網頁圖片
PDF
ePub 版

more merciful—to the subject, the more just, ensuring safety to his person and property, (for the penalties that are consequent on crime, are, in their nature, intimidative and not compensative)—to the state, as more honourable and economical, first, froin an improvement in its moral condition, and last, by diminishing the number of offenders, and the necessity of long, and to the country expensive, continement. The instant the preventive has failed to interpose itself between the imagining and execution of an act, the detective steps in, and its service is of a threefold kind : first, to secure the offenders, whether principals or accessories ; second, to find out and collect the scattered pieces of evidence that tend to establish their guilt; third, to search for, and procure the stolen property. The character of the detective is promptitude, as, by the smallest delay, all traces of the offender and proofs of his guilt may be lost.

When the detective has siicCeeded in its object, it submits the results of its operations to the judicial, the acts of which are also threefold : judgments preliminary, appellatory, and final. By the first is determined the nature of the offence, as constituted by the evidence ; if a proveable one, but not within its competence to decide, its business is to condense and arrange the proofs, and hand them over, together with the criminal, to be dealt with by the superior tribunals; and in this light, police may be considered as the handmaid to the criminal courts. If the offence is within its competence, it determines the truth or falsehood of the allegations, and discharges or punishes the offenders accordingly, subject, in all cases, to certain judicial formalities, and, in some, to the revision of higher authorities. The injuries, which it is the duty of police to avert or punish, arise in two ways: first, from natural causes, such as fires, inundations, storms, contagions, &c.; secondly, from human; and these are classed according to the degree of moral turpitude; there are some offences, which are universally denominated crimes or misdemeanors, and as universally considered fit objects of public vengeance. There are others of a more trivial nature, caused, whether intentionally or otherwise, either by mischievous, rash, or negligent conduct, or by want of regard to conveniency, decency, or good order. These last are particularly the objects of the judicial branch of police--they are such as are of hourly occurrence, more or less interfering with the enjoyment of our rights, and but for some direct power, to which much discretion must unavoidably be allowed, immediately to punish them, would infallibly escape punishment altogether. Il y a,' says Montesquieu, des criminels, que le magistrat punit, il y en a d'autres qu'il corrige; les premiers sont soumis à la puissance de la loi, les autres à son autorité ; ceux-là sont retranchés de la société;

on

on oblige ceux-ci de vivre selon les règles de la société. Duns l'erercise de la police c'est plutôt le magistrat qui punit que la loi.'

The great difficulty, in all the branches of police, is, to determine the true limits of its powers, for the attainment of its great object, protection; that this may be afforded at the least possible expense of legitimate freedom, of which, as of any sound police, the essential element must be justice.

Such may be considered the leading principles of most of the modern systems of police. These principles are modified, of course, in every particular case, by the particular nature of the government, habits, and genius of the people, &c.; but the main difference will be found, we apprehend, in the different degrees of dependence of the executive upon the judicial authority :- Where the former is wholly unconnected with the judicial power, and, as in France, during several periods of her revolution, concerns itself in faction only and not in justice, it becomes an instrument of the most odious tyranny.

In other cases, it resembles those potent drugs in medicine, which work good or evil, according to the skill with which they are administered. With us, fortunately, in England, the only occasion in which the executive branch of police can display itself distinctly from the judicial is, during a suspension of the habeas corpus, at times a necessary, but always a fearful departure from the ordinary procedure.

Powerless as our police is at this day, there is, in truth, no constitution in Europe, in which the elements of a vigorous, just, and enlightened system, are more profusely spread than in

And this we owe chiefly to the wisdom of our Saxon ancestors, who justly regarding peace and security as the first, and not, as we do, as the last objects of attention, cherished and protected every institution that conduced to their maintenance.

The most striking among their regulations of police was that of mutual suretyship, which compelled, on pain of imprisonment, the freeborn men to cast themselves into companies of ten, and these again into hundreds, each individual being held responsible for the forthcoming of his neighbour, in the event of any criminal charge being preferred against him. If, at any time, the king's peace was violated, it was the duty of the county, where the breach occurred, to find out the hundred to which the offender belonged ; the hundred to discover the decennary; and of the decennary to produce the criminal, or be amerced; and, in many instances make good the damage done, or loss sustained.

In each county, too, there were various officers, of different degrees and rank, armed with large powers expressly for the

2 K 2

conservation

our own.

conservation of the peace and repression of all manner of disturbance and injury of the people, as well by way of prevention as punishment. First, among these ministers of justice stood the

vicont,' or sheriff: the power of the county' was placed at his disposal; he was to apprehend all persons who broke or attempted to break the peace; to seize felons and traitors; moreover, according to Fitzherbert, arrester suspect persons qu'alent per le nuite ou per jour et sont de male fame;' and to detain in prison mendicants and vagrants, without bail or mainprise. He held an ambulatory court, called the court of the tourne, for the punishment of minor criminal offences, and in these, previous to Magna Charta, he heard and determined all cases of felony, with unlimited powers, except as to the punishment of death. At the court of the leet, the steward, appointed by the lord of the manor, presided. The jurisdiction of this court was to three ends: first, to take the ancient oath of allegiance of all males above twelve years; second, 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 ; third, to inquire of, punish, and remove all public nuisances and grievances concerning infection of air, corruption of victuals, &c.; and of all other things that may hurt or grieve the people, in general, in their health, quiet, and

Both the leet and tourne were courts of record. The coroner was also anciently an officer of great trust, and a principal preserver and keeper of the peace. It was his duty, if advertised by the king's bailiffs, or other honest men of the countrey, to come to those that be slaine, sodainly dead, or wounded, or to house-breakers—to enquire who were culpable, who were present, either men or women, and of what age, so they could speak, and had discretion; and they which were found guilty by inquisition were taken, delivered to the sheriff, and committed to gaol; and as many of them as were not found guilty, were to be attached until the coming of the justices, and their names enrolled.'+ This officer was chosen by the commons of the country, ‘from among the most meet and worthie people, and the most sage and wise knights.' There were likewise the wardens or Conservators of the Peace, chosen by the people at the county court; for this purpose a writ was directed to the sheriff, commanding him to choose in his full county 'unum hominem de probioribus et potentioribus comitatûs sui, in custodem pacis :' it was their special duty to watch over the general security-an office similar to that of the · Assertores Pacis' of some of the # Lord Bacon, Office of Constables,

of Pulton, quoting Bracton.

ancient

welfare.'*

ancient German tribes. Early, however, in the reign of Edward III. their title was changed to that of justices of the peace, their powers greatly enlarged, and nomination transferred from the commons to the crown. By a statute passed in the thirty-fourth of that reign, declaring the authority to be given to these new functionaries, the power which had previously existed at common law, of taking surety of suspected persons and those of evil fame, was distinctly recognised in the following words :- De prender et arester touz ceux qils pourront trover par enditement ou par suspicion et les mettre en prisone et de prendre de touz ceux qi ne sont de bone fame ou ils serront trouvez, suffisant sureté et meinprise de lour bon port derers le roi et son peuple.'* In giving this and much additional power to the justices, no little care and forethought were employed to guard against the mischief that unhappily but too soon occurred, from its falling into the hands of unworthy and incompetent persons. The legislature foresaw that if ever such men took part in the administration of these laws, they would either pervert them to their own corrupt purposes, or, through remissness and ignorance, suffer them to fall into desuetude. It, therefore, by several successive statutes, expressly ordained that the justices of peace should be ' bons gentz et loialx,+ moult suffisant et vailantz,' &c.; and according to the act abovementioned, one lord was to be assigned for the safeguard of the peace in every county, and with him three or four of the most worthy of the country, together with others learned in the laws. Holinshed, in his Chronicles, thus speaks of the administration of justice in the interior of the country :• there are diverse also of the best learned in the law, beside sundrie gentlemen (where the number of lawiers will not suffice) appointed by special commission of the prince, to look into the good government of his subjects in the counties where they dwell; and of these the least skilful in the law are of the peace; the other, of the quorum, otherwise called oier et determiner; so that they have authority only to hear, the others to hear and determine such matters as are brought into their presence.'I

The ministers and subordinate officers of the justices were the high and petty constables. The first were appointed by the justices in session, and their duty was threefold-conservation of the peace, serving precepts and warrants, and attendance for the execution of statutes. Their authority extended over the whole hundred. The petty constables were chosen by the jury of the leet; their office was to preserve the peace, to search for and arrest felons, to make hue and cry, and if by common voice or

* Fitzherbert-L'Office des Viconts.
† Absurdly translated in our statute books, lawful : it means faithful, just.
| Hol, Cbron., vol. i., p. 156.

same

fame any man were suspected, to arrest him and bring him before a justice of the peace, though there be no other accusation or declaration. The exercise of this power was restricted to the town, parish, or borough, for which they were elected. They were men (Lord Bacon observes) not 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 residents in the same, save that they be not aged or sickly, but of able bodies in respect of their 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 of freeholders, and substantialest sort of yeomen, next to the degree of gentlemen, but should not be encumbered with any other office, as mayor of a town, undersheriff, &c., &c.' Of such materials was the fabric of our police originally composed—a fabric, which, whether in the vigour of its laws or the respectability of their executors, might put to shame the best-constructed system of modern Europe.

Unfortunately, it remained not long in this flourishing and efficient state. The increasing attraction of the capital drew many of the gentry from their proper seats; whilst others, finding the charge of justice of peace daily growing more burdensome from the stacks of statutes' that were beginning to be heaped upon them, were loth to undertake the office, and left its duties to be performed by men of inferior rank and ability. The mischievous result of this secession on the part of the gentry was, that the commissions of the peace soon teemed with men of low ambition, through whose ignorance, pusillanimity, and corruption the whole of that admirable structure of domestic polity, under the protection of which the people might have continued to repose in safety, rapidly declined and fell into decay. Such was the deplorable state of the police of England as early even as the close of the sixteenth century, that, in 1586, we find a magistrate of the county of Somerset thinking it his bounden duty' to submit its insufficiency to the grave consideration of the lord treasurer. Any one who reads this letter might suppose it to be a representation, and not a very unfaithful one, of what is passing at the present hour. It runs thus :

· Right Honourable, my very good Lord, -Having long observed the rapines and thefts committed within this county, where I serve, and finding they multiply daily, to the impoverishing of the poor husbandman, that beareth the greatest burden of all services, and knowing your most honourable care of the preservation of the peace of this land, do think it my bounden duty to present unto your honourable and grave consideration these kalendars enclosed of the prisoners executed and delivered this year past, in this county of Somerset,

wherein

« 上一頁繼續 »