CHAPTER V

COMMERCIAL POLICE AND POLICE UNDER THE TUDORS

The growth of the royal power that was so well defined a characteristic

of the sixteenth century was accompanied by a general re-establishment

of good order throughout the kingdom. As long as the reins of

government were slackly held by feeble monarchs, the king's peace was

reckoned of but little account, and in the words of the Anglo-Saxon

writer already quoted, "every man that could, forthwith robbed

another." Nobles surrounded by their retainers, broke the peace

whenever they chose, and laid their hands on any property that they

felt strong enough to hold. As long as punishment overtook the man

who had offended against a great noble with more precision and with

greater celerity than it did the offender who had broken the law of the

land, guardians of the peace were despised, whilst peace-breakers were

admired by the multitude, if not respected.

When Henry VII. came to the throne he resolutely set himself to put an

end to this state of affairs, and to re-assert the personal ascendancy

of the sovereign, especially with regard to the maintenance of the

peace. He was obviously unable to achieve this object single-handed,

for he had no army with which to enforce his commands, and the mass of

the people were not yet thoroughly emancipated. Something of course

might be done by dividing the nobles into separate factions, and then

pitting one faction against another, and these tactics he pursued with

some success; the class however to which in the end the king had to

look for assistance was the middle-class, which was chiefly occupied

with money-making, which was inclined to resent any interference with

a pursuit at once so novel and so absorbing, and which, at the same

time, was beginning to cry out for increased protection for its newly

acquired wealth. As it seemed worth while to purchase the goodwill of

the spokesmen of this powerful class, at the cost of complying with

their not unreasonable requirements, the king was ready to meet them

halfway, and the police administration was modified accordingly.

The compulsory duty of serving as a constable, argued the middle-class,

was not only unprofitable but a wicked waste of good time that might

be devoted to objects that paid better; and so the system of deputy

constable crept in. Hue and cry was all very well, they said, for the

agriculturist or the villein; he could lay down his spade to join in

the pursuit with little detriment to himself; but it was different in

the case of the weaver or the merchant, the former could not afford to

leave his loom nor the latter to lose a bargain; and so hue and cry

fell into desuetude. When property cansisted only of timber, cattle,

and land, difficult things for a thief to remove, little protection

was demanded, but when valuable articles, all more or less portable,

became common, and when many kinds of fraud, all more or less subtle,

menaced both consumer and producer, a better guarantee for security was

asked: and so the old-established trade-guilds adapted themselves to

the changed conditions, and introduced new protective measures. These

modifications must now be examined in more detail.

It is doubtful at what date the custom first arose of discharging

the office of constable by proxy, but certain it is that, in the

Tudor period, instead of one headborough responsible to the Crown for

the maintenance of the peace in Tything and Hundred, which, as we

have seen, was anciently the system, we find two or more constables

answerable to the Justices, nominally employed by the year, but

practically as permanent deputies, performing duties delegated to them

in parish and township, and their services paid for, not by the public

at large, but by the individuals whose deputies they were.

In some respects the change, which in all probability was a gradual

one, contributed to the deterioration of the police administration,

because unfortunately a very indifferent sort of man was almost

invariably selected as deputy. Speaking of constables, Bacon says they

are "of inferior, yea, of base condition, which is a mere abuse or

degenerating from the first institution, for the petty constables in

towns ought to be the better sort of residents in the same, save that

they be not aged or sickly, but of able bodies in respect of their

keeping watch and toil of their place"; and Blackstone says that

considering the class of man that commonly acts as constable, it is

just as well that he should remain in ignorance of the powers that are

entrusted to him by law.

Despite the fact that the employment of deputies was mischievous in its

immediate consequences, the rise of the custom marked a distinct stage

in the development that resulted in the freedom from personal liability

which, without prejudice to the police administration, we now enjoy; it

began to be felt that the onerous and thankless position of constable

deserved remuneration, and that it was more economical to delegate

constabulary duties to experts, than that every man should be compelled

to serve his turn in an office that interfered with his normal

activity, and for which, perhaps, he had no special aptitude. England,

as we have seen, was rapidly becoming a commercial country, and all

were eager to take advantage of every chance of money-making that

offered itself, and finding that the duties of citizenship absorbed

more of their time than they were willing to spare, peace-officers were

no sooner elected than they hastened to hire any proxies whom they

could persuade to undertake the burden of office. This reluctance of

busy men to devote their valuable time to an unpaid public service was

reasonable enough, and the practice of employing substitutes was winked

at by the authorities; yet centuries passed before a way was found to

organize with intelligence, and officially recognize a system, that

whilst freeing the mass of the people from an unnecessary conscription,

should yet retain the essential principle that every man shares

in, and cannot divest himself of, a definite responsibility for the

maintenance of good order in the commonwealth.

The decay of the feudal system and the gradual abolition of villenage

went hand in hand, as we have seen, with the rise of the merchant and

the artisan; as trade increased and as the skilled workman became

a recognized power in the state, the police horizon widened, new

interests needed protection, new laws and regulations had to be made

and enforced. The supreme direction of commercial police rested with

the Crown; and, as long as the sovereign's prerogative was confined

to the control of fairs and ports, to the granting or withholding of

monopolies, and to the regulating of weights and measures, the services

of the Justices of the Peace, assisted by their constables, had been

found sufficient for all practical purposes. But when questions arose,

touching our trade with foreign merchants or demanding a technical

knowledge of native manufactures, it became necessary to submit these

difficult problems to some more expert authority than the ordinary

executive officer. This want was supplied, to a great extent, by the

above-mentioned police development of the Trade-Guilds or Livery

Companies, which, recently deprived of much of their former political

influence, now for the first time seriously began to devote themselves

to the special interests of their several trades, by properly confining

their energies to channels more legitimate than state-craft, such as

the protection and control of the various markets, manufactures, and

handicrafts.

In the early stages of its development in this country, commerce stood

on a very different footing from that upon which it rests to-day:

skilled artizans came and settled in England from all parts of the

continent, bringing their laws and customs with them; arrived here,

they not only competed with the native manufacturer, but beat him at

all points of the game. In the absence of any preventive police worth

mentioning, the position of these aliens would have been an impossible

one, except for two considerations; in the first place they thoroughly

recognised the value of combination and acted upon it, and in the

second place the very considerable revenue that their activities

brought to the royal coffers, secured for them the king's protection

and support.[83]

This incursion of foreigners was not without its effect on our

craftsmen, who saw, that to command success, they too must combine,

organize, and regulate. The result was that nearly every trade and

industry soon had its guild organized on the continental model, the

object of which (unlike the modern trades-unions that exist mainly to

prevent the power of the capitalist over his employées from becoming

absolute), was to create a monopoly, and hedge it round so that no

outsider could enter the exclusive circle without being properly

initiated and regularly admitted to craft-membership.

The Livery Company punished the fraudulent workman, corrected the idle

apprentice, and also prosecuted the would-be interloper who attempted

to infringe upon its rights and privileges.

We are indebted to these trade-guilds for introducing to our shores

in the first instance, many mechanical arts which, greatly to our

advantage, subsequently became naturalized, and afterwards for keeping

them alive through times of difficulty and danger, when the central

government was not strong enough to afford much protection; the high

character that English goods have earned throughout the world's markets

is, to a great extent, owing to this system of commercial police, which

compelled every workman to serve a long apprenticeship in a technical

school, and which punished the producer of fraudulent and worthless

articles. On the other hand whole fields of industry were arbitrarily

closed to honest and capable folk by the absurd restrictions imposed

for the sole benefit of corporations, which, when full allowance has

been made for the good they did, and when full credit has been given

for the service they rendered by standing in the breach at the critical

moment, were, after all, thoroughly reactionary in their tendency,

bent, as they were, upon stifling healthy competition whenever

possible, and inclined to look upon any new invention as a crime

against their craft mysteries.

A serious defect in the constitution of our mediæval police consisted

in the numerous privileges enjoyed by favoured communities. No

police regulation was of universal application; we have seen how in

Anglo-Saxon times the king's peace afforded especial protection to

certain classes, and how various limitations were imposed according to

locality and according to season; subsequently charters were freely

given to monasteries, guilds, boroughs and cities, carrying rights

and conferring favours that were not shared by the nation at large.

The consequence was that every rule bristled with exceptions, and

legislation grew proportionally more complicated and difficult of

application than would have been the case had all men been equal in the

eye of the law. Many a useful measure was rendered largely inoperative

by reason of the numbers of persons who could plead privilege against

its enforcement in their particular case. Hue and Cry could avail

nothing against the baron who had bought a charter of pardon for

felonies committed in the past or contemplated in the future, and

the pursuit of the sheriff was stayed when the fugitive took refuge

in sanctuary. First the clergy, and afterwards persons not in orders

who could prove their ability to read a word or two in the Gothic

character,[84] were entitled to plead "benefit of clergy," and thereby

escape perhaps well-merited punishment. In the reign of Henry VII.

this privilege was wisely restricted, by ordaining that those who had

pleaded "clergy" once, should be branded on the brawn of the thumb with

a hot iron (M for a Murderer, T for a Thief), so as to prevent their

cheating justice a second time by means of the same plea. Gradually

benefit of clergy was taken away from one offence after another, until

at last[85] no serious crime was left to which this exemption from

punishment attached. Again, the scholars of Oxford and Cambridge were

not subject to many regulations that applied elsewhere, the members of

these universities being allowed to beg, under certain restrictions,

without incurring the penalties that ordinary "vagabonds and sturdy

beggars" were liable to; on the other hand Jews and gypsies were

subject to pains that did not attach to the native population.

The confusion of the illiterate constable, called upon to act when

confronted with a medley of contradictory charters, passports and

privileges, can well be imagined, and, needless to say, personation

and forged certificates were largely resorted to both by the habitual

criminal and by the professional beggar.

A very necessary reform introduced in this reign was that which, in

cases of homicide, made the trial of the accused follow immediately

upon the discovery of the offence. By long-established usage,

originating from the time when the blood-feud was the recognised

agency for avenging murder, the custom had arisen of postponing royal

interference until the relatives or friends of the deceased had been

allowed ample time in which to bring the criminal to justice, and, by

ancient consent, those parties who were interested acted the rôle that

our police detectives are now charged with, and, so to speak, had to

"get up" the case against the alleged offender. An "Appeal," as it was

called, was then made before the Coroner and by him publicly declared

at five consecutive county-courts. It had been laid down in 1277,[86]

that homicides should not be proceeded against at the King's suit until

a year and a day had elapsed since the commission of the murder, and

in 1482,[87] twelve months was declared to be the privileged period

in which appellors alone might formulate an accusation. The natural

result (to quote the Statute,[88] which did away with these out-of-date

restrictions) was, that "the party is oftentimes slow, and also agreed

with, and by the end of the year all is forgotten, which is another

occasion of murder."

The anxiety to make money that pervaded all classes, but which was

especially observable in the middle class, besides influencing

the status of the constable and making the guild such a prominent

feature of the time, was to a large extent responsible for the

increasing rigour of the criminal law. The claims of property were

urged to the uttermost, and people who had anything to lose pressed

for the infliction of exemplary punishment in all cases where the

rights of ownership were threatened. The result of this attitude

was, that the war of extermination against those who had no visible

means of subsistence was waged more relentlessly than ever before.

The dissolution of the religious houses, following upon the civil

commotions of the previous century, had multiplied the number of

vagrants until the country was full of homeless and starving wanderers,

many of whom, needless to say, maintained themselves by robbery. Bad

government first created this dangerous class, and then attempted to

exterminate it by wholesale hanging: it is said that more than 70,000

persons were put to death during the thirty-eight years of Henry the

Eighth's reign; from this number a considerable reduction may be made

for exaggeration, and of the remainder a large proportion suffered

on religious and political grounds. But the general government was

rigorous in the extreme, and, the value of human life being but

little accounted of, a penal system grew up which exacted the death

penalty for offences of a comparatively trivial nature, thus laying

the foundations of the barbarous code which continued to disgrace our

Statute book for centuries, vainly endeavouring to supply the place of

preventive police by repressive measures that were expected to deter by

virtue of their extreme severity. Sir Thomas More saw the uselessness

of such a policy, and pointed out in his "Utopia," that as robbers

often killed their victims on the principle that dead men tell no

tales, it would be desirable, therefore, to reduce the punishment for

theft in order to check the frequency with which murders were committed.

Wales and the Welsh borderland had long been the refuge of the outlaw,

and the fastness of the robber; for whilst the natural features of the

country favoured the escape of the fugitive from justice, the division

of the principality into independent lordships, from which the king's

writ was excluded, still further increased the difficulty of arrest.

At one time there were 141 of these lordships, under as many petty

chieftains known as Lords-Marchers, who indiscriminately sold charters,

and harboured any lawbreaker who would pay for his footing. This kind

of home-rule in Wales was incompatible with the maintenance of order in

the West of England, and the counties near the border suffered severely

for their proximity to this Alsatia. Accordingly in 1536 it was decided

to extinguish the separate jurisdiction of the Lords-Marchers, and the

whole of Wales was incorporated into England by an Act passed in the

27th year of Henry the Eighth, which provided Justices-of-the-Peace,

Justices-of-the-Quorum, and Justices-of-Gaol-delivery for the

Welsh counties, armed with the same power and authority that the

corresponding Justices in England were possessed of; shortly afterwards

(1543)[89] these newly-appointed Justices of the Peace were authorised

to select two "substantiall gentlemen, or yeomen, to be chiefe

constables of the hundred wherein they inhabite, which two constables

in every hundred shall haue a speciall regard to the conseruation of

the King's Peace."

A somewhat similar state of unrest existed in the neighbourhood of the

Scottish border. Here the simple expedient of incorporation by Act of

Parliament was of course impossible, so in the following year Henry

instituted a Court, called the President and the Council of the North,

and empowered it to preserve the peace, in that part of the realm, in

the king's name; so that "his true subjects ... have undelayed justice

daily administered."

Nearer home, Thomas Cromwell, acting for the king, overhauled the

administration of police, and amongst other improvements established

parochial registers of births, marriages and deaths,[90] but he was

too fond of thrusting petty and vexatious regulations down the throats

of a people, who, recently freed from their old bondage, were now for

the first time beginning to think for themselves; his whole system

moreover was vitiated by the frequency with which he employed spies and

informers, a method of police control always peculiarly abhorrent to

the English.

The law against vagrancy, which, as we have seen, was extremely

severe during the preceding reigns, reached its most barbarous stage

soon after the accession of Edward the Sixth. It is the irony of

circumstance which associates the name of so mild a prince with one

of the most atrocious measures ever imposed upon Englishmen, for

Edward was but a child when the Statute in question was passed, and

can have had no hand either in the inception or application of its

provisions.[91] The responsibility belongs to the Protector, Somerset,

yet it will always remain a mystery how he could sanction such a

measure, for he is well known to have felt much sympathy for the masses

of his countrymen, and was ever anxious to please. After remarking

in the preamble that "idle and vagabond persons are worthy of death,

whipping, imprisonment, and other corporal pain," the Statute proceeds

to enact that "the offender there described to be an idle person shall

be taken before a Justice of the Peace, who shall cause him to be

marked with a hot iron in the breast, the mark "V," and adjudge him to

be a slave to the person presenting him for two years, to be fed with

bread and water, and be put to work (how vile soever it be) by beating,

chaining, etc.: and if he runs away, the Justice, on conviction, shall

cause such slave to be marked on the forehead or ball of the cheek with

the sign of an "S," and shall further adjudge him to be his master's

slave for ever:[92] and if he again run away, he shall suffer death as

a felon."[93] No record tells how many unfortunates suffered the pains

above recited, but the number is not likely to have been considerable,

because vagabondage was by no means stamped out: the conclusion is

forced upon one, however, that whilst law-making of such a type was in

vogue, the infirmity of the police, whose business it was to enforce

its enactments, cannot be considered as an unmitigated evil.

The grandmotherly domestic policy of the time, which told people what

they were to eat, how they were to dress, and the number of hours they

must labour, resulted, as all such attempts to interfere with the

natural laws of supply and demand must result, in serious conflict

between the authorities and the people, who sooner or later are sure

to resent coercion, and have recourse to violent resistance to obtain

economic freedom for themselves and their descendants. Dissatisfaction

had long been dormant, but matters came to a head early in the reign

of Edward VI.; popular risings took place simultaneously all over the

country, the most serious outbreaks occurring in counties as far remote

from each other as Cornwall in the West, and Norfolk in the East. There

was no machinery in existence for the suppression of riots, no standing

army, and no civil power in any way adequate to meet force with force:

the executive was well-nigh powerless. Under these circumstances a

penal statute[94] against unlawful assemblies was passed, much of which

survives in our present Riot Act now in force. It became high treason

for twelve or more persons, being assembled together, to attempt to

alter any laws, etc., or to continue together for the space of an

hour after being commanded by a Justice of the Peace to depart. It

was made felony for twelve or more persons to "practice to destroy a

park, conduit, or dovehouse," to pull down houses, barns, or mills, to

burn any stack of corn, or to abate the price of victuals; or being

assembled, to continue together an hour, after being ordered in like

manner to depart.

To make this statute effectual, it was necessary to devise some

new executive to enforce its provisions; accordingly in each county

a high official called the Lord-Lieutenant was appointed, who was

authorized to levy men and lead them against the enemies of the

king, to which category rioters, as being guilty of High Treason,

were now specifically declared to belong. With the appointment of

Lords-Lieutenant, the last of the military functions exercised by the

Sheriff passed out of his hands into those of the new official, who to

this day retains a remnant of authority over the regiments of Yeomanry

and Militia of his county.[95]

Until the middle of the sixteenth century any person so inclined[96]

could keep an alehouse--there were no licensing laws and no excise-duty

leviable on alcoholic beverages, which indeed, remained untaxed until

1643. Police control was therefore both difficult and unpopular.

A first attempt to grapple seriously with this rapidly increasing

mischief was made in 1552,[97] when Justices of the Peace and

Constables were given powers, which, it was hoped, would do something

to "remedy the intolerable hurt and trouble to the Commonwealth of the

Realm" by "common alehouses and other houses called Tipling-houses."

To this end Justices were authorized "to remove and put away ... the

common selling of Ale and Beer" as they might see fit. Henceforward

only houses "admitted and allowed in the open Sessions of the Peace"

were to be used for the sale of liquor, and Justices were furthermore

instructed to take bond and surety of the occupiers; "for which

recognizance, the party so bound shall pay but 12 pence." Alehouse

keepers who should fail to comply with these conditions might be

committed to gaol by the Justices of the Peace.

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