This is counterbalanced the crown [ 337 ] triennial, since turned into septennial, elections; by the exclusion of certain officers from the House of Commons; by rendering the seats of the judges permanent, and their salaries liberal and independent; and by restraining the king's pardon from obstructing parliamentary impeachments. Besides all this, if we consider how the crown is impoverished and stripped of all its ancient revenues, so that it must greatly rely on the liberality of Parliament for its necessary support and maintenance, we may, perhaps, be led to think that the balance is inclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left to form that check upon the Lords and Commons which the founders of our Constitution intended. But, on the other hand, it is to be considered that every by the per- prince, in the first Parliament after his accession, has, by long sonal inde- usage, a truly royal addition to his hereditary revenues settled pendence of upon him for his life, and has never any occasion to apply to and its vast Parliament for supplies but upon some public necessity of the patronage. whole realm. This restores to him that constitutional inde-pendence which at his first accession seems, it must be owned, to be wanting. And then, with regard to power, we may find. perhaps, that the hands of government are at least sufficiently strengthened, and that an English monarchy is now in no danger of being overborne by either the nobility or the people. The instruments of power are not, perhaps, so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections; but they are not the weaker upon that account. In short, our national debt and taxes (besides the inconveniences before mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government as we can not think was intended by our patriot ancestors, who gloriously struggled for the abolition of the then formidable parts of the prerogative, and, by an unaccountable want of foresight, established this system. in their stead." The entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers created by and removable at the royal pleasure, that they have extended the influence of government to every corner of the nation. Witness the commissioners and the multitude of dependents on the customs in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered and full as numerous; the officers of the salt duty, which, though (60) On this subject, vide Hallam, Const. Hist., iii., 387, to the end of the chapter. a species of excise, and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land-tax; the managers of lotteries; and the commissioners of hackney-coaches; all which are either mediately or immediately appointed by the crown, and removable at pleasure, without any reason assigned: these, it requires but little pen- [336* ] etration to see, must give that power, on which they depend for subsistence, an influence most amazingly extensive. Tor this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money transactions, which will greatly increase this influence, and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. All this is the natural, though, perhaps, the unforeseen consequence of erecting our funds of credit, and, to support them, establishing our present perpetual taxes; the whole of which is entirely new since the Restoration in 1660, and by far the greatest part since the Revolution in 1688. And the same may be said with regard to the officers in our numerous army, and the places which the army has created. All which, put together, give the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative. But, though this profusion of offices should have no effect on individuals, there is still another newly-acquired branch of power; and that is, not the influence only, but the force of a disciplined army; paid, indeed, ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. They are kept on foot, it is true, only from year to year, and that by the power of Parliament, but during that year they must, by the nature of our Constitution, if raised at all, be at the absolute disposal of the crown. And there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people; a trust that is more than equivalent to a thousand little troublesome prerogatives. Add to all this that, besides the civil list, the immense revenue of almost seven millions sterling, which is annually paid to the creditors of the public, or carried to the sinking fund, is first deposited in the royal Exchequer, and thence issued out to the respective offices of payment. This revenue the people can [ 337* ] never refuse to raise, because it is made perpetual by act of Parliament; which also, when well considered, will appear to be a trust of great delicacy and high importance. Upon the whole, therefore, I think it is clear that, whatever may have become of the nominal, the real power of the crown has not been too far weakened by any transactions in the last century. Much is, indeed, given up; but múch is also acquir ed. The stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. When, indeed, by the free operation of the sinking fund, our national debt shall be lessened; when the posture of foreign affairs, and the universal introduction of a well-planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced, this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But till that shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the crown, and yet guard against corrupt and servile influence✓ from those who are intrusted with its authority; to be loyal, yet free; obedient, and yet independent; and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free Constitution of Britain; hath already in more than one instance remarkably strengthened its outworks; and will, therefore, never harbor a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty. 338 CHAPTER IX. OF SUBORDINATE MAGISTRATES. IN a former chapter of these Commentariesa we distinguished magistrates into two kinds : supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. We have hitherto considered the former kind only; namely, the supreme legislative power or Parliament; and the supreme executive power, which is the king; and are now to proceed to inquire into the rights and duties of the principal subordinate magistrates. And herein we are not to investigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the object of our laws, or have any very important share of magistracy conferred upon them; except that the secretaries of state are allowed the power of commitment in order to bring offenders to trial. Neither shall I here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these Commentaries. Nor shalll I enter into any minute disquisitions with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere [339] private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. But the magistrates and officers whose rights and duties it will be proper in this chapter to consider are such as are generally in use, and have a jurisdiction and authority dispersedly throughout the kingdom, which are principally sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor; in treating of all which I shall inquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties. And first of sheriffs. Sheriffs. I. The sheriff is an officer of very great antiquity in this I. The antiquity and kingdom, his name being derived from two Saxon words, rcine origin of the Jepera, the reeve, bailiff, or officer of the shire. He is called, office. in Latin, vice-comes, as being the deputy of the earl, or comes, to a Ch. 2, page 146. 843; 5 Mod., 84; Salk., 347; Carth., b 1 Leon., 70; 2 Leon., 175; Comb., 291. The mode of appointment. whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. But the earls, in process of time, by reason of their high employments, and attendance on the king's person, not being able to transact the business of the county, were delivered of that burden, reserving to themselves the honor, but the labor was laid on the sheriff; so that now the sheriff does all the king's business in the county; and, though he be still called vice-comes, yet he is entirely independent of, and not subject to, the earl; the king by his letters patent' committing custodiam comitatus to the sheriff, and him alone. Sheriffs were formerly chosen by the inhabitants of the several counties: in confirmation of which, it was ordained by statute 28 Edw. I., c. 8, that the people should have election of sheriffs in every shire where the shrievalty is not of inheritance. For anciently in some counties the sheriffs were hereditary, as I apprehend they were in Scotland till the statute 20 Geo. II., c. 43, and still continue in the county of Westmore[340] land to this day; the city of London having also the inheritance of the shrievalty of Middlesex vested in their body by charter. The reason of these popular elections is assigned in the same statute, c. 13, "that the commons might choose such as would not be a burden to them." And herein appears plainly a strong trace of the democratical part of our Constitution, in which form of government it is an indispensable requisite that the people should choose their own magistrates. This election was in all probability not absolutely vested in the commons, but required the royal approbation; for, in the Gothic Constitution, the judges of the county courts (which office is executed by our sheriff) were elected by the people, but confirmed by the king; and the form of their election was thus managed: the people, or incolæ territorii, chose twelve electors, and they nominated three persons, ex quibus rex unum confirmabat. But with us in England these popular elections, growing tumultuous, were put an end to by the statute 9 Edw. II., st. 2, which enacted that the sheriffs should from thenceforth be assigned by the chancellor, treasurer, and the judges, as being persons in whom the same trust might with confidence be reposed. By statutes 14 Edw. III., c. 7, 23 Hen. VI., c. 8, and 21 Hen. VIII., c. 20, the chancellor, treasurer, president of the king's council, chief justices, and chief baron, are to make this election, and that on the morrow of All Souls in the Exchequer. And the king's letters patent, appointing the new sheriffs, used c Dalton, of Sheriffs, c. 1. (1) Since the passing of 3 & 4 Wm. IV., c. 99, the appointment of sheriffs has been by warrant in the form set forth in the schedule to that act, made Montesq., Sp. L., b. 2, c. 2. f Stiernh., De Jure Goth., 1. 1, c. 3. out and signed by the clerk of the privy council, instead of by letters patent under the great seal (see sect. 3). |