Obrázky stránek
PDF
ePub

CHAPTER R THE ΝΙΝΤн.

OF

SUBORDINATE

MAGISTRATES.

N

I a former chapter of these commentaries we distinguished

magistrates into two kinds; fupreme, or those in whom the fovereign power of the state refides; and subordinate, or those who act in an inferior secondary sphere. We have hitherto considered 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 enquire into the rights and duties of the principal subordinate magiftrates.

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 confiderable 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 fuperior courts of justice; because they will find a more proper place in the third part of these commentaries. Nor shall I enter into any minute disquifitions, 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 domeftic conftitution of their respective franchises. But the magistrates and officers, whose rights and duties it will be proper in this chapter to confider, are fuch as are generally in use and have a jurifdiction and authority dispersedly throughout the kingdom: which are, principally, sheriff's; coroners; justices of the peace; conftables; furveyors of highways; and overseers of the poor. In treating of all which I shall enquire into, 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.

2 ch. 2. pag. 142.

1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.

mayors

I. THE sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, shire reeve, the 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 thire 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 perfon, not being able to tranfact the business of the county, were delivered of that burden; referving to themselves the honour, but the labour 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 cuftodiam 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 election of sheriffs in every shire, where the shrievalty is not of inheritance. For antiently in some counties, particularly on the borders, the sheriffs were hereditary; as I apprehend they are in Scotland, and in the county of Westmorland, to this day and the city of Lon

Dalton of sheriffs, c. 1.

don

don has also the inheritance of the shrievalty of Middlesex vested in their body by charter. The reason of these popular elections is affigned in the same statute, c. 13. "that the commons might "chuse such 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 indispensable requifite, that the people should chuse 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 their 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 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. ft. 2. which enacted, that the sheriffs should from thenceforth be affigned by the lord chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. By statutes 14 Edw. III. c. 7. and 23 Hen.VI. c. 8. the chancellor, treafurer, chief justices, and chief baron, are to make this election; and that on the morrow of All Souls in the exchequer. But the custom now is (and has been at least ever fince the time of Fortescue, who was chief justice and chancellor to Henry the sixth) that all the judges, and certain 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 act for abbreviating Michaelmas term) and then and there nominate three persons to the king, who afterwards appoints one of them to be sheriff. This custom, of the twelve judges nominating three perfons, seems borrowed from the Gothic conftitution beforementioned; 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,

[merged small][merged small][ocr errors][merged small][merged small][merged small]

was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the statutes beforementioned; 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 expreffly referred to in the record, which fir Edward Coke tells us h he transcribed from the council book of 3 Mar. 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, fir John Fortescue and fir John Prisot, delivered the unanimous opinion of them all; "that the "king did an error when he made a person sheriff, that was not "chofen and presented to him according to the ftatute; that the "person refusing was liable to no fine for difobedience, as if he "had been one of the three persons chofen according to the tenor "of the statute; that they would advise the king to have recourse "to the three persons 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 eschew fuch incon"veniences, the order of the ftatute in this behalf made be ob"served." But, notwithstanding this unanimous resolution of all the judges of England, thus entered in the council book, some of our writers have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, 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; so that the judges could not meet there in craftino 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 lift *. And this cafe, thus circumstanced, is the only precedent 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 ftatuto in contrarium: but the doctrine of non obstante'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. So that sheriffs cannot now be legally appointed, otherwise than according to the known and established law.

b 2 Inst 559. Jenkins. 229.

* Dyer 225.

stanced,

SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been faid' that a sheriff may be appointed durante bene placito, or during the king's pleasure; and so is the form of the royal writTM. 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 fuccessor to fend a new writ to the old sheriff: but now by statute 1 Ann. ft. 1. c. 8. all officers appointed by the preceding king may hold their offices for fix months after the king's demife, unless sooner displaced by the successor. We may farther observe, that by statute 1 Ric. II. c. II. no man, that has served the office of sheriff for one year, can be compelled to serve the fame again within three years after.

We shall find it is of the utmost 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 ministerial officer of the fuperior courts of justice, or as the king's bailiff.

In his judicial capacity he is to hear and determine all causes of forty fhillings value and under, in his county court, of which more in it's proper place: and he has also judicial power in divers

1 4 Rep. 32.

■ Dalt. 7.

Dalt. of sheriffs. 8.

Sf2

other

« PředchozíPokračovat »