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that the Sheriff should be altogether superseded, but rather that the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