Up until the 18th century, the rural, provincial or city magistrate largely had to make up his work as he went along. That might be a bit unfair, for there were legally trained clerks to assist them, but magistrates themselves were drawn from the gentry and, although some had originally trained for the bar, many others may not have had any legal training. The job came to them by dint of their social position, rather than any legal qualifications they may or may not have had.
And the legal situation was a minefield. Laws changed or could be misinterpreted; they could be a result of civil or common law, and some were based on ancient customs. There was no formal training for magistrates starting their commission, and the rural magistrate, in particular, might only have irregular contact with others in the same boat. These were the days before formal petty sessions – involving magistrates sitting together as a ‘bench’ – and the more informal summary proceedings that existed, where they involved more than one justice of the peace (JP), might comprise just two or three magistrates. They might not necessarily get on, and thus confidences about their lack of knowledge might not be aired or shared.
This all changed as time went on, with a recognition that there was a gap in the literary market here. Dr Richard Burn was not the only man to come up with a manual to help magistrates do their job, but he was the most prolific and best known, his The Justice of the Peace and Parish Officer being regularly revised and republished initially under his editorship, and then, after his death, continued by his son and others.
Burn the magistrate
Richard Burn was himself, unsurprisingly, a magistrate. Born in Westmorland in 1709, he had entered Oxford University in 1729 but then become a schoolmaster in his home town of Kirkby Stephen in before graduating – he only received his BA in 1735, at the age of 26. From the local school, he moved to Orton, still in Westmorland, becoming a vicar. However, he was clearly interested in the law, and after becoming a JP for Westmorland and the adjoining Cumberland, he started to seriously study the subject, first publishing The Justice of the Peace in 1755. He received some fame for this achievement, as well as his work on ecclesiastical or church law in 1760, and was recognised by his former university when he was awarded an honorary Doctorate of Letters in 1762. He later devoted himself to researching his county’s history, and died in Orton at the age of 83, in 1785. He left as his legacies his son John, born in 1744, and his magnum opus, The Justice of the Peace, which went through some 30 editions. Burn’s work was originally published in two small volumes, but by its 29th edition, in 1845, it stretched to four times this number, totalling 1200 pages. Today, the Oxford Dictionary of National Biography still refers to his book at ‘the most useful book ever published on the law relating to justices of the peace.’
A useful resource
The Justice of the Peace was designed as an alphabetical resource whereby the magistrate could look up an offence and see what it covered, how it could be punished or dealt with, together with useful legal precedents and case studies about how that offence had been dealt with previously. Historical copies of it today provide a fascinating insight into some of the offences our ancestors could be charged with, and how they were punished – as well as highlighting our ancestors’ preoccupation with property, sometimes punishing property offences more harshly than offences against the person. But it was more than this; the book also guided magistrates as to how they should do their job, and best practice in various issues. For example, there was no rule that stated that a JP should record their cases in writing, which could lead to erratic note-taking and keeping, or none at all. If anyone disputed a decision in their case, they might not be able to get the JP to refer to his record of that case – because there might not be any of that initial contact with the magistrate, which would likely have taken place in the informal surroundings of his own house. Burn therefore stressed the importance of keeping a written record of events – commenting ‘a record made by a justice of the peace of things done before him judicially in the execution of his office shall be of such credit, that it shall not be gainsaid. One man may affirm a thing, and another man deny it; but if a record once say the word, no man shall be received to aver or speak against it; for it men should be admitted to deny the same, there would never be any end of controversies’. Gradually, more and more magistrates started to make a note of their work. However, it’s important to note that this was not universally done, and that methods employed by JPs varied widely up until the formalisation of petty sessions in the 19th century. Today, relatively few notebooks from JPs’ work prior to the 19th century survive, but those that do show a widely differing approach in terms of detail recorded.
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It’s clear by its success that Burn’s book tapped into a huge demand from magistrates and clerks for formal guidance as to how best to do their job. Some magistrates would buy a single edition of Burn’s manuals, and then annotate them to update them. One 13th edition, dating from 1776, was owned by a Gloucestershire JP who annotated his copy, adding to the title page: ‘corrected to the fifteenth [edition]’, presumably to save a bit of money in buying a new edition himself. This was understandable, as the law could change fairly quickly, or cases be heard in court that could have a large impact on how particular felonies or misdemeanours might be classified or determined. The Bloody Code of the 18th century, which resulted in there being over 200 offences that could be punishable by death, and the subsequent removal of many of these capital offences in the 19th century, necessitated some kind of guidance for those administering the law at its lowest levels. Similarly, the multiplicity of Game Laws and their undoubted impact on rural communities – both in terms of the labouring classes seeking to catch game, and the gamekeepers employed to prevent them – needed a coherent guide. The 1776 edition of Justice of the Peace devotes a whole 90 pages to the Game Laws, from the issues of trespass to the rights and limitations of the role of gamekeepers.
As laws were changed, created or made obsolete, and as new offences came into being or cases were heard, so the manual was updated. In 1810, for example, volume three of the handbook detailed the offence of larceny in great detail, noting that ‘doing it openly and avowedly doth not excuse from felony’ and backing this point with a case from the London courts, where a man had travelled to Smithfield market to buy a horse, but on coming across a jockey wanting to buy one, the seller let the jockey ride up and down the market to ‘try it out’ – ‘but instead of that, the jockey rode away with the horse. This was adjudged felony.’ For modern readers, these individual cases can be a fascinating insight into how our forebears lived, what they stole – and how they stole it. Similarly, other offences highlight the lives of the poor, and their survival strategies, during the 18th century – from the requirement for hawkers and pedlars to be licensed, to the theft of firewood or apples – whereas others tell us about our ancestors’ working lives, such as the fines that could be levied against framework knitters if they produced sub-standard work – or no work at all. Therefore, during the 18th and early 19th centuries, Burn’s The Justice of the Peace provided magistrates with a useful guide to how to do their work – but in the 21st century, it provides a social and criminal history of our family members, in terms of what they did, how they did it… and how they could be punished for it!