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the court leet (f). When that custom does not prevail, he is more usually appointed by the steward, but sometimes by the lord.
Constables.-The better opinion is that both high and petit constables were recognised by the common law, the former being officers of hundreds, and the latter officers of tithings (g); and they appear in ancient times to have been chosen at the court leet, or when no leet existed, at the tourn (h).
It has, however, been doubted whether the high constable is an officer of which the common law took notice (i). Lord Coke supposed that a petit constable was an officer at common law, but that the constable of a hundred was created by the statute of Winchester (k); yet that statute has on the contrary been thought to furnish evidence of the previous existence of such officers (1).
There is a singular paucity of authorities as to the power of the court leet to elect a constable for a vill or hamlet, where no such office previously existed, or to elect a second constable or tithing-man, where there had previously been one constable only; yet it is generally supposed that the court leet, in either the one case or the other, possesses a discretionary power; for as at common law the constables were subordinate officers to the conservators of the peace, so are they now the proper officers of the justices (m). And in James v. Green (n) Lord Kenyon said, " It is no new thing, if we may have
(ƒ) Ante, pp. 700, 701.
(g) Crompt. 6 b; 2 Hawk. P. C. c. 8, s. 6; ib. c. 10, s. 33; The King v. King, 3 Keb. 231, cites The King v. Samois, Hil. 16 & 17 Jac.; Lamb. Office of Constable, 16; 1 Mod. 13; The Queen v. Wyatt, 2 Lord Raym. 1193; 1 Salk. 175, 381; Fortesc. 127; 1 Bac. Abr. 683.
(h) 4 Inst. 265; The King v Bernard, 2 Salk. 502; S. C. Comb. 416; Rex v. Goudge, 2 Str. 1213; Rex v. Hewson, 12 Mod. 180; Rex v. Adlard, 4 Barn. & Cress. 779; see also The Queen v. Watkinson, 10 Adol. & Ell. 290, in which case the Court of Queen's Bench adjudged, that the election of a chief constable for a wapentake, in the West Riding of Yorkshire, at a special petty sessions, was void, and that he was well appointed at a subsequent court of quarter sessions; (vide 2 & 3 Vict. c. 93, and 3 & 4 Vict. c. 88, for the establishment of county and
district constables by the authority of justices of the peace).
(i) Abbot v. Moore, 1 Mod. 13.
(k) 4 Inst. 267. And see two useful little works, the one called "The Exact Constable," published in 1680, and the other called "The Complete Constable," published in 1692; Lamb. Office of Constable, 5; 3 Keb. 231; Cro. Eliz. 375, 376, in Sharrock v. Hannemer; 2 Lord Raym. 1195; per Twisden, 1 Mod. 13; and see 10 Adol. & Ell. 292, in The Queen v. Watkinson, sup.
(1) 2 Hawk. P. C. c. 10, s. 33; James v. Green, 6 T. R. 232. Sed qu. and see extract from this stat. (13 Ed. 1, st. 2, c. 6) in the Appendix.
(m) 1 Salk. 381; 1 Lord Raym. 70; 1 Bulst. 174; Dalt. Just. ch. 28, p. 56; Lamb. 190.
(n) 6 T. R. 232.
recourse to analogous cases, at this day to appoint officers in places where none were in fact appointed before, if by law such an appointment may be made. In the case of vills, the court have in modern times frequently granted writs of mandamus to appoint overseers of the poor for the first time, as soon as the exigencies of the place required it."
But in Abbott v. Moore (o) Moreton said, "The Book of Villarum in the Exchequer sets out all the vills, and there cannot be a constablewick created at this day."
It has been the subject of great controversy whether the election of constable belongs of common right to the jury of the court leet, or to the steward (p); but it clearly appears that the right of election is in the jury (q).
A refusal to serve the office by a person not present at the time he is elected may be punished by amercement (r), but his act of contempt should be presented at the succeeding court (s).
When a constable or tithing-man chosen at the leet is present and refuses to be sworn, the steward may set a fine upon him (t); and when absent, or if the steward refuse to administer the oath to him (u), he is to go before a justice of the peace to be sworn (x). And a refusal to accept the office of constable is an indictable offence (y).
Should the leet neglect or refuse to choose a constable, the justices in sessions may appoint one (z), but only until the lord shall hold a court (a); and the sessions cannot discharge a constable appointed
(0) 1 Mod. 13; vide also, per Holt, 12 Mod. 181, in Rex v. Hewson; yet see Village of Chorley case, 1 Salk. 176, in which Holt said "a village and a constable are correlatives, but a hamlet has no constable." Vide also 12 Mod. 180, per Keiling, C. J., cited ib. 181.
(p) The King v. Bernard, ubi sup. (9) Fletcher v. Ingram, 1 Salk. 175; S. C. 1 Lord Raym. 70; S. C. 5 Mod. 127; The King v Stevens, T. Jones, 212. It should seem to be a settled principle that a corporation cannot elect a constable, except by special custom; The King v. Bernard, sup.; S. C. Skin. 669; The King v. Routledge, 2 Dougl. 536.
(r) Ante, p. 706, n. (d).
(s) Fletcher v. Ingram, sup.
(t) Ante, p. 705; and see Doe & Ball, Lex Man. App. 85, pl. 24; The King v. Harpur, 5 Mod. 96; Griesley's case, Sav. 93; 8 Co. 38.
(u) But the steward is compellable by mandamus to administer the oath to him; Comb. 285.
(x) Rex v. Dr. Franchard, 2 Str. 1149; Rex v. Stevens, ubi sup.; Prigg's case, Aleyn, 78; Fletcher v. Ingram, ubi sup.; but now see 5 & 6 Vict. c. 109, s. 21, in the Appendix," for the Appointment and Payment of Parish Constables," abolishing the power of courts leet and the torn to appoint petty constables, head-boroughs, borsholders, tithingmen, or peace officers of the like description, for any parish, &c., within the limits of the act, except for the performance of duties unconnected with the preservation of the peace or with the execution of that act.
(y) Post, p. 718, (" Tithing-man.") (z) Abbot v. Moore, 1 Mod. 13; 1 Bulst. 174.
(a) Rex v. Davis & Gosling, 2 Stra. 1050; and see Rex v. Goudge, ib. 1213;
at the leet, except under the provisions of the act of 13 and 14 Car. 2, c. 12, which directs that in case any constable shall die, or go out of the parish, any two justices may make and swear a new one, until the lord of the manor shall hold a court leet; and that if any officer shall continue above a year in his office, the justices in their quarter sessions may discharge him, and put another in his place, until the lord of the manor shall hold a court (b).
If a person be elected constable in a court leet by spleen, although the sessions cannot interfere, yet the Court of King's Bench will discharge such person, and the constable previously appointed must act until another be duly chosen and sworn (c).
Though it is generally considered that a person is not bound to attend two leets (d), yet when a leet is held for a manor within a hundred, it has been held that a tenant of the manor leet is not excused from serving the office of constable for the hundred; but that a custom for the exemption might be good (e).
Rex v. Stevens, T. Jones, 212; Village of Chorley case, 1 Salk. 176; S. C. Holt, 153; Rex v. Hewson, 12 Mod. 180. So where there is no leet, Lord Wentworth's case, 1 Bulst. 174; Terry & Furnese, 21 Car. 2, B. R.; Scroggs, 85. The justices should issue their summons, signifying to the party that he has been elected constable, and requiring him to take the oath, &c.; Rex v. Halford, Comb. 328, 329; and see Prigg's case, sup.
(b) 1 Bulst. 174; Rex v. Davis & Gosling, sup.; Limington case, 2 Stra. 798; Rex v. Burden & Wakeford, Barnard. B. R 51; Herson's case, 5 Vin. Abr. 429, pl. 3; 6 Vin. 587, pl. 5. See extract from the above mentioned stat. in the Appendix.
(c) The King v. Wright, 1 Keb. 439; Anon. 12 Mod, 256.
A person elected constable who is not idoneus, (that is, not possessing honesty, knowledge and ability,) may be discharged by the leet, or by the Court of B. R.; Griesley's case, 8 Co. 41 b, 42 a; 1 Bulst. 174.
(d) Ante, p. 686; and see Cro. Jac. 584; Rex v. Routledge, 2 Dougl. 537; Scroggs, 2; Hughes's Abr. tit. Avoury, p. 170. But if a private leet has only a
partial jurisdiction, the resiants, as to all matters not cognizable there, must attend the superior leet, if any exist, otherwise the sheriff's tourn; 1 Roll. Abr. 542; Scroggs, 3.
It may be a good custom for the chief pledges of the inferior leet, and a limited number of resiants, to attend the grand leet; Cro. Jac. 584; Scroggs, 3. Shepp. (p. 7), says, "If a man dwell within the precinct of another leet, and have lands only in my leet, I may not compel him to do service to my leet; and yet if he dwell sometimes in one place and sometimes in another, and one of those places is within my leet, where he dwells at the time my leet is held, in this case and at this time he must do service at my leet, for he may do suit at both places at several times." And see the next note.
(e) Rex v. King, 3 Keb. 197, 230; Keene's case, 1 Freem. 348; The Queen v. Jennings, 11 Mod. 215; The King v. Genge, Cowp. 13.
In the above case of Rex v. King, Hale, C. J., said, "there was this difference between a leet in ancient borough, who in eyre appeared by four, and was always looked on as distinct from the hundred, and leet in upland towns is far different,
The office of a constable would appear to be a personal and not a pecuniary service, and therefore a person is not liable to serve the office unless he be resiant in the parish (f); this, indeed, seems to be deducible from the custom of appointing constables at the court leet, and that practice in ancient times will help to show the description of persons liable to serve the office.
In the above case of Rex v. Adlard, Abbott, C. J., said, " it was argued, however, that a non-resident occupier may be appointed to this office, because it may be executed by deputy. I do not know that the appointee can substitute a deputy of his own authority alone, without the sanction or consent of some other authority; but supposing that he can, we think it by no means follows that he is therefore compellable to take upon him an office in its nature requiring personal services, especially where no necessity for his appointment is shown."
A barrister who regularly attends the courts at Westminster, and a practising attorney, are exempt from serving the office of constable; but a physician whose profession is private, and exercisable at his residence, has not a claim to a similar exemption (g).
It has, however, been said, that if a gentleman of quality be chosen constable of a town, which has sufficient persons besides to execute this office, and there be no special custom concerning it, perhaps he may be relieved by the Court of King's Bench (h).
From the nature of the office it seems inconsistent that it should be imposed upon women (i); and in Prouse's case (k), the Court of B. R.
and regularly he that owes suit to the leet owes none to the hundred, but by custom may do so." See as to the authority of that case, Cowp. 15.
"The privilege of having special customs derogating from the common law is in general denied to inferior places, such as upland towns, not being either cities or boroughs, and hamlets; though it is allowed to larger or more important districts, such as counties, manors, hundreds, honors, cities and boroughs." Co. Lit. 110 b. n. (2); and see 43 Ed. 3, 32 a. (ƒ) Rex v. Adlard, 4 Barn. & Cress. 779. Contrà as to the office of overseer; Rex v. Hall, 1 Barn. & Cress. 123; Rex v. Poynder, ib. 178.
(g) Pordage's case, 2 Keb. 578; S. C. 1 Mod. 22; S. C. 1 Sid. 431; vide Herson's case, 5 Vin. 429, 431, 6 Vin. 587,
where a person had been elected by the leet, and discharged by the sessions, because he was a master of arts; and the Court of B. R. granted a writ to compel him to be sworn at the leet.
A certificate under 10 & 11 Will. 3, c. 23, discharging persons from serving parish offices, is no exemption from being sworn constable at a court leet; Birmingham case, (Rex v. Darbyshire,) 2 Burr.
(h) 2 Hawk. P. C. c. 10; 1 Bac. Abr. 686; Rex v. Wright, ubi sup.; but see Pordage's case, sup.
(i) Women were originally compellable to attend the tourn; but women, as well as men, who had entered into religion, were excused by the stat. of Marlborough; ante, pp. 685, 695, 696.
(k) Cro. Car. 389.
held a custom that every one should be a constable or tithing-man, according to their several houses, to be bad," for then a woman being an inhabitant in one of the said houses, it may come to her course to be constable, which the law will not permit.”—But according to Vane's case (1), a custom in a vill where there are several houses, that every one shall be constable in turn, is good; for though it shall happen to the turn of a widow, she may hire one to serve, and then he who so serves is sworn, and he is the constable and not a deputy."
And in The King v. Stubbs (m), where a woman had been appointed an overseer, Ashhurst J. said, "the only question is, whether there be any thing in the nature of the office that should make a woman incompetent, and we think there is not. There are many instances where, in offices of a higher nature, they are held not to be disqualified, as in the case of the office of high-chamberlain, high constable, and marshal, and that of a common constable."
Tithing-man (Thirdborough, &c.)—The term tithing-man is more frequently used as synonymous with constable (n), though it often imports a subordinate or assistant constable; and the constable chosen for a manor sometimes has jurisdiction over distinct hamlets or vills, for which a particular constable or tithing-man is appointed (o).
We have just seen that a person elected constable or tithingman, who refuses to be sworn, may be fined by the steward of the court leet, if the person so chosen be present, and that he may be amerced, if absent: it is also a settled principle that he may in either case be indicted at the assizes or quarter sessions (p). In all indictments for such offence it is proper to set forth the manner of every such election, before whom the court leet was holden, the notice and refusal, &c.; for it has been adjudged insufficient to say, in general terms, that the party was duly elected, or that he had notice thereof, without setting forth the special circumstances (q).
But the case of Rex v. Brain (r) is an authority, that a refusal to
(2) 1 Sid. 355; Hil. 19 & 20 Car. 2; 5 Vin. 432, pl. 5; and see Comb. 243. (m) 2 T. R. 406.
(n) So also the term headborough, ante, p. 675, n. (q).
(0) See Birmingham case, (Rex v. Darbyshire,) ubi sup.
(p) Ib.; 1 Ca. & Opin. 237; Prigg's case, Aleyn, 78; 12 Mod. 180; and see Rex v. Lone, 2 Stra. 920, which was an
indictment against a person who had been elected constable at a wardmote court for the city of London for refusing to accept the office; and see Rex v. Brain, 3 Barn. & Adolp. 614.
(9) Prigg's case, ubi sup.; 1 Burn's J. 496; Rex v. Fuller, 1 Bos. & Pul. 182. (r) Suprà. See in Stark. Crim. Pleading, 2nd ed., p. 619, a precedent of an indictmeut against a person for not taking