Maitland: The Police System.

The Police System. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “ 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 urisdiction as the old county court had was transferred to the so-called new county courts ; in 1865 he was relieved of the custody of prisoners, except those appointed to die. I think that I have mentioned what now are his main duties. Civil execution is the most important of them, i.e. the seizing and selling of lands and goods in order to satisfy the judgments of civil courts. Such duties are performed for him by an under-sheriff, but the sheriff is answerable for the mistakes of his subordinates. Some fees and percentages are payable for this work, but the sheriff has no salary, and is always a loser by his office. He is still appointed by the king, who chooses 1 the sheriffs (pricks the sheriffs) from a list settled at a \) meeting, at which some of the judges and some of the ministers are present, and under the old statutes, of which we I have formerly spoken, he can hold office but for one year-. ^ See above, pp. 232—4. * See VizxCizxiA, Justice and Police. We have seen how in old times it was one of his main duties to pursue and arrest malefactors, and also how this work fell more and more under the control of the Justices of the Peace, the arrests being actually made by the parish or township constables under warrants of the justices. The old system of parish or township constables lingered on far into the nineteenth century. During the eighteenth century, this and that big town obtained a special act for the creation of a paid orce of watchmen, and London began to get a force of paid constables in 1792, a force which gradually increased in size and was placed more and more directly under the control of the Home Secretary. But for England at large, the only constabulary was that old parish or township constabulary of the early history of which we have spoken. So late as 1842 an effort was made to put new life into the old system. By an act of 1842 (5 and 6 Vic, c. 109) the general principle was put upon the statute book that every able-bodied man resident within any parish, between the ages of twenty-five and fifty-five, rated to the poor rate at £d^ or more, was liable to serve as constable for the parish ; but certain classes were specially exempted, and the list of exemptions was long. Lists of persons liable to serve were to be laid before the justices, and they were thereout to appoint so many constables for each parish as they should think fit; substitutes were allowed ; and' a man who had served in person or by substitute was exempt from serving again until every other person liable to serve had taken his turn ; he was not bound, as a general rule, to act outside his parish ; he might earn certain fees, but otherwise was unpaid. Thirty years later, in 1872, the new police forces having been created in the meantime, a statute ordained that no parish constables should be appointed for the future, unless the justices at Quarter Sessions should think fit. The act of 1842 can still be put in force if need be; the able-bodied man, not specially exempted, is liable to be constable for his parish or to find a substitute; but practically this statute is never put in force. Then there is another act of 1831 in force, which enables the justices, in case of any reasonable apprehension of riot or felony, to force men to serve as special constables. A Secretary of State has even greater powers—he can oblige the. exempted classes to serve as special constables ; we must not regard this power as obsolete, on occasions it would doubtless be used. But gradually a new police force was called into being. The Metropolitan force was created in 1829 by an act introduced by Sir Robert Peel. In 1839 the City of London force was created. In 1835 occasion was taken of the great reform of the municipal boroughs, to insist that every such borough should have a paid police force. In 1839 the counties were permitted, in 1856 they were compelled, to create paid county forces. Thus by the beginning of 1857 the whole of England had been brought within the new system. There is no one police force for the whole of England, but rather a number of distinct local forces. Part of the expense (if the force is reported as efficient) is paid by the nation, part is paid by the counties and boroughs. The various forces are annually reviewed by royal inspectors, who report to the Home Secretary, and only if their report is favourable, does the nation contribute to the expense. There are some very considerable differences between the various forces. Thus in the Metropolitan district there is very perfect centralization, no 'local authority' has anything to do with the system. A Commissioner and two Assistant Commissioners, holding office during the queen's good pleasure, regulate and command, appoint and dismiss the constables, but a supreme supervisory control is reserved to the Home Secretary. But take a county force: the Home Secretary can make general rules as to the government, pay and clothing of constables; but the justices in Quarter Sessions, with the Secretary's consent, determine the number of the force, and appoint and can dismiss the chief constable^ The chief constable has the general command of the force, subject to the lawful orders of the justices in Quarter Sessions, and he at his pleasure can dismiss any of his subordinates. ^ Under the Local Government Act of 1888 (51 and 52 Vict., c. 41) the County police was placed under the general control of the Standing Joint Committee of Quarter Sessions and the County Council. The control over individual constables is however retained by the Quarter Sessions and even by individual justices. See Jenks, A71 Outline of English Local Goverfinie?it, pp. 179—81. Let us then consider briefly the position of a police constable, he has peculiar duties and peculiar powers, and is subjected to a peculiar discipline. Take this last point first. The peculiar discipline to which he is subject is not nearly so stringent as that of military law; we have no court martial for the policeman. A county constable can be dismissed at the will of the chief constable. The chief constable, if he thinks him remiss or negligent in his duties, can reduce him in rank, or fine him one week's pay. On a summary conviction for neglect or violation of duty, he can be fined ^10 or condemned to a month's hard labour; but on the whole he has been left much to the general law, and if guilty of any offence against it, can be treated like another offender. Now looking at his powers and duties, we find that he has in the first place powers and duties concerning the arrest of offenders. It is his duty to execute warrants for arrest issued by the justices, and in so doing he is protected. Unless there is some flagrant illegality apparent in the warrant he is bound to obey it, and safe in obeying it. But then without any warrant he may, in certain cases, arrest suspected persons. What those cases are, you will have to learn some day when you study criminal procedure. You will find that in this respect every person, every member of the public has certain powers, but that a constable has greater powers. The distinction between felonies and misdemeanours here plays a large part. For example, there are a number of misdemeanours for which a man may be arrested without warrant, if he is caught in the act by a constable, while a person not a constable would not be safe in arresting him. You must remember this, that it does not follow that because I have committed a crime therefore I can be arrested without warrant either by anyone, or by a constable. If I have committed murder anyone may arrest me without a justice's warrant, if I am drunk and disorderly a constable may arrest me without a warrant; but if my crime is perjury or bribery, it will be unlawful to arrest me without warrant. He who does so, whether he be a constable or no, does an unlawful act, does me a wrong; and he does a dangerous act, for I may lawfully resist him, his attack is unlawful and my resistance is lawful. Now it is in these peculiar powers of arrest, and in the duty to exercise them, that hes the chief difference between the constable and the private man—he may lawfully make arrests which the private man cannot make lawfully. But statutes have gradually been heaping other powers and duties upon police constables, e.g. empowering them to enter public-houses to detect violation of the Licensing Acts. If it occurs to parliament that steam thrashing-machines are dangerous things that ought to be fenced, then it passes an act saying that * any constable may at any time enter on any premises on which he has reasonable cause to believe that a thrashing-machine is being worked contrary to the provisions of this act, for the purpose of inspecting such machines.' Examples might be indefinitely multiplied. We may pass to a few words about the provision that our law makes for the maintenance of order in extreme cases, and we may start with this, that it is the common law right and duty of all persons, whether constables or no, to keep the peace, and according to their power to disperse, and if necessary arrest, those who break it. From an early time the common law was supplemented by statutes, statutes of the Tudor reigns which made it felony for twelve persons or more to continue together riotously for an hour after they had been ordered to disperse by a justice of the peace. These statutes were temporary, and expired at the death of Elizabeth ; in 1714 they were replaced by the famous Riot Act (i Geo. I, St. 2, c. 5), which is still in force. It makes it felony for twelve rioters to continue together for an hour after the reading of