CHAPTER THE NINTH.

OF SUBORDINATE

MAGISTRATES..

IN

N a former chapter of these commentaries' we distinguished magistrates into two kinds; fupreme, or those in whom the fovereign power of the state refides; and fubordinate, or those who act in an inferior secondary sphere.. 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 enquire into the rights and duties of the principal fubordinate magiftrates.

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 confiderable degree the objects of our laws, or have any very important share of magiftracy conferred upon them: except that the secretaries of state: are allowed the power of commitment, in order to bring offend-ers to trial. Neither fhall I here treat of the office and authority of the lord chancellor, or the other judges of the superiorcourts of juftice; because they will find a more proper place in the third part of these commentaries. Nor fhall I enter into any minute difquifitions, with regard to the rights and dignities of

ach. 2. pag. 142.

b 1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.

mayors

mayors and aldermen, or other magiftrates of particular corporations; because these are mere private and ftrictly municipal rights, depending entirely upon the domeftic conftitution of their respective franchises. But the magistrates and officers, whose rights and duties it will be proper in this chapter to confider, are such as are generally in ufe and have a jurisdiction and authority difperfedly throughout the kingdom: which are, principally, sheriffs; coroners; juftices of the peace; conftables; furveyors of highways; and overfeers of the poor. In treating of all which I fhall enquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, laftly, their rights and duties. And first of sheriffs.

I. THE sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, fhire reeve, the 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 shire is said to have been committed at the first divifion of this kingdom into counties. But the earls in procefs of time, by reason of their high employments and attendance on the king's perfon, 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 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 cuftodiam comitatus to the fheriff, and him alone.

SHERIFFS were formerly chofen 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 fhrievalty is not of inheritance. For antiently in fome counties, particularly on the borders, the sheriffs were hereditary; as I apprehend they are in Scotland, and in the county of Westmorland, to this day: and the city of Lon

c. Dalton of fheriffs, c. 1.

don

don has also the inheritance of the shrievalty of Middlesex vested in their body by charter. The reason of these popular elections is affigned in the same statute, c. 13. "that the commons might "chufe fuch as would not be a burthen 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 requifite, that the people fhould chufe 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 their 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 incolae territorii, chofe twelve electors, and they nominated three perfons, 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. ft. 2. which enacted, that the sheriffs should from thenceforth be affigned by the lord chancellor, treasurer, and the judges; as being perfons in whom the fame truft might with confidence be repofed. By ftatutes 14 Edw. III. c. 7. and 23 Hen. VI. c. 8. the chancellor, treafurer, chief justices, and chief baron, are to make this election; and that on the morrow of All Souls in the exchequer. But the custom now is (and has been at least ever fince the time of Fortescue, who was chief justice and chancellor to Henry the fixth) that all the judges, and certain other great officers, meet in the exchequer chamber on the morrow of All Souls yearly, (which day is now altered to the morrow of St. Martin by the act for abbreviating Michaelmas term) and then and there nominate three persons to the king, who afterwards appoints one of them to be sheriff. This cuftom, of the twelve judges nominating three perfons, seems borrowed from the Gothic conftitution beforementioned; with this difference, that among the Goths the twelve nominors were first elected by the people themselves. And this usage of ours at it's first introduction, I am apt to believe, f Stiernhook de jure Goth. L. 1. c.3.

d 3 Rep. 72.

8 de L. L. c. 24. Sf

was

66

Book I. was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the ftatutes beforementioned; 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 some statute: and also, because a statute is expreffly referred to in the record, which fir Edward Coke tells us he tranfcribed from the council book of 3 Mar. 3 34 Hen. 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 should be done in this behalf. And the two chief justices, fir John Fortescue and fir John Prifot, delivered the unanimous opinion of them all; "that the king did an error when he made a person sheriff, that was not "chosen and presented to him according to the ftatute; that the perfon refusing was liable to no fine for disobedience, as if he "had been one of the three perfons chosen according to the tenor "of the statute; that they would advise the king to have recourse "to the three persons that were chosen according to the ftatute, "or that some other thrifty man be intreated to occupy the office "for this year; and that, the next year, to efchew fuch incon"veniences, the order of the ftatute in this behalf made be ob"served." But, notwithstanding this unanimous refolution of all the judges of England, thus entered in the council book, fome of our writers have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. This is grounded on a very particular cafe in the fifth year of queen Elizabeth, when, by reason 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 herself, without fuch previous affembly, appointing for the most part one of the two remaining in the last year's lift. And this cafe, thus circum

66

2 Inft. 559Jenkins. 229.

i

* Dyer 225.

stanced,

stanced, is the only precedent in our books for the making these extraordinary sheriffs. It is true, the reporter adds, that it was held that the queen by her prerogative might make a sheriff without the election of the judges, non obftante aliquo ftatuto in contrarium: but the doctrine of non obftante's, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated Westminster-hall when king James abdicated the kingdom. So that sheriffs cannot now be legally appointed, otherwise than according to the known and established law.

SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been faid' that a sheriff may be appointed durante bene placito, or during the king's pleasure; and fo is the form of the royal writ". 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 laft cafe it was usual for the fucceffor to fend a new writ to the old sheriff"; but now by statute 1 Ann. ft. 1. c. 8. all officers appointed by the preceding king may hold their offices for fix months after the king's demife, unless sooner displaced by the fucceffor. We may farther observe, that by statute 1 Ric. II. c.11. no man, that has ferved the office of sheriff for one year, can be compelled to ferve the fame again within three years after.

I

We shall find it is of the utmost importance to have the sheriff appointed according to law, when we confider his power and duty. These are either as a judge, as the keeper of the king's peace, as a minifterial officer of the fuperior courts of justice, or as the king's bailiff.

In his judicial capacity he is to hear and determine all causes of forty fhillings value and under, in his county court, of which more in it's proper place: and he has also judicial power in divers

4 Rep. 32.

Dalt, of fheriffs. 8.

n Dalt. 7.

S£2

other