them in also if there was no feudal lord of the hundred, an annual officer was chosen, who was to preside over the whole hundred, who was called the high constable; but if the hundred were feudal, as it often anciently was, then such lord of the hundred administered the office himself. Bac. Abr. tit. Constable (A.) But now the usual manner is, that the high constables of hun- Choosing high dreds are chosen either at the quarter sessions of the peace; or if constables. out of the sessions, then by the greater number of the justices of the division where they reside; and likewise that they are sworn either at the sessions, or by warrant from the sessions; which course hath been often allowed and commended by the justices of the assize. Dalt. c. 28. The reason thereof may be this, as hath been intimated above, namely, that their office at present doth not so much consist in executing the office of high constable as such, as in executing the justices' precepts, which they may do for the most part, whether they be indeed high constables or not. Appointment of high constable in towns corpo Weatherhead v. Drewry and others, 11 East, 168. The borough of Derby is a town corporate by a charter of C. 2., which charter, after creating a mayor and other officers, also declares that certain rate by charter of these shall be justices of the peace within that borough. Until justices. (See 1809 there had never been an appointment of a high constable post,tit. County within the borough. In that year there was one appointed; and Rate) for levying by distress a rate in the nature of a county rate imposed by the quarter sessions of the borough upon the said borough, an action of trespass was brought against the high constable and two magistrates. And it was held that it was competent to them to create such office, and that stat. 13 G. 2. c. 18. extended to charter justices as well as to justices having commissions immediate from the crown. This doctrine had also been held in the case of R. v. J. Green, 6 T. R. 228. Dr. Franchard was chosen constable of Milborne Port at the leet, which immediately adjourned; and he was afterwards sworn in by a single justice of the peace: and upon motion for an information, as not being duly sworn, the court held this to be a good swearing. R. v. Dr. Franchard, 2 Stra. 1149. The justices of the county of Northampton at their general sessions chose a constable for Holmby, and for not coming in to take Petty constables appointed by justices of the peace. Where no constable hath been Where the leet shall make default. 13 & 14 C. 2. c. 12. Constables dying, or leaving the parish. the oath proceeded against him. Which proceedings being removed by certiorari into the K. B., it was moved on affidavits that there had not been a constable there for fifty years before, and that he might be discharged; alleging likewise, that Holmby was a privileged place, and that all the inhabitants were the Duke of York's tenants. But the court held that they could not discharge him on motion, and said that they must determine the matter by action of false imprisonment, or some other way; and inclined strongly that he could not any way be discharged. For, by the court, though origi nally constables were chosen in leets, yet the constable being an officer whose duty it is to keep the peace, the justices may choose him in cases of necessity. Case of the constable of Holmsby, 2 Keb. 557. Bac. Abr. tit. Constable (A.) However, it is certain that justices of the peace had power nominate and swear constables, on the default of the torn or leet, before stat. 13 & 14 C. 2. c. 12., and therefore that they have such authority in some cases not mentioned in that statute, which enacts, (§ 15.) that if a constable shall die, or go out of the parish, any two justices may make and swear a new one, until the lord shall hold a leet, or till the next quarter sessions, who shall approve the officer so made and sworn, or appoint another and if any officer shall continue above a year in his office, the justices in their quar ter sessions may discharge him, and put in another till the lord shall hold a court as aforesaid. 2 Haw. c. 10. § 50. R. v. Brain, 3 B. & Adol. 614. By an act of parliament for paving, lighting, and watching the streets of a parish, the rector, churchwardens, overseers of the poor, and vestrymen were appointed trustees for putting the act in execution. By a subsequent act, the trustees appointed to put the first act in execution were appointed trustees for executing that act, and the said trustees or any thirteen or more of them were authorized to elect four constables for the parish annually. The trustees appointed four constables for the year, on the 21st of December 1829. One of the persons so appointed having, in March 1830, removed from the parish, and given notice of his removal to the trustees, they elected another. And the court of K. B. held, that the trustees, having so appointed the four constables for the year, might also, on the removal from the parish of one of the persons so appointed, elect another person in his stead; for that they were not functi officio, and were the proper persons to supply the vacancy; and Ld. Tenterden in giving judgment observed, "This is the case of an office not created by statute, but existing by custom. And it seems to me, that where custom gives the power of appointing constables to any particular persons at a particular time, then if a vacancy hap pens by one of the persons so appointed quitting his office, those who have the power of appointing in the first instance have also the power of supplying the vacancy." His lordship then adverted to the stat. 13 & 14 Car. c. 12., and after stating the words of the 15th section proceeded to observe, "It is manifest from this enact ment that where the lord had appointed a constable who died or removed from the parish, and a vacancy had occurred, he might hold another court and appoint another person to fill up that vacancy. The act implies that, for it says the justices may do so until the lord shall hold a court. Another thing may also be inferred from this statute, viz. that a party who quits the parish may be understood to have abandoned his office, so that another may then be appointed in his place. It would be extremely inconvenient if it were not so, because I know of no law which compels the person appointed to the office of constable to remain in the parish the whole year. Then, if the lord of the leet might appoint persons to fill up vacancies as they occurred during the year, it seems to follow that, in other instances, whosoever has the original power of appointment must have a smilar power of filling up those vacancies. R. v. Lane, H. 2 & 3 G. 4., 5 B. & A. 488. In M. T. 1 G. 4. a rule nisi was obtained for a quo warranto against the defendant as constable of the township of F. in the county of Lancaster. The affidavits stated, that for 50 years and upwards, and as far back as the deponents could recollect, it had been the usual and established custom for the constable to be elected by the payers of rates at a meeting for that purpose; and that at a meeting so held on the 3d of October last, J. L. was appointed; but that, notwithstanding, the deputy steward of the court leet of the wapentake of Salford had sworn in the defendant as constable for the year. But none of the deponents expressly stated, that to their belief there had been immemorially such a custom in the town. Cause was about to have been shewn, when the court called upon counsel to answer the preliminary objection, that no immemorial custom was stated in the affidavits. He contended that it was sufficient if facts were there stated from which a jury would necessarily draw that conclusion, and that such facts were stated in this case. Sed per curiam : It is necessary on the face of the affidavits to state that there is, as the witnesses believe, an immemorial custom to elect in this way; and it is not enough to state facts from whence the conclusion may be drawn, for it may be consistent with these affidavits that the parties making them may know when the custom originated. In the case of Rex v. Standard Hill (4 M. & S. 378. and tit. Poor, Vol. IV.), which was an application to have overseers appointed for a vill, it was held to be necessary to swear positively that it was a vill by reputation.-R. D. (See R. v. Williamson, 3 B. & A. 582.) Where, in an application for a quo warranto against a constable, the affidavits in support of the rule stated, that for 50 years back, and as long as deponents could recollect, there had been a custom in the town to elect a constable in a par ticular mode, but did not expressly state that they believed such custom to be immemorial: held, that it was not sufficient. As the form of a constable's oath in Dalton doth not contain Constable's the hundredth part of the constable's duty, nor indeed the most oath. material instances of it, it may be more eligible (as no particular form is directed by any statute), to swear him (B) to the due execution of his office in general, than to descend to those particulars; lest, by mentioning some parts of his duty, and not others, he may be induced to think that those others are not so necessary. It seems to be clear at this day that the K. B. hath power by mandamus to compel the court or judge to swear a constable duly chosen. 2 Haw. c. 10. § 47. Mandamus to compel the swearing a constable. Oath not essen But it must be observed, that the swearing in of a constable is not necessary for enabling the party to serve the office; but the tial to execuobject is to impose a greater sanction on his discharge of it. The tion of office. oath is not essential to the due execution of the office; but it is fit and proper, for the interest of the public, that the office should be executed under its sanction. (See the judgment of Bayley J., in R. v. Corfe Mullen, 1 B. & Adol. 218, 219.) By stat. 1 G. st. 2. c. 13., high constables are to take the oaths of allegiance, supremacy, and abjuration, as other qualify for offices: but they are not within the stat. 25 C. 2. c. 2. persons who 1G. st. 2. c. 13. Oaths of allegiance and supremacy. Constable refusing to be sworn. How punished. refusal. as to receiving the sacrament, and subscribing the declaration against transubstantiation: and petty constables are exempted both from the one and from the other. If constables, when chosen, refuse to be sworn, a justice of the peace may bind them over to the assizes or sessions (there to be indicted). Dalt. c. 28. R. v. Lane, 2 Str. 920. But it seemeth there can be no commitment, but only indictment upon the refusal; and, if found against him, to assess a good fine upon him, and then commit him for that cause. Crawley's case, Cro. Car. 567. It seems that the sheriff, or steward of the leet, cannot lawfully commit them for such refusal, without more; but it is said, that if the party be present in the court, he may be fined; and that if he be absent, and have a certain time and place appointed him by the sheriff or steward, for the taking of the oath before a justice of the peace, and have also express notice of such appointment, and be presented at the next court, for having refused to take it acIndictments for cordingly, he may be amerced: also, it seems that in either case he may be indicted (A) at the assizes or sessions. It is advisable in all pleadings in any action concerning such a fine or amercia ment, and in all indictments for such refusal, especially and expressly to set forth the manner of every such election, appointment, notice, and refusal, and before whom the court was holden. And it hath been adjudged that it is insufficient to say in general that the party was duly elected, or lawfully elected, or that he had notice, without setting forth the special circumstances thereof. Also it is said to have been adjudged, that an indictment for not finding a sufficient person to serve the office of constable, without shewing that the party refused to serve it himself, is insufficient. 2 Haw. c. 10. § 46. Constables in boroughs. R. v. Brain, 3 Barn. & Adol. 614. An indictment charged that the defendant being elected to the office of constable, had neglected and refused to take upon himself the execution of the office. The proof was, that he had refused to take the oath of office; and it was held, that that was primâ facie evidence of a refusal to take upon himself the execution of the office; and it was also held, on motion in arrest of judgment, that the indictment sufficiently charged an offence, by alleging that the defendant had wholly neglected and refused to take on himself the execution of the office, and that it was not necessary to state that he had refused to be sworn. By the custom of the city of London, all persons appointed constables on St. Thomas's day attend at Guildhall on Plough Monday, and are sworn by the registrar; and those who, when vacancies occur, are appointed at any other period of the year, are sworn in before the registrar at the lord mayor's court office. It was held, that that custom applied to all constables in the city of London, in whatever manner appointed, and that a party elected constable by the trustees under a local act was bound, after notice, to attend at the lord mayor's court office, to be sworn in. 3 B. & Adol. 614. As to the appointment of constables in boroughs, under the Municipal Corporation Act, see stat. 5 & 6 W. 4. c. 76. § 76. post, tit. Corporations. IV. His power as a Conservator of the Peace. assault conservator of the peace. May commit for an affray in his presence. Every high and petty constable are by the common law con- Constable a servators of the peace. 2 Haw. c. 28. § 6., Crom. 6., Dalt. c. 1. And therefore, if any man shall make an affray or an upon another in the presence of the constable, or shall threaten to kill, beat, or hurt another, or shall be in a fury ready to break the peace (a), the constable may commit him to the stocks, or other safe custody for the present, and after may carry him before a justice or to gaol, until he 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 surety to the constable, he may imprison the party until he shall do it. Dalt. c. 1. But it is submitted, 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. (b) For it is the proper business of a constable to preserve the peace, not to punish the breach of it: nor doth it follow from his having power to compel those to find sureties who break the peace in his presence, that he hath the same power over those who break it in his absence. 2 Hawk. c. 8. §17. (See also the argument of Best Serjt. and the judgment of Mansfield CJ., in Clifford v. Brandon, 2 Campb. 367. 371., and Reg. v. Tooley and others, 2 Ld. Raym. 1296., and 1 Russ. bk. 3. c. 3. on Manslaughter, 2 Hawk. c. 13. §8., Coupey v. Henley, 2 Esp. 540. However, the point has never been expressly decided, and was treated as doubtful by Parke B., in delivering the judgment of the Court of Exchequer in the late case of Timothy v. Simpson, 1 Cr. Mees. & Rosc. 760. S. C. 5 Tyrwh.. The learned judge observed, "It is not necessary for us to decide in the present case whether a private individual, who has seen an affray committed, may give in charge to a constable who has not, and such constable may thereupon take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the offenders have quitted the place where it was committed, and there is no danger of its renewal. The power of a constable to take into his custody upon the reasonable information of a private person under such circumstances, and of that person to give in charge, must be correlative. Now, as to the authority of a constable, it is perfectly clear that he is not entitled to arrest, in order himself to take sureties of the peace, for he cannot administer an oath; Sharrock v. Hannemer, Cro. Eliz. 376. Owen, 105. S. C. nomine Scarrel v. Tanner; but whether he has that power, in order to take before a magistrate, that he may take sureties of the peace, is a (a) White v. Edmunds, Peake, N. P. C. 89. But using loud words in the street, though it is disorderly, is not an offence for which a party should be taken into custody. Hardy v. Murphy, 2 Esp. 294. (6) But if an affray has happened, and a wound has been given, which there is reasonable ground to suppose may end in felony, a constable may take the party who has given such wound into custody without a warrant. 2 Esp. 540. Coupey v. Henley, Whether he may arrest, without warrant, after the affray has ceased. |