Legislation, Magistrates, and Judges: High Law and Low Law in England and the Empire

Authors

Douglas Hay, Osgoode Hall Law School of York UniversityFollow

Document Type

Book Chapter

Publication Date

2005

Source Publication

The British and Their Laws in the Eighteenth Century. London: Boydell Press, 2005.

Abstract

About The British and Their Laws in the Eighteenth Century:

Law and legal institutions were of huge importance in the governance of Georgian society: legislation expanded the province of administrative authority out of all proportion, while the reach of the common law and its communal traditions of governance diminished, at least outside British North America. But what did the rule of law mean to eighteenth-century people, and how did it connect with changing experiences of law in all their bewildering complexity? This question has received much recent critical attention, but despite widespread agreement about Law's significance as a key to unlock so much which was central to contemporary life, as a whole previous scholarship has only offered a fragmented picture of the Laws in their social meanings and actions. Through a broader-brush approach, The British and their Laws in the Eighteenth Century contributes fresh analyses of law in England and British settler colonies, c. 1680-1830; its expert contributors consider among other matters the issues of participation, central-local relations, and the maintenance of common law traditions in the context of increasing legislative interventions and grants of statutory administrative powers.

About Legislation, Magistrates, and Judges: High Law and Low Law in England and the Empire:

The contrast between superior and appellate courts on the one hand, and lower level tribunals on the other, is familiar to every criminal lawyer. In common law jurisdictions inferior courts have usually been distinguished by large numbers of defendants, relatively few legal issues, and many apparent human problems, and not much legal assistance for those accused. Direct or indirect descendants of the jurisdiction of the English country and borough magistrates, inferior courts spread throughout the empire, sometimes as direct transplants, sometimes as adaptations of already established European traditions. In newly conquered Quebec the British made use of the capitaines de milice before establishing justices in 1764, giving them also a summary jurisdiction in debt not shared by their counterparts in England; in South Africa, the landdrost acted in the Cape until 1827; in both early New South Wales and Newfoundland, antecedent military and naval jurisdictions, and in Australia conflict between the free settler and ex-convince populations, gave a strong local flavour to the institution or popular attitudes toward it. Their later development in different countries has been equally distinctive. On one of the most significant issues, the place of law magistrates, there are great differences in current practice. In Ontario, Canada a largely professional magistracy came into being in the mid-nineteenth century, and the few surviving magistrates quietly expired about 1990. In England, in contrast, lay magistrates still do something like 95 percent of criminal adjudication, albeit sometimes guided with a strong hand by their clerks. The incursions of stipendiaries in the mid-nineteenth century were reversed in England, although the Blair government is apparently moving in the direction of professionalization. Even in Scotland, usually thought to have had a minimal lay jurisdiction until the present, there was considerable activity by the justices and other lay judges both before and after 1707, and an actual expansion of jurisdiction as late as the mid-1970s, hotly debated by the profession and the parties.

Comments

Available through Boydell & Brewer and as a Google Book preview (links open in new tab)

Repository Citation

Hay, C. Douglas. "Legislation, Magistrates, and Judges: High Law and Low Law in England and the Empire." Lemmings, David, ed. The British and Their Laws in the Eighteenth Century. London: Boydell Press, 2005. ISBN: 1843831589

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