153 



CONSTABLE. 



CONSTABLE. 



161 





the last Duke of Buckingham in that line, the hereditary high constable 

 of England at the time of this resolution, held the manors after this 

 period discharged of the service of being constable. All doubt which 

 might have been suggested respecting the legal extinction of the 

 office by this means, was removed eight years afterwards by the 

 attainder of the Duke of Buckingham for high treason, upon which 

 event the manors in question were forfeited to the crown. Since that 

 time, the office of high constable has never been granted to any subject 

 excepting pr hdc vice, upon great and solemn occasions, such as the 

 king's coronation or trials of peers. 



" Out of this high office," says Larnbard, in his ' Duties of Con- 

 stables,' " the lower constableship was first drawn and fetched, and is 

 (as it were) a verie finger of that hand ; for the statute of Winchester, 

 which was made in the time of Edward I., and by which the lower 

 constables of hundreds and franchises were first ordained, doth, 

 among other things, appoint that, for the better keeping of the peace, 

 two constables in every hundred and franchise should make the view 

 of armour." He then concludes, in justification of his etymology of 

 the term, that " the name of a constable in a hundred or franchise 

 doth mean that he is an officer that supporteth the king's majesty in 

 the maintenance of his peace." This derivation of the office of a 

 common constable seems very improbable, especially as it is the better 

 opinion that these officers were known to the common law before the 

 statute of Winchester. (See Hawkins's ' Pleas of the Crown, book ii. 

 cap. 10.) An ancient judicial authority, chief justice Fineux, in the 

 reign of Henry VII., gives a more reasonable account of the matter. 

 He says that when the superintendence of the peace of a county was 

 found too great a task for the sheriff, hundreds were formed, and a 

 conservator of the peace under the sheriff appointed in each, who was 

 called a constable. This was the high constable, or constable of the 

 hundred. In process of time, as population increased and towns grew 

 into existence, it was found expedient to make a further subdivision 

 for the preservation of the peace ; and accordingly, conservators were 

 appointed for manors, vills, and tithings, who were then called petty 

 constables. (See ' Year Book,' 12 Henry VII., pi. 18.) 



Following this account of their origin, which is confirmed by many 

 of the minute incidents of the two offices, constables, in the usual 

 acceptation of the term at the present day, are of two kinds ; constables 

 of hundreds, who are still called high constables, and constables of vills 

 or tithings, who are called either petty constables or tithingmen. Both 

 high and petty constables were formerly chosen by the jury at the 

 court leet, and were sworn in and admitted there by the lord or his 

 steward ; but afterwards the high constables were usually chosen by 

 the magistrates at the quarter-sessions, and now, under the 7 & 8 Viet. 

 c. 33, by the justices at special sessions of the division held for hearing 

 appeals from the parish rates. 



The petty or parish constables who had been from ancient times 

 appointed to their office yearly by the court leet, are now, by virtue of 

 the 5 & 6 Viet., c. 109, amended by the 7 & 8 Viet., c. 52, and the 

 13 Viet., c. 20, appointed by the justices at special sessions held for the 

 purpose yearly, between the 24th of March and the 9th of April, from 

 lists prepared by the overseers of each parish, of persons qualified to 

 serve ; but the choice of the justices is not restricted to such lists, and 

 their appointment is valid if it be of a person duly qualified, though 

 his name is not on the overseers' list. The qualification includes every 

 " able bodied man resident within the parish, between the ages of 25 

 and 65 years, rated to the relief of the poor, or to the county rate, on 

 any tenements of the nett yearly value of 41. or upwards ; " but this is 

 subject to a very numerous list of exemptions given in the act, and 

 also to the disqualification of all licensed victuallers, and persons 

 licensed to deal in any exciseable liquor, or to sell beer by retail, or 

 gamekeepers, and all persons who have been attainted of any treason 

 or felony, or convicted of any infamous crime. 



But the insufficiency of the ancient means of police coming to be 

 increasingly felt, as modem society advanced in civilisation, Sir Robert 

 Peel, when Secretary of State for the Home Department, in 1829, was 

 enabled by parliament under the 10 Oeo. IV., c. 44, amended by the 

 2 & 3 Viet., c. 47, to establish the metropolitan police force, under the 

 regulation of two salaried justices or commissioners, to whom is en- 

 trusted, subject to the approbation of the Secretary of State, the 

 appointment, control, and regulation of the police of the metropolitan 

 district. This was followed by the Municipal Corporations Act (5 & 6 

 Will. IV., c. 78). which provided, sec. 76, for the ap]intment of con- 

 stables by the Watch Committee, to keep the peace within the cities 

 and boroughs of England and Wales. Many large towns and cities, 

 including the city of London, have their police appointed and regulated 

 under local statutes, obtained for the purpose, and many others have 

 av.nl.'d themselves of the general powers contained hi the Town Police 

 Clauses Act, 1847, the 10 & 11 Viet., c. 89. As the same sense of in- 

 security gradually expanded into the rural districts of the country, 

 provision came to be made by the 2 & 3 Viet. c. 93, and the 3 & 4 

 Viet., c 88, for the appointment of additional constables for counties 

 or districts of counties, in accordance with the report of justices in 

 quarter sc-ssiniH, or sessions of the liberty, to the Secretary of State, 

 respecting the necessity and number of such constables in the district 

 or county. But this power was used so sparingly by the country 

 justices, and burglaries and crimes with violence became so frequent 

 in tli" nciflfjct'-'l 'litrictn, that parliament, by the 19 & 20 Viet., c. 69, 



made it compulsory on the justices at the general or quarter sessions, 

 next after the 1st of December, 1856, to establish a sufficient police 

 force in every county or residue of a county, where no such sufficient 

 force existed when the statute was made. The statute provides for 

 annual returns connected with the state of crime in the country, and 

 for a contribution from the consolidated fund, of one-fourth of the 

 expense for pay and clothing of the police of counties and boroughs, 

 established under that or the two previous acts already mentioned, if 

 such force is approved as efficient by the Secretary of State. 



Besides the constables and police already mentioned, two or more 

 justices of the peace, upon information that disturbances exist or are 

 apprehended, are authorised by the 1 & 2 Will. IV., e. 41, amended by 

 the 5 & 6 Will. IV., c. 43, to appoint special constables; and by the 

 83rd section of the Municipal Reform Act, magistrates in boroughs are 

 authorised to swear in as many inhabitauts as they think fit, to act as 

 special constables when called upon. 



With regard to the powers and duties of these officers, it is enacted 

 by the Metropolitan Police Act and the Municipal Reform Act that the 

 constables to be appointed under those statutes respectively " shall 

 have all such powers and privileges, and be liable to all such duties and 

 responsibilities, as any constable has within his constablewick by virtue 

 of the common law of this realm ;" and hence it becomes of great prac- 

 tical importance to ascertain with precision the common-law incidents 

 of the office of constable. 



1. By the common law constables are said to have been conservators 

 of the peace ; and hi consequence of this character probably every 

 constable has undoubted authority to arrest all persons who commit an 

 affray, assault, or breach of the peace ' his presence, and keep them in 

 safe custody until they can be brought before a magistrate. It is said 

 also by ancient authorities, that by virtue of his power as a conservator 

 of the peace, he may himself, on view of a breach of the peace, take 

 surety of the peace by bond, though he cannot do so by recognisance, 

 being incompetent to administer au oath. But as his duty is to pre- 

 serve the peace, and not to punish for the breach of it, it is doubtful 

 whether he can arrest by his own authority and without a warrant, 

 upon the information or charge of a third person, for an affray com- 

 mitted in his absence. (See the case of ' Timothy i: Simpson," 

 1 Crompton, Meeson, and Roscoe's ' Reports,' p. 760.) By sect. 9 of 

 the Metropolis Police Act, and by sect. 79 of the Municipal Corpo- 

 ration Reform Act, and sect. 8 of the Rural Police Act, the 2 & 3 Viet. 

 c. 93, constables appointed under those Acts are expressly authorised, 

 in charges of petty misdemeanour in the night-time, to take bail by 

 recognisance for the appearance of the offender before a magistrate 

 within a limited time. 



2. A constable having reasonable cause to suspect that a felony has 

 been committed, may arrest and detain the supposed offender until he 

 can be brought before a magistrate to have his conduct investigated ; 

 and he will be justified in so doing, even though it should afterwards 

 appear that in fact no felony was committed. In this case there is a 

 distinction between the authority of a constable and that of a private 

 person ; the former may arrest if he can show a reasonable ground of 

 suspicion that a felony has been committed '; but a private person, in 

 order to justify himself for causing the imprisonment of another, must 

 prove, in addition to the reasonable suspicion of the individual, that n 

 felony has actually been committed. A constable is bound to arrest 

 any person whom he sees committing a felony, or any person whom 

 another positively charges with having committed a felony ; but, gene- 

 rally speaking, he has no authority to arrest for a misdemeanour, either 

 upon his own reasonable suspicion or the charge of another person, 

 without a magistrate's warrant. With respect to the authority of a 

 constable to arrest for felony or breach of the peace, Mr. Justice Buller 

 is reported to have said, that " if a peace-officer, of his own head, tikes 

 a person into custody on suspicion, he must prove that such a crime 

 was committed ; but if he receives a person into custody on a charge 

 preferred by another of felony or breach of the peace, then he is to be 

 considered as a mere conduit ; and if no felony or breach of the peace 

 was committed, the person who preferred the charge alone is answer- 

 able." Lord Ellenborough (in the case of ' Hobbs v. Branscomb,' 

 3 Campbell's ' Reports,' 420), said that " this rule appeared to be 

 reasonable." 



3. Constables were authorised by the common law to arrest such 

 " strange persons as do walk abroad in the night-season." (See Lam- 

 bard, ' Constable,' p. 12.) This authority, which was perhaps suffi- 

 ciently definite in times when the curfew was in practice and watch 

 ami ward were being kept, is at the present day of so vague a nature, 

 that a peace-officer could scarcely act under it without imminent 

 danger of an action in every particular instance. It is, however, obvi- 

 ously essential to the efficiency of any system of police, that con- 

 stables should be armed with some general authority of this nature, 

 especially in towns. By the 7th section of the Metropolitan Police Act, 

 it is provided that " any man belonging to the police force appointed 

 under that Act may apprehend all loose, idle, and disorderly persons 

 whom he shall find disturbing the public po:u;o, or whom he shall have 

 just cause to suspect of any evil designs, and all persons whom he 

 shall find between sunset and the hour of eight in the forenoon lying 

 in any highway, yard, or other place, or loitering therein, and not 

 giving a satisfactory account of themselves, and deliver them to the 

 constable in attendance at the nearest watch-house, to be secured until 



