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Friday, 4 August 2017

Maitland: The Constable.

The Constable. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “Our last word shall be as to the constables. A constabulary in our modern sense, a force of men trained, drilled, uniformed, and paid there is not—our modern police force is very modern indeed. But it has become the law that every parish—or more strictly speaking every township—is bound to have its constable. The constable as we have said is originally a military officer—a petty officer in the county force; but then the county force, the posse comitatus, is as much concerned with making hue and cry after malefactors as with defensive warfare ; this work falls more and more into the constable's hands, and as the militia becomes more military the constable becomes less military, more purely, in our terms, a police officer. In the seventeenth century he is still elected by his neighbours in the old local courts, in those districts in which such courts still exist: elsewhere and perhaps more generally he is appointed by the justices. Every capable inhabitant of the township can be appointed constable, unless there is some special cause for exemption. Remember that all, or almost all, of our old common law offices are compulsory offices—a person appointed cannot refuse them. To this day a man may be made sheriff or mayor of a borough against his will. Generally the person chosen as constable was allowed to find a respectable substitute—and this he could do for £I0: the office was annual. The constable had no salary, but he was entitled to demand certain fees for some part of his business. His chief business was the apprehension of malefactors, and for this purpose he was armed with certain powers additional to those which the ordinary man has: thus it was sometimes safe for a constable to make an arrest on suspicion, when it would not have been lawful for a private man. It is well to remember that the constable is an officer long known to our common law: a great part of the peculiar powers of the modern policeman are due to this—that he is a constable, and as such has all those powers with which for centuries past a constable has been entrusted by law. Gradually the constables come more and more under the control of the justices of the peace—in particular, it becomes less and less usual for arrests to be made without the warrant of justices, and in executing such warrants the constable has special protection…”. “The Police System. We must speak briefly of the system by which order is maintained, and suspected persons are brought to justice, even though we can take but a superficial view of what has come to be a great department of law. The decline and fall of the sheriff's office has already been traced down to the seventeenth century^ During the whole of our period this process of decay is continued, the sheriff loses function after function. We know the High Sheriff now-a-days as a country gentleman, who (it may be much against his will) has been endowed for a single year with high rank, and burdened with a curious collection of disconnected duties, the scattered fragments of powers that once were vast. He receives the queen's judges on their circuits, he acts as a returning officer in parliamentary elections for his county, he executes civil judgments, and has to see to the hanging of those who are appointed to die. He has lost almost all other duties. Long ago the institution of justices of the peace gradually deprived him of all penal jurisdiction, and in 1887 the court in which he exercised that jurisdiction—the sheriff's tourn—was formally abolished (he had, I think, ceased to hold it for quite two centuries); in 1846 such civil coming before a court of law, but still more unpopular to deny the suppliant that redress to which he had been declared entitled by the judgment of a court. (iv) We can hardly lay too much stress on the principle that though the king cannot be prosecuted or sued, his ministers can be both prosecuted and sued, even for what they do by the king's express command. We often say that in this country royal immunity is coupled with ministerial responsibility: but when we speak of ministerial responsibility we too often think merely of the so-called responsibility of ministers to parliament. Now that is an important matter; it is an important matter that our king cannot keep in office advisers who have not the confidence of the majority of the House of Commons—in the last resort this impossibility could be brought home to him by a refusal to grant supplies, or a refusal to renew the Army Act. But let us look at the matter a little more closely. Strictly speaking, ministers are not responsible to parliament; neither House, nor the two Houses together, has any legal power to dismiss one of the king's ministers. But in all strictness the ministers are responsible before the courts of law and before the ordinary courts of law, and they are there responsible even for the highest acts of state ; for those acts of state they can be sued or prosecuted, and the High Court of Justice will have to decide whether they are legal or no. Law, especially modern statute law, has endowed them with many great powers, but the question whether they have overstepped those powers can be brought before a court of law, and the plea *this is an official act, an act of state' will not serve them. A great deal of what we mean when we talk of English Note: Page numbers are not included because they vary according to the programme that it being used to view the text. The reader before relying on this information should take steps to verify it by cross checking with other sources.

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  • No Title - Thanks for all the kind words. I'd like to shut the blog with this... Come home safe Lads... CSR
    12 years ago