In my blog about judges’ marshals, I wrote this:

From the early Middle Ages onwards the king’s justices used to travel out from London from time to time to try the most serious criminal cases at local assize courts. If time allowed, they would also try civil cases that arose locally: the list of civil cases was known as the “nisi prius” list. (This practice was established by the Statute of Westminster in 1285).   A judge’s travels were organised within what came to be called “circuits”.

In earlier times the judge would travel by horse, accompanied by his clerk, his marshal, and a retinue of servants, including his cook and his butler and, sometimes, a “marshal’s man”.   There is a painting which shows the High Sheriff of one county accompanying the judge to the county border (of Cheshire, I think), where he is being met by the High Sheriff of the next county he was due to visit. He would then be accompanied by the new High Sheriff to the lodgings which it was the duty of the sheriff – or, sometimes, the local authority – to provide.

The judge’s entourage would also be accompanied by the permanent staff of the circuit, who would include the local Clerk of Assize and his staff. They would bring with them a huge wicker hamper containing the books and papers and other things they needed when setting up the court in the next town. (Falstaff took refuge in a hamper of a similar size in Act III of the Merry Wives of Windsor, although that hamper contained dirty linen and not court papers.)   In addition, members of the local Bar would travel with the judge from circuit town to circuit town.

I can now add to this description by saying a little about the Assize judge’s relations with any military garrison in the Assize towns he visited. I am indebted to my friend John deP. Wright, a retired Canadian judge, for these titbits of judicial history.

The judge’s courts were sometimes held in an atmosphere of intimidation, both from violent nobles who hoped to overawe the court and save any defendants they wished to rescue, and from gangs of criminals and ruffians.  The Sessions at Bridgewater and Taunton were forcibly broken up in 1535.  For this reason it was a tradition of the common law that when he entered a garrison town the Assize judge assumed command of the garrison so that the troops would be available to him in case of unrest. This was also done to prevent the executive from using the troops to influence the judge’s judicial decisions.

Although the Scottish justice system has always been distinct from the English system, this is a good moment to include one of Lord Cockburn’s memories:

 “. . . . when I was Advocate-Depute, with Hope as Justice-Clerk, at Aberdeen (1808 or 1809, I think) his lordship, after leaving the bench early, went and reviewed the volunteers! Yes, the Judge of Assize doffed his wig, mounted a charger, and reviewed a regiment; and went forward next day on his Circuit. After the display on the field, he entertained the officers and the military authorities of the place at dinner. There probably never was so much scarlet or so many epaulettes at a judge’s assize banquet before. It was a grand military day in Aberdeen, and entirely extinguished the poor glory of the Court. “

Lord Cockburn wrote this in 1847, when he said:

 “All this seems odd now, but the wonder will abate when we recollect that the reviewing judge was an actual and most active Lieutenant-Colonel, and though the judicious lamented this, the period permitted it. And indeed, the judges as representatives of the sovereign, had, and I fancy still have, a right to take command of the whole military within the Circuit town. This is not practised now, but it was uniformly practised since I remember. The judge was formally waited upon by the commanding officer, or by some other officer representing him, and asked for orders, but he very generally gave the word; and a daily military report was frequently made to him by an officer lowering his sword.”

In 1971 , in a book called May It Please Your Lordship, E.S.Turner wrote:

 “In some Assize towns, as at Exeter, the links between the Judges and the Military were emphasised. In theory the judge commanded the garrison and an officer would call on him, salute and report the strength of the troops. The judge, who might not know one end of a rifle from another, would nod gravely and give permission for the soldiers to be let out of barracks. It helped to show miscreants what they were up against. There had been a time when the judges were wary of a standing army, fearing that troops would set free the prisoners from the gaols.”

This story was brought to life by Sir Frank McKinnon, a retired High Court Judge, in memoirs called On Circuit 1924-1937:

” On the morning of the Assize [in Exeter, 1929] two officers of the garrison called and presented my senior colleague with “the state”. This informed us that there were 22 officers, and 457 “other ranks”, including 74 recruits: also 17 chargers, 53 riding horses, 123 other horses, 5 wagons, 4 limbers, 5 mess-carts, 4 field kitchens, 7 Lewis guns, and 15 quick-firing 4.5 guns. They also, according to the ancient ritual, requested permission for the troops to be let out of barracks. Mr. Justice Rowlatt said “Certainly”, and invited the officers to dine with us.”

In his book Due Process of Law (1980) Lord Denning recalled a visit to Exeter in 1946:

“There, on the first evening, the Colonel of the Depot came to the lodgings and asked the traditional question, dating back to the time when the troops were troublesome:

‘My Lord, I come to ask if the men can be allowed out of barracks.’ 

I replied in the traditional words:

‘Are the troops all loyal?’

He answered truly but not in tradition:

‘Yes, all three of them.’ 

The barracks were empty.”

On none of my judicial excursions to Circuit towns between 1988 and 1996 did I have any dealings with the military.  Indeed, by 1991, on my only visit to the Judge’s’ Lodgings in Exeter, the situation was so lawless that on one of the nights of my stay my two colleagues’ cars were broken into[1], and on the following night the Union Jack was feloniously removed from the flagstaff…

Finally, a story of the relationship between the judiciary and the military in Ireland in the days that led up to the Acts of Union with Ireland in 1800.

In 1796 Wolfe Tone sailed for Ireland with a small French expedition which was supposed to topple the government.  It was scattered by a storm and Wolfe Tone was captured and held for trial by Court Martial.  John Philpot Curran applied to the Court of King’s Bench for Habeas Corpus to have Wolfe Tone transferred to the civil authority, and in his book “Irish at Law” James Comy describes what happened next:

 “It is clear that the court martial had no jurisdiction to try Wolfe Tone at all, when the ordinary Courts were fully operating.  The point is, however, largely academic because a trial by an ordinary criminal court would almost certainly have had no other result.  The reason that it is not wholly academic is two-fold: that the court martial did not have the jurisdiction which it exercised and, secondly, that because of the jurisdiction point the Chief Justice readily granted the preliminary application for Habeas Corpus.

There then arose a magnificent situation.  The Court’s Officer went off to execute the order, but was told by the military authorities in charge of Wolfe Tone that they would only obey the orders of their superiors.  On hearing this, the Lord Chief Justice went into action in a big way.  He ordered the Sheriff to proceed immediately to take Wolfe Tone into his custody and not only Wolfe Tone, but two named military officers as well.  Furthermore, the Sheriff was specifically to show the Court’s order to the General in command.

The Sheriff returned to the Court to report that Wolfe Tone had wounded himself and could not be moved.  Thereupon the Chief Justice ordered that the execution be suspended.  The injuries were severe and Wolfe Tone gradually declined.  He died a week later, on 19 November, in his cell.  He is buried in the Churchyard at Bodenstown, County Kildare, and various processions to his grave have taken place over the years and still continue.”

 

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[1] My humbler vehicle escaped attention, possibly because one of my children had posted a sticker on its window which stated, incorrectly, “this car is electronically alarmed.”