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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 (5). 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 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 statute, or that some other thrifty 66 man be entreated to occupy the office for this year; and

j 2 Inst. 559.

(5) I am inclined to disagree with the learned Judge's conjecture, that the present practice originated from a statute which cannot now be found; because, if such a statute ever existed, it must have been passed between the date of this record, the 34 Hen. VI. and the statute 23 Hen. VI. c. 8. referred to by the learned Commentator in the preceding page; for that statute recites and ratifies the 14 Edw. III. c. 7. which provides only for the nomination of one person to fill the office when vacant; yet the former statute 9 Edw. II. st. 2. leaves the number indefinite, viz. sheriffs shall be assigned by the chancellor, &c. and if such a statute had passed in the course of those eleven years, it is probable that it would have been referred to by subsequent statutes. I should conceive that the practice originated from the consideration, that, as the king was to confirm the nomination by his patent, it was more convenient and respectful to present three to him than only one; and though this proceeding did not exactly correspond with the directions of the statute, yet it was not contrary to its spirit, or in strictness' to its letter; and therefore the judges might, perhaps, think themselves warranted in saying, that the three persons were chosen according to the tenor of the statute.

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58

"that, the next year, to eschew such inconveniences, the order
"of the statute in this behalf made be observed." But
[342] 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
recognises this to be the law of the land, some of our writersi
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 case 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 crastino animarum to nominate
the sheriffs: whereupon the queen named them herself, with-
out 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 abdi-
cated Westminster-hall when king James abdicated the king-
dom. 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 (6).

i Jenkins. 229. *

k Dyer. 225.

(6) When the king appoints a person sheriff, who is not one of the three nominated in the exchequer, he is called a pocket-sheriff. It is probable, that no compulsory instance of the appointment of a pocket. sheriff ever occurred; and the unanimous opinion of the judges, preserved in the record cited by the learned Commentator from 2 Inst. 559. precludes the possibility of such a case. This is an ungracious prerogative; and whenever it is exercised, unless the occasion is manifest, the whole administration of justice throughout one county for a twelve

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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 writm. 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 preceding king

may hold their offices, for six months after the king's [343] demise, unless sooner displaced by the successor. 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 after (7).

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 its 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 14 Rep. 32.

m Dalt, of sheriffs. 8.

n Dalt. 7.

o Ibid. c. 4.

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month, if not corrupted, is certainly suspected. The cause ought to be urgent or inevitable, when recourse is had to this prerogative.

(7) If there be other sufficient within the county. Until a different regulation was made by 8 Eliz. c. 16. in a great many instances two counties had one and the same sheriff: this is still the case in the counties of Cambridge and Huntingdon.

superior in rank to any nobleman therein, during his officeP. 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 ex 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, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county: and this summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon [344] warning, under pain of fine and imprisonments. But though the sheriff is thus the principal conservator of the peace in his county, yet by the express directions of the great chartert, he, together with the constable, 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 justice should be also the judges; should impose, as well as levy, fines and amercements; should one day condemma man to death, and personally 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 inconsistent; he being in many respects the servant of the justices.

In his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. In the commencement 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 arrests and imprisons, he re

p 1 Roll. Rep. 237.

q Dalt, c. 95.

r Lamb. Eiren. 315.

8 Stat. 2 Hen. V. c. 8.

t cap. 17.

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

turns 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 business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs; a word introduced by the princes of the Norman line, in imitation of the French, whose territory is divided into bailiwicks, as that of England into counties w. He must seise to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seise and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and must also collect the king's rents within his bailiwick, if commanded by process from the exchequer *.

To execute these various offices, the sheriff has [345] under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 5001. y

THE under-sheriff usually performs all the duties of the office; a very few only excepted, where the personal presence of the high-sheriff is necessary. But no under-sheriff shall abide in his office above one year; and if he does, by statute 23 Hen. VI. c. 8. he forfeits 2001. a very large penalty in those early days. And no under-sheriff or sheriff's officer shall practise as an attorney, during the time he continues in such office a: for this would be a great inlet to partiality and oppression. But these salutary regulations are shamefully evaded, by practising in the names of other attorneys, and putting in sham deputies by way of nominal undersheriffs by reason of which, says Dalton, the under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may well be feared that

w Fortesc. de L. L. c. 24.

x Dalt. c. 9.

y Stat. 3 Geo. I. c. 15.

z Stat. 42 Edw. III. c. 9.

a Stat. 1 Hen. V. c. 4.

b of sheriff's, c. 115.

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