CHAPTER I

ANGLO-SAXON AND NORMAN POLICE

In the days before the attainment of English unity, the maintenance of the peace was the care of certain local institutions and bodies, the nature of which need not here be specified. The Anglo-Saxon period of our history being one of continual change and gradual development, the maintenance of the peace cannot be treated as a homogeneous whole before the various arrangements which secured it had been consolidated, and, for the first time reduced to a system, by Edgar. From this time onwards, however, the whole of the now united England may be said to have enjoyed a general guarantee for public order under the name of the "King's Peace," so called because the king guaranteed, or at least promised, to his subjects, a state of peace and security in return for the allegiance which he demanded from them.[4]

As "the highest maintainer of the peace," the king claimed an actual police supremacy, and was not content with a mere title. Moreover, by virtue of his position as Commander-in-Chief, he had the power of enforcing compliance with the rules of the peace, of which he was the chief guardian and exponent. An English king was not only the hereditary ruler of his people, he was their chosen chief magistrate also. The idea that the peace and orderliness of the kingdom intimately depended upon the personality of its ruler was so deeply rooted that, at his death, the "King's Peace" was held to have lapsed, and, on their accession, English sovereigns were wont to make proclamation afresh of "general peace orders," an example which was followed by William the Conqueror and his successors.[5] Referring to the death of Henry I., a chronicler writes: "The king died on the following day after St Andrew's mass day, in Normandy, then there was tribulation in the land, for every man that could, forthwith robbed another ... a good man he was, and there was great awe of him. No man durst misdo against another in his time. He made peace for man and beast."[6]

The King's Peace was of two kinds: there was the public peace of the realm, common to all men; and there was the private peace proper to the king himself, designed to safeguard his person, to uphold his dignity, and to secure his interests in every way. This royal peace, as it may be called, was especially concerned with certain places, seasons, and individuals; a special measure of protection was accordingly extended to the king and his nobles, to nuns, widows and clergy; whilst breaches of the peace which occurred on Coronation days, on Fast days, and the like, or which were committed in the vicinity of the royal palaces or upon the "King's Highway," received exemplary punishment from the royal judges. The public peace, on the other hand, afforded protection to all alike, to the exclusion only of the "unfrith," as those men were called whose crimes placed them without the pale of society, or who, holding no land, yet failed to enrol themselves in a "tything."

The police system which, under the king, maintained the peace was partly organised on the basis of land tenure. As in the Sudan to-day the Omdah is held responsible for the robberies committed in his district, and as in China the head of a family may legally be called upon to answer for the transgressions of his kinsfolk, so King Alfred looked to the thane[7] to produce the culprit or satisfy the claim. The plan adopted counted on the assistance of self-interest for its complete success; the thane being a landed proprietor and consequently unable to dispose of his property secretly, was security to the king for all the members of his household--if any of them broke the law, his over-lord the thane was careful to bring him to justice. Yet poverty brought no exemption to the landless freeman. He too had to find a guarantee for his good behaviour; if he was unable to attach himself to some thane, he was compelled to combine with others in the same position as himself, in order that their joint goods or aggregate credit should provide sufficient bail for the shortcomings of any member of the society: the penalty incurred by those who could not, or would not, thus find the required security was that they were forbidden to possess cattle, and were no longer under the protection of the law. Freemen, therefore, who had no freehold, banded themselves together into "tythings": a tything consisted of the inhabitants of ten homesteads, and the members elected one of their number to be their "headborough,"[8] who thus became their representative, and was responsible for the community.

The police organisation which we are considering is generally spoken of as the "Frankpledge system," frankpledge signifying the guarantee for peace maintenance demanded by the king from all free Englishmen, the essential properties of this responsibility being, that it should be local, and that it should be mutual. As we trace the history of police in England we shall see that these two qualities have survived through the successive stages of its evolution, and seem to be inseparable from our national conception of police functions.

The development of this system led to the institution of the Hundred,[9] which, as its name implies, was a group of ten tythings, under a responsible head. Hundreds as well as tythings had definite police functions to perform: when a crime was committed, information had to be at once given to the hundred-men and tythingmen of the district, and it was their duty to pursue, arrest, and bring to justice all peace-breakers. In the event of the non-appearance of a culprit at the court of justice to which he was summoned, his nine fellow-pledges were allowed one month in which to produce him, when, if he was not forthcoming, a fine was exacted, the liability falling, in the first place, on any property of the fugitive that might be available, in the second place, on the tything, and,--should both these sources prove insufficient to satisfy the claim,--on the Hundred.[10] Furthermore the headboroughs were required to purge themselves on oath, that they were not privy to the flight of the offender, and to swear that they would bring him to justice if possible. On the other hand, if any member of a tything was imprisoned for an offence, it was not customary to release him without the consent of his fellow-pledges, even though the fine had been paid.[11]

The practice of levying police fines from hundreds and tythings was an old one, and the limits of its application were clearly defined by Edgar: "and let every man so order that he have a surety, and let the surety then bring and hold him to every justice: and if anyone do wrong and run away, let the surety bear that which he ought to bear. But if it be a thief, and if he can get hold of him within twelve months, let him deliver him up to justice, and let be rendered unto him what he before has paid."[12]

The fines[13] that were exacted, called respectively fightwitt, grithbryce, and frithbrec, differed in character, and varied in amount. When several persons had participated in a common crime the fine was payable by all who had a hand in it; an infraction of the peace by seven associates constituted a riot, and if thirty-five persons were concerned, the breach amounted to a rebellion.

Distinct from the official police societies, created by the central government for the general security, there also existed certain private and voluntary associations called peace-guilds, entered into by the inhabitants of London and other towns for their own protection. Each guild consisted of members arranged in ten groups under ten headmen, one of whom acted as chief of the guild and treasurer, the remainder forming a kind of consulting committee to discuss and advise upon the various interests of the associations at their monthly gatherings. The object of these guilds was simply mutual assurance, and each member had to pay fourpence to a common fund, out of which subscribers were compensated for any loss they might sustain through theft, the treasurer being authorised further to contribute a sum not exceeding one shilling towards the apprehension of delinquents.

The military and police systems were closely allied: the national militia was organised in tythings and hundreds, and had a place to fill in the complete design of peace maintenance; its embodiment was not only resorted to in time of war, it was also liable to be called out by "summons of the array" if disturbances were feared, or even for the pursuit of a single fugitive from justice, but its members could not be called upon to serve beyond the limits of their respective shires except to repel invasion. Every free Englishman between the ages of fifteen and sixty (the clergy and infirm only excepted) was liable to be called upon to perform three public services[14] for the peace of the commonwealth; he was bound to assist in repelling invasions, in crushing rebellions, and in suppressing riots. The Sheriffs therefore who were responsible for the conservancy of the peace in the hundreds were enabled to muster the _posse comitatus_, or whole available police force of the shire, in case of emergency. All men went armed in those days, and since the members of a tything were obliged on the summons of a headborough to join in the pursuit, the cry of "Stop thief" was a formidable weapon in the hands of the local executive.

The Anglo-Saxon conception of police functions is thus clearly intelligible: the internal peace of the country was held by them to be of the first importance, and every free man had to bear his part in maintaining it; theoretically all men were policemen, and it was only for the sake of convenience that the headborough (or tythingman as he came to be more generally called) answered for those of his neighbours, on whom he had to rely in case of necessity. The word "peace" was used in its widest possible meaning, and a breach of the peace was understood to include all crimes, disorders, and even public nuisances. The principle on which the police system was based was primarily preventive. "The conservancy of the peace," says Lambard, "standeth in three things: that is to say, first, in foreseeing that nothing be done that tendeth either directly or by means to the breach of the peace; secondly, in quieting and pacifying those that are occupied in the breach of the peace; and thirdly, in punishing such as have already broken the peace." Our Saxon ancestors did not spend much time in "quieting" or "pacifying"--a lawbreaker was at war with the community and received no quarter--but in other respects Lambard's definition applies.

It was assumed that all but a small minority of the king's subjects were, to use a modern phrase--good citizens--and personally interested in keeping the king's peace inviolate; and that they might therefore safely be trusted to do everything in their power to preserve it, without any necessity arising for the use of coercion. Had all men been equally trustworthy in this respect no police measures would have been required and none devised; but there existed on the fringe of Anglo-Saxon society, as will occur with all societies, a certain number of delinquents perpetually on the look-out for opportunities of preying on their fellows, and the decennary system of police, as it may be called, was an attempt to hold in check this lawless minority without having to raise and permanently support an expensive or elaborate force for its suppression.

The design was to group all honest men into convenient companies, excluding therefrom and from the benefits that civil government could then confer, not only those men who were living in open defiance of the rules laid down by society for its protection, but those men also, whose reputation for honesty and fair dealing did not stand high enough in the estimation of their neighbours to induce a sufficient number to accept a share of responsibility for their defaults. By this means a fence was set up which divided with a fair degree of accuracy the law-breaking section of society from the law-abiding, the problem of peace-maintenance being much simplified thereby; it was not the declared enemy nor the recognised outcast that was feared; the former might be met with superior force, and the latter could be kept down like vermin, it was the danger of the wolf within the fold that alarmed our ancestors. The dread of secret crime is a deeply-seated national characteristic, and accounts for the savage treatment served out to witches and Egyptians (as gypsies used to be called) through the middle ages and almost up to our own times. Alfred the Great reflected this feeling when he drew a distinction between cutting down a neighbour's tree with an axe and burning it with fire, the latter offence being declared the more heinous of the two, not as one might suppose, because of the danger of the fire spreading to other trees, but because of the clandestine character of the deed, it being open to the offender if detected to declare the burning to be accidental, a plea that he could not advance if the axe was used.

A detected criminal was either fined, mutilated, or killed, but punishment, as we now understand the term, was seldom inflicted; that is to say, the dominant idea was neither to reform the culprit nor to deter others from following in his footsteps. If a man was killed it was either to satisfy the blood-feud or to remove him out of the way as a wild beast would be destroyed; if a man was mutilated by having his forefinger cut off, or branded with a red-hot iron on the brow, it was done, not so much to give him pain, as to make him less expert in his trade of thieving, and to put upon him an indelible mark by which all men should know that he was no longer a man to be trusted; if fines were levied, it was more with a view to the satisfaction of the recipients of the money or cattle or what not, than with the intention of causing discomfort or loss to the offender.

The distinction that we now make between remedial and legal justice was theoretically held by the Anglo-Saxons, that is to say, repayment in money or kind for a civil offence, and death or some less punishment for an offence against the criminal code was recognised in their penal administration; but at the same time fines to expiate criminal injuries were also allowed, both in the shape of amercements to the Crown and of compensation to the injured. Homicides rendered themselves liable to a triple penalty, which, it appears, was the same whether the killing was wilful or whether it was accidental--one third part, called "Maegbote," being assigned to the next-of-kin to compensate him for the death of a relative; a second portion, or "Manbote," reconciling the thane to the loss of his vassal; and the remaining share, known as "Wite," passing to the king on account of the violence done to his peace.[15] Only offences of a particularly heinous description were "bootless" (bote-less), as those crimes for which no compensation was permitted were called--of such a nature were murder when committed in a church, and the slaying of a man asleep.

The fines payable by the aggressor in cases where minor personal injuries had been inflicted were carefully graduated; thus, for a cut one inch long on the face, the sum of two shillings had to be paid; if the wound was underneath the hair only half that sum was exacted; but should the victim have suffered the loss of an ear, he was compensated to the extent of thirty shillings, and so on.[16]

It would offend our modern ideas of justice if a murderer were allowed to go free on payment of a sum of money to the relatives of his victim, still more so if a portion of the fine went to the Sovereign; but the practice is common amongst semi-civilised communities, to whom the complex and costly methods we now employ would be at once unintelligible and impracticable.

When it came to a question of proof, reliance was placed, in the absence of any surer method of discovering the truth, upon the oath of the interested party or parties; and just as the security of a thane was sufficient, where that of a landless freeman had to be supplemented by the contributions of his neighbours, so would the oath of a man of fortune and position prevail in cases where that of a common man had to be fortified by the corroborating oaths of his fellows.[17]

No matter what his station in life might be a man could always strengthen his case in this way: the more numerous the oath-helpers the greater the value of their evidence, and this held good even if it was clear that none of them were acquainted with the circumstances under consideration, because it was commonly believed that divine interference would prevent any considerable number of persons from perjuring themselves _en bloc_. The various ordeals, by combat, by fire, by water and many others, were conceived in the same spirit.

The principle of making every man responsible for his own actions, and to some extent answerable for the doings of his neighbour, has much to commend it, and its application would produce an almost ideal state of social security if its practical employment was not marred by two inherent weaknesses; in the first place it can only be applied with success to an agricultural community that is content to live always in the same spot, or whose migratory instincts the authorities are prepared to suppress; and, in the second place, such a system puts a premium both on the concealment of crime, and on the commission of perjury, since a tything had every inducement to forswear itself in order to escape the infliction of a fine or to save one of its members from punishment.

That the system above described was effectual in dealing with any crime that may have existed in England at the time cannot be doubted, and Gneist,[18] in his review of the period, says, "The insular position of the country, and the pre-eminently peaceable character of the later Anglo-Saxon times, developed the maintenance of the peace to such a perfection, that the chroniclers give an almost Arcadian picture of the peacefulness and security of the land in the time of Alfred the Great, and at some subsequent periods." Lord Coke[19] too declares that before the Conquest, whilst this ancient constitution remained entire, a man might ride through England with much money about him and run no risk of molestation, though armed with no other weapon than a white wand.[20]

If it is allowable to estimate the efficiency of a police system by the measure of the security enjoyed by those under its protection (nor is it easy to conceive of a fairer or more comprehensive test), it may then be asserted with confidence that the Anglo-Saxon model, crude as it undoubtedly was in many respects, compares not unfavourably with the various preventive agencies which the wisdom of succeeding generations has been able to produce. This comparative superiority survived, as we shall see, until the advent of the admirable system of police, not yet a century old, under which we have the good fortune to live to-day.

After the Conquest, the national police organisation was retained by the Normans, the headborough becoming the "præpositus," and the joint guarantee being known as "mutual security"; but the old forms which had weighed lightly on the people hitherto, were now harshly administered by the conquerors, whose officials, unaccustomed to the system, and indifferent to the susceptibilities of the native population, arbitrarily exacted the police fines, and did so in a manner that whilst proper investigation was rare, violence was common.

Of these officials the worst offender was the "vicecomes," the successor to the shire-reeve (_i.e._ sheriff), who under the Anglo-Saxon régime had controlled the police administration of the county.[21] The Vicecomes went on circuit each Michaelmas, to hold an ambulatory police court, called the Court of the Tourn, to deal with petty offences in the provinces, to bring capital crimes to the cognisance of the superior courts, and to make an annual revision of the frankpledge, _i.e._ an inspection of the police societies, with the object of ensuring that all the tythings were full. The visit of the Norman sheriff generally resolved itself into a demand for the payment of heavy fines, that might, or might not, be legally due, and which too often were heavier than the people could bear, for whereas the English shilling had been worth about fivepence, the Norman shilling was equivalent to twelve pence, and yet amercements were still calculated on the old scale without any allowance being made for the change in the value of the coin. Even in the rare cases where extortion was not practised the local character of the police administration, which had always been one of its most prominent features, was to a certain extent destroyed by the interference of the alien Tourn.

The object of the Vicecomes being to collect as many fines as possible, and to return to the king with some substantial evidence of his zeal, he was not over particular as to details, but fined a whole township or borough, and left the community to settle the incidence of the burden amongst the individuals composing it.

A representative and well-known example of the harsh control that then obtained, may be instanced; an enactment of William the Conqueror ordained that any hundred within whose boundaries a Norman was found murdered, should pay forty-six marks[22] unless the murderer was delivered up within five days; and the sheriffs threw the burden of proof of the victim's nationality on the hundred; in other words, the corpse was assumed to be Norman and had to be paid as such, unless the contrary was proved to their satisfaction; it is almost unnecessary to add that in nine cases out of ten, acceptable proof could not be produced in the specified period of time.

Another unpopular institution was that of Curfew Bell, introduced by the Conqueror ostensibly as a protection against fire, but in reality intended as a check upon the Saxons, to prevent them from meeting after dark, and discussing the shortcomings of their oppressors, or for other political purposes. The Anglo-Saxon Chronicle gives a pathetic account of the severity and injustice meted out by the Normans. "A.D. 1124. This same year after St Andrew's Mass, and before Christmas, held Ralph Basset and the King's thanes a 'géwitenemote' in Leicestershire, at Huncothoe, and there hanged more thieves than ever were known before, that is, in a little while, four and forty men altogether: and despoiled six men of their eyes and mutilated them. Many true men said that there were several who suffered very unjustly; but our Lord God Almighty, who seeth and knoweth every secret, seeth also that the wretched people are oppressed with all unrighteousness. First they are bereaved of their property and then they are slain. Full heavy year was this." And again, "then was corn dear, and cheese, and butter, for there was none in the land: wretched men starved with hunger: some lived on alms who had been erewhile rich: some fled the country, never was there more misery, and never heathen acted worse than these. The earth bare no corn, you might as well have tilled the sea, for the land was all ruined by such deeds."

If we may accept this as a true version of the condition of England and the English, it is abundantly clear that the system of police by decennary societies was inevitably doomed to failure after the Conquest. The two nations, who had little in common, who were in fact animated by bitter racial animosity, could not combine for any common purpose; and it is obvious that the "mutual security" plan can only be successful amongst a community bound together by the ties of family or friendship.

The sheriff's court never won the confidence of the people, and gradually certain neighbourhoods, or, more correctly speaking, certain lords more favoured than the rest, obtained the royal consent to the substitution of local police courts, under a steward nominated by the Lord of the Manor. These "courts of the leet" not only had the power to "inquire of and punish all things that may hurt or grieve the people in general, in their health, quiet, and welfare," but were authorised to abate or remove public nuisances.[23]

Courts Leet became so popular, and proved so successful, that we soon find them established, not merely in a few privileged places, but all over the country; before long the Sheriff's Tourn became the exception and the Court Leet the rule, the struggle for survival only coming to an end when the sheriff altogether ceased to trouble the village communities with his annual visit of inspection.

The rise of the Court Leet marks an important stage in the development of English police. The decennary system could only be of value as long as its strictly local character could be preserved, and the power of interference possessed by the Vicecomes was foreign to the national idea of police administration. Although the creation of the sheriff's court must only be considered as an ill-advised and novel attempt at centralisation, and its discontinuance a return to first principles, it was not to be expected that the Tourn, when once established, would be allowed to disappear until there was an alternative institution ready and able to take its place. On this account the appearance of the Court Leet was well timed, for the moment and indispensable for the future, to act as a link between ancient principles and modern practice.

When Henry II. returned from the Continent in 1170 he found it necessary to investigate the complaints that were persistently made against the sheriffs, who were said to have been guilty of oppression and extortion. The charges were well founded, and the result of his inquiry was that several were dismissed from their office, whilst a few years later the Assize of Northampton considerably reduced the authority of the remainder. In the years that follow we find evidence, over and over again, of the abuse of their power by the sheriffs, whose importance steadily declined in consequence; the decay of their office was gradual at first, but proceeded more rapidly, as we shall see, after the institution of "Conservators of the Peace" by Richard I. At the Council of Northampton provision was also made for holding assizes in the different counties of England. For this purpose the kingdom was divided into six circuits, and three judges, subsequently known under the title of "justices itinerant," were assigned to each circuit.

Notwithstanding the recent friction between the two nationalities (now happily on the wane), and all the evils which had accompanied it, hundreds and tythings continued to perform their executive functions as best they could, and not altogether without success; but the levying of amercements, which was essential to the system, was so liable to abuse at the hands of royal officers, and the fines grew so out of proportion to the offences for which they were exacted, that advantage was very properly taken of King John's humiliation in 1215 to insist that they should only be enforced in future "on oath being made by the worthy men of the district," and steps were taken to confine amercements to their proper limits. By Magna Carta police fines were henceforward to correspond in amount to the magnitude of the crime for which they were incurred, and might not be enforced except with _beneficium competentiæ_ _i.e._ every man had a right to his bare living, the merchant to his merchandise, and the villein to his agricultural implements.[24]

In the following reign an attempt was made to put fresh life into the police administration that for more than a hundred years had been deteriorating; it was therefore ordained[25] that a view of frankpledge should be made every Michaelmas, and tything be kept as in the old days; the effort, however, was not a success, and before long the prestige of the institution was irrevocably damaged by the relief granted to the Baronage and Clergy by the Statute of Marlborough, which excused them from attendance at the Court, unless they received special orders to be present. In any case a return to the past was impossible, the country had outgrown the method of control that had once been efficacious, and altered conditions had completed the wreck of the decennary system that racial differences had commenced. From this time onwards, when frankpledge is spoken of, it must be understood to mean only the general principle that was the basis of the indigenous system; that is to say, a recognition of the bounden responsibility of every citizen to take his part in the duty of maintaining peace in the state; or, in other words, the liability that all men share to render police services when called upon to do so.