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OFFICE OF CONSTABLES,
ORIGINAL AND USE OF
COURTS LEET, SHERIFF'S TURN, ETC.,
THE ANSWERS TO THE QUESTIONS PROPOUNDED
BY SIR ALEXANDER HAY, KNIGHT, TOUCHING THE OFFICE OF CONSTABLES. A. D. 1608.
1. Question. WHAT is the original of constables? | and the petty constable is over the town or Answer. To the first question of the original of village. constables it may be said, caput inter nubila condit; for the authority was granted upon the ancient laws and customs of this kingdom practised long before the conquest, and intended and executed for conservation of peace, and repression of all manner of disturbance and hurt of the people, and that as well by way of prevention as punishment; but yet so, as they have no judicial power, to hear and determine any cause, but only a ministerial power, as in the answer to the seventh article is demonstrated.
As for the office of high or head constable, the original of that is yet more obscure; for though the high constable's authority hath the more ample circuit, he being over the hundred, and the petty constable over the village; yet I do not find that the petty constable is subordinate to the high constable, or to be ordered or commanded by him; and therefore, I doubt, the high constable was not ab origine; but that when the business of the county increased, the authority of justices of peace was enlarged by divers statutes, and then, for conveniency sake, the office of high constable grew in use for the receiving of the commandments and prescripts from the justices of peace, and distributing them to the petty constables: and in token of this, the election of high constable in most parts of the kingdom is by the appointment of the justices of the peace, whereas, the election of the petty constable is by the people.
But there are two things unto which the office of constables hath special reference, and which, of necessity, or at least a kind of congruity, must precede the jurisdiction of that office; either the things themselves, or something that hath a similitude or analogy towards them.
1. The division of the territory, or gross of the shires, into hundreds, villages, and towns; for the high constable is officer over the hundred,
2. The court-leet, unto which the constable is attendant and minister; for there the constables are chosen by the jury, there sworn, and there that part of their office which concerneth information is principally to be performed: for the jury being to present offences and offenders, are chiefly to take light from the constable of all matters of disturbance and nuisance of the people: which they, in respect of their office, are presumed to have best and most particular knowledge of.
The jurisdiction of the court-leet is to three ends. 1. To take the ancient oath of allegiance of all males above twelve years.
2. To inquire of all offences against the peace; and for those that are against the crown and peace of both, to inquire of only, and certify to the justices of jail delivery; but those that are against the peace simply, they are to inquire of and punish.
3. To inquire of, punish, and remove all public nuisances and grievances concerning infection of air, corruption of victuals, ease of chaffer, and contract of all other things that may hurt or grieve the people in general, in their health, quiet, and welfare.
And to these three ends, as matters of policy subordinate, the court-leet hath power to call upon the pledges that are to be taken of the good behaviour of the resiants that are not tenants, and to inquire of all defaults of officers, as constables, ale-tasters, and the like: and likewise for the choice of constables, as was said.
The jurisdiction of these leets is either remain ing in the king, and in that case exercised by the sheriff in his turn, which is the grand leet, o granted over to subjects; but yet it is still the king's court.
2. Question. Concerning the election of constables?
Answer. The election of the petty constable, as was said, is at the court-leet by the inquest that make the presentments; and election of head constables is by the justices of the peace at their quarter sessions.
3. For matters of nuisance, disturbance, and disorder, although they be not accompanied with violence and breach of the peace.
First, for pacifying of quarrel begun, the constable may, upon hot words given, or likelihood of breach of the peace to ensue, command them in the king's name to keep peace, and depart, and forbear and so he may, where an affray is made
3. Question. How long is their office? Answer. The office of constable is annual, ex- part of the same, and keep the parties asunder, cept they be removed. and arrest and commit the breakers of the peace,
4. Question. Of what rank or order of men if they will not obey; and call power to assist are they? him for that purpose.
Answer. They be men, as it is now used, of inferior, yea, of base condition, which is a mere abuse or degenerating from the first institution; for the petty constables in towns ought to be of the better sort of resiants in the same; save that they be not aged or sickly, but of able bodies in respect of keeping watch and toil of their place; nor must they be in any man's livery. The high constables ought to be of the ablest freeholders, and substantialest sort of yeomen, next to the degree of gentlemen; but should not be incunbered with any other office, as mayor of a town, under-sheriff, bailiff, &c.
5. Question. What allowance have the constables?
Answer. They have no allowance, but are bound by duty to perform their office gratis; which may the rather be endured because it is but annual, and they are not tied to keep or maintain any servants or under-ministers, for that every one of the king's people within their limits are bound to assist them.
For punishment of breach of peace past, the law is very sparing in giving any authority to constables because they have not power judicial, and the use of his office is rather for preventing or staying of mischief, than for punishment of offences; for in that part he is rather to execute the warrants of the justices; or when sudden matter ariseth upon his view, or notorious circumstances, to apprehend offenders, and to carry them before the justices of peace, and generally to imprison in like cases of necessity, where the case will not endure the present carrying of the party before the justices. And so much for peace.
Secondly, for matters of the crown, the office of the constable consisteth chiefly in these four parts:
1. To arrest.
2. To make hue and cry.
4. To seize goods.
All which the constable may perform of his own authority, without any warrant from the
6. Question. What if they refuse to do their justices of the peace. office?
Answer. Upon complaint made of their refusal to any one justice of peace, the said justice may bind them over to the sessions, where, if they cannot excuse themselves by some allegation that is just, they may be fined and imprisoned for their contempt.
7. Question. What is their authority or power? Answer. The authority of the constable, as it is substantive, and of itself, or substituted, and astricted to the warrants and commands of the justices of the peace; so again it is original, or additional for either it was given them by the common law, or else annexed by divers statutes. And as for subordinate power, wherein the constable is only to execute the commands of the justices of peace, likewise the additional power which is given by divers statutes, it is hard to comprehend in any brevity; for that they do correspond to the office and authority of justices of peace, which is very large, and are created by the branches of several statutes: but for the original and substantive power of constables, it may be reduced to three heads; namely,
1. For matter of peace only.
2. For peace and the crown.
1. For, first, if any man will lay murder or felony to another's charge, or do suspect him of murder or felony, he may declare it to the constable, and the constable ought, upon such declaration or complaint, to carry him before a justice of peace; and if by common voice or fame any man be suspected, the constable of duty ought to arrest him, and bring him before a justice of peace, though there be no other accusation or declaration.
2. If any house be suspected for receiving or harbouring of any felon, the constable, upon complaint or common fame, may search.
3. If any fly upon the felony, the constable ought to raise hue and cry.
4. And the constable ought to seize his goods, and keep them safe without impairing, and in ventary them in presence of honest neighbours.
Thirdly, for matters of common nuisance and grievances, they are of very variable nature, according to the several comforts which man's life and society requireth, and the contraries which infest the same.
In all which, be it a matter of corrupting air, water, or victuals, stopping, straightening, or endangering of passages, or general deceits in
appoint a deputy, or in default thereof, the steward of the court-leet may; which deputy ought to be sworn before the said steward.
The constable's office consists in three things: 1. Conservation of the peace.
weights, measures, sizes, or counterfeiting wares, and things vendible; the office of constable is to give as much as in him lies, information of them, and of the offenders, in leets, that they may be presented; but because leets are kept but twice in the year, and many of those things require present and speedy remedy, the constable, in things notorious and of vulgar nature, ought to forbid and repress them in the mean time: if not, of the Jurisdiction of Justices itinerant in the Prin
2. Serving precepts and warrants
3. Attendance for the execution of statutes.
cipality of Wales.
1. They have power to hear and determine all criminal causes, which are called, in the laws of
they are for their contempt to be fined and imprisoned, or both, by the justices in their sessions. 8. Question. What is their oath? Answer. The manner of the oath they take is England, pleas of the crown; and herein they as followeth : have the same jurisdiction that the justices have in the court of the King's Bench.
2. They have power to hear and determine all civil causes, which in the laws of England are called common pleas, and to take knowledge of all fines levied of lands or hereditaments, without suing any dedimus potestatem; and herein they have the same jurisdiction that the justices of the Common Pleas do execute at Westminster.
3. They have power also to hear and determine all assizes upon disseisin of lands or hereditaments, wherein they equal the jurisdiction of the
4. Justices of oyer and terminer therein may hear all notable violences and outrages perpetrated within their several precincts in the said principality of Wales.
“You shall swear that you shall well and truly serve the king, and the lord of this law-day; and you shall cause the peace of our sovereign lord the king well and truly to be kept to your power: and you shall arrest all those that you see committing riots, debates, and affrays in breach of peace and you shall well and truly endeavour yourself to your best knowledge, that the statute of Winchester for watching, hue and cry, and the statutes made for the punishment of sturdy beggars, vagabonds, rogues, and other idle persons coming within your office be truly exe-justices of assize. cuted and the offenders be punished: and you shall endeavour, upon complaint made, to apprehend barreters and riotous persons making affrays, and likewise to apprehend felons; and if any of them make resistance with force, and multitude of misdemeanours, you shall make outery, and pursue them till they be taken; and shall look unto such persons as use unlawful games; and you shall have regard unto the maintenance of artillery; and you shall well and truly execute all process and precepts sent unto you from the justices of the peace of the county; and you shall make good and faithful presentments of all blood-persons of the judges at their coming, judges' dispo sheds, outcries, affrays, and rescues made within sitting, and going from their sessions sition. your office: and you shall well and truly accord- or court. ing to your own power and knowledge, do that which belongeth to your office of constable to do, for this year to come. So help," &c.
9. Question. What difference is there betwixt the high constables and petty constables?
Answer. Their authority is the same in substance, differing only in the extent; the petty constable serving only for one town, parish, or borough, the head constable for the whole hundred nor is the petty constable subordinate to the head constable for any commandment that proceeds from his own authority; but it is used, that the precepts of the justices be delivered unto the high constables, who, being few in number, may better attend the justices, and then the head constables, by virtue thereof, make their precepts over to the petty constables.
10. Question. Whether a constable may appoint a deputy?
Answer. In case of necessity a constable may
These offices are in the king's gift.
The prothonotary's office is to draw all pleadings, and entereth and engrosseth all the records and judgments in all trivial causes.
The clerk of the crown, his office is to draw and engross all proceedings, arraignments, and judgments in criminal causes.
The marshal's office is to attend the
These offices are in the
The crier is, tanquam publicus præco, to call for such persons whose appearances are necessary, and to impose silence to the people.
The office of justice of peace.
The Office of Justice of Peace. There is a commission under the great seal of England to certain gentlemen, giving them power to preserve the peace, and to resist and punish all turbulent persons, whose misdemeanors may tend to the disquiet of the people; and these be called justices of the peace, and every of them may well and truly be called eirenarcha.
The chief of them is called custos rotulorum, in whose custody all the records of their proceedings are resident.
Others there are of that number called justices of peace and quorum, because in their commission they have power to sit and determine causes concerning breach of peace and misheha
escheator; and he is to inquire by good inquest of the death of the king's tenant, and to whom the lands are descended, and to seize their bodies and lands for ward, if they be within age, and is accountable for the same; he is named or appointed by the Lord Treasurer of England.
viour. The words of their commission are con- | into his majesty's hands all lands escheated, and ceived thus: quorum such and such, unum vel goods or lands forfeited, and therefore is called duos, &c., esse volumus; and without some one or more of the quorum, no sessions can be holden; and for the avoiding of a superfluous number of such justices, (for, through the ambition of many it is counted a credit to be burthened peace appointed with that authority,) the statute of 38 keeper. H. VIII. hath expressly prohibited that there shall be but eight justices of the peace in every county. These justices hold their sessions quarterly.
by the lord
In every shire where the commission of the peace is established, there is a clerk of the peace for the entering and engrossing of all proceedings before the said justices. And this officer is appointed by the custos rotulorum.
The Office of Sheriffs.
Every shire hath a sheriff, which word, being of the Saxon English, is as much as to say, shirereeve, or minister of the county: his function or office is twofold, namely,
1. He is the minister and executioner
34 H. S. c. 16. of all the process and precepts of the
The Office of Coroner.
Two other officers there are in every county called coroners; and by their office they are to inquest in what manner, and by whom every death; and to enter the same of record; which person, dying of a violent death, came so to their is matter criminal, and a plea of the crown: and, therefore, they are called coroners, or crowners, as one hath written, because their inquiry ought to be in corona populi.
These officers are chosen by the freeholders of the shire, by virtue of a writ out of the chancery de coronatore eligendo: and of whom I need not to write more, because these officers are in use everywhere.
courts of law, and therefore ought to make return General Observations, touching Constables, Jailers, and certificate.
Forasmuch as every shire is divided into hundreds, there are also by the statute of 34 H. VIII. cap. 26, ordered and appointed, that two sufficient gentlemen or yeomen shall be appointed constables of every hundred.
Also, there is in every shire a jail or prison appointed for the restraint of liberty of such persons as for their offences are thereunto committed, until they shall be delivered by course of law.
In every hundred of every shire the sheriff thereof shall nominate sufficient persons to be bailiffs of that hundred, and under-ministers of the sheriff; and they are to attend upon the justices in every of their courts and sions.
Note. Archbishop Sancroft notes on this last chapter, written, say some, by Sir John Dodderidge, one of the justices of the King's Bench, 1608.
ACCOUNT OF THE LATELY ERECTED SERVICE,
CALLED THE OFFICE OF
COMPOSITIONS FOR ALIENATIONS.
WRITTEN [ABOUT THE CLOSE OF 1598] BY MR. FRANCIS BACON,
AND PUBLISHED FROM A MS. IN THE INNER-TEMPLE LIBRARY.
The sundry sorts of the royal revenue.
ALL the finances or revenues of the imperial crown of this realm of England be either extraordinary or ordinary. Those extraordinary be fifteenths and tenths, subsidies, loans, benevolences, aids, and such others of that kind, that have been or shall be invented for supportation of the charges of war; the which, as it is entertained by diet, so can it not be long maintained by the ordinary fiscal and receipt.
Of these that be ordinary, some are certain and standing, as the yearly rents of the demesne or lands; being either of the ancient possessions of the crown, or of the later augmentations of the same.
Likewise the fee-farms reserved upon charters granted to cities and towns corporate, and the blanch rents and lath silver answered by the sheriffs. The residue of these ordinary finances be casual, or uncertain, as be the escheats and forfeitures, the customs, butlerage, and impost, the advantages coming by the jurisdiction of the courts of record and clerks of the market, the temporalities of vacant bishoprics, the profits that grow by the tenures of lands, and such like, if there any be.
And albeit that both the one sort and other of these be at the last brought unto that office of her majesty's exchequer, which we, by a metaphor,
per for them; and the fines for all original writs,
This office is
And yet so as that yearly rent of increase is now still paid into the hanaper by four gross portions, not altogether equal, in the four usual open terms of St. Michael, and St. Hilary, of Easter, and the Holy Trinity, even as the former casualty itself was wont to be, in parcel meal, brought in and answered there.
do call the pipe, as the civilians do by And now forasmuch as the only mat- The name of a like translation mame it fiscus, a ter and subject about which this for- the office. basket or bag, because the whole receipt is finally mer or his deputies are employed, is to rate or conveyed into it by the means of divers small compound the sums of money payable to her pipes or quills, as it were water into a great head majesty, for the alienation of lands that are either or cistern; yet, nevertheless, some of the same be made without license, or to be made by license, first and immediately left in other several places if they be holden in chief, or to pass for common and courts, from whence they are afterwards car- recovery, or by final concord to be levied, though ried by silver streams, to make up that great they be not so holden, their service may therefore lake, or sea, of money. very aptly and agreeably be termed the office of As for example, the profits of wards and their compositions for alienations. Whether the adlands be answered into that court which is pro-vancement of her majesty's commodity in this