334
Opinion of the Court
also 2 Hale, Pleas of the Crown, at 97 (describing broad arrest powers of watchmen even over and above those conferred by the Statute of Winchester).8 The Statute of Winchester, moreover, empowered peace officers not only to deal with nightwalkers and other nighttime "offenders," but periodically to "make Inquiry of all Persons being lodged in the Suburbs, or in foreign Places of the Towns." On that score, the Statute provided that "if they do find any that have lodged or received any Strangers or suspicious Person, against the Peace, the Bailiffs shall do Righttherein," 13 Edw. I, ch. 4, §§ 3-4, 1 Statutes at Large 232-233, which Hawkins understood "surely" to mean that officers could "lawfully arrest and detain any such stranger[s]," 2 Hawkins, ch. 13, § 12, at 134.
Nor were the nightwalker statutes the only legislative sources of warrantless arrest authority absent real or threatened violence, as the parties and their amici here seem to have assumed. On the contrary, following the Edwardian legislation and throughout the period leading up to the framing, Parliament repeatedly extended warrantless arrest power to cover misdemeanor-level offenses not involving any breach of the peace. One 16th-century statute, for instance, authorized peace officers to arrest persons playing "unlawful game[s]" like bowling, tennis, dice, and cards, and for good measure extended the authority beyond players to include persons "haunting" the "houses, places and alleys where such games shall be suspected to be holden, exercised, used
8 Atwater seeks to distinguish the nightwalker statutes by arguing that they "just reflected the reasonable notion that, in an age before lighting, finding a person walking about in the dead of night equaled probable suspicion that the person was a felon." Reply Brief for Petitioners 7, n. 6. Hale indicates, however, that nightwalkers and felons were not considered to be one and the same. 2 Hale, Pleas of the Crown, at 97 ("And such a watchman may apprehend night-walkers and commit them to custody till the morning, and also felons and persons suspected of felony").
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