Commentaries on the Laws of England Part 28

UPON the whole therefore I think it is clear, that, whatever may have become of the _nominal_, the _real_ power of the crown has not been too far weakened by any transactions in the last century. Much is indeed given up; but much is also acquired. The stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. When, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this advent.i.tious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But, till that shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with it's authority; to be loyal, yet free; obedient, and yet independent: and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign, who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free const.i.tution of Britain; hath already in more than one instance remarkably strengthened it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty.

CHAPTER THE NINTH.

OF SUBORDINATE MAGISTRATES.

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 enquire into the rights and duties of the princ.i.p.al subordinate magistrates.

[Footnote a: ch. 2. pag. 142.]

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 princ.i.p.al 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[b].

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 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 munic.i.p.al rights, depending entirely upon the domestic const.i.tution 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, princ.i.p.ally, sheriffs; coroners; justices of the peace; constables; surveyors 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.

[Footnote b: 1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk.

347.]

I. THE sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, s.h.i.+re reeve, the bailiff or officer of the s.h.i.+re. He is called in Latin _vice-comes_, as being the deputy of the earl or _comes_; to whom the custody of the s.h.i.+re 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[c]; reserving 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 _custodiam comitatus_ to the sheriff, and him alone.

[Footnote c: Dalton of sheriffs, c. 1.]

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 s.h.i.+re, 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 London has also the inheritance of the shrievalty of Middles.e.x vested in their body by charter[d]. The reason of these popular elections is a.s.signed 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 const.i.tution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates[e]. This election was in all probability not absolutely vested in the commons, but required the royal approbation.

For in the Gothic const.i.tution, 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_[f]. 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 a.s.signed 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, treasurer, _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 since the time of Fortescue[g], 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_ persons, seems borrowed from the Gothic const.i.tution 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, 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 expressly referred to in the record, which sir Edward c.o.ke 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 Lincolns.h.i.+re, 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 disobedience, as if he had been one of the _three_ persons chosen 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 man be intreated to occupy the office for this year; and that, the next year, to eschew 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, some of our writers[i] 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, without such previous a.s.sembly, appointing for the most part one of the two remaining in the last year's list[k]. And this case, thus circ.u.mstanced, 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 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 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.

[Footnote d: 3 Rep. 72.]

[Footnote e: Montesq. Sp. L. b. 2. c. 2.]

[Footnote f: Stiernhook _de jure Goth._ _l._ 1. _c._ 3.]

[Footnote g: _de L.L._ _c._ 24.]

[Footnote h: 2 Inst. 559.]

[Footnote i: Jenkins. 229.]

[Footnote k: Dyer 225.]

SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said[l] that a sheriff may be appointed _durante bene placito_, or during the king's pleasure; and so is the form of the royal writ[m]. 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[n]: 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 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.

[Footnote l: 4 Rep. 32.]

[Footnote m: Dalt. of sheriffs. 8.]

[Footnote n: Dalt. 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 s.h.i.+llings value and under, in his county court, of which more in it's proper place: and he has also judicial power in divers other civil cases[o]. He is likewise to decide the elections of knights of the s.h.i.+re, (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.

[Footnote o: Dalt. c. 4.]

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 n.o.bleman 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 _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[q]: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning[r], under pain of fine and imprisonment[s]. But though the sheriff is thus the princ.i.p.al conservator of the peace in his county, yet, by the express directions of the great charter[t], 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 condemn a 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[u]: for this would be equally inconsistent; he being in many respects the servant of the justices.

[Footnote p: 1 Roll. Rep. 237.]

[Footnote q: Dalt. c. 95.]

[Footnote r: Lamb. Eiren. 315.]

[Footnote s: Stat. 2 Hen. V. c. 8.]

[Footnote t: _cap._ 17.]

[Footnote u: Stat. 1 Mar. st. 2. c. 8.]

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 returns 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[x].

[Footnote w: Fortesc. _de L.L._ c. 24.]

[Footnote x: Dalt. c. 9.]

TO execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 500_l._[y]

[Footnote y: Stat. 3 Geo. I. c. 15.]

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[z]; and if he does, by statute 23 Hen. VI. c. 8.

he forfeits 200_l._ a very large penalty in those early days. And no under-sheriff or sheriff's officer shall practice 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 under-sheriffs: by reason of which, says Dalton[b], the under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may be well feared that many of them do deceive, both the king, the high-sheriff, and the county.

[Footnote z: Stat. 42 Edw. III. c. 9.]

[Footnote a: Stat. 1 Hen. V. c. 4.]

[Footnote b: of sheriffs, c. 115.]

BAILIFFS, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. Bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein; to summon juries; to attend the judges and justices at the a.s.sises, and quarter sessions; and also to execute writs and process in the several hundreds. But, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons employed by the sheriffs on account only of their adroitness and dexterity in hunting and seising their prey. The sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation.

GAOLERS are also the servants of the sheriff, and he must be responsible for their conduct. Their business is to keep safely all such persons as are committed to them by lawful warrant: and, if they suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured[c].

And to this end the sheriff must[d] have lands sufficient within the county to answer the king and his people. The abuses of goalers and sheriff's officers toward the unfortunate persons in their custody are well restrained and guarded against by statute 32 Geo. II. c. 28.