The office of Clerk of the Crown and Peace originally comprised two distinct offices: the office of Clerk of the Crown and the office of Clerk of the Peace. The former office was granted by letters patent from the Crown and was held for the life of the officeholder, contingent on good behaviour, but could be revoked at the pleasure of the Crown. The grantee often held the office for a whole province and had the right of appointing deputies. Appointments to the latter office were originally by the Crown, but was appointed by the Custos Rotulorum of the relevant county.
The patent actually appointed the holder to the office of Clerk of the Crown, but also contained an express grant of the office of Clerk of the Peace to the holder (1). This latter office had evolved out of the commissions appointing Justices of the Peace (magistrates), which were first issued in England under the Act 18 Ed. III, stat. 2, c.2 ‘to hear and determine felonies and trespass done against the Peace’. Under the Act 37 Henry VIII c. 1 (English), the power of appointing Clerks of the Peace became vested in the Custos Rotulorum for each county and city (2).
This contributed to documented complaints during the eighteenth and nineteenth centuries from certain Clerks of the Crown, who found that that several Custodes Rotulorum insisted on appointing their own Clerks of the Peace, rather than recognising the appointed Clerks of the Crown as Clerks of the Peace by virtue of their patent. The situation was resolved finally in 1877 by the passing of the Act 40 & 41 Vict., c. 56, whereby the offices of Clerk of the Crown and Clerk of the Peace were amalgamated on the death or retirement of either official and the new holder of the joint offices was a civil servant appointed by the Lord Lieutenant.
As Clerk of the Crown, the officeholder was the clerk of the court of assize, as well as secretary to the Grand Jury for criminal business. His role was varied involving criminal, civil and fiscal functions arising partly at Common Law and partly out of a series of legislative enactments. Criminal duties consisted of receiving and preserving all informations, examinations and recognisances of the magistrates; drawing up bills of indictment in cases in which they were not prepared by the Crown Solicitor, or for private individuals; swearing the Grand Jury, and attending them with the indictments; attending the Crown Court, arraigning the prisoners, entering on record all pleas, orders and proceedings of the court in the Crown Book; swearing and examining witnesses on the trials; preparing and keeping all records of the Assizes; preparing all warrants necessary for the transmission of prisoners, the execution of offenders, etc. The Clerk of the Crown also received from coroners’ returns of all inquests, with the depositions, examinations and other documentation.
By the Act 36 Ed.III, c. 12 it was enacted that, in their commissions, these magistrates should be authorised to hold sessions in four stated seasons of the year. This was the origin of the Quarter Sessions. The magistrates’ commissions gave them jurisdiction over all crimes affecting the public peace, excepting treasons. Under the Acts 1 & 2 Philip and Mary, c. 13, and 10 Car I., c. 18, the magistrates were required to forward cases of felony (except petty larcenies) to the Assizes. Cases of assault, riots, rescues or cattle or goods taken for distress, and trespass attended with violence, came within their jurisdiction. Besides the regular Quarter Sessions, Special Sessions have at various times been authorised to be held for the execution of some particular branch of magisterial duty, such as the registration of freeholders, presentment sessions etc. The Clerk of the Peace acted as clerk to the Justices of the Peace in the discharge of their duties.
1. In some cases, the office of Clerk of the Peace was granted separately by the Crown.
2. The provisions of this act were not immediately extended to Ireland as there are several instances of grants of the office of Clerk of the Peace during the reign of Charles I.