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PREFACE.

THIS Paper was printed in 1641 with other matter, as mentioned further on. As it is clearly a separate piece, complete in itself, I have placed it here, following the Preparation towards the Union of Laws, with which it is obviously connected in design.

Sir Alexander Hay was Secretary of State for Scotland in 1608, the date assigned to this Paper, at which time the project for the union was on foot. In the copy in the Lansdowne MSS. it is said to have been written at the request of Lord Northampton, who became Lord Privy Seal in that year. It can hardly be doubtful that it was intended to assist in preparing an assimilation of the administration of England and Scotland.

THE ANSWERS TO QUESTIONS

PROPOUNDED BY

SIR ALEXANDER HAY, KNT.

TOUCHING THE OFFICE OF CONSTABLE.

A.D. 1608.

1. Question. WHAT is the original of constables?

Answer. To the first question of the original of 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 highconstable 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, and the petty-constable is over the town or village.

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 prese ntoffences 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 both, to inquire of only, and certify to the justices of gaol 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, case of chaffer and contract, and' 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 remaining in the king, and in that case exercised by the sheriff in his Turn, which is the grand leet, or granted over to subjects; but yet it is still the king's court.

I have substituted this word for "of."

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