and Her present Majesty, the
late Duke of Wellington acted as Lord High Constable of England.
In Scotland also, the office
of Lord High Constable is one of great antiquity. Edward was Constable in
the reign of Alexander I., and between that time and 1308 the office passed
through the families of De Morville, the Lords of Galloway, De Quincey Earl
of Winchester, and Cumyn Earl of Buchan. On the attainder of John Earl of
Cumyn, in 1308, the office was conferred on David Earl of Athole; and on the
forfeiture of his honours and estates in 1314, it was granted by King Robert
the Bruce to Gilbert de Hay, knight, the ancestor of the noble family of
Erroll, by whom it is still retained. The honours and privileges of the
Constable of Scotland were not less distinguished than those of the
Constables of France and England, and were very similar in character. He had
the command of the army, was proper and sole judge in military affairs, and
besides, possessed a criminal jurisdiction which extended to all matters of
riot, disorder, blood, and slaughter committed within four miles of the
King's person, or of the Parliament or Council representing the royal
authority in the absence of the Sovereign. The office was reserved by the
Treaty of Union, and by the act for the abolition of heritable jurisdictions
in Scotland, 20 George II. c. 43 (1746).
The name of "constable" was
given also to the keepers or governors of the castles of the King or great
Barons. Such were the constables of the Tower of London, of Dover, Windsor,
Chester, and other fortresses, to the number in the time of Henry
II. of 1115. Every manor, it was held, should
include one such fortress, bearing the name of the manor, and ruled by a
constable. These offices of constable, or "castellan," as they were
frequently termed, were often hereditary. Every constable exercised a
criminal jurisdiction within the district attached to his castle, in the
same way as the sheriffs did within their respective bailiwicks; but the
mode in which they and other royal officers exercised their jurisdiction in
the trial of pleas of the Crown, excited so much complaint that an express
clause was inserted in Magna Charta, 1215 (§ 24), prohibiting every
"Sheriff, Constable, Coroner, or other our bailiffs," from "holding pleas of
the Crown." Reference is again made in the Statute of Westminster (3 Ed.
I.), c. 15, to the same description of constables as "constables of fees,"
alluding to their perquisites as keepers of the prisons, which formed an
important part of all ancient castles. In this character their oppressions
called forth the statute, 5 Henry IV. c. 10
(1403), which, after reciting "that divers constables of castles," under
"colour of their commissions" as justices of the peace, "take people to whom
they bear evil will, and imprison them within the said castle till they have
made fine and ransom with the said constable for their deliverance," enacted
that "none be imprisoned by any justice of the peace, but only in the common
gaol," saving the "franchise" of the lords and others who have gaols. This
statute, remarks Tomlins, "seems to have put an end to a race of tyrants,
who, by their misconduct, had rendered themselves odious to the people."
In Scotland we find the same
office of constable of castles. Throughout the kingdom, and especially in
the more important towns, there existed royal castles, established at once
for the defence of the country and the preservation of order. Each of these
castles was governed by an officer called a "constable," who enjoyed certain
lands attached to the office, known as "constable lands," and exercised
jurisdiction, frequently civil as well as criminal, over a circumscribed
territory around his fortress. From these offices, Chalmers conjectures, may
be deduced those jurisdictions in Scotland called "constabularies," several
of which—the constabularies of Haddington and Linlithgow for
example—continued to exist till comparatively recent times.
Many of these offices of
constable became hereditary in particular families. Thus the constableship
or keepership of the castles of Dunstaffnage, Carrick, Skipness, and others,
was vested in the family of Argyle. The constable-ship of Forfar belonged to
the Earl of Strathmore; that of Elgin to the Earls of Moray; the Earls of
Huntly were the hereditary constables of Inverness. The constableship of
Nairn was held by the family of Calder; that of Dundee was held successively
by the Scrymgeours of Dudhope, by Lord Halton, and by Graham of Claverhouse;
the Kennedys of Carmucks were constables of Aberdeen; the Erskines of Dun
were constables of Montrose; the Earls of Annandale were constables of
Lochmaben; and, subsequent to 1580, the constableship of Dumbarton Castle
was possessed successively by the Dukes of Lennox and Montrose.
Others of these offices were
granted for life, like that of Haddington to William Lindsay of the Byres;
but some, and among these probably the most important, as requiring in an
especial manner a delectus persona, like the constableships of the castles
of Edinburgh, Stirling, and during the earlier portion of its history,
Dumbarton, were conferred during the royal pleasure, for a period of years,
or for life.
Some of these constables of
castles, like the Lord High Constable, had the power to appoint, and
exercised their office by, deputies. In several cases, the sheriffship of
the county within which the royal castles were situated, was conjoined with
the office of constable. Thus the sheriffship, as well as the constableship,
of Elgin, was held in the reign of David II, by the Earl of March, who
conveyed both offices to William de Wallibus; the sheriffship of the shire,
and the constableship of the castle, of Dumbarton, were held successively by
the Earl of Menteith and by others; the sheriffship of the county, and the
constableship of the castle, of Edinburgh, were held by the same individuals
during the English occupation, and also, it is said, at the Restoration; and
in like manner there were associated with the constableships of the castles
of Roxburgh, the sheriffdom of Teviotdale, of the Castle of Dumfries the
sheriffdom of Nithsdale or Dumfries, of the Castle of Threve the stewardship
of Kirkcudbright,6 and of the Castle of Lochmaben the sheriffship of Wigton.
It would also appear to have
been the practice of the constables of royal castles to hold municipal
offices in the burghs adjoining. The practice was prohibited by the act of
the Parliament of James III., 1469, c. 5, which enacts "that na capitane nor
constable of the King's castellis, quhat toune thai evir be in, sail beir
office within the said toune as to be alderman, bailzie, dene of guild,
thesaurare, na nai other officiare that may be chosing be the toune, fra the
tyme of the next chosing furth to-cum." It did not, however, prevent Sir
William Kirkcaldy of Grange, George Douglas of Parkhead, and the Earl of
Arran, from acting both as provosts of the city and constables or captains
of the castle of Edinburgh in 1569, 1576, and 1584.
Most of these constables of
castles in Scotland had by grant, or claimed on the ground of prescription,
a right to proclaim in the burghs adjoining the castles of which they were
the keepers such fairs as had been established there, to levy the customs
belonging to these fairs, to exercise criminal jurisdiction within these
burghs while the fairs lasted, and to apply the fines and escheats of
delinquents to their own use. These powers, granted originally, according to
Lord Fountainhall, for the preservation of the King's peace in burghs, at
times when "there was a great resort and confluence of strangers, and much
bargaining and drinking, and so a probable fear of quarrels," which the
ordinary magistrates might not be able to put down without the "auxiliary
assistance" of the constable and his forces, appear to have been often
exercised most oppressively, and to have formed the subject of frequent
complaint. It was to remedy this state of matters, and on the complaint of
"the universal burghs," that an Act was passed in the Parliament of James
II., 1457, c. 9, prohibiting the taking of
distresses of goods of little quantity "for auld use and custum," and
regulating the exactions and distresses in regard to cattle and goods
brought to market in large quantities. This prohibition was renewed and
extended by an Act of the Parliament of James III. 1469, c. 9, which enacts
that the extortions referred to shall be "forborn in tyme tocum, and na sic
extorsiones be takin of the kingis liegiis under the payn of punycioune of
thair personis at the kings will, and to be put fra the executione of their
office for a zeir to cum."
So much were these rights and
privileges regarded as parts and pertinents of the office of constable, that
they,did not need to form the subject of special grant. When a royal castle
is disponed either in property or custody, the infeftment thereof, says
Stair, "carries therewith not only the bounds of the castle but the
dependencies thereof, as gardens, orchards, parks, meadows, and other
ground, possessed by the king or keeper for the use of the castle, and all
rents, annuities, jurisdictions, and privileges thereunto belonging, which
may be instructed by their charters, their court books, or other writs or
instruments, and even by witnesses proving long possession; so," adds he,
"though an infeftment of constabulary bear only in general offlcium
constabularii cum feodis et divoriis ejusdem, yet it was found [in the case
of the Earl of Kinghorn v. the Town of Forfar, 18th July 1676] to extend to
the proclaiming and riding of fairs anterior to the constitution of the
office, and exercising criminal jurisdiction in the town where the fairs
were held during these fairs, but not to extend to other fairs recently
granted by the King, or to any jurisdiction at other times."
About the same time that the
decision in the case of the Earl of Kinghorn was pronounced, however, Lord
Halton, Treasurer-Depute and Constable of Dundee, would appear to have
obtained from the Privy Council a decree, finding that, as constable, he had
the haill criminal jurisdiction within that Burgh firivatively, and the
civil jurisdiction cumulative and on this and other decrees obtained by that
official from the Court of Session, as it was then "packed," and of which he
was one of the judges, the Magistrates and burghers of Dundee appear to have
been subjected to a system of petty despotism, which, even in those days,
"caused great outcry." Although the privileges thus recognised were
exorbitant and in excess, according to Fountainhall, of what "the
Scrymgeours, former constables of Dundee, who were haughty and great men,"
ever possessed, the reports of these cases illustrate the nature of the
powers and perquisites of the office of constable, and so are worthy of
perusal.
A still inferior order of
constables were those whom the Bishops and Barons, following the example of
the Sovereign, appointed keepers of their castles, and who, according to
Chalmers, exercised authority over their peculiar district. Of this he gives
as an instance the case of William de Landeles, Archbishop of St Andrews,
who, in 1383, granted to John Wymes of Kirkaldie, and his heirs male, the
constableship of the castle and city of St Andrews, together with some
lands, and a power to substitute constables in case of minority.
All the inferior
constabularies in Scotland were abolished by the Act 20 George
II., c. 43, which, however, expressly reserved to
the possessors, their heirs and successors, the whole lands, feu and farm
duties annexed to these offices. The bailies of burghs, observes Bankton,
must exercise the constables' jurisdiction in relation to fairs, now that
these offices are extinguished.
Out of the high magistracy of
constable, says Lambard, an English lawyer, quoted both by Blackstone and by
Mackenzie, were drawn the inferior constables of Hundreds in England, from
which country, says Mackenzie, we have borrowed the office of constable, and
made it subservient to the Justices of the Peace. The connection between
offices so dissimilar as those of the Lord High Constable, or even the
constables of castles, and those of high and petty constables, is
unintelligible, without a reference to those Anglo-Saxon institutions which
form the basis of much that is most valuable in our national character and
political constitution. With the Anglo-Saxon, as with other branches of the
Teutonic race, all political relations rested on the basis of family and
kindred. His relation to the State was that of one of a family whose members
were bound to render mutual aid against violence; and this principle availed
not only for the protection of the country against foreign aggression, but
for the preservation of order and the prevention of crime, by the
maintenance of a system of police adapted to the state of society as it then
existed. The country was divided into various parts: first and primarily,
into Towns or Townships, which, in the Saxon acceptation of the term,
included originally the enclosure surrounding the homestead or dwelling of
the thane or lord, but was gradually extended to the whole of the land which
constituted the domain. Every township had its lord, and the ceorls resident
in it elected a gerefa, or reeve as chief officer, and "four good and lawful
men," who, with the reeve, represented it in the courts of the hundred and
shire. In order both to facilitate the organization of the inhabitants for
military purposes, and to afford better security against crime, recourse was
had, at a later stage of Anglo-Saxon development, to an old, and probably an
originally military, division of the country into Tithings, each of which
included the families of ten freemen, and was presided over by one of the
principal inhabitants annually elected by the others for that purpose, and
called the tithing man or head-borough, and in some countries tors holder or
borough ealder. In one or other of these tithings, every freeman, whose rank
and possessions were not in themselves a sufficient guarantee, was enrolled,
and as each member of the tithing was responsible for the good conduct of
the remaining nine, and so was supplied with a motive for vigilance, the
tithings of the kingdom were in fact its police,—the most effective system
possible in such a state of society. But the tithings did not limit their
supervision to cases of unlawful violence and crime. They took cognizance of
all matters which "compromised the public weal, or touched upon the rights
or well-being of others." The next division was that of Hundreds, or
Wapentakes as they were termed in the more northern counties, each hundred
including ten tithings, or one hundred families. The chief officer of the
hundred appears to have been called by different names at different times:
greve (gerefa), ealderman, comes stabuli, or bailiff} The hundred court met
usually once a month, and was attended by the thanes whose demesnes were
within its boundaries, and by the four men and the reeve of each township.
It was presided over by the ealderman or earl, assisted by the bishop. The
next great division was the Shire, composed of an indefinite number of
hundreds, and presided over by the comes, ealderman or earl, and the bishop.
Each shire had also its vice-comes or reeve, who, in the absence of the
ealderman, presided over the shire or county courts, in conjunction with the
bishop, and is still known as the sheriff [s/iire-reeve]. In ancient times
the sheriff was annually elected by the freeholders of the county, but now
the judges, certain great officers of State, and several of the Privy
Council, meet once every year in Exchequer, and propose three persons to the
Sovereign, who appoints one to be Sheriff for the year. The county court was
attended by all the thanes in the county, the four men and reeve of each
township, and by twelve men chosen to represent each hundred, but it is
doubtful whether any but the thanes had a voice in this court.
Such were the divisions of
the Anglo-Saxon body politic at the time of the Conquest, and great as were
the changes effected by the Conqueror, these divisions were not
substantially altered. Feudalism was indeed introduced, but the ancient
system of the Saxon laws was retained, and accordingly we find a writ or
mandate of Henry III. (1216-72), providing "that in every hundred there
should be constituted a chief constable, at whose mandate all those of his
hundred sworn to arms should assemble and be observant to him, for the doing
of those things which belong to the conservation of the King's peace." This
is stated to be the first instance in which reference is made in any
instrument to the "chief constable" of hundreds; but there is little room
for doubt that an officer with corresponding duties existed in Anglo-Saxon
times, and that the office itself, under another name, is of much earlier
origin. Again, when the statute of Winton or Winchester4 ordered every man
between fifteen and sixty years of age, according to his estate and degree,
to provide a determinate quantity of arms to keep the King's peace, two
"constables" were appointed to be chosen "in every hundred and franchise,"
to see that such arms were provided, and to present the defaults of armour
and of the suits of towns and of highways, &c. The enactments of this
statute,—changed by the 4th and 5th of Philip and Mary, c. 2, as regards the
description of the weapons to be provided,—were not repealed till the reign
of James I., in 1604. The constables thus appointed are what are called
constabulari capitales, or high constables, to distinguish them from the
class of officers of like nature, but inferior authority, who were appointed
for manors or townships, and tithings, and who are called sub-constabularii
or petty constables. The earliest reference to this subordinate officer
under the name of "constable," is probably the writ or mandate of Henry
III., to which allusion has been made, and by which it is provided, "that in
every village or township there should be constituted a constable or two,
according to the number of the inhabitants." It has, however, been
repeatedly acknowledged by great law authorities, that the constable is "one
of the most ancient officers in the realm for the conservation of the
peace;" and Coke, connecting him with the institution of frankpledge, under
the old institution of the tithing, identifies him with the tithing-man or
head-borough. So also Blackstone remarks, that in most places the petty
constable unites the two offices of tithing-man or head-borough, and of
constable and assistant to the high constable in the duty, common to both,
of keeping the peace.
The constable of the hundred
is elected at the leet or tourn of the hundred, or by the justices of the
peace. Until the passing of the recent Statute of 7th and 8th Victoria, c.
33, he was charged with important responsibilities connected with the
levying of local rates, and he has still a variety of special duties imposed
upon him which it is unnecessary to describe. The petty constable is chosen
at the leet, or where there is no leet, at the tourn; sometimes by the
suitors, and sometimes by the steward, and now in many towns and parishes by
the parishioners, all according to ancient and particular usage. In common
with the high constable, it is the duty of the petty constable to repress
felonies, and keep the peace, of which both are conservators by the common
law. They have also a variety of duties to discharge similar to those of the
constables in Scotland. These duties have reference, inter alia, to
the arresting of felons; the suppression of disorderly houses and persons ;
the following of the hue and cry under the statute of Winchester; the
apprehension of persons going armed, under the Act of Edward III., c. 3 ;
the searching for, and apprehending of, night walkers and suspicious
persons, either by night or by day (Edward III., c. 4); the punishment of
drunkenness (James I., c. 5); the prevention of Sunday profanation (Carl.
I., c. 1. and 29; Carl. II., c. 7); the levying of
penalties on profane swearers (10 George II., c.
21); the enforcement of the laws against vagrants, &cl
Thus, then, in England, we have the office of constable,
essentially military in its gradations, beginning as far back as the Norman
Conquest with the Lord High Constable, one of the chief officers of State,
whose prerogative it was to command the army and take cognizance of all
military affairs. Inferior in rank we find the constables of castles, royal
and baronial, still military, but entrusted at one time with the
conservation of the peace and the exercise of the civil duties of justices;
and stretching back to an antiquity probably still more remote, we find the
constables of hundreds and of tithings, originally the military leaders and
overseers, in matters of arms, of the freemen able to bear arms within their
respective divisions,—the constables of tithings bound to see that those
under them faithfully performed watch and ward, with all its attendant
duties,—and the constables of hundreds entrusted each with the
superintendence of the ten tithing men of his hundred. And then, as society
progresses, and the early arrangements of watch and ward give place to the
police system of modern times, and as parochial divisions are adopted for
the purposes of local government, the chief officers of the hundred and of
the tithing of Anglo-Saxon times become respectively the high constables and
petty constables of the present day.
In Scotland, also, we find the Lord High Constable and
the constables of castles with prerogatives and jurisdictions similar in
character, and as extensive as those of the corresponding offices in the
neighbouring kingdom. We have, however, none of the Anglo-Saxon divisions
into hundreds and tithings or townships; and the organization which existed
in England previous to the Conquest, for the preservation of order by the
appointment of conservators of the peace—an organization which originally
rested on a basis essentially popular—was scarcely possible in Scotland for
many centuries after that event. These conservators, wardens or keepers of
the peace, appointed originally by the freeholders in the County Court
before the Sheriff, and subsequently by the Crown, were, by the 34th of
Edward III., c. I. (1361), empowered to try felonies, and entitled Justices;
while in Scotland the first reference to Justices of the Peace is contained
in the Act 1587, c. 57, which empowered the Sovereign to appoint Justices of
the Peace. Again, "chief constables" of hundreds, and "constables" of
villages or townships, are, as we have seen, ordered to be appointed, by a
writ of Henry III. (about 1252) ; and this order, as regards constables of
hundreds, is renewed by the Statute of Winchester in 1306; while in Scotland
the first general Act for regulating the appointment and duty of constables
is that of 1617, c. 8.a Six years previous to this time, no doubt, the
Constables of Edinburgh were originated, but this was done under the
authority of Acts of the Privy Council in 1608 and 1611. Both of these Acts
of the Privy Council, as well as the Act of Parliament of 1617, it will,
however, be observed, are of a date subsequent to the accession of James
VI. to the throne of England (1603), and
subsequent, it must be presumed, to his and the Scottish parliaments having
discovered how well the English system of constables was fitted to enable
the Crown to exercise its increased authority, and to repress civil
disorder. That the office of constable thus instituted in Scotland was
borrowed from, and moulded after, that of the constableship of hundreds and
tithings in England, the similarity not only of name, but of many of the
duties, leaves little room for doubt. We may, therefore, regard the
Constables of Edinburgh under their modern title of High Constables, as the
offspring of the venerable Anglo-Saxon institutions of the sister country.
