from the common gaol; and it is now accordingly provided that any justice or coroner acting within their several jurisdictions in England and Wales, may commit for safe custody to any house of correction situate near the place where such assizes or sessions are intended to be holden, any person charged before them with any offence triable thereat: and whenever any such persons are so committed for trial at such assizes or sessions, the keeper of such house of correction, shall deliver to the judges of assize or justices at sessions a calendar (i) of all prisoners in his custody for trial at such assizes or sessions respectively, in the same way that the sheriff of the county is by law required to do when prisoners are committed to the common gaol of the county (j).

Persons convicted at sessions of any offence for which they are liable, either to transportation or imprisonment, may be committed to any house of correction for the county in execution of the judgment, and in case of commitments of persons either sentenced to transportation, or pardoned for a capital offence on that condition, all the powers given by former acts to sheriffs and gaolers for removing offenders so sentenced, are extended to the keepers of houses of correction having such offenders in their custody (k).

The salaries and allowances of the keepers and other officers in the gaols are all within the control of the justices of sessions; who may also grant a superannuated keeper such annuity as they may think proportioned to his merits and length of service (1).

SECTION VII.

OF CONSTABLES.

High or Chief Constables, their Appointment and Duties.]-Whether high or chief constables, (viz., constables of hundreds, wapentakes, &c.,) originated with the statute of Winton, 13 Ed. I. st. 2, c. 6, which mentions them, or came in with justices of peace in 1 Ed. III. (st. 2, c. 16) as their proper officers, or existed at common law as subordinate to the ancient conservators of the peace, was vexata questio (m); but

(i) Per Williams, J., 2 Ad. & El. 808, R. v. Antrobus, 4 Nev. & M. 580. "A calendar is a mere memorial made out for greater certainty, lest by mischance there should be any mistake as to the judgment which is the binding thing." (j) 5 & 6 W. IV. c. 38, s. 3.

(k) 5 & 6 W. IV. c. 38, s. 4.
(1) 4 G. IV. c. 64, s. 26.

(m) See per Twisden, J., Hornby's case, 1 Mod. 13; Reg. v. Wyatt, 1 Salk. 380; Dalt. c. 28; 2 Hawk. c. 10, s. 33; Vin. Ab. tit. Constable (A); 1 Bla. Com. 115; Dougl. 28-30.

the preponderance of authority seems to show the latter (n). The high constable is an officer of high importance, as forming the link between the acting portion of the magistracy, and all the petty constables and overseers throughout the hundred or division. He has the same authority as the petty constable in breaches of the peace; and both were formerly appointed by the sheriff in his court of record, the tourn (0), unless there was a feudal lord of the hundred who had a leet; in which case he was high constable, and his steward of the leet admitted the petty ` constables chosen there by the homage (p).

However, after the disuse of the sheriff's tourn, the right of appointing a high or chief constable devolved on the general body of the justices of the county, or of the riding in Yorkshire, or division in Lincolnshire (q), to be exercised nowhere but at their general or quarter sessions (r). But now by 7 & 8 Vict. c. 33, s. 8, where high constables have heretofore been usually appointed at quarter sessions, high constables of such places shall hereafter be appointed by such justices as may be present at the special sessions of their division, held for the purpose of hearing appeals against the rates of the several parishes in such division, or at any adjournment thereof; but if the hundred, or other like division of the county for which any high constable is to be appointed, be not included within the limits of any one division of the county for which such special sessions are held, then the justices of the peace for the county assembled at general quarter sessions, or any adjournment thereof, may from time to time determine the division of the special sessions at which such high constable for the time being is to be appointed, and shall cause notice of such determination to be sent by post or otherwise to the high constable for the time being of such hundred or other like division; and every high constable, whether appointed at a special sessions or at adjournment thereof, or at a court leet, or any other special court, shall if present at the time of his being appointed then and there take his oath for the due execution of his office; and if otherwise, he shall forthwith on the receipt of his appointment go before the next or some other justice of the peace for the county in which he resides, and then and there take his said oath of office; and he shall not in virtue of his office of high

(x) See authorities collected arguendo, Reg. v. Watkinson, 2 P. & D. 619; 10 Ad. & E. 288, S. C.

(0) 4 Inst. 265.

(P) Dalton, c. 28; Bac. Ab. tit. Constable (A) 683. See per Lord Tenter

den in R. v. Adlard, 4 B. & Cr. 779; and other cases cited, post.

(q) See Evans v. Stevens, per Lord Kenyon, 4 T. R. 227.

(r) Reg. v. Watkinson, 10 Ad. & E. 288.

constable be required to take any other oath than the said oath for the due execution of his office.

Since this act, it may be doubtful whether they can any longer be sworn in except as above (s). They are bound to attend the quarter sessions (1), in order to make return of the warrants directed to them previous thereto (u), to receive the instructions of the justices, to report the state of the queen's peace within the division, and if required by the justices (there assembled) to give security to account for county rates by them received (v). They may also be required by the sessions to account for the general county rate by them received, on pain of being committed to gaol until they shall so account (w); and to pay over the money in their hands according to the order of the said court, on the like penalty (x). And all the accounts and vouchers shall, after having been passed at the said sessions, be deposited with the clerk of the peace, to be kept among the records, and inspected by any justice without fee (y). But high constables appointed since 1st Oct. 1844, are discharged of collecting county rates (z).

Petty Constables.]-Petty constables are officers at common law (a), They must attend the sessions, and are called over, and fined by the court if they do not answer (b), or use contumelious language to it (c). Their duties relative to their parishes are, in a great degree, similar to those of the chief constables respecting the hundreds, with some additional ones; such as reporting the state of their respective parish stocks (d), giving evidence respecting the execution of warrants wherewith they may have been charged (e); and all other matters pertaining to their office, both as conservators of the peace, and as ministers of the justices attending the court, to keep it; also attending the grand and petit juries during their sittings.

(w) 12 G. II. c. 29, s. 8.

(x) Ibid. see s. 6 of same act.

(y) 12 G. II. c. 29, s. 8; 55 G. III. c. 51, s. 12.

(z) 7 & 8 Vict. c. 33, s. 5.

(a) Comprehending for this purpose, tithingmen, borsholders, headboroughs, third boroughs, and chiefpledges. See 1 Burn's Just. tit. Constable.

(b) Dalt. c. 185.

(c) Anon. 1 Ventris, 336; R. v. Loveden, 8 T. R. 617.

(d) Seems unnecessary since 7 & 8 G. IV. c. 38.

(e) See Burn's J. tit. Constable, s. 3.

Petty Constables, how appointed and sworn; see 5 & 6 Vict. c. 109, ante.]-At common law, petty constables were appointed by the homage in courts leet, or views of frankpledge, consisting of all the inhabitants and residents within the district, or in the sheriff's tourn; and though this usage was departed from in many instances from the disuse of those courts, it was paramount to all others where it still remained (ƒ); so that as the right of appointing a petty constable was primâ facie in the leet, if there had been no default there, the sessions had no power (9). But now by 5 & 6 Vict. c. 109, s. 21, (which see ante) no petty constable, headborough, &c., is to be appointed for any parish, township or vill not excepted in the act at any court leet or tourn, or otherwise than under that act.

If a petty constable refused to be sworn in before a justice, he could not be committed (h), but might be bound over to the assizes or sessions of the peace, and be there indicted for such his contempt (i). If being present at the leet, he refused the office, the steward might fine him (k); and if absent, the homage presented his refusal at the next court, where he was amerced (1), and if warranted by custom, the amerciament was distrained for (m). If there was no such custom, the remedy was by action of debt (n); and in all cases where a high or petty constable duly chosen, refused to take on himself the office and to be sworn in accordingly, within a month after his appointment, he might be indicted at the sessions or assizes; when, if he did not establish a valid defence of unfitness, e. g. non-inhabitancy in the district or parish, not dwelling conveniently, being of weak body, chosen from spleen, attendance in public courts, &c., &c., he was liable to be pun

(f) See per Lord Tenterden, C. J., in R. v. Adlard, 4 B. & Cr. 779; Stepney (Constable's) case, 1 Bulstr. 174; Limington (Constable's) case, Stra. 798; Com. D. tit. Leet, (M 6); Vin. Ab. tit. Courts (I. a.), and tit. Constable (B); R. v. Barnard, 12. Mod. 115.

(g) R. v. Goudge, Stra. 1213; Fitzgib. 192; R. v. Routledge, Doug. 536. So much of the act 29 G. II. c. 25 (applying to Westminster), "and of any other act as required or authorized the appointment of any constables or high constable at any court leet, was repealed by 2&3 Vict. c. 47, s. 1; and as the neglect of holding courts leet, or of taking care that petty constables are there appointed, was very general, it was common to find them nominated as of necessity by their respective parishes in vestry, wardmote,

&c., or by justices in sessions and sworn into office by such justices, R. v. Hewson, 12 Mod. & M. 180, per Holt, C. J. This last was said by Hawkins to be on every account the better and more regular mode. Hawk. B. 2, c. 10, s. 37; and see R. v. Franckard, Stra. 1149.

(h) Dalt. c. 28; Dyer, 29.

(i) R. v. Crawley, Cro. Car. 567; 2 Hawk. c. 10, s. 46; Greisley's case, 8 Rep. 38; R. v. Love, Stra. 920.

(k) Reg. v. Dasey, Salk. 175.
(1) Ibid.

(m) Fletcher v. Ingram, ibid.; 1 Lord
Raym. 69; 12 Mod. 88; 1 Kenyon's
L. R. 618. See R. v. Mosley, 3 Ad. &
E. 488; 5 N. & M. 461, S. C.

(n) See 1 Chitty on Pleading, 4th edit. 99.

ished by imprisonment or fine (o). This remains the law as to high constables (p), and also comm. semb. as to petty constables, headboroughs, &c., in Cheshire and other places excepted by 5 & 6 Vict. c. 169, s. 21.

Appointing Petty Constables in Places where none were before.]The justices in general or general quarter sessions seem still to be the judges when to appoint petty constables for villages that have not had any before (2). The present provision for appointing a constable in room of any constable, on his death (r) or "disqualification" during his year of office, is 5 & 6 Vict. c. 109, s. 16, ante.

Constables in Towns Corporate.]-In towns not having town councils within 5 & 6 W. IV. c. 76, the corporations cannot choose constables as of common right; but by custom they may, as having the government of the place reposed in them; they must, however, prescribe for it (s). Before the municipal corporation act just mentioned, charter justices in a borough had the same authority in these cases, e. g. of creating a high constable, as justices under a general commission (t); but now, in boroughs having town councils, the appointment of constables is regulated by watch committees, see 5 & 6 W. IV. c. 76, s. 76.

Compelling Justices to swear in Constables.]—The queen's bench would grant a mandamus to compel the justices to swear in such constables as had been duly appointed (u).

Oaths of High and Petty Constables.]—High (or chief) constables are no longer required to take any oath but that for the due execution of the office (x). Petty constables are required only to take the oath

(0) See R. v. Adlard, 4 B. & Cr. 772; Dyer, 31; R. v. Mosley, Bart. 3 Ad. & E. 492 (fine of 3001. overruled); Dalt. c. 29; Vin. Abr. tit. Constable; Dyer, 31, Com. Dig. tit. Privilege.

(p) See 7 & 8 Vict. c. 33, s. 8.

(q) Chorley (Village) case, 1 Salk. 175; 3 Salk. 98, S. C. It is there said a hamlet has no constable, but a vill may. See also S. C. nom. R. v. Hewson, 12 Mod. 180; Holmby (case of Constable of), 2 Keb. 557; Bac. Ab. tit. Constable (A), 684. See 5 & 6 Vict. c. 109, s. 4, ante.

(r) By 13 & 14 C. II. c. 12, s. 15, the death or "going out of the parish" of the constable during his year was provided

against. Quære, if this last is a "disqualification," within 5 & 6 Vict? The appointment must under 13 & 14 Car. II. have strictly complied with that act. Thus, if for a year, or till others be chosen," it was quashed, R. v. Lisle, Stra. 1090; R. v. Davis, Stra. 1050; 2 Hawk. P. C. c. 10, s. 50; Dalt. c. 29.

(8) R. v. Bernard, 2 Salk. 501; 1 Lord. Raym. 7, 94; 12 Mod. 115; Skinn. 669, pl. 5.

(t) Weatherhead v. Drewry, 11 East, 168. See R. v. J. Green, 6 T. R. 228; R. v. Leicester (Justices), 3 B. & Cr. 6.

(u) Hawk. B. 2, c. 10, s. 47.
(a) 7 & 8 Vict. c. 33, s. S.