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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 entrusted with it's authority; to be loyal, yet free; obedient, and yet independent; and, above everything, 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 it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty.

CHAPTER THE NINTH.

OF SUBORDINATE MAGISTRATES.

In a former chapter of these commentaries we dis tinguished magistrates into two kinds; supreme, of 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 objects 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 shall I enter into any minute disquisitions, with regard to the rights and dignities of mayors and alderman, [339] or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises.* a ch. 2. pag. 146.

291.

b

1 Leon. 70. 2 Leon. 175. Comb. 143. 5 Mod. 84. Salk. 347. Carth.

**Quoted, 2 Sum. 405.

But the magistrates and officers, whose rights and dities 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,

I. The sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, scire gerefa, the reeve, bailiff, or officer of the shire. 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 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 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 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 antiently in some counties 2 the sheriffs were hereditary; as I ap

c Dalton of sheriffs, c. 1.

2 First edition reads here, ", particularly on the borders."
*Cited, Kirby, 240; 3 N. H. 411; 5 Jones (N. C.) 77

2

prehend they were 2 in Scotland till the statute 20 Geo. II. c. 43;2 and 2still continue 2 in the county of [340] Westmorland to this day;2 the city of London 2 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 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 requisite, that the people shouid 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 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 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 2 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. 2and 21 Hen. VIII. c. 20.2 the chancellor, treasurer, 2 president of the king's council,2 chief justices, and chief baron, are to make this election; and that on the morrow of All Souls in the exchequer.

d 3 Rep. 72.

e Montesq. Sp. L. b. 2. c. 2.

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

2 First edition reads "are."

2 First edition reads here, "and."

2 First edition reads "has."

2 First edition reads here, "lord."

"And the king's letters patent, appointing the new sheriffs, used commonly to bear date the sixth day of November. The statute of Cambridge, 12 Ric. II. c. 2. ordains, that the chancellor, treasurer, keeper of the privy seal, steward of the king's house, the king's chamberlain, clerk of the rolls, the justices of the one bench and the other, barons of the exchequer, and all other that shall be called to ordain, name, or make justices of the peace, sheriffs, and other officers of the king, shall be sworn to act indifferently, and to 9name no man that sueth9 to be put in office, but such only as they shall judge to be the best and most sufficient. And 2 the custom now is (and has been at least [341] ever since the time of Fortescue, who was chief justice and chancellor to Henry the sixth) that all the judges, 2together with the other great officers, meet in the exchequer chamber9 on the morrow of All Souls yearly (which day is now altered to the morrow of St. Martin by the last 2 act for abbreviating Michaelmas term) and then and there? 2 propose three persons9 to the king, who afterwards appoints one of them to be sheriff. This custom, of the twelve judges 'proposing 2 three persons, seems borrowed from the Gothic constitution before-mentioned; 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, was founded g 2Stat. 12 Edw. IV. c. 1.2

h de L. L. c. 24.

2

2

9 Ninth edition reads here, "appoint no man that sueth either privily or openly."

2 First edition reads "But."

2 First edition reads "and certain."

9 Ninth edition inserts, "and privy counsellors."

9 Ninth edition omits this.

9 Ninth edition inserts, "the judges."

2 First edition reads "nominate."

9 Ninth edition inserts, "to be reported (if approved of)."

2 First edition reads "nominating."

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