It is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. I must therefore refer myself at present to such subsequent part of these Commentaries, as will in their turns comprise almost every object of the justice's jurisdiction: and in the mean time recommend to the student the perusal of Mr. Lambard's eirenarcha, and Dr. Burn's justice of the peace; wherein he will find every thing relative to this subject, both in ancient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method.

I shall next consider some officers of lower rank than those [355] which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom.

IV. Fourthly, then, of the constable. The word constable is frequently said to be derived from the Saxon koning-szapel, and to signify the support of the king. But as we borrowed the name as well as the office of constable from the French, I am rather inclined to deduce it, with sir Henry Spelman and Dr. Cowel, from that language: wherein it is plainly derived from the Latin comes stabuli, an officer well known in the empire: so called because, like the great constable of France, as well as the lord high constable of England, he was to regulate all matters of chivalry, tilts, tournaments, and feats of arms, which were performed on horseback. This great office of lord high constable hath been disused in England, except only upon great and solemn occasions, as the king's coronation and the like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII.; as in France it was suppressed about a century after by an edict of Louis XIII.: (x) but from his office, says Lambard, (y) this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. For the statute of Winchester, (2) which first

x Philip's life of Pole, ii. 111.

y of constables, 5.

z 13 Edw. L. c. 6.

3 Moore, 294. 16 East, 13. 7 T. R. 633. n. a.; though if the commitment theron was illegal trespass lies. Wicks v. Clutterbuck. M. T. 1824. J. B. Moore's Rep. C. P.; and if he corruptly and maliciously without due ground, convict a party, Rex v. Price Caldecot, 305, or refuse a licence, he is punishable by information or indictment, though not by action. 1 Burr. 556. 2 Burr. 653. 3 Burr. 1317. 1716. Bac. Ab. Justices of the Peace, F. 1 Chitty's Crim. L. 873 to 877. So an information will be granted for improperly granting an ale licence. See 1 T. R. 692. 1 Burn. J. 24 ed. 48. tit. Alehouses. 4. T. R. 451. In some cases a mere improper interference appears to be thus punishable: thus, where two sets of magistrates have a concurrent jurisdiction, and one set appoint a meeting to license alehouses, their jurisdiction attaches so as to exclude the others, though they may all meet together on the first day; and if, after such appointment, two other set meet, and grant licences on a subsequent day, the proceeding is illegal, and subjects them to an indictment. 4 Term Rep. 451.

Where a criminal information is applied for against a magistrate, the question for the court is not whether the act done be found on investigation to be strictly right or not, but whether it proceeded from an unjust, oppressive, or corrupt motive, (amongst which fear and favour are generally included), or from mistake or error only. In the latter case, the court will not grant the rule. 3 B. & A. 432, and see 1 Burr. 556. 2 Burr. 1162. 3 Burr. 1317. 1716. 1 Wils. 7. 1 Term Rep. 692.

In general the court will not grant a criminal information, unless an application for it is made within the second term after the offence committed, there being no intervening assizes, and notice of the application be previously given to the justice. 13 East, 270. And the court will not grant a rule nisi for a criminal information against a magistrate, so late in the second term after the imputed offence, as to preclude him from the opportunity of shewing cause against it in the same term. 13 East. 322. And in a case where the facts tending to criminate a magistrate, took place twelve months before the application to the court, they refused to grant a criminal information, though the prosecutor, in order to excuse the delay, stated, that the facts had not come to his knowledge till very shortly previous to the application. 5 B. & A. 612.

In an action against a magistrate for a malicious conviction, it is not sufficient for the plaintiff to shew that he was innocent of the offence of which he was convicted, but he must also prove, from what passed before the magistrate, that there was a want of probable cause for the magistrate to convict. I Marsh. 220. Chitty.

appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to arms and armour.

Constables are of two sorts, high constables, and petty constables. The former were first ordained by the statute of Winchester, as before mentioned; are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quartersessions; and are removable by the same authority that appoints them. (a) The petty constables are inferior officers in every town and parish, subor dinate to the high constable of the hundred, first instituted about the reign

of (b) Edw. III. These petty constables have two offices united in [356] them: the one ancient, the other modern. Their ancient office is

that of head-borough, tithing-man, or borsholder; of whom we formerly spoke, (c) and who are as ancient as the time of king Alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of Edward II., in order to assist the high constable. (d) And in general the ancient head-boroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. They are all chosen by the jury at the court leet; or if no court leet be held, are appointed by two justices of the peace. (e) The general duty of all constables, both high and petty, as well as of the other officers, is to keep the king's peace in their several districts; b Spelm. Gloss. 148.

a Salk. 150.

d Lamb. 9.

e Stat. 14 & 15 Car. II. c. 12.

c page 115.

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(34) As to constables in general, see Hawk. b. 2. c. 10., Burn J., Williams J., and Dick. J., tit. Constables; and as to his power, duties, and protection, 1 Chitty's Crim. L. 20 to 24. 68. (35) It should seem that a constable cannot, in case of an affray, arrest without a warrant from magistrate, unless an actual breach of the peace be committed in his presence, or in other words, flagrante delicto. He cannot arrest of his own authority, after the affray is over. 2 Camp. 367. 371. 2 Lord Ray. 1296. 1 Russell, book 3. c. 3. on manslaughter, to sec. 4. and see 2 Bar. & Cres. 699. and see further as to the powers and duties of constables acting without warrants, or otherwise, post 4 vol. 292. 1 Chit. Crim. Law, 20 to 24.

A constable executing his warrant out of his district was formerly a trespasser, 1 H. Bla. 15. and in a late case it was held, that where a warrant was directed "to A. B. to constables of W. and to all other his majesty's officers," the constables of W. (their names not being inserted in the warrant) could not execute it out of that district. 1 Bar. & C. 288. But now, by 5 Geo. IV. c. 18. constables may execute warrants out of their precincts, provided it be within the jurisdiction of the justice granting or backing the same.

It is the duty of a constable to prevent a highway within his district for non-repair, and he is entitled to the costs of the prosecution. 3 M. & S. 465.

By 33 Geo. III. c. 55. any constable or parish officer may, upon complaint upon oath before two justices, be convicted of neglect of duty, or disobedience of any lawful warrant or order, and may be fined any sum not exceeding 40s. but he may appeal to the sessions. And by 5 Geo. IV. c. 83. s. 11. constables or peace officers neglecting their duty, are liable to the penalty of 51.

With respect to the indemnity and protection extended to constables in their office, the 7 Ja. I. c. 5. (made perpetual by 21 Ja. I. c. 12.) permits them to plead the general issue only in an action brought against them for any thing done concerning their office, and gives double costs, if a verdict be given for them; and sec. 5. requires such action to be brought in the county where the fact was committed.

Formerly the constable was bound to take notice of the jurisdiction of the justice, insomuch that if the justice issued a warrant in any matter wherein he had no jurisdiction, the constable was punishable for the execution of it. But now, by 24 Geo. II. c. 44. s. 6. no action shall be brought against any constable, &c, acting in obedience to a justice's warrant, until demand in writing signed by the party or his agent, &c. intending to bring such action, of the perusal and copy of such warrant, and the same hath been refused or neglected within six days after such demand. And in case the constable complies with the demand, by shewing the warrant to, and permitting a copy to be taken, then, on action brought, on production and proof of the warrant, a verdict shall be given for the constable, &c. notwithstanding a defect in the justice's jurisdiction; and the same protection is given where the constable is sued jointly with the justice. And by sect. 8. no action shall be brought against any constable acting as aforesaid, but within six months after the act comuted.

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and to that purpose they are armed with very large powers, of arresting and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put into these offices, it is perhaps very well that they are generally kept in ignorance. One of their principal duties, arising from the statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward, guard, or custodia, is chiefly applied to the day-time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the discretion of the justices of the peace and the constable (f) the hundred being however answerable for all robberies committed therein, by day-light, for having kept negligent guard. Watch is properly applicable to the night only (being called among our Teutonic ancestors wacht or wacta), (g) and it begins at the time when ward ends, and ends when that begins: for, by the statute of Win- [357] chester, in walled towns the gates shall be closed from sun-setting to sun-rising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and nightwalkers, and make them give an account of themselves. The constable may appoint watchmen, at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. But, with regard to the infinite number of other minute duties, that are laid upon constables by a diversity of statutes, I must again refer to Mr. Lambard and Dr. Burn; in whose compilations may be also seen, what powers and duties belong to the constable or tithing-man indifferently, and what to the constable only for the constable may do whatever the tithing-man may; but it does not hold è converso, the tithing-man not having an equal power with the constable.

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V. We are next to consider the surveyors of the highways. Every parish is bound of common right to keep the high-roads, that go through it, in good and sufficient repair; unless, by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our ancient laws, whatever other immunities he might enjoy this being part of the trinoda necessitas to which

f Dalt. Just. c. 104.

g Excubias et explorationes quas wactas vocant. Capitular. Hludov. Pii. cap. 1. A. D. 815.

The intent of these provisions was to prevent the constable, or other officer, when acting in obedience to his warrant, from being answerable on account of any defect of jurisdiction in the justice. 3 Burr. 1742. 1 Bla. Rep. 555. S. C. 3 Esp. 226. 2 M. & S. 259. and for cases, &c. on this act, see Tidd. 8 ed. 31, 32. 1'Chit. Crim. Law, 68, 9.

By 1 & 2 Geo. IV. c. 88. a severe punishment is to be inflicted on persons assaulting constables to prevent the apprehension or detainer of persons charged with felony.

The statutes 27 Geo. II. c. 20. s. 2. 3 Jac. I. c. 10. s. 1. 27 Geo. II. c. 3. s. 1. 4. 41 Geo. III. U. K. c. 78. s. 1, 2. 1 Geo. IV. c. 37. s. 3. and 18 Geo. III. c. 19. s. 4. relate to the expenses of the constable in his office, and see cases 2 B. & A. 522. 5 B. & A. 180. 755. on the 18 Ĝeo. III. c. 19. s 4.

By 12 Geo. II. c. 29. s. 8. and 55 Geo. III. c. 51. s. 12. bigh constables are to account at seg. Chitty.

sions.

(36) Every one who reflects upon the subject, must surely dissent from the proposition in the text; hich contains, by implication, a censure both upon the legislature and the executive. It is manifestly absurd to presume, that a man who is ignorant of the extent of his authority is less likely to abuse it than he who clearly understands its due limit. Admitting that the ignorant of. ficer from fear, or from a more laudable motive, restricts himself within bounds much more contracted than the law has prescribed, it is clear he must sometimes fail in the discharge of his duty, to the great detriment of public justice. How much better would it be that the duty of these officers should be accurately defined, and that they should be chosen from among men of intelligence, who would have the good sense to know the extent of their power, and the good feeling not to exceed it. Chitty.

every man's estate was subject; viz. expeditio contra hostem, arcium constructio, et pontium reparatio. For though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the Roman law, ad instructiones reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis meritis, cessare oportet. (h) And indeed now, for the most part, the care of the roads only seems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by statute 22 Hen. VIII. c. 5. If the parish neglected

these repairs, they might formerly, as they may still, be indicted [358] for such their neglect; but it was not then incumbent on any pa

ticular officer to call the parish together, and set them upon this work; for which reason, by the statute 2 & 3 Ph. & M. c. S. surveyors of the highways were ordered to be chosen in every parish.(i)

These surveyors were originally, according to the statute of Philip and Mary, to be appointed by the constable and churchwardens of the parish; but now they are constituted by two neighbouring justices, out of such inhabitants or others as are described in statute 13 Geo. III. c. 78. and may have salaries allotted them for their trouble.

Their office and duty consists in putting in execution a variety of laws for the repairs of the public highways; that is, of ways leading from one town to another: all which are now reduced into one act by statute 13 Geo. III. c. 78. 37 which enacts, 1. That they may remove all annoyances in the highways, or give notice to the owner to remove them; who is liable to penalties on non-compliance. 2. They are to call together all the inhabitants and occupiers of lands, tenements, and hereditaments within the parish, six days in every year, to labour in fetching materials, or repairing the highways: all persons keeping draughts (of three horses, &c.) or occupying lands, being obliged to send a team for every draught, and for every 501. a year, which they keep or occupy; persons keeping less than a draught, or occupying less than 50l. a year, to contribute in a less proportion and all other persons chargeable, between the ages of eighteen and sixty-five, to work or find a labourer. But they may compound with the surveyors, at certain easy rates established by the act. And every cartway leading to any market-town must be made twenty feet wide at the least, if the fences will permit; and may be increased by two justices, at the expense of the parish, to the breadth of thirty feet. 3. The surveyors may lay out their own money in purchasing materials for repairs, in erecting

guide-posts, and making drains, and shall be reimbursed by a rate [359] to be allowed at a special session. 8 4. In case the persona! labour

of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate on the parish, in aid of the personal duty, not exceeding, in any one year, together with the other highway rates, the sum of 9d. in the pound; for the due application of which they are to account upon oath. As for turnpikes, which are now pretty generally in

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h C. 11. 74. 4.

i This office, Mr. Dalton (just. cap. 50.) says, exactly answers that of the curatores viarum of the Romans; but it should seem that theirs was an office of rather more dignity and authority than ours: not only from comparing the method of making and amending the Roman ways with those of country pa rishes; but also because one Thermus, who was the curator of the Flaminian way, was candidate for the consulship with Julius Cæsar. (Cic. ad Attic. l. 1. ep. 1.)

(37) See further regulations, 54 Geo. III. c. 109. sec. 12. 55 Geo. III. c. 47. id. ch. 68. the last of which enables magistrates at a special sessions to stop up unnecessary ways. 2 Bar. & Ald. 228.

(38) But the surveyor must not have any beneficial interest in the contract, under 101. penalty. See 13 Geo. III. c. 78.

(39) Besides this, the surveyors shall upon oath inform two justices of all highways, bridges,

troduced in aid of such rates, and the law relating to them, these depend principally on the particular powers granted in the several road acts, and upon some general provisions, which are extended to all turnpike roads in the kingdom, by statute 13 Geo. III. c. 84. amended by many subsequent acts. (k)

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VI. I proceed therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty.

The poor of England, till the time of Hen. VIII., subsisted entirely upon private benevolence, and the charity of well-disposed christians. 42 For though it appears by the mirrour, (1) that by the common law the poor were to be "sustained by parsons, rectors of the church, and the parishioners, "so that none of them die for default of sustenance;" and though by the statutes 12 Ric. II. c. 7. and 19 Hen. VII. c. 12. the poor are directed to abide in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seem to be the first rudiments of parish settlements), yet till the statute 27 Hen. VIII. c. 25. I find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbours would afford them. The monasteries were, in particular, their principal resource; and among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the [360] religious houses. But, upon the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of king Henry the Eighth and his children, for providing for the poor and impotent: which, the preambles to some of them recite, had of late years greatly increased. These poor were principally of two sorts; sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise an honest employment. To provide in some measure for both of these, in and about the metropolis, Edward the Sixth founded three royal hospitals; Christ's and St. Thomas's,

k Stat. 14 Geo. III. c. 14. 36, 57. 82. 16 Geo. III. c. 39. 18 Geo. Ill. c. 82.

1 c. 1. § 3.

&c. repairable by tenure, which are out of repair; and if they are not repaired, on notice to the persons chargeable, they shall be presented at the sessions. 13 Geo. III. c. 78. sec. 23. and see 1 Bla. Rep. 602.

(40) The general acts now in force relating to turnpike roads, are the 3 Geo. IV. c. 126. and the 4 Geo. IV. c. 95. which amends the former. The 3 Geo. IV. c. 126. repeals all the former acts in force relating to turnpike roads.

The surveyors of turnpike roads are appointed by the trustees of such roads; and the 24. 78. 93. 99. 104. and 116th sections of the 3 Geo. IV. c. 126. and the 47. 75. and 80th sections in the 4 Geo. IV. c. 95. point out their respective duties. See the law on this subject, Burn's Justice, tit. Highways, and Bateman on Turnpike Acts. Chitty.

(41) As to overseers, and the poor laws in general, see Burn J. tit. Poor, Bott's Poor Laws, by Const, and Nolan's excellent Treatise, containing all the law upon the subject.

(42) No poor laws exist either in Scotland or Ireland, 2 Ld. Mount. 118. nor in any of the continental nations or the United States of America. A few years ago, when the rates pressed heavily upon the people of this country, and were daily increasing in magnitude, the policy of these laws was deeply investigated, and finally denounced as baneful to that spirit of independence which it is desirable to cherish among the lower orders, and inimical to the general prosperity. The doctrines promulgated in Malthus's Essays on Population, met with a favourable reception among the practical politicians of the day; and his suggestions for the gradual repeal of the poor laws, might have obtained the sanction of the legislature, had not returning prosperity alleviated the evil of wide-spreading pauperism, which it was alleged those laws had assisted to produce. The practical effect of these doctrines may be to prevent the introduction of the poor laws into either Scotland or Ireland, although the latter unfortunately requires the adoption of some system to alleviate the distresses of the lower classes of society. Chitty

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