Conservator of the Peace

A Conservator of the Peace is defined as a public official authorized to conserve and maintain the public peace. [BLACK’S LAW DICTIONARY, 6th ed.] Under common law, Conservators of the Peace included judges, [“In England, by the common law, the Lord Chancellor and all the Judges of the Court of King’s Bench, among other high officials, by virtue of their offices, are general conservators of the peace throughout the whole kingdom, and may commit all violators of the peace, or bind them in recognizances to keep it; but the other Judges are only so in their own Courts. 1 Black. COMM., 350.” "In re Glenn", 54 Md. 572, 597-598 (1880). “…it is repugnant to the concept of a judge, sworn to uphold the law, that he be required to observe the commission of a breach of the peace in his presence and be powerless to prevent it. Such a concept demeans his office and public regard for it.” "City of Lincoln Park v. Sigler", 28 Mich. App. 410, 413 (1970). "See also In re Colacasides", 379 Mich. 69, 91 (1967); "In re Slattery", 310 Mich. 458, 466 (1945).] police, sheriffs, and constables. [“A constable and sheriff are conservators of the peace at the common law.” "Commonwealth v. Gorman", 288 Mass. 294, 296-297 (1934) (quoting "Sharrock v. Hannemer", Cro. Eliz. 375, 376 (1595)). “A policeman is an officer whose duties have been, for local convenience, carved out of the old duties of constable, and the constables were always part of the general force at the disposal of the sheriff. There is no division of authority into those of the sheriff and the police. Each is a conservator of the peace possessing such power as the statutes authorize.” "State ex rel. McKittrick v. Williams", 346 Mo. 1003, 1014-1015 (1940). ]

The king is mentioned as the first. Then come the chancellor, the treasurer, the high steward, the master of the rolls, the chief justice ant the justices of the King’s-bench, all the judges in their several courts, sheriffs, coroners, constables; and some are said to be conservators by tenure, some by prescription, and others by commission. ["Entick v. Carrington", 19 Howell’s STATE TRIALS, 1029, 1061 (1765).]

Sheriffs are, "ex officio", conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence [J. Crocker, DUTIES OF SHERIFFS, CORONERS AND CONSTABLES § 48, 33 (2d ed. rev. 1871)]

As Conservators of the Peace, police have long had the authority to order groups of persons threatening the public peace to disperse, or to arrest without a warrant for a breach of the peace.

It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby thereunto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, sidewalks, parks and places. [Manual Containing the Rules and Regulations of the Police Department of the City of New York (1887), RULE 414. Quoted in "City of Chi. v. Morales", 527 U.S. 41, 108-109 (1999) Thomas, J., dissenting.]

Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, for example, police officers continue to be obligated, by law, to maintain the public peace. ["Morales", 527 U.S. at 106-107 (citing ARK. CODE ANN. § 12-8-106(b) (Supp. 1997) (“The Department of Arkansas State Police shall be conservators of the peace”); DEL. CODE ANN. Tit. IX, § 1902 (1989) (“All police appointed under this section shall see that the peace and good order of the State . . . be duly kept”); ILL. COMP. STAT. ANN. ch. 65, § 5 11-1-2(a) (Supp. 1998) (“Police officers in municipalities shall be conservators of the peace”); LA. REV. STAT. ANN. § 40:1379 (“Police employees . . . shall . . . keep the peace and good order”); MO. REV. STAT. § 85.561 (1998) (“Members of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city”); N. H. REV. STAT. ANN. § 105:3 (1990) (“All police officers are, by virtue of their appointment, constables and conservators of the peace”); ORE. REV. STAT. § 181.110 (1997) (“Police to preserve the peace, to enforce the law and to prevent and detect crime”); 351 PA. CODE Art. V, ch. 2, § 5.5-200 (“The Police Department . . . shall preserve the public peace, prevent and detect crime, police the streets and highways and enforce traffic statutes, ordinances and regulations relating thereto”); TEXAS CODE CRIM. PROC. ANN., Art. § 2.13 (Vernon 1977) (“It is the duty of every peace officer to preserve the peace within his jurisdiction”); VT. STAT. ANN., Tit. 24, § 299 (1992) (“A sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder”)).]

Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats — importantly, they have long been vested with the responsibility for preserving the public peace. "See, e.g.", O. Allen, DUTIES AND LIABILITIES OF SHERIFFS 59 (1845) (“As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great”); E. Freund, POLICE POWER § 86, p. 87 (1904) (“The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority”).

Historical origins

Under early Saxon law, each county or shire in England was divided into an indefinite number of hundreds, each composing ten groups of ten families governed by a constable with his own court. Each member of the group and subgroup was individually responsible for preserving the peace and apprehending criminals.

Let him who takes a thief, or to whom one taken is given, and he then lets conceals the theft, pay for the thief according to his wer. If he be an ealdorman, let him forfeit his shire, unless the king is willing to be merciful to him. [Laws of Ine, King of Wessex, (cir. 690), Cap. 36.]

That a thief shall be pursued.... If there be present need, let it be made known to the hundredman, and let him make it known to the tithingmen; and let all go forth to where God may direct them to go. Let them do justice on the thief, as it was formerly the enactment of Edmund I. [Ordinances of Edgar (cir. 959-975) § 2.]

And the man who neglects this, and denies the doom of the hundred, and the same be afterwards proved against him, let him pay to the hundred xxx. pence; and for the second time lx. pence, half to the hundred, half to the lord. If he do so a third time, let him pay half a pound; for the fourth time, let him forfeit all that he owns, and be an outlaw, unless the king allow Him to remain in the country. ["Ibid". § 3.]

In 920 AD, King Edward the Elder set forth that the Reeve or "gerefa" of the shire should hold court each month to try cases of both civil and criminal matters. The modern term “sheriff” originates from the Saxon "shire reeve" and the term "gerefa". [1 W. Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 339, 343 (1541).] The Reeve was the earliest public official charged specifically with keeping the King’s peace.

I will that each reeve have a gemot always once in four weeks, and so do that every man be worthy of folk-right; and that every suit have an end, and a term when it shall be brought forward. If that any one disregard, let him make bot as we before ordained. [Edward the Elder (cir. 920), Cap. 11. While the court was held every month, the reeve would visit a particular court only every six months. Great Britain, FIRST REPORT OF THE COMMISSIONERS APPOINTED TO INQUIRE AS TO THE BEST MEANS OF ESTABLISHING AN EFFICIENT CONSTABULARY FORCE IN THE COUNTIES OF ENGLAND AND WALES 360 (1839).]

The Norman invasion of England in 1066 disrupted the Saxon hundreds system, and eventual disregard for collective responsibility in conserving the peace led to relaxed requirements for the King’s subjects to appear at each session of court. The baronage and clergy were no longer required to appear unless specifically required, and persons having matters before the court could have attorneys appear on their behalf. [COMMISSIONERS’ REPORT at 363.] In response to the loss of this collective responsibility, Henry III of England appointed four specific knights in each county deemed responsible for conserving the peace.

The King to Alured de Lincoln, Ivo de Rocheford, John de Strods, and William de Kaymens, of the county of Dorset, greeting: Whereas, in our Parliament lately holden at Oxford, it was ordained, that all excesses, transgressions, and injuries, done in our realm, should be inquired into by four knights of each county, that (the truth thereof being known) those offences might be more easily corrected; which same knights should take their corporal oaths, in the full county court, or (if such county court be not speedily held) before the sheriffs and coroners; as we have enjoined all our sheriffs faithfully to take such inquisition as aforesaid, we command you, by the fealty you owe us, that, having yourselves, first taken the oath beforementioned, by the oaths of good and lawful men of the county aforesaid, by whomsoever and upon whomsoever lately perpetrated; and this as well concerning justices and sheriffs as our bailiffs and other persons whatsoever. And such inquisition, under your own seals, as well as those of the jurors, you shall bring to Westminster, in the octaves of St. Michael, to be delivered by our own hands to our council there. Moreover, we have commanded our sheriff of the aforesaid county, that, having taken your oaths in form aforesaid, he cause good and lawful men, by whom the said inquisition may be best made, to come before you, at such days and places as you may appoint. ["Ibid". at 362.]

The specific term “Conservator of the Peace” came into being upon the codification and expansion of the authority of the office under Henry III’s son, Edward I [Edward I did not continue the numbering of the pre-Norman Edward kings.] . Under Edward I, Conservators of the Peace were not only charged with keeping the peace, but where also given the authority to try certain offenses previously heard by the Reeve’s court. These itinerant judges were the earliest historical predecessors to the Justice of the Peace. Conservators of the Peace appointed under Edward I were considered to be in positions of great public trust and social stature.

Edward, Earl of Cornwall, was appointed conservator of the King’s peace for the counties of Middlesex, Essex, Hertford, Cambridge, Huntingdon, Norfolk, Suffolk, Kent, Surrey, Oxford, Bedford, Bucks, Berks, Northhampton, Lincoln, and Rutland; and the various sheriffs, nobles, knights, and other persons in those counties, are commanded to assist the Earl, and those whom he shall depute under him to keep the peace. Rot. Walliæ ["Rotuli Walliae", the Scrolls of Wales (Cir. 1281).] 10 EDW. I. m. 9.

Richard de Amundeville was in the same year appointed conservator of the peace, together with the sheriff, in the county of Warwick; but the sheriff was to take counsel and direction from Richard de Amundeville as to what he did for the better preservation of the peace. Rot. Pat. ["Rotuli litterarum patentium", the Patent Scrolls (Cir. 1201-1216).] 10 EDW. I. m. 8.

Besides the above exalted personages, others were commissioned in the same year to go into counties, for the purpose of making inquiries concerning those who were indicted for infractions of the peace, and other offences, and of apprehending all those found guilty, and delivering them to the sheriff, to be kept in ward until the King should further direct. Rot. Pat. 10 EDW. I. m. 8. [COMMISSIONERS’ REPORT at 363, note║.]

Immediately after the death of Edward I and the accession of Edward II of England in 1307, officers were appointed in every county in England as Conservators of the Peace. Their commissions stated that they shall constantly reside within their respective counties, visit every place therein and the King’s laws shall be strictly observed. If any disturbances occur, the Conservators are to raise the "posse comitatus", arrest the offenders and keep them in custody until the King shall further direct. ["Ibid". at 366.]

Edward III strengthened the office and authority of the Conservator of the Peace, but not necessarily for any altruistic interest in maintaining the public peace.

In the reign of Edward III, an act of parliament ordained “that in every shire of the realm good men and lawful which were no maintainers of evil nor barrators in the county, should be assigned to keep the peace, …to repress all intention of uproar and force even in the first seed thereof and before that it should grow up to any offer of danger.” Lambard, book 1, ch. 4; 2 Hale, P. C., ch. 7, note 1. The real purpose of this act seems to have been to enable the king, Edward III, to appoint men upon whom he could rely in the different counties, to repress any effort of the people to release his father, Edward II, from prison. ["In re Barker", 56 Vt. 14, 20 (1884).]

When the English colonists settled at Jamestown in 1607 they brought not only the common customary law of England, but the law as modified by English statutes of general operation up to that time. ["In re Sanderson", 289 Mich. 165, 173 (1939) (citing "Penny v. Little", 3 SCAM. (4 Ill.) 301; "Crake v. Crake", 18 Ind. 156; "Lavalle v. Strobel", 89 Ill. 370; 1 Kent, COMMENTARIES (14th Ed.) 472, 473; 1 SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY (1st Ed.) 367-430).]

We see here, at the beginning of permanent civilized life on this continent, not only the contemplation of and provision for civil offices among the colonists, but also the practical application of the principle of local self-government, a principle of Anglo-Saxon derivation which, surviving the Norman Conquest, has always obtained, to a great and increasing extent, in England, and has ever been one of the fundamental principles of civil liberty in the rise, growth and progress of governments and governmental institutions in America. ["Allor v. Board of Auditors", 43 Mich. 76 (1880), Brief for the realtor at 24. ]

With formation of government within the American colonies, the offices of sheriff, justice and constable were adopted from the English common law and the English ordinances. A warrant issued by a Native American magistrate directed an early colonial constable to arrest a suspect.

1. I, Hidondi. 2. You, Peter Waterman. 3. Jeremy Wicket. 4. Quick you take him. 5. Fast you hold him. 6. Straight you bring him. 7. Before me, Hidondi. ["Ibid". (citing C. Elliott, THE NEW ENGLAND HISTORY 1:326); Bryant, W., POPULAR HISTORY OF THE UNITED STATES 540, note 1 (1888).]

A minister from a Massachusetts Bay colony described an arrest warrant that was served by early American constables in a private home in 1651.

On Sunday after their arrival, ‘not having freedom in our spirits,’ says Clark, ‘for want of a clear call from God to go unto the public assemblie to declare there what was the mind, and counsel of God concerning them,’ he ‘judged it a thing suitable’ to hold divine service in the house and with the family of Witter, and four or five others who came in to join their worship. While thus engaged, there came in two constables with a warrant for their arrest. A request to finish the services was denied, and ‘the erroneous persons being strangers,’ whom the writ of Justice Bridges commanded should be brought before him in the morning, were marched off as prisoners — bail being refused — to the inn for safe keeping. ["Allor", Brief for the realtor at 25 (citing 2 W. Bryant, HIST. U.S. 106).]

The Commonwealth of Virginia's adaptation of the ancient common law office of Conservator of the Peace was described by the Virginia Supreme Court in 1923:

The office of conservators of the peace is a very ancient one, and their common law authority to make police inspection, without a search warrant, extends throughout the territory for which they are elected or appointed, as the case may be, in private as well as in public places, and upon private as well as public property, unless inhibited from entry for such purpose without a search warrant by some rule of the common law, or by the Constitution, or by statute. It was provided in EDW. III, ch. 15, that “in every shire of the realm good men and lawful, which are no maintainers of evil nor barretors [sic] in the county, shall be assigned to keep the peace;” of which it was said that this “was as much as to say that in every shire the King himself should place special eyes and watches over the people, that should be both willing and wise to foresee, and should be also enabled with meet authority to repress all intention of uproar and force even in the first seed thereof and before that it should grow up to any offer of danger.” This was but declaratory of the common law authority of conservators of the peace. That authority could not have been at all efficiently exercised if a search warrant had had to be first obtained before any entry could have been lawfully made upon any land in private tenure.

And while the duties and powers of police officers are, in modern times, largely defined and regulated by statute, it is elementary that the common law may be relied on to supply many incidents (of their powers), “and others are based on what may be necessarily implied from the powers expressly conferred.” ["McClannan v. Chaplain", 136 Va. 1, 12-13 (1923) [internal citations and notations omitted] . "See also Muscoe v. Commonwealth", 86 Va. 443, 447 (1890) (“By the general laws of the state, which upon this subject, are, for the most part, the common law, a constable may, virtute officii, without warrant, arrest for felony, or upon reasonable suspicion of felony, and for misdemeanors committed in his presence, and take the offender before a magistrate to be dealt with according to law.”)]

Notes and references

Some material in this article was adapted from [http://www.commonwealthprotection.org/scoppaper.pdf Special Conservators of the Peace] , by Matthew LeFande, with explicit permission of the author "and" permission for general non-commercial reproduction granted in the original document.