it is an indispensable requisite, that the people should chuse 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 quibus rex unum confirmabat 1. 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. st. 1. c. 7. 23 Hen. VI. c. 7. and 21 Hen. VIII. c. 20. (1) 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 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 judge to be the best and most sufficient. And the custom now is, (and has been at least ever since the time of Fortescue", who was chief justice and chancellor to Henry the Sixth,) [ 341 ] 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 e Montesq. Sp. L. b. 2. c. 2. 8 Stat. 12 Edw. IV. c. 1. h De LL. c. 24. (1) This last statute does not apply. Mr. Christian's note. [342] 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. i 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 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 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 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 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 disobe"dience, as if he had been one of the three persons chosen according to the tenor of the statute; that they would advice "the king to have recourse to the three persons that were "chosen according to the statute: or that some other thrifty 66 66 man be intreated to occupy the office for this year; and "that the next year, to eshew 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, 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' have i 2 Inst. 559. ¡ Jenkins, 229. 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 Westminister: 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 in the last year's list. 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 Westminister-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 (2.) 1 SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year: and yet it hath been said that a sheriff may be appointed durante bene placito, or during the king's pleasure; and so is the form of the royal writ. 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" : but now by statute 1 Ann. st. 1. c. 8. all officers appointed by the pre- [ 343 ] * Dyer, 225. 14 Rep. 32. m Dalt. of Sheriffs, 8. n Dalt.7. (2) A compulsory appointment could scarcely be made after the resolution of the judges cited in the text from 2 Inst. 559. Where the appointment is legal, and there is no sufficient excuse for not accepting it, it is a misdemeanor to refuse to serve, and the court of K. B. would probably grant permission to proceed by criminal information against a person so refusing. See R. v. Woodrow, 2 T. R. 731. ceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor (3.) 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. (4) 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 it's proper place; and he has also a judicial power in divers other civil cases. 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 qualification of voters, and to return such as he shall determine to be duly elected. 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 nobleman therein, during his office". 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, o Dalt. c. 4. P 1 Roll. Rep. 237. (3) In the last reign an act passed (57 G.3. c. 45.) by which all persons holding any office under the crown, civil or military, during pleasure, on the day of the demise of his then present majesty, were empowered to hold the same without any new commission during the pleasure of his sucNo act of a similar nature has been passed, I believe, in the pre cessor. sent reign. (4)" If there be other sufficient persons within the county." q he may command all the people of his county to attend him ; which is called the posse comitatus, or power of the county ; 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 fine and imprisonment. But though the [844] 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" 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. 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 ". 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 W 9 Dalt. c.95. Lamb. Eiren. 315. s Stat. 2 Hen. V. c. 8. t сар. 17. " Stat. 1 Mar. st. 2. c. 8. w Fortesc. de LL. c. 24. |