Thursday, March 24, 2016

Justice of the Peace Manuals: Early American Law Textbooks

In recent years legal scholars and historians have begun mining justice of the peace manuals and related early court records as a way to understand the role lower courts played in the development of American law. The manuals were used by lay judges to address the day-to-day dealings of ordinary folks. They explained English common and statutory law in layman's terms, and helped justices of the peace settle trespass and hunting disputes, fine the keepers of alehouses, punish the foul-mouthed and blasphemous, address family matters such as marriage, adultery and divorce, and provide forms the local population could use to make contracts, deed land and write wills.

This guest post by Marguerite Most is a brief introduction to early justice of the peace manuals, which are a focus of the Goodson Law Library's special collections. While the focus of the collection is on manuals of colonial America, especially manuals published in the antebellum south, the collection also includes examples of early English manuals. Some of the manuals described in this blog post are on display until mid-April in the Riddick Room, along with other early English and American manuals. Most manuals mentioned here are available online in library-licensed databases, such as the Legal Classics Library in HeinOnline, Early English Books Online and the Making of Modern Law. These databases are restricted to Duke University users, but some titles can be found on free sites such as Google Books.

A few historians date the office of justice of the peace in England as early as the reign of Richard the Lion-Hearted (1189-99), when knights crossed the kingdom administering an oath to observe the king’s peace to men over age fifteen. Most historians date the office from the reign of Edward III and the Statute of 34 Ed. III, ch. 1 (1360), which established the office and empowered justices to try and imprison "offenders, rioters, and all other barators." (In Anglo-French a barator was a brawler.) The jurisdiction of the JP gradually expanded as political control moved from lords of the manor to the landed gentry. By the 1600s local government firmly resided in justices of the peace: local gentry who were seldom trained in law. These judicial officers had wide discretion and needed the guidance provided by justice of peace manuals. During the sixteenth century at least 57 editions of four different treatises were published.
  1. The Boke of Justices of Peas, 1506. This manual, cited as earliest known published manual, was first printed in 1506 and reprinted thirty-one times in the 16th century.
  2. The Newe Boke of Justices of the Peas, 1538. Original copies of these manuals are exceedingly rare. The two titles on display are facsimiles. Both titles suffered from numerous substantive omissions of statutes and many misspellings; neither provided sufficient guidance to justices in the work.
  3. Eirenarcha: or Of the Office of the Iustices of Peace, in four Bookes, first collected by William Lambarde, 1581. Black's Law Dictionary notes that in Roman law the word referred to a provincial justice of the peace. William Lambarde was a member of Lincoln's Inn and a justice of the peace. His manual was intended to correct mistakes and omissions in the earlier Boke of Justices and The Newe Boke of Justices. His 1590 revision of Eirenarcha noted for the first time that the office required the presence of someone "learned in the lawes" for jury cases, and that difficult cases were reserved to the Court of Assize or the King's Bench. The earliest manual in the Goodson Law Library's justice manuals collection is a 1582 copy of Eirenarcha, published during the reign of Elizabeth I.
  4. The Countrey Justice, 1618. Michael Dalton's manual was considered the most authoritative of its time. Dalton focused on powers of justices out of session and included citations to contemporary statutes and legal treatises. His manual was the first to use alphabetically-arranged legal headings under which he included common and statute law and contemporary court interpretations of case law. The Countrey Justice offered advice on such matters as customs, highways, prisons, riots, soldiers, murder, felonies, rogues and vagabonds, wool, and high treason. The manual was as popular in 17th century America as in England.
Lawyers in the colonies were scarce and often mistrusted. As the colonies expanded into less populated areas, men were needed to settle disputes and keep the peace. Men appointed to these justice of the peace offices were seldom trained in the law, and like their English counterparts, they relied on handbooks and manuals for guidance. Their powers varied somewhat from area to area, but they were usually the arm of the government with which the average man dealt. Like their English counterparts, they originally relied on manuals imported from England.

Not until 1722 was a justice of the peace manual printed in America. Conductor Generalis; or The Office, Duty and Authority of Justices of the Peace was printed in Philadelphia, and according to its publisher, it was derived almost entirely from an English manual by William Nelson, The Office and Duty of a Justice of the Peace. Demand for manuals in the northern and middle colonies led to the widespread publication of identical pirated manuals copied from contemporary English justice manuals. Although depending almost entirely on English law, precedents and practice, the early American-published manuals were readily available and have been credited with transferring common-law information to the lower courts and encouraging reliance on English law. The copying of entire paragraphs from English manuals has been noted as helping to establish similar legal systems across the colonies.

Table of matters covered in Conductor Generalis (1764 ed.)

In a process much like that in England, justices in the colonies were appointed by the governor and selected from lists of the gentry. A major difference between the colonial justices and their English counterparts was in the jurisdiction of the office. English justices sat as a court of record and had little jurisdiction in civil cases. Colonial justices had wide civil jurisdiction and sat as a court of record in criminal matters. Compared with their northern counterparts, southern justices of the peace had additional responsibilities, especially in dealing with larger slave populations. Perhaps in part in response to these increased duties, the first three original justice of the peace manuals written in colonial America were written by southern justices:
  1. The first truly American justice of the peace handbook was written by George Webb of Virginia. The Office and Authority of a Justice of Peace, published in 1736, relied heavily on earlier English books, but Webb’s manual was for local justices and included annotations and citations to the statutes of Virginia. In Virginia the JP dealt with hunting, hog-stealing, Indians, runaways, servants, slaves and tobacco, and spent time supervising morals - adultery, bastardy, bigamy marriage and religion came under his office. Virginia also declared as nonbailable offenses defaming public officials, blasphemers, marrying interracially, slave stealing, forging tobacco inspector's notes or receipts, and the burning or burglarizing of a tobacco warehouse.
  2. James Davis published the first manual for North Carolina justices in 1774. His The Office and Authority of a Justice of Peace relied heavily on Webb's 1736 Virginia manual of the same title because of its "universal esteem there and much adapted to the practice in this country." However, Davis updated his manual to reflect North Carolina law, and included an appendix with a variety of forms such as copies of land deeds, and copies of a lease, a mortgage, a power of attorney, and a bill of sale for chattel.
  3. The first South Carolina manual, The Practical Justice of the Peace and Parish Officer of His Majesty's Province of South Carolina, was published in 1761. Fear of a slave uprising is reflected in its text. Unlike the North Carolina and Virginia manuals where slave laws were recognized, Simpson’s book included thirty pages of Acts regulating slaves and explaining the duties of military patrols responsible for picking up slaves who were outside their plantations.
These early southern manuals provided their lay readers much more than a way to learn English law. By including American case and statutory law, and commentary, the manuals served as a textbook for local justices of the peace in the southern colonies.

The Goodson Law Library display of early justice of the peace manuals will be on view through mid-April. To learn more about early Justice of the Peace manuals, see these articles: John A. Conley, Doing it by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America, 6 The American Journal of Legal History, 257 (1985) and Larry M. Boyer, The Justice of the Peace in England and America from 1506 to 1776: A Bibliographic History, 34 The Quarterly Journal of the Library of Congress, 315 (1977).

--Marguerite Most, Reference Librarian and Senior Lecturing Fellow