University of California Berkeley From the book collection of BERTRAND H. BRONSON bequeathed by him or donated by his wife Mildred S. Bronson THE OFFICE O F CONSTABLE: B E I K C AN ENTIRELY NEW COMPENDIUM OF THE LAW CONCERNING THAT ANCIENTMINISTER FOR THE CONSERVATION OF THE PEACE. pAREFULLY COMPILED FROM THE BEST AUTHORITIES. WITH A PREFACE; AND AN INTRODUCTION, CONTAINING SOME ACCOUNT OF THE ORIGIN AND ANTIQJJITY OF THE OFFICE. LONDON: PRINTED FOR WHIELDON AND BUTTERWORTH, FLEET-STREET. M.DCC.XCI. P R E FACE. A SINCE RE wifh to benefit the com- munity, by flirnifhing its molt ancient, moil conititutional, and moft ufeful officer with a compendious fyftem or manual of his duty and powers, carefully extracted from, and upon an actual perufal of the belt autho- rities, has produced the following fheets, a mere epitome, in fact, of the original com- pilation. But the utility of the meafure feemed, upon fecond thoughts, to be more favoured by a pamphlet, affording the fulled information in the narroweft compafs, than by a volume, which the verbofe prolixity of mo- dern ftatutes, vying, as it were, with each other in conveying the fimpleft regulation in the moft embarrafling manner, and greateit pofTible number of words, would have ex- tended to a fize and price little calculated to invite the clafs of readers for whom it was principally intended. The decifion, therefor, was in favour of the briefeft fummary ; fuch a one as men who have little money, leifure, pr capacity (one or other, or, indeed, all of A 2 which iv PREFACE. which are, unfortunately, too often met with, in the compofition of a modern conftable) might buy, read, and, if pofTible, underftand *. The language, however, is generally that of the authority quoted ; and the books referred to (which it may be occafionally neceffary to confult) are to be found in many bookfellers jfhops, and in the libraries of the four law fo- cieties : few barriflers, at the fame time, are without all or moft of them ; and forne juf- tices of peace, it is prefumed, may poflefs " The Statutes at Large." It is undoubtedly a ferious confideration, that the perfons and property of almoft all but profefTional men fhould be fubjected to laws which they are totally ignorant of, and do not even know where to find, or how, unlefs by dear-bought and fatal experience, to get acquainted with ; and of which the mere ftudy is fufHcient em- ployment for the beft part, if not the whole, of a long life. Thefe " Statutes at Large,'* which, while they preferve many ats that are * A fmall tracl publifked under the direction of " the fociety (as it is called) for carrying into effect the kings proclamation," fines the following pages were prepared for the prefs, has not appeared to fuperfede the prefent attempt. Of former publications on the fubjecl it may be fufficient to obferve, that all or moft of them have been looked into. not, PREFACE. v not, and many more that ought not to be, in force, do not contain above half the number that are actually fo *, are comprifed in no lefs than * The private and local afts, every where in force and no where to be met with, are at leafl as numerous. " How is this ?" exclaimed a lawyer one day, " why all thefe proceedings of yours are manifeftly illegal; con- trary to Magna Charta, to the Bill of Rights, to the li- berty of the fubjeft, to ." " Sir," fays his client, who was a churchwarden, we have got an aft of par- liament." And thus it is ; every little dirty parifh in the environs of London muft have a law for itfelf. The churchwardens or overfeers can provide the money, the attorney wants a job, the juftice looks forward to the pe- nalties, and the gemmen of the exclufive of every other fize, many of which exifl only in a barbarous gibberiiri peculiar to the profeffion * : even a very imperfect abridgement of it filling no lefs than twenty-four. This, however, is a com- plaint which has been fo frequently and fo in- effectually madej-, that one muft have pa- of none or very little judgment in law." Thofe afts, however, which gave fuch jufl offence to this truly learned and eminent lawyer, will appear perfpicuous as light, and t brief as vvomans love," when compared with the endlefs and inextricable parliamentary labyrinths of the prefent century. See alfo i Black. Com. 10. * It was long fince objected as a fault to the profef- fors of the law, that they wrote their reports and books of the law in a ftrange and unknown tongue, which none could underftand but themfelves, to the end that people being kept in ignorance of the law, might the more ad- mire their {kill and knowlege, and elteem and value it at a higher price. Preface to Sir John Davis's Reports, published in 1628. f Bifhop Burnet, near a century ago, pronounced the law "the greateft grievance of the nation." And the great lord Bacon, who complains that the laws were then " fubjecl: to great incertainties, and variety of opi- nions, delays, and evafions," delivered a formal propo- fition to king James I. for their amendment; and this at a time when the flatutes were in two volumes, and, befide the year books, there were but/wr reportttt ex- tant. tience PREFACE. vii tience till the mifchief, every day increaOng, fhall remedy itfeif ; till, in fhort, " there is A DROP TOO MUCH." Sir William Blackftone obferves that, con- fidering what manner of men are for the mofl. part put into the office of conftable, it is per- haps very well that they are generally kept in ignorance of the extent of their powers * ; an obfervation to which it may be readily con- ceived, the compiler of the following Digeft does not fubfcribe. In fact, he has ever re- garded it as equally farcaftic, illiberal, and unbecoming; and only to be accounted for by the profeflional character and habits of the writer; who, doubtlefs, thought that law, like religion, being a myftery, t\& Jcriptures fhould in both cafes be locked up in an unknown lan- guage or unintelligible jargon \ ; that the fro- fane ought to know no more than the initiated may think fit to communicate; and that, in fhort, the moft ignorant are the moft trac- table, and confequently the fitteft for good Chriftians and good fubjects. If the powers which the law has vefted in the conftable be fo large, that it is even dangerous he fhould know them, why were they given him ? why * i Com. 356. f 3 Com. 322. and Benthams Fragment of Govern- ment, Preface, p. xxxv. A 4 are viii PREFACE. are they not taken away ? why is he to be puniihed for negleding duties of which it is beft he fhould be ignorant ? Would it not be full as well, confide ring what manner of men are for the moft part put into the office of juflice of peace, if they too were to be kept in ignorance of the extent of their powers'? This, indeed, it may be, is already the cafe ; though they do not on that account feem the lefs inclined to abufe them. But wherefor is it that fuch " manner of men" are put into the Office of Conflable ? Becaufe upward of a hundred adts of parliament, which few ever fee, and flill fewer comprehend *, added to the arbitrary and capricious decifions of fome courts, and the ignorance and innovation of others, have rendered it fb burthenfome, fer- vile, vexatious, and expenfive, that they who poflefs or ufurp the power of filling it, felect * The emperor Caligula, it is faid, caufed his laws to t>e written fo fmall, and placed fo high, that, though all might clearly fee, none could poflibly read. The Englifli law is thought by Tome to bear in many inftances a great refemblance to the Roman. And it feems a maxim in both, that ignorantia legis non excufat. Others have not hefitated to fay that Britifti ftatutes refemble cobwebs, placed in darknefs and obfcurity, for the purpofe of en- trapping the fmaller flies, in order to glut the bottled- Jfiders of Weftminfter Hall with their blood. But thefe, no doubt, are the ravings of beggered fuitors, and con- feo^uently not to be regarded. thofe PREFACE. he thofe who have nothing to recommend them but the willingnefs with which they receive the yoke, and the patience with which they bear it. The reafon given for this partiality is, that no GENTLEMAN can accept fuch an office-, poverty, both in purfe and in Ipirit, being looked upon as the proper qualification for a confta- ble. Thefe fame GENTLEMEN, it fhould feem, are high-mettled borfes> who would kick and wince, and play the devil, in fhort, if you at* tempted to put them in the fhafts ; the VUL- GAR are affes, who tamely fubmit to every in- dignity. But, gentleman or no gentleman, he who can beil afford to lofe his time and mo- ney, who has fpirit and ability to fuflain fa- tigue, and refolution to oppofe infult and op- preflion, is the fittefl perfon to difcharge the Office of Conftable. To confer it, from what- ever motive, upon people of bale or inferior condition, was long ago reprobated by lord Bacon as " a mere abufe or degenerating from the firft inftitution *." And, certainly, the ne- cefllty of a man who depends upon his daily employment for the daily bread of himfelf and his family, and whofe time is of courfe the moft precious, ought to be a fufficient excufe in any court of juftice why he fhould not be * Law Trails, 183. compelled * PREFACE. compelled to ferve this office; only it would probably coft him more to obtain the deter- mination than he can value his time at. It is^ doubtlefs, a very fcandalous infmuation that juflices of peace, who have fome how or other acquired the power of making conilables, fe- lect the meaneft and moft ignorant by way of magnifying their own wifdom and confe- quence; gems, it is well known, which re- quire no foil to increafe their luftre. It is, by no means, a lefs abufe, when a perfbri every way fit for the office is pitched upon, to admit in his Head any worthlefs fellow that he can procure, bafe enough to ferve the duty for a few guineas. What integrity or pro- priety of conduct can be expected from one whofe neceffity renders every fhilling that is offered him an irrefiflible temptation ? The great Shakfpeare has fatirifed this practice with admirable pleafaritry, in his play of Mea- Jure for Meafure> where he introduces the character of a foolilh fubflitute bringing a charge before one of the dukes deputies : Efcalus. Come hither to me, matter Elbow; come hither, matter conftable. How long have you been in this place of conltable ? Elbow * Seven years and a half, fir. Efca. I thought, by your readinefs in the office, yot had PREFACE. xl had Continued in it fome time. Alas ! it hath been great pains to you ' they do you wrong to put you fo oft upon it. Are there not men in your ward fufficient to ferve it. Ettow* Faith, fir, few of any wit in fuch matters : as they are chofen, they are glad to choofe me for them ; I do it for fome piece of money, and go through with all*. If the prefervation of peace and good order be the intereft of fociety, the legislature would eflentially contribute to that end in extending more effectual protection and encouragement to the conftable. This would be done by caufing all the laws which authorife or oblige him to do particular acts, or any way concern the execution of his office, to be reduced into a fmgle ftatute, conceived in plain intelli- gible language f -, and by requiring every court, at the election of a conftable, to put a * There is another not over -wife conftable in the Comedy of Much ado about Nothing; and again in that of Loves Labour Loft. It is to be hoped fuch a character is not fo very common now a days. f A refolution of all the judges would anfwer the fame purpofe. Something of this kind, it is true, was formerly attempted by a chief juftice, but being haftily, carelefsly, and every way badly done, was defervedly re- je&ed by his brethren. copy xii PREFACE. copy of it into his hands : in order that, hav- ing his power and duty conftantly under his eye, he might be without excufe in neglecting the one, and without danger in exercifmg the other. If it be true that every man who ferves the public ought to be paid by the public, it is inoft unreafonable and unjuft that a duty fhould be impofed upon any one, which, if attended to as it ought to be, would demand the greateft part of his time, not only without making him the flighted recompence, but even obliging him to be at (what is to him) a confiderable expence; for even the mere " confumption of time, to him who lives by the fale of his time, is equivalent to expence." Suppofe, therefor, that every perfon dulyelecl> ed a conftable were, during his continuance in office, not exceeding one year, exempt from all taxes and impofitions, parliamentary, or lo- cal ; and, in cafe of actions againft him touch- ing his office (the dread of which is one great obftacle to its due execution) fhould be al- lowed to defend, not in forma pauper is , but fome really unexpenfive mode *. This, if not an adequate * The defence of a&ions by an innocent man requires the fortune of a rich one. Even a pauper * who is to fwear himfelf not worth five pounds in the world, will have PREFACE. xiii adequate compenfation, would be a great re- lief, and in fome cafes, at lead, an indemnity, to perfons ferving the office, -would induce them to accept it with cheerfulnefs, and ex- ecute it with fpirit, confcious that in fo doing they were benefiting fociety without injuring themfelves *. One cannot, however, have the fatisfaction to think, that a fuggeflion fo ad- vantageous both to the community and to the individual, Hands the lead chance of ever pafiing into a law. If, indeed, the propofal v/ere for a productive tax upon conftables, or for the purpofe of making bad worfe, or of heaping oppreflion upon the oppreiTed, there would be little fear of its being adopted. This, therefor, is another of thofe felf-re- forming grievances which muft be patiently fuffered to attain their worft ftate. To conclude : If the following pages prove at all inftrumental toward making a fingle conftable more active, confident, and fecure jn the difcharge of fuch of the powers and duties of his office as are any way beneficial to fociety, (for the lefs he attends to the others have to provide ten t or poflibly fifty times that fum, to profecute or defend his fuit. * In fome parts of the north, the conftable is intitled to an ancient cefs charged upon certain lands, which has formerly amounted to a pretty confiderable fum. the *iv P R E F A C E. the better,) the compiler will have reafon to flatter himfelf that his efforts, though humble^ have not been ufeJefs, 1 N T R O- INTRODUCTION, i t rip^HE origin of the word CONSTABLE, JL which fome etymologifts have- errone- ously fought for in the Saxon language (*), is un- doubtedly to be found in the Comes Stabuli of the Eaftern empire : hence the conftabularius, conftabu- lusy &c. of barbarous Latinity ; the connejlable of the French ; the cone/labile of the Italians, &c. ( z ) This comes Jlabuli was at firft, as his title imports, no more than prefect or fuperintendant of the imperial {tables, or, in other words, the emperors matter of the horfe ; but having, in procefs of time, obtained the command of the army, his name, corrupted into conflabulus and conjlakularius^ began to fignify a commander ; and, with this fignification, appears to have been introduced into England at the Norman Conqueft, or, perhaps, fooner ; fmce, in facl:, fome fuch officer feetns to have been already known un- der the title of Stallarius. 2. THE CONSTABLE (or LORD HIGH CONr- STABLE) of ENGLAND was an officer of the higheft dignity and importance in the realm. He was the leader of the kings armies ; and had the cogni- zance of all contracts and other matters touching ( J ) See Lambard, Sir T. Smith, and others. (*) See Spelmans Gloffary, voct CONSTABULARIUS. arms svi INTRODUCTION. arms or war ( 3 ). This office, which appears to have been granted by William the Conqueror to Walter eail of Gloucefter, or, according to others, to William Fitzofbern, or Roger de Mortimer, be-r came, afterward, hereditary in two different families, as annexed to the earldom of Hereford ; and, in that right, after a lapfe of near two centuries, (feveral perfons enjoying the title and authority in the mean time) was revived, by judgement of law, in the per? fon of Edward Stafford duke of Buckingham ; but Henry VIII. thinking the office too high and dan- gerous for the hands of a fubjecl:, took the firft op- portunity of putting an end to it by cutting off his head. Since this period, there has been no lord high conflable, except pro bac vice, as Robert earl of Lindfey was appointed in 1631 to determine the appeal of lord Re.a againft Ramfey, and as fome perfon or other is created at the coronation of a king or queen. 3. We had alfo CONSTABLES OF CASTLES, that is, keepers or governors, fo called, of the canles of the king or great barons, whom the French term chdtellains, from the Latin caflellani^ and who were frequently hereditary, and by feudal tenure ; fiich were the conftable of the tower, the conftable of London, or Baynards-caftle, the conftables of the caftles of Dover, Windfor, Chcfter, Flint, &c. fomc of which offices, though not now hereditary, are re- maining to this day. Thefe are the conftables in- tended in Magna Chart a ^ cc. 17. 2O. and who, in the ftatute of Weftminfter the firft (3 E. I. c. 15.) ( 3 ) 13 R. 2. ft i. c. 2. See alfo Madox's Hiftory of the Exchequer, p. ay, &c. are INTRODUCTION, xvii are called conflables of fees, and there confidercd as keepers of prifons; a conftituent part, indeed, of all ancient caftles. Lord Coke obferves that be- fore Magna Charta thefe conftables of caftles had the like authority within their precincts as the fbkrifF had within his bailiwick, and commonly fealed with their portraiture on horfeback ( 4 ). The flatute of 5 H. 4. c. 10. which recites that, by colour of their commiffions as juftices of the peace, they took peo- ple to whom they bore evil will, and imprifoned them in their caftles till they made fine and ranfom for their deliverance, and ordains that none be im- prifoned but in the common jail, feems to have put an end to a race of tyrants fo odious to the people as to be ufually reprefented in romances under the character of monftrous giants, who, not content with the property, would eat the flefh, drink the blood, and grind the bones of the unwary and un- fortunate traveler. 4. There was likewife formerly a CONSTABLE OF THE EXCHEQUER ; of whom we may read in the Dialogue Scaccarii^ 1. i.e. 5. in the ftatute De Diftrittione Scaccarit (51 H. 3. ft. 5.) in Fleta, 1. 2. c. 31. and in Madox's Hiftory of that Court, p. 724, &c. We alfo find mention made in fome old fta- tutes of THE CONSTABLE OF THE STAPLE. See 27 E. 3. c. 8. 15 R. 2. c. 9. 23 H. 8. c. 6. 5. We now come to THE CONSTABLE OF THE HUNDRED, Of HIGH, CHIEF, or HEAD CON- STABLE (as he is otherwife called) of whom we ihall have a little more to fay. By the ftatute of (*) a Inft. 31. See alfo W. i. c. 17. a Wynton, xviii INTRODUCTION. Wyntony or Winchefter (13 E. I.) c. 6. it is or- dained, that in every hundred or franchife there (hall be chofen two conftables to make the view of ar- mour, as directed in the preceding part of the chap- ter 5 and that the conftables aforefaid fhall prefent before thejuftices afligned the defaults of armour and of the fuits of towns and of highways ; and fhall alfo prefent thofe who harbour ftrangers in up- land towns for whom they will not anfwer. They are likewife to prefent {heriffs or bailiffs who do not follow the cry of the county. It is agreed by Mr. Lambard ( s ), by fir Edward Coke ( 6 ), and by fir Matthew Hale ( 7 ), that con- itables of the hundred were firft introduced by this ilatute. And though Fitzherbert ( 8 ), and Crompton after him ('), have aflerted that they were confer- vators of the peace at the Common Law ; and though it is faid in other books that " notwithftanding the opinions to the contrary," the high conftable was an officer at the Common Law, and that the ftatute of Wynton only enlarged his authority ( I0 ) ) yet no one has hitherto produced the leaft evidence in fupport of fuch aflertion. On the other hand, befide the au- thority of Coke and Hale, it has been exprefsly held from the Bench, that a high conftable is not fuch an officer, nor confervator of the peace, whereof the (s) On Conftables, 3. ( 6 ) 4-Inft. 267. (?) zP.C. 96. (*) J.P. 156, b. (9) J. P. aoi, b. ( >0 ) 3 Keble, 231. Salk. 175. 381, xi Mod, 215. L. Ray. 1193, 1195. Common INTRODUCTION. xix Common Law takes any notice ; that he is not men- tioned in any book; and that, in fine, he is only by cuftom and for conformity ( XI ). It muft be con- feffed, that the firft mention made of the high con- ftable in any ftatute fubfequent to that-already cited, is by 4 E. 4. c. I. ( xl ) And though fir William Blackftone has, in one place, attempted to carry up his antiquity as high as king Henry II. ( I3 ) he, in an- other, exprefsly mentions him to have been firft or- dained by the ftatute of Winchefter (**). After all, however, nothing can be more certain than that the conftable of the hundred, or high conftable, whether he be allowed an officer at the Common Law or not, was inftituted long before that ftatute. This curious facl: is afcertained by a writ or mandate of the 36th year of king Henry III. preferved in the Adverfaria to Wats's edition of Matthew Paris, and from which chapters 4. and 6. of the ftatute of Wynton are evidently taken, though it has hitherto efcaped the notice of every writer or fpeaker upon the fubjecT:. By this writ it is provided, that in every hundred there fhould be conftituted a CHIEF (") Cro. Eliz. 375. where it is fald that in the North they had no high conftables, which appears from Nordens Defcription t p. 30. to be the cafe in Cornwall. ( xl ) He afterwards occurs in 19 H. 7. c. n. 22 H. 8. c. 23. 24 H. 8. c. 10, &c. ( I3 ) 4 Com. 2ii. The prapojitus kundredi, whom the learned author has miftaken for the high conftable, feems te have been the bailiff of the hundred, as prapofitus comitatus is the fheriff, and pr" and is declared by lord Coke to be as ancient as torns or leets be, ant! not .to have begun about the beginning of E. 3. as fome have fuppofed ( 17 ).. It muft be confeffed, however, ( I5 ) Injingulis vero hundrtdis conjlituatur UNUS CAPITA- Lis CONSTABULARIUS, ad cujtts mandatum omncs jurati ad arma de bundredis fuis convenlant, fif eisfint intendentes ad fa- ciendum ea qua ftettani ad confervaiionem pads nojlr*. ( IC ) Popham, 13. and below, p. i. ( 1? ) 4 Inft. 265^ His lordfhip here alludes to tlie opinion of INTRODUCTION. xxi however, that no mention of him, by this identical name, is any where found to occur anterior to the writ or mandate, already mentioned, of king Hen- ry III. whereby it is provided, that in every villate or townftup there fhould be conftituted a coriftable or two, according to the number of the^inhabitams ( l8 ), It is, neverthelefs, pretty certain, that lord Cokes idea is ri:2;ht, and that this officer is actually owing to the inititution of the frankpiedge, ufuajiy attri- buted to king Alfred, and was in fadt originally the fenior or chief pledge of the tithing or deccnna. In fupport of this poiition we may obferve, that the conftable (or an officer reiernbling him) is, in many places, at this very day, called the beadborough^ titb- ingman^ or borjholdcr ; all names belonging to the chief pledge, and to be found in numerous ftatutes in company with and as fynonimous to conjlable ( l9 ) j of Mr. Lambard, who fays, " About the beginning of the reign of K. Ed. 3. petty conftables were devifed in towns an4 parifhes for the aid of the conftables of the hundred." An opinion which certainly detracts from the character of Mr. Lambard as an induftrious or judicious antiquary. Lord Bacon, on the contrary, who allows the great antiquity of (petty) conftables, doubts that the high conftable was not ab .origine, and only introduced for conveniency fake " when the authority of the juftices of the peace [who did not exift before the firft year of Edw, 3.] was enlarged by divers ftatutes." jLaw Trafts, 181. An idea equally erroneous. ( 18 ) Injtngulis y that name in the time of king Edward I. though the SbreWi is threatened by his hoftefs with the " third" borough 5" and, the term not being familiar to the London edi^ tors, got corrupted into headborough, which is evidently in- congruous and abfurd : " Third, or fourth, or fifth borough/' fays he, " I'll anfwer him by law." In Loves Labour Loji^ Goodman Dull fays, he reprehends the dukes own perfon, and calls himfelf " his grace's tharborough." Norden, in his Defcription of (torn-wall, p. 30, tells us, that " tythinges have therdbarows, in fome places hedbarows, in fome bovrowjbfds, and in the wefte partes a tything man." And Ben Jonfon, in his Tale of a Tub, introduces the " high conftable of Ken- tifh-town," the " headborough" of lAington, the " petty con- ftable 1 ' of Hamftead, the thirdborough" of Belfife, and " the high conftables man." This tbirdborough is fuppofed by Blount a corruption of the Saxon freoborg, or freepledgej but, if one may be allowed the conjecture, it is not improba- ble, that as the beadborough, or chief pledge, was the/r/f man of the ten or decenna, and had the fupreme authority, fo the firft man of each of the remaining threes (that is, t\\efirji,fourth> znAfeventb of the nine} might have had fome fubordinate jurif- diftion as his afliftants, and hence receive the name of third- boroughs. The common pledges were called handbarrows. ( ai ) The book of Villarum, in the Exchequer, fets out all the vills, and there cannot be a conftabhwick. created at this day (unlefs by aft of parliament), i Mod. 13. it xxiv INTRODUCTION. it is -not-a little extraordinary that (not to mention Braclon, who wrote toward the end of the reign of Henry III.) there fhould not be a word about him in either Britton ( a *J or the Mirror, and that he fhouid be only .incidentally named by the author of Fleta(* 3 ) who has exprefs chapters on the different and moft inferior minifcers of the law in his time. In certain articles of inquiry at the Eyre, perhaps, or Trailbafton, certainly in the time of Edward I. ( Z4 ) are the following items : f De ceus ke funt CONESTABLES DE VILLS ou baylifs le roy^ ke unt lor garfouns ovek ens de atacher les felouns^ e it les fount garnlr avant par quey lex* comandemens le roy ne peujftnt eftre tenuz en nul poynt ( 2S ). All this, however, is fpoken with an exception not of acts of parliament only, which, tinker-like, for one flaw they pretend to remedy, make a hun- dred ( 33 ), but alfo of the powers and pretenfions exer- cifed or afierted by the quarter feffions, which being generally compofed of men who neither know nor care what the law is, and who, therefor, confider themfelves as a fort of legiflative body, and at li-' berty to do whatever they pleafe, finding it, per- haps, much eafier to make new laws than to become acquainted with thofe already made, has, in direct oppofition to a pofitive rule of law ( 3+ ), ufurped fo much, and fo long, with refpecl: to the election and controul both of the conftable of the hundred, and of the conftable of the vill, that it is become difficult, if not impofTible, to determine, with any degree of pre- cifion, the actual rights of either. ( 3Z ) 3 Keble, 197. 330, 2 3 1 . Freeman, 34?. n Mod. 215. (") To offer advice to the legislature may be a pre- fumptuous but is certainly a ufelefs meafure. It would, however, leflen the mifchief which almolt every aft of par- liament unintentionally does, if a general faving or provifo were introduced, as is ufual in private afts, whereby every right, law, or cuftom, not exprefsly taken away or altered by fuch aft, mould continue in force. ( 34 ) That a court created by aft of parliament cannot pre- fcribe, nor exercife any authority which is not thereby ex- prefsly given to them. " How, 1 ' fays Holt, " can juftices of peace make a conftable, who is an officer at Common Law, and they only by ftatute ?" n Mod. 180. See ali'o 4 Inft. 167. THE THE OFFICE O F CONSTABLE, CHAP. I. OF HIS QJJALITY. 40 E. 4. 1 8, rip HE conftable was ordained to reprefs felons, Confervator Srjfcfb A and to kee P the P eace > of which he was and of the P eacc - .y&S* is a confervator by the common law *. His * Confervators of the peace, by the common law, were, i. in refpeft of their offices; a. conftituted for the purpofe. Thofe in refpecl of offices were (and {till are) i. the king j a. the chancellor or keeper of the great feal ; 3. the lord high ftewardj 4. the lord marmall; 5. the lord high conftable; 6. the juftices of the court of Kings Bench ; 7. the lord trea- furer; 8. the mafter of the Rolls j (N. B. the laft two are doubtful j) 9. the (heriffj 10. the coroner j and, n. the (pet- ty) conftable. Thofe conftituted for the purpofe (and inltead of whom are the modern juftices of peace) were, i. ordinary; a. extraordinary. The ordinary were, i. by tenure j a. by election j 3. by prefcription. Thofe by tenure were fuch as held lands of the king by this particular fervice, amongft others, of keeping the peace within a particular diftricl. Thofe B by i Hale P. His office is, therefore, i. original or primitive, as i. Confer- a confervator of the peace ; 2. minifterial and rela- v ' live to juftices of the peace, coroners, {heriffs, &c. of thejuf- whofe precepts he is to execute. tlce> &c * i Hale P. c. He is, however, an officer only for his own pre- Local jurif- 459- cin&, and cannot execute a warrant directed " to the Comb. 446. Carth. 508. conftable of the vill," or " to all conftables" gene- iSaik. 176. ra ]j^ out of that particular jurifdidion; for he is a 1300. conftable no where elfe; nor is he compellable to t h e warrant be directed to him by Fofter, name ; but he may if he will, and fo may any other 1135, i H. Black. 13. by election were fuch as were chofen to this office in purfuance of the kings writ by the freeholders in the county court. And thofe by prefcription were fuch as claimed this power by im- memorial ufage in themfelves, their anceflors, predeceflbrs, or thofe whofe eftate they had in certain lands. The extraordi- nary were perfons efpecially commillioned by the king, in times of imminent danger, to take care of and defend a particular diftrift, and to preferve the peace within the limits thereof. The general authority of all thefe confervators was the fame, being that which the (petty) conftable has at this day. But none might award procefs, or take recognizance for the furety of the peace, befide the king, the great officers already named, and judges of record ; though all might take fuch* furety by obligation. See ^ Hawk. P. C. 43, 44., 45. (new edition) and the authorities there cited. * By 24 G. 2. c. 55. in cafe any perfon, againft whom a warrant /hall be ifiued, mall efcape into, or be in any other county, &c. it mail be lawful for any juftice of that county, &c. upon proof on oath of the hand-writing of the juftice who granted the warrant, to indorfe his name thereon, which mall be a lufficient authority to the perfon bringing the warrant, and all others to whom it was originally directed, to execute the fame in fuch other county, &c. But even under this aft a conftable is not compellable to go out of his diftricl. 5 He [ 3 1 Comb. 204, Fie is an officer of the court of quarter feffions, Officer of over whom they have power *. CHAP. II. OF HIS (QUALIFICATION. Rep. 41. r i \ H E common law requires, that every con- ' JL ftable mould be idoneus homo^ i. e. apt and fit to execute the faid office ; and he is faid in law to be idoneus who has thefe three things, honefty, knowlege, and ability ; honefty, to execute his of- fice truly, without malice, affection, or partiality ; knowlege, to know what he ought duly to do; and ability, as well in eftate as in body, that he may intend and execute his office, when need is, diligent- ly, and not for impotency or poverty to neglect it ; for if poor men mould be chofen to this office, who live by the labour of their hands, they would rather fuffer felons and other malefactors to efcape, and neglect the execution of their office in other points, than leave their labour, by which they, their wives and children live: and the commonwealth confifts * This power feems to be given to the juftices of the peace by the fecond claufe of their commiflion : " We have alfo af- figned you, and every two or more of you (of whom, &c.) our juftices to enquire the truth more fully, by the oath of good and lawful men of the aforefaid county, ... of all and all manner of felonies, &c. And alfo of all meriffs, bailiffs, ftewards, CONSTABLES, keepers of gaols, and other officers, who in the execution of their offices about the premi/es ', . . . have unduly behaved themfelvcs ... or have been . . . care- Jefs, remifs, or negligent in our aforefaid county." B2 in [ 4 ] in the well-ordering of particular towns, and order will not be well obferved in them but where the officers are idonei^ i. e. honeft, knowing, and of ability. . . . And if one be elected conftable who is not idoneuS) he, by the law, may be difcharged of his of- fice, and another man who is idoneus appointed in his place. Bacons L.T. The petty conftables in towns ought to be of the Better fort. x8 3 better fort of refiants ; fave that they ought not to be aged or fickly ; but men of able bodies, in refpe& of the keeping watch and toil of their place ; neither ought they to be in any mans livery. Dalt. J. P. For conftables chofen out of the meaner fort, they Meaner fort. 5 s ' are either ignorant what to do, or dare not do what they {hould, or are not able to fpare the time to exe- cute this office : they are therefor to be able men, Able men. and to be chofen of the abler fort of parifhioners ; and are not to be chofen either by the houfe or other cuftom. i Mod. 42. He ought not to be the keeper of a public Publican. houfe *. Freeman, And muft be an inhabitant of the place for which Refiant. ft s 6 he is chofen. * Such perfons are exprefsly prohibited in Weftminfter, by 9-9 G. z. c. 35. C H A P- C 5 ] CHAP. III. OF HIS ELECTION. 4 inft. 265. TTE is chofen, by the common law, at the leet, or, Leet or Comb. 416*. JL JL where there is no leet, at the tourn ; fome- toura * ' times by the jury, and fometimes by the fteward, L. Ray. 70. according to ancient and particular ufage. If he be Strange, prefent, when chofen, he is to take the oath in court; 1119- ifabfent, he may be fworn before a (fingle) juftice 131. ' ' of the peace. But in the latter cafe he ought to have fpecial notice of his election, and a time and place fhould be appointed for his taking the oath. 13 & 14 In cafe a conftable dye, or quit the precinct, two Two juf- Comb. C '"a8.' j u ^ ces ma y make and fwear a new one, till the lord of " Strange, t h e manor fhall hold a court leet, or till the next quarter 1050. 1213, feflions, who ma 7 e i tner approve of the conftable fo sues" 'el* ma( k> or appoint another. Alfo, if he continue above a year in office, the quarter fefltons may difcharge Quarter fef- him, and put another in his place until the lord fhall flons% hold a court. But juftices of the peace, either in Or out of the quarter fefiions, cannot in any other cafe difcharge a conftable chofen in the leet *. Araan- * The following perfons are exempt from being compelled tp ferve this office : i. Attorneys of the Courts of Kings Bench and Com- mon Pleas. (Noy, nz. Cro. Car. 380.) 2. Barrifters (as it feems. i Mod. 22. 3. The prefident and fellows of the college of phyficians, in London. (32 H. 8. c. 40.) but lio nther phyficians, nor they or others elfswhere. (i Mod. 2*. 83 tomb. 285. A mandamus may be granted to the fteward of a Mandames. court leet to fwear a conftable. Sf range, A pcrfon may be indicted for not taking upon him Indiftment. 92 * the office of conftable. 5 Mod. I n tne l eet or tourn where one is elected conftable, Fine or J 3' and refufes to be fworn, he may, if prefent, be fined for the contempt; if abfent, amerced or fubje&ed to a penalty for non-acceptance of the office according to the order. Vide tamen i Sid. 431. a Keble 578.) 4. Freemen of the company of Iurgeons of London, examined, approved, and exercifmg the fcience of furgery. (5 H. 8. c. 6. 32 H. 8. c. 42. 18 G. a. c. 15. and wide Comyns, 312) 5. Free- men of the myftery of barbers of London. (5 H. 8. c. 6. 32 H. 8. c. 42. 1 8 G. 2. c, 15.) 6. Diffen ting teachers, (i. W. & M. c. 18.) 7. Apothecaries praflifing in, or within 7 miles of, London, free of the company j or in the country, having ferved 7 years. (6 & 7 W. 3. c. 4.) 8. The original proprietor or firft affignee of a certificate for profecuting certain felons to convilion (commonly called a Tyburn ticket) if a farijh or (as in London) a ward office (within the parijh or danger of death) the conftable, either upon complaint, or upon a juftice's warrant, or hue and cry, may break open the doors to take him, if, upon demand and notice, he will not yield himfelf, or entrance be refufed. And, in that cafe, if the conftable kill the felon, who cannot be otherwife taken, it is no felony. Chyton,44. If A. lofe goods, and charge B. with dealing Arreft in- them ; and the conftable fearches B's houfe but finds none of the goods, yet upon the charge, and at the requeft of A, he may arreft B. but this is difcretion- ary, fince he has found no caufe of fufpicion on his fearch. Keilwey,34. If the conftable, having arrefted a man for fufpicion of felony, finds that no fuch felony hath been com- or dv mittcd, the opinion of Keble, Conifby and Frowike was, [ 9 3 was, that he might let his prifoner go. But, by their opinions, if a man be killed in facT:, and one is ar- refted for that felony, or for fufpicion thereof, al- though the conftable afterward finds that the prifoner is not guilty, ftill he may not let him go, but he ought to be delivered by due courfe of law. 41.3.0.10. He may carry one that he has arrefted for felony Common Jy E.'!." to the common jail, and the jailor is bound to re- '^ i Hale P. c. ceive him. He may imprifon to prevent a felony, by his ffi C e ; as if he fee two with weapons drawn, ready to fight, in prefervation of the peace, and to prevent manflaughter, which might enfue, he may fet both in the flocks. Or if a man in fury be purpofed to kill, maim, or beat another, the conftable feeing it may arreft and imprifon him till his rage be pafled, for the confervation of the peace. Br. Faux Where one beats another almoft to death, and Arreft Ja '^."6. hue and cry is raifed, the conftable may arreft Crompj.P. t ] ie party, and, if he refufe the arreft, may take power to arreft him ; and may beat him till he obey the arreft j and may imprifon him till he perceive whether the other will live, and may then let him at large. Moore, He may arreft and imprifon one for a felonious Feiolo Pop. 13. intent ; as where a man had led away an infant of in two years old into a church, and there left it to perifh for want of fuftenance, and the conftable took him, and fet him in the ftocks. Alfo if a man . . Jay an infant which cannot help itfelf upon a dung- hill, or in the open field, fo that the beafts or fowls may deftroy it, or where no one is bound by law to take it up but he who brought it thither, whereby the C o ] the infant might perifh, the conftable feeing it may commit the party fo doing to prifon. Cromp.J.P. if ne f ee one making affray, or affaulting another, Affray, &c. 201. or breaking the peace, or hear, or know, one to menace, or threaten to kill, wound, maim, or beat another, he may take and fet him in the flocks, or commit him to prifon, or to jail, till he find furety Surety of for keeping the peace, or is bound to his good the peace ' behaviour. jo .4.18. He may take furety of the peace by obligation in Obligation. pi?*. Er/ his own name, but not otherwife ; and may certify it Suertie, P i. a t the feflions *. 2 3- Cromp.J.P. 131. 4 Inft. 265. Cro. Eliz. 375.376. Cromp.j.p. He may take aid of his neighbours to arreft Aid of another, and they are compelled to affift him by law; n and, upon affray and fuch like, he may raife the people of the realm to caufe the peace to be obferved. F^ux 75 ' He ma y commit durin g affray in his own view, Commit- " 6. but not after affray, to compel the party to find furety j?' n ' for af ~ of the peace, as he cannot take any mans oath that he . is in fear of his life. But he may, upon complaint, arrefl the party, and bring him before a juftice of the peace, to find furety, or for appearance. Cromp.J.P. If men be making affray in a houfe, and the doors Affray 130, b. n i nii i r i within doorB. 2 Hale P. , are " lut > tne conftable may enter and fee the peace c - 95- kept. And if manflaughter, or bloodfhed, is likely to enfue, and entrance upon demand is refufed, he may break open the doors to keep the peace and prevent the danger. Cromp.J.P. And if he whc made the affray flies to a houfe and Affray and X 3* b< fhuts the door, the conftable may follow and take ' gu ' * According to Lord Bacon, he was to fend it to the Exche- quer of Chancery, whence procefs fhould'be awarded to levy the debt,' if the peace was broken, L. T. n i. hirn [ 11 ] him by frefh fuit, or otherwife, where the other party is in danger of his life. Cramp. J. P. And if he perceive that perfons are about to make Impending affray, he may command them to difperfe upon pain of imprifonment ; and if it appear likely to be a great affray may commit them to prifon for a fhort time to prevent it. azE.4. 35, But he may not fet one who hath broke the peace Stocks or in the flocks, if he can have him to the next jail for ^ ai1 * the night.- a Hiie P. c. fje hath power ex officlo to keep a watch for the Watch, purpofe to raife or purfue hue and cry upon robberies committed, by the ftatute of Winton, c. I ; to fearch for lodgers in fuburbs of cities that are fufpicious perfons, which is to be done every week, or at leaft once in 15 days, by the fame ftatute c. 4 ; for fuch as ride or go armed, by the ftatute of 2 E. 3. c. 3 ; for night walkers and perfons fufpicious, either by night or day, by the ftatute of 5 E. 3. c. 4. And it is in his power to hold fuch watches as often as he pleafes, and the watchmen are his minifters and afliftants, and are under the fame protection with him, and may act as he doth, and regularly he ought to be in company with them in their walk and watch *. aHaieP.C. If there be diforderly drinking or noife at an Diforderly unfeafonable time of night, efpecially in inns, taverns, or alehoufes, the conftable, pr his watch demanding entrance and being refufed, may break open the, * A watchman hath a double protection of the law, vi. i. As an afllftant to the conftable when he is prefent or in the watch. 2. Purely as a watchman fet by order of law j and the law takes notice of his authority j and the killing of a watchman in the execution of his office is murder, z Hale, P, C. 97. 3 6 doors. [12 ] doors, to fee and fupprefs the diforder; as is con- ftantly done in London and Middlefex. iRollR.23?- He may imprifon one who infults, afTaults, or Infult, &c, ?m rif UX i ma k- es a ff ra _Y upon him, or oppofes him, though Cromp. J.P. but verbally, in the execution of his office ; and may Cayton, ic. a ^ ^ eat another in his own defence. Owen 98. He ma y ta ^ e a roadman and put him in prifon, and Madman, (hall not be charged though he dye there. 3 Lev. 208. If an inhabitant refufe to watch in his turn, the Refufal to ccnftable may fet him in the ftocks. 5 E. 4. i. If an innkeeper will not lodge a man, the conftable, innkeeper' fur,:t"f". upon complaint, may oblige him*. 76. Cromp. J-P. 201. i E. 4. 8. He may apprehend night walkers f. Night wai- Cromp.j.P. And may arreft and commit lewd perfons, who/ \ C-? b. Lewd per- Bf.Trd'pas, refort to houfes where bawdry is ufed, to make them fons. -6 .^ n( ^ ^ ecur ^y for their good behaviour. 5 Rep. 556. If he arrefts on a general warrant, fell coram aliquo General jvfllciario (before fome juftice) he may carry his ^ prifoner to what juftice he will. i E. 3. c. 3- He may arreft perfons coming before the kings Going jufticcs with force and arms, or who bring force in arme<1< affray of the peace, or go or ride armed J. He * Square How ? He may prefent him, indeed, at the feffions, orleet: but the book fhould feem to imply fomething more; as the man may be loft or ftarved for want of a lodging. Inn- k( ' crs a-/c, in fuch cafe, likewife, fubjefl to an aftion for da- ot the party grieved (Goclb. 34.6. Palm. 374, a KA R . ) and it is a great pity their infolence is not now and then collected by one or other of thefe methods. f And fo may his watchmen, and commit them to cuftody till the morning-, ^ Hale P. C. 98. Br. Faux iMprifon* tnent, 39. Andio, in (hort, may any man. Br. Faux Imprifon- 15. This is to be underftood of going or riding armed with harnefs Cromp.J.P. Bacon L.T. 187. . [ 13 ] He may make a deputy to execute his office in ^ s abfence; and fuch deputy may execute warrants, directed to the conft^ble, and do all other things per- taining to the office of conftable, though he be not fworn*. j Roll. R. 274. i Roll. A. 59 1 ' Sid. 355. i W. & M. e. 18. 7. 3 Burr. Comb. 303. He may command his neighbours to affift him in Neighbours, the execution of any authority or duty vefted in him by the common law ; but not by particular ftatute, unlefs in fpecial cafes. By virtue of a warrant, he may break open a houfe Breaking to take a P erfon for treafon r felony; but for llo P end WT - other caufe. Where he has a warrant he is tyed up to that war- Warrant. rant, to a& only as it directs. He may grant teftimonials under his feal licenf- Servants in ing fervants in hufbandry, &c. to depart from their Hufbandr >- matters and ferve elfewhere. He may command infected perfons in time plague to keep the houfe f. He may apprehend perfons fufpeled of being de- Brownl. i r Mod Ja. c. 31. 30 G. 3 . c, (Annual,) deferters. harnefs and weapons, in an unufual, warlike and terrific man- ner. Every man has by law a right to carry ordinary arms for the defence of his perfon and property, and (if neceflary) to kill thofe who offer violence to either. * But he muft be anfwerable for his deputy upqn any mif* carriage j unlefs the deputy is duly allowed and fworn $ for then he is conftable. Wood, b. i. c. 7. f- If they refufe, the watchmen or keepers may enforce them; or if they go abroad and converfe in company, having any in- fectious fore, they are to be adjudged felons and fuffer death ; or, having no fore, to be punifhed as vagabonds., and bound to thei? good behaviour, (CH AP, [ 14 J CHAP. V. OF HIS DUTY. Cromp.JP. fTH HE office of conftable is to take fuch as make Affray. 3 3*- JL affray, and imprifon them till they are bound to the peace. E. v c. If an y man nave fufpicion of evil of roberdefmsn^ R berdef. H- wzftoursy or draiulatcbes^ whether it be day or night, men * they are to be incontinently arrefted by the conftable; who is to deliver them, if in a franchife, to the bailiff, if in gildable *, to the (heriff, to be kept in prifon till the jail delivery. Cro. E. 16. If he have notice that a burglary has been com- mitted, it is his duty to purfue the felon immediately, though in the night. 10 H. 4. 7. If conftable arreft a felon and carry him to thefcape, county jail, and the jailor will not receive him, the conftable ought to keep him till the jail delivery, otherwife it is efcape. Cmmp.J.P. If one take a felon in the vill, and carry him carrying to 3.01, b. to t h e conftable, it is his duty to convey him to the J ail jail, and to caufe others of the vill to affift him. aHalcP.C. As to what the conftable is to do with his pri- Demea- 95- foner that he hath arrefted for felony or otherwife : in cafe of a fudden affray through paffion or excefs of drink, he may put the party into the ftocks, or in a prifon, if there be one in the vill, till the heat of his paflion and intemperance is over, though he * Gildable is fuch part of a county as is not comprifed within any franchife j no other being anciently fubjeft to the jurifdic- tion of the Iheriff, nor liable to gelds or taxes* deliver [ 15 ] deliver him afterward, or till he can bring him before a juftice of peace. In other offences, he may convey his prifoners to the fheriff, or his jailor of the county, or, if within a franchife, to the jailor of the I franchife ; and they are bound to receive them with- out taking any thing, by 4 E. 3. c. 10. vide 5 H. 4. c. 10. 23 H. 8.c. 2. But the fafeft and beft way in all cafes is to bring them to a juftice of peace, to be by him bailed or committed as the cafe may require. For till they be bailed or difcharged, or the ftieriff or jailor hath received them, they are ftill under the charge of the conftable. a Hale p. c. Till the conftable can conveniently convey the Stocks, JJQ ' * P art 7 to a juftice of peace, or to the common jail, as when the time is unfeafonable, or there is danger of a refcue, or the party is fick, he may fecure him in the flocks, or in a houfe, till the next day, or fuch further time as may be reafonable. Cromp.J.P. If felons or murderers be in the vill, and the Felons, conftable have knowlege thereof, it is his office and duty to aflemble people and take them. Ibid. If a man fly for felony, the conftable ought to feize Flight. his goods, and keep them fafely for the kings ufe. i Mary, Conftables are, upon requeft, to affift the prefident 2 - c > 9' of the college of phyficians in London, and all per- fons by him authorized for the due execution of 14 & 15 H. 8. c. and 32 H. 8. c. 40. upon pain of contempt. $ Eliz. c. 4 . In time of hay or corn harveft, the conftable is to Harveft caufe all perfons meet for labour, at his difcretion, to ferve by the day in mowing, reaping) &c. and is to fet them in the ftocks if they refufe. 43 Eiiz. c. The weekly rate for the relief of the poor is to Poors rate. be afTeiled, in cafe the pariihioners difagree, by the churchwardens [ i6- J churchwardens and conftables ; who are, in either cafe, to levy the rate. 43 Eliz. c. The churchwardens and conftables of every parifti are to collect the fums rated, and pay the fame over to the high conftable. 43 Eliz. c. 7. Lewd perfons who (hall cut or take away corn f z S C * 2 'g rowni g? r b orchards or gardens, break or cut tors * hedges or fences, pull up fruit trees, or fpoil woods, not being felony, being thereof convicted, and not making fatisfa&ion for the damages, {hall be com- mitted to the conftable or other inferior officers to be whipped. 3 C. . c. 3. Perfons keeping a common tippling houfe^ or felling Unikenfe* ale, beer> cyder or perry, without a licence, forfeit ale houfes * twenty {hillings, to be levied by the conftables or churchwardens, and not having fufficicnt goods, or not paying within fix days, are to be committed to the conftable or other inferior officer to be openly whipped. 13 & 14 Conftables are to be aiding to the officers of the .c.z, c. ii. cu fl- oms j n t jj e execution of this act *. They * By l^ C. a. c. 19. any perfon under the warrant of the lord treafurer, barons of the Exchequer, or chief magiftrate of the port or place, with the aj/ijlancc of a conflable, may enter in the day-time into any houfe where uncuftomed goods are &fpe#ed to be concealed j and in cafe of refiftance, break open houfes, and feize and fecure the goods ; and all officers of juftice are to be aiding and ajjifting. By iz C. a. c. 43. Gagers mail, by night, in the prefence of a conftable, be permitted, upon requeft, to enter the houfe, brewhoufe, &c. of any brewer, diftiller, &c. And by 13 & 14 C. a. c. il. any perfon authorized by writ of afliftance out of the Exchequer, may take a conflable inhabiting near the place, and in the day-time, enter any houfe, (hop, &c. and aa C. 2. They are to fearch and examine if any perfon ufe Meafurep any other meafure than what is agreeable to the ftand- ard marked in the Exchequer, called the Winchefter meafure of eight gallons to the bumel, or ftrike the fame otherwife than even by the wood or brim ; or fell or buy by a meafure unfealed : and, finding any fitch unfealed meafure, are to feize and break the fame ; and for that and every other offence are to prefent the offender at the next feflions. sa & 43 They are to be aiding and aflifting to the prefi- Kiddermm Ck 2 * c> 8 ' dent, &c. of the Kidderminfter weavers, as often as fterweaver * required* 2 w. & The conftable is to be aiding and aflifting in the Diftrcfs for M. Sefr. i. appraifement and fale of goods diftrained for rent, and rentt may fvvear the appraifers 5 and is to receive the over- plus for the owners ufe. And ii G. 2. j s to ^d an( j a fft landlords, &c. feizing as a dif- trefs for rent, goods fraudulently carried away and locked up in any houfe, &c. which (oath being firft made before a juftice of reafonable ground of fufpi- cion) they are impowered to break open. 6 Ann. c. Upon the breaking out of any fire within London Fire*, 31- or Weftmmjler all conftables and beadles (upon notice thereof) are to repair to the place with their ftaves and other badges of authority, and be aiding and aflifting in the extinguifhing of the fire, caufmg and In cafe of refiftance break open doors, chefts, &c. to feize and bring away any kind of uncuftomed goods. But quaere whether a conftable is obliged to go with the offi- cer ; or if he fhould, whether he need do more than look on. The legislature leans very frequently to confound the conftable with hisjtaff. C people [ 18 ] people to work at the engines *, and preventing goods being ftolen; and are to apprehend all ill-dif- pofed perfons whom they find ftealing or pilfering from the inhabitants, and to give their utmoft a/ft fiance to help the inhabitants to recover their goods. 3 & 4 Ann, The juftices of peace at the quarter feffions next Jurors, after the 24th of June are to iflue their warrant to the head or chief conftable of the hundred, requir- ing him to iffue his precepts to the conftables, direct- ing them to meet him at fome ufual or convenient place within fourteen days, when and where the conftables fhall prepare a true lift figned by them of the names and abode of all perfons within the places for which they ferve qualified to ferve on juries ac- cording to 4 & 5 W. & M. c. 24. between the ages of 21 and 70, according to 7 and 8 W. 3. c. 32. which lift the conftables at the quarter feffions are to return and give to the juftices in open court. 3 G. 2 . c. But it is fufficient if the conftables fubfcribe their lifts in the prefence of a juftice, and atteft the truth thereof on oath, and deliver them to the chief confta- ble. l^G. a. e. Every conftable to whom notice lhall be given of Hue and cry. any robbery is with the utmoft expedition to make frefh fuit and hue and cry after the felon. ji G.2. c. Any perfon may feize and detain hawkers of Hawkers of fpirits till he can give notice to the conftable, fpirits * &c. who is to carry them before a juftice of the peace. * Or rather perfuading them to do fo ; a conftable hat DO power to caufe or force people to work who are unwilling, nor U it fit he ihould have it. The law knows nothing of beadles. Where i 19 i iid. a.ci Where no rate is made for relief of the poor, the Poors rate. quarter feffions may direct the fum aflefled for the purpofes of this aft to be rated and levied by the conftable to be by him paid tb the" high confta- ble of the hundred. 170.1.0.5. Two or more juftices are four times a year or Vagrants- oftener(if need be) by their warrant to command the conftables, who fhall be aflifted with fufficient men, to make a general privy fearch throughout their re- fpe&ive limits for the rinding and apprehending of rogues arid vagabonds, viz. perfons threatening to rim away and leave their wives or children to the parifti ; perfons unlawfully returning to the parifh or place from whence they have been legally removed, without a certificate ; perfons, not having wherewith to maintain themfelves, living idle and refuting to work ; perfons going about from door to door, or placing themfelves in ftreets, highways or pafTages, to beg or gather alms, all of whom are to be deemed idle and diforderly perfons ; perfons going about as patent- gatherers or gatherers of alms, under pretences of lofs by fire or other cafualty \ or as collectors for prifons or hofpitals j fencers, bearwards, common players of interludes, minftrels, jugglers ; perfons pretending to be gypfies, or wandering in the habit or form of Egyptians, or pretending to have fkill in phyfiog- nomy, palmeftry or like crafty fcience, or to tell fortunes, or ufing any fubtil craft to deceive and Xmpofe, or playing or betting at any unlawful games or plays 5 perfons running away and leaving their wives or children^ whereby they become chargeable to any parifh or place ; petty chapmen and pedlers wandering abroad, not being duly Hcenfed or autho- rifed j perfons wandering abroad, and lodging in ale- C 2 hou/es, [ 20 ] homes, barns, outhoufes, or the open air, not giving a good account of themfelves ; perfons wandering abroad and begging, pretending to be foldiers, mari- ners, feafaring men, or pretending to go to work in harveft ; and all other perfons wandering abroad and begging ; all of whom are to be deemed rogues and vagabonds * ; endgatherers offending againft 13 G. I. c. 23. perfons apprehended as rogues and vagabonds, and efcaped from the perfons apprehending them, or refufing to go before a juftice or to be examined be- fore him, or to be conveyed by a pafs, or knowingly giving a falfe account of themfelves on fuch examina- tion, after warning given them of their punifhment; rogues or vagabonds breaking or efcaping out of any houfe of correction ; and perfons having been punifh- cd as rogues and vagabonds, and difcharged, again committing any of the faid offences, who are to be deemed Incorrigible rogues ; and every juftice on receiving information that rogues and vagabonds, are in any place within his jurifdilion is to iffue his warrant to the conftable of fuch place to fearch for and apprehend them. Such rogues and vagabonds to be brought before any juftice or juftices of the peace of the fame county, &c. who after taking their examination fhall order them to be publicly whipped by the conftable, &c. or fent to the houfe of correc- tion ; and after fuch whipping or confinement fuch juftice or juftices may by a pafs under hand and feal * By 23 G. 3. c. 88, Whoever fhall be apprehended, and any piftol, hanger, or other offenfive weapon found upon him, with intent feloniously to aflault any perfon ; or having upon him any picklock, crow, or other implement, with intent felo- niously to break and enter into any dwelling-houfe, fhall be deemed a rogue and vagabond. caufc [ 21 ] caufe them to be conveyed to the place of their fettle- ment, and with the pafs fhall deliver to the conftable a note or certificate afcertaining how they are to be conveyed, and what allowance he is to have for con- veying them. Whereupon the conftable is to con- vey them agreeably to the pafs, the next direct: way to the place where they are ordered to be fent if in the fame county, &c. but if in fome other county, &c. fhall deliver them to the conftable of the firft town in the direct way with the pafs and duplicate of exa- mination, taking his receipt. And fuch conftable fhall without delay apply to fome juftice in the fame county, &c. who fhall make the like certificate as before, and deliver it to the faid conftable, who fhall convey the perfons unto the firft parifh, &c. in the next county, &c. in the direct way, and fo from one county to another, till they come to the place to which fuch perfons are fent. *i9 G. 2. If the conftable hear any perfon fwear or curfe, he Cur/ing and is, if a ftranger, to feize him and carry him before the * weann s next juftice, &c. or, if known to him, make informa- tion before fuch juftice, &c. to be convicted and punifhed *, 24 G. z.c. Where, under an indorfed warrant, he apprehends indorfei 55* the offender, he is to carry him before the juftice who warram * indorfed it ; and if the offender find bail, is to receive the recognizance, examination, &c. and deliver them over to the clerk of aflize or clerk of the peace of the county where the offender is required to ap- pear , and, if the offender be not bailed, is to carry * >. For what offence ? C 3 him C a* ] him before a juftice of the county where the offence, was committed *. *5 G. a. jf two inhabitants of any parifh or place paying fcot oiforderly and bearing lot give notice in writing to the conftable houfes of any perfon keeping a bawdy houfe, gaming houfe or other diforderly houfe in fuch parifh or place, he is to go with them to a juftice of the peace, and upon their making oath that they believe the contents of the notice to be true, and entering into a recogni- zance to give or produce material evidence, enter into a recognizance in . 30. to profecute fuch perfon for fuch offence at the next feffions or afllzes. The expences of profecution to be paid by the overfeers of the poor. 77 G. 2. Conftable making a diftrefs under a juftice of warrant of c - ao - peace's warrant, fliall, if required, (hew the fame to dillrefs - the party, and fuffer a copy to be taken. ?9 G. 2. c. Every conflabje or beadle within his diftri&, and steaiersof 3 C every watchman on duty, is to apprehend perfons rea- lead > &c " fonablyfufpe&ed of having, carrying, or conveying, af- ter funfet and before funrife, any lead, iron, copper, brafs, bell-metal, or folder, fufpecled to be ftolen or * This aft is very defective j for fuppofmg an offender who has committed a crime in Middlefex to efcape from county to county till he gets into Northumberland, the warrant being in- dorfed by a magiftrate of each he paflcs through, whoever car- ries the warrant to be laft indorfed, and by virtue thereof appre- hends the offender, muft perfonally carry either the prifoner or his recognizance back to the original county ; and it will not be fufficient that he deliver either to a conftable of the next ad- joining county, and fo on ; nor, in cafe he does deliver his pri- fcner to fuch conftable, will the warrant be any authority to him to carry the body forward. Therefor let the conftable in any cafe take heed how he als. 7 unlawfully f *3 3 unlawfully come by, and carry it and the party before two or more juftices. 16 G. 3. c . The lieutenant and (or) deputy lieutenants are to Militia. ' * 2I * iflue their orders to the chief conftable to iflue an order to all conftables to return to the deputy lieutenants lifts in writing of all men dwelling within the parifh, Sec. between eighteen and forty-five, diftinguifhing their rank and occupation, having firft affixed a copy of fuch lift on the church door ; and on the day appointed for return of the lifts the conftables are to attend and 24* verify the return on oath ; and the deputy lieutenants at a fubfequent meeting are to iflue an order to the chief conftable requiring him to give notice to the conftable of each parifh, &c. of the number of men appointed to ferve, and at another meeting are to iflue an order to the chief conftable to direct the conftable to give notice to every man chofen to ferve in the militia to appear at the next meeting, when the conftable is to attend and make oath of the fervice of the notice, 6 9 And the conftables are to caufe the notice they re- ceive from the chief conftable of the time and place of exercife to be fixed on the church door. 78. And conftables, &c. are to billet militia-men, when called out to annual exercife, in inns, livery ilables, alehoufes, &c, upon application by the lieu- tenant, colonel or commanding officer ; and are alfo to provide lodging for the ferjeants, corporals and drummers at other times. 80. And when the militia is called out any juftice of peace, being required by the order of the lieutenant, or a deputy lieutenant, or the colonel or chief officer , pf the regiment, &c. is to iflue his warrant to the C 4 chief r 24 3 chief conftable, or to the conftables of the pariflies, &c. through which the militia is to march, to pro- vide carriages and drivers. 9 8> And in cafe of aflual invafion, or imminent danger thereof, or in cafe of rebellion, the lieutenant or deputy lieutenants are to ifTue orders to the chief conftable, who is to forward the fame to the confta- bles, and they on receit thereof are to give notice to the militia men to attend at the time and place mentioned in the order. *3 - 3 On the 22d of September in every year, the confta- Highways, bles, churchwardens, furveyor of the highways, and houfeholders, are to aflemble and make a lift of ten inhabitants having an eftate in the parifh, &c. of . 10 a year, or perfonalty of the value of . 100, or being occupiers of houfe or land of . 30 a year, to ferve the office of furveyor of the highways ; and the conftable is three days after to tranfmit a duplicate of the lift to a juftice of peace, and return the original to the fpecial fefiions for the highways in the week after the Michaelmas general quarter feffions, and is alfo within three days to give notice to the perfons ' ' named in the lift, that they may appear at the fpecial feflions to accept the office ; ten days notice of the time and place of holding the fame being to be given to the conftable by the juftices. And the conftable is, upon requifition of the juftices, to return an account in writing of the fum which an aflefiinent of fixpence in the pound has raifed or will raife within the parifli, &c. . c. Conftables, beadles, and watchmen, are to appre- Sufpeaed hend thofe fufpeded of conveying, between fun-fet thievcs - and fun-rife, any goods or chattels fufpecled to be itolen, and carry them before a juftice. The 30 0.3, e, The conftables are to quarter and billet the Soldiers, a '' officers and foldiers in the kings fervice in inns, livery ftables, alehoufes, victualing houfes, and the houfes of fellers of wine, brandy, &c. by retail to be drank in their own houfes or places thereto belong- ing (except tavern-keepers free of the vintners com- pany). And the high and petty conftables within the city and liberties of Weftminfter, and places ad- jacent, when required, are to billet and quarter the officers and foldiers of the foot guards in fuch like houfes, in and about the faid city and liberties, and places adjacent (except the city of London) ; and when any order (hall iflue for the quartering or billet- ing of officers or foldiers within the faid city and liberties of Weftminfter, and places adjacent, the high conftable is to deliver out precepts to the petty conftables of each parifh, &c. to billet and quarter fuch officers and foldiers of the foot guards, and fuch petty conftables {hall billet and quarter them equally and proportionably. And thefe petty conftables (hall at every general quarter feffions for Weftminfter, and parts adjacent, make and deliver to the juftices upon oath, figned lifts of all houfes liable to receive fol- diers, with the number billeted in each houfe. And Juftices (being duly required) are to iflue their warrants to the conftables to make provifion of car- riages for troops on march. i Saik. 381. Though the conftable is not named in 3 and 4 W. Warrant*. & M. c. 10. nor appointed to be the officer to exe- cute the warrants, yet the juftices may command him to execute them *. A conftable * The reafon given is, that as at common law the confta- bles r *& i iSaik. 3 gi. A conftable muft either return his warrant, or Prefent- certify what he has done upon it *. ments. j. He fhould prefent all offences within his own p, knowlege, which concern the peace, as defaults of * watching, diforderly houfes, affrays, &c. &c. at the Icet, tourn, or quarter feffions. And fuch prefent- ment is as available as one made by twelve men. I Vent 336. But he is not obliged to prefent a highway fworn before him by two witnefTes to be out of repair ; even though demanded fo to do by the quarter feffions ; and may tell them plainly that he will not prefent it f. He is not difcharged of his office till his fucceflbr Discharge, be fworn j becaufe the diftricl cannot be without an officer. CHAP. bles were fubordmate officers to the confervators of the peace, fo they are now the proper officers of the juftices." But the pre- mHTes are falfe, and of courfe the conclufion bad : they were eonfervators of the peace themfelves. * He ought not to return the warrant, but keep it for his own juftification See z4 G. i. c. 44. f N. B. Although it be faid in the pamphlet, entitled, "The Duty of Conftables, &c." Gloucefter, 1790, that they "as well as other parifh officers are to take care, as much as in them lies, that l\\tfabl>atb be not profaned" the conftable is no more concerned in preventing fuch profanation (except in levying the penalty or inflicting punimment under the juftice's warrant) than any other perfon } and as that part of the al (z9 C. 2. c. 7 ) which makes it penal for a man to exercife his trade or calling on (what is called) the Lords day, favours a little too much of bigotry and Calvinifm, it will be moft commend* able, and perhaps moft advifeable, if he in all fuch cafes went for the warrant. What is innocent one day cannot well be criminal another. ** Conftahles CHAP. VI, OF HIS PROTECTION, INDEMNITY, ALLOWANCES, ADVANTAGES, AND REWARDS. CrompJ.P. hpHE conftable (hall have aid of the country to A'. "'" * pacify affrav, country - He ^* Conftables are ufually fummoned by the fheriff to attend at the quarter feffions and aflizes to make prefentments, &c. which though not warranted by any exprefs law, muft be allowed a very ancient ufage ; but the following practice feems to be per- fectly unjuftifiable. The grand inqueft for the county of Middle- fex, previous to their fitting, and before they are fworn, iffue a warrant, under their hands and feals, to the high conftable, com- manding him to fumnaon the petty conftables, who, on making default are prefented by the inqueft and compelled to appear to the prefentment in the crown office and take a copy of it, which is attended with an expence of between 20 and 30 millings, and here the proceedings uniformly ftop. And, this is done (Every term, but furely without the privity of the Court of Kings Bench, which can never fanclion fo illegal and opprefllve a con- duel. No grand jury has the leaft power by law to require the attendance of a fingle perfon for any purpofe whatever, even after it is fworn, and yet here is one which affumes that power even before it exifts. The warrant is fent to the high conftable, who is no officer of the Court of the Kings Bench, and has no bufinefs to obey it. And yet if any one thus irregularly called upon does not appear he will be fubjecT: to the above fine in the crown-office. For though the court would doubtlefs quafh the prefentment, yet the getting it quafhed would coft him a great deal more: he is therefor obliged to fiibmit to an unconftitu- tional t *8 3 St 7- 393 He is not fuable out of the county for what he does Aftlon. in the execution of his office. 7 J. i.e. 5. If he be fued for any thing done by virtue of his General office, he, and all who aflift him, may plead the gene- Double ral iflue, Not guilty, and give the fpecial matter in cofts - evidence, and on a verdict for the defendant or de- fendants, or on the plaintiffs becoming nonfuit or difcontinuing, the defendant or defendants fhall have Cromp.J.P. double cofts. And fo of a deputy conftable. Ven. 45. But in this cafe the judge who tries the caufe muft Douglas, order the poftea to be marked, and certify that the de- fendant was acling in the execution of his office. a Hale P. c. If in the execution of his office, after competent Muider, $ 460. no ti c e that he is conftable, he, or any that come to his affiftance, be killed, it is murder; although the party killing do not know his perfon *. Coming tlonal and oppreffive raeafure, becaufe the remedy is worfe than the difeafe. See the warrant in the Complete Conftable, 1725. p. 149. If it be neceffary for the conftables to make their pre- fentments to the grand inqueft, the court of Kings Bench fiiould iflue its writ for that purpofe to the meriff. * But then, as has been already obferved, he muft be acling in his own diftrict or divifion. For if the conftable of A* come into the vill of B, to fupprefs any diforder, and in the tumult be kiikd, this is only manflaughter, becaufe he had no authority in . i Hale P. C. 459. The conftable of St. Margarets parifh in Weftminfter, having a fearch wan-ant directed to the confta- bles of that parifh, came into the parifh of St. Paul, Covent- Garden, and took a woman in the ftreet near the theatre, and carried her to the round-houfe ; where he was affaulted and killed by fome who wanted to refcue her } and this killing ad- judged only manilaughter : i. Becaufe it was a fudden a&ion without precedent malice. ^. Becaufe the conftable had no au-i thority at all in Covent- Garden ; nor, fuppoiing he had any, was the woman guilty of any dilurderly a6l j and it is not 3 conftabl^ [ 29 3 i Hale P.O. Coming to appeafe a fudden affray in the day-fime in the place where he is conftable, it feems every man conftables fufpe&ing that will juftify his taking up any perfon, but it muft he juft grounds of fufpicion j and it would be hard that the liberty of the fubjecT: mould depend on the will of the conftable, or his not liking a womans looks be any caufe of fufpicion. 3. The prifoners had a fufficient provocation ; for if one be imprifoned upon an unlawful authority, it is a fuffi- cient provocation to all people out of companion, much more when it is done under a colour of juftice j and WHERE THE LIBERTY OF THE SUBJECT IS INVADED, IT IS A PROVOCATION TO ALL THE SUBJECTS IN ENG- LAND. (By HOLT, C. J.) 2 L. Ray. 1300, 1301. There are other inftances of a conftable, or his afliftant, being killed, where he has been too officiously or imprudently, becaufe ignorantly ac"ling as fuch, and exercifing an authority not given. him by law ; which of courfe will in fuch cafe afford him no more protection than a common man. See the trial of Wil- liam Power for the wilful murder of John Wilkinfon, Seffions paper, 1788-9. p. 820, where Gould, J. having confulted two of his brethren, in directing the jury, faid, " the thing being " over, it was unwarrantable in thefe people to feize this man tl thus quiet, without having an authority from a juftice of 41 peace ; he was therefore illegally affaulted and arrefted by , " No DEGREE OF ANTIQUITY CAN GIVE SANCTION TO A USAGE BAD IN ITSELF." 3 Bur. 1767. 2 pences C 33 ] pences to be allowed him ; and forthwith s without fee or reward, by warrant under his hand and Teal, , order the treafurer of the county to pay the fame, which he is required to do as foon as he receives fuch warrant, except in Micldlefex, where fuch expences are to be paid by the overfeers of the poor of the pa- rifh or place where the perfon was apprehended. 17 G. a. The county treafurer is to pay the conftable the Vagrants, 26 5 G. 2. rates or allowances afcertained by the juftice's certi- c *34' ficate, for conveying rogues and vagabonds (fee be- fore, p. 2 1 . ) Strange,42. A mandamus is grantable on I G. I. c. 34. (Mu- Soldiers. tiny Act) to allow a conftable extraordinary charges in providing carnages, &c. 27 G. 2. The conftable making a diftrefs under a juftice's Diftrefs. warrant, may deducl: the reafonable charges of tak- ing, keeping, and felling the diftrefs, out of the mo- ney arifing by fuch fale. 18 G. 3. c, Every conftable is every three months, and within Account. fourteen days after he goes out of office, to deliver to the overfeers of the poor an account entered in a book, kept for the purpofe, and figned by him, of all fums by him expended and received on account of the parifh, &c. which overfeers are within fourteen days to lay the fame before the inhabitants, and, if approved, are to pay the money due out of the poor rates ; but, if difallowed, are to deliver the book back to the conftable, who may produce it before a juftice of peace, giving reafonable notice to the overfeers ; -which juftice is to examine the account, determine objections, fettle the fum due, and enter it in, and fign the account ; and the overfeers are to pay fuch fum out of the poors rate ; but may appeal (giving notice) to the quarter feffions. D Serving [ 34 ] 3 w. & Serving for hirnfelf and on his own account for the Settlement. IRyf Burn's! c. fp ace f a 7 ear > ne gains a fettlement in the parilh ? 3- in (or in part of) which he fo ferves. 238. 520. 634. 19 Viner, 379. Strange, 444. lyG.z.c. 5 If he apprehend and convey (to any juftice or juf- Vagrants. tices of the peace) any rogue or vagabond (fee before, p. 19.) fuch juftice or juftices fhall reward him by making an order upon the high conftable to pay him ten (hillings within a week after demand : and, where no high conftable, he fhall pay himfelf, and be allowed it in his accounts. 30 G. 3. c. He is entitled to twenty (hillings for every defer- Deferters. [Annual.) ter ft e apprehends, to be paid, under a juftices war- rant, out of the land tax. CHAP. VII. OF HIS RESPONSIBILITY AND PUNISHMENT. 12. Mod. /% CONSTABLE muft at his peril take notice Warrant. jLJL that his warrant is by one in the commiffion Gib. So. of the peace. Since (before i G. 3. c. 23) even the lord chief juftice's warrant for apprehending a perfon was void by the kings demife, and the conftable im- ^ Hawk. P. prifoning one by force thereof, liable to an a&ion. c> * l - Nor can he juftify an arreft by force of a juftice's warrant fora matter appearing to be out of hisjurif- Clayton^. And' though his warrant be legal, yet if he be guilty Ml T ? "-To I c TI / L nour. of a mifdemeanour in executing it, (as where, upon i] iega |j ty a-fearch-warrant, a conftable pulled the clothes from *b '""' off a woniiiii in bed, to fearch under her fmock) this * will make all bad from the beginning* 9 - Arrefting [ 35 ] Owen, 121. Arrefting one poffefled of money who dyes, he is Chargeable. chargeable with the money. And fo where he takes from a felon money of which he had robbed another, even though he be afterward robbed of it himfclf. j Salt. 381. Negle&ing a duty incumbent on him either by Negk&of *8. common law, or by ftatute, he is for his default in- Jl disable. Cromp.J.P. On affray made in his prefence, if he do notendea- Affray. ' 1 3 b - your to pacify it, he mall be fined : but not if the affray be at a diftance, and he is only told of it. 6 Mod. 83. If he will not return his warrant, or certify what he Notretum- 24 G. 'z. * has done under it, (for he ought to keep the warrant l ^* c -44- for his own j unification,) thefeffions may fine him *. But the court of Kings Bench will not grant a manda- mus. i Hale p. c. If he wilfully lets a felon efcape out of the flocks, Efcape. 59 6 ' and go at large, it is felony. a Bur. 867. It is a mifdemeanour in him to difcharge an offen- Offender der brought to the watch-houfe by a watchman in the t h e watch- night f. hou(e He * It is faid in 5 Mod. 96. thafc-a con ftablemay.be fined by the leet, but not by the fcffions ; confidering him, it fhould feem, as an officer of the former court, in which he is elected, and not of the latter. And it is to be obferved that the commifiion of the peace gives the juftices power to enquire of the misbehaviour of conftabies by good and lawful men, and not to punifh them in a fummary way./<&0 quaere. And vide Gib. 192. f And, per Wilmot J. though without a pofitive charge. The principle of this doctrine is not altogether apparent. The watch are by law affiftants to the conftable, not the conftable fervant to the watch. The watchman may be drunk, the charge frivolous, (as that in the call- was for " walking the ftreets to pick up men,") or the like. The only reaion for charging the conftable feems to be the aftual offence of the party; not the bare delivery by the watchman. In many cafes, as affrays for D 2 - inftance, [ 36 ] 174. f[e m ay fo r uift caufe be removed by the authority Removal. 2 Hawk. F. i n. J L- c. 63. which elected him; 5iiz.c.4. Not letting one in the flocks who refufes to work Labourers. in hay or corn harveft (fee before, c. 15.) he forfeits forty {hillings. 43 Hiz, c. jjr he fail to make payment of the weekly parifh Poors rate - rate towards the relief of lick, hurt and maimed foldiers and mariners (fee before, p. 16.) he forfeits twenty (hillings. 43 Eliz. Not executing, by himfelf or fome other, the Malefactor? 7c:,*c.' 3 .P unifhment limbed by thefc flatutes, (fee before, 'v^ft*' 3 p. 1 6.) he is to be fent to jail until it is done, alehoufes. 4 J. i. c. 5. Neglecting the due correction of aperfon convict- Drunkards. ed of drunkcnnefs (who, if unable to pay five (hillings, is to be committed to the (locks for fix hours) given in charge to him by the precept of any mayor, &c. he forfeits ten (hillings to the ufe of the poor. $&jo\V. Refufmg or neglecting, upon due notice or his Hawkers 3> c ' 27 ' own view, to be aiding and ailiuing in the execution an ped; of this ad~r, (whereby hawkers and pedlers refufmg to (hew their licence are to forfeit ^5.) he is to for- feit forty (hillings. 3& 4 Ann. Not returning the lift of perfons qualified to ferve juries. c * l8 ' on juries at the quarter feffions, he forfeits 5. 5 G. 2. c. Refufmg to make frefh fuit and hue and cry (fee Hue and 161 before, p. 18.) he forfeits 5. it G. 2. c, Refufmg or neglecting to be aiding and aflifting in Hawkers of a6 ' the execution of ii G. 2. c. 26. 90.2.0.23. 10 fpinto " G. 2. c. 19. he forfeits 20. inftance, or even a fuppofed felony, he may lawfully difcharge his priibner, whether arrefted by himfelf or others ; and why - 1 not a man taken by the watch ? It is nevertiicieis a perilous /, privilege, and ought to be cautiously exerciied. But to fay lie ihall in, no caic whatever ule his diicretion iccins loo much. 4 Refufmg [ 37 3 raG. 2. c. Refufing to account for or pay over money re- Poors rate. ceived for the purpofes of this act (fee before, p. 19.) he is to be committed. 17 G. a.c. Refufing or neglecting his bed endeavours to ap- Vagrants. prehend or convey to a juftice any rogue or vaga- bond (fee before, p. 19.) he forfeits from ten {hillings ">5- 5^ 5- 2 ' C ' ^ (where there is no high conftable) he refufe to pay the reward of ten fhillings for taking up vaga- bonds on demand, he is liable to diftrefs for twenty Shillings, out of which it is to be paid, 5 7 is.* C ' 1^ he counterfeit or alter any certificate, receit, or note, ufed in the conveyance of rogues and vaga- bonds, he forfeits 50. Or if he will not receive or convey them, or does not deliver them to the pro* per perfon, he forfeits 20. 5? fzz C ' ^ ne k defective or remifs in the execution of tjiis act he forfeits from ten fhillings to 50. to the ufe of the poor, or in cafe of no diftrefs is to be fent to the houfe of correction. 19 G. ^. Wilfully omitting the performance of his duty in Curfing and feizing or informing of perfons who fwear or curfe in vs his hearing, he is to forfeit forty (hillings, or be fent to the houfe of correction *. if, * Both he and the juftice ought rather to be fent thither, for putting fo ridiculous an act into execution. It muft be confefled however that the pious editor of " The Duty of Conftables," Glocefter, 1790, is of a very different opinion ; for, fays he, " This vice, which is a fcandal to a chriftian country, a due exer- tion of your office might prove the means of checking, and by degrees that reformation may be produced by the fear of punifh- ment, which the commands of the Supreme Being, alas I are too weak to effect/' Alas ! and if a man were to ftand curfing and D 3 fwearing [ 38 ] c. If, where under an indorfed warrant he has ap- indorfed $$' prehended an offender who fhall give bail before the juftice who indorfed it, or any other of the fame county, &c. he do not deliver over the recognizance, exami- nation, or other proceedings received from fuch juf- tice, to the clerk of the aflizes or clerk of the peace of the county, &c. where fuch offender is required to appear, he forfeits JO. 956. 2. c. If he refufe or neglect to go before a juftice or Diforderij 6. $ 7. . . /-i f r j- <~L- houfes. enter into recognizance for the purpote or indicting a diforderly houfe, or be wilfully negligent in carrying on the profecution, he forfeits 20. to each of the inhabitants giving notice. (See before, p. 22). , 3 G. 3. c. Neglecting or refufing to make a lift of perfons to Highway, ferve the office of furveyor of the highways (fee be- fore, p. 24.) or not returning it, or not giving the notice or ferving the warrant directed by the act, or not returning the amount of the fixpenny aiTefTment, he forfeits forty (hillings; or refufing to execute a juf- tice's warrant under the act, he forfeits from forty {hillings to^ 10. 6 G. 3. c. Refufing or neglecting to return the lifts of perfons MUitit. c. 107. 30. ij a ki e to f erve j n tne m iiitia, or to comply with the orders of the deputy lieutenants, &c. or being guilty of fraud or partiality in the return, he may be com- mitted by them for a month, or fined 5. fwearing for a day together, who (except himfclf) would be the worfe for it ? If the Supreme Being have prohibited this practice (which remains to be proved) he will undoubtedly adapt a fit puniihment to it in another ftate. The only object of criminal law is to prevent offences injurious to a locittyj a defcription within which a few ridiculous and infenlible pVirafes can never fall. Bigots always confound fins with !) though no two things can be more eflentially different. if [ 39 3 ?Aif ' 3 n c " ^ ^ e P re ^ ullie to quarter or billet any officer or Soldiers. foidier in a private houfe, without the confent of the owner,y#rA owner is to have his remedy at law againft him ! And refilling to. execute warrants for provid- ing carriages, he forfeits from twenty (hillings to forty (hillings ; quartering wives, children or fervants, he forfeits to the party grieved twenty fhillings ; or re- fufmg or negle&ing (for two hours) to billet, or re- ceiving money to excufe perfons, from forty (hillings to j 5 ; and not delivering to the quarter feffions for Weftminfter and parts adjacent figned lifts of houfes liable to receive foldier-s, with the number billeted in each houfe, he forfeits j 5. C FI A P. VIII. OF THE HIGH CONSTABLE. CrompJ.P. rip HE high, chief, or head conftable is the con- 201 ' p c JL ftable of a hundred, rape, lathe, wapentake 96. *" or fuch like divifion, but it is doubtful whether he be 3 Kebie, a con f ervator O f t he peace. iSalk. 381. J I Mod. 215. L.Ray. 1193. Fortefcue, He is as much the officer of the juftices of the peace as the conftable of a vill or parim. i Roil A. He is ele&ed at the leet (or turn) of the hun- BuStr. 174. dned, or by the juftices of the peace *. And fuit and 3 Kebie, f ervlce to a leet is not fufficient to excufe a man from } Q7 ferving the ofnce without fpecial cuftom. * In Weftminfter a high conftable is to be ele&ed annually, and is not to ierve for mere than three years together. 29 G. ^. c. 25, D 4 And t 40 3 i Roll A. And if A. ferve for a year, and the jury for the $ 35 ' hundred according to the cuftom prefent B. and the fteward refufe to fwear him, but continue A. a writ out of* the Kings Bench may be directed to the ileward to fwear B. and if there be good caufe to re- fufe him, it may be returned to the court. 5 Eliz. 0,4. He may hold petty or ftatute feffions (for the hir- Power, ing of labourers andfervants of hufbandry) according to ancient ufage. i Saik. 381. It it is doubtful whether he can arreft for breach of 375* 376-" ^ e P eace > or ta ^ e f uret y f tne peace even by obliga- tion ; much lefs a mans oath that he is in fear of his life. i Black. R. He is faid to be an officer within the mutiny aft 3 BUr * ^ or bM et ' n g f foxier 5 ' And may occafionally make vide a deputy, whofe als in his principals abfence will be J3E. i.e. 6. He is to prefent thofe who in upland towns bar- Duty. bour flrangers for whom they will not anfwer j and alfo fuch fheriffs or bailiffs as do not follow the cry of the country, 3 G. 2. c. And is to deliver the lifts of perfons qualified to ferve on juries, which he mail receive from the conftables at the quarter feflions, attefting the receit on oath. t G. 2. c. He is on receiving notice of any robbery to make frefli fuit and hue and cry after the felons ; and is to defend any action brought by one who has been robbed againft the hundred ; and is to give public notice of being ferved with procefs. ja G.z. c. And is to collect the ccunty rate; and pay it over to the county treafurer, or account for i: at the feflions. And [ 41 ] c.5. And was to pay to the petty conftable the rate or allowance afcertained by a juftice of peace's certifi- cate for the conveyance of vagrants ; which was to be allowed him by the county treafurer, on pafling his ac- 26 G. 2. c. counts. But fuch rate or allowance is now to be paid immediately by the faid treafurer. 19 G. 2. c. If he hear any perfon fwear or curfe, he is, if a ftranger, to feize him and carry him before the next juftice, &c. or if known to him, make information before fuch juftice, &c. to be convicted and punifh- ed*. 26 G. 3. Is to forward, or give notice of the orders of the lieutenant, or deputy lieutenants, to the conftables. 30 G. 3. c. And in Weftminfter and places adjacent, when re- (Annuai.) q u j re j } ma y bj]i et the foot guards 5 and on the ifTuing of any order for that purpofe Jhali deliver out precepts to the conftables within his divifion to billet the faid guards. 3 & 4 If he fail, in obedience to the feflions warrant, to PuniA ' iflue his precept to the cenftables within his hundred m to convene and meet him, to prepare lifts of perfons qualified to ferve on juries, he forfeits . 10. 12 G. a.c. If he neglecl: or refufe to collect, account for, or pay over, the county rate, he is to be fent to jail until it is done. 170.2.0.5. If he refufe or neglecl: to pay the reward of ten {hillings for apprehending vagrants on demand, the juftice may levy twenty millings by fale of his goods, out of which it is to be paid. * The drawer of this aft has thought proper to ufe the terms " conftable" and " petty conftablej 1 ' which is juft as abfurd as it would be to fpeak of the " jury" aad " petty jury j" as if the petty cwiftable were the deputy or officer of the high conltable. Wilfully i9 G. a. c. Wilfully omitting the performance of his duty, in feizing or informing of perfons who fwear or curfe in his hearing, he is to forfeit forty (hillings, or be fent to the houfe of correction. 6 G. 3. Refufmg or neglecting to return the lifts directed 7 * * 3 * by this act, or to comply with the orders of the de- puty lieutenants, he is to be committed to jail for a month, or fined from 401. to 5. ?Annuai' )' Neglecting or refilling to execute the warrants for providing carriages for foldiers, he is to forfeit from twenty millings to forty fhillings. And if he neglect or refufe (for two hours) to billet foldier?, or receive, de- mand, or agree for any reward to excufe perfons from quartering, he is to forfeit from forty (hillings to 5. This feems to be intended of " Weftminfter and parts adjacent." (See p. 40). Bulftr. 174. He is removeable by thejuitices of the peace, if i Sa!k. 150. . r there becaufe font. S. G, a. c. No perfon (hall have an action againft any hundred Indemnity. for robbery, unlefs he, before the fecondary of the Kings Bench, the filazcr of the Common Pleas, or the (heriff of the county, (inter alia} enter into a bond to the high conftable (who is to defend the action) for fecuring the payment of his cofts ; fuch bond to be delivered over upon requeft to the high conftable ; and no procefs of execution is to be ferved upon him ; and his expences to be paid out of the aflefTment. J. P. 57. Mr. Daltoii fays he had feen a MS. faid to be a Privilege, collection of Sir Nicholas Hide of the office of ajuf- tice of peace ; wherein was faid, that it was refolved by all the judges of England, (Trin. 5 Car. i.) that juT- tices of peace at feflions may not compel the confta- bles of hundreds to attend at the quarter feflion?, and to [ .43 ] to prefent offenders upon oath ; other wife it is as to the affixes, &c. * Jones, 46* f| e fa^l be difcharged from ferving the office of colle&or of the poors rate during his office*. * The high conftable (as has been elfewhere mentioned) is generally but ignorantly fuppofed to have, and in fa6l frequently found to affume a degree of authority over thofe who are called petty conftables, which is not given him by law. For although fome a6ts of parliament have impowered thejuftices to direcl their warrants to him, commanding him to iffue his precepts to the conftables, who are fubjecled to a penalty for difobeying them, yet even this gives him no authority, his office being limply mi- nifterial. And in all cafes where the juftices make out fuch gene- ral warrant, not being empowered thereto by exprefs ftatute, it is conceived that the conftables, in difobeying the precepts of the conftable of the hundred, are not liable to punimment; not- withdanding sny " faulty precedent in Burn." See the In- troduction, and Bacons Law Trails, p. 187. and i Burns Juftice, 397. APPENDIX, APPENDIX. H L THE CONSTABLES OATH. YO U fliall fwear, That you will well and truly ferve our Sovereign Lord the King in the office of conftable for the townftiip of C. within this manor [hundred or county] for the year now next enfuing, or until you {hall be thereof difcharged by due courfc of law : You (hall fee the kings peace kept, and keep all fuch watch and ward as are ufually accuftomed, and ought to be kept ; and you (hall well and truly do and execute all other things belonging to the faid office according to the beft of your knowlege. So help you God. N II. COMMAND OR PROCLAMATION FOR RIOTERS TO DISPERSE. OUR Sovereign Lord the King charges and commands ail perfons here aifembled, immediately to difperfe themfelves, and peaceably depart to their habitations, oh pain of imprifonment. N- III. [ 45 3 N III. FORM OF AN OBLIGATION TO BE TAKEN BY A CONSTABLE FOR KEEPING THE PEACE. KNOW all men by thefe prefents, That I A. B. of C. in the county of D. labourer, am held and firmly bound unto E. F. yeo- man, conftable of the townlhip [manor, &c.] of C. aforefaid, in the fum of j. 4.0, to be paid to the faid E. F. or his certain at- torney, executors, adminiftrators or afiigns, for which payment to be well and faithfully made I bind myfelf, my heirs, executors and adminiftrators, firmly by thefe prefenrs, feal- ed with my feal. Dated this firft day of July, in the 30th year of the Reign of our Sovereign Lord George the Third, by the Grace of God of Great Britain, France, and Ireland, King, Defender of the Faith, and fo forth, and in the year of our Lord 1790. THE condition of the above-written obligation is fuch, That if the above-bounden A. B. (hall [per- fonally appear at the next general quarter feflions of the peace to be holden in and for the county of D. to do and receive what (hall be then and there enjoined him by the court, and in the mean time fhall] keep the peace [and be of the good behaviour] toward the king and all his liege people, and efpeeially toward G. H. of C. in the faid county, yeoman, then the faid obligation to be void, or elfe to remain in full force and virtue. Signed, fealed, and delivered in the prefence of N IV. C 46 3 N IV. OATH OF THE APPRAISERS OF GOODS DISTRAIN- ED FOR RENT, TO BE ADMINISTERED BY THE CONSTABLE. YOU fhall fwear that you will faithfully appraife and value the goods now taken in diftrefs, and men- tioned in the inventory to you (hewn, as between buyer and feller, according to the beft of you/ (kill and underftanding. So help you God. N e V. APPOINTMENT OF A DEPUTY. I A. B. conftable of C. in the county of D. do hereby make, fubftitute, and appoint E. F. of the fame place, yeoman, my true and lawful deputy in the office aforefaid fo long as I fhall hold the fame : or thus during the continuance of my will and plea- lure (or fir any particular purpofi)* Dated, &c. THE T ft E SONG of a CONSTABLE: Made by JAMES GYFFON, Conftable of Alburye [in Surry^ Anno 1626. To the tune of " Jump to me Cojfin" ( Now firjl printed. ) I A conftable haue tooke myne oath ; By which (hall plaine appeere The troth and nothing but the troath, Whofeuer my fong will heere. One greate conftable of Ingland was, Another late fhould haue ben ; But litle ones now is found will feme, So they be but honnefi men. A conftable muft be honeft and juft ; Haue knowledge and good reporte ; And able to ftraine with bodie and braine, Ells he is not fitting for 't. Some parim puttes a conftable on, Alas ! without vnderftanding, Bycaufe they'd rule him when they haue done, And haue him at their commaunding. And if he commaunds the poore they 'le grutch, And twit him with partial blindnes ; Againe, and if he commaunds the rich, < They 'le threaten him with vnkindnes : To To charge or compel! 'um,hee'sbufie they 'le tell } umj In paying of rates they 'le brawle, Falls he but vnto, do that he fliould do, Tie warnt you difpleafe them all. Whip he the roagues *, they 'le raile and they 'le curfe : Soldiers as rude caufe they are Sent to the treafurer with their pafTe f , And may not beg euery where. If warrantes do come, as often they do, For money, then he it demaundes, To eu'yre one with 's rate he does go. Wherein they are leuied by landes : They 'le fay then he gathers vp money of others, To put to vfe for increafe ; Ells he gathers it vp, to run awaye wu't : What terrible wordes be thefe ! Hearing a preiTe for fouldiers theyle ftarf, Ells hide them felues when we come ; Their wiues then will faye, to prefle wee yee maye : Our hufbands are not at home . Coyne * By 39 Eliz. c. 4. fince repealed. f See 43 Eliz. c. 3. 8. 13. | This idea of" prefling the wife for the hufband is the fub- jel of a humorous old fong (latinized by Bold) beginning " I am a cunning conilable, &c." of which the fecond itanza is as follows : Ho! who's at home ? Lo ! here am I ! Good morrow, neighbour. Welcora, fir. Where is your hufband ? Why truly He's gone abroad, a journey far. Do [ 49 3 Coyne for magazens fent for in haft j Much ado was eare they yeilded, Yet's gather'd and paid ; and I am afraid They will not in haft be builded. The jufticcs will fet.vs by the heels If wee do not do as we fhould ; Which if we performe the townfcnen will ftormej Some of them hang 's if they could. The conftable's warnde to th' feflions then, Vnwilling fome goes, alas ! Yet there may wit and experience lerne, If that he be not an afle. There fhall he fee the juftices fet, Here three of O yefes, and Then (hall he here the commiflion read, Though little he vnderftand *. Our free landed men are called for in then, To be of the great inqueft, The chief of our townes, with hoare on their crowncs, That what fhould be done knowes beft. Choice men of euerye towne in the fheire, Three juries their muft be more, Cald vnto the booke with "here, fir, here !" The wifeft of twentye before ; Do you not know when he comes back f See how thefe coward^ fly for life ! The king for fouldiers muft not lack ; If I mifs the man, I'll take the wife. The prefs forfoldiers has now given place to the equally il legal and much more infamous one for fcamen. The former was carried on under a form or colour of law, but the latter is executed by a gang of lawleft ruffians, It wa* then in Latin, E Then r s ] Then there (hall he fee whom hath tranfgreft Punifhed for his offence, There (hall he here a number amerc't, Along of their negligence : What things are amifTe, what doings there is, Juftices charge them enquier, Fore clarke of the peace and baylies at lead A dozen befides the crier. Verdicts muft come from thefe juries then, But howfoeare they endite them, Theyle not be tooke till next day by ten, VnlefTe that their clarkes do wright them. Ruff wordes or fmooth are all but in vainc, All courts of proffit do favour, And though the cafe be neuer fo plaine, Yet kifling fhall go by fauour : Theyle punifh the leafteft, and fauour the greateft. Nought may againft them proceede, And who may dare fpeak againft one that is grcat t Lawe with a powlder indeede ! But now my corjftablefhip's neare done : Marke hearers, fayers and fingers, There is not an officer vnder the funne But does looke through his fingers. Yet where I fee one willing to mend. Not prating nor making excufes, Such a one if I can He befreind ; And punifh the grofle abufes. My counfel now vfe, you that are to chufe, PUT ABLE MEN EUER IN PLACE; FOR KNAUES AND FOOLES IN AUTHORITYE DQ BUT THEMSELUES AND THEIR COUNTRIE DIS- GRACE. FINIS. ERRATA, p. xxii. for ordnance, read ordinance. p. 4. for i Mod. 42. read 6 Mod. 42. for Freeman, 256. ready 12 Mod. 256. p. 5. after Styles, 362. add Barnard, 51. after (Noy, 112.) add Mar. 30. p. 6. for (Mod. 13.) read (i Mod. 13.) p. 26. /er Freeman, 256. read 12 Mod. 256. p. 27. /or 20 and 30, read 30 and 40. p. 32. for Forfter, read Fofter. p. 48. /or eu'yre, read eu'rye.