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 object 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. (6) 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 re

gard to the rights and dignities of mayors and aldermen, or other [339] magistrates of particular corporations: because these are mere pri

vate and strictly municipal rights, depending entirely upon the domestic 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 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.

I. The sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, rcipe gepepa, 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 employment 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.

Sheriffs were formerly chosen by the inhabitants of the several counties.2 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, when the shrie

b 1 Leon. 70. 2 Leon. 175. Comb. 143. 5 Mod. 84. Salk. 347. Carth. 291.
c Dalton of sheriff's, c. 1.

(1) As to sheriffs in general, see Bac. Ab. Sheriff, Com. Dig. Viscount, Impey's Off. Sher. (2) The 13 & 14 Car. II. c. 21. s. 7. enacts, that no person shall be assigned to be sheriff of any county unless he have lands within the same sufficient to answer the king and his people; and no steward or bailiff to a great lord shall be made sheriff. 9 Edw. II. st. 2. 2 Edw. II. s. 2. 4 Edw. III. c. 9. 5 Edw. III. c. 4. No person is exempt from the office of sheriff, unless by act of parliament or letters patent, Sav. 43. 9. Co. 46. b. 1. Lord Raym. 29. 2 Mod. 299.; but militia officers are exempt by 42 Geo. III. c. 90. s. 172.; so are protestant dissenters, Harrison v. Evans, 2 Burn Eccl. Law, Dissenter. Bro. P. C. 181.; barristers and attornies, 4 Burr. 2109, ; and prisoners for debt, 2 Mod. 299.; persons disabled by judgment in law, as outlawry, &c. 1 Salk. 168. 4 Mod. 273. 2 Mod. 299. are not to be appointed. But a person cannot avail himself of his own misconduct, as an excuse for not serving; and therefore an information may be supported against an excommunicated person for refusing to act. 2 Mod. 299. Persons having serv ed the office are exempt for three years, if there be other sufficient persons in the county. Î Rich.

II. c. 11.

But the payment of the fine fixed by 9 Geo. I. c. 9. s. 3. to be discharged from serving the office of sheriff of Norwich, does not exempt the person paying it for more than one year, unless The corporation agree that he shall be discharged for a longer time. 2 T. R. 731. Chitty.

valty 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 the country of Westmorland

4

to this day the city of London having also the inheritance of [340] the shrievalty of Middlesex vested in their body by charter. (d) 5 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 indispensable requisite, that the people should choose 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 constitution, the judges of the country 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. (ƒ) 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, treasurer, 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. 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.(g) 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 indifferently, and to appoint no man that sueth either privily or openly to be put in office, but such only as they shall

d 3 Rep. 72.

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

g Stat. 12 Edw. IV. c. 1.

f Stiernb. de jure Goth. l. 1. c. 3.

(3) The Scotch sheriff differs very considerably from the English sheriff. The Scotch sheriff is properly a judge, and by statute 20 Geo. II. c. 43. he must be a lawyer of three years standing, and is declared incapable of acting in any cause for the county of which he is sheriff. He is called sheriff depute; he must reside within the county four months in the year; he holds his office at vitam aut culpam. He may appoint substitutes, who, as well as himself, receive stated salaries. The king may appoint a high sheriff for the term of one year only. The civil jurisdiction of the sheriff-depute extends to all personal actions on contract, bond, or obligation, to the greatest extent; and generally in all civil matters, not especially committed to other courts. His criminal jurisdiction extends to the trial of murder, though the regular circuits of the court of justiciary prevent such trials occurring before him. He takes cognizance of theft, and other felonies, and all offences against the police. His ministerial duties are similar to those of sheriffs in England. Chitty.

(4) 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 she riff of Westmorland, and exercised it in person. At the assizes at Appleby she sat with the judges on the bench." Co. Lit $26.

(5) King John granted the sheriffwick of London and Middlesex to the mayor and citizens of London, at the farm rent of 3001. per annum, and by virtue of which they annually appoint two sheriffs for London and Middlesex. Bac. Ab. Sheriff, K. If one of these sheriffs dies, the other cannot act till another is made; and there must be two sheriffs o London, which is a city and County: though they make but one sheriff of the county of Middlesex, they are several as to plaints in their respective courts. 3 Co. 72. b. In 1748, the corporation of London made a byelaw, imposing a fine of 6007. upon every person who being elected, should refuse to serve the office of sheriff, to which a dissenter is not subject. See Harrison v. Evans. 2 Burn E. L. Dis senter, A. Bro, P. C. 181. Bac. Ab. Sheriff, B.

VOL. I.

32

CASE

judge to be the best and most sufficient. And the custom now is [341] (and has been at least ever since the time of Fortescue, (h) 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. 7

8

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 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 (i) 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 Priscot, 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 per"son 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 en

(6) 24 Geo. II. c. 48. s. 12.

(7) The following is the mode of nominating sheriffs in the exchequer on the morrow of St. Martin. 24 Geo. II. c. 48. s. 12. (which may be put off till another day. Cro. Car. 13. 595.) 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 no minate no one from favour, 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 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 encumbered, 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 terins. See Bac. Ab. Sheriff, C. The king by his prerogative may make and appoint the sheriffs, without the usual ceremony, as is the daily practice apon the death of the sheriff. Dyer, 225. Bac. Ab. Sheriff, C. Chitty

"treated to occupy the office for this year; and that, the next year, to "eschew such incoveniences, the order of the statute in this behalf "made be observed." But notwithstanding this unanimous re- [342] solution of all the judges of England, thus entered in the councilbook, 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 (j) 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 assembly, appointing for the most part one of the two remaining on the last year's list. (k) 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 Westminster-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, "

j Jenkins, 229.

k Dyer, 225. Bac. Ab. Sheriff, C.

8

(8) The sheriff, after nomination to his office, and before delivery to him of his patent, must enter into a recognizance in the exchequer, under pain of 100l., for payment of his proffers and all other profits of the sheriffwick, to make account and appoint a sufficient under-sheriff for execution of process. See Com. Dig. tit. Viscount, A. (2.) Dalt. Sh. 7. 2 & 3 Edw. VI. c. 34. How to do this, see Impey's Off. of Sheriff, 11. Dalt Sheriff, 291. See form of recognizance, Inpey, 18. So he must find surety for performing his office, if the king please. Mad. 642

After such recognizance given, he must procure out of chancery the patent of office, the patent of assistance, and the writ for discharge of the old sheriff. Crompt. Off. of Sher. 202, 203. Vide County (B. 1, &c.) See form of patent, Impey, 18. form of patent of assistance, 19. See also form of writ of discharge, Impey, 19. Also, before the sheriff acts in his office, he must by 3 Geo. I. c. 15, take an oath that he will truly serve the king in the office of sheriff, &c.; truly keep the king's rights, and all that belongeth to the crown, &c. ; not respite the king's debts for gift or favour; where it may be done without great grievance, rightfully treat the people in his bailiwick, &c.; truly acquit at the exchequer all those of whom he shall receive any thing of the king's debts; nothing take whereby the king may lose, or his right be letted, &c.; truly return and serve the king's writs, &c. ; take no bailiffs but such as he will answer for, &c.; return reasonable issues, &c.; make due pannels, &c.; hath not nor will not let to farm, &c. his sheriffwick, or any office belonging to it truly execute the laws, and in all things behave himself for the honour of the king, and good of his subjects, and discharge his office to the best of his skill and power. Crompt. Off Sh. 202. Vide for his oath the st. 3 Geo. I. c. 15. s. 18. Mad. 640. and Burn J. 24 ed. by Chetwynd, tit. Sheriff. The breach of this oath, though a high offence, is not perjury. 11 Co. 98. but see Dy. 61. a.

The sheriff (except of Wales, London, Middlesex, counties palatine, or of any city or town being a county within itself), within six months after his election, must take and subscribe the oaths of allegiance, supremacy, and adjuration, in one of the courts at Westminster, or the general or quarter session where he resides, between nine and twelve in forenoon. 1 Geo. stat. 2. c. 13. s. 2. 2 Geo. II. c. 31. s. 3, 4. 9 Geo. II. c. 26. s. 3 and must, within six months after admittance and receiving his authority (16 Geo II. c. 30. s. 3.) receive the sacrament, and subscribe the declaration against transubstantiation. 25 Car. I. c. 2. s. 2, 3. 9.

The new sheriff being appointed and sworn, he ought at or before the next county court to deliver a writ of discharge to the old sheriff, who is set over all the prisoners in the gaol severally by their names (together with all the writs) precisely, by view and indenture between the two sheriffs, wherein must be comprehended all the actions which the old sheriff hath against every prisoner, though the executions are of record. And till the delivery of the prisoners to the new sheriff, they remain in the custody of the old sheriff, notwithstanding the letters patent of appointment, the writ of discharge, and the writ of delivery; neither is the new sheriff obliged to receive

Sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year and yet it hath been said (1) 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 ap

pointed by the preceding king may hold their offices for six months [343] after the king's demise, unless sooner displaced by the successor. We may farther observe, that by statute Ric. III. 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.

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. (o) 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 qualifications of voters, and to return such as he shall determine to be duly elected. 10

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

14 Rep. 32.

m Dalt. of Sheriffs, 8.

n Dalt. 7.

o Ibid. c. 4.

the prisoners but at the gaol only. But the office of the old sheriff ceases when the writ of discharge cometh to him. Wood's Inst. b. 1. c. 7.

By stat. 20 Geo. II. c. 37. the old sheriff must turn over to his successor, by indenture and schedule, all such writs and process as remain unexecuted, and the new sheriff must execute and return the same.

When a sheriff quits his office, the custody of the county goal can only belong to his successor. The county gaol is the prison for malefactors, and the sheriff ought to keep them there; but prisoners for debt, &c., where action lies against the sheriff for their escape, may be kept in what place the sheriff pleases. 1 Ld. Raym, 136.

The new sheriff, at the first county court after his election and the discharge of the old sheriff, must read or cause to be read his patent and writ of assistance, and also nominate his undersheriff, or county clerk, and depute, appoint, and proclaim four deputies at the least in that county, to make replevins, for the ease of the county (the deputies not to be twelve miles distant one from another, in every quarter of the county, one to grant replevius in the sheriff's name, and to make deliverance of distresses), and the sheriff, for every month he shall lack such deputies, shall forfeit 51.; and within two months next after he hath received his patent, he may appoint such deputies, &c. Dalt. 19.

Formerly, if a person refused to take upon him the office of sheriff, he was punished in the starchamber; but now, if he refuses to take the office, or the oaths, or officiates as sheriff before he has qualified himself, he may be proceeded against by information in the king's bench, Carth. 507. 3 Lev. 116. 2 Mod. 300 Dyer, 167.; and this though he was excommunicated, whereby he cannot take the test to qualify himself, R. 2 Mod. 300. or was not qualified by taking the sacrament within a year preceding. (Vide 4 Mod. 269. Salk. 167. 1 Ld. Raym. 29. 2 Vent. 243.) Chitty.

Where an indenture of assignment of prisoners from the old to the new sheriff, specified a suit by the title of J. S. & Company v. B., this was held as sufficiently certain without giving the names of the parties at length, and was a sufficient notice to the new sheriff-Tallmadge vs. Richmond. 9th John. Rep. 85.

(9) By 4 Hen. IV. c. 5. the sheriff must, in his proper person, abide within his bailiwick. By 23 Hen. 6. c. 9. s. 1. no sheriff' shall let to farin in any manner his county, nor any of his Dailiwicks, hundreds, or wapentakes (nor, as it seems, any of his courts), upon pain of forfeiture of 40%. 4 Hen. IV. c. 5. and for cases on this provision, see 3 Keb. 678. 20 Hen. VII. 13. Dalt. c. 20. &c. B. 39. Plowd. 27. Dalt. 23, 24. Impey Off. of Sheriffs, 17. Bac. Ab. Sheriff, G.

(10) In most, if not in all of the United States, the sheriff is merely an executive officer, having, individually, no judicial authority. He presides over a jury in assessing damages upon judgments by default in some states, but has no voice in the inquest.-See Statutes, title Sheriff.