CHAPTER THE NINTH. OF SUBORDINATE MAGISTRATES. IN Na former chapter of thefe commentaries we diftin guished magiftrates into two kinds; fupreme, or thofe in whom the fovereign power of the ftate refides; and fubordinate, or those who act in an inferior fecondary sphere. We have hitherto confidered the former kind only; namely, the fupreme 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 fubor, dinate magiftrates, AND herein we are not to inveftigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal fecretaries, or the like; because I do not know that they are in that capacity in any con fiderable degree the objects of our laws, or have any very im portant share 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 commentaries. Nor fhall I enter into any minute difquifitions, with regard to the rights and dignities of mayors and alder a ch. 2. page 146. 143. 5 Mod. 84. Salk. 347. Carth. Leon. 70. 2 Leon. 175. Comb. 291, men, men, 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 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; constables; 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 laftly, their rights and duties. And first of fheriffs, I. THE fheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, rcine gerefa, 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 cuftody 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 reason of their high employments and attendance on the king's perfon, not being able to tranfact the bufinefs of the county, were delivered of that burden; referving 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 ftill 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 sheriff, and him alone. SHERIFFS were formerly chofen by the inhabitants of the feveral counties. In confirmation of which it was ordained by ftatute 28 Edw. I. c. 8. that the people fhould have election of sheriffs in every fhire, where the fhrievalty is not of inheritance. For antiently in fome counties the fheriffs were hereditary; as I apprehend they were in Scotland till the Statute 20 Geo. II. c. 43; and ftill continue in the county of Dalton of fheriffs, c. 1. Weftmorland to this day: the city of London having alfo the inheritance of the fhrievalty of Middlefex vested in their body by charter. The reafon of these popular elections is affigned in the fame ftatute, 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 conftitution; in which form of government it is an indifpenfible requifite, that the people fhould chufe their own magistrates. This election was in all probability not abfolutely vested in the commons, but required the royal approbation. For, in the Gothic conftitution, the judges of the county courts (which office is executed by our theriff) 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 ftatute 9 Edw. II. ft. 2. which enacted, that the sheriffs fhrould from thenceforth be affigned by the 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. 23 Hen. VI. c. 8. and 21 Hen. VIII. c. 20. the chancellor, treasurer, prefident 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 commonly to bear date the fixth day of November 5. The ftatute of Cambridge, 12 Ric. II. c. 2. ordains, that the chancellor, treafurer, 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 such only as they fhall judge to be the best and most fufficient. And the cuftom now is (and d 3 Rep. 72. Montefq. Sp. L. b. 2. c. 2. f Stiernh. de jure Goth. 1. 1. c. 3. g Stat. 12 Edw. IV. c. I. has has been at least ever fince the time of Fortefcue", who was chief justice and chancellor to Henry the fixth) that all the judges, together with the other great officers and privy counfellors, 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 propofe three perfons, to be reported (if approved of) 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 themfelves. 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 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 some statute: and also, because a statute is exprefsly referred to in the record, which fir Edward Coke tells us he tranfcribed 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 fhould be done in this behalf. And the two chief justices, 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 sheriff, that was "not chofen and prefented to him according to the ftatute; "that the perfon refufing was liable to no fine for disobedi"ence, as if he had been one of the three perfons chofen ac cording 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 flatute, or that fome other thrifty man be intreated to occupy the office for this year; and 66 h de L. L. c. 24. j 2 Inft. 559. that, Book I "that, the 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 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 Weftminster; fo that the judges could not meet there in craftino 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 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 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 acknowleged, 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 present majesty; in which, I believe, few (if any) compulsory instances 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 determined, unlefs by his own death, or the demife of the king; in which last case it was usual for the fucceffor to fend a new writ to the old fheriff": but now by i Jenkins. 229. * Dyer. 225. 1 4 Rep. 33. in Dalt. of fheriffs. 8. ftatute |