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nobleman 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 country 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) and this summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning, (; under pain of [344] fine and imprisonment. (s) But though the sheriff is thus the principal 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.

In his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. 12 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 seize to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seize 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 the bailiwick, if commanded by process from the exchequer. (x)

q Dalt. c. 95.

p 1 Roll. Rep. 237.
s Stat. 2 Hen. V. c 3,
w Fortesc. de LL. c. 24.
x Dalt. c. 9.

t cap. 17.

r Lamb. Eiren. 315. u Stat. 1 Mar. st. 2. c. 8.

(11) If resisted in execution of his office, he may imprison the party until he be carried before a magistrate. I Saund. 81. So if at a county court held for the election of knights of the shire, a freeholder interrupt the proceedings by making a disturbance, the sheriff may order him to be taken into custody and taken before a justice of the peace. 1 Taunt. 146. Chitty.

(12) By the common law sheriffs are to some purposes considered as officers of the courts, as the constable is to the justices of the peace. Salk. 175. 2 Lord Ray. 1195. Fortes. 129. Tidd. 8 ed. 52. As writs and process are directed to the sheriff, neither he nor his officers are to dispute the authority of the court out of which they issue, but he and his officers are at their peril truly to execute the same, and that according to the command of the said writs, and hereunto they are sworn, Dalt. 104.; and he must do the duty of his office and shew no favour, nor be guilty of oppression. Dalt. 109. But the sheriff ought to be favoured before any private person. 4 Co. 33. Chitty.

(13) The statutes relating to the sheriff's accounts are the 27 Edw. I. s. 1. c. 2. 4 Hen. V. c. 2. 2 & 3 Ed. VI. c. 4. 13 & 14 Car. II. c. 21. 3 Geo. I. c. 15, and see Com. Dig. tit. Viscount, G.

To execute these various offices, the sheriff has under him many [345] inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of 5001. (y) The under-sheriff1 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 200l., 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. 15 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 well be feared that many of them do deceive, both the king, the high-sheriff, and the county.

16

Bailiffs, or sheriff's officers, are either bailiffs of hundreds, or special

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

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

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

b of sheriffs, c. 115.

(14) As to under- sheriffs in general, see Bac. Ab. Sheriff, H. Com. Dig. Viscount, B. The sheriff is not bound to make an under-sheriff, Hob. 13. sed vid. 1 & 2 P. & M. c. 12. and the sheriff may remove him when he pleases, and this though he makes him irremovable, id. The under-sheriff is appointed by deed, which is afterwards filed in the king's remembrancer's office in the exchequer. Hob. 12. By the 27 Eliz. c. 12. the under-sheriff, except of counties in Wales and county palatine of Chester, must take an oath which is now prescribed by the 3 Geo. 1. c. 15. He must also take the oaths of allegiance, &c. in the same manner as the high-sheriff, and within the same time; see supra note; and he must not intermeddle with the office before such oath is taken on pain of forfeiting 401. 27 Eliz c. 12.

For security to the sheriff, the under-sheriff usually gives a bond of indemnity to save the sheriff harmless to make account in the exchequer, and procure the high sheriff's discharge, to return juries with the privity of the sheriff, to execute no process of weight without the sheriff's privity, to account to the sheriff and attend him, to be ready to attend the sheriff; for his good behaviour in his office, to take or use no extortion, to give attendance at the king's court. See Dalt. c. 2. p. 20. To indemnify him from escapes. Hob. 14. But a bond or covenant that the under-sheriff shall not execute process, &c without the sheriff's consent, is void; for when the sheriff apppoints his under-sheriff, he ex consequenti gives him authority to exercise all the ordinary office of the sheriff himself. Hob. 13.

The under sheriff may do all that the sheriff himself can do, except that which the sheriff himself ought to do in person, as to execute a writ of waste, redisseisin, partition, dower, &c. 6 Co. 12. Hob. 13. Dalt. 34. Jenk. 181. ; for in all cases where the writ commands the sheriff to go in person, there the writ is his commission, from which he cannot deviate. Dalt. 34. The under-sheriff hath not, nor ought to have, any interest in the office itself, neither may he do any thing in his own name, Salk. 96., but only in the name of the highsheriff, who is answerable for him, because the writs are directed to the high-sheriff. If the sheriff dies before his office is expired, his under-sheriff or deputy shall continue in office, and execute the same in the deceased sheriff's name until a new sheriff be sworn, and he shall be answerable, and the security given by the under-sheriff to the deceased sheriff is to continue during the interval. 3 Geo. I. c. 15. s. 8.

By 3 Geo. I. c. 15, none shall sell, buy, let, or take to farm the office of under-sheriff, &c. or other office belonging to the office of high-sheriff, nor contract for the same for money or other consideration directly or indirectly, &c. on pain of 500l a moiety to the king and a moiety to him who shall sue, provided the suit be in two years, provided that nothing in that act shall prevent the sheriff, under-sheriff, &c from taking the just fees and perquisites of his office, or for accounting for them to the sheriff, or giving security to do so, or from giving, taking, or secur ing a salary or recompense to the under-sheriff, or from the under-sheriff in case of sheriff's death from constituting a deputy. Dalt. 3. 514. Hob 13. 2 Brownl. 281.

If an action is brought for a breach of duty in the office of sheriff, it should be against the high-sheriff, as for an act done by him, and not against the under-sheriff'; and if it proceeds from a fault of the under-sheriff or bailiff, that is matter to be settled between them and the highsheriff. Cowp. Rep. 405. In Ireland however, this is otherwise, except the wrong complained of was the immediate act or default of the high-sheriff. 57 Geo. III. c. 68. s. 9. Chitty. (15) If the attorney for the defendant was under-sheriff, that would be ground of challenge the array, but not for a motion for a new trial. 1 Smith's Rep. 304.

16) The sheriff's bailiffs are to take the oaths appointed by stat. 27. Eliz. c. 12.; they are to

bailiffs. 17 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 assizes 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 seizing their prey. The sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in an [346] obligation with sureties 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. 13 Their business is to keep safely all such persons as

be sworn to the supremacy and for the exercise of their office, under 40%; and if they commit any act contrary to their oath, they shall lose treble damages. See Impey Off. of Sh. 43.

By 1 & 5. c. 4. R. M. 1654. K. B. no sheriff's bailiff shall be attorney in the king's courts during the time he is in office.

No sheriff's officer, bailiff, or other person, can be bail in any action. R. M. 14 Geo. II. 2 Strange, 890. 2 Bla. Rep. 799. Loft. 155 See Tidd 8 ed. 79. nor take any warrant of attorney. R. E. 15 Car. II.

Of the duties of bailiffs, see Impey Off. of Sheriff, 43. Hawk. P. C. Index, tit. Bailiff. By 23 Hen. VI. c. 10. judges of assize shall inquire into the conduct of bailiffs, and punish them for any misdeed in office. They are liable to be proceeded against summarily for extortion under 32 Geo. II. c. 28. s 11. 2 Bos. & Pul. 88. Chitty.

(17) If sheriff appoint a special bailiff to arrest defendant at request of plaintiff he cannot be ruled to return the writ. 4 T. R. 119. 1 Chitty's Rep. 613. but he is notwithstanding responsible for the safe custody of defendant after arrested. 8 Term Rep. 505. Chitty. (18) The gaol itself is the king's pro bono publico. 2 Inst 589.; but by 14 Edw. III. c. 10. the sheriffs are to have the custody of gaols, &c.; and see 13 R. II. c. 15. except gaols whereof any persons or body corporate have the keeping of estate of inheritance, or by succession, 19 Hen. VII. c. 10. Therefore the sheriffs shall put in such keepers for whom they will answer. But by 3 Geo. I. c. 15. s. 10. the office of gaoler cannot be bought or farmed, under 5002. penalty. By 4 Geo. IV. c. 64. s. 10 the gaoler must not be an under-sheriff or bailiff, nor shall be concerned in any occupation or trade soever.

When a sheriff quits his office, the custody of the county gaol can only belong to his successor. 1 Lord Ray. 136.

As the gaoler is but the sheriff's servant, he may be discharged at the sheriff's pleasure; and is he refuse to surrender or quit possession of the gaol, the sheriff may turn him out by force, as he may any private person. Also, they are each of them so far under the regulation of the court of king's bench, that they will compel the sheriffs to assign prisoners, &c. and gaolers to surrender up gaols, &c. and for any abuse of office the gaoler forfeits it. See Co. Lit. 233. 9. Co. 5. 3 Mod. 143.

The gaoler must reside within the prison; he must not, nor must any person in trust for him or employed by him, sell, or have any benefit or advantage from the sale of, any article to any prisoner, nor supply the prison. 4 Geo IV c 64 s. 10. As far as practicable he must see every, and at least inspect every, cell once in every 24 hours; and in visiting females he must be, attended by matron or other female officer, id. He must keep a journal recording as to punishments, &c. and other occurrences of importance, &c. to be laid before justices at sessions, to be signed by chairman, id.

The keeper must not put prisoners in irons, unless in case of necessity, id.; and see as to this 1 Hale, 601. 2 Hawk. c. 22. s. 32. 2 Inst. 381.

By the 4 Geo. IV. c. 64. s. 40. a penalty is imposed on a gaoler permitting the sale of spirituous liquors.

In some cases gross cruelty on the part of the gaoler causing death, would amount even to murder. See Fost. 322. 17. How. St. Tri. 398. 2 Stra. 856. 1 East, P. Č. 331. Fost. 321. Hale, 432. 2 Hale, 57. 1 Russel on Crimes, 667.

By 4 Geo IV. c. 64. sect. 41. a power is given to the keeper to examine into, and punish, certain offences therein specified; and by sec. 14. gaolers shall attend quarter sessions, to report actual state of prisons; s. 19. returns are to be made at the several assizes, by keepers of prisons, of the persons sentenced to hard labour. By s. 20. lists of prisoners tried for felony, are to be transmitted to the secretary of state, by the keeper, under penalty of 201. By s. 21. the keeper shall deliver to court of quarter sessions, a certificate as to how far the rules have been

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 gaolers and sheriff's officers, toward the unfortunate persons in their custody, are well restrained and guarded against by statute 32 Geo. II. c. 28.; and by statute 14 Geo. III. c. 59. provisions are made for better preserving the health of prisoners, and preventing the gaol distemper. 19

The vast expense, which custom had introduced in serving the office of high sheriff, was grown such a burthen to the subject, that it was enacted, by statute 13 & 14 Car. II. c. 21., that no sheriff (except of London,

c Dalt. c. 118. 4 Rep. 34.

d Stat, 9 Edw. II. st. 2. 2 Edw. III. c. 4. 4 Edw. III. c. 9. 5 Edw. III. c. 4. 18 & 14 Car. II.

c. 21. § 7.

observed, under penalty of 201. and see id. s. 22. By s. 34. books are to be kept, in which the visits, &c. of the chaplain, &c. shall be entered, and keeper must take care of it.

In criminal cases, if a gaoler assist a felon in making an actual escape, it is felony at common law, 2 Leach, 671.; and in some cases, it is an escape to suffer a prisoner to have greater liberty than can be by law allowed him, as to admit him to bail at law, or suffer him to go beyond the limits of the prison. Hawk B. 2. c. 19. s. 5.

A voluntary escape amounts to the same kind of crime, and is punishable in the same way as the original offender, whether he be attainted, indicted, or only in custody on suspicion. 1 Hale, 234. 2 Hawk. c. 19. s. 22. And a person who wrongfully takes on himself the office of gaoler, is as much liable as if he were duly appointed. 1 Hale, 594.

But no one can be punishable in this degree for the default of a deputy. 1 Salk. 272. note. Nor can any gaoler be a felon, in respect of a voluntary escape, unless at the time the offence of his prisoner was felony, and cannot be made so by its becoming so afterwards. 1 Hale, 591. Neither can he be thus indicted till after the attainder of the principal. Hawk. b. 2. c. 19. s. 26. though he may be fined for the misprision, id.

A negligent escape may be punished by fine at common law. 2 Hawk. c. 19. s. 31. and a sheriff is thus liable for the default of his duty, id. One instance of such negligence does not amount to a forfeiture of the gaoler's office, though a repetition of such misfeasance will enable the court to oust him in their discretion. Hawk. b. 2. c. 19. s. 30. See 5 Edw. III. c. 8. as to punishment for marshal's negligent escape. When a gaol is broken by thieves the gaoler is answerable, not so if broken by king's enemies. 3 Inst. 52. The king may pardon a voluntary escape before it is cominitted. 2 Hawk. c. 19. s. 32. and see further as to prison breach and rescue, post 4 vol. 130, 131.

In civil cases, if the sheriff's gaoler suffer a prisoner to escape, the action must be brought against the sheriff, not against the goaler; for an escape out of the gaoler's custody is, by intendment of law, out of the sheriff's custody. 2 Lev. 159. 2 Jones, b. 2. 2 Mod. 124, 5. Mod. 414. 416. But an action lies against a gaoler for a voluntary escape, as well as against the sheriff, it being in the nature of a rescue. 2 Salk. 441. 3 Salk. 18. and see further as to the action for escape, post 3 vol. 165.

With respect to the gaoler's fees, by 55 Geo. III. c. 50. s. 2. the quarter sessions are to make allowance to gaolers, &c. and by s. 3. the allowances are to be paid out of the county rates. The sec. 11. points out how allowances are to be raised for places which do not contribute to county rates, and by s. 12. allowances in particular places are to be paid The 54 Geo. III. c. 97. directs how allowances to the gaoler of Dover castle prison, &c. are to be paid. The 55 Geo. III. c. 50. s. 13. inflicts a punishment on gaolers exacting any fee or gratuity from prisoners. And by s. 1. of same act, all fees or gratuities paid at gaols and bridewells are abolished, with excep tion of the King's Bench prison, Fleet, Marshalsea, and palace courts, id. s. 14. Chitty. (19) This is the only qualification required from a sheriff. That it was the intention of our ancestors that the lands of a sheriff should be considerable, abundantly appears from their hav ing this provision so frequently repeated, and at the same time that they obtained a confirmation of magna charta and their most valuable liberties. As the sheriff, both in criminal and civil cases, may have the custody of men of the greatest property in the country, his own estate ought certainly to be large, that he may be above all temptation to permit them to escape, or to join them in their flight. In ancient times this office was frequently executed by the nobility and persons of the highest rank in the kingdom. Eligebantur olim ad hoc officium potentissimi sæpenumero totius regini proceres, barones, comites, duces, interdum et regum filii Spell. Gloss. Vicecom Bishops also were not unfrequently sheriffs. Richard duke of Gloucester (afterwards Richard the Third) was sheriff of Cumberland five years together. (Burn. Hist. Cum 570) It does not appear that there is any express law to exclude the nobility from the execution of this office, though it has been long appropriated to commoners,

Christion.

Westmorland, and towns which are counties of themselves), should keep any table at the assizes, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery: yet, for the sake of safety and decency, he may not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these cases,

of 2001.

II. The coroner is also a very ancient office at the common law. He is called coroner, coronator, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned. (e) 20 And in this light the lord chief justice of the king's bench is the principal coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm. (f) But there are also particular coroners for every county of England; usually four, but sometimes six, and sometimes fewer. (g) This officer (h) is of [347] equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earls gave up the wardship of the county. He is still chosen by all the freeholders in the county court; as by the policy of our ancient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people; (i) and as verderors of the forest still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. For this purpose there is a writ at common law de coronatore eligendo :(k) in which it is expressly commanded the sheriff, "quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi "intendere." And, in order to effect this the more surely, it was enacted by the statute (1) of West. 1. that none but lawful and discreet knights should be chosen: and there was an instance in the 5 Edw. III. of a man being removed from this office because he was only a merchant. (m) a But it seems it is now sufficient if a man hath lands enough to be made a knight, whether he be really knighted or not: (n) for the coroner ought to have an estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehaviour; (o) and if he hath not enough to answer, his fine shall be levied on the county, as the punishment for electing an insufficient officer. (p) Now, indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands: so that, although formerly no coroners would condescend to be paid for serving their country, and they were by the aforesaid statute of Westm. 1. [348] expressly forbidden to take a reward, under pain of a great forfeiture to the king; yet for many years past they have only desired to be chosen for the sake of their perquisites; being allowed fees for their attendance by the statute 3 Hen. VII. c. 1. which sir Edward Coke complains of heavily; (g) though since his time these fees have been much enlarged. (r) 23

e 2 Inst. 31. 4 Inst. 271.

i 2 Inst. 558.

13 Edw. I. c. 10.

p Mirr. c. 1. § 3. 2 Inst. 175.

14 Rep. 57. m 2 Inst. 32,

g F. N. B. 163,
b Mirror. c. 1.5
k F. N. B. 163.
n F. N. B. 163. 164.
o Ibid.
q 2 Inst. 210.
r Stat. 25 Geo. II. c. 29.

(20) See in general Bac. Ab. Coroner, Com. dig. Officer, G. Imp, Off. Cor. Burn J. Coroner, 1 Chitty's Crim. L. 163. 2 Hale, P. C. Index, Coroner.

(21) In former times, none could have the office, if under the degree of a knight. 3 Edw. I. c. 10- 4 Inst. 271.

(22) Which by the statutum de militibus, 1 Edw. II. were lands to the amount of 201. per au

(23) By 3 Hen. VII. c. 1. and 25 Geo. II. c. 29. s. 3, 4. thirteen shillings and six-pence is a VOL. I. 33

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