[342] St. Martin by the last act for abbreviating Michaelmas term;) and then and there the judges propose three persons, to be reported (if approved of) to the king, who afterwards appoints one of them to be sheriff. THIS custom of the twelve judges proposing 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 upon some statute, though not now to be found among our printed laws: first, because it is materially different from the direction of all the statutes before mentioned: which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute; and also because a statute is expressly referred to in the record, which sir Edward Coke tells us he transcribed from the council-book of 3 March, 34 Hen. VI. and which is in substance as follows. The king had of his own authority appointed a man sheriff of Lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, sir John Fortescue and sir John Prisot, 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 statute: "that the person refusing was liable to no fine for disobe 66 66 man dience, as if he had been one of the three persons chosen according to the tenor of the statute; that they would advice "the king to have recourse to the three persons that were "chosen according to the statute: or that some other thrifty be intreated to occupy the office for this year; and "that the next year, to eshew such inconveniences, the "order of the statute in this behalf made be observed." But notwithstanding this unanimous resolution of all the judges of England, thus entered in the council book, and the statute 34 & 35 Hen. VIII. c. 26. § 61. which expressly recognizes this to be the law of the land, some of our writers have j Jenkins, 229. i 2 Inst. 559. 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 case in the fifth year of queen Elizabeth, when, by reason of the plague, there was no Michaelmas term kept at Westminister: so that the judges could not meet there in crastino animarum to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list *. And this case, thus circumstanced, is the only authority 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 obstante aliquo statuto in contrarium: but the doctrine of non obstante's, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated Westminister-hall when king James abdicated the kingdom. However, it must be acknowledged, that the practice of occasionally naming what are called pocket-sheriffs, by the sole 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 (2.) SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year and yet it hath been said that a sheriff may be appointed durante bene placito, or during the king's pleasure; and so 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 demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff" : but now by statute 1 Ann. st. 1. c. 8. all officers appointed by the pre- [ 343 ] * Dyer, 225. 14 Rep. 32. m Dalt. of Sheriffs, 8. " Dalt.7. (2) A compulsory appointment could scarcely be made after the resolution of the judges cited in the text from 2 Inst. 559. Where the appointment is legal, and there is no sufficient excuse for not accepting it, it is a misdemeanor to refuse to serve, and the court of K. B. would probably grant permission to proceed by criminal information against a person so refusing. See R. v. Woodrow, 2 T. R. 731. St. Martin by the last act for abbreviating Michaelmas term;) and then and there the judges propose three persons, to be reported (if approved of) to the king, who afterwards appoints one of them to be sheriff. THIS custom of the twelve judges proposing 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 upon some statute, though not now to be found among our printed laws: first, because it is materially different from the direction of all the statutes before mentioned: which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute; and also because a statute is expressly referred to in the record, which sir Edward Coke tells us he transcribed from the council-book of 3 March, 34 Hen. VI. and which is in substance as follows. The king had of his own authority appointed a man sheriff of Lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, sir John Fortescue and sir John Prisot, 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 statute: "that the person refusing was liable to no fine for disobe"dience, as if he had been one of the three persons chosen 66 66 year; and according to the tenor of the statute; that they would advice "the king to have recourse to the three persons that were "chosen according to the statute: or that some other thrifty man be intreated to occupy the office for this [342] "that the next year, to eshew such inconveniences, the "order of the statute in this behalf made be observed." But notwithstanding this unanimous resolution of all the judges of England, thus entered in the council book, and the statute 34 & 35 Hen. VIII. c. 26. § 61. which expressly recognizes this to be the law of the land, some of our writers have 2 Inst. 559. ¡ Jenkins, 229. 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 case in the fifth year of queen Elizabeth, when, by reason of the plague, there was no Michaelmas term kept at Westminister: so that the judges could not meet there in crastino animarum to nominate the sheriffs whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list. And this case, thus circumstanced, is the only authority 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 obstante · aliquo statuto in contrarium: but the doctrine of non obstante's, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated Westminister-hall when king James abdicated the kingdom. However, it must be acknowledged, that the practice of occasionally naming what are called pocket-sheriffs, by the sole 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 (2.) SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year and yet it hath been said that a sheriff may be appointed durante bene placito, or during the king's pleasure; and so 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 demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff" but now by statute 1 Ann. st. 1. c. 8. all officers appointed by the pre- [ 343 ] * Dyer, 225. m Dalt. of Sheriffs, 8. 1 4 Rep. 32. (2) A compulsory appointment could scarcely be made after the resolution of the judges cited in the text from 2 Inst. 559. Where the appointment is legal, and there is no sufficient excuse for not accepting it, it is a misdemeanor to refuse to serve, and the court of K. B. would probably grant permission to proceed by criminal information against a person so refusing. See R. v. Woodrow, 2 T. R. 731. ceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor (3.) We may farther observe, that by statute 1 Ric. II. c. 11. no man that has served the office of sheriff for one year, can be compelled to serve the same again within three years. (4) WE shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff. IN his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in it's proper place; and he has also a judicial power in divers other civil cases. He is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons,) of coroners, and of verderors; to judge of the qualification of voters, and to return such as he shall determine to be duly elected. As the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office P. He may apprehend, and commit to prison, all persons 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 er officio, to pursue, and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also 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, o Dalt. c. 4. P 1 Roll. Rep. 237. (3) In the last reign an act passed (57 G.3. c. 45.) by which all persons holding any office under the crown, civil or military, during pleasure, on the day of the demise of his then present majesty, were empowered to hold the same without any new commission during the pleasure of his successor. No act of a similar nature has been passed, I believe, in the present reign. (4) " "If there be other sufficient persons within the county." |