CHAPTER III

JUSTICE AND CONSTABLE

The accession of Edward III. marked the beginning of a new police era,

that of the petty constable acting under the direction of the Justice

of the Peace. The Statute of Winchester continued to be the guide in

matters of police, but the executive which carried out its provisions

underwent a change.

Any attempt to follow in detail the history of the Justices of the

Peace, and the powers resident in them, is beyond the scope of the

present work; this task has already been often and ably performed.[39]

It is impossible, however, to divorce the functions of the Justice from

those of the Constable; the story of the evolution of the latter is

so dovetailed into the history of the former, the two are so closely

allied in their mutual relationship of master and servant, that some

reference must here and elsewhere be made to the office of the Justice,

a functionary who claims a considerable share of attention in any

enquiry that deals with police in the full interpretation of the word,

because the executive power vested in a Justice as Peace Officer is

antecedent to, and on the whole more important than, the judicial

authority attaching to him as Magistrate: in other words, he must be

considered as a policeman first, and as a judge afterwards.

The origin of the Justice's office is by no means obscure. Towards

the close of the twelfth century (1195), by a proclamation of Richard

I.,[40] Knights were appointed to see that all males over the age

of fifteen years were "sworn to the King" by taking a solemn oath

to maintain the peace: after fifty years or so had elapsed (1253)

these Knights had become Peace Wardens or Conservators, who again,

continually undergoing a process of development as the importance of

the Sheriffs dwindled, were eventually invested with judicial powers,

and were then known as Justices of the Peace.

When the office of Justice was first created, it was not intended

that the Sheriff should be altogether superseded, but rather that the

new officer should become an auxiliary agent for the preservation

of the peace, to co-operate, as the Conservator had formerly done,

with the Sheriff, who still retained the primary responsibility for

the policing of his shire. It would appear that the supremacy of the

royal officer in matters of police was generally recognised throughout

the thirteenth century; for when, in 1285, Edward I. had occasion to

rebuke the men of Kent for the prevalence of crime in their county,

he made no mention of the Conservator, but ordered the inhabitants to

afford in future every assistance in their power to the Sheriff, whose

especial province it was (so the King declared) to keep the peace, not

only by his own power, but also by means of the "posse comitatus,"

or power of the county.[41] On the other hand, even at this time,

the Sheriff was not always given a free hand. In Warwickshire, for

example, all arrangements for the preservation of the peace had first

to be submitted to the Conservator for his approval;[42] it cannot,

however, be supposed that the supervision exercised by the Conservators

over the police administration was more than nominal, because, as a

rule, they were great noblemen, holding a plurality of offices, and

because the districts within their wardenship were usually too large

to be effectively controlled by any one man. We learn, for instance,

that in 1281 the Earl of Cornwall was Peace Warden for the counties of

Middlesex, Essex, Herts, Cambs, Hunts, Norfolk, Suffolk, Kent, Surrey,

Oxon, Beds, Bucks, Berks, Northants, Lincoln, and Rutland.

When both population and trade increased, and when offenders and

offences grew more varied and numerous, it became necessary to augment

to a proportionate degree the staff of officers answerable to the

King for the internal peace of the kingdom: it was no good making

more Sheriffs, who had seldom proved a success in the past (whose

misconduct, in fact, had led to the restricting of their power to do

harm on more than one occasion), and so it came about that the Justice

gradually superseded the Conservator, and in the end not only deprived

the Sheriff of his judicial powers, but to a large extent took his

place as director of the police also.

The Sheriff did not submit to this curtailment of his authority without

a struggle. After he was no longer allowed to act in his old capacity,

he sometimes managed to get made a Justice, and to hold both offices in

the same county at one time, to the great oppression of the people, who

bitterly complained of the heavy fines that were inflicted, and of the

outrageous bail that was exacted by these pluralists, until in 1378, at

the request of Parliament, Richard II. put an end to such practices.

Nevertheless, the Sheriff still remained the responsible person for the

levying of Hue and Cry, for the pursuit and apprehension of felons,

for the due execution of the sentences pronounced by the law-courts,

and was answerable for the persons of prisoners handed over to him

for punishment. He also had to perform various duties connected with

elections, and until the reign of Edward VI. retained certain military

functions.

Before 1328, the so-called justices were executive officers only,

"they were little more than constables on a large scale";[43]

but in this year, Edward the Third, who had recently come to the

throne, considerably extended their powers by entrusting to them the

examination and punishment of law-breakers.

The King reserved to himself the right of nominating those who should

hold the office, and, throughout his long reign, continued to take the

liveliest interest in his Justices of the Peace. He ordered that they

should be connected with the county for which they were appointed, by

holding therein a certain amount of landed property, a qualification

which has been retained for many centuries. He made it a condition that

they should be _bons gentz et loiaulx_; and for fear lest the granting

of judicial powers to local officials should open the door to extortion

on the one hand, and to ignorant maladministration on the other, was

very careful as to the class of man he selected. For this reason, the

pleadings of Parliament notwithstanding, he could not be induced to

give up the privilege of appointing his own nominees, and even the

democratic tendencies of modern times have left the appointment of

Justices of the Peace in the hands of the Crown. Another Statute[44]

(also passed in 1328) ordained that no man should "go offensively" or

"ride armed" before the new magistrates--a wise enactment designed to

protect them from being brow-beaten and intimidated by those great

nobles who sought to obtain their own ends through the awe inspired by

the display of a large armed retinue.

In 1333[45] Edward informed the Commons that one of his principal

reasons for calling them together was to take counsel with them

concerning the means that should be adopted for preserving the

peace, and to this end charged them to assist him to the best of

their ability. The Commons readily accepted the invitation, and

subsequently lost no opportunity of expressing the interest they took

in the Justices of the Peace, whose office was the constant theme of

suggestions and petitions, which, however, the King, who preferred to

take his own line, usually disregarded.

Of the several Statutes that were successively passed dealing with the

office in question, the most important became law in 1360.[46] "In

every county in England, there shall be assigned for the keeping of

the peace, one lord, and with him three or four of the most worthy men

in the county, together with some learned in the law, and they shall

have power to restrain offenders, rioters, and other barretors, and to

pursue, arrest, take, and chastise them, according to their trespass or

offence; and to cause them to be arrested and duly punished according

to the law and custom of the realm, and according to that which to

them shall seem best to do by their discretions and good advisement;

... and to take of all them that be not of good fame, where they shall

be found, sufficient surety and mainprise of their good behaviour

toward the King and his people ... and also to hear and determine at

the King's suit all manner of felonies and trespasses done in the same

county according to the laws and customs aforesaid."

Two years after the Statute above quoted had been enacted, the Justices

were empowered to sit quarterly for the transaction of business,[47]

and before long Quarter Sessions absorbed the major portion of the

executive and administrative government of the county.[48]

When Richard II. ascended the throne, the Justice of the Peace was

thus firmly established as one of the permanent institutions of

the kingdom. Since that time, the office has passed through many

vicissitudes, experiencing many a rise and many a fall; but through

all these changes, the Statute quoted above, which first defined his

position, has always been referred to when any doubt arose as to the

powers a Justice may exercise by virtue of his commission, and its

meaning has been stretched and extended by degrees until, as Burn

says, "there is scarcely any other Statute which hath received such a

largeness of interpretation."[49]

It will be observed that in addition to the powers given to Justices

for the punishment of offences against the peace, express authority

was also conferred upon them by the same instrument for the prevention

of such offences, for they were specially ordered to "take sufficient

surety and mainprise of all them that be not of good fame." We have

seen how under the decennary or tything system, all freemen were

bound to find sureties for the preservation of the peace, and we have

watched the decay of that system after the Norman invasion; in the

provisions of this Act of Parliament, however, we may discover at least

a partial revival of the ancient plan of demanding guarantees against

any contingent infraction of the public peace, and of associating in

a joint pecuniary responsibility the actual or potential peacebreaker

with his immediate neighbours.[50] The "sufficient security" which

Justices were authorised to take might be of two kinds--"Surety of

the Good Behaviour" and "Surety of the Peace," and the security might

be by Bail or by Mainprise, the difference between the two being "that

mainpernors are only surety, but bail is a custody; and therefore the

bail may retake the prisoner, if they doubt he may fly, and detain

him."[51] ... Sureties of the Good Behaviour and Sureties of the Peace

were granted on suspicion or on the flimsiest sort of evidence; for

instance, "any suspected person who lives idly, and yet fares well,

or is well apparelled, having nothing whereon to live," any common

gamester, or the reputed father of a bastard child, or an eaves-dropper

even, might be called upon to find mainpernors or bail; and so great

discretion was required on the part of the Justices, who had to decide

such knotty points; it was consequently of the highest importance

that these officers should be familiar with the districts in which

their duties were performed, and legal erudition was a consideration

subordinate to personal character and local knowledge. When the Law

was young evidence was received for what it was held to be worth,

without distinction as to whether it might be hearsay, circumstantial,

or direct; the word of a thane would prevail against the evidence of

six ceorls; in fact the credibility of every witness was appraised in

proportion to his social position, just as a man's life had formerly

been estimated at a distinct valuation, and scheduled according to a

recognised scale.[52]

The feudal system had taught the retainer to look to the Lord of the

Manor for the redress of any grievance that he might have against his

neighbour. To the tribunal of the Manor, also, he was wont to bring

family differences for settlement; here the father would recount the

follies of his son, and the wife complain of the habits of her husband:

for, just as the priest was the spiritual adviser to his congregation,

so, in many instances, was the Lord of the Manor the lay-counsellor

to the dwellers on his estate. It was essential, therefore, that the

Justice, who had to perform many of the duties formerly attaching to

the feudal lord, should be a local man and a man of position; people

would have nothing to do with a stranger, or with one who, in their

opinion, was a man of no account, however great a lawyer he might be.

The status of the Justice of the Peace at the time of Edward IV. was

not very different from that held by the same functionary at the

present day. His powers and duties are not now quite the same as they

once were, but the history of the office has been remarkable for its

steady persistence in one groove: the Justices of five hundred years

ago might be defined as a select number of country gentlemen deriving

their authority from the Crown, primarily responsible to the Crown

for the preservation of the peace, and exercising judicial functions

of a simple kind within the limits of the county for which they were

appointed--and such a definition would still apply.

The rise of the Justice of the Peace at the expense of his rivals was

due to some extent to political causes. Sovereigns were favourable

to the growing importance of an estate that promised to act as a

counterpoise to the arrogant claims of the nobles, and although

Parliament had nothing to do with the appointment of the new

magistrates it was generally in sympathy with them, because they did

not abuse their powers as the sheriffs had done, nor neglect their

duties like the conservators; and also because the House of Commons,

which was almost entirely composed of country gentlemen, recognised in

the Justices, members of the same social class to which they themselves

belonged. The mass of the people, too, were inclined to view them with

favour, choosing to place themselves and their fortunes in the hands

of men they knew something about, who were on the spot and likely to

execute justice speedily, rather than in the hands of strange judges

whose visits were few and far between, and who, when they came, were

likely to be deficient in local knowledge.

The first Justices therefore were in the enviable position of enjoying

at one and the same time the hearty support of King, Commons, and

People; but unfortunately such a healthy state was not destined to be

permanent, and before long the symptoms of internal disease presented

themselves.

As the attractions of town life increased it became more and more

difficult to obtain the services of the best kind of country gentlemen

for a post that was often arduous, that brought no emolument to the

holder, and that was incompatible with absenteeism. An inferior type

of man was glad enough to take the place for the sake of the patronage

and the social position he thereby acquired, and a corresponding

depreciation in the police administration was at once apparent. Richard

II. endeavoured to counteract this tendency by ordaining that Justices

should be possessed of property in their own county of a minimum annual

value of twenty pounds, and at the same time relieved them of some of

their routine duties by appointing Clerks of the Peace to assist them.

He fixed the number of Justices for each county at eight, two of whom

only had to be in attendance at each Sessions.

These remedial measures served their purpose for the time, but in after

years we find the danger resulting from the admission of inferior men

into the ranks of the Justices constantly recurring, necessitating a

more rigid enforcement of the property qualification.

In the city of London the duties that in the country would have fallen

to the Justices of the Peace were performed instead by the Mayor and

Aldermen, a custom that has been continued ever since, and with good

results.[53]

All that remains to be said on the subject of Justices of the Peace

in this place must be compressed into a few lines. Various Statutes,

passed between 1389 and 1399, multiplied their powers exceedingly by

giving them authority to settle the wages of labourers and servants,

to punish unlawful huntings, false weights in the staple, and the

unlawful wearing of liveries. In the reign of Henry IV. they were

directed by statute to suppress riots with the help of the Sheriff and

his "posse," and Henry V. ordained that, in future, Justices should

only be appointed from "the most sufficient men of the counties,

resident respectively therein," and that they should thenceforward be

nominated by the King's Council.[54]

The Yorkist period saw Justices of the Peace at the zenith of their

power; for, although the importance of the office tended to increase

rather than to diminish, Tudor sovereigns, always masters in their own

house, refused to allow them the same measure of independence that they

had before enjoyed--in fact, one of the first acts of Henry VII.[55]

was to rate them soundly for their past negligence, and to threaten

unpleasant consequences if an improvement was not quickly manifest.

Subordinate to the Justices were the petty constables; "the lowe and

lay ministers of the peace" as Lambard calls them; these officers were

appointed annually by the jury of the Court Leet, but their control was

vested almost entirely in the hands of the magistrates who swore them

in, and who afterwards directed their actions.

Careful investigation into the origin and precise nature of the

petty constable's office has failed to set finally at rest the many

discussions that have arisen from time to time, and has left some minor

points still obscure; the essentials, however, are sufficiently clear

for the purposes of the present inquiry.

The word "constable" was imported by the Normans, but its etymology is

not quite certain; formerly it was said to be derived from "Conning,"

a king,[56] and "Stapel," a stay or prop, and to signify "the king's

right-hand man," but this is an unlikely solution, because the

invaders despised the Anglo-Saxon language, and would not use a word

which was partly derived from that tongue. Latterly the derivation

"Comes-stabuli," meaning an Equerry or Master of the Horse, has been

generally accepted as correct. In England the title has been applied to

a variety of functionaries, some high and some low, who had little in

common beyond the fact that they all owed their authority to the Crown.

The first mention of petty constables occurs in 1252, in a writ of

Henry III. for enforcing watch and ward. This writ provides for the

employment of these officers in parish and township, but it is more

than likely that the office was not then a new one, because the word

"constable" is there used without any explanation being added, and

it may therefore be assumed that its meaning was a matter of common

knowledge.

The Statute of Winchester, it will be remembered, ordained that there

should be two constables in each hundred, to carry out the inspection

of arms; these officers were probably connected with the Militia, and

were closely allied to, if not identical with, the High Constables

of later date; in any case they must not be confused with the petty

constables, who, according to Blackstone, were so called when they

added the duties of assistants to the High Constable, to their ancient

business of keeping the peace, and who, as Lambard explains, were

modified tythingmen; "when there be many tythingmen in one parish,

there only one of them is a constable for the king, and the rest do

serve but as the ancient tythingmen did."

The transition from the Anglo-Saxon tythingman to the petty constable,

that is to say, from the chief frankpledge to the Justice's assistant

was very gradual, and it is impossible to determine a rigid boundary

line between the two. All we can say is that the term "constable" was

introduced as early as the year 1252, and that the term "tything man"

continued to be occasionally made use of down to the beginning of the

nineteenth century: that first and last the offices were in effect

the same does not admit of doubt, both were primarily _ex officio_

guardians of the peace, and when the tything man came to be commonly

called "constable," it does not follow that the change marked the

creation of a new office.

The Normans naturally substituted French or Latin names for Anglo-Saxon

ones; headborough became præpositus, and shire-reeve or sheriff became

vicecomes. Of these foreign titles, the former is now never used, and

the latter[57] has acquired a new meaning totally distinct from its

original sense. "Constable," on the other hand, survived, although at

first it was used only by the Normans, and in official documents,

the people continuing to employ the native words according to the

custom of the different parts of the country; thus in Middlesex there

were Headboroughs, in Kent Borsholders, and in the West of England

tythingmen.

It is not necessary to pursue the matter further except to say, that

when the Justices of the Peace, owing to the increased amount of work

thrown upon them, were in want of subordinate officers, advantage was

taken of the staff of tythingmen already existing, some of whom were

given new functions, _e.g._ the execution of the Justices' warrants

and the service of summonses, but without prejudice to their duties in

connection with peace-maintenance; in short, the titles of tythingman,

petty-constable, parish-constable, and finally police-constable, are

the various names applied to the same office from the time of Alfred

the Great to that of King Edward the Seventh.

We do not know enough about the social distinctions of the period to

say what the precise status of the early constable was. His position

was without doubt an honourable one, superior in every way to that of

the parish constable of later years, who only served because he could

not help it, or because he was poor enough to bear another man's burden

for a paltry pecuniary consideration.

The local competence of the officer has always been insisted upon, and

his incapacity to exercise any powers outside a particular area was

one of the causes that contributed to make him the useless nonentity

that he at one time became. So close was the connection between

constable and parish that the Court of King's Bench decided, in 1734,

that a place that did not employ one constable at least must be

considered merely as a hamlet, and was not entitled to the privileges

that belonged to an independent township; and whenever similar

questions arose, the decision invariably turned on the existence or the

non-existence of a parish constable.

The qualifications that a constable ought to possess are thus tabulated

by Coke:--

i. Honesty: to execute his office truly without

malice, affection, or partiality.

ii. Knowledge: to understand his duty, what he

ought to do.

iii. Ability: as well in estate as in body, that so

he may attend and execute his office diligently,

and not neglect the same through

want or impotency.[58]

It would be tedious to recount the multifarious duties that from

time to time have fallen to the constable, especially as many of the

most important are noticed in subsequent chapters; it will here be

sufficient to state, in a general way, a few of the main directions

by which he was expected to act: these may shortly be summarized as

follows:--

i. His duties with regard to watch and ward were,

to keep a roster of the watchmen, to see that

they were vigilant and alert during the hours

of watching, to receive into custody any

guilty or reasonably suspected person handed

over to him by the watch, and to keep such

person in safety, until he should give bail or

be brought before a Justice of the Peace.

ii. With regard to Hue and Cry, and generally

with regard to the pursuit and arrest of

felons, peacebreakers and suspected persons,

his duty was to obey the sheriff, to follow

with the Hue and Cry, and to keep in safe

custody any prisoner delivered to him, until

relieved of further responsibility by the orders

of Justice or Sheriff.

iii. With regard to inquiring into, and prosecuting

offences: he was bound to make presentment

at the assizes, sessions of the peace or leet,

and in some cases before the coroner, "of all

bloodsheddings, affrays, outcries, rescues, and

other offences committed or done against the

King's Majesty's Peace."

iv. Finally he had to serve precepts, warrants and

summonses, and obey all the lawful commands

of the High Constable and Justice of

the Peace.

The subordination of petty constables to Justices was from the first

generally understood and acted upon, but the custom did not receive

definite official sanction until the seventeenth century, when it was

tardily recognised by statute.[59] The true relationship between the

two has found apt expression in an old simile which likens constables

to the eyes and hands of the Justices, "eyes to see through the medium

of presentments, and hands to act by virtue of warrants or process."

A History of Police in England · 第 3 / 13 章