Chapter VI. The kind of magistracy under the wigs of former days
Any one observing at that moment the other side of the prison – its façade – would have perceived the high street of Southwark, and might have remarked, stationed before the monumental and official entrance to the jail, a travelling carriage, recognized as such by its imperial. A few idlers surrounded the carriage. On it was a coat of arms, and a personage had been seen to descend from it and enter the prison. “Probably a magistrate,” conjectured the crowd. Many of the English magistrates were noble, and almost all had the right of bearing arms. In France blazon and robe were almost contradictory terms. The Duke Saint-Simon says, in speaking of magistrates, “people of that class.” In England a gentleman was not despised for being a judge.
There are travelling magistrates in England; they are called judges of circuit, and nothing was easier than to recognize the carriage as the vehicle of a judge on circuit. That which was less comprehensible was, that the supposed magistrate got down, not from the carriage itself, but from the box, a place which is not habitually occupied by the owner. Another unusual thing. People travelled at that period in England in two ways – by coach, at the rate of a shilling for five miles; and by post, paying three half-pence per mile, and twopence to the postillion after each stage. A private carriage, whose owner desired to travel by relays, paid as many shillings per horse per mile as the horseman paid pence. The carriage drawn up before the jail in Southwark had four horses and two postillions, which displayed princely state. Finally, that which excited and disconcerted conjectures to the utmost was the circumstance that the carriage was sedulously shut up. The blinds of the windows were closed up. The glasses in front were darkened by blinds; every opening by which the eye might have penetrated was masked. From without, nothing within could be seen, and most likely from within, nothing could be seen outside. However, it did not seem probable that there was any one in the carriage.
Southwark being in Surrey, the prison was within the jurisdiction of the sheriff of the county.
Such distinct jurisdictions were very frequent in England. Thus, for example, the Tower of London was not supposed to be situated in any county; that is to say, that legally it was considered to be in air. The Tower recognized no authority of jurisdiction except in its own constable, who was qualified as custos turris. The Tower had its jurisdiction, its church, its court of justice, and its government apart. The authority of its custos, or constable, extended, beyond London, over twenty-one hamlets. As in Great Britain legal singularities engraft one upon another the office of the master gunner of England was derived from the Tower of London. Other legal customs seem still more whimsical. Thus, the English Court of Admiralty consults and applies the laws of Rhodes and of Oleron, a French island which was once English.
The sheriff of a county was a person of high consideration. He was always an esquire, and sometimes a knight. He was called spectabilis in the old deeds, “a man to be looked at” – kind of intermediate title between illustris and clarissimus; less than the first, more than the second. Long ago the sheriffs of the counties were chosen by the people; but Edward II., and after him Henry VI., having claimed their nomination for the crown, the office of sheriff became a royal emanation.
They all received their commissions from majesty, except the sheriff of Westmoreland, whose office was hereditary, and the sheriffs of London and Middlesex, who were elected by the livery in the common hall. Sheriffs of Wales and Chester possessed certain fiscal prerogatives. These appointments are all still in existence in England, but, subjected little by little to the friction of manners and ideas, they have lost their old aspects. It was the duty of the sheriff of the county to escort and protect the judges on circuit. As we have two arms, he had two officers; his right arm the under-sheriff, his left arm the justice of the quorum. The justice of the quorum, assisted by the bailiff of the hundred, termed the wapentake, apprehended, examined, and, under the responsibility of the sheriff, imprisoned, for trial by the judges of circuit, thieves, murderers, rebels, vagabonds, and all sorts of felons.
The shade of difference between the under-sheriff and the justice of the quorum, in their hierarchical service towards the sheriff, was that the under-sheriff accompanied and the justice of the quorum assisted.
The sheriff held two courts – one fixed and central, the county court; and a movable court, the sheriff’s turn. He thus represented both unity and ubiquity. He might as judge be aided and informed on legal questions by the serjeant of the coif, called sergens coifæ, who is a serjeant-at-law, and who wears under his black skull-cap a fillet of white Cambray lawn.
The sheriff delivered the jails. When he arrived at a town in his province, he had the right of summary trial of the prisoners, of which he might cause either their release or the execution. This was called a jail delivery. The sheriff presented bills of indictment to the twenty-four members of the grand jury. If they approved, they wrote above, billa vera; if the contrary, they wrote ignoramus. In the latter case the accusation was annulled, and the sheriff had the privilege of tearing up the bill. If during the deliberation a juror died, this legally acquitted the prisoner and made him innocent, and the sheriff, who had the privilege of arresting the accused, had also that of setting him at liberty.
That which made the sheriff singularly feared and respected was that he had the charge of executing all the orders of her Majesty – a fearful latitude. An arbitrary power lodges in such commissions.
The officers termed vergers, the coroners making part of the sheriff’s cortège, and the clerks of the market as escort, with gentlemen on horseback and their servants in livery, made a handsome suite. The sheriff, says Chamberlayne, is the “life of justice, of law, and of the country.”
In England an insensible demolition constantly pulverizes and dissevers laws and customs. You must understand in our day that neither the sheriff, the wapentake, nor the justice of the quorum could exercise their functions as they did then. There was in the England of the past a certain confusion of powers, whose ill-defined attributes resulted in their overstepping their real bounds at times – a thing which would be impossible in the present day. The usurpation of power by police and justices has ceased. We believe that even the word “wapentake” has changed its meaning. It implied a magisterial function; now it signifies a territorial division: it specified the centurion; it now specifies the hundred (centum).
Moreover, in those days the sheriff of the county combined with something more and something less, and condensed in his own authority, which was at once royal and municipal, the two magistrates formerly called in France the civil lieutenant of Paris and the lieutenant of police. The civil lieutenant of Paris, Monsieur, is pretty well described in an old police note: “The civil lieutenant has no dislike to domestic quarrels, because he always has the pickings” (22nd July 1704). As to the lieutenant of police, he was a redoubtable person, multiple and vague. The best personification of him was René d’Argenson, who, as was said by Saint-Simon, displayed in his face the three judges of hell united.
The three judges of hell sat, as has already been seen, at Bishopsgate, London.