CHAPTER NINE Michael Dalton

Some years ago, Sir Nikolaus Pevsner, a noted British art historian, began a short history of European architecture with the categorical assertion:

A bicycle shed is a building; Lincoln Cathedral is a piece of architecture.

The distinction is a sound one, and at a remove applicable to legal literature, in which many landmarks have been built on architectonic lines. William Blackstone in his Commentaries on the Laws of England likened the common law to “an old Gothic castle,” while the work itself achieves the symmetry and proportionality based on mathematical modularities characteristic of the simple harmoniousness of eighteenth-century Classicism. Nothing less could be expected of the All Souls don who wrote a short treatise entitled Elements of Architecture.² There can be no doubt that Edward Coke's First Institutes, “Coke upon Littleton,” was a Jacobean capital messuage, for here indeed was a veritable eclectic pile, neither mediaeval nor Renaissance but pure Mannerism!

Michael Dalton's The CountreyJustice does not present, or claim to pre­sent, aesthetic appeal. Here is our bicycle shed—and hardly more than that, notwithstanding the title page's classical (and conventional) decorative chaos of obelisks, strapwork, columns, fruit garlands and grapevines, lion's head, crown, Tudor rose, and two putti. This purse remains a pig's ear. The work is a functional vessel, useful without any claim to beauty, about as stimulating to read as a computer guidebook, wanting in any literary em­bellishment beyond the Epistle Dedicatory and the Epistle to the Benchers of Lincoln's Inn. Nonetheless, The Countrey Justice was a best-seller, main­taining its popularity for almost a century and a half.

Being a best-seller does not guarantee the status of classic absent some other quality. If it is difficult, given The Countrey Justice’s intrinsic demerits, to assert its status as a classic work of legal literature, the book's extrinsic merits more than make the case. First, The Countrey Justice provides the most comprehensive and readily obtainable introduction to seventeenth­century English criminal law, both at common law and by statute, available. Second, it opens for the discerning reader a singular institution without parallel elsewhere—lay magistracy—at a critical juncture in its history with long-lasting results for the common law's understanding of justice and the rule of law and for Anglo-American constitutionalism. Third and finally, in substance and in form The Countrey Justice proved to have at least modest influence on the early development of the law in the New World, making it one of a handful of English legal works with direct applicability to early American colonial law.

Michael Dalton was Cambridgeshire born and bred. His birthdate is unknown. Since he matriculated at Cambridge as a commoner of Trinity College in 1580, he was probably born about 1565. He died in 1644, by contemporary standards a very old man indeed. Of a gentry family seated at Hildersham nine miles southeast of Cambridge, Michael, the eldest son and heir of Thomas Dalton, gent., and Eleanor Jellebrand, was admitted to Lincoln's Inn in 1581 via Furnival's Inn.

Unlike Spencer, Dalton does not appear to have been a well-practiced barrister. In the Epistle, he declares,

I confesse my self a long, yet an unprofitable member of your honourable So­ciety, but seeing that my calling is to a Countrey life, and considering that he which is of the meanest condition, and that hath the smallest talent, may not (without just reprehension) retire himself so to his private pleasure, or profit, as that he should neglect to shew some fruit and token of his love to his Countrey

Allowing for the self-deprecation conventional to this genre, there is some circumstantial evidence to indicate that the author was in fact “unprofit­able” so far as practice was concerned. He is not to be found among some twelve hundred barristers who, between 1603 and 1625, signed pleadings in Star Chamber. Such involvement is a relatively good indication of the nature and the extent of a barrister’s practice. The vast majority of counsel signing Star Chamber pleadings did so fewer than a half-dozen times, usu­ally for clients from the county in which the barrister also resided. Not to have signed any at all is a rare phenomenon.⁶

Equally revealing is the fact that Dalton, “an ancient Utter Barrister,” was called an associate to the bench of Lincoln’s Inn in 1622, paying £20 be­fore taking his place and £20 to the chapel.⁷ Benchers of an inn were those successful barristers at the height of their careers who governed the inn, in an increasingly autocratic way.

In any case, Dalton should be taken at his word, that his “calling was to a Countrey life.” He settled in a comfortable house in West Wratting, four miles east of his birthplace, close by his younger brothers (the family was remarkably nucleated even for that time), in Chilford Hundred. In 1609, he was assessed £20 annual value in lands, which made him a substantial squire aside from any other income from profession or office.⁹ From West Wratting he served alma mater in a role appropriate to a country lawyer: he was deputy-steward of Cambridge University by 1604, presiding at its courts baron and handling some of its legal matters.¹⁰ Early in James’s reign he was in the commission of the peace for Cambridgeshire, in 1608 ranking second from the bottom among the mere Esquire justices of the peace.¹¹ By 1621, he was “of the quorum” (a JP of the quorum was usually necessary when more than a single JP acted), a status readily accorded a barrister and probably conferred upon him much earlier.¹² He was doubtless still in the commission for Cambridgeshire at his death in 1644, though the last extant list is almost a decade earlier.¹³ He served four decades as a justice of the peace.

Dalton apparently managed to avoid other county offices appropriate to his rank.

Had Dalton served in these parliaments, where the issues between the King and his ministers on the one hand and the Commons on the other were defined in increasingly narrow and uncompromising terms both po­litical and religious, his position would have been clear enough. His loyalty to the institutions of the common law under God and the King was un­questionable: The Countrey Justice makes that evident. In his religious sen­timents his dutifulness was more ambivalent. In 1642, he wrote—but did not publish—a cranky, detailed chronology of the Roman Catholic Church entitled, “A Breviary of the Roman or Western Church and Empire, Con­taining the Decay of True Religion and the Rise of the Papacy.”¹⁵

Beginning with Christ and ending with Luther, he unfolded the sorry tale of the full and final manifestation of “anti-Christ” in the sixteenth-cen­tury papacy in more than two hundred pages of mostly obscure facts (real and supposed) and vitriolic interpretations. Dalton was clearly an advanced Puritan of the sort that in his generation Cambridge University produced and Lincoln's Inn nurtured (William Prynne and Henry Sherfield being the prime examples of the visible saints of Lincoln's Inn).

The CountreyJustice bears the indelible traces of Michael Dalton's bucol­ic preference. In the Epistle, in referring to “his love to his Countrey,” and to “seeing some others amongst you, whose fortunes prove (as mine doth) to withdraw themselves into their Countreys,” Dalton uses the term in its common contemporary sense of “county” The vast majority of examples of instruments that he offered as precedents are taken from Cambridgeshire justices' records, and many of those from Dalton's own commonplace book. A good example is the precept to the sheriff (in the nature of a venire facias) to return a jury for trial of offenses which by statute two or more justices could hear and determine out of quarter sessions: the precept is Dalton's own, tested before him at West Wratting.¹⁸ There are more than twoscore explicit references to judges of assize at Cambridge assizes—their jury charges, directions, opinions, and cases between the years 1605 and 1633. In every instance but one, Dalton spoke from his own knowledge, having clearly been present at the assizes. In the case of the exception, he reported, “as I have heard,” the advice given to a coroner at the Bury St. Edmunds assizes by Chief Justice Coke.¹⁹ Cambridge was a shire town on the Norfolk Circuit, the most desirable of the six assize circuits, and since the choice of circuit was by precedence based on rank and seniority among the twelve judges of the three common-law courts, invariably one of the two circuit judges was a chief justice and the other a senior puisne judge. Consequently, Dalton had the opportunity to hear the law construed by six Chief Justices—John Popham, Edward Coke, Henry Mountagu, James Ley, Ranulf Crewe, and Nicholas Hyde—as well as old hands like Justices Peter Warburton, John Doddridge, and Francis Harvy. Dalton likely knew little of what happened on other circuits in an age when reporting rarely took account of assize cases, but, when tolled by Dalton, these judges' pro­nouncements carried great weight and resonated well beyond Dalton's own “countrey”

Moreover, Dalton enjoyed a certain intimacy with the judges. On the question of whether JPs could suppress excessive numbers of alehouses, following an assizes at Cambridge (probably in 1621), “Sir James Ley told me after at his lodging in Trinity Colledge that this was the opinion of all the other Judges upon late conference had among themselves.”²⁰ Dalton was not timid about alluding to his own magistratical experiences, whether demonstrated by an unusually weighty supplicavit from Chancery to him­self and other JPs;²¹ his initiative, later approved of by the judges of assize, in binding to good behavior one who fed grain mixed with rat poison to his neighbors' chickens;²² or his agreement with “worshipfull and grave ma­trons” that, despite “received opinion,” a mother could deliver a stillborn child without help, thus making nonsense of the presumption that a dead newborn of a woman unattended at birth must have been born live and murdered.²³ Some experiences had been fraught with peril: a warrant of arrest from the Lord Chancellor that did not give the cause or grounds for the arrest raised the possibility of an action against the JP.²⁴ In any case, The Countrey Justice so well captures the presiding deities of its author's locale that it might well be entitled The Cambridgeshire CountreyJustice.

That provincialism would not explain the book's popularity. Neither would its uniqueness. It was the fourth handbook on the role and prac­tice of the justice of the peace to appear since the advent of printing. The first handbook had been the Boke of Iustices of Peas, The Charge with All the Processe of the Cessions, which was directed more at the clerk of the peace, the officer responsible to the justices of the peace at their general quarter sessions, than to the JP. The demand for such a text is clear: first published by that early and enterprising legal printer Richard Pynson in 1506, this book was printed twenty-nine times, for the last time in 1574.²⁵ The second handbook was a version of the first, pirated by Anthony Fitzherbert, under the title LoJJice et Auctoryte des Justyces (later as TheNewe Boke of Iustices of the Peas), which also had a long run in the sixteenth century.²⁶ The third hand­book was a far more serious and even scholarly undertaking by a notable Elizabethan lawyer and antiquarian, William Lambarde, a Master of Chan­cery. Eirenarcha: Or the Office of the Justices of Peace went to thirteen editions between 1581 and 1619.²⁷ Lambarde was a learned man of great curiosity, a skilled researcher of expansive grasp, always reluctant to abandon a subject until he had fully fathomed it and even more fully explained it. With such assiduity and thoroughness went verbosity and pedantry. With Lambarde the well-turned phrase often became the purple passage, and while that made Eirenarcha good reading, it also made the book hard to use. The handbook’s size and type—it was a small octavo in dense black-letter—and arbitrary arrangement of topics did not help the reader. It was strongest on the collective role of JPs in quarter sessions, somewhat neglectful of the work done of an individual JP or a handful of JPs out of sessions. It is not accidental that the last edition of Eirenarcha appeared the year after the first edition of The Countrey Justice. Between the two, there was no contest.

Format alone would commend The Countrey Justice. A small folio with good margins, Roman type for English and distinctive Italic for other lan­guages, it was arranged into relatively short chapters containing clear subject matter, divided into succinct paragraphs of a few concise sentences each. Its overall arrangement was by alphabetical title, the fundamental taxonomy of the age, to be found in the ubiquitous commonplace book that literate and literarily inclined persons kept for purposes of record, reference, and recall. Alehouses to Affray to Armour to Barrator to Bastardy... This begs logical arrangement, but it did allow quick recapture of a particular subject without any other index or finding guide. It corresponded to the realities that an individual JP would confront, faced in his manor house’s “room of office” (which was in way of being called his “courtroom”) by a con­stable with a miscreant in tow. Whether the latter was an alehousekeeper, an “Egyptian” (gypsy), a felon, a laborer, a pauper, or a rogue, the party was clearly someone fitting into a recognized category in Dalton. Most impor­tant of all, Dalton was always explicit about what things a single JP might do, what things required more than one JP, what things were to be left to the justices of the peace in quarter sessions, and what things must be sent to the judges of assize. These distinctions took on a new urgency by the end of the sixteenth century, the result of a rapid increase in the duties, respon­sibilities, and powers of justices of the peace by legislation, ordinance, and direction, matched by heightened surveillance and accountability.

Lambarde first detected the shift, having felt its weight as a Kent JP in the 1580’s. He remarked plaintively: “Then, how many Justices, (thinke you) may now suffice (without breaking their backs) to beare so many, not loads, but stacks of statutes, that have since... [Henry VII’s] time bene laid upon them?”²⁸ Dalton, no less than Lambarde, grasped the significance of the work, and he realized as well that the shift worked by Tudor statutes put power and discretion in the hands of JPs out of sessions:

The Commission of the Peace in it self doth leave little (or nothing) to the dis­cretion of the Justices of Peace; but doth limit them to proceed secundum Leges, Consuetudines, Ordinationes & Statuta [according to the laws, customs, ordi­nances, and statutes].... But by some late Statutes, some things are (therein by speciall words) referred to the discretion of the Justices of Peace; some out of Sessions, and some at their Sessions.²⁹

Dalton goes on to list particularly those areas in which they were to exercise discretion outside quarter sessions. The magistrates’ increased discretion was the corollary of the profound change taking place in their role and function. It was less discretion in judicial matters than in administrative affairs. They had, in the course of the sixteenth century, been transformed from judges into the principal county administrators:

Even at the beginning of Elizabeth’s reign, the justices were still basically judi­cial officers. By the time of the Queen’s death [1603] there could be no mistak­ing the fact that they had become administrators as well.³⁰

The weight of administration fell upon them out of sessions, on the indi­vidual JP or group of two or three JPs. The two final statutes of the Tudor “stack”—the Poor Laws of 1598 and 1601—were the heaviest of all. In the four decades following their promulgation, these two statutes, the second building upon and advancing the first, radically changed the nature of mag­istracy.

Those four decades were precisely the ones during which Michael Dalton exercised his “calling” as a country justice. The first edition of his handbook, 1618, was both somewhat simpler and shorter than later ver­sions, reflecting merely the beginning of a current that would become a tidal wave. In the last edition prepared by Dalton himself, that of 1635, the tidal wave is evident, especially in those chapters dealing with alehouses, bastardy, bridges, cloth manufacturing, highways, laborers, maltsters, the poor, rogues, stock of the shire, and weights and measures. Beginning in the later 1620’s and continuing through the 1630’s until rebellion and revo­lution overtook all institutions of Stuart England, Charles I’s Privy Council dictated vastly increased activity at the local level to deal with dearth and poverty and public order. This was the manifestation of “strict and strait” governance, the intention of King and Church to rule with a reforming vig­or. Much of this program was promulgated in the Book of Orders, published in 1630 and distributed to all the justices of the peace in England and Wales; Dalton refers to it explicitly.³¹ The Book of Orders and various cognate demands fell upon the justices of the peace as a continuous responsibility, essentially a weekly round of duties, and resulted in “petty sessions,” the regular activity of two or more JPs meeting within their local division. This was no longer merely “out of sessions” work; it was a recognized gathering to implement the Council's directives and to do such other business, ad­ministrative and judicial, as was required of two or more JPs. Petty sessions, becoming fundamental to magistracy's routine administration of local gov­ernment, survived the Interregnum to become an established institution of government and judicature after 1660.

With added powers and responsibilities came vastly increased oversight. The ultimate and final overseer was the King and his council of ministers. The Privy Council of Dalton's era was a remarkable body. It was trim and muscular, well-organized, and served by a very small but effective profes­sional bureaucracy. It aspired to something approaching omnipotence and almost achieved omniscience. Very little that happened anywhere in the realm escaped its attention, and it moved swiftly and ruthlessly to deal with situations that posed the slightest threat of disorder. The Litany of the Book of Common Prayer, by which the English perforce worshiped in the state Church, struck the right prudential, perhaps even slightly hysterical, note: “From all sedition, privy conspiracy, and rebellion; from all false doctrine, heresy, and schism; from hardness of heart, and contempt of thy Word and Commandment, Good Lord, deliver us.”

The Privy Council's concern was particularly the first triad of evils. High Commission could take care of the rest. For both intelligence concerning and the execution of its orders, the Council had to rely upon the loyalty, assiduity, and discrimination of the JPs. There was no other primary agency on the ground to serve as the eyes, ears, arm and hand of the Council than those unpaid and increasingly overworked country squires.

The Privy Council frequently summoned JPs to appear before it, ex­plain themselves, and stand such correction and punishment for malfea­sance and misfeasance as the Council thought fit. That was a cumbersome and time-consuming method of surveillance. Coevally with the “stacks” of Tudor statutes there developed a more immediate mechanism for oversee­ing the justices' work: the assizes. Dalton's Chapter 120, “Certain Advices to the Justices of Peace,” soundly and prudently admonishes them as to their comportment, both as matters of simple justice (a party “cannot be a Judge indifferent,” etc.) and because statutes provided specific penalties for failure to do right.³² Further to these, “there are certain other things principally tending to the publike good, and lately commended from His Majesty, (by the Judges of Assise) to the care of the justices of peace”; and Dalton sets down ten articles to that effect.³³ These are arresting, both substantively and adjectively. Substantively because they were precisely those matters of stricter governance to which Charles and his Council gave extraordinary prominence in the 1630’s; adjectively, because the agency for both direction and oversight was the judges of assize. The judges were the link between the Privy Council and the local magistrates. Dalton drives home the impor­tance of the judges in a concluding paragraph, part Latin, part law French, quoting from a Year Book of 1484: while justices who acted in ignorance of the record or for want of knowledge would not be punished, or punished for things done in a judicial way, “the justices of assize are able to hear and punish the defaults of justices of the peace, to wit, for their contempts, omissions, negligences, favours, affections, corruptions, and other defaults whatever.”³⁴ That gave a wide discretion to the judges of assize, and one that the judges freely exercised in Dalton’s time. Little wonder that Dalton found it advisable to cite repeatedly what the judges said at Cambridge assizes. Or that he devoted seven pages to “Resolutions of the Judges of Assises, 1633,” on thirty-eight critical questions arising out of ambiguities surrounding the Poor Laws of 1598 and 1601.³⁵

From 1596 until the rebellion of the 1640’s, the judges of assize, before departing on their semiannual circuits, received instructions as to what they were to move the JPs to do. The government’s agenda was presented in the form of a solemn charge given to the judges (and to such JPs as happened to be in the metropolis and would attend) in the Star Chamber. This was usually the task of the Lord Chancellor acting for the King and Council. Twice, significantly, the charge was undertaken by another. Before the sum­mer in assizes 1616, James I himself gave the charge in a notably abrasive speech intended to bring to heel the judges of the three great common­law courts—who were also the judges of assize—for unrest that they had manifested in the court of Star Chamber and elsewhere at the instigation of the Chief Justice of the Common Pleas, Sir Edward Coke.³⁶ It was an admonition Coke did not heed, and five months later he was sacked. Before the Lent assizes in 1628, the charge was given by Bishop William Laud, a charge full of episcopal (though not divine) exhortation directed against the Puritans, serving to spotlight a new power in Church and state.³⁷

As the JPs were reprehended by the judges of assize, so the latter were accountable to the Privy Council. Sometimes it was in a very direct way, and especially after William Laud rose to prominence in Charles I’s coun­sels and used both ecclesiastical and civil power to harass Puritan believers. In 1633, Sir Thomas Richardson, Chief Justice of the King's Bench, when sitting as a judge of assize on the Western Circuit, lent himself to the op­position of more than half the Somerset justices of the peace to disorderly parish fetes—much detested by Puritans—despite regal and ecclesiastical approval of the fetes. The Chief Justice was swiftly brought before the Privy Council, so roughly handled by Bishop Laud that he wept, and was as­signed to the least desirable circuit for the rest of his short career on the bench.³⁸

To emphasize the administrative labors of JPs in fulfilling the exigencies of Tudor monarchy and Stuart strict and strait governance should not ob­scure the marked increase of activity in the magistrates' traditional judicial role. Overall, Tudor legislation increased the number of crimes prosecut­able, either by creating new offenses or redefining common-law offenses. Some were statutory felony (buggery and Roman Catholic subversion), but many more were misdemeanor (perjury, forgery, various forms of un­lawful force, fraud). Dalton devotes to “Felonies by Statute” every page of his very long Chapter 106, indicating those statutory felonies that the JPs could hear and determine in quarter sessions, as well as those that they could not.³⁹ Statutory misdemeanors were often triable by two or more jus­tices out of sessions. Driving the machinery of justice, even at the justice's humble level, was the rapid development of the criminal common law by the superior courts. First and foremost of these was the High Court of Star Chamber, which by the time of its abolition in 1641 had fashioned a remark­ably well-structured and quite sophisticated body of misdemeanors of the sort that today we would call white collar crimes. The most astute contem­porary commentator on the criminal law, Ferdinando Pulton, devoted the first nine of a total of sixteen chapters in his treatise to misdemeanor, and the remaining seven to treason and felony. He argued that the king's peace was less threatened by the old rough-and-tumble violent felonies than by the new and more sophisticated misdemeanors of covin and oppression.⁴⁰

These new crimes were readily absorbed by the common-law courts, particularly the King's Bench and the assizes. A miscreant convicted at as­sizes in 1639 for criminal libel by tokens (a lamb's skin with sheep horns) set over a cuckold's door was punishable there exactly as he would have been in Star Chamber, where the offense itself was created and developed.⁴¹ This creative urge was felt and given effect even by the JPs. Though there were no statutory or common-law offenses of the sort that waited for criminal­ization until the later nineteenth century's Offences Against the Persons Act—gross indecency, indecent assault, etc.—quarter sessions indicted and tried perpetrators of such acts for simple assault but with enough aggra­vating circumstances to make the penalty very harsh. “Countrey justices,” within limits, could play as well at quarter sessions as Privy Councillors did in Star Chamber in extending the law to newly appreciated depredations and newfound delicts.

The criminal law activity that weighed most heavily on the single JP out of sessions was enjoined by two acts of Mary Tudor in the mid-six­teenth century. By those acts a JP was required to examine a suspected felon brought before him by a peace officer and to depose on oath the accusers and witnesses against, write down what was said, and either commit the suspect to gaol or bind him over to the next assizes or quarter sessions for indictment and trial. (The accusers and witnesses were also bound over to testify.) While the suspect was not questioned on oath, this was likely to be the best chance he had to put his case clearly, and often the justice's exami­nation was lengthy. Depositions always were. The process was extremely time consuming, it occurred fitfully and often most inconveniently, and it required the examining JP to come to a prima facie conclusion, no matter how tentative, as to the facts of the case. Either at assizes or quarter ses­sions, the JP would have a hand in drawing the indictment and might speak at trial of his own knowledge. And inevitably, though the statutes enjoined this elaborate pre-indictment procedure only for felony, because that crime might not always be distinguishable at first blush, JPs applied the same procedure to crimes that appeared to be only misdemeanors. In Chapters 111-113, Dalton goes into this procedure at great length and provides a pro­file of a felon to guide the JP in his examination, showing a subtlety that would have made John Henry Wigmore proud.⁴²

It is because of this pre-indictment activity that The CountreyJustice pro­vides such a useful and compendious overview of contemporary criminal law, from high treason to the pettiest misdemeanors. Pulton's De Pacis Regis et Regni is both rare and difficult to use; despite its simple arrangement, it is very full, verbose, and in places plainly opaque. Sir Edward Coke's Third Institutes, devoted to the criminal law, is as intractable in both taxonomy and prose as anything Coke wrote. Sir James Fitzjames Stephen damned it by faint praise; it was “less ill-arranged” than Coke upon Littleton, he remarked, and then added, “for each offence is put in a chapter by itself, but where any arrangement is wanted it is very bad.”⁴³ In Dalton the twentieth­century reader can come to a working command of the substantive criminal law of the seventeenth century with the least possible difficulty and with real confidence in its accuracy.

Most significantly, The CountreyJustice reveals in stark outline how heav­ily late Tudor and early Stuart government weighed upon the justices of the peace. It reveals their vulnerability to the scrutiny, suasions, and strictures of the protomodern state, with all of its ambitions and absolutes, sure in its power and assured in its authority that it could do almost anything. For the absolutist polity of early modern kingship in Tudor and Stuart England was no less a reality than it was in France or elsewhere on the Continent. It was simply not as absolute in its results. Though more highly centralized than the French Bourbons were ever able to achieve, the English state lacked the legal and institutional dependency on the solo-monarch that ancien regime France managed. English absolutists never established an adequate system of prosecution, as the Valois-Bourbon kings achieved by attaching a royal procurator to each court; nor did English monarchs possess an effectual, reliable, and obedient police force like the Valois-Bourbon gendarmerie. The Tudors and Stuarts were unable to fashion a judicial hierarchy with a system of appeals and reviews that ultimately concentrated all juridical force in councillors intimately beholden to the monarch; Star Chamber was different in kind and in degree from the Conseil Prive in France, which was able to subvert the ancient sovereign courts of the French provinces and control their noble judiciary. No Tudor or Stuart monarch could pluck out of the university the Roman law, with all of its imperial resonance and reverence for the purple and the ermine. and make it the law of the land, as French kings did from the fifteenth century onward. Finally, Tudor-Stuart monarchy never managed to put to sleep the ancient institution of medieval mixed monarchy, the “estates” of clergy, nobility, and commonalty. While the personal rule of French monarchs began in 1614, when Louis XIII dis­missed the Estates-General, and lasted until 1789, when until Louis XVI facing rebellion was forced to summon it again, Charles I's Personal Rule survived only the eleven years from 1629 to 1640 and ended emphatically with the Long Parliament that would finally destroy him and make Eng­land a republic for a long and nasty season.

Whatever the inclination of English monarchs for absolutism on the continental model, their failure to reduce their nation's political and legal institutions to dependence and craven obedience was due to the vigorous common law and vigorous common-law judges. In the common law all of the old strengths survived unimpaired: Magna Carta (thrice cited by Dal­ton), the juries of indictment and trial, the reduced scope for wholesale leg­islative reform, the inescapable fact that the King alone could not legislate because the power to make new law lay only in the King-in-Parliament. In the case of the judges, though the early Stuart judiciary would be roughly treated and in some cases judges would be sacked for reasons unclear even to them and nearly irretrievable historically, the judiciary was never sub­verted.⁴⁴ The judiciary even survived the revolutionary republican regime that proved a greater threat to its probity and independence than “Charles Stuart, tyrant” had ever been. The seventeenth-century reader who on page 500 of the author's copy of The Countrey Justice contemptuously restyled Oliver Cromwell, Lord Protector, “ould rednosed Noll that Grand Tirant,” knew what he was talking about.

And then there were also the vigorous justices of the peace. They played a special role. They were never wholly dependent upon the king. They were substantial country gentlemen of landed worth, and they had a natural claim to the leadership of their communities and the direction of their neighbors. The king's commission gave them powers to be used to lawful ends, albeit not entirely without some personal advantage. But it did not make them powerful. Their power relied ultimately on their inherent social status and capacity to command their countrymen. They received no financial reward for their labors; the office was one of expense, not profit. If the justices lost office, they did not lose everything.

If, however, the king lost the justices, he could not govern. If he lost their allegiance, not only could he not govern, but they might become a formidable enemy. The 1630's, during the Personal Rule of Charles I and the almost frenetic activity to which the JPs and other local officials were then called, was the period in which the King not only began to lose the support and affection of those local governors, but he also stood to lose their allegiance. Of the 547 men who served as Members of the House of Commons in the Long Parliament before Pride's Purge in 1648, more than two-thirds had served as local governors, most of these as JPs, in the 1630's. They had had a grandstand view of the Personal Rule. They knew how disastrously most of its policies had failed, despite their best efforts and the enormous pressure that Charles and his councillors had put them upon. As the Long Parliament got down to business on November 4, 1640, to dis­mantle the Personal Rule—successfully, since almost everything attempted by the king had been undone by the summer of 1641—it was these local governors who knew just how wrong everything had gone. Their bitterness was an ill omen for Archbishop William Laud and Thomas Wentworth Earl of Strafford, the king's two great councillors, both of whom would perish on the block on Tower Hill at the hands of the Long Parliament. Worse, in the bitterness of those ancient local governors, or at least in their newfound neglectfulness and growing undutifulness toward King Charles, there was an even chillier omen, as raw as the January day in 1649 when Charles lost his head at Whitehall.

On such a note one does not leave Michael Dalton or any other mere “country justice” in his old age. Indeed, there is something verdant about Dalton. He can still excite anyone aware of how much our legal tradition owes to lay judges, to one facet of that “trial by peers” that we celebrate unceasingly in Magna Carta. The author confesses that in leafing back through Dalton to write this essay, he embarked upon the recall of souvenirs du temps perdu, not so much a sentimental journey as a reinvigorated sense of what the common law means by the rule of law. The author bought his copy of Dalton for five guineas at a London bookshop in 1952 as he set out to learn all there was to learn about justices of the peace and other local governors in a certain county in the West of England. This was to fulfill the University of Oxford's statutory requirement that a D.Phil. thesis be an original contribution to knowledge in fit form for publication. No one reckons in guineas anymore, and the statutory requirement seems to be honored nowadays much in the breach. Dalton's usefulness, though, has not diminished a whit. It remains amazing how much can be learned about the law in Dalton, and how little devoted research of the last five decades has changed the detailed picture retrievable from The CountreyJustice.

One also hymns the country justices' longevity. In the last half-century, a succession of British governments (mostly Tory, as distinct from anything rationally called conservative) have changed the face of English institutions. The ancient counties, that had existed virtually unchanged from Anglo- Saxon days, were rearranged, one disappearing entirely, others hacked out of all recognition (the county in the West losing its top third to become something called Avon); pounds, shillings and pence went, replaced by a decimal currency; the old line regiments of the British army were amalgam­ated or stood down; etcetera, etcetera. Some of the largest changes have been in legal institutions. By the Courts Act of 1971, the court of quar­ter sessions was abolished, its extensive jurisdiction (as that of assizes, also abolished) being assumed by a new Crown Court, with about seventy cen­ters covering England and Wales, which became the superior criminal court at first instance. But petty sessions is with us yet, in the magistrates' court, with three JPs, still unpaid laymen and laywomen, exercising substantially the same judicial powers that they have had since local administration was removed from their hands in the 1880's. They have lately acquired a siz­able family civil-law jurisdiction involving children, and their juvenile court has become the youth court for purely criminal matters. There are some 30,000 lay magistrates manning 400 petty sessions with the same powers as about 200 stipendiary magistrates (who are paid lawyers), the latter in larger urban centers. Magistrates’ courts handle more than ninety percent of all criminal cases from start to finish and have a significant civil jurisdic­tion. The number of jury trials before the Crown Court are much reduced by allowing a wide range of less serious offenses to be tried before the mag­istrates without a jury. The magistrates, “especially lay magistrates, are the unsung heroes of the English legal system,” according to a close student of English criminal law.⁴⁵ That high compliment echoes still from Michael Dalton’s day.

The Countrey Justice, like Madeira, traveled well. On November ιι, 1647, the General Court of Massachusetts ordered that two copies of six legal works (including Coke upon Littleton and Coke’s Second Institutes, on Magna Carta and the statutes) were to be purchased for its use. One of those works was The Countrey Justice. Significantly, and perhaps not co­incidentally, that same sitting of the General Court ordered The Laws and Liberties of Massachusetts to be prepared for the press. The Laws and Liberties is arranged by alphabetical title; its resemblance to The Countrey Justice is remarkable. Whether The Countrey Justice was or was not the model, we do know that an energetic magistrate on the westernmost frontier, in the set­tlement of Springfield, Massachusetts, William Pynchon, used Dalton and commended it as a sound guide to the law.⁴⁶ In any case, Michael Dalton, like so many other jurisperiti of Old England, took a new lease on life in New England. In a word, he was part of the reception of the common law and so a founding father of our legal birthright. Quite an accomplishment for a mere, unprofitable country justice.