Cite as: 532 U. S. 318 (2001)
Opinion of the Court
2
A second, and equally serious, problem for Atwater's historical argument is posed by the "divers Statutes," M. Dalton, Country Justice, ch. 170, § 4, p. 582 (1727), enacted by Parliament well before this Republic's founding that authorized warrantless misdemeanor arrests without reference to violence or turmoil. Quite apart from Hale and Blackstone, the legal background of any conception of reasonableness the Fourth Amendment's Framers might have entertained would have included English statutes, some centuries old, authorizing peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence. The so-called "nightwalker" statutes are perhaps the most notable examples. From the enactment of the Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827,7 night watch-men were authorized and charged "as . . . in Times past" to "watch the Town continually all Night, from the Sun-setting unto the Sun-rising" and were directed that "if any Stranger do pass by them, he shall be arrested until Morning . . . ." 13 Edw. I, ch. 4, §§ 5-6, 1 Statutes at Large 232-233; see also 5 Edw. III, ch. 14, 1 Statutes at Large 448 (1331) (confirming and extending the powers of watchmen). Hawkins emphasized that the Statute of Winchester "was made" not in derogation but rather "in affirmance of the common law," for "every private person may by the common law arrest any suspicious night-walker, and detain him till he give good account of himself . . . ." 2 Hawkins, ch. 13, § 6, at 130. And according to Blackstone, these watchmen had virtually limitless warrantless nighttime arrest power: "Watchmen, either those appointed by the statute of Winchester . . . or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning." 4 Blackstone 289; see
7 7 & 8 Geo. IV, ch. 27, 67 Statutes at Large 153.
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