Book I. iffued out to the respective offices of payment. This revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which alfo, when well conûdered, will appear to be a trust of great delicacy and high importance. 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 tranfactions in the last century. Much is indeed given up; but much is alfo acquired. The ftern commands of prerogative have yielded to the milder voice of influence: the flavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the difufe of parliaments has fucceeded a parliamentary truft of an immenfe perpetual revenue. When, indeed, by the free operation of the finking fund, our national debts fhall be leffened; when the posture of foreign affairs, and the univerfal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in confequence of all) our taxes fhall be gradually reduced; this adventitious power of the crown will flowly and imperceptibly diminish, as it flowly and imperceptibly rofe. But, till that shall hap pen, it will be our efpecial duty, as good fubjects and good Englishmen, to reverence the crown, and yet guard against corrupt and fervile 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 fovereign, who, in all thofe public acts that have perfonally proceeded from himself, hath manifefted the highest veneration for the free conftitution of Britain; hath already in more than one inftance remarkably ftrengthened it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remoteft degree detrimental to public liberty. CHAPTER THE NINTH. OF SUBORDINATE MAGISTRATES. IN Na former chapter of these commentaries we diftinguished magistrates into two kinds; fupreme, or those in whom the fovereign power of the state refides; and fubordinate, or those who act in an inferior secondary sphere. We have hitherto confidered the former kind only; namely, the fupreme legislative power or parliament, and the fupreme executive power, which is the king: and are now to proceed to inquire into the rights and duties of the principal fubordinate magiftrates. AND herein we are not to investigate the powers and duties of his majesty's great officers of ftate, 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 ftate 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 fhall I enter into any minute difquifitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because 143. 5 Mod. 84. Salk. 347. Carth. a ch. 2. page 146. BOOK I. thefe are mere private and ftrictly municipal rights, depending entirely upon the domeftic conftitution of their refpective franchises. But the magiftrates 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 jurisdiction and authority difperfedly throughout the kingdom: which are, principally, fheriffs; coroners; juftices of the peace; conftables; furveyors of highways; and overfeers of the poor. In treating of all which I fhall inquire into, firft, their antiquity and original; next, the manner in which they are appointed and may be removed; and laftly, their rights and duties. And first of fheriffs, I. THE fheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, reine genera, the reeve, bailiff, or officer of the fhire. He is called in Latin vice-comes, as being the deputy of the carl or comes; to whom the custody of the fhire is faid to have been committed at the first divifion of this kingdom into counties. But the earls in procefs 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 fheriff. So that now the theriff does all the king's bufinefs in the county; and though he be still called vice-comes, yet he is entirely independent of, and not fubject 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 feveral counties. In confirmation of which it was ordained by ftatute 28 Edw. I. c. 8. that the people fhould have election of theriffs in every fhire, where the fhrievalty is not of inheritance. For antiently in fome counties the fheriffs were hereditary; as I apprehend they were in Scotland till the ftatute 20 Geo. II. c. 43; and still continue in the county of c Dalton of fheriffs, c. I. Weftmor 340 Westmorland to this day (1): the city of London having alfo the inheritance of the fhrievalty of Middlesex vefted in their body by charter (2). The reafon of thefe popular elections is affigned in the fame ftatute, c. 13. "that the commons "might chufe fuch as would not be a burthen to them." And herein appears plainly a ftrong trace of the democratical part of our conftitution; in which form of government it is an indifpenfible requifite, that the people fhould chufe 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 the county courts (which office is executed by our fheriff) 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 perfons, ex quibus rex unum confirmabat'. But with us in England thefe popular elections, growing tumultucus, were put an end to by the ftatute 9 Edw. II. ft. 2, which enacted, that the sheriffs fhould from thenceforth be affigned by the chancellor, treasurer, and the judges; as f Stiernh. de jure Getb. l. 1. c. 3. d 3 Rep. 72. (1) The earl of Thanet is hereditary fheriff of Weftmorland. This office may defcend to, and be executed by, a female; for "Ann counters of Pembroke had the office of hereditary sheriff "of Westmorland, and exercifed it in perfon. At the affizes at Appleby fhe fat with the judges on the bench." Harg. Co. Litt. 326. (2) The election of the fheriffs of London and Middlefex was granted to the citizens of London for ever in very ancient times, upon condition of their paying 300l. a year to the king's exchequer. In confequence of this grant, they have always elected two fheriffs, though thefe conftitute together but one officer; and if one die, the other cannot act till another is elected. (4 Pac. Abr. 447.) In the year 1748, the corporation of London made a byelaw, impofing a fine of 600l. upon every perfon, who being elected, fhould refufe to ferve the office of fheriff. See the cafe of Evans, efq. and the chamberlain of London, 2 Burn. E. L. 185. being perfons in whom the fame truft might with confidence be repofed. By ftatutes 14 Edw. III. c. 7. 23 Hen. VI. c. 8. and 21 Hen. VIII. c. 20. (3) 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 fheriffs, ufed commonly to bear date the fixth day of November. The ftatute of Cambridge, 12 Ric. II. c. 2. ordains, that the chancellor, treasurer, keeper of the privy feal, fteward of the king's houfe, the king's chamberlain, clerk of the rolls, the juftices of the one bench and the other, barons of the exchequer, and all other that hall be called to ordain, name, or make juftices of the peace, fheriffs, and other officers of the king, fhall be fworn to act indifferently, and to appoint no man that fueth either privily or openly to be put in office, but fuch only as they shall judge to be the best and most fufficient. And the custom now is (and [341] has been at leaft ever fince the time of Fortefcue, who was chief juftice and chancellor to Henry the fixth) that all the judges, together with the other great officers and privy counfellors, 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,) ând then and there the judges propose three perfons, to be reported (if approved of) to the king, who afterwards appoints one of them to be sheriff (4). (3) This laft ftatute, as is obferved by Mr. Wooddefon, 1 vol. 89. feems quite to a different purpose. (4) The following is the prefent mode of nominating sheriffs in the exchequer on the morrow of St. Martin : The chancellor, chancellor of the exchequer, the judges, and feveral of the privy council assemble, and an officer of the court adminifters an oath to them in old French, that they will nominate no one from favour, partiality, or any improper motive: this done, the fame officer having the lift of the counties in alphabetical order, and of those who were nominated the year preceding, reads |