University of California Berkeley
From the book collection of
BERTRAND H. BRONSON
bequeathed by him
or donated by his wife
Mildred S. Bronson
THE
OFFICE
O F
CONSTABLE:
B E I K C
AN ENTIRELY NEW COMPENDIUM
OF THE LAW
CONCERNING THAT ANCIENTMINISTER
FOR THE CONSERVATION OF THE PEACE.
pAREFULLY COMPILED FROM THE BEST AUTHORITIES.
WITH A PREFACE;
AND
AN INTRODUCTION,
CONTAINING SOME ACCOUNT OF THE ORIGIN
AND ANTIQJJITY OF THE OFFICE.
LONDON:
PRINTED FOR WHIELDON AND BUTTERWORTH,
FLEET-STREET.
M.DCC.XCI.
P R E FACE.
A SINCE RE wifh to benefit the com-
munity, by flirnifhing its molt ancient,
moil conititutional, and moft ufeful officer
with a compendious fyftem or manual of his
duty and powers, carefully extracted from,
and upon an actual perufal of the belt autho-
rities, has produced the following fheets, a
mere epitome, in fact, of the original com-
pilation. But the utility of the meafure
feemed, upon fecond thoughts, to be more
favoured by a pamphlet, affording the fulled
information in the narroweft compafs, than by
a volume, which the verbofe prolixity of mo-
dern ftatutes, vying, as it were, with each
other in conveying the fimpleft regulation in
the moft embarrafling manner, and greateit
pofTible number of words, would have ex-
tended to a fize and price little calculated to
invite the clafs of readers for whom it was
principally intended. The decifion, therefor,
was in favour of the briefeft fummary ; fuch
a one as men who have little money, leifure,
pr capacity (one or other, or, indeed, all of
A 2 which
iv PREFACE.
which are, unfortunately, too often met with,
in the compofition of a modern conftable)
might buy, read, and, if pofTible, underftand *.
The language, however, is generally that of
the authority quoted ; and the books referred
to (which it may be occafionally neceffary to
confult) are to be found in many bookfellers
jfhops, and in the libraries of the four law fo-
cieties : few barriflers, at the fame time, are
without all or moft of them ; and forne juf-
tices of peace, it is prefumed, may poflefs
" The Statutes at Large." It is undoubtedly
a ferious confideration, that the perfons and
property of almoft all but profefTional men
fhould be fubjected to laws which they are
totally ignorant of, and do not even know
where to find, or how, unlefs by dear-bought
and fatal experience, to get acquainted with ;
and of which the mere ftudy is fufHcient em-
ployment for the beft part, if not the whole,
of a long life. Thefe " Statutes at Large,'*
which, while they preferve many ats that are
* A fmall tracl publifked under the direction of " the
fociety (as it is called) for carrying into effect the kings
proclamation," fines the following pages were prepared
for the prefs, has not appeared to fuperfede the prefent
attempt. Of former publications on the fubjecl it may
be fufficient to obferve, that all or moft of them have
been looked into.
not,
PREFACE. v
not, and many more that ought not to be, in
force, do not contain above half the number
that are actually fo *, are comprifed in no lefs
than
* The private and local afts, every where in force
and no where to be met with, are at leafl as numerous.
" How is this ?" exclaimed a lawyer one day, " why all
thefe proceedings of yours are manifeftly illegal; con-
trary to Magna Charta, to the Bill of Rights, to the li-
berty of the fubjeft, to ." " Sir," fays his client,
who was a churchwarden, we have got an aft of par-
liament." And thus it is ; every little dirty parifh in
the environs of London muft have a law for itfelf. The
churchwardens or overfeers can provide the money, the
attorney wants a job, the juftice looks forward to the pe-
nalties, and the gemmen of the <w'eftry like authority; art
aft of parliament is accordingly obtained, and, being an
admirable compound of ignorance and knavery, cannot
fail of proving exceedingly beneficial to the community.
To the ilatutes which are not and ought not to be in force
may be added thofe which are altogether doubtful, and,
till they come in queftion, cannot be pofitively faid either
to be in force or not. The drawer of a modern aft of
parliament feldom troubles himfelf about former laws on
the fame fubjeft ; he erefts the new houfe and leaves the
old one Handing. It is a well-known obfervation of a
grave and learned ferjeant; that an aft of parliament
was much wanted to repeal all the laws made for thirty
years paft. This, to be fure, would be pretty well ; but
a retrofpeft of two or three hundred would be infinitely
better. Lord Coke complains bitterly of the injudi-
cious penners of afts of parliament in his time, " over-
laden," as he fays, " with provifoes and additions, and
niany times on a fudden penned or corrected by men
A 3 of
vi PREFACE.
than fix teen clojely printed quarto volumes ; the
Common Law is difperfed through near two
hundred folios > exclufive of every other fize,
many of which exifl only in a barbarous
gibberiiri peculiar to the profeffion * : even a
very imperfect abridgement of it filling no lefs
than twenty-four. This, however, is a com-
plaint which has been fo frequently and fo in-
effectually madej-, that one muft have pa-
of none or very little judgment in law." Thofe afts,
however, which gave fuch jufl offence to this truly learned
and eminent lawyer, will appear perfpicuous as light,
and t brief as vvomans love," when compared with the
endlefs and inextricable parliamentary labyrinths of the
prefent century. See alfo i Black. Com. 10.
* It was long fince objected as a fault to the profef-
fors of the law, that they wrote their reports and books
of the law in a ftrange and unknown tongue, which none
could underftand but themfelves, to the end that people
being kept in ignorance of the law, might the more ad-
mire their {kill and knowlege, and elteem and value it
at a higher price. Preface to Sir John Davis's Reports,
published in 1628.
f Bifhop Burnet, near a century ago, pronounced the
law "the greateft grievance of the nation." And the
great lord Bacon, who complains that the laws were
then " fubjecl: to great incertainties, and variety of opi-
nions, delays, and evafions," delivered a formal propo-
fition to king James I. for their amendment; and this
at a time when the flatutes were in two volumes, and,
befide the year books, there were but/wr reportttt ex-
tant.
tience
PREFACE. vii
tience till the mifchief, every day increaOng,
fhall remedy itfeif ; till, in fhort, " there is A
DROP TOO MUCH."
Sir William Blackftone obferves that, con-
fidering what manner of men are for the mofl.
part put into the office of conftable, it is per-
haps very well that they are generally kept in
ignorance of the extent of their powers * ; an
obfervation to which it may be readily con-
ceived, the compiler of the following Digeft
does not fubfcribe. In fact, he has ever re-
garded it as equally farcaftic, illiberal, and
unbecoming; and only to be accounted for
by the profeflional character and habits of the
writer; who, doubtlefs, thought that law, like
religion, being a myftery, t\& Jcriptures fhould
in both cafes be locked up in an unknown lan-
guage or unintelligible jargon \ ; that the fro-
fane ought to know no more than the initiated
may think fit to communicate; and that, in
fhort, the moft ignorant are the moft trac-
table, and confequently the fitteft for good
Chriftians and good fubjects. If the powers
which the law has vefted in the conftable be
fo large, that it is even dangerous he fhould
know them, why were they given him ? why
* i Com. 356.
f 3 Com. 322. and Benthams Fragment of Govern-
ment, Preface, p. xxxv.
A 4 are
viii PREFACE.
are they not taken away ? why is he to be
puniihed for negleding duties of which it is
beft he fhould be ignorant ? Would it not
be full as well, confide ring what manner of
men are for the moft part put into the office
of juflice of peace, if they too were to be kept
in ignorance of the extent of their powers'?
This, indeed, it may be, is already the cafe ;
though they do not on that account feem
the lefs inclined to abufe them. But wherefor
is it that fuch " manner of men" are put into
the Office of Conflable ? Becaufe upward of
a hundred adts of parliament, which few ever
fee, and flill fewer comprehend *, added to the
arbitrary and capricious decifions of fome
courts, and the ignorance and innovation of
others, have rendered it fb burthenfome, fer-
vile, vexatious, and expenfive, that they who
poflefs or ufurp the power of filling it, felect
* The emperor Caligula, it is faid, caufed his laws to
t>e written fo fmall, and placed fo high, that, though all
might clearly fee, none could poflibly read. The Englifli
law is thought by Tome to bear in many inftances a great
refemblance to the Roman. And it feems a maxim in
both, that ignorantia legis non excufat. Others have not
hefitated to fay that Britifti ftatutes refemble cobwebs,
placed in darknefs and obfcurity, for the purpofe of en-
trapping the fmaller flies, in order to glut the bottled-
Jfiders of Weftminfter Hall with their blood. But thefe,
no doubt, are the ravings of beggered fuitors, and con-
feo^uently not to be regarded.
thofe
PREFACE. he
thofe who have nothing to recommend them
but the willingnefs with which they receive the
yoke, and the patience with which they bear it.
The reafon given for this partiality is, that no
GENTLEMAN can accept fuch an office-, poverty,
both in purfe and in Ipirit, being looked
upon as the proper qualification for a confta-
ble. Thefe fame GENTLEMEN, it fhould feem,
are high-mettled borfes> who would kick and
wince, and play the devil, in fhort, if you at*
tempted to put them in the fhafts ; the VUL-
GAR are affes, who tamely fubmit to every in-
dignity. But, gentleman or no gentleman, he
who can beil afford to lofe his time and mo-
ney, who has fpirit and ability to fuflain fa-
tigue, and refolution to oppofe infult and op-
preflion, is the fittefl perfon to difcharge the
Office of Conftable. To confer it, from what-
ever motive, upon people of bale or inferior
condition, was long ago reprobated by lord
Bacon as " a mere abufe or degenerating from
the firft inftitution *." And, certainly, the ne-
cefllty of a man who depends upon his daily
employment for the daily bread of himfelf and
his family, and whofe time is of courfe the
moft precious, ought to be a fufficient excufe
in any court of juftice why he fhould not be
* Law Trails, 183.
compelled
* PREFACE.
compelled to ferve this office; only it would
probably coft him more to obtain the deter-
mination than he can value his time at. It is^
doubtlefs, a very fcandalous infmuation that
juflices of peace, who have fome how or other
acquired the power of making conilables, fe-
lect the meaneft and moft ignorant by way of
magnifying their own wifdom and confe-
quence; gems, it is well known, which re-
quire no foil to increafe their luftre.
It is, by no means, a lefs abufe, when a perfbri
every way fit for the office is pitched upon, to
admit in his Head any worthlefs fellow that he
can procure, bafe enough to ferve the duty
for a few guineas. What integrity or pro-
priety of conduct can be expected from one
whofe neceffity renders every fhilling that is
offered him an irrefiflible temptation ? The
great Shakfpeare has fatirifed this practice
with admirable pleafaritry, in his play of Mea-
Jure for Meafure> where he introduces the
character of a foolilh fubflitute bringing a
charge before one of the dukes deputies :
Efcalus. Come hither to me, matter Elbow; come
hither, matter conftable. How long have you been in
this place of conltable ?
Elbow * Seven years and a half, fir.
Efca. I thought, by your readinefs in the office, yot
had
PREFACE. xl
had Continued in it fome time. Alas ! it hath been great
pains to you ' they do you wrong to put you fo oft upon
it. Are there not men in your ward fufficient to ferve
it.
Ettow* Faith, fir, few of any wit in fuch matters : as
they are chofen, they are glad to choofe me for them ;
I do it for fome piece of money, and go through with
all*.
If the prefervation of peace and good order
be the intereft of fociety, the legislature would
eflentially contribute to that end in extending
more effectual protection and encouragement
to the conftable. This would be done by
caufing all the laws which authorife or oblige
him to do particular acts, or any way concern
the execution of his office, to be reduced into
a fmgle ftatute, conceived in plain intelli-
gible language f -, and by requiring every
court, at the election of a conftable, to put a
* There is another not over -wife conftable in the
Comedy of Much ado about Nothing; and again in that of
Loves Labour Loft. It is to be hoped fuch a character
is not fo very common now a days.
f A refolution of all the judges would anfwer the
fame purpofe. Something of this kind, it is true, was
formerly attempted by a chief juftice, but being haftily,
carelefsly, and every way badly done, was defervedly re-
je&ed by his brethren.
copy
xii PREFACE.
copy of it into his hands : in order that, hav-
ing his power and duty conftantly under his
eye, he might be without excufe in neglecting
the one, and without danger in exercifmg the
other. If it be true that every man who
ferves the public ought to be paid by the
public, it is inoft unreafonable and unjuft that
a duty fhould be impofed upon any one,
which, if attended to as it ought to be, would
demand the greateft part of his time, not only
without making him the flighted recompence,
but even obliging him to be at (what is to him)
a confiderable expence; for even the mere
" confumption of time, to him who lives by
the fale of his time, is equivalent to expence."
Suppofe, therefor, that every perfon dulyelecl>
ed a conftable were, during his continuance
in office, not exceeding one year, exempt from
all taxes and impofitions, parliamentary, or lo-
cal ; and, in cafe of actions againft him touch-
ing his office (the dread of which is one great
obftacle to its due execution) fhould be al-
lowed to defend, not in forma pauper is , but fome
really unexpenfive mode *. This, if not an
adequate
* The defence of a&ions by an innocent man requires
the fortune of a rich one. Even a pauper * who is to
fwear himfelf not worth five pounds in the world, will
have
PREFACE. xiii
adequate compenfation, would be a great re-
lief, and in fome cafes, at lead, an indemnity,
to perfons ferving the office, -would induce
them to accept it with cheerfulnefs, and ex-
ecute it with fpirit, confcious that in fo doing
they were benefiting fociety without injuring
themfelves *. One cannot, however, have the
fatisfaction to think, that a fuggeflion fo ad-
vantageous both to the community and to the
individual, Hands the lead chance of ever
pafiing into a law. If, indeed, the propofal
v/ere for a productive tax upon conftables, or
for the purpofe of making bad worfe, or of
heaping oppreflion upon the oppreiTed, there
would be little fear of its being adopted.
This, therefor, is another of thofe felf-re-
forming grievances which muft be patiently
fuffered to attain their worft ftate.
To conclude : If the following pages prove
at all inftrumental toward making a fingle
conftable more active, confident, and fecure
jn the difcharge of fuch of the powers and
duties of his office as are any way beneficial
to fociety, (for the lefs he attends to the others
have to provide ten t or poflibly fifty times that fum, to
profecute or defend his fuit.
* In fome parts of the north, the conftable is intitled
to an ancient cefs charged upon certain lands, which has
formerly amounted to a pretty confiderable fum.
the
*iv P R E F A C E.
the better,) the compiler will have reafon to
flatter himfelf that his efforts, though humble^
have not been ufeJefs,
1 N T R O-
INTRODUCTION,
i t rip^HE origin of the word CONSTABLE,
JL which fome etymologifts have- errone-
ously fought for in the Saxon language (*), is un-
doubtedly to be found in the Comes Stabuli of the
Eaftern empire : hence the conftabularius, conftabu-
lusy &c. of barbarous Latinity ; the connejlable of the
French ; the cone/labile of the Italians, &c. ( z ) This
comes Jlabuli was at firft, as his title imports, no
more than prefect or fuperintendant of the imperial
{tables, or, in other words, the emperors matter of
the horfe ; but having, in procefs of time, obtained
the command of the army, his name, corrupted
into conflabulus and conjlakularius^ began to fignify
a commander ; and, with this fignification, appears to
have been introduced into England at the Norman
Conqueft, or, perhaps, fooner ; fmce, in facl:, fome
fuch officer feetns to have been already known un-
der the title of Stallarius.
2. THE CONSTABLE (or LORD HIGH CONr-
STABLE) of ENGLAND was an officer of the higheft
dignity and importance in the realm. He was the
leader of the kings armies ; and had the cogni-
zance of all contracts and other matters touching
( J ) See Lambard, Sir T. Smith, and others.
(*) See Spelmans Gloffary, voct CONSTABULARIUS.
arms
svi INTRODUCTION.
arms or war ( 3 ). This office, which appears to
have been granted by William the Conqueror to
Walter eail of Gloucefter, or, according to others,
to William Fitzofbern, or Roger de Mortimer, be-r
came, afterward, hereditary in two different families,
as annexed to the earldom of Hereford ; and, in that
right, after a lapfe of near two centuries, (feveral
perfons enjoying the title and authority in the mean
time) was revived, by judgement of law, in the per?
fon of Edward Stafford duke of Buckingham ; but
Henry VIII. thinking the office too high and dan-
gerous for the hands of a fubjecl:, took the firft op-
portunity of putting an end to it by cutting off his
head. Since this period, there has been no lord
high conflable, except pro bac vice, as Robert earl
of Lindfey was appointed in 1631 to determine the
appeal of lord Re.a againft Ramfey, and as fome
perfon or other is created at the coronation of a
king or queen.
3. We had alfo CONSTABLES OF CASTLES,
that is, keepers or governors, fo called, of the canles
of the king or great barons, whom the French term
chdtellains, from the Latin caflellani^ and who were
frequently hereditary, and by feudal tenure ; fiich
were the conftable of the tower, the conftable of
London, or Baynards-caftle, the conftables of the
caftles of Dover, Windfor, Chcfter, Flint, &c. fomc
of which offices, though not now hereditary, are re-
maining to this day. Thefe are the conftables in-
tended in Magna Chart a ^ cc. 17. 2O. and who, in
the ftatute of Weftminfter the firft (3 E. I. c. 15.)
( 3 ) 13 R. 2. ft i. c. 2. See alfo Madox's Hiftory of the
Exchequer, p. ay, &c.
are
INTRODUCTION, xvii
are called conflables of fees, and there confidercd
as keepers of prifons; a conftituent part, indeed, of
all ancient caftles. Lord Coke obferves that be-
fore Magna Charta thefe conftables of caftles had
the like authority within their precincts as the fbkrifF
had within his bailiwick, and commonly fealed with
their portraiture on horfeback ( 4 ). The flatute of
5 H. 4. c. 10. which recites that, by colour of their
commiffions as juftices of the peace, they took peo-
ple to whom they bore evil will, and imprifoned
them in their caftles till they made fine and ranfom
for their deliverance, and ordains that none be im-
prifoned but in the common jail, feems to have put
an end to a race of tyrants fo odious to the people
as to be ufually reprefented in romances under the
character of monftrous giants, who, not content
with the property, would eat the flefh, drink the
blood, and grind the bones of the unwary and un-
fortunate traveler.
4. There was likewife formerly a CONSTABLE
OF THE EXCHEQUER ; of whom we may read in
the Dialogue Scaccarii^ 1. i.e. 5. in the ftatute De
Diftrittione Scaccarit (51 H. 3. ft. 5.) in Fleta, 1. 2.
c. 31. and in Madox's Hiftory of that Court, p. 724,
&c. We alfo find mention made in fome old fta-
tutes of THE CONSTABLE OF THE STAPLE. See
27 E. 3. c. 8. 15 R. 2. c. 9. 23 H. 8. c. 6.
5. We now come to THE CONSTABLE OF
THE HUNDRED, Of HIGH, CHIEF, or HEAD CON-
STABLE (as he is otherwife called) of whom we
ihall have a little more to fay. By the ftatute of
(*) a Inft. 31. See alfo W. i. c. 17.
a Wynton,
xviii INTRODUCTION.
Wyntony or Winchefter (13 E. I.) c. 6. it is or-
dained, that in every hundred or franchife there (hall
be chofen two conftables to make the view of ar-
mour, as directed in the preceding part of the chap-
ter 5 and that the conftables aforefaid fhall prefent
before thejuftices afligned the defaults of armour
and of the fuits of towns and of highways ; and
fhall alfo prefent thofe who harbour ftrangers in up-
land towns for whom they will not anfwer. They
are likewife to prefent {heriffs or bailiffs who do not
follow the cry of the county.
It is agreed by Mr. Lambard ( s ), by fir Edward
Coke ( 6 ), and by fir Matthew Hale ( 7 ), that con-
itables of the hundred were firft introduced by this
ilatute. And though Fitzherbert ( 8 ), and Crompton
after him ('), have aflerted that they were confer-
vators of the peace at the Common Law ; and though
it is faid in other books that " notwithftanding the
opinions to the contrary," the high conftable was an
officer at the Common Law, and that the ftatute of
Wynton only enlarged his authority ( I0 ) ) yet no one
has hitherto produced the leaft evidence in fupport
of fuch aflertion. On the other hand, befide the au-
thority of Coke and Hale, it has been exprefsly held
from the Bench, that a high conftable is not fuch an
officer, nor confervator of the peace, whereof the
(s) On Conftables, 3.
( 6 ) 4-Inft. 267.
(?) zP.C. 96.
(*) J.P. 156, b.
(9) J. P. aoi, b.
( >0 ) 3 Keble, 231. Salk. 175. 381, xi Mod, 215. L.
Ray. 1193, 1195.
Common
INTRODUCTION. xix
Common Law takes any notice ; that he is not men-
tioned in any book; and that, in fine, he is only by
cuftom and for conformity ( XI ). It muft be con-
feffed, that the firft mention made of the high con-
ftable in any ftatute fubfequent to that-already cited,
is by 4 E. 4. c. I. ( xl ) And though fir William
Blackftone has, in one place, attempted to carry up
his antiquity as high as king Henry II. ( I3 ) he, in an-
other, exprefsly mentions him to have been firft or-
dained by the ftatute of Winchefter (**). After all,
however, nothing can be more certain than that the
conftable of the hundred, or high conftable, whether
he be allowed an officer at the Common Law or
not, was inftituted long before that ftatute. This
curious facl: is afcertained by a writ or mandate of
the 36th year of king Henry III. preferved in the
Adverfaria to Wats's edition of Matthew Paris, and
from which chapters 4. and 6. of the ftatute of
Wynton are evidently taken, though it has hitherto
efcaped the notice of every writer or fpeaker upon
the fubjecT:. By this writ it is provided, that in
every hundred there fhould be conftituted a CHIEF
(") Cro. Eliz. 375. where it is fald that in the North
they had no high conftables, which appears from Nordens
Defcription t p. 30. to be the cafe in Cornwall.
( xl ) He afterwards occurs in 19 H. 7. c. n. 22 H. 8.
c. 23. 24 H. 8. c. 10, &c.
( I3 ) 4 Com. 2ii. The prapojitus kundredi, whom the
learned author has miftaken for the high conftable, feems te
have been the bailiff of the hundred, as prapofitus comitatus
is the fheriff, and pr<epojitus manerii the bailiff or reve of the
manor. Vide Spelman, in <voce. The prapojltus hundredi is
frequently mentioned in Domefday Book.
(+) i Cora. 355.
a 2 CONSTABlEj
xx INTRODUCTI ON.
CONSTABLE, at whofe mandate all thofe of his hun-
dred fworn to arms [/. e. to have fuch arms, accord-
ing to the quantity of their lands or chattels, as
there directed] {hould aflemble and be obfervant to
him for the doing of thofe things which belong to
the confer vation of the kings peace ( I5 ). No men-
tion, it is believed, of this officer can be any where
found prior to the date of this inftrument j which,
however, it may be contended, no more determines
the queftion as to his original creation, than the fla-
tute' of Wynton appeared to do ; the language in
both cafes being imperative, and the only difference
confiding in the word eleus (chofert). for conjlituatut
(conftituted). Be this as it will, the difcovery ought
at leaft to teach not antiquaries alone, but even