CHAPTER V

COMMERCIAL POLICE AND POLICE UNDER THE TUDORS

The growth of the royal power that was so well defined a characteristic of the sixteenth century was accompanied by a general re-establishment of good order throughout the kingdom. As long as the reins of government were slackly held by feeble monarchs, the king's peace was reckoned of but little account, and in the words of the Anglo-Saxon writer already quoted, "every man that could, forthwith robbed another." Nobles surrounded by their retainers, broke the peace whenever they chose, and laid their hands on any property that they felt strong enough to hold. As long as punishment overtook the man who had offended against a great noble with more precision and with greater celerity than it did the offender who had broken the law of the land, guardians of the peace were despised, whilst peace-breakers were admired by the multitude, if not respected.

When Henry VII. came to the throne he resolutely set himself to put an end to this state of affairs, and to re-assert the personal ascendancy of the sovereign, especially with regard to the maintenance of the peace. He was obviously unable to achieve this object single-handed, for he had no army with which to enforce his commands, and the mass of the people were not yet thoroughly emancipated. Something of course might be done by dividing the nobles into separate factions, and then pitting one faction against another, and these tactics he pursued with some success; the class however to which in the end the king had to look for assistance was the middle-class, which was chiefly occupied with money-making, which was inclined to resent any interference with a pursuit at once so novel and so absorbing, and which, at the same time, was beginning to cry out for increased protection for its newly acquired wealth. As it seemed worth while to purchase the goodwill of the spokesmen of this powerful class, at the cost of complying with their not unreasonable requirements, the king was ready to meet them halfway, and the police administration was modified accordingly.

The compulsory duty of serving as a constable, argued the middle-class, was not only unprofitable but a wicked waste of good time that might be devoted to objects that paid better; and so the system of deputy constable crept in. Hue and cry was all very well, they said, for the agriculturist or the villein; he could lay down his spade to join in the pursuit with little detriment to himself; but it was different in the case of the weaver or the merchant, the former could not afford to leave his loom nor the latter to lose a bargain; and so hue and cry fell into desuetude. When property cansisted only of timber, cattle, and land, difficult things for a thief to remove, little protection was demanded, but when valuable articles, all more or less portable, became common, and when many kinds of fraud, all more or less subtle, menaced both consumer and producer, a better guarantee for security was asked: and so the old-established trade-guilds adapted themselves to the changed conditions, and introduced new protective measures. These modifications must now be examined in more detail.

It is doubtful at what date the custom first arose of discharging the office of constable by proxy, but certain it is that, in the Tudor period, instead of one headborough responsible to the Crown for the maintenance of the peace in Tything and Hundred, which, as we have seen, was anciently the system, we find two or more constables answerable to the Justices, nominally employed by the year, but practically as permanent deputies, performing duties delegated to them in parish and township, and their services paid for, not by the public at large, but by the individuals whose deputies they were.

In some respects the change, which in all probability was a gradual one, contributed to the deterioration of the police administration, because unfortunately a very indifferent sort of man was almost invariably selected as deputy. Speaking of constables, Bacon says they are "of inferior, yea, of base condition, which is a mere abuse or degenerating from the first institution, for the petty constables in towns ought to be the better sort of residents in the same, save that they be not aged or sickly, but of able bodies in respect of their keeping watch and toil of their place"; and Blackstone says that considering the class of man that commonly acts as constable, it is just as well that he should remain in ignorance of the powers that are entrusted to him by law.

Despite the fact that the employment of deputies was mischievous in its immediate consequences, the rise of the custom marked a distinct stage in the development that resulted in the freedom from personal liability which, without prejudice to the police administration, we now enjoy; it began to be felt that the onerous and thankless position of constable deserved remuneration, and that it was more economical to delegate constabulary duties to experts, than that every man should be compelled to serve his turn in an office that interfered with his normal activity, and for which, perhaps, he had no special aptitude. England, as we have seen, was rapidly becoming a commercial country, and all were eager to take advantage of every chance of money-making that offered itself, and finding that the duties of citizenship absorbed more of their time than they were willing to spare, peace-officers were no sooner elected than they hastened to hire any proxies whom they could persuade to undertake the burden of office. This reluctance of busy men to devote their valuable time to an unpaid public service was reasonable enough, and the practice of employing substitutes was winked at by the authorities; yet centuries passed before a way was found to organize with intelligence, and officially recognize a system, that whilst freeing the mass of the people from an unnecessary conscription, should yet retain the essential principle that every man shares in, and cannot divest himself of, a definite responsibility for the maintenance of good order in the commonwealth.

The decay of the feudal system and the gradual abolition of villenage went hand in hand, as we have seen, with the rise of the merchant and the artisan; as trade increased and as the skilled workman became a recognized power in the state, the police horizon widened, new interests needed protection, new laws and regulations had to be made and enforced. The supreme direction of commercial police rested with the Crown; and, as long as the sovereign's prerogative was confined to the control of fairs and ports, to the granting or withholding of monopolies, and to the regulating of weights and measures, the services of the Justices of the Peace, assisted by their constables, had been found sufficient for all practical purposes. But when questions arose, touching our trade with foreign merchants or demanding a technical knowledge of native manufactures, it became necessary to submit these difficult problems to some more expert authority than the ordinary executive officer. This want was supplied, to a great extent, by the above-mentioned police development of the Trade-Guilds or Livery Companies, which, recently deprived of much of their former political influence, now for the first time seriously began to devote themselves to the special interests of their several trades, by properly confining their energies to channels more legitimate than state-craft, such as the protection and control of the various markets, manufactures, and handicrafts.

In the early stages of its development in this country, commerce stood on a very different footing from that upon which it rests to-day: skilled artizans came and settled in England from all parts of the continent, bringing their laws and customs with them; arrived here, they not only competed with the native manufacturer, but beat him at all points of the game. In the absence of any preventive police worth mentioning, the position of these aliens would have been an impossible one, except for two considerations; in the first place they thoroughly recognised the value of combination and acted upon it, and in the second place the very considerable revenue that their activities brought to the royal coffers, secured for them the king's protection and support.[83]

This incursion of foreigners was not without its effect on our craftsmen, who saw, that to command success, they too must combine, organize, and regulate. The result was that nearly every trade and industry soon had its guild organized on the continental model, the object of which (unlike the modern trades-unions that exist mainly to prevent the power of the capitalist over his employées from becoming absolute), was to create a monopoly, and hedge it round so that no outsider could enter the exclusive circle without being properly initiated and regularly admitted to craft-membership.

The Livery Company punished the fraudulent workman, corrected the idle apprentice, and also prosecuted the would-be interloper who attempted to infringe upon its rights and privileges.

We are indebted to these trade-guilds for introducing to our shores in the first instance, many mechanical arts which, greatly to our advantage, subsequently became naturalized, and afterwards for keeping them alive through times of difficulty and danger, when the central government was not strong enough to afford much protection; the high character that English goods have earned throughout the world's markets is, to a great extent, owing to this system of commercial police, which compelled every workman to serve a long apprenticeship in a technical school, and which punished the producer of fraudulent and worthless articles. On the other hand whole fields of industry were arbitrarily closed to honest and capable folk by the absurd restrictions imposed for the sole benefit of corporations, which, when full allowance has been made for the good they did, and when full credit has been given for the service they rendered by standing in the breach at the critical moment, were, after all, thoroughly reactionary in their tendency, bent, as they were, upon stifling healthy competition whenever possible, and inclined to look upon any new invention as a crime against their craft mysteries.

A serious defect in the constitution of our mediæval police consisted in the numerous privileges enjoyed by favoured communities. No police regulation was of universal application; we have seen how in Anglo-Saxon times the king's peace afforded especial protection to certain classes, and how various limitations were imposed according to locality and according to season; subsequently charters were freely given to monasteries, guilds, boroughs and cities, carrying rights and conferring favours that were not shared by the nation at large. The consequence was that every rule bristled with exceptions, and legislation grew proportionally more complicated and difficult of application than would have been the case had all men been equal in the eye of the law. Many a useful measure was rendered largely inoperative by reason of the numbers of persons who could plead privilege against its enforcement in their particular case. Hue and Cry could avail nothing against the baron who had bought a charter of pardon for felonies committed in the past or contemplated in the future, and the pursuit of the sheriff was stayed when the fugitive took refuge in sanctuary. First the clergy, and afterwards persons not in orders who could prove their ability to read a word or two in the Gothic character,[84] were entitled to plead "benefit of clergy," and thereby escape perhaps well-merited punishment. In the reign of Henry VII. this privilege was wisely restricted, by ordaining that those who had pleaded "clergy" once, should be branded on the brawn of the thumb with a hot iron (M for a Murderer, T for a Thief), so as to prevent their cheating justice a second time by means of the same plea. Gradually benefit of clergy was taken away from one offence after another, until at last[85] no serious crime was left to which this exemption from punishment attached. Again, the scholars of Oxford and Cambridge were not subject to many regulations that applied elsewhere, the members of these universities being allowed to beg, under certain restrictions, without incurring the penalties that ordinary "vagabonds and sturdy beggars" were liable to; on the other hand Jews and gypsies were subject to pains that did not attach to the native population.

The confusion of the illiterate constable, called upon to act when confronted with a medley of contradictory charters, passports and privileges, can well be imagined, and, needless to say, personation and forged certificates were largely resorted to both by the habitual criminal and by the professional beggar.

A very necessary reform introduced in this reign was that which, in cases of homicide, made the trial of the accused follow immediately upon the discovery of the offence. By long-established usage, originating from the time when the blood-feud was the recognised agency for avenging murder, the custom had arisen of postponing royal interference until the relatives or friends of the deceased had been allowed ample time in which to bring the criminal to justice, and, by ancient consent, those parties who were interested acted the rôle that our police detectives are now charged with, and, so to speak, had to "get up" the case against the alleged offender. An "Appeal," as it was called, was then made before the Coroner and by him publicly declared at five consecutive county-courts. It had been laid down in 1277,[86] that homicides should not be proceeded against at the King's suit until a year and a day had elapsed since the commission of the murder, and in 1482,[87] twelve months was declared to be the privileged period in which appellors alone might formulate an accusation. The natural result (to quote the Statute,[88] which did away with these out-of-date restrictions) was, that "the party is oftentimes slow, and also agreed with, and by the end of the year all is forgotten, which is another occasion of murder."

The anxiety to make money that pervaded all classes, but which was especially observable in the middle class, besides influencing the status of the constable and making the guild such a prominent feature of the time, was to a large extent responsible for the increasing rigour of the criminal law. The claims of property were urged to the uttermost, and people who had anything to lose pressed for the infliction of exemplary punishment in all cases where the rights of ownership were threatened. The result of this attitude was, that the war of extermination against those who had no visible means of subsistence was waged more relentlessly than ever before. The dissolution of the religious houses, following upon the civil commotions of the previous century, had multiplied the number of vagrants until the country was full of homeless and starving wanderers, many of whom, needless to say, maintained themselves by robbery. Bad government first created this dangerous class, and then attempted to exterminate it by wholesale hanging: it is said that more than 70,000 persons were put to death during the thirty-eight years of Henry the Eighth's reign; from this number a considerable reduction may be made for exaggeration, and of the remainder a large proportion suffered on religious and political grounds. But the general government was rigorous in the extreme, and, the value of human life being but little accounted of, a penal system grew up which exacted the death penalty for offences of a comparatively trivial nature, thus laying the foundations of the barbarous code which continued to disgrace our Statute book for centuries, vainly endeavouring to supply the place of preventive police by repressive measures that were expected to deter by virtue of their extreme severity. Sir Thomas More saw the uselessness of such a policy, and pointed out in his "Utopia," that as robbers often killed their victims on the principle that dead men tell no tales, it would be desirable, therefore, to reduce the punishment for theft in order to check the frequency with which murders were committed.

Wales and the Welsh borderland had long been the refuge of the outlaw, and the fastness of the robber; for whilst the natural features of the country favoured the escape of the fugitive from justice, the division of the principality into independent lordships, from which the king's writ was excluded, still further increased the difficulty of arrest. At one time there were 141 of these lordships, under as many petty chieftains known as Lords-Marchers, who indiscriminately sold charters, and harboured any lawbreaker who would pay for his footing. This kind of home-rule in Wales was incompatible with the maintenance of order in the West of England, and the counties near the border suffered severely for their proximity to this Alsatia. Accordingly in 1536 it was decided to extinguish the separate jurisdiction of the Lords-Marchers, and the whole of Wales was incorporated into England by an Act passed in the 27th year of Henry the Eighth, which provided Justices-of-the-Peace, Justices-of-the-Quorum, and Justices-of-Gaol-delivery for the Welsh counties, armed with the same power and authority that the corresponding Justices in England were possessed of; shortly afterwards (1543)[89] these newly-appointed Justices of the Peace were authorised to select two "substantiall gentlemen, or yeomen, to be chiefe constables of the hundred wherein they inhabite, which two constables in every hundred shall haue a speciall regard to the conseruation of the King's Peace."

A somewhat similar state of unrest existed in the neighbourhood of the Scottish border. Here the simple expedient of incorporation by Act of Parliament was of course impossible, so in the following year Henry instituted a Court, called the President and the Council of the North, and empowered it to preserve the peace, in that part of the realm, in the king's name; so that "his true subjects ... have undelayed justice daily administered."

Nearer home, Thomas Cromwell, acting for the king, overhauled the administration of police, and amongst other improvements established parochial registers of births, marriages and deaths,[90] but he was too fond of thrusting petty and vexatious regulations down the throats of a people, who, recently freed from their old bondage, were now for the first time beginning to think for themselves; his whole system moreover was vitiated by the frequency with which he employed spies and informers, a method of police control always peculiarly abhorrent to the English.

The law against vagrancy, which, as we have seen, was extremely severe during the preceding reigns, reached its most barbarous stage soon after the accession of Edward the Sixth. It is the irony of circumstance which associates the name of so mild a prince with one of the most atrocious measures ever imposed upon Englishmen, for Edward was but a child when the Statute in question was passed, and can have had no hand either in the inception or application of its provisions.[91] The responsibility belongs to the Protector, Somerset, yet it will always remain a mystery how he could sanction such a measure, for he is well known to have felt much sympathy for the masses of his countrymen, and was ever anxious to please. After remarking in the preamble that "idle and vagabond persons are worthy of death, whipping, imprisonment, and other corporal pain," the Statute proceeds to enact that "the offender there described to be an idle person shall be taken before a Justice of the Peace, who shall cause him to be marked with a hot iron in the breast, the mark "V," and adjudge him to be a slave to the person presenting him for two years, to be fed with bread and water, and be put to work (how vile soever it be) by beating, chaining, etc.: and if he runs away, the Justice, on conviction, shall cause such slave to be marked on the forehead or ball of the cheek with the sign of an "S," and shall further adjudge him to be his master's slave for ever:[92] and if he again run away, he shall suffer death as a felon."[93] No record tells how many unfortunates suffered the pains above recited, but the number is not likely to have been considerable, because vagabondage was by no means stamped out: the conclusion is forced upon one, however, that whilst law-making of such a type was in vogue, the infirmity of the police, whose business it was to enforce its enactments, cannot be considered as an unmitigated evil.

The grandmotherly domestic policy of the time, which told people what they were to eat, how they were to dress, and the number of hours they must labour, resulted, as all such attempts to interfere with the natural laws of supply and demand must result, in serious conflict between the authorities and the people, who sooner or later are sure to resent coercion, and have recourse to violent resistance to obtain economic freedom for themselves and their descendants. Dissatisfaction had long been dormant, but matters came to a head early in the reign of Edward VI.; popular risings took place simultaneously all over the country, the most serious outbreaks occurring in counties as far remote from each other as Cornwall in the West, and Norfolk in the East. There was no machinery in existence for the suppression of riots, no standing army, and no civil power in any way adequate to meet force with force: the executive was well-nigh powerless. Under these circumstances a penal statute[94] against unlawful assemblies was passed, much of which survives in our present Riot Act now in force. It became high treason for twelve or more persons, being assembled together, to attempt to alter any laws, etc., or to continue together for the space of an hour after being commanded by a Justice of the Peace to depart. It was made felony for twelve or more persons to "practice to destroy a park, conduit, or dovehouse," to pull down houses, barns, or mills, to burn any stack of corn, or to abate the price of victuals; or being assembled, to continue together an hour, after being ordered in like manner to depart.

To make this statute effectual, it was necessary to devise some new executive to enforce its provisions; accordingly in each county a high official called the Lord-Lieutenant was appointed, who was authorized to levy men and lead them against the enemies of the king, to which category rioters, as being guilty of High Treason, were now specifically declared to belong. With the appointment of Lords-Lieutenant, the last of the military functions exercised by the Sheriff passed out of his hands into those of the new official, who to this day retains a remnant of authority over the regiments of Yeomanry and Militia of his county.[95]

Until the middle of the sixteenth century any person so inclined[96] could keep an alehouse--there were no licensing laws and no excise-duty leviable on alcoholic beverages, which indeed, remained untaxed until 1643. Police control was therefore both difficult and unpopular. A first attempt to grapple seriously with this rapidly increasing mischief was made in 1552,[97] when Justices of the Peace and Constables were given powers, which, it was hoped, would do something to "remedy the intolerable hurt and trouble to the Commonwealth of the Realm" by "common alehouses and other houses called Tipling-houses." To this end Justices were authorized "to remove and put away ... the common selling of Ale and Beer" as they might see fit. Henceforward only houses "admitted and allowed in the open Sessions of the Peace" were to be used for the sale of liquor, and Justices were furthermore instructed to take bond and surety of the occupiers; "for which recognizance, the party so bound shall pay but 12 pence." Alehouse keepers who should fail to comply with these conditions might be committed to gaol by the Justices of the Peace.