§ 3.

REVIEW

DINARY.

given by the ftatute have been exceeded, as happened in the cafe of commiffioners, under the 19 Geo. III, adjudging a EXTRAOR man beyond the age to the army; and in the cafe of the commiffioners, appointed by ftatute 35 Geo. III, c. 9, inlifting an apprentice as a volunteer for the navy b.

25th June 1779, Patullo against

fir William Maxwell. Fac. Coll.

b Jan. 19, 1796, Cunningham and Simpson against fir George Home. Fac. Coll.

CHAP. VIII,

OF THE OF

FICE IN

Of Conftables.

HE conftable was an officer of great power and high rank in feudal times; and appears from GENERAL. the laws of Malcom II, which mention his fees, to have been early known in Scotland. The 20 Geo. II, abolished the heritable constabularies, excepting that of high constable, which is hereditary in the family of Errol,

THE lord high conftable attended on great occafions, as the king's coronation, and the like; regulated all matters of chivalry; and befides, jointly with the marifchal, had supreme itinerant jurisdiction in all crimes committed within a certain distance from the court.

BUT our business is to explain the office of thofe conftables who, while they are themselves confervators of the

a The word, according to Lam. bard, is derived from the Saxon koning-flapel, the strength of the kingdom; according to Spellman, Cowel, Blackstone, (through the medium of

the French), from the Latin comes ftabuli, an officer well in the empire; fo called from his regulating tourna ments, and other feats of arms, which were performed on horseback.

GENERAL.

peace, are employed for carrying into effect various acts of OF THE Or. parliament, and are the proper officers for executing the FICE IN warrants, decrees, and orders of juftices of peace. This lower conftablefhip, fays Lambarda," was at firft drawn " and fetched from the other; and is, as it were, a very "finger of that hand."

BUT the constable, though fallen from his ancient grandeur, yet, having duties fo various, difficult, and important, is ftill an officer of great trust and refpectability, whofe deficiency in knowledge, or decifion, or activity, not to fay fidelity, must be attended with much detriment to the community. Conftables have important duties to perform in the execution of the laws relative to moft of the branches of police; those relative to religion and morality, trade and manufactures, and almost every other department of law of which this work treats. The explanation of those duties must be found under their respective chapters: at prefent it will be neceffary only to notice fome things relative to the of fice in general,

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MANNEX

OF CHOOS

II. CONSTABLES are appointed half yearly by the quarterfeffions of the refpective counties. The manner is fo particularly defcribed by the general statutes, as to require little ING CONfarther explanation. The juftices are directed to choofe STABLES. two at leaft in every parish, or more, according to their difcretion, having confideration of its extent. In great towns, likewife, not being cities or free boroughs, they are to appoint a fufficient number of conftables; but in all royal boroughs and free cities, magiftrates are to choose them, and they are to endure and to be changed from fix to fix months. And whoever fhall refufe to accept this charge, or to give Fine for not his oath for the faithful execution of the office, may be im- accepting. prifoned and fined at the difcretion of the juftices of peace oath.

* Of Conftables, V.

See Appendix I, p. lxiv.

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THEIR AP

POINT

MENT.

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TORS OF

at their next fitting. The conftables, upon entering to their office, take an oath de fideli ".

III. CONSTABLES, therefore, act either in virtue of their CONSERVA- own powers as confervators of the peace, or as officers of THE PEACE the juftices; their duties in both capacities are very distinctly ftated by the general ftatute. Constables are not mentioned in the ftatute of queen Anne, 5, c. 6. But there is no reafon to doubt, as lord Gardenftone remarks, that it was intended to enlarge their powers as well as thofe of justices c.

Without a

warrant.

Affrays.

reft those

As confervators of the peace, and without any warrant, it is the duty of every conftable to interpofe in cafe of any breach of the peace committed in his presence; and to arrest any man who, in his prefence, shall make an affray or affault upon another, or fhall threaten to kill, beat, or hurt, another, or fhall be " in a fury, ready to break the peace " But where perfons barely contend with hot words, without any threats of perfonal hurt, it is faid he can do no more than command them, under pain of imprisonment, to avoid fighting.

THE conftable thus is intrufted with a power over all acCan he ar- tual breaches of the peace. He may fupprefs even those acts contending of violence by which he himself is a sufferer. If an affault merely with be made upon the constable, he may not only defend him

hot words.

self, but may also imprison the offender in the fame manner as if he were no way a party f.

AND if an affray or tumult be in a house, the conftable

a See the form in Appendix I- p. 86. Burn, v. Arrest. Hawk. i, P. 137.

P. Ixiv.

b Appendix I, No. VIII, part ii.
c MS. voce Affray.

d Dalton, c. i, 2. Hales, Hift.

e Hawk. ibid. Burn, voce Affray,

p. 19.

f Hawk. and Burn, ibid.

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may break open the doors to preferve the peace, or even CONSERVA to stop any disorderly drinking or noise in a house at an un- TORS OF seasonable time of night, efpecially in inns, taverns, or ale houses.

THE PEACE

By the law of Scotland,

and in terms of 1617,

BURN adds, after Hawkins, that if affrayers fly to a house, In purfuit and the conftable follow with fresh fuit, he may break open of affrayers the doors to take them. Mr. Hume obferves, there is no authority in our law to warrant a constable to break open doors in pursuit of one who flies after committing a breach of the peace. The act 1617, c. 8, rather directs him to take notice of the mafter of the house, that he may be afterwards c.8. challenged for his contempt in refufing admission. But, agreeably to the above obfervation of Lord Gardenstone, it appears that the powers of English conftables were communicated to Scottish conftables, so far as relates to the preservation open doors of the public peace. Be this as it may, there is no doubt he in purfuit may break the doors of any house in pursuit of a murderer, derer. robber, or the like criminal.

Breaking

of a mur

To juftify the constable in making a violent entry into Must first any houfe, and this holds equally though he bear a written demand admiffion, warrant, he muft firft demand, and be refused, admittance, and must notify who he is, and the purpose of his coming c.

It is the proper business of a constable to keep the peace, Only does and not to punish the breach of it. He has no power, the breach not punish therefore, to arreft a man for an affray, or breach of the of the peace. peace, out of his own view, without a warrant from a juf- Can arreft tice, unless a felony were done, or likely to be done 4. He an affrayer cannot read the riot act. Neither can he require furety of only in his the peace, unless the offence be upon his own view, and not fence.

own pre