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them shall aid and bear the other falsely and maliciously, to indict, or cause to be indicted, or falsely to move or maintain pleas, From which it seems clearly to follow, that not only those who actually cause an innocent man to be indicted, and also to be tried upon the indictment, (whereupon he is lawfully acquitted) are properly conspirators; but that those also are guilty of this offence who basely conspire to indict a man falsely and maliciously, whether they do any act in prosecution of such confederacy or not.. 1 Haw. 189. For this offence the conspirators (for there must be at least two to form a conspiracy) may be indicted at the suit of the king, and may be sentenced to fine, imprisonment, and pillory. 4 Black. 136.

CONSTABLE, by the laws of Alfred, the freemen were to distribute themselves into decennaries, and hundreds; and every ten freeholders chose an annual officer, whom they called consta ble, borsholder, tithingman, or headborough, as the head of the decennury or ten. These in every hundred where there was a feudal lord, were sworn in and admitted by the lord or his steward, in his leet; but where there was no feudal lord, the sheriff, in his torn had the swearing of them in. So if there were no feudal lord of the hundred, an annual officer was chosen, who was to preside over the whole hundred and was called the high con stable.

Who may or may not be chosen constables. The ancient officers of any of the colleges in the two universities are exempted from this office. Doug. 531. Any person of the age of 63 years or upwards, is not compellable to serve the office of constable within the city of Westminster. No person born out of the kingdom of England or the dominions thereof (except he be born of English parents, see Aliens), is eligible to serve this office, even though he be naturalized. 5 Bur. 2790. Counsellors, attornies, and all other officers whose attendance is required in the courts of West minster-hall, aldermen of London, the president and fellows of the fellowship of physic in London, surgeons and apothecaries in London, and within seven miles thereof being free of the company of apothecaries, and teachers, or preachers in holy orders, in a congregation legally tolerated, shall be exempted from the office of a constable. The prosecutor of a felon to conviction, or the person to whom he shall assign the certificate thereof, shall be discharged from the office of constable,

But generally speaking, every housekeeper, inhabitant of the parish, and of full age, is liable to fill the office of constable: he ought however to be of the abler sort of parishioners, as being more likely to perform his duty with probity and discretion. 8 Co. 42.

Mode of choosing constables. It seems regularly, that the petty constable ought to be chosen in the leet and the high constable in the torn which is the general leet of the whole hundred; and if there be no leet, then, that the petty constable ought to be chosen also in the torn. 1 Burn. 400.

The high constables of hundreds are generally chosen either at the sessions, or by the greater number of the justices of the division; and they may be sworn at sessions, or by warrant from the sessions, which course has often been allowed and commended, by the justices of assize. Dalt. c. 28. The office of petty consta ble, being very necessary for the preservation of the peace, the justices of the peace have ever since the institution of their office, taken upon them as conservators of the peace, not only to swear the petty constables who have been chosen at a torn or leet, but also to nominate and swear those, who have not been chosen at any such court, on neglect of the sheriffs or lords to hold their courts, or to take care that such officers are appointed in them. And this power of the justices, having been confirmed by the uninterrupted usage of many ages, shall not now be disputed. 2 Haw. 65.

The office, duty, power, &c. of constables. The original and proper authority of a high constable, as such, seems to be the very same within his hundred, as that of the petty constable within his vill. The other branches of his office, such as the surveying of bridges, levying county rates, the issuing precepts concerning the appointment of the overseers of the poor, surveyors of highways, assessors and collectors of the land-tax and window duties, &c. are in him, not of necessity, but as matter of convenience. 4 Inst. 265. Every high and petty constable, is by common law a conservator of the peace. 2 Haw. 33. The general duty of constables is to preserve the king's peace in their several districts, for which purpose they are armed, as well by the common law as by the legislature, with the very large and se. rious powers of arresting and imprisoning their fellow-subjects, forcibly entering their dwellings, and other extensive authorities,

which it is highly their duty to exercise with becoming moderation, and humanity. The high constable, is as much the officer of the justices of the peace, as the constable of the vill. Fort. 128.

The constable is the proper officer to the justices of peace and bound to execute his warrants. Hence it has been resolved, that where the statute authorities a justice of the peace to convict a man, of a crime, and to levy the penalty by warrant of distress, without saying to whom such warrant shall be directed, or by whom it shall be executed, the constable is the proper officer to serve such warrant, and indictable for disobeying it. 2 Haw. 262. But as the office of constable is by no means judicial, but wholly ministerial, he may execute such warrants, &c. directed to him, by deputy, if on account of indisposition, absence or other special cause, he cannot conveniently do it in person. 2 Bur. 1259.

The high constables shall, at the general or quarter-sessions, if required, account for the general county rate by them received, on pain of being committed to goal till they shall account, and shall pay over the money in their hands, according to the order of the said court, on like pain of imprisonment. And all their accounts and vouchers shall, after having been passed at such sessions, be deposited with the clerk of the peace, to be kept among the records; and be inspected by any justice without fcę. 12 Geo. II. c. 29. s. 8.

Constables should be very careful to keep in their custody, whatever things they take upon felons; the same caution is to be observed, in respect of such stolen goods as they take in the execution of such warrants. The law strictly requires this, that they may be produced in evidence upon the trial of the prisoner: for the identity of such things is to be proved upon the constable's oath, as well as the time when taken, and place where: if therefore he suffer such goods to go even out of his sight, he weakens his evidence, if he do not destroy it; and should the goods be hy accident, or otherwise lost, he is not only answerable to the court for acting wrong, which may defeat the prosecution, but also to the presecutor for the value of the goods; nor will it be a sufficient plea to the court that he left them in the hands of jus tice, even by his command; for as they were taken by him, the law requires them at his hands. And as the goods, taken on per

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sons charged with felony, or by search-warrants, are, as the law terms it, in abeyance; after the jury have returned their verdict, if the prisoner be convicted, the constable is to deliver such goods to the prosecutor; on the contrary, if the prisoner be acquitted, the goods revert to him, the cause of seizure being discharged. But if any difficulty should arise the safest way is to pray the direction of the court. The duty of the constable indeed, absolutely obliges him to produce such goods at the trial; but after this is over, he should be careful how he brings them out of court, lest he should suffer by actions at law, from both parties.

An officer who has negligently suffered a prisoner to escape, may take him wherever he finds him, without mentioning any fresh pursuit.

A person found guilty, upon an indictment or presentment of a negligent escape of a criminal, actually in his custody, is punishable by fine and imprisonment, according to the quality of the offence. 2 Haw. 134.

But a voluntary escape is no felony, if the act done were not felony at the time of the escape made, as in case of a mortal wound given, and the party not dying till after the escape; so that the offence was but a trespass at the time of the escape: but the officer may be fined to the value of his goods. Dalt. c. 129.

An action brought against a constable, headborough, or tithingman, for any matter done by virtue of their office, shall be laid in the county where the fact was committed, and not elsewhere. 21 Jac. c. 12. s. 5.

The constable executing a justice's warrant, for levying a penalty, or other sum of money directed by an act of parliament, by distress, may deduct his own reasonable charges of taking, keeping, and selling the goods distrained; returning the overplus on demand. 27 Geo. II.

The sheriff or steward of the leet, having power to place a constable in his office, has consequently a power' of removing him. 2 Haw. 63. And it has been the practice of the justices of the peace, for good cause, to displace such constables as have been chosen, and sworn by them. 2 Huw. 65.

If a constable shall continue more than a year in his office, the sessions may discharge him, and put another in his place, till the

lord

lord shall hold a leet, and should the court, or judge, refuse to discharge a constable, the king's-bench may compel them by mandamus. 2 Haw. 65.

In the manner that constables are chosen, they may be remov ed, and by the like authority; therefore, if there should be cause to remove an high constable, it has not been thought fit that any one or two justices should do it upon their discretion; but that it should be done by the greater part of the justices of that division, or at the sessions. Dalt c. 28.

Of London constables. The constables must be freemen of the city, and nominated by the inhabitants of the ward on St. Thomas's day, confirmed or disallowed at the next wardmote, and afterwards sworn into office at the next court of aldermen on the Monday ensuing twelfth-day.

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They swear to keep the king's peace to the utmost of their pow er, to arrest affrayers, rioters, and such as make contests to the breach of the peace, and carry them to the house of correction, or compter of one of the sheriffs; and in case of resistance, to make outcry to them, and pursue them from street to street, and from ward to ward till they are arrested: to search for common nuisances in their respective wards, being required by scavengers, &c. and upon request, to assist the beadle and raker in collecting -their salaries and quarterage, to present to the lord mayor and ministers of the city, defaults relating to the ordinances of the city. They are to certify to the mayor's court, once a month, the names and surnames of all freemen deceased, and also of the children of such freemen, being orphans. They are to certify the name, surname, place of dwelling, profession and trade of every person who shall just come into the ward, and keep a roll thereof; for which purpose they are to enquire once a month, into what persons are come into the said ward; and if such persons are found to be ejected from any other ward for any misdemeanor, and refuse sureties for their good behaviour, they are to give them and their landlords warning to depart; and on refusal, they may be imprisoned, and the landlords fined a year's rent. Rep. 129. 138.

Constables are to keep watch and ward from the 10th of September to the 10th of March, from nine in the evening till seven the next morning; and from the 10th of March to the 10th of

September

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