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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
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."
2. Quest. Concerning the election of constables ?
Answ. 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. Quest. How long is their office ?
Answ. The office of constable is annual, except they be removed.
4. Quest. Of what rank or order of men are they?
Answ. 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 substantiallest sort of yeomen, next to the degree of gentlemen ; but should not be incumbered with any other office, as mayor of a town, under-sheriff, bailiff, etc.
5. Quest. What allowance have the constables ?
Answ. 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.
6. Quest. What if they refuse to do their office ?
Answ. 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. Quest. What is their authority or power ?
Answ. 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, and likewise the additional power which is given by divers statutes, it is hard to comprehend them 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. Of peace and the crown.
3. For matter 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, part the same, and keep the parties asunder, and arrest and commit the breakers of the peace, if they will not obey; and call power to assist him for that purpose.
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 of 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
Secondly, For matters of the crown, the office of the constable consisteth chiefly in these four parts:
1. To arrest.
All which the constable may perform of his own authority, without any warrant from the justices of the peace.
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 ought to arrest him, and bring him before a jus
tice 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 seise his goods, and keep them safe without impairing, and inventary 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 matter of corrupting air water or victuals, stopping straightening or indangering of passages, or general deceits, in 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, they are for their contempt to be fined or imprisoned, or both, by the justices in their sessions.
8. Quest. What is their oath?
“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 executed, and the offenders be punished: and you shall endeavour, upon complaint made, to apprehend barraters and riotous persons making affrays, and likewise to apprehend felons; and if any of them make resistance with force and multitude of misdoers, you shall make outcry and pursue them VOL. VII.
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 bloodsheds, out-cries, affrays, and rescues made within your office: and you shall well and truly, according to your own power and knowledge, do that which it belongeth to your office of constable to do, for this
to come. So help,” etc. 9. Quest. What difference is there betwixt the high-constables and petty-constables ?
Answ. Their authority is the same in substance, differing only in the extent; the petty-constables serving only for one town, parish, or borough; the head-constable for the whole hundred: nor is the petty-constable subordinate to the headconstable 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. Quest. Whether a constable may appoint a deputy ?
Answ. In case of necessity a constable may 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 con
sists in three things:
1. Conservation of the peace.
This seems to be part of a tabular view of this and other matters of law, and not properly to belong to the Answers. See p. 775.