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.