its admitted objects is to discover whether or not the debtor ought to be prosecuted for some one of those many forms of commercial misconduct that recent statutes have made crimes. A bankruptcy court cannot 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 Treasury Solicitor to prosecute. Whether or no the new Act is succeeding is a question about which opinions differ; a trustworthy answer can not yet be given.

1 See below, p. 146.

CHAPTER VIII.

THE COUNTY MAGISTRACY.

TURNING now to our Criminal Justice and Police, we have 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 visitations 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 importance. Then there appear some shadowy persons who bear the title of keepers or conservators of the peace, and

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 appointment prevails. From the year 1360 we may date the existence of justices of the peace as a definite permanent 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 supervision 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 present century, it is true, the province of the justice has in some directions been narrowed by the creation of other organs of local government.1 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, Fowle, Poor Law, chaps. iii., iv.

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.1 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 established. At present, to put the matter briefly, an estate in land worth £100 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 qualification. 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.2 In old times again the justices were paid four shillings a

1 Now that the liberty of St. Alban's has been merged in Hertfordshire, 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.

2 For a long time it was customary to omit the name of one justice from the clause constituting the quorum, but even this last relic of the old practice has, I believe, vanished.

day for attending sessions, but for a long while past the office has in fact been honorary, and now it is so even in theory; patriotism, a love of public 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 Custos 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 Custos Rotulorum. The Lord-lieutenant (though rather as Custos 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 Lordlieutenant for life.

The justices are appointed by the Queen, that is, by the Chancellor, who commonly acts on the recommendation of the Lord-lieutenant. From time to time a new

1 "Shallow. Sir Hugh, persuade me not; I will make a Starchamber matter of it; if he were twenty Sir John Falstaffs, he should not abuse Robert Shallow, Esquire.

"Slender. In the county of Gloucester, justice of the peace and

coram.

66

Shal. Ay, cousin Slender, and Custalorum. "Slen. Ay, and Ratolorum too."