amends. But, on the other hand, any malicious or tyrannical abuse of their office is usually severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs. (21) 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 justices' 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 which [*355] 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 C apel, 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 Buck day; and if, after such appointment, the other set meet, and grant licenses 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 favor are generally included,) or from mistake or error only. In the latter case, the court will not grant the rule. 3 B. and A. 432; and see 1 Burr. 556; 2 id. 1162; 3 id. 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 showing 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. and A. 612. In an action against a magistaate for a malicious conviction, it is not sufficient for the plaintiff to show 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. 1 Marsh. 220.] (21) [It has been held in many cases that if the defendent honestly intended to act as a magistrate, and the act done was in a matter within the jurisdiction of magistrates, he is within the protection of the statutes, though he exceeded his powers and transgressed the law. Briggs v. Evelyn, 2 H. Black. 114; Weller v. Toke, 9 East, 364.] The authority of a justice of the peace is special and limited, and he must obtain jurisdiction of each particular case in the manner prescribed by law, or his proceedings will be void, and he will be liable to an action. Johnson v. Thompson, 1 Bald. 571; Bigelow v. Stearns, 19 Johns. 39; Adkins v. Brewer, 3 Cow. 206; Evertson v. Sutton, 5 Wend. 281; Spencer v. Spencer, 4 Shep. 255; State v. Hartwell, 35 Me. 129; Clark v. Holmes, 1 Doug. Mich. 390. And if he loses jurisdiction of a case by the service of certiorari, and takes any action therein afterward, he is equally liable. Case v. Shepherd, 2 Johns. Cas. 27. But where he has jurisdiction, he is not liable for irregularities or errors of judgment, unless he acts corruptly or maliciously. Horton v. Auchmoody, 7 Wend. 200; Little v. Moore, 1 South. 74; Gregory v. Brown, 4 Bibb, 28; Bullitt v. Clement, 16 B. Monr. 193; Hetfield v. Towsley, 3 Greene, Iowa, 584. ingham under King Henry VIII; as in France it was suppressed about a century after by an edict of Louis XIII: (a) 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, (z) which first 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 quarter sessions; and are removable by the same authority that *appoints them. (a) (22) The petty constables are inferior officers in every town and parish, subordi- [*356] nate to the high constable of the hundred, first instituted about the reign of Edw. III, (b) These petty constables have two offices united in them: the one ancient, the other modern. Their ancient office is that of headborough tithingman, 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 we observed, so lately as the reign of Edward III, in order to assist the high constable. (d) And in general the ancient headboroughs, 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; 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. (23) One of their principal duties, (x) Phillip's Life of Polc, ii. 111. (y) Of Constables, 5. (b) Spelm. Gloss. 148. (c) Page, 115. (d) Lamb. 9. (z) 13 Edw. I, c. 6. (a) Salk. 150. (e) Stat. 14 and 15 Car. II, c. 12. (22) [It should seem that a constable cannot, in case of an affray, arrest without a warrant from a 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. and Cres. 699; and see further as to the powers and duties of constables acting without warrants, or otherwise, post, book 4, 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 precints, provided it be within the jurisdiction of the justice granting or backing the same. It is the duty of a constable to present a highway within his district for non-repair, and he is entitled to the costs of the prosecution. 3 M. and S. 465.] Petty constables are now to great extent superseded by a county constabulary. (23) [Every one who reflects upon the subject must surely dissent from the proposition in the text; which 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 officer 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.] A constable has not the right to break open houses for the service of civil process generally, but he may do so in the service of search warrants, which specially direct it, and he may also do so for the service of other criminal process upon the occupant, but not against the will of the occupant to search for a third person against whom he has a warrant. See Hawkins v. Commonwealth, 14 B. Monr. 395. If a private individual makes an arrest without warrant, on a charge of felony, he may justify the arrest if a felony has actually been committed; but a constable has broader protecVOL. L-29 225 arising from the statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdiction. Ward, guard, or custodia, is chiefly applied to the daytime, 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 daylight, for having kept negligent guard. Watch is properly applicable to the night only, (being called among our Teutonic ancestors wacht or watca, (g) and it *begins at the time when [*357] ward ends, and ends when that begins: for, by the statute of Winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an The constable may appoint watchmen at his discretion, account of themselves. 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 compilaand duties belong to the constable or tithingwhat do be also tions may powers man indifferently, and what to the constable only; for the constable may whatever the tithing-man may; but it does not hold e converso, the tithing-man not having an equal power with the constable. seen 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 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 for such their neglect: but it was not then *incumbent on any particular officer to call [*358] the parish together, and set them upon this work; for which reason, by the statute 2 and 3 Ph. and M. c. 8, surveyors of the highways were ordered to be chosen in every parish. (i) These surveyors were originally, according to the statutes of Phillip and Mary, to be appointed by the constable and church-wardens 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 alloted them for their trouble. (24) 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, which enacts, 1. That they may remove all annoyances in the highways, or give (f) Dalt. Just. c. 104. (g) Excubias et explanationes quas wactas vocant. Capitular. Hludov. Pii. Cap. 1. A. D. 815. (i) This office, Mr. Dalton (Just. cap. 50,) says, exactly answers that of the curatores viarum of the tion, and is justified if he had information of a felony which he had reason to rely upon. Holley v. Mix, 3 Wend. 350; Russel v. Shuster, 8 W. and S. 308; Rohan v. Sawin, 5 Cush, 281; Beckwith v. Philby, 6 B. and C. 605; Davis v. Russell, 5 Bing. 354. (24) These officers are now chosen annually by the inhabitants. 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 50l. 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 to be allowed at a special sessions. *4. In case [*359] the personal 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 introduced 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) 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 Henry VIII, subsisted entirely upon private benevolence, and the charity of well disposed Christians. For, though it appears by the mirror, (7) 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 seemed to be the first rudiments of parish settlements,) yet, till the statute 27 Hen. VIII, c. 55, 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 religious houses. But, upon the total dissolution of these the inconvenience of thus encouraging the poor in habits of indolence [*360) 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 any 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, for the relief of the impotent through infancy or sickness; and Bridewell, for the punishment and employment of the vigourous and idle. But these were far from being sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitless experiments, by statute 43 Eliz. c. 2, overseers of the poor were appointed in every parish. By virtue of the statute last mentioned, these overseers are to be nominated (k) Stat. 14 Geo. III, c. 14, 36, 57, 32. 16 Geo. III, c. 39. 18 Geo. III, c. 28. (1) C. 1, § 3. yearly in Easter-week, or within one month after, (though a subsequent nomination will be valid,) (m) by two justices dwelling near the parish. They must be substantial householders, and so expressed to be in the appointment of the justices. (n) Their office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work: and secondly, to provide work for such as are able, and cannot otherwise get employment: but this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. However, for these joint purposes, they are empowered to *make and [*361] levy rates upon the several inhabitants of the parish, by the same act of parliament; which has been further explained and enforced by several subsequent statutes. The two great objects of this statute seem to have been, 1. To relieve the impotent poor, and them only. 2. To find employment for such as are able to work; and this principally, by providing stocks of raw materials to be worked up at their separate homes, instead of accumulating all the poor in one common workhouse; a practice which puts the sober and diligent upon a level (in point of their earnings) with those who are dissolute and idle; depresses the laudable emulation of domestic industry and neatness, and destroys all endearing family connections, the only felicity of the indigent. Whereas, if none were relieved but those who are incapable to get their livings, and that in proportion to their incapacity; if no children were removed from their parents, but such as are brought up in rags and idleness; and if every poor man and his family were regularly furnished with employment, and allowed the whole profits of their labour;-a spirit of busy cheerfulness would soon diffuse itself through every cottage; work would become easy and habitual, when absolutely necessary for daily subsistence; and the peasant would go through his task without a murmur, if assured that he and his children, when incapable of work through infancy, age, or infirmity, would then, and then only, be entitled to support from his opulent neighbours. This appears to have been the plan of the statute of Queen Elizabeth; in which the only defect was confining the management of the poor to small parochial districts; which are frequently incapable of furnishing proper work, or providing an able director. However, the laborious poor were then at liberty to seek employment wherever it was to be had: none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work; and those places of settlement being only such where they were born or [*362] had made their abode, originally for three years, (0) and afterwards (in the case of vagabonds) for one year only. (p) After the restoration, a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivisions of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive law-suits between contending neighborhoods, concerning those settlements and removals. By the statute 13 and 14 Car. II, c. 12, a legal settlement was declared to be gained by birth, or by inhabitancy, apprenticeship, or service for forty days: within which period all intruders were made removable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of 107. The frauds, naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute 1 Jac. II, c. 17, which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. Subsequent provisions allowed other circumstances of notoriety to (m) Stra. 1123. (n) 2 Lord Raym. 1394. (0) Stat. 19 Hen. VII, c. 12. 1 Edw. VI, c. 8. 3 Edw. VI, c. 16. 14 Eliz. c. 5. (p) Stat, 30 Eliz. c. 4. |