Chapter II - The history sets out. Observations on the excellency of the English
constitution and curious examinations before a justice of peace.
On the first of April, in the year ----, the watchmen of a certain
parish (I know not particularly which) within the liberty of
Westminster brought several persons whom they had apprehended the
preceding night before Jonathan Thrasher, Esq., one of the justices of
the peace for that liberty.
But here, reader, before we proceed to the trials of these offenders,
we shall, after our usual manner, premise some things which it may be
necessary for thee to know.
It hath been observed, I think, by many, as well as the celebrated
writer of three letters, that no human institution is capable of
consummate perfection. An observation which, perhaps, that writer at
least gathered from discovering some defects in the polity even of
this well-regulated nation. And, indeed, if there should be any such
defect in a constitution which my Lord Coke long ago told us "the
wisdom of all the wise men in the world, if they had all met together
at one time, could not have equalled," which some of our wisest men
who were met together long before said was too good to be altered in
any particular, and which, nevertheless, hath been mending ever since,
by a very great number of the said wise men: if, I say, this
constitution should be imperfect, we may be allowed, I think, to doubt
whether any such faultless model can be found among the institutions
of men.
It will probably be objected, that the small imperfections which I am
about to produce do not lie in the laws themselves, but in the ill
execution of them; but, with submission, this appears to me to be no
less an absurdity than to say of any machine that it is excellently
made, though incapable of performing its functions. Good laws should
execute themselves in a well-regulated state; at least, if the same
legislature which provides the laws doth not provide for the execution
of them, they act as Graham would do, if he should form all the parts
of a clock in the most exquisite manner, yet put them so together that
the clock could not go. In this case, surely, we might say that there
was a small defect in the constitution of the clock.
To say the truth, Graham would soon see the fault, and would easily
remedy it. The fault, indeed, could be no other than that the parts
were improperly disposed.
Perhaps, reader, I have another illustration which will set my
intention in still a clearer light before you. Figure to yourself then
a family, the master of which should dispose of the several economical
offices in the following manner; viz. should put his butler in the
coach-box, his steward behind his coach, his coachman in the butlery,
and his footman in the stewardship, and in the same ridiculous manner
should misemploy the talents of every other servant; it is easy to see
what a figure such a family must make in the world.
As ridiculous as this may seem, I have often considered some of the
lower officers in our civil government to be disposed in this very
manner. To begin, I think, as low as I well can, with the watchmen in
our metropolis, who, being to guard our streets by night from thieves
and robbers, an office which at least requires strength of body, are
chosen out of those poor old decrepit people who are, from their want
of bodily strength, rendered incapable of getting a livelihood by
work. These men, armed only with a pole, which some of them are scarce
able to lift, are to secure the persons and houses of his majesty's
subjects from the attacks of gangs of young, bold, stout, desperate,
and well-armed villains.
Quae non viribus istis
Munera conveniunt.
If the poor old fellows should run away from such enemies, no one I
think can wonder, unless it be that they were able to make their
escape.
The higher we proceed among our public officers and magistrates, the
less defects of this kind will, perhaps, be observable. Mr. Thrasher,
however, the justice before whom the prisoners above mentioned were
now brought, had some few imperfections in his magistratical capacity.
I own, I have been sometimes inclined to think that this office of a
justice of peace requires some knowledge of the law: for this simple
reason; because, in every case which comes before him, he is to judge
and act according to law. Again, as these laws are contained in a
great variety of books, the statutes which relate to the office of a
justice of peace making of themselves at least two large volumes in
folio; and that part of his jurisdiction which is founded on the
common law being dispersed in above a hundred volumes, I cannot
conceive how this knowledge should by acquired without reading; and
yet certain it is, Mr. Thrasher never read one syllable of the matter.
This, perhaps, was a defect; but this was not all: for where mere
ignorance is to decide a point between two litigants, it will always
be an even chance whether it decides right or wrong: but sorry am I to
say, right was often in a much worse situation than this, and wrong
hath often had five hundred to one on his side before that magistrate;
who, if he was ignorant of the law of England, was yet well versed in
the laws of nature. He perfectly well understood that fundamental
principle so strongly laid down in the institutes of the learned
Rochefoucault, by which the duty of self-love is so strongly enforced,
and every man is taught to consider himself as the centre of gravity,
and to attract all things thither. To speak the truth plainly, the
justice was never indifferent in a cause but when he could get nothing
on either side.
Such was the justice to whose tremendous bar Mr. Gotobed the
constable, on the day above mentioned, brought several delinquents,
who, as we have said, had been apprehended by the watch for diverse
outrages.
The first who came upon his trial was as bloody a spectre as ever the
imagination of a murderer or a tragic poet conceived. This poor wretch
was charged with a battery by a much stouter man than himself; indeed
the accused person bore about him some evidence that he had been in an
affray, his cloaths being very bloody, but certain open sluices on his
own head sufficiently shewed whence all the scarlet stream had issued:
whereas the accuser had not the least mark or appearance of any wound.
The justice asked the defendant, What he meant by breaking the king's
peace?----To which he answered----"Upon my shoul I do love the king
very well, and I have not been after breaking anything of his that I
do know; but upon my shoul this man hath brake my head, and my head
did brake his stick; that is all, gra." He then offered to produce
several witnesses against this improbable accusation; but the justice
presently interrupted him, saying, "Sirrah, your tongue betrays your
guilt. You are an Irishman, and that is always sufficient evidence
with me."
The second criminal was a poor woman, who was taken up by the watch as
a street-walker. It was alleged against her that she was found walking
the streets after twelve o'clock, and the watchman declared he
believed her to be a common strumpet. She pleaded in her defence (as
was really the truth) that she was a servant, and was sent by her
mistress, who was a little shopkeeper and upon the point of delivery,
to fetch a midwife; which she offered to prove by several of the
neighbours, if she was allowed to send for them. The justice asked her
why she had not done it before? to which she answered, she had no
money, and could get no messenger. The justice then called her several
scurrilous names, and, declaring she was guilty within the statute of
street-walking, ordered her to Bridewell for a month.
A genteel young man and woman were then set forward, and a very grave-
looking person swore he caught them in a situation which we cannot as
particularly describe here as he did before the magistrate; who,
having received a wink from his clerk, declared with much warmth that
the fact was incredible and impossible. He presently discharged the
accused parties, and was going, without any evidence, to commit the
accuser for perjury; but this the clerk dissuaded him from, saying he
doubted whether a justice of peace had any such power. The justice at
first differed in opinion, and said, "He had seen a man stand in the
pillory about perjury; nay, he had known a man in gaol for it too; and
how came he there if he was not committed thither?" "Why, that is
true, sir," answered the clerk; "and yet I have been told by a very
great lawyer that a man cannot be committed for perjury before he is
indicted; and the reason is, I believe, because it is not against the
peace before the indictment makes it so." "Why, that may be," cries
the justice, "and indeed perjury is but scandalous words, and I know a
man cannot have no warrant for those, unless you put for rioting
[Footnote: _Opus est interprete._ By the laws of England abusive words
are not punishable by the magistrate; some commissioners of the peace,
therefore, when one scold hath applied to them for a warrant against
another, from a too eager desire of doing justice, have construed a
little harmless scolding into a riot, which is in law an outrageous
breach of the peace committed by several persons, by three at the
least, nor can a less number be convicted of it. Under this word
rioting, or riotting (for I have seen it spelt both ways), many
thousands of old women have been arrested and put to expense,
sometimes in prison, for a little intemperate use of their tongues.
This practice began to decrease in the year 1749.] them into the
warrant."
The witness was now about to be discharged, when the lady whom he had
accused declared she would swear the peace against him, for that he
had called her a whore several times. "Oho! you will swear the peace,
madam, will you?" cries the justice: "Give her the peace, presently;
and pray, Mr. Constable, secure the prisoner, now we have him, while a
warrant is made to take him up." All which was immediately performed,
and the poor witness, for want of securities, was sent to prison.
A young fellow, whose name was Booth, was now charged with beating the
watchman in the execution of his office and breaking his lanthorn.
This was deposed by two witnesses; and the shattered remains of a
broken lanthorn, which had been long preserved for the sake of its
testimony, were produced to corroborate the evidence. The justice,
perceiving the criminal to be but shabbily drest, was going to commit
him without asking any further questions. At length, however, at the
earnest request of the accused, the worthy magistrate submitted to
hear his defence. The young man then alledged, as was in reality the
case, "That as he was walking home to his lodging he saw two men in
the street cruelly beating a third, upon which he had stopt and
endeavoured to assist the person who was so unequally attacked; that
the watch came up during the affray, and took them all four into
custody; that they were immediately carried to the round-house, where
the two original assailants, who appeared to be men of fortune, found
means to make up the matter, and were discharged by the constable, a
favour which he himself, having no money in his pocket, was unable to
obtain. He utterly denied having assaulted any of the watchmen, and
solemnly declared that he was offered his liberty at the price of half
a crown."
Though the bare word of an offender can never be taken against the
oath of his accuser, yet the matter of this defence was so pertinent,
and delivered with such an air of truth and sincerity, that, had the
magistrate been endued with much sagacity, or had he been very
moderately gifted with another quality very necessary to all who are
to administer justice, he would have employed some labour in cross-
examining the watchmen; at least he would have given the defendant the
time he desired to send for the other persons who were present at the
affray; neither of which he did. In short, the magistrate had too
great an honour for truth to suspect that she ever appeared in sordid
apparel; nor did he ever sully his sublime notions of that virtue by
uniting them with the mean ideas of poverty and distress.
There remained now only one prisoner, and that was the poor man
himself in whose defence the last-mentioned culprit was engaged. His
trial took but a very short time. A cause of battery and broken
lanthorn was instituted against him, and proved in the same manner;
nor would the justice hear one word in defence; but, though his
patience was exhausted, his breath was not; for against this last
wretch he poured forth a great many volleys of menaces and abuse.
The delinquents were then all dispatched to prison under a guard of
watchmen, and the justice and the constable adjourned to a
neighbouring alehouse to take their morning repast.
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