CHAPTER THE NINTH.

OF SUBORDINATE MAGISTRATES.

IN

IN a former chapter of these commentaries a we distinguished magistrates into two kinds; supreme, or 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

a Ch. 2. page 146.

1 Leon. 70. 2 León. 175. Comb. 143. 5 Mod. 84. Salk. 347. Carth. 291.

commentaries. Nor shall I enter into any minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic [339] constitution of their respective franchises. But the magistrates and officers, whose rights and duties 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 intq, 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, rcine 3epepa, 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 honor, but the labor 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 elec

e Dalton of sheriffs, c. 1.

tion of sheriff's in every shire, where the shrievalty is not of inheritance. For anciently in some counties the sheriffs were hereditary; as I apprehend they were in Scotland till

the statute 20 Geo. II. c. 43; and still continue in [540] the county of Westmorland to this day (1): the city of London having also the inheritance of the shrievalty of Middlesex vested in their body by charter d (2). 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 burden to them." And herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensa ble requisite, that the people should 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 the 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 incolae territorii chose twelve electors, and they nominated three persons ex

d 3 Rep. 72.

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

(1) The earl of Thanet is hereditary sheriff of Westmorland. This office may descend to, and be executed by, a female; for "Ann countess "of Pembroke had the office of hereditary sheriff of Westmorland, and "exercised it in person. At the assizes at Appleby she sat with the "judges on the bench." Harg. Co. Litt. 326.

(2) The election of the sheriffs of London and Middlesex was granted to the citizens of London for ever in very ancient times, upon condition of their paying 3007. a year to the king's exchequer. In consequence of this grant, they have always elected two sheriffs, though these constitute together but one officer; and if one die, the other cannot act till another is elected. (4 Bac. Abr. 447.) In the year 1748, the corporation of London made a by-law, imposing a fine of 6007. upon every person, who, being elected, should refuse to serve the office of sheriff. See the case of Eyans, esq. and the chamberlain of London, 2 Barn. E. L. 185.

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 chancellor, trea surer, 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. and 21 Hen. VIII. c. 20. (3) the chancellor, treasurer, president 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 sixth day of November 8. 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 indiffer ently, and to appoint no man that sueth either privily or openly to be put in office, but such only as they shall judge to be the best and most sufficient. And the custom now is (and has been at least ever since the time of For- [341] tescueh, who was chief justice and chancellor to Henry the sixth) that all the judges, together with the other great officers and privy counsellors, 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 propose three persons, to be reported (if approved of) to the king, who afterwards appoints one of them to be sheriff (4).

f Stiern. de jure Goth. 1. 1. c. 3. g Stat. 12 Edw. IV. c. 1.

h de La L. c. 24.

(3) This last statute, as is observed by Mr. Wooddeson, 1 vol. 89. seems quite to a different purpose,

(4) The following is the present mode of nominating sheriffs in the exchequer on the morrow of St. Martin ;

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 its 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 máterially 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

The chancellor, chancellor of the exchequer, the judges, and several of the privy council assemble, and an officer of the court administers an oath to them in old French, that they will nominate no one from favor, partiality, or any improper motive: this done, the same officer having the list of the counties in alphabetical order, and of those who were nominated the year preceding, reads over the three names, and the last of the three he pronounces to be the present sheriff; but where there has been a pocket-sheriff, he reads the three names upon the list, and then declares who is the present sheriff. If any of the ministry or judges have an objection to any person named in the list, he then mentions it, and another gentleman is nominated in his room; if no objection be made, some one rises and says, "to the two gentlemen I "know no objection, and I recommend A. B. esq. in the room of the 66 present sheriff."

Another officer has a paper with a number of names given him by the clerk of assize for each county, which paper generally contains the names of the gentlemen upon the former list, and also of gentlemen who are likely to be nominated, and whilst the three are nominated, he prefixes 1, 2, or 3, to their names, according to the order in which they are placed; which, for greater certainty, he afterwards reads over twice. Several objections are made to gentlemen; some, perhaps, at their own request; such as, that they are abroad, that their estates are small and incumbered, that they have no equipage, that they are practising barristers, or officers in the militia, &c.

The new sheriff is generally appointed about the end of the following Hilary term; this extension of the time was, probably, in consequence of the 17 Edw. IV. c. 7. which enables the old sheriff to hold his office over Michaelmas and Hilary terms.