Part 29 (1/2)

The office of Constable is as old as the Monarchy of England;--and certainly existed in the time of the Saxons.[99]--The law requires that he should be _idoneus h.o.m.o_: or in other words, _to have honesty to execute the office without malice, affection, or partiality; knowledge to understand what he ought to do; and ability, as well in substance or estate, as in body_, to enable him to conduct himself with utility to the public.

[Footnote 99: Fineux.]

The Statute of Winchester, made in the 13th year of Edward the First (anno 1285) appoints two Constables to be chosen in every Hundred; and such seems to have been the attention of the Legislature to the Police of the Country at that early period of our history, ”_that suspicious night-walkers are ordered to be arrested and detained by the watch_.”[100]

[Footnote 100: Winton, chap. 4.]

The Statute of 5 Edward III. _cap._ 14, (anno 1332) empowers Constables ”_to arrest persons suspected of man-slaughter, felonies, and robberies, and to deliver them to the Sheriff, to be kept in prison till the coming of the Justices_:” and another Act of the 34th of the same reign, _cap._ 1, (made anno 1361,) empowers Justices, (_inter alia_) ”_to inquire after wanderers, to arrest and imprison suspicious persons, and to oblige persons of evil fame to give security for good behaviour; so that the People may not be troubled by rioters, nor the peace blemished; nor Merchants and others travelling on the highways be disturbed or put in peril by such offenders_.”

By the common law, every person committing a felony may be arrested by any person whomsoever present at the fact, who may secure the prisoner in gaol, or carry him before a Magistrate,[101]--and if a prisoner thus circ.u.mstanced, resists and refuses to yield, those who arrest will be justified in the beating him,[102] or, in case of absolute necessity, even killing him.[103]

[Footnote 101: Hale.]

[Footnote 102: Pult. 10, a.]

[Footnote 103: Hale.]

In arresting persons on suspicion of a felony, actually committed, _common fame_ has been adjudged to be a reasonable cause.[104]

[Footnote 104: Dalton.]

There are four methods, known in law, by which Officers of Justice, as well as private individuals, may arrest persons charged with felony.--1. _By the warrant of a Magistrate._--2. _By an Officer without a warrant._--3. _By a Private Person without a warrant._--And 4. _By Hue-and-Cry._[105]

[Footnote 105: Blackstone.]

When a warrant is received by an Officer, he is bound to execute it, so far as the jurisdiction of the Magistrate and himself extends.--But the _Constable_ having great original and inherent authority, may, _without warrant_, apprehend any person for a breach of the Peace: and in case of felony, _actually committed_, he may, on probable suspicion, arrest the felon: and for that purpose (as upon the warrant of a Magistrate,) he is authorised to break open doors, and even justified in killing the felon, if he cannot otherwise be taken.[106]

[Footnote 106: Blackstone.]

All persons present, when a felony is committed, are bound to arrest the felon, on pain of fine and imprisonment, if he escapes through negligence of the by-standers; who will (the same as a constable) in such case be justified in breaking open doors, to follow such felon, and even to kill him if he cannot be taken otherwise.[107]

[Footnote 107: Blackstone.]

The other species of arrest is called _Hue-and-Cry_, which is an _alarm raised in the country_ upon any felony being committed. This was an ancient practice in use as far back as the reign of Edward the First, (1285) by which, in the then infant state of society, it became easy to discover criminal persons flying from justice.

However doubtful the utility of this ancient method of detecting offenders may be, in a great Metropolis, in the present extended state of Society, it is plain, that it has been considered as an important regulation of Police so late as the 8th George II. (1735;) since it was enacted in that year, (stat. 8, George II. cap. 16.) that the Constable who neglects making _hue-and-cry_, shall forfeit five pounds; and even the district is liable to be fined (according to the law of Alfred) if the felony be committed therein, and the felon escapes.[108] This, however, applies more particularly to the country, and where the practice cannot fail to be useful in a certain degree.

[Footnote 108: Blackstone.]

When a _hue-and-cry_ is raised, every person, by command of the Constable, must pursue the felon, on pain of fine and imprisonment.

In this pursuit also, Constables may search suspected houses if the doors be open: _but unless the felon is actually in the house_, it will not be justifiable to use force; nor even then, except where admittance has been demanded and refused.

A Constable, even without any warrant, may break open a door for the purpose of apprehending a felon; but to justify this measure, he must not only shew that the felon was in the house, but also that access was denied after giving notice that he was a Constable, and demanding admittance in that capacity.[109] In the execution of the warrant of a Magistrate, the Officer is certainly authorized to break open the doors of the felon, or of the house of any person where he is concealed.--The first is lawful under all circ.u.mstances; but forcibly entering the house of a stranger may be considered as a trespa.s.s, if the felon should not be there.[110]

[Footnote 109: Hale.]

[Footnote 110: Hale.]

Such are the powers with which Constables are invested,--and which are, in many instances, enforced by penalties; that public justice may not be defeated.[111]

[Footnote 111: It may not be improper in this place to hint, that there is a deficiency in the present state of the Law, which calls aloud for a remedy. None can be arrested on a Sunday, but for felony or breach of the peace (except in certain cases, where their guilt has been previously decided on, as in _Escape_, &c.) By this means Lottery-Vagrants, Gamblers, Sharpers, and Swindlers, bid defiance to the Civil Power on that day; while a person guilty of pus.h.i.+ng or striking another in an accidental squabble, may be arrested and confined.]