Justice & Constable

The accession of Edward III. marked the beginning of a new police era, that of the petty constable acting under the direction of the Justice of the Peace. The Statute of Winchester continued to be the guide in matters of police, but the executive which carried out its provisions underwent a change. Any attempt to follow in detail the history of the Justices of the Peace, and the powers resident in them, is beyond the scope of the present work; this task has already been often and ably performed. It is impossible, however, to divorce the functions of the Justice from those of the Constable; the story of the evolution of the latter is so dovetailed into the history of the former, the two are so closely allied in their mutual relationship of master and servant, that some reference must here and elsewhere be made to the office of the Justice, a functionary who claims a considerable share of attention in any enquiry that deals with police in the full interpretation of the word, because the executive power vested in a Justice as Peace Officer is antecedent to, and on the whole more important than, the judicial authority attaching to him as Magistrate : in other words, he must be considered as a policeman first, and as a judge afterwards. 

The origin of the Justice’s office is by no means obscure. Towards the close of the twelfth century obscure (1195) by a proclamation of Richard I,  Knights were appointed to see that all males over the age of fifteen years were “sworn to the King” by taking a solemn oath to maintain the peace : after fifty years or so had elapsed (1253) these Knights had become Peace Wardens or Conservators, who again, continually undergoing a process of development as the importance of the Sheriffs dwindled, were eventually invested with judicial powers, and were then known as Justices of the Peace. 

When the office of Justice was first created, it was not intended that the Sheriff should be altogether superseded, but rather that the new officer should become an auxiliary agent for the preservation of the peace, to cooperate, as the Conservator had formerly done, with the Sheriff, who still retained the primary responsibility for the policing of his shire. It would appear that the supremacy of the royal officer in matters of police was generally recognised throughout the thirteenth century; for when, in 1285, Edward I had occasion to rebuke the men of Kent for the prevalence of crime in their county, he made no mention of the Conservator, but ordered the inhabitants to afford in future every assistance their power to the Sheriff, whose especial province it was (so the King declared) to keep the peace, not only by his own power, but also by means of the “posse comitatus,” or power of the county. On the other hand, even at this time, the Sheriff was not always given a free hand. In Warwickshire, for example, all arrangements for the preservation of the peace had first to be submitted to the Conservator for his approval ; it cannot, however, be supposed that the supervision exercised by the Conservators over the police administration was more than nominal, because, as a rule, they were great noblemen, holding a plurality of offices, and because the districts within their wardenship were usually too large to be effectively controlled by any one man. We learn, for instance, that in 1281 the Earl of Cornwall was Peace Warden for the counties of Middlesex, Essex, Herts, Cambs, Hunts, Norfolk, Suffolk, Kent, Surrey, Oxon, Beds, Bucks, Berks, Northants, Lincoln, and Rutland. 

When both population and trade increased, and when offenders and offences grew more varied and numerous, it became necessary to augment to a proportionate degree the staff of officers answerable to the King for the internal peace of the kingdom : it was no good making more Sheriffs, who had seldom proved a success in the past (whose misconduct, in fact, had led to the restricting of their power to do harm on more than one occasion), and so it came about that the Justice gradually superseded the Conservator, and in the end not only deprived the Sheriff of his judicial powers, but to a large extent took his place as director of the police also. 

The Sheriff did not submit to this curtailment of his authority without a struggle. After he was no longer allowed to act in his old capacity, he sometimes managed to get made a Justice, and to hold both offices in the same county at one time, to the great oppression of the people, who bitterly complained of the heavy fines that were inflicted, and of the outrageous bail that was exacted by these pluralists, until in 1378, at the request of Parliament, Richard II. put an end to such practices. Nevertheless, the Sheriff still remained the responsible person for the levying of Hue and Cry, for the pursuit and apprehension of felons, for the due execution of the sentences pronounced by the law-courts, and was answerable for the persons of prisoners handed over to him for punishment. He also had to perform various duties connected with elections, and until the reign of Edward VI. retained certain military functions. 

Before 1328, the so-called justices were executive officers only, “hey were little more than constables on a large scale “; but in this year, Edward the Third, who had recently come to the throne, considerably extended their powers by entrusting to them the examination and punishment of law-breakers. 

The King reserved to himself the right of nominating those who should hold the office, and, throughout his long reign, continued to take the liveliest interest in his Justices of the Peace. He ordered that they should be connected with the county for which they  were appointed, by holding therein a certain amount of landed property, a qualification which has been retained for many centuries. He made it a condition that they should be bons gentz et loiaulx; and for fear lest the granting of judicial powers to local officials should open the door to extortion on the one hand, and to ignorant maladministration on the other, was very careful as to the class of man he selected. For this reason, the pleadings of Parliament notwithstanding, he could not be induced to give up the privilege of appointing his own nominees, and even the democratic tendencies of modern times have left the appointment of Justices of the Peace in the hands of the Crown. Another Statute 1 (also passed in 1328) ordained that no man should “go offensively” , or “ride armed ” before the new magistrates – a wise enactment designed to protect them from being brow-beaten and intimidated by those great nobles who sought to obtain their own ends through the awe inspired by the display of a large armed retinue.

In 1333 Edward informed the Commons that one of his principal reasons for calling them together was to take counsel with them concerning the means that should be adopted for preserving the peace, and to this end charged them to assist him to the best of their ability. The Commons readily accepted the invitation, and subsequently lost no opportunity of expressing the interest they took in the Justices of the Peace, whose office was the constant theme of suggestions and petitions, which, however, the  King, who preferred to take his own line, usually disregarded. 

Of the several Statutes that were successively passed dealing with the office in question, the most important became law in 1360. “In every county in England, there shall be assigned for the keeping of the peace, one lord, and with him three or four of the most worthy men in the county, together with some learned in the law, and they shall have power to restrain offenders, rioters, and other barretors, and to pursue, arrest, take, and chastise them, according to their trespass or offence and to cause them to be arrested and duly punished according to the law and custom of the realm, and according to that which to them shall seem best to do by their discretions and good advisement and to take ; of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour toward the King and his and also to hear and determine at the King’s suit all manner of felonies and trespasses done in the same county according to the laws and customs aforesaid”

Two years after the Statute above quoted had been enacted, the Justices were empowered to sit quarterly for the transaction of business,  and before long Quarter Sessions absorbed the major portion of the executive and administrative  government of the county. 

When Richard II. ascended the throne, the Justice  of the Peace was thus firmly established as one of the permanent institutions of the kingdom. Since that time, the office has passed through many vicissitudes, experiencing many a rise and many a fall ; but through all these changes, the Statute quoted above, which first defined his position, has always been referred to when any doubt arose as to the powers a Justice may exercise by virtue of his commission, and its meaning has been stretched and extended by degrees until, as Burn says,  “there is scarcely any other Statute which hath received such a largeness of interpretation.” 

It will be observed that in addition to the powers given to Justices for the punishment of offences against the peace, express authority was also conferred upon them by the same instrument for the prevention of such offences, for they were specially ordered to  “take sufficient surety and mainprise of all them that be not of good fame.” We have seen how under the decennary or tything system, all freemen were bound to find sureties for the preservation of the peace, and we have watched the decay of that system after the Norman invasion ; in the provisions of this Act of Parliament, however, we may discover at least a partial revival of the ancient plan of demanding guarantees against any contingent infraction of the public peace, and of associating in a joint pecuniary responsibility the actual or potential peacebreaker with his immediate neighbours. The “sufficient security” which Justices were authorised to take might be of two kinds ” Surety of the Good Behaviour” and “Surety of the Peace,” and the security might be by Bail or by Mainprise, the difference between the two being  “that mainpernors are only surety, but bail is a custody and therefore the bail may retake the prisoner, if they doubt he may fly, and detain him.” 

Sureties of the Good Behaviour and Sureties of the Peace were granted on suspicion or on the flimsiest sort of evidence ; for instance, “any suspected person who lives idly, and yet fares well, or is well apparelled, having nothing whereon to live,” any common gamester, or the reputed father of a bastard child, or an eaves-dropper even, might be called upon to find mainpernors or bail ; and so great discretion was required on the part of the Justices, who had to decide such knotty points ; it was consequently of the highest importance that these officers should be familiar with the districts in which their duties were performed, and legal erudition was a consideration subordinate to personal character and local knowledge. When the Law was young evidence was received for what it was held to be worth, without distinction as to whether it might be hearsay, circumstantial, or direct ; the word of a thane would prevail against the evidence of six ceorls ; in fact the credibility of every witness was appraised in proportion to his social position, just as a man’s life had formerly been estimated at a distinct valuation, and scheduled according to a recognised scale.

The feudal system had taught the retainer to look to the Lord of the Manor for the redress of any grievance that he might have against his neighbour. To the tribunal of the Manor, also, he was wont to bring family differences for settlement ; here the father would recount the follies of his son, and the wife complain of the habits of her husband : for, just as the priest was the spiritual adviser to his congregation, so, in many instances, was the Lord of the Manor the lay-counsellor to the dwellers on his estate. It was essential, therefore, that the Justice, who had to perform many of the duties formerly attaching to the feudal lord, should be a local man and a man of position ; people would have nothing to do with a stranger, or with one who, in their opinion, was a man of no account, however great a lawyer he might be.

The status of the Justice of the Peace at the time of Edward IV. was not very different from that held by the same functionary at the present day. His powers and duties are not now quite the same as they once were, but the history of the office has been remarkable for its steady persistence in one groove . the Justices of five hundred years ago might be defined as a select number of country gentlemen deriving their authority from the Crown, primarily responsible to the Crown for the preservation of the peace, and exercising judicial functions of a simple kind within the limits of the county for which they were appointed- -and such a definition would still apply.

The rise of the Justice of the Peace at the expense of his rivals was due to some extent to political causes. Sovereigns were favourable to the growing importance of an estate that promised to act as a counterpoise to the arrogant claims of the nobles, and although Parliament had nothing to do with the appointment of the new magistrates it was generally in sympathy with them, because they did not abuse their powers as the sheriffs had done, nor neglect their duties like the conservators and also because the House of Commons, which was almost entirely composed of country gentlemen, recognised in the Justices, members of the same social class to which they themselves belonged. The mass of the people, too, were inclined to view them with favour, choosing to place themselves and their fortunes in the hands of men they knew something about, who were on the spot and likely to execute justice speedily, rather than in the hands of strange judges whose visits were few and far between, and who, when they came, were likely to be deficient in local knowledge. 

The first Justices therefore were in the enviable position of enjoying at one and the same time the hearty support of King, Commons, and People ; but unfortunately such a healthy State was not destined to be permanent, and before long the symptoms of internal disease presented themselves. 

As the attractions of town life increased it became more and more difficult to obtain the services of the best kind of country gentlemen for a post that was often arduous, that brought no emolument to the holder, and that was incompatible with absenteeism. 

An inferior type of man was glad enough to take the place for the sake of the patronage and the social position he thereby acquired, and a corresponding depreciation in the police administration was at once apparent. Richard II. endeavoured to counteract this tendency by ordaining that Justices should be possessed of property in their own county of a minimum annual value of twenty pounds, and at the same time relieved them of some of their routine duties by appointing Clerks of the Peace to assist them. He fixed the number of Justices for each county at eight, two of whom only had to be in attendance at each Sessions. 

These remedial measures served their purpose for the time, but in after years we find the danger resulting from the admission of inferior men into the ranks of the Justices constantly recurring, necessitating a more rigid enforcement of the property qualification.

In the city of London the duties that in the country would have fallen to the Justices of the Peace were performed instead by the Mayor and Aldermen, a custom that has been continued ever since, and with good results. 

All that remains to be said on the subject of Justices of the Peace in this place must be compressed into a few lines. Various Statutes, passed between 1389 and 1399, multiplied their powers exceedingly by giving them authority to settle the wages of labourers and servants, to punish unlawful huntings, false weights in the staple, and the unlawful wearing of liveries. In the reign of Henry IV. they were directed by statute to suppress riots with the help of the Sheriff and his “posse,” and Henry V. ordained that, in future, Justices should only be appointed from “the most sufficient men of the counties, resident respectively therein,” and that they should thenceforward be nominated by the King’s Ćouncil.

The Yorkist period saw Justices of the Peace at the zenith of their power ; for, although the importance of the office tended to increase rather than to diminish, Tudor sovereigns, always masters in their own house, refused to allow them the same measure of independence that they had before enjoyed- in fact, one of the first acts of Henry VII  was to rate them soundly for their past negligence, and to threaten unpleasant consequences if an improvement was not quickly manifest. 

Subordinate to the Justices were the petty constables ; “he lowe and lay ministers of the peace” as Lambard calls them ; these officers were appointed annually by the jury of the Court Leet, but their control was vested almost entirely in the hands of the magistrates who swore them in, and who afterwards directed their actions. 

Careful investigation into the origin and precise nature of the petty constable’s office has failed to set finally at rest the many discussions that have arisen from time to time, and has left some minor points still obscure ; the essentials, however,  sufficiently clear for the purposes of the present inquiry.

The word “constable” was imported by the Normans, but its etymology is not quite certain ; formerly it was said to be derived from  “Conning” a king,  and “Stapel,” a stay or prop, and to signify “the king’s right-hand man,” but this is an unlikely solution, because the invaders despised the Anglo-Saxon language, and would not use a word which was partly derived from that tongue. Latterly the derivation “Comes-stabuli,” meaning an Equerry or Master of the Horse, has been generally accepted as correct. In England the title has been applied to a variety of functionaries, some high and some low, who had little in common beyond the fact that they all owed their authority to the Crown. 

The first mention of petty constables occurs in 1252, in a writ of Henry III. for enforcing watch and ward. This writ provides for the employment of these officers in parish and township, but it is more than likely that the office was not then a new one, because the word “constable” is there used without any explanation being added, and it may therefore be assumed that its meaning was a matter of common knowledge. 

The Statute of Winchester, it will be remembered, ordained that there should be two constables in each hundred, to carry out the inspection of arms ; these officers were probably connected with the Militia, and were closely allied to, if not identical with, the High Constables of later date ; in any case they must not be confused with the petty constables, who, according to Blackstone, were so called when they added the duties of assistants to the High Constable, to their ancient business of keeping the peace, and who, as Lambard explains, were modified tything- men ; “when there be many tythingmen in one parish, there only one of them is a constable for the king, and the rest do serve but as the ancient tythingmen did.” 

The transition from the Anglo-Saxon tythingman to the petty constable, that is to say, from the chief frankpledge to the Justice’s assistant was very gradual, and it is impossible to determine a rigid boundary line between the two. All we can say is that the term “constable” was introduced as early as the year 1252, and that the term “tything man” continued to be occasionally made use of down to the beginning of the nineteenth century : that first and last the offices were in effect the same does not admit of doubt, both were primarily ex officio guardians of the peace, and when the tything man came to be commonly called “constable,” it does not follow that the change marked the creation of a new office. 

The Normans naturally substituted French or Latin names for Anglo-Saxon ones ; headborough became præpositus, and shire-reeve or sheriff became vicecomes. Of these foreign titles, the former is now never used, and the latter has acquired a new meaning totally distinct from its original sense. “Constable,” on the other hand, survived, although at first it was used only by the Normans, and in official documents, the people continuing to employ the native words according to the custom of the different parts of the country ; thus in Middlesex there were Headboroughs, in Kent Borsholders, and in the West of England tythingmen.

It is not necessary to pursue the matter further except to say, that when the Justices of the Peace, owing to the increased amount of work thrown upon them, were in want of subordinate officers, advantage was taken of the staff of tythingmen already existing, some of whom were given new functions, e.g. the execution of the Justices’ warrants and the service of summonses, but without prejudice to their duties in connection with peace-maintenance ; in short, the titles of tythingman, petty-constable, parish-constable, and finally police-constable, are the various names applied to the same office from the time of Alfred the Great to that of King Edward the Seventh. 

We do not know enough about the social distinctions of the period to say what the precise status of the early constable was. His position was without doubt an honourable one, superior in every way to that of the parish constable of later years, who only served because he could not help it, or because he was poor enough to bear another man’s burden for a paltry pecuniary consideration. The local competence of the officer has always been insisted upon, and his incapacity to exercise any powers outside a particular area was one of the causes that contributed to make him the useless non- entity that he at one time became. So close was the connection between constable and parish that the Court of King’s Bench decided, in 1734, that a place that did not employ one constable at least must be considered merely as a hamlet, and was not entitled to the privileges that belonged to an independent township ; and whenever similar questions arose, the decision invariably turned on the existence or the non-existence of a parish constable. 

The qualifications that a constable ought to possess are thus tabulated by Coke :– 

i. Honesty : to execute his office truly without malice, affection, or partiality.

ii. Knowledge : to understand his duty, what he ought to do. 

iii. Ability . as well in estate as in body, that so he may attend and execute his office diligently, and not neglect the same through want or impotency.

It would be tedious to recount the multifarious duties that from time to time have fallen to the constable, especially as many of the most important are noticed in subsequent chapters ; it will here be sufficient to state, in a general way, a few of the main directions by which he was expected to act : these may shortly be summarised as follows :–

 i. His duties with regard to watch and ward were, to keep a roster of the watchmen, to see that they were vigilant and alert during the hours of watching, to receive into custody any guilty or reasonably suspected person handed over to him by the watch, and to keep such person in safety, until he should give bail or be brought before a Justice of the Peace. 

ii. With regard to Hue and Cry, and generally with regard to the pursuit and arrest of felons, peacebreakers and suspected persons, his duty was to obey the sheriff, to follow with the Hue and Cry, and to keep in safe custody any prisoner delivered to him, until relieved of further responsibility by the orders of Justice or Sheriff.

 iii. With regard to inquiring into, and prosecuting offences he was bound to make presentment at the assizes, sessions of the peace or leet, and in some cases before the coroner, “of all bloodsheddings, affrays, outcries, rescues, and other offences committed or done against the King’s Majesty’s Peace.” 

iv. Finally he had to serve precepts, warrants and summonses, and obey all the lawful com- mands of the High Constable and Justice of the Peace. 

The subordination of petty constables to Justices was from the first generally understood and acted upon, but the custom did not receive definite official sanction until the seventeenth century, when it was tardily recognised by statute. The true relationship between the two has found apt expression in an old simile which likens constables to the eyes and hands of the Justices, “eyes to see through the medium of presentments, and hands to act by virtue of warrants or process”

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