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power to

13 & 14 C. 2. c. 12.

the oath proceeded against him. Which proceedings being removed by certiorari into the K. B., it was moved on affidavits that there had not been a constable there for fifty years before, and that he might be discharged; alleging likewise, that Holmby was a privileged place, and that all the inhabitants were the Duke of York's tenants. But the court held that they could not discharge him on motion, and said that they must determine the matter by action of false imprisonment, or some other way; and inclined strongly that he could not any way be discharged. For, by the court, though origi. nally constables were chosen in leets, yet the constable being an officer whose duty it is to keep the peace, the justices may choose him in cases of necessity. ` Case of the constable of Holmsly,

2 Keb. 557. Bac. Abr. tit. Constable (A.) Where the leet However, it is certain that justices of the peace had shall make de

nominate and swear constables, on the default of the torn or leet, fault.

before stat. 13 & 14 C. 2. c. 12., and therefore that they have such

authority in some cases not mentioned in that statute, which enacts, Constables dy- ($ 15.) that if a constable shall die, or go out of the parish, any ing, or leaving two justices may make and swear a new one, until the lord shall the parish. hold a leet, or till the next quarter sessions, who shall approve the

officer so made and sworn, or appoint another : and if any officer shall continue above a year in his office, the justices in their quarter sessions may discharge him, and put in another till the lord shall hold a court as aforesaid. 2 Haw. c. 10. § 50.

R. v. Brain, 3 B. & Adol. 614. By an act of parliament for paving, lighting, and watching the streets of a parish, the rector, churchwardens, overseers of the poor, and vestrymen were appointed trustees for putting the act in execution. By a subsequent act, the trustees appointed to put the first act in execution were appointed trustees for executing that act, and the said trustees or any thirteen or more of them were authorized to elect four constables for the parish annually. The trustees appointed four constables for the year, on the 21st of December 1829. One of the persons so appointed having, in March 1830, removed from the parish, and given notice of his removal to the trustees, they elected another. And the court of K. B. held, that the trustees, having so appointed the four constables for the year, might also, on the removal from the parish of one of the persons so appointed, elect another person in his stead; for that they were not functi officio, and were the proper persons to supply the vacancy; and Ld. Tenterden in giving judgment observed, “ This is the case of an office not created by statute, but existing by custom. And it seems to me, that where custom gives the power of appointing constables to any particular persons at a particular time, then if a vacancy happens by one of the persons so appointed quitting his office, those who have the power of appointing in the first instance have also the power of supplying the vacancy." His lordship then adverted to the stat. 13 & 14 Car. c. 12., and after stating the words of the 15th section proceeded to observe, “It is manifest from this enactment that where the lord had appointed a constable who died or removed from the parish, and a vacancy had occurred, he might hold another court and appoint another person to fill up that vacancy. The act implies that, for it says the justices may do so until the lord shall hold a court. Another thing may also be inferred from this statute, viz. that a party who quits the parish may be understood to have abandoned his office, so that another may

such custom to be immemorial :

then be appointed in his place. It would be extremely inconvenient if it were not so, because I know of no law which compels the person appointed to the office of constable to remain in the parish the whole year. Then, if the lord of the leet might appoint persons to fill up vacancies as they occurred during the year, it seems to follow that, in other instances, whosoever has the original power of appointment must have a smilar power of filling up those vacancies.

R. v. Lane, H. 2 & 3 G. 4., 5 B. & A. 488. In M. T. 1 G. 4. Where, in an a rule nisi was obtained for a quo warranto against the defendant application for a as constable of the township of F. in the county of Lancaster. quo warranto The affidavits stated, that for 50 years and upwards, and as far stable, the affiback as the deponents could recollect, it had been the usual and davits in supestablished custom for the constable to be elected by the payers port of the rule of rates at a meeting for that purpose; and that at a meeting so

stated, that for held on the 3d of October last, J. L. was appointed; but that, and as long as

50 years back, notwithstanding, the deputy steward of the court leet of the deponents could wapentake of Salford had sworn in the defendant as constable for recollect, there the year. But none of the deponents expressly stated, that to had been a custheir belief there had been immemorially such a custom in the tom in the town town. Cause was about to have been shewn, when the court stable in a parcalled upon counsel to answer the preliminary objection, that no ticular mode, immemorial custom was stated in the affidavits. He contended but did not exthat it was sufficient if facts were there stated from which a jury pressly state that would necessarily draw that conclusion, and that such facts were

they believed stated in this case. Sed per curiam : It is necessary on the face of the affidavits to state that there is, as the witnesses believe, held, that it was an immemorial custom to elect in this way; and it is not enough not sufficient. to state facts from whence the conclusion may be drawn, for it may be consistent with these affidavits that the parties making them may know when the custom originated. In the case of Rex v. Standard Hill (4 M. & S. 378. and tit. Poor, Vol. IV.), which was an application to have overseers appointed for a vill

, it was held to be necessary to swear positively that it was a vill by reputation.-R. D. (See R. v. Williamson, 3 B. & A. 582.)

As the form of a constable's oath in Dalton doth not contain Constable's the hundredth part of the constable's duty, nor indeed the most oath. material instances of it, it may be more eligible (as no particular form is directed by any statute), to swear him (B) to the due execution of his office in general, than to descend to those particulars; lest, by mentioning some parts of his duty, and not others, he may be induced to think that those others are not so necessary.

It seems to be clear at this day that the K. B. hath power by Mandamus to mandamus to compel the court or judge to swear a constable duly compel the chosen. 2 Haw. c. 10. § 47.

swearing a con

stable. But it must be observed, that the swearing in of a constable is Oath not essennot necessary for enabling the party to serve the office; but the tial to execuobject is to impose a greater sanction on his discharge of it. The tion of office. oath is not essential to the due execution of the office; but it is fit and proper, for the interest of the public, that the office should be executed under its sanction. (See the judgment of Bayley J., in R. v. Corfe Mullen, 1 B. & Adol. 218, 219.)

By stat. 1 G. st. 2. c. 13., high constables are to take the oaths 16. st. 2. c. 13. of allegiance, supremacy, and abjuration, as other persons who Oatls of allegi

ance and suqualify for offices: but they are not within the stat. 25 C. 2. c. 2.



as to receiving the sacrament, and subscribing the declaration against transubstantiation : and petty constables are exempted

both from the one and from the other. Constable re- If constables, when chosen, refuse to be sworn, a justice of the fusing to be

peace may bind them over to the assizes or sessions (there to be sworn.

indicted). Dalt. c. 28. R. v. Lane, 2 Str. 920.

But it seemeth there can be no commitment, but only indictment upon the refusal ; and, if found against him, to assess a good fine upon him, and then commit him for that cause. Crawley's

case, Cro. Car. 567. How punished. It seems that the sheriff, or steward of the leet, cannot lawfully

commit them for such refusal, without more ; but it is said, that if the party be present in the court, he may be fined; and that if he be absent, and have a certain time and place appointed him by the sheriff or steward, for the taking of the oath before a justice of the peace, and have also express notice of such appointment

, and be presented at the next court, for having refused to take it acIndictments for cordingly, he may be amerced: also, it seems that in either case refusal. he may be indicted (A) at the assizes or sessions. It is advisable

in all pleadings in any action concerning such a fine or amerciament, and in all indictments for such refusal, especially and expressly to set forth the manner of every such election, appointment, notice, and refusal, and before whom the court was holden

. And it hath been adjudged that it is insufficient to say in general that the party was duly elected, or lawfully elected, or that he had notice, without setting forth the special circumstances thereof

. Also it is said to have been adjudged, that an indictment for not finding a sufficient person to serve the office of constable, without shewing that the party refused to serve it himself, is insufficient. 2 Haw. c. 10. § 46.

R.v.Brain, 3 Barn. & Adol. 614. An indictment charged that the defendant being elected to the office of constable, had neglected and refused to take upon himself the execution of the office

. The proof was, that he had refused to take the oath of office; and it was held, that that was prima facie evidence of a refusal to take upon

himself the execution of the office; and it was also held, on motion in arrest of judgment, that the indictment sufficiently charged an offence, by alleging that the defendant had wholly neglected and refused to take on himself the execution of the office, and that it was not necessary to state that he had refused to be sworn.

By the custom of the city of London, all persons appointed constables on St. Thomas's day attend at Guildhall on Plough Monday, and are sworn by the registrar; and those who, when vacancies occur, are appointed at any other period of the year, are sworn in before the registrar at the lord mayor's court office. It was held, that that custom applied to all constables in the city of London, in whatever manner appointed, and that a party elected constable by the trustees under a local act was bound, after notice, to attend at the lord mayor's court office, to be sworn in.

3 B. & Adol. 614. Constables in As to the appointment of constables in boroughs, under the boroughs. Municipal Corporation Act, see stat. 5 & 6 W.4. c.76. $ 76. post,

tit. Iorporations.

IV. His Power as a Conservator of the Peace.

the peace.

Every high and petty constable are by the common law con- Constable a servators of the peace. 2 Haw. c. 28. $ 6., Crom. 6., Dalt. c. 1. conservator of

And therefore, if any man shall make an affray or an assault upon another in the presence of the constable, or shall threaten to May commit for kill, beat, or hurt another, or shall be in a fury ready to break the

an affray in his

presence. peace (a), the constable may commit him to the stocks, or other safe custody for the present, and after may carry him before a justice or to gaol, until he shall find surety for the peace, which surety the constable himself may also take by obligation, to be sealed and delivered to the king's use; and if the party will not find surety to the constable, he may imprison the party until he shall do it. Dalt. c. 1.

But it is submitted, that a constable cannot, in case of an affray, Whether he may arrest without a warrant from a magistrate, unless an actual breach arrest, without of the peace be committed in his presence; or, in other words, warrant, after flagrante delicto. He cannot arrest of his own authority after the

the affray has

ceased. affray is over. (6) For it is the proper business of a constable to preserve the peace, not to punish the breach of it: nor doth it follow from his having power to compel those to find sureties who break the peace in his presence, that he hath the same power over those who break it in his absence. 2 Hawk. c. 8. $ 17. (See also the argument of Best Serjt. and the judgment of Mansfield CJ., in Clifford v. Brandon, 2 Campb. 367. 371., and Reg. v. Tooley and others, 2 Ld. Raym. 1296., and 1 Russ. bk. 3. c. 3. on Manslaughter, 2 Hawk. c. 13. $ 8., Coupey v. Henley, 2 Esp. 540.

However, the point has never been expressly decided, and was treated as doubtful by Parke B., in delivering the judgment of the Court of Exchequer in the late case of Timothy v. Simpson, 1 Cr. Mees. & Rosc. 760. S.C. 5 Tyrwh. · The learned judge observed, “ It is not necessary for us to decide in the present case whether a private individual, who has seen an affray committed, may give in charge to a constable who has not, and such constable may thereupon take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and there is no danger of its renewal. The power of a constable to take into his custody upon the reasonable information of a private person under such circumstances, and of that person to give in charge, must be correlative. Now, as to the authority of a constable, it is perfectly clear that he is not entitled to arrest, in order himself to take sureties of the peace, for he cannot administer an oath ; Sharrock v. Hannemer, Cro. Eliz. 376. Owen, 105. S. C. nomine Scarrel v. Tanner; but whether he has that power, in order to take before a magistrate, that he may take sureties of the peace, is a

(a) While v. Edmunds, Peake, N. P. C. 89. But using loud words in the street, though it is disorderly, is not an offence for which a party should be taken into custody. Hardy v. Murphy, 2 Esp. 294.

(6) But if an affray has happened, and a wound has been given, which there is reasonable ground to suppose may end in felony, a constable may take the party who has given such wound into custody without a warrant. Coupey v. Henley, 2 Esp. 540.


$ 8.”

question on which the authorities differ. Ld. Hale seems to have been of opinion that a constable has this power. 2 Hale's Pleas of the Crown, 89. And the same rule has been laid down at nisi prius, by Ld. Mansfield, in a case referred to in 2 East's Pleas of the Crown, 306.; and by Buller J., in two others, one quoted in the same place, and another cited in 3 Campb. N. P. C. 421. On the other hand there is a dictum to the contrary in Brook's Abt. Faux Impt. 6., which is referred to and adopted by Ld. Coke, in 2 Inst. 52. Lá. Holt, in The Queen v. Tooley, 2 d. Raym. 1901., expressed the same opinion. Ld. Chief Justice Eyre, in the case of Coupey v. Henley, i Esp. 540., does the same. And many of the modern text-books state that to be the law. Burn's Justic, 26th ed. Arrest, 258.; Bacon. Abt. D. Trespass, 53.; 2 East's Pleas

of the Crown, 506. Hawkins's Pleas of the Crown, b. 2. c. 13. He may arrest But, in the same case, the court decided that a constable has if one who wit


of arrest, if a witness to an affray gives one of the affray. nessed the af

power fray gives the af- ers in charge to the constable on the spot where it was committed, frayer in charge, and whilst there is a reasonable apprehension of its continuance. whilst there is a The action, in that case, was trespass for assault and false imprireasonable ap- sonment, and taking the plaintiff to a police station. Plea, that the prehension of

defendant was possessed of a dwelling-house, and that the plaintiff its continuance.

entered the dwelling. house, and then and there insulted, abused, and ill-treated the defendant and his servants in the dwelling-house

, and greatly disturbed them in the peaceable possession thereof, in breach of the peace; whereupon the defendant requested the plaintiff to cease his disturbance, and to depart from and out of the house; which the plaintiff refused to do, and continued in the house, making the said disturbance and affray therein ; that thereupon the defendant, in order to preserve the peace and restore good order in the house, gave charge of the plaintiff to a certain policeman, and requested the policeman to take the plaintiff into his custody, to be dealt with according to law; and that the policeman, at such request of the defendant, gently laid his hands on the plaintiff, for the cause aforesaid, and took him into custody. It appeared in evidence, that the plaintiff entered the defendant's shop to purchase an article in the shop, when a dispute arose between the plaintiff and the defendant's shopman ; that the plaintiff refuse ing, on request, to go out of the shop, the shopman endeavoured to turn him out, and an affray ensued between them; that the de fendant came into the shop during the affray, which continued for a short time after he came in ; that the defendant then requested the plaintiff to leave the shop quietly; but be refusing to do so, the defendant gave him in charge to a policeman, who took him to a station-house. On these facts, one of the questions which arose was, whether the defendant had a right to arrest and deliver the plaintiff to a constable, the policeman having, by stat. 10 G. 4. c. § 4., the same powers as a constable has at common law.Parke, B. in giving his judgment, observed, “ Here the defendant, who had immediately before witnessed an affray, gave one of the afras. ers in charge to the constable on the very spot where it was committed, and whilst there was a reasonable apprehension of its continuance; and we are of opinion, that he was justified in so doing, though the constable liad seen no part of the affray. It is unques

. tionable that any bystander may and ought to interfere to part

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