fince the time of Fortefcue", who was chief juftice and chancellor to Henry the fixth) that all the judges, together with the 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 laft act for abbreviating Michaelmas term) and then and there propose three persons to the king, who afterwards appoints one of them to be fheriff. This cuftom, of the twelve judges propofing three perfons, feems borrowed from the Gothic conftitution before-mentioned; with this difference, that among the Goths the twelve nominors were first elected by the people themselves. And this ufage of ours at it's first introduction, I am apt to believe, was founded upon fome ftatute, though not now to be found among our printed laws: firft, because it is materially different from the directions 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 alfo, because a statute is exprefsly referred to in the record, which fir Edward Coke tells us he transcribed from the council book of 3 March, 34 Hen. VI. and which is in fubftance as follows. The king had of his own authority appointed a man fheriff of Lincolnfhire, 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 juftices, fir John Fortefcue and fir John Prifot, delivered the unanimous opinion of them all; "that the king did an error when "he made a perfon fheriff, that was not chofen and prefented to "him according to the ftatute; that the perfon refufing was liable

to no fine for difobedience, 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 recourfe to the three perfons that "were chofen according to the statute, or that fome other thrifty "man be intreated to occupy the office for this year; and that, "the next year, to efchew fuch inconveniences, the order of the ftatute in this behalf made be obferved." But, notwithstanding

(c

this

66

this unanimous refolution of all the judges of England, thus entered in the council book, and the ftatute 34 & 35 Hen. VIII. c.26. § 61. which exprefsly recognizes 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 reason of the plague, there was no Michaelmas term kept at Westminster; fo that the judges could not meet there in caftino animarum to nominate the theriffs: 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 circumstanced, 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 sheriff 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 revolution, and abdicated Westminster-hall when king James abdicated the kingdom. However, it must be acknowledged, that the practice of occasionally 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) infiances have occurred.

SHERIFFS, by virtue of feveral 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 pleasure; and fo is the form of the royal writ". Therefore, till a new fheriff be named, his office cannot be detcrmined, unless by his own death, or the demife of the king; in which laft cafe it was ufual for the fucceffor to fend a new writ to the old fheriff: but now by the ftatute 1 Ann. ft. 1. c. 8. all offi

cers

Jenkins. 119. k Dyer. 225. 14 Rep. 32.

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

cers appointed by the preceding king may hold their offices for fix months after the king's demife, unless fooner displaced by the fucceffor. We may faither observe, that by statute 1 Ric. II. c. 11. no man, that has ferved the office of fheriff for one year, can be compelled to ferve the fame again within three years after.

WE fhall find it is of the utmoft 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 caufes of forty fhillings value and under, in his county court, of which more in it's proper place: and he has alfo judicial power in divers other civil cafes He is likewife to decide the elections of knights of the hire, (fubject to the control of the houfe of commons) of coroners, and of verderors; to judge of the qualification of voters, and to return fuch as he shall determine to be duly elected.

As the keeper of the king's peace, both by common law and fpccial commiffion, he is the first man in the county, and superior in rank to any nobleman therein, during his office". He may apprehended, and commit to prifon, all perfons who break the peace or attempt to break it: and may bind any one in a recognizance to keep the king's peace. He may, and is bound ex officio to, purfue and take all traitors, murderers, felons, and other mifdoers, and commit them to gaol for fafe cuftody. He is alfo to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the poffe commitatus, or power of the county: which fummons every person above fifteen years old, and under the degree of a peer, is bound to at

tcnd

tend upon warning', under pain of fine and imprisonment'. But though the sheriff is thus the principal confervator of the peace in his county, yet, by the express directions of the great charter', he, together with the conftable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioners of juftice should be alfo the judges; should impose as well as levy, fines and amercements; fhould one day condemn a man to death, and perfonally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office": for this would be equally inconfiftent; he being in many respects the fervant of the justices.

IN his minifterial capacity the fheriff is bound to execute all procefs iffuing from the king's courts of juftice. In the com mencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. In criminal matters, he also arrefts and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself.

As the king's bailiff, it is his bufinefs to preserve the rights of the king within his bailiwick; for fo his county is frequently called in the writs: a word introduced by the princes of the Norman line; in imitation of the French, whofe territory is divided into bailiwicks, as that of England into counties". He muft feife to the king's ufe all lands devolved to the crown by attainder or efcheat; muft levy all fines and forfeitures; muft feife and keep all waifs, wrecks, cftrays, and the like, unless they be granted to fome fubject; and muft alfo collect the king's

rents

r Lamb. Eiren. 315.

s Stat. 2 Hen. V. c. 8. t cap. 17.

u Stat. 1 Mar. ft. 2. c. 8.

w Fortefc. de L. L. c. 24.

rents within his bailiwick, if commanded by process from the exchequer *.

To execute these various offices, the fheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, fell, nor farm their offices, on forfeiture of 500!'.

THE under-fheriff usually performs all the duties of the office; a very few only excepted, where the perfonal prefence of the high-fheriff is neceffary. But no under-fheriff fhall abide in his office above one year'; and if he docs, by ftatute 23 Hen. VI. c. 8. he forfeits 200l. a very large penalty in those early days. And no under-fheriff or sheriff's officer fhall practice as an attor ney, during the time he continues, in fuch office': for this would be a great inlet to partiality and oppreffion. But these falutary regulations are shamefully evaded, by practising in the names of other attorneys, and putting in sham deputies by way of nominal under-fheriffs: by reafon of which, fays Dalton, the undersheriffs and bailiffs do grow fo cunning in their several places, that they are able to deceive, and it may well be feared that many of them do deceive, both the king, the high-fheriff, and the county.

BAILIFFS, or heriff's officers, are either bailiffs of hundreds, or fpecial bailiffs. Bailiffs of hundreds are officers appointed over those refpective districts by the fheriffs, to collect fines therein; to fummon juries; to attend the judges and justices at the affifes, and quarter feffions; and alfo to execute writs and process in the several hundreds. But, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of ferving writs, and making arrefts and executions, it is now usual to join fpecial bailiffs with them; who are generally

U u

mean

x Dalt. c. 9.
Stat. 3

Geo. I. c. 15.

Y

2 Stat. 42 Edw. III. c. 9.

a Stat. Hen. V. c. 4..

b of Cheriffs, c. £35.