Page:The country justice. containing the practice, duty and power of the justices of the peace, as well in as out of their sessions.djvu/25

Chap. I. Rogues to be puniſhed. And M. Lambard of the Duty of Conſtables; p. 51, &c. holds that theſe Borſholders, Thirdboroughs, Tithingmen, Headboroughs, and other ſuch, being in any Town or Pariſh where a Conſtable is, cannot meddle, becauſe Conſtables are (in Companion of them) Head-Officers, and that the Tithingmen, &c. are but as Aſiiſtants to the Conſtables in their Office; and that there are many other Things which the Conſtables may do, and wherewith the Borſholders and the Reſt cannot meddle at all. And yet in Towns where there are no Conſtables, the Borſholders, Thirdboroughs, Tithingmen, Headboroughs or ſuch other, are there the only Officers for the Peace; as alſo in. ſuch Caſes where the Power or Authority of the Borſholders, &c. is declared to be equal with the Power of the Conſtable; in all ſuch Caſes their Office and Authority are in a Manner all one. See Lambard Office del' Conſt. 4, 6, 9.

There are alſo divers Statutes which appoint Offenders to be puniſhed by the Conſtable or other inferior Officer. Now who be theſe inferior Officers, if not the Tithingmen, &c.

And now, becauſe theſe Petty Conſtables are often abſent from their Houſes, being for the moſt part Huſbandmen, (and ſo moſt of the Day in the Fields;) it would prove very ſerviceable, if, by a Law to be made in Parliament, every Town and Village were to have a Tithingman, or ſuch other Officer, to attend the Service of the Conſtable, in his Abſence at the leaſt, for that for want of ſuch Aſſiſtance, Rogues, Vagabonds, and the like, knowing their Times, now travel up and down more boldly.

And yet Mr. Crompton, fol. 222. ſaith, That a Conſtable may make a Deputy to execute his Office in his Abſence, for that he may be ſick, &c. And it hath been reſolved, that he may make a Deputy, becauſe it is but a Miniſterial Office. Mich. 13 Jac. B. R. Phillips and Winſcome's Caſe. But ſome. have held, that the Making a Deputy is rather by Toleration, than by Law. Refol. 20.

If any Man ſhall make an Affray or Aſſault upon another in Preſence of the Conſtable or Borſholder; or if any Man in the Preſence of the Conſtable ſhall threaten to kill, beat or hurt another, or ſhall be ready to break the Peace; in every of theſe Caſes the Conſtable or Borſholder may commit the Offenders to the Stocks, or to ſome other ſafe Cuſtody for the Preſent, (as his or their Quality requireth) and after may carry them beſore ſome Juſtice of Peace, or to the Gaol, until they ſhall find Surety for the Peace;

which Surety the Conſtable himſelf may alſo take by Obligation, to be sealed and delivered to the King's Uſe: And if the Party will not find ſuch Surety to the Conſtable, he may be impriſoned until he ſahll do it. 3 H. 4. 9, 10.

I have ſeen the Report of Skarret's Caſe, Termino Trin Anno 35 ''Eliz. Rot.'' 1458. where Skarret brought his Action of falſe Impriſonment againſt one Hanmer, for arreſting and impriſoning him, &c. The Defendant to the Impriſonment pleaded, that he was High Conſtable of the Hundred of E. in the County of S. and that the Plaintiff made an Affray within the ſaid Hundred upon one H. W. who preſently came to him and told him thereof, and ſwore upon a Book that he was in fear of his Life by the other; whereupon the Defendant came to the Plaintiff, and arreſſted and impriſoned him, until he had found ſufficient Sureties for the Peace; upon which the Plaintiff demurred. And it was adjudged, that the Plea of the Defendant was inefficient; firſt, for that he was not preſent at the Aſſault and Affray; ſecondly, for that he was the High Conſtable of the Hundred, and not Conſtable of the Town. In the Argument of which Caſe Anderfon Ch. Juſtice, held Conſtables to be Conſervators of the Peace at Common Law, and ſtill ſo to be, and that they ought to preſerve the Peace as much as in them lieth; but that (ſaid he) was by parting of Men which they ſhould ſee breaking of the Peace, and to carry them before a Juſtice to find Sureties for the Keeping thereof: But to take Sureties himſelf the Conſtable cannot. And thoſe, which hold that he may take Surety, cannot tell what Surety that ſhould be; for he cannot take a Recognizance nor Bail, for he is no Officer of Record; and if he ſhall take an Obligation, how the ſame ſhall be certified, and into what Court, he ſaid he knew not; and that it would be very inconvenient to give ſuch Authority to every Conſtable. But by three other Judges, namely, Walmſley, Owen, and Beamond; although a Conſtable cannot take Surety for the Peace by Recognizance or Bail, yet he may take an Obligation, according to the Book of 10 E. 4. And if the Affray be in their Preſence, they are Conſervators of the Peace, and therefore may uſe ſuch Means for Keeping it by taking Surety by Obligation. And that before Juſtices of peace