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CHAPTER THE NINTH.

OF SUBORDINATE MAGISTRATES.

IN a former chapter of thefe Commenta

ries we diftinguished magiftrates into two kinds; fupreme, or thofe in whom the fovereign power of the ftate refides; and subordinate, or those who act in an inferior fecondary fphere. We have hitherto confidered the former kind only; namely, the fupreme legislative power or parliament, and the fupreme executive power, which is the king: And are now to proceed to inquire into the rights and duties of the principal fubordinate magiftrates.

And herein we are not to investigate the powers and duties of his majefty's great officers of ftate, the lord treasurer, lord chamberlain, the principal fecretaries, or the like; because I do not know that they are in that capacity in any confiderable degree the objects of our laws, or have any very important fhare of magiftracy conferred upon them: Except that the fecretaries of ftate are allowed the power of commitment, in order to bring offenders to trial ↳. Neither fhall I here treat of the office ⚫ and authority of the lord chancellor, or the other judges of the fuperior courts of juftice; because they will find a more proper place in the third part of these Commen taries. Nor fhall I enter into any minute difquifitions, with regard to the rights and dignities of mayors

a Ch. 2. pag. 146.
by Leon. 70.

and

2 Leon. 75. Comb. 143. 5 Mod. 84. Salk. 347. Carth. 291.

and aldermen, or other magiftrates of particular corporations, because these are mere private and strictly munici pal rights, depending entirely upon the domeftick conftitution of their refpective franchises. But the magiftrates and officers, whose rights and duties it will be proper in this chapter to confider, are fuch as are generally in ufe, and have a jurisdiction and authority difperfedly throughout the kingdom: Which are principally, fheriffs; coroners; juftices of the peace; conftables; furveyors of highways; and overfeers of the poor. In treating of all which I fhall inquire into, firft, their antiquity and original; next, the manner in which they are appointed and may be removed; and lastly, their rights and duties. And firft of sheriffs :

I. The fheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words pcipe depera, the reeve, bailiff, or officer of the fhire. He is called in Latin vice comes, as being the deputy of the earl or comes; to whom the custody of the fhire is faid to have been committed at the firft divifion of this kingdom into counties. But the earls in process of time, by reafon of their high employments and attendance on the king's person, not being able to tranfact the business of the county, were delivered of that burden; reserving to themselves the honour, but the labour was laid on the fheriff. So that now the sheriff does all the king's bufinefs in the county; and though he be still called vice comes, yet he is entirely independent of, and not fubject to the ear; the king, by his letters patent, committing cuftodiam comitatus to the fheriff, and him alone.

Sheriffs were formerly chofen by the inhabitants of the feveral counties. In confirmation of which it was ordained by ftatute 28 Edward I. c. 8. that the people fhould have election of sheriffs in every fhire where the fhrievalty is not of inheritance. For anciently in fome counties the sheriffs were hereditary; as I apprehend they were in Scotland till the ftatute 20 Geo. II. c. 43; and still continue in the county of Weftmoreland to this day:

c. Dalt, of sheriffs, c. J.

day: The city of London having also the inheritance of the fhrievalty of Middlesex vefted in their body by charterd. The reafon of these popular elections is affigned in the fame statute, c. 13. "that the commons might

"choose fuch as would not be a burthen to them.". And herein appears plainly a strong trace of the democratical part of our conftitution; in which form of government it is an indifpenfable requifite, that the people fhould choose their own magiftrates e. This election was in all probability not abfolutely vested in the commons, but required the royal approbation. For, in the Gothick conftitution, the judges of the county courts (which office is executed by our fheriff) were elected by the people, but confirmed by the king: And the form of their election was thus managed; the people, or incolae territorii, chofe twelve electors, and they nominated three perfons, ex quibus rex unum confirmabat. But with us in England, thefe popular elections, growing tumultuous, were put an end to by the ftatute 9 Edward II. ft. 2. which enacted, that the fheriffs fhould from thenceforth be affigned by the chancellor, treafurer and the judges; as being perfons in whom the fame truft might with confidence be repofed. By ftatutes 14 Edward III. c. 7. 23 Henry VI. c. 8. and 21 Henry VIII. c. 20. the chancellor, treasurer, prefident of the king's council, chief juftices, 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 fheriffs, ufed commonly to bear date the fixth day of November. The ftatute of Cambridge, 12 Rich. II. c. 2. ordains, that the chancellor, treasurer, keeper of the privy feal, fteward of the king's houfe, the king's chamberlain, clerk of the rolls, the juftices of the one bench and the other, barons of the exchequer, and all other that fhall, be called to ordain, name, or make juftices of the peace, fheriffs, and other officers of the king, fhall be fworn to act indifferently, and to appoint no man that fueth either privily or openly to be put in office, but fuch only as they fhall judge to be the best and moft fufficient. And the custom now is (and has

3 Rep. 72..

been

f Stiernh. de jure Goth. l. 1. c. 3.

e Montelque. Sp. L. b. 2. c. 2. g Stat. 12 Edward IV. c. I.

been at least ever fince the time of Fortefcue, who was chief justice and chancellor to Henry VI) that all the judges, together with the other great officers and privy counsellors, meet in the exchequer on the morrow of All Souls yearly, (which day is now altered to the morrow of St. Martin by the last act for abbreviating Michaelmas term) and then and there the judges propose three perfons, to be reported (if approved of) to the king, who afterwards appoints one of them to be theriff.

This cuftom, of the twelve judges propofing three perfons, feems borrowed from the Gothick conftitution before mentioned; with this difference, that among the Goths, the twelve nominors were firft elected by the people themselves. And this ufage of ours at its first introduction, I am apt to believe, was founded upon fome ftatute, though not now to be found among our printed laws Firit, because it is materially different from the direction of all the ftatutes before mentioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortefcue would have inferted in his book, unless by the authority of fome ftatute And also, because a statute is exprefsly referred to in the record, which Sir Edward Coke tells us he tranfcribed from the council book 3 March 34 Hen.

ry

:

VI. and which is in substance as follows. The king had of his own authority appointed a man fheriff of Lincolnshire, which office he refufed to take upon him : Whereupon the opinions of the judges were taken, what fhould be done in this behalf. And the two chief juftices, Sir John Fortefcue and Sir John Prifot, delivered the unanimous opinion of them all; "that the king "did an error when he made a perfon fheriff, that was "not chosen and presented to him according to the ftat"ute; that the perfon refufing was liable to no fine "for disobedience, as if he had been one of the three "perfons chofen according to the tenor of the ftatute; "that they would advise the king to have recourse to "the three perfons that were chofen according to the "ftatute, or that fome other thrifty man be intreated "to occupy the office for this year; and that, the

h De L. L. c. 24.

j 2 Inft. 559.

next

"next year, to efchew fuch inconveniences, the order "of the ftatute in this behalf made, be observed." But notwithstanding this unanimous refolution of all the judges of England, thus entered in the council book, and the ftatute 34 & 35 Henry VIII. c. 26. §. 61. which exprefsly recognises this to be the law of the land, fome of our writers have affirmed that the king, by his prerogative, may name whom he pleases to be fheriff, whether chofen by the judges or no. This is grounded on a very particular cafe in the fifth year of Queen Elizabeth; when, by reafon of the plague, there was no Michaelmas term kept at Westminster; so that the judges could not meet there in craftino animarum to nominate the fheriffs: Whereupon the queen named them herlelf, without fuch previous affembly, appointing for the most part one of the two remaining in the laft year's lift. And this case, thus circumftanced, is the only authority in our books for the making thefe extraordinary fheriffs. It is true, the reporter adds, that it was held that the queen by her prerogative might make a fheriff without the election of the judges, non obftante aliquo ftatuto in contrarium: But the doctrine of non obftante's, which fets the prerogative above the laws, was effectually demolished by the bill of rights at the revo lution, and abdicated Westminsterhall when King James abdicated the kingdom. However, it must be acknowl edged, that the practice of occafionally naming what are called pocket fheriffs, by the fole authority of the crown, hath uniformly continued to the reign of his prefent majefty; in which, I believe, few (if any) compulfory inftances have occurred.

Sheriffs, by virtue of several old ftatutes, are to continue in their office no longer than one year: And yet it hath been faid that a fheriff may be appointed durante bene placito, or during the king's pleafure; and fo is the form of the royal writm. Therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demife of the king; in which last cafe it was ufual for the fucceffor to fend a new writ to the old fheriff: But now by statute 1 Ann. ft. 1. c. 8.

i Jenkins. 229. k Dyer. 225. 14 Rep. 32.

m Dalt. of sheriffs. 8.
n Ibid. 7.

all

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