Hue and Cry remained the only practical agency for the pursuit and capture of delinquents. The method of its application, by whom it was to be made, and the penalties that followed upon its neglect, are fully dealt with in an Act passed during the 27th year of this reign,[106] which declares that Hue and Cry is to be deemed lawful only when made by Horsemen and Footmen, "any usage or custom to the contrary notwithstanding." It is not clear what is meant by this restriction, but it is probable that the prohibition of man-hunting with the aid of dogs was intended. In cases where the fugitive was not apprehended, and where the inhabitants responsible for the capture refused to pay the amercement, the constables and headboroughs were authorised to distrain upon the goods and chattels of the obstinate parishioners, and to hand over the money realized by the sale thereof to the Justices.[106]
The system pressed hardly on certain Hundreds, which owing to their situation and local circumstances, were unable to apprehend all the peace-breakers of the neighbourhood, and which were often so poor that a heavy fine meant ruin to one or more families in the group. We find in consequence that petitions against amercements were not uncommon: in 1597, for instance, the poor inhabitants of Benhurst in Berkshire had to appeal to the clemency of the Queen on account of the constant penalties imposed on them, some at least of which they thought should be borne by the neighbouring town of Maidenhead. The language in which this appeal is couched is so quaint and pitiful that their own words are given. "That whereas the said Hundred doth consist only of five small villages and three small Quillets or Hamlets, and hath lying through it two great highways: the one leading from London to Henley-on-Thames and the other from London to Reading: and either of them at the least three miles in length within the Great Woody Ground called the 'Thicket'—and no-one of the same villages standeth upon or adjoining to either of the said ways, but lie dispersedly far from the same: neither have the inhabitants of the same Hundred any open or common fields, either arable or other, adjoining or lying near to such parts of the same ways (within the said Thicket) as are most apt for robberies to be done, whereby they may have their servants or workmen labouring within the view of the said ways, to take notice of the robberies done: and therefore the said inhabitants cannot well have any speedy notice or intelligence of any robbery which shall be there committed unless the Party or Parties robbed should give the same unto them."[107] It is to the Queen's credit that the inhabitants of Benhurst in Berkshire did not appeal in vain to the royal clemency.
When in 1595 the civil arm was found insufficient to put down the riotous proceedings that disturbed the peace of the Home Counties, its shortcomings were made good by the supplemental employment of the military power. Elizabeth has been accused of proclaiming Martial Law when its application was not warranted by the exigencies of the case.[108] It is difficult for us at the present day to determine how grave were the disturbances that induced the Proclamation in question, or how far the ordinary methods of control had been tried and found wanting; but it is certain that no adequate police existed to quell anything in the nature of a serious riot. It was no doubt discreditable to the Government that such should be the case, but it was a discredit that it shared with all preceding Governments, and one that attached with a greater degree of culpableness to all subsequent Governments down to the year 1829. Given an unlawful and violent assembly of riotous persons, and the lack of any civil force strong enough to disperse them, it is difficult to see the practicability of any alternative measure to that of calling out the troops. The Commission given to Sir Thomas Willford in 1595 did not amount to Martial Law in the usual acceptation of the term, that is to say, the ordinary Law was not to be entirely superseded, the Provost Marshal was only to "speedily execute" those offenders whom the Justices of the Peace signified as deserving of death, and such sentence was to be carried out in the presence of the Justices who had had judicial cognisance of the offence. The only additional powers granted to Sir Thomas Willford were those by which he was authorized to "repair with a convenient company," and "calling to your assistance some convenient number of our justices and constables abiding about the said places, to apprehend all such vagrant and suspected persons, and them to deliver to the said justices, by them to be committed,"[109] etc., etc. The powers, in fact, given to the soldiers on this occasion were solely executive; no one was to be tried by Court-Martial; the verdict lay with the civil power; and only the carrying out of the sentence rested with the military authorities.
At no time of our history have the duties of the Justice and the tasks of the constable been more varied and onerous than they were at the period we are considering. The jurisdiction and control of these officers reached to the furthest corners of the social edifice; they had to see that the labourers rose betimes and did not take too long over their meals, nor might the country parson marry without "the advice and allowance"[110] of two Justices of the shire. All these multifarious duties they performed for the most part without pecuniary reward, the only fee to which they were entitled being the sum of five shillings for each day they sat in the execution of the Statute of Labourers. On the whole it must be allowed that they carried out the duties entrusted to them both with credit to themselves, and to the public advantage; for whilst Sheriffs, Under-Sheriffs, and Bailiffs were for ever giving cause for complaint on account of their "misdemeanour and evil behaviour," it was a rare occurrence for a Justice to be accused of extortion or injustice, and crime was far less common at this time than it afterwards became. Contemporary writers, however, criticise the county magistracy with some severity. Freak, the Bishop of Worcester, for example, writes to the Lord Treasurer in 1587, giving his opinion of the Justices of the Peace: "I do observe some weakness in that number: divers of them being but superficial, either for advice or for execution of any weighty affaires of the county," whilst Shakespeare is very hard upon all police functionaries as he knew them. Mr Justice Shallow, representing the Bench, Dogberry and Verges of the Watch, as well as Elbow and Dull of the Constabulary, are all treated with good-humoured contempt. The dramatist's account of the interview between Escalus and Elbow is of particular interest because it illustrates the evils of the system of deputy which clung to the office of parish-constable until forty or fifty years ago.[111]
The sort of difficulties that magistrates had to contend with, owing to the slackness of the constabulary, are graphically described in a letter dated 1596 in the course of which, Mr Hext, then a Justice of the Peace for Somersetshire, complains officially to the Lord Treasurer that thieves and robbers had grown so cunning, through having often been in gaol, that these old hands could seldom be laid hold of. "Others," he writes, "are delivered to simple constables and tything-men, that sometimes wilfully, and other times negligently suffer them to escape." After suggesting that steps should be taken to punish all keepers of ale-houses who harbour suspicious persons, and all constables and tything-men who suffer them to be at large, he goes on to explain how difficult it is to get the country people to prosecute in cases of theft, "for most commonly the most simple country man and woman, looking no further than to the loss of their own goods, are of opinion, that they would not procure any man's death for all the goods in the world." This same reluctance to prosecute, as we shall see, hindered the administration of justice for many generations, and the question of how best to remove it, is to this day a police problem, that has only been partially solved by the comparatively recent institution of the office of Public Prosecutor. Mr Hext was either very credulous, or thieves' appetites must have been prodigious in the sixteenth century, for in the same letter he describes how "within this three months I took a thief, that was executed this last assizes, that confessed unto me, that he and two more lay in an ale-house three weeks: in which time they eat twenty fat sheep: whereof they stole every night one." Finally he gives a woeful account of the Egyptians (i.e. Gypsies) that infested his county. "The inhabitants," declares the magistrate, "being wonderfully grieved by their rapines, made complaint at our Easter Sessions, after my Lord Chief Justice's departure: precepts were made to the tythings adjoining for the apprehending of them. They made answer, but (the Gypsies) were so strong that they durst not adventure of them: whereupon precepts were made to the constables of the shire: but not apprehended, for they have intelligence of all things intended against them.... And they grow the more dangerous in that they find they have bred that fear in Justices, and other inferior officers, that no man dares call them in question."[112]
From all this it is clear that the police organization left much to be desired. The country, in fact, was not yet ripe for a good police. With the central government corrupt, the superior courts venal, the upper classes of society prone to violence, and the masses for the most part unacquainted with justice, the sixteenth century would have found a good police force according to our standard, about as useful and as easy of comprehension as they would an Edison's phonograph or a modern treatise on the Spectrum Analysis.
The police administration of the seventeenth century differed but little from that which had gone before, no real advance being discoverable either in the theory or practice of peace-maintenance. Certain changes were indeed taking place from year to year, as old customs fell into disuse and as ancient words acquired new meanings; but, on the whole, growth and decay were almost evenly balanced. If it is admitted that the duties of a constable, and the matters that fell within his province, were now more clearly defined than heretofore, it must also be confessed that he was permitted to shirk his work more than ever. This slackness of performance may be clearly demonstrated by a comparison between the oaths taken by High and Petty Constables respectively, on their appointment, and the copious evidences of neglect that are everywhere apparent. Before his admission to office an oath was administered to the High-Constable-elect in these words:—"You shall swear, That you shall well and truly serve our Sovereign Lord the King in the Office of Constable. You shall see and cause His Majestie's Peace to be well and truly kept and preserved according to your power. You shall arrest all such persons as in your sight and presence shall ride or go armed offensively, or shall commit or make any Riot, Affray, or other Breach of His Majestie's Peace. You shall do your best endeavour (upon complaint to you made) to apprehend all Felons, Barretors, and Rioters, or persons riotously assembled: and if any such offenders shall make resistance (with force) you shall levy Hue and Cry, and shall pursue them until they be taken. You shall do your best endeavour that the watch in and about your Hundred be duly kept, for the Apprehending of Rogues, Vagabonds, night-walkers, Evesdroppers, Scouts, and other suspected persons, and of such as go armed, and the like: and that Hue and Cry be duly raised and pursued according to the Statute of Winchester, against Murderers, Thieves, and other felons: and that the Statutes made for the punishment of Rogues and Vagabonds, and such other idle persons as come within your bounds and limits be duly put in execution. You shall have a watchful eye to such persons as shall maintain or keep any common house or place, where any unlawful game is or shall be used: as also to such as shall frequent or use such places, or shall use or exercise any unlawful games there or elsewhere, contrary to the Statutes.
"At your Assizes, Sessions of the Peace, or Leet, you shall present all and every the offences done contrary to the Statutes made 1 Jacobi, 4 Jacobi, and 21 Jacobi Regis, to restrain the inordinate haunting and tippling in Inns, Alehouses, and other Victually Houses, and for repressing of drunkeness: you shall there likewise true presentment make of all Bloudsheddings, affrays, outcries, Rescous, and other offences committed or done against the King's Majestie's Peace within your limits: You shall once every year during your office present at the Quarter Sessions all Popish Recusants within your liberty, and their Children above 9, and their servants, (scil their monthly absence from the Church).[113] You shall well and duly execute all precepts and Warrants to you directed, from the Justices of the Peace of the County or higher Officers: you shall be aiding to your neighbours against unlawful purveyances: in time of Hay or Corn Harvest, upon request, you shall cause all persons meet to serve by the day for the mowing, reaping, or getting in of Corn or Hay: You shall in Easter week cause your Parishioners to chuse Surveyors for the mending of the Highways in your parish or Liberty; and you shall well and duly, according to your Knowledge, Power, and Ability, do and execute all other things belonging to the Office of Constable, so long as you continue in the said Office. So help you God."
If the obligations here enumerated had been effectually carried out, the King's Peace might have been a reality instead of the meaningless formula it had become; but High Constables were not professional police-officers like our Chief Constables, nor were they county magnates like the High Constables who once had superintended the police of the shire. The status of the office had steadily declined: instead of the great noblemen who, as we have seen, occupied similar posts under the Plantagenet Kings, and instead of the "Yeomen of the better class" spoken of by Lord Bacon, we find ale-house keepers and petty tradesmen, hardly less ignorant than the petty constables they were supposed to instruct, undertaking the office for the sake of profit, without any special aptitude, knowledge, or experience of their important duties, and without any serious intention of learning their work; for as no inducement or encouragement was held out to tempt or stimulate them to exertion, they were as inefficient when they relinquished their task as they were when they undertook it.
The form of oath required of petty constables, or Tything men, as they were still called, was as follows—"You shall swear that you shall well and truly execute the office of a Tythingman of the Tything of H. (or headborough, etc.). His Majestie's Peace in your own person you shall keep, and see it kept in all others, as much as in you lieth. In the presence of the High Constable you shall be aiding and assisting unto him: and in his absence you shall execute his office, and do all other things belonging to your office, according to your knowledge and Power, untill another be chosen in your room, or you shall be legally discharged thereof.—So help you God."