What would have happened in the early United States if one day, every justice of the peace was suddenly removed from office? Without anyone to assess rates and enforce their collection with due authority and local knowledge, maintaining the poor and building and repairing roads would become all but impossible. State and municipal governments would have a tough time getting local communities to comply with any peacetime or wartime statutory orders. Shorn of local magistrates handling the preliminary examination of evidence and issuing of warrants on a daily basis, county courts would be overburdened, and criminal justice would grind to a standstill. And with no one entrusted to mediate and adjudicate upon petty civil disputes among local inhabitants, everyday socioeconomic interactions would be seriously hampered. Without much exaggeration, we can say that early American towns and villages would have fallen into utter chaos without their JPs.

Illustration from William Shephard, A Sure Guide for His Majesties Justices of the Peace (London, 1663). By the mid eighteenth century, several English guides for JPs were made available in the American colonies, soon followed by a growing body of American adaptations. How often early American JPs consulted such guides, however, is difficult to ascertain. Perhaps more relevant to the daily conduct of JPs were the provincial statutes guiding their civil and criminal adjudication, which seem to have been printed and widely distributed.

Many early Americans seem to have had little issue with a mode of governance so localized and heavily reliant on local magistrates. And neither was this solely a characteristic of earlier, “simpler” times when small townships effectively governed themselves. If anything, the demographic and commercial growth of the early eighteenth century made British American colonies ever more dependent on its cadre of JPs. In New York, for example, a set of mid-eighteenth-century provincial statutes greatly enlarged the criminal and civil jurisdiction of justices’ summary courts. Further, as colonial and later state legislatures increasingly issued voluminous acts addressing a wide range of specific administrative purposes, JPs increasingly were entrusted with implementing policies at the local level, encouraged to flexibly draw upon broad administrative and judicial powers.

Contemporaries were well aware of this trend. As early as the mid eighteenth century, New York’s leading lawyers frequently expressed concern about the supposedly deteriorating state of local magistracy. The root evil, as the reform-minded lawyers saw it, was the ill-defined and ever-broadening public duties bestowed upon JPs. Dissenting in 1768 against renewal of a provincial statute enlarging the civil jurisdiction of JPs, for example, New York’s legal elite argued that whereas the purpose of local magistracy was to charge “men of weight in the country” with “superintend[ing] the morals of the people,” by indiscriminately burdening JPs with every facet of local governance, the colony was inducing the posts to be filled by fee-seeking “poor, mean, ignorant and unworthy persons.”^[1] Subsequent developments, however, suggest that the legal elite were in the minority on this point. Led by the populist DeLancey faction, during the late colonial period New York’s provincial government further enlarged the jurisdiction of JPs. Available records show that many New Yorkers continued to frequent justices’ courts, and that JPs continued to shoulder the bulk of local administrative duties.

The contention over JPs’ role in local governance, as I discuss in my recent JER piece, carried over into the early republic. In New York, the state supreme court, bolstered by a wider reach of legal professionals throughout the state, an active appellate system, and routinized publication of court decisions enabling the steady accumulation of case law, renewed the colonial-era legal elite’s efforts to circumscribe the authority of JPs. To expand upon one of the aspects I mentioned only briefly in my JER piece, throughout the early nineteenth century the supreme court repeatedly sought to demarcate between the JPs’ administrative and judicial powers. Regarding the management of indigent and vagrant persons, for example, the court tried to make it clear that the JP’s role should be judicial rather than “ministerial.” The administrative part, identifying those in need of poor relief and sorting out the ”deserving” poor from vagrants lacking “legal settlement,” was the domain of overseers of the poor. The JP’s duty was to issue warrants according to overseers’ complaints, to adjudicate in case an individual’s claim on poor relief was disputed, and order removal of those deemed as vagrants.^[2]

Regarding the management of highways, the supreme court similarly strove to draw a clear line between the JPs’ judicial and administrative powers. Inversing the prescribed roles regarding poverty and vagrancy, however, here the supreme court sought to limit JPs to administrative rather than judicial roles. The appellate cases heard by the supreme court arose from JPs fining residents who neglected to contribute the requisite labor or money. Here, according to the supreme court, it was the overseer of the highways who was “the judge with respect to the imposition of the fine.” JPs should support the overseers by issuing warrants and ordering property seizure where necessary, but they were to act strictly as “mere ministerial officers, having no judicial or discretionary power.”^[3]

As these examples suggest, despite the best efforts of high-ranking legal officials and prominent lawyers, it was difficult to eradicate lingering ambiguities surrounding early American JPs’ expansive judicial and administrative duties. This was due not only to the persistence of localized legal culture, but to the increasing demands of governance. In the absence of a strong centralized bureaucracy, the daily implementation of any public initiative, whether judicial or administrative in nature, tended to be thrust upon local magistrates. When the New York State government launched an ambitious project to develop salts springs in upstate New York, for example, the legislature commissioned a superintendent to oversee the process. As the project grew and more people, land, and money became involved, however, it quickly became clear that a centralized mode of governance could not handle the requisite judicial and administrative work. To control the fast-growing population, regulate their economic activities, and settle myriad disputes arising on a daily basis, the state, once again, ended up depending on the ill-defined and expansive authority of justices of the peace.^[4]

Seen from another perspective, however, the fact that state authorities persistently sought to intervene in local governance is hardly insignificant. In an early American milieu in which law and governance were deeply intertwined and localized, grappling with local governance was unavoidable for any state-building project. This is why, whether successful or not, the various efforts to define, circumscribe, and regulate local magistracy have much to tell us about the nature of early American state formation, the ongoing tensions and interplay between central authority and local autonomy, and the importance of courts and the appellate system in shaping statewide linkages of governance.

Endnotes

[1] Journal of the Legislative Council of the Colony of New York (New York, 1861), 2: 1677.

[2] William Johnson, ed., Reports of Cases Argued and Determined in the Supreme Court of Judicature . . . in the State of New-York (Albany, NY, 1807–1823), 1: 54–55, 10: 93.

[3] Ibid., 3: 474–76, 9: 229–31.

[4] William P. Van Ness and John Woodworth, eds., Laws of the State of New-York, 36th–47th Sessions (Albany, NY, 1813–1825), 5: 229–32; W. W. Clayton, History of Onondaga County, New York (Syracuse, NY, 1878).