The law against vagrancy was conceived in the same spirit, the Statute in question requiring Bailiffs of towns to make enquiry every week of all persons lodging in the suburbs, in order that neither vagrants, nor "people against the peace" might find shelter, a regulation designed on the lines of the universal police maxim "Allow the thief no rest." The custom was to make the householder responsible for the deeds of those whom he harboured, and to punish the indiscriminate giver of alms.[30]
This method was not only more humane, but it also proved more effectual than the everlasting imprisonment, whipping, and branding of vagrants, that Tudor legislation enjoined.
Neglect of the Hue and Cry, failure to make "fresh and quick pursuit," and sometimes want of success when pursuit was duly made, were visited by the imposition of fines upon the neglectful or unfortunate inhabitants as the case might be: many examples of this are on record, e.g. (Exchequer Rolls, vol. i. sect. 14).
"Item. The citizens of Lincoln fined fifty marks for suffering a robber to escape, etc.: and the men of Colchester for the like.
Item. (Sussex: 16 Edward I.) Homicide committed in a fray: the offender who had stabbed his adversary, a butcher, takes refuge in the Church of Crawley and abjures the realm: townships of Crawley and Hurst amerced because they did not make suit.
Item. A quarrel in an alehouse at Hodley, in which a man is struck on the head and dies four days afterwards. The offender escapes, and all the persons present in the alehouse amerced, because they did not secure him."[31]
When Hue and Cry had been raised against a fugitive, every man had to lay aside his work and join in the pursuit to the best of his ability, anyone failing to do so, or withdrawing himself without permission, was considered to have taken the part of the person who was fleeing from justice, and the two might be hunted down together, and when apprehended, delivered to the Sheriffs, "not to be set at liberty, but by the King, or by his chief justice."[32] Once levied, Hue and Cry recognised no boundaries, the pursuit spread from hundred to hundred, and from county to county, "till they come to the seaside," or until the man surrendered himself. "The life of Hue and Cry," says Coke, "is fresh suit," and in order that valuable time should not be lost in preliminary enquiries, no liability for malfeasance attached to those who followed the chase; if therefore an innocent man was hunted down, he had no remedy against his pursuers, but, to obtain satisfaction, had first to discover the author of the false report. If the fugitive sought refuge in a house, and refused to open the door, the peace officer might break it open, and in the event of a man grievously wounding another, it was held that killing was no murder, provided that Hue and Cry had been duly levied, and provided also, that the offender could not otherwise be taken.[33]
The best, and as a rule, the only practicable chance of escape open to the pursued, lay in the possibility of his reaching a sanctuary before the hunters came up with him. If a man took sanctuary, his life was safe, but he remained a close prisoner within the precincts of the asylum in which he had found refuge until he received the King's pardon, or until he purchased his freedom by "abjuring the realm," an undertaking which entailed upon him perpetual banishment, besides the forfeiture of all his belongings.
These sacred asylums, within whose precincts the law was powerless, were often made use of in a manner never contemplated when the privilege of affording protection to fugitives was first extended to them. If an offender was unpopular his chance of reaching sanctuary was very remote, it was easy enough to head him off, or to surround the place in such a manner that approach meant certain capture; on the other hand, if the country folk were disposed to favour the escape of the hunted man, there was little difficulty in managing the pursuit in such a way that he should reach his goal in safety. Hue and Cry was therefore not as effectual as it ought to have been, especially against men who for one reason or another enjoyed the goodwill of their neighbours, and its efficacy was still further reduced by the freedom with which Charters of Pardon were granted by the King to powerful nobles and others, who were prepared to pay for the concession.[34]
In addition to the Statute of Winchester upon which his reputation as a police reformer mainly rests, Edward I. was the author of other valuable measures designed to produce and conserve a state of public tranquillity. Under former rulers Sheriffs had been allowed a dangerous amount of freedom, which they had abused for their own advantage, both by improperly admitting to bail offenders who ought not to have been permitted to remain at large, and by exacting bail from others on trivial or trumped-up charges. This practice Edward combated, and forbade sheriffs, under severe penalties, to hold to bail any who were not strictly bailable. Mindful also of the disturbances wrought by idle rumour, he set himself to put a stop to the dissemination of scandal by irresponsible tale-bearers, and decreed that henceforth those "who be so hardy as to tell or publish any false news or tales whereby discord may arise" should be "taken and kept in prison until he is brought into the Court which was the first author of the tale."[35]
Of greater practical value, however, were his enactments dealing with Coroners[36] (so-called because they were principally concerned with pleas of the Crown). With the intention that these most important officers should stand high in the estimation of all men, Edward, in 1275, ordained that no one under the degree of knight should be chosen to the office, and in the year following he defined the powers of Coroners, setting forth what steps they were called upon to take for the better preservation of the peace, and in what manner their functions ought to be carried out. It was enacted[37] that, in the event of any person meeting with an unnatural or violent death, the township concerned had to immediately give notice to the nearest Coroner, who was thereupon bound to issue a precept to the constables of the neighbouring vills, requiring them to cause to appear before him a competent number of good and lawful men in order that the matter might forthwith be investigated at the place where the corpse had been found. If, upon inquiry, and upon the oath of the jurymen, it should appear that foul play had been the cause of death, the Coroner was, by the same statute, further instructed to use his best endeavour to discover the guilty party, and if the murderer was known, the Coroner was authorised to deliver him to the Sheriff and to proceed to his house, and there to cause a valuation of all his belongings to be made, the amount thereof being notified and secured to the township or hundred, which was then answerable to the judges for any amercement that might subsequently be imposed. Nor was the business of holding inquisitions in cases of sudden death the only duty of the Coroner; he was also expected to make enquiry, in like manner, of every reported case of housebreaking, and was required to keep a watchful eye on any of the King's subjects who seemed to live riotously, haunting taverns and the like, and to attach them by four or more pledges on the not unreasonable suspicion that the funds which supported such extravagances proceeded either from some illegal practice, or from a secret store of treasure trove. Though answerable to the King, Coroners were chosen by the county, and sworn by the sheriff; any holder of the office concealing felonies, or failing in his duty through favour to the misdoers, was liable to be fined at the King's pleasure and to be imprisoned for a year.
Much of the good work done for the internal peace of the kingdom by Edward I. was undone by his successor, whose predilection for evil counsellors led to much Baronial resistance, and threw the country back into that state of lawlessness from which it had been delivered by the wise police regulations of the Statute of Winchester.
Organised bands of robbers harried the country, setting at defiance sheriffs, judges, and even the King himself, who was stopped near Norwich by a freebooting knight called Sir Gosseline Denville, and stripped of his money and other valuables. With such an example of reckless disregard of the King's peace before them, it is not wonderful that the lower orders of the people ignored the restrictions that the law imposed; the weak had no protectors, so the hand that was strong enough to take and to hold fast was seldom empty. These predatory rovers waxed so powerful, and grew so numerous as the result of the impunity they enjoyed, that nothing short of a regular military campaign sufficed to free the land from their ravages. The end of this same Denville illustrates the extensive nature of these operations. After years spent in successful plundering, and after an unprecedented reward had been put on his head, he was at length brought to bay by the sheriff of Yorkshire, who, with five hundred men surrounded the inn where the robber slept, and in the course of the desperate fight which followed between the posse comitatus of the peace officer and the banditti, it is said that two hundred men were killed before the knight and his brother were captured.[38]
Indolent and incapable as Edward II. proved, his police administration was not altogether without merit, and an important Statute passed in the eighteenth year of his reign is worthy of more than passing notice. In order that the value of this Act may be fully appreciated a few words of preliminary explanation are necessary. One of the principal functions of the Norman Sheriff at his annual visit of inspection or Tourn, was to inform himself (by making inquiry from the chief frankpledges) as to the nature and extent of the crime existing in his district, and to make a report thereof to the King, if, in his opinion, any particular offence or class of offences was unduly prevalent. The exercise of this function, which was known as "presentment," to some extent secured the trial and punishment of criminals, by bringing their offences to the knowledge of the central authority, and the officer who made the report may, in a sense, be considered to have acted the part of a public prosecutor. When the Court Leet took the place of the Sheriff's Tourn this function was partially lost, and the object of the Statute in question was to increase the value of the Court Leet as a preventive agency, by reaffirming and clearly defining its responsibility with regard to the important duty of presentment, which it had inherited along with the other functions of the Sheriff's Tourn. To this end Courts Leet were now (1325) ordered to certify that all the chief-pledges were present at the sitting of the Court to which they were summoned, and that they duly brought to the notice of the same Court all offences committed within their knowledge. For their guidance a list of the matters which concerned them, arranged under thirty-four headings, was added, of which the most important were the following:—
A glance at the subjects enumerated in this schedule is sufficient to illustrate the comprehensive nature of the part assigned to Courts Leet in the general scheme of peace maintenance, and to show how in addition to their primary duty of bringing to light all breaches of the peace, these local police courts were furthermore charged with the supervision of everything that tends to promote good order and good citizenship, such as, for example, the regulating of weights and measures and the abatement of public nuisances.
This Statute is entitled "A Statute for View of Frankpledge," but it was not put forward with any intention of reverting to the old system of police by decennary societies, nor with any idea of superseding or even modifying the Statute of Winchester, but rather as an auxiliary measure to enlarge the sphere of usefulness of that Statute, and to render its administration more effectual, by ensuring that no violations of its provisions should go undetected and unpunished.
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.[39] 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 (1195), by a proclamation of Richard I.,[40] 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 co-operate, 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 in 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.[41] 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;[42] 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, "they were little more than constables on a large scale";[43] 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[44] (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[45] 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.[46] "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 people ... 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,[47] and before long Quarter Sessions absorbed the major portion of the executive and administrative government of the county.[48]
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."[49]
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.[50] 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."[51] ... 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.[52]
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.[53]
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 Council.[54]
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.[55] 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; "the 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, are 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,[56] 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 tythingmen; "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[57] 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 nonentity 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:—
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 summarized as follows:—
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.[59] 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."
Just as the state of public tranquillity brought about by the wise government of Edward I. had been disturbed by the irresponsible and childish behaviour of his pleasure-loving successor, so was the admirable domestic policy of Edward III. robbed of its due reward by the lack of judgment and the want of administrative capacity exhibited by Richard II., whose unhappy reign is thus described by Froissart. "The State generally of all men in England began to murmur and to rise one against another, and ministering of justice was clear stopped up in all courts of England, whereof the valiant men and prelates, who loved rest and peace, and were glad to pay their duties, were greatly abashed; for there rose in the realm companies in divers routs, keeping the fields and highways, so that merchants durst not ride abroad to exercise their merchandise for doubt of robbing; and no man knew to whom to complain to do them right, reason, and justice; which things were right prejudicial and displeasant to the good people of England, for it was contrary to their accustomable usage."
It would be unjust, however, to attribute the state of affairs as above portrayed solely to Richard's incapacity: he was still a minor when his grandfather died, and many circumstances conspired to render his task an extremely difficult one. A latent discontent had smouldered amongst the peasantry ever since the oppressive Statute of Labourers had been passed some thirty years before, and the universal poll-tax of one shilling a head, imposed in 1379 to meet the expenses incurred in the interminable wars with France and Scotland, suddenly caused the flame of rebellion to blaze forth with unexampled violence. It has been said that if anything like an adequate police force had been available in 1381, Wat Tyler's movement might have been arrested before the riots in the Southern Counties had attained the dimensions of a general insurrection. Such may, or may not, be true of this particular rising; but happily for English liberty there has never existed in this country any police force at the disposal of the central government, powerful enough to coerce the nation at large. Our national police has always been of the people and for the people, and obviously at no time could long be used to oppress those from whom its strength was derived, provided only that one and the same sentiment pervaded a majority of the oppressed.
The attack on villenage was too reasonable to be fruitless, and resistance to the popular demands could be but temporary. The death of Tyler, and the consequent suppression of the insurrectionary movement which he led, caused the concessions wrung from the King to be revoked, and so delayed the cause of agrarian freedom; but the ultimate triumph of free tenure and labour was already assured from the moment that unanimity was achieved.
The constitution of the general police of the country being of such a nature that it was powerless to enforce any universally unpopular measure, a distinct and separate organisation was required to administer the well-hated code of law which had to do with the royal prerogative of hunting. The whole subject of forest law and forest police is of sufficient interest and importance to warrant an account of its main characteristics in some detail.
The King's Peace, as we have already seen, was of two kinds—there was the public peace of the realm, and there was the royal or private peace, enjoyed by the Sovereign, and by those closely connected with him. If we examine further these main divisions, we shall find that each is composed of certain sub-divisions, with their own particular laws and customs: thus under the general heading of public peace must be included—(1) the peace and privacy to which every man is entitled at his own fireside, securing him against all intrusion as long as he commits no felonious action—(2) the "peace of the church" as kept by the Ecclesiastical Courts—and (3) the "peace of the sea" with its court (afterwards known as the Court of Admiralty) "to maintain peace and justice amongst the people of every nation passing through the sea of England."[60]
The private peace of the King, besides protecting his person and the precincts of his palaces, extended also over all the Royal Forest land, that is to say, over about a third part of the whole area of England: Canute's law was "I will that every man be entitled to his hunting in wood and field, on his own possession. And let everyone forego my hunting";[61] but there is no evidence to prove that the Danish King enforced his forest law otherwise than by the ordinary law of the land. The system of game preservation that grew up under the Normans, however, was so rigid that it necessitated the creation of special laws, special courts of law, and a special police for the prevention and punishment of illegal hunting. The Norman code was modified somewhat by Magna Carta,[62] and again in 1217; but it continued to oppress the nation through many generations, for wherever the peace of the forest was well maintained, there did the peace of the people suffer.
The amount of afforested land varied considerably from time to time. Henry II. possessed 68 forests, 13 chaces and 781 parks,[63] but it was not necessarily those monarchs who were particularly devoted to sport that were the most exacting, a strict enforcement of the forest laws brought much money to the royal exchequer in the shape of fines levied on trespassers and others who were tempted to offend against the arbitrary restrictions imposed.
"A Forest," says Manwood,[64] "is a certain territory of woody grounds and fruitful pastures, privileged for wild beasts and fowls of forest, chase and warren to rest, and abide there in the safe protection of the King, for his delight and pleasure: which territory of ground so privileged is mered and bounded with irremovable marks, meres and boundaries, either known by matter of record or by prescription: and also replenished with wild beasts of venery and chase, and with great coverts of vert, for the succour of the said beasts (to have their abode in): for the continuance and preservation of the said place, together with the vert and venison,[65] there are particular officers, laws and privileges belonging to the same, requisite for the purpose, and proper only to a Forest and no other place."
In connection with every forest there were four Courts, called respectively the Woodmote Court, the Court of Regard, the Court of Swanimote, and the Court of the Justice Seat. Of these the first was only competent to inquire of offences, and could not proceed to conviction. The Verderers, as the judicial officers of this Court were called, met once in every forty days, and could acquit accused persons, or hold them to bail—in the latter case the attachment had to be by the goods of the offender, unless he was "taken with the Mayneer," i.e. in flagrante delicto,[66] when the attachment might be by his body. "If any Forester shall find any man attachable for Vert in the Forest, first he shall attach him by two pledges, if they be to be found: and if he be afterwards found, he shall attach him by four pledges: and if the third time, he shall be presented before the Verderers, and be put by eight pledges: after the third attachment, his body shall be attached and retained, that he may remember what thing Vert is."[67]
Coke tells us that there were four degrees of "Mayneer," viz.:—
The second Court, that of "Regard," was held once in three years, and had for its object the prevention of unlawful hunting. For this purpose all dogs belonging to dwellers near the forest were registered and divided into three classes; that is to say (1) greyhounds, including spaniels and lurchers; (2) mastiffs, including the various kinds of large dogs; and (3) dogs of the smaller breeds. No restriction was placed on the possession of the last-mentioned class, but whilst greyhounds were not allowed on any pretence, mastiffs might be kept by a man for his own protection, provided that he had them mutilated in such a way that they could not pursue and pull down the game. This operation, called "lawing" or "expeditation," consisted in removing the claws of the fore-feet, and was performed in the following manner—One of the dog's fore-feet was placed upon a piece of wood eight inches thick and twelve inches square, and then the three claws were struck off at one blow with a two-inch chisel; if a mastiff was found "unlawed" near a forest, a fine of five shillings was imposed on its reputed master.
The "Court of Swanimote" met three times a year, and had the power not only of inquiring into all alleged offences against the forest laws, but, unlike the Woodmote, might also convict. Finally, judgment was given and sentences passed by the chief Justice of the Forest, at the triennial meeting of the Court of the Justice Seat.[69]
Each forest was surrounded by its "purlieu," or belt of pasturage, for the deer to graze in. The jurisdiction of the Courts above enumerated extended over both forest and purlieu, and since the two together covered a third part of the kingdom, it will be seen that the police regulations that secured the peace of the forest profoundly affected the daily life of the nation. Many of these regulations pressed very hardly on the people, especially on folk who had the misfortune to live in the purlieu: for instance, a man found trespassing by night could be imprisoned, even if he was only in search of strayed cattle, and his beasts might be confiscated. In times of drought, or when grazing was scarce, foresters might lop trees and cut fodder for their charges on the land of any man, whilst tanners and dealers in horn were not permitted to live anywhere in the neighbourhood of a forest, for fear lest their trade should tempt them to become receivers of stolen property.
When an offence had been committed Hue and Cry might be made by any of the King's ministers of the forest, but the pursuit had to be "fresh"; that is to say, the offender had to be detected in the act, and the fugitive kept always in sight. Pursuit, on suspicion, was illegal, and Hue and Cry was applicable to Trespass in Venison only, not to Trespass in Vert. If any township or village failed to follow the Hue and Cry they were liable to be amerced at the Justice Seat for the default.[70]
From the "Carta de foresta"[71] we learn that the officers originally appointed to each forest were fifty-two in number, and consisted of four Primarii or Chiefs of the forest, sixteen Mediocres homines, or Yoongmen, and thirty-two Minuti homines, or Tine-men. This organization did not long continue, however, and was quite extinct at the accession of Henry II. The four Primarii were superseded by four Verderers; the sixteen Yoongmen gave place to twelve Regarders; and instead of thirty-two Tine-men we find a staff of Foresters, with their underlings, called Walkers or Rangers.[72] The number of Foresters and Rangers employed was not arbitrarily fixed, but varied with the size of the forest, and in accordance with the exigencies of time and place. The ministers of the forest appear to have been very numerous in the days of the Plantagenets, and the functions of the different grades were clearly defined: thus, the Verderers were judicial officers, roughly corresponding to Justices of the Peace; the Agisters were officers whose business it was to look after the pasturage of the purlieu; the Regarders were responsible for the lawing of dogs; whilst the Foresters and Rangers were sworn to preserve the wild beasts and timber respectively in their several bailiwicks. The precautions taken to preserve the peace of the forest were doubled during the Month of Fence, or breeding season, at which time the officers were ordered to be more than usually vigilant, and offences were punished with increased severity.
In the last chapter reference was made to the oath which every male over fifteen years of age had to take in furtherance of the general scheme of peace-maintenance. Similarly, under forest law, an oath was required from all the inhabitants of the forest, that they would not disturb the peace of the wild beasts therein. Manwood says that this oath was anciently administered in doggerel verse, in some such words as these: