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THE ANSWERS TO QUESTIONS
SIR ALEXANDER HAY, KNT.
TOUCHING THE OFFICE OF CONSTABLE.
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
The jurisdiction of these lects is either remaining in the king, and in that case exercised by the sheriff in his Turn, which is the grand lect, or granted over to subjects ; but yet it is still the king's court.
I 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 for peace.
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