 juries. A practice grew up and at length obtained 
 legislative sanction, of taking from out the general jury 
 list persons described as esquires to serve as jurors for 
 ditficult cases, and of paying them a guinea instead of 
 the eightpence given to common jurors. As matters 
 now stand, a person is bound to serve on special as well 
 as common juries if he is entitled to be called esquire, 
 if he is a banker or merchant, or if he occupies a hoi;se 
 rented at £50, or in large towns £100. In a civil action 
 ^ Clialmers, Local Government, p. 74.
 
 1G6 JUSTICE AND POLICE. [en. 
 
 which is to be tried by jury, a special jury can be had 
 at the instance of either party, and there is a mode 
 whereby under order of the High Court a misdemeanour 
 (but not a felony) can be tried by a special jury. In 
 1870 a statute decreed that common jurors should be 
 paid ten shillings a day, but no machinery was provided 
 or carrying this into effect, and the act was at once 
 repealed. A juror in a county court is paid one shilling 
 or every case. 
 
 ''To get twelve men into a box" is not a simple 
 process. Briefly, it is this : the overseers of the parishes 
 yearly make out lists of the persons bound to serve ; 
 these lists are settled for each sessional division by two 
 justices, who can remove and add names, and before 
 whom all claims for exemption should be made. From 
 these lists the sheriff (i.e., nndersheriff) makes the jurors' 
 book for the year, distinguishing those who can be 
 summoned for special juries. Then when there is to be 
 a sitting of a court which will need jurors, the sheriff" is 
 bidden to summon a competent number. The choice of 
 those to be summoned rests with him, or rather with 
 the undersheriff, but a man who has served becomes 
 exempt for a certain time unless the whole list has been 
 exhausted. Those who when summoned do not attend, 
 can be fined. The selection of jurors has been left in 
 the undersheriff's hands after the discussion of schemes 
 for making the process more mechanical. 
 
 There is some elaborate law about the right to 
 challenge jurors, that is, to object to their being sworn. 
 It has come to us from an age w-hen a man was likely 
 to know the neighbours who came to try him, and little 
 has been heard of it for a long time past. Either party 
 to an action or prosecution can challenge the whole
 
 XIV.] A CRIMINAL TRIAL. 167 
 
 array of jurors on the ground of the sheriff's partiality, 
 and can challenge an individual juror as not qualified 
 or not impartial. This is challenging for cause, and the 
 truth of the allegation is thereupon tried ; but besides 
 this, the accused can challenge peremjitorily — that is, 
 without assigning any cause — thirty-five pei'sons in case 
 of treason, and twenty in case of felony. There can be 
 no peremptory challenge in a civil action or on a trial 
 for misdemeanour. In Ireland the right to challenge 
 is freely used, and of course it may be very valuable. 
 If the prosecvitor or the accused fears that a fair trial 
 of a criminal case cannot be had owing to local pre- 
 judices or the like, he can apply to the High Court, 
 which can remove the indictment by writ of certiorari, 
 and order that the case be tried at its bar or at the 
 Old Bailey. 
 
 One of the public duties which ovir law enforces is the 
 duty of giving evidence. A person can be required to 
 testify in criminal prosecutions and civil actions, and 
 also in many proceedings of many kinds which are 
 inquisitorial rather than judicial. For instance, one may 
 be summoned as a witness, not only before the ordinary 
 law courts, before ecclesiastical courts, before courts- 
 martial, before magistrates and coroners, but also before 
 either House or a committee of either House of Parlia- 
 ment ; or, again, to take examples of what is becoming 
 common, before the persons appointed by the Board of 
 Trade to investigate the causes of a i-ailway accident, 
 or by the Home Office, to investigate the causes of an 
 explosion. If one thus summoned will not attend, he 
 cm generally be punished in a very summary way. 
 In civil actions a witness need not appear unless 
 a reasonable sum is tendered to him for his
 
 168 JUSTICE AXD POLICE. [rii. 
 
 expenses, but no such tender is necessary in a criminal 
 case. 
 
 Very great changes have of late been matlo in tlio 
 law touching the competence of witnesses. A person 
 convicted of any one of many crimes was incapable of 
 giving evidence. This has been altered. The testimony 
 of a criminal is now taken for what it is worth, and 
 occasionally it may be worth much. Then, again, all 
 persons interested in an action, including, of course, the 
 parties, were incompetent to testify. After a strenuous 
 ()[)position this rule, which some regarded as of the 
 highest value, was abolished bit by bit. The usual 
 defence of it was that it prevented perjuiy. The 
 I'vidence of the parties is now so important a part of 
 tlie evidence in an action, that it is hard to remember 
 that a few years ago it could not be received. But still, 
 in criminal cases, the accused can give no evidence. This 
 rule is defended on another ground, namely, that if he 
 be allowed to testify he must be liable to be inter- 
 rogated, and to questioning a prisoner modern English 
 opinion has had a strong dislike. But this dislike seems 
 to be vanishing. It is forcibly urged that innocent but 
 ignorant persons, when not defended by counsel, lose 
 much by not being questioned. At present, however, 
 we must note this rule as one of the chief peculiarities 
 of our criminal procedure. Generally, also, in a criminal 
 case a wife cannot testify for or against her husband, 
 nor a husband for or against his wife. 
 
 An important part in the conduct of a trial is played 
 by what are known as rules of evidence. Trial by jury 
 has given birth to a system of definite canons, the object 
 of which is not merely to prevent a waste of time over 
 c\'idence of a kind that is presumably worth very little,
 
 CH.] A CrJMINAL TRIAL. 169 
 
 but also to confine the attention of jurors to sucli 
 evidence as is presumably worth much.^ A good deal, 
 it may be, is excluded as " not evidence " which would, 
 in the particular case, affect a reasonable man's opinion, 
 but unyielding, general rules seem necessary if there is 
 to be trial by jury. More hai-m than good might be 
 done by an attempt to condense these rules into a few 
 paragraphs of such a book as this ; but the rule against 
 " hearsay," the main upshot of which is very generally 
 known, may serve as an example. A prudent man will 
 often act upon hearsay, but, on the whole, it has been 
 thought that evidence of this kind is not trustworthy 
 enough to be jjut before a court. In criminal cases these 
 rules of evidence are certainly not too unfavourable to 
 the accused. Evidence of his good character will be 
 heard, but not evidence of his bad character, vmless 
 evidence of good character has already been given. It 
 is treated as quite irrelevant that one charged with a 
 crime has undoubtedly committed many other crimes. 
 The confession, too, of the prisoner will not be admitted 
 if procured by the threat or promise of the constable or 
 of the magistrate. That witnesses are open to cross- 
 examination, that cross-examination has become one of 
 the fine arts, that in a criminal trial the burden of proof 
 is on the Crown, need hardly be said. Law presumes 
 that the prisoner is innocent until he is found guilty, 
 but it were well to wager four to one that the jury will 
 be satisfied of his guilt.^ 
 
 ^ The same rules prevail when there is trial without jury ; but I 
 doubt whether, but for trial by jury, they would have taken their 
 very definite shape. 
 
 2 In 1883 there were 11,347 persons found guilty against 2,723 
 found not guilty.
 
 170 JUSTICE AXD POLICE. [(if. 
 
 The twelve jurors must agree before there can be a 
 verdict. This has long been the English rule, and, at 
 least as to criminal cases, English opinion seems to be 
 strongly in its favour. Occasionally in civil cases the 
 parties will agree to al)i(le by the verdict of a majority. 
 If there is no reasonable prospect of agi-eement, the 
 judge will dismiss the jurors, and the trial having 
 proved abortive, the case, whether civil or criminal, can 
 be tried again. 
 
 Questions of law are for the judge, questions of fact 
 for the jury. This is the well-known rule, and it is 
 known also that, at least in criminal cases, jurors have 
 it in their power to ett'ectually break the rule ; they can 
 find a general verdict of "guilty" or of "not guilty." 
 They can thus disregard what the judge has told them 
 about the law, and give effect to any opinions or wishes 
 of their own ; nor can they be called to account for a 
 perverse verdict ; corruption, of course, Avould be another 
 matter. In some countries, wliich have manufactured 
 trial by jury in accordance with a, theory, jurors are 
 only trusted to find the minor premise of the judicial 
 syllogism ; here they are trusted to find the conclusion. 
 Those who best can speak say that this trust is not 
 misplaced; English jurors will take the law from the 
 judge even when they do not like the law. That as 
 riiany Englishmen as possible shall be ready to do this 
 is, perhaps, the best result that trial by jury can have 
 for us. If they please, jurors in criminal as well as civil 
 cases can find a special verdict, can find, that is, just the 
 facts and pi^ay the court to draw the due conclusion. This 
 was lately done in a trial for murder, but it is now 
 extremely rare, because, if there is doubt about the law, 
 the judge reserves the question for a court for Crown
 
 XIV.] A CRIMIXAL TRIAL. 171 
 
 Cases Reserved, of which hereafter. In civil cases it is 
 now common to submit to the jury only specific questions 
 of fact. In civil cases, too, new trials can be, and often 
 are, granted, because the judge has misdirected the jury 
 in matter of law, or has wrongly admitted or rejected 
 evidence, or because the verdict is " against the weight 
 of evidence," which phrase seemingly means that the 
 court granting the new trial is not only con- 
 vinced, but fully convinced that the verdict is 
 wrong. Applications for new trials have to be 
 speedily made, but the delay and expense caused by 
 such applications, and by trials made futile because 
 jurors do not agree, are heavily weighting the trial by 
 jury of cival cases in its present competition with trial 
 by judge. 
 
 In criminal cases there is, properly speaking, no 
 appeal. But (1) the High Court will sometimes^ (for 
 the reasons for which it grants new trials in civil cases) 
 grant a new trial after a conviction for misdemeanour ; 
 it does not grant a new trial in case of felony, nor after 
 an acquittal for misdemeanour. (2) There is a procedure 
 by writ of error whereby, with the Attorney-General's 
 leave, cases can be taken from an inferior court to the 
 High Court, and thence to the Court of Appeal and 
 so to the House of Lords ; if the error be in the High 
 Court, then the case will go to the Court of Appeal and 
 so to the House of Lords. But this can only be done 
 when there is error " apparent on the record," and this 
 phrase has a narrow and highly technical meaning. 
 The " record," which, in fact, is not drawn up unless 
 there is to be a writ of error, will contain what may 
 
 ^ This I believe has only been doue after a trial at nisi priiis.
 
 172 JUSTICE AND POLR'K. [cir. 
 
 1)3 called a formal history of the trial. ^ It is diflficult 
 to describe in general terms the errors which would 
 appear there, but (and this is the important fact) no 
 mistake the judge may make in directing the jury or in 
 admitting or excluding evidence, will show itself on 
 the record ; the verdict again may be most perverse, 
 and yet the record will be flawless. The sentence, 
 on the other hajid, will appear, so were the judge 
 to pass a sentence not authorised by law there would be 
 rrror on the record. But writs of error are so extremely 
 rare that we must say no more, (3) On a conviction (but 
 not an acquittal) the judge, chairman, or recorder, at the 
 trial can, if he thinks lit, reserve a question of law (but 
 not of fact) for a court for Crown Cases Reserved which 
 will be constituted by five or more judges of the High 
 Court, who can finally decide the question, reverse, 
 amend, or affirm the judgment. Only ten cases were 
 thus heard in 1882, only twelve in 1883; the criminal 
 law is, for the more part, very well settled, or at least 
 the judges who administer it, seldom have any doubt 
 about its provisions. 
 
 Lastly, the Queen can pardon a ciiiiiinal either abso- 
 lutely or upon condition, and this power wielded by the 
 Home Secretary is sometimes used as a means (a clumsier 
 means could hardly be imagined) of practically nullifying 
 an unsatisfactory verdict. More frequently it is used for 
 the purpose of mitigating the punishment of one found 
 guilty of murder, which now is almost the only crime 
 
 ' The record of the criminal trial of the Tichborne claimant fills 
 about two hundred pages of print, states at great length how the 
 court adjourned from day to day, but says nothing about any 
 evidence or any summing-up. [Cases on Appeal to the House of 
 Lords, Vol. 343). It is a fine collection of rai'diaival curiosities.
 
 XIV.] A CRIMINAL TRIAL. 17:'. 
 
 for which our law has but a single doom, to wit, death. 
 In general, the law does but fix some maximum punish- 
 ment, the judge can give less, and the prerogative of 
 mercy is but very seldom used to mitigate the sentence 
 that he passes. The subject of appeal in criminal cases 
 has lately been before parliament, and changes are to be 
 expected, but we must here take leave of the English 
 citizen on the confines of " The Penal System," 
 
 THE KXD.
 
 INDEX. 
 
 Admiralty, 7, 42, 47 
 
 Appeal, Court of, 20, 43, 55, 76, 
 
 171 
 Arrest, 118—123 
 Assize, Clerk of, 139 
 Assizes, 52, 53, 152—162 
 Attornev-General, 138, 142 — 145, 
 
 149, 164, 171 
 
 Bail, 130 
 
 Bankruptcy, 74 — 78 
 Borough, 94—99, 112 
 
 Central Criminal Court, 98, 
 
 160 
 Certiorari, 103—104, 157, 167 
 Challenging Jurors, 166 
 Chancellor, Lord, 24, 25, 36, 43, 
 
 64— 6S, 82, 149 
 Chancery, Court of, 36—42 
 Chancery Division, 43, 47, 53 
 Chief Ju.-tice, Lord, 44 
 Common Law, 32 
 Common Pleas, Court of, 35 
 Common Pleas Division, 31, 47 
 Constable, 106, 113, 118 
 Constable, Chief, 111 
 
 Head, 112 
 
 Parish, 105 
 
 Special, 107 
 Coroner, 133 
 
 Costs, 27, 52, 127, 138, 141 
 County Corporate, 71, 161 
 County Court, 22—30, 45, 66 
 Crime, what, 15, 16 
 Crown Cases Eeserved, Court for, 
 
 172 
 Custos Rotulorum, 82 
 
 Depositions, 132 
 Divisional (Jourt, 55, 56 
 Divisions of High Court, 46 — 48 
 Divorce, Court of, 42 
 
 Ecclesiastical Courts, 3, 5, 
 
 42 
 E(iuity, 36—41 
 Error, Writ of, 171 
 Evidence, 168 
 Exchequer, Court of, 35 
 Exchequer Division, 31, 47 
 Extradition, 9 
 
 Felony and Misdemeanour, 
 16, 63, 118, 130, 143, 166, 167, 
 171 
 
 Fugitive Criminals, 8 
 
 Gaol Delivery, 152, 155 — 159 
 
 Habeas Corpus, 131 
 
 High Court of Justice, 20, 43—56, 
 
 103, 128, 132, 158—161, 167, 
 
 171 
 Home Secretarv, 9, 14, 68, 101, 
 
 108—112, 147, 150, 172 
 
 Impeachment, 63 
 Imprisonment for debt, 72 — 74 
 Indictable offence, 15 
 Indictment, 136—139, 163 
 Information, Criminal, 136, 143 
 
 Exchequer, 144 
 
 before ilagistrate, 121, 122 
 Injunction, 39, 72 
 Interlocutory proceedings, 49 
 Ireland, 4—10, 59, 62, 148, 167
 
 176 
 
 INDEX. 
 
 Judges, County Court, 24 
 
 Suiireine Court, 43, 48, 65, 161 
 Jmlici.il Coimiiittee, 5, 59, 60 
 Jury, Coiiiiuon, 165 
 
 in County Court, 29 
 
 Grand, lij6, 137 
 
 in Higli I'ourt, 48, 53 — 55, 171 
 
 Special, 165 
 
 Petty, 165, 170 
 Justices, see Magistrates 
 
 JviNCj's Bench, sec Queen's Bench 
 
 Law Taxes, 67 
 
 Liberties, 81 
 
 London, City of, 97, 98, 109, 
 
 110, 160 
 Lords of Appeal, 58 — 60 
 Lords, House of, 20, 35, 38, 57, 
 
 64, 171 
 Lords Justices, 44, 48 
 Lord Lieutenant, 82 
 
 Magistkates, Borough, 94 — 07 
 
 County, 79—93 
 
 Metropolitan, 98—101 
 
 Stipendiary, 102 
 Mandamus, 45, 103 
 Masters of Supreme Court, 49 
 Metropolis, 26, 98, 108, 110 
 Misdemeiinour, ace Felony 
 
 Neav Trial, 55, 171 
 Nisi Prius, 154, 157 
 Nolle Prosequi, 140 
 Non-iutromitlant Clause, 97 
 
 Official Receivers, 75 — 78 
 
 Outlawry, 23, 139 
 
 Oyer and Terminer, 151, 155 
 
 Pardon, 14, 172 
 Peer, trial of, 63 
 I'enal Action, 17 
 Petition of Right, 145 
 Petty Sessions, 88—91 
 Petty Sessional Court, 89 
 Pleadings, 51, 164 
 
 Privy Council, see Judicial Com- 
 mittee 
 Probate, Court of, 42 
 Proliate Division, 44, 47 
 Public Prosecutors, 148 
 
 Quarter Sessions, 85—88, 95, 
 
 128, 152 
 Queen's Bench, Court of, 35, 45, 
 
 103, 156 
 Queen's Bunch Division, 43, 47, 
 
 158, 161 
 Queen's Proctor, 146 
 Quorum, 81 
 Quo Warauto, 18 
 
 Recorder, 95 
 
 Recorder of London, 98, 161 
 
 Registry, County Court, 25 
 
 Registry, District, 49, 50 
 
 Remand, 131 
 
 Rolls, Master of the, 21, 44 
 
 Rules of Court, 66 
 
 Scotland, 4—10, 59, 62, 148 
 Sheriff, 69—72, 166 
 Solicitor-General, 142, 143 
 Special Sessions, 88 
 Star Chamber, 5, 36 
 Summary Jurisdiction, 125 — 129 
 Summary Jurisdiction, Court of, 
 
 J^9, 90 
 Summons, Magistrate's, 121 — 1 23 
 Supreme Court of Judicature, 43 
 
 Town Council, 97, 112 
 Treasury, Solicitor tothe,146 — 1 Jl 
 
 Undersheriff, 71, 1G6 
 
 Venue, 6, 52, 161 
 
 "Wales, 3 
 Warrant, 121—123 
 Watch Committee, 112 
 Witnesses, Competence of, 163 
 Writ of Summons, 51 
 
 U)NDON : KICHARD CLAY ANU SONS, PRINTERS.
 
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