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THIS Cuftom, of the twelve judges propofing three perfons, feems borrowed from the Gothic conftitution before-mentioned; with this difference, that among the Goths the twelve nominors were first elected by the people themselves. And this ufage of ours at it's firft introduction, I am apt to believe, was founded upon fome ftatute, though not now to be found among our printed laws: first, because it is materially different from the direction of all the ftatutes before mentioned: which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortefcue would have inferted in his book, unless by the authority of fome ftatute: and alfo, because a statute is exprefsly referred to in the record, which fir Edward Coke tells us he transcribed from the council book of 3 March, 34 Hen. VI. and which is in

j2 Inft. 559

over the three names, and the last of the three he pronounces to be the present sheriff; but where there has been a pocket-fheriff, he reads the three names upon the lift, and then declares who is the present sheriff. If any of the miniftry or judges has an objection to the names, he then mentions it, and another gentleman is nominated in his room; if no objection is made, fome one rifes and fays, "to the two gentlemen I know no objection, and I recom "mend A. B. Efq. in the room of the prefent sheriff."

Another officer has a paper with a number of names given him by the clerk of aflize for each county, which paper generally contains the names of the gentlemen upon the former lift, and also of gentlemen who are likely to be nominated, and whilft 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; fome, perhaps, at their own requeft; fuch as, that they are abroad, that their estates are fmall and incumbered, that they have no equipage, that they are practifing barristers, or officers in the militia, &c.

The new sheriff is generally appointed about the end of the following Hilary term; this extenfion of the time was, probably, in confequence of the 17 Edw. IV. c. 7. which enables the old sheriff to hold his office over Michaelmas and Hilary terms.

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fubftance as follows (5). The king had of his own authority appointed a man fheriff of Lincolnshire, which office he refufed to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, fir John Fortefcue and fir John Prifot, delivered the unanimous opinion of them all; "that the "king did an error when he made a person sheriff, that was "not chofen and prefented to him according to the ftatute "that the person refusing was liable to no fine for disobedi"ence, as if he had been one of the three perfons chofen ac"cording to the tenor of the ftatute; that they would advise "the king to have recourse to the three perfons that were "chofen according to the ftatute, or that fome other thrifty "man be intreated to occupy the office for this year; and "that, the next year, to eschew fuch inconveniences, the "order of the ftatute in this behalf made be obferved." But [342] notwithstanding this unanimous refolution of all the judges of England, thus entered in the council book, and the ftatute 34 & 35 Hen. VIII. c. 26. § 61. which exprefsly recog

(5) I am inclined to difagree with the learned Judge's conjecture, that the prefent practice originated from a ftatute which cannot now be found; because if fuch a ftatute ever existed, it must have been paffed between the date of this record, the 34 Hen. VI. and the ftatute 23 Hen. VI. c. 8. referred to by the learned Commentator in the preceding page; for that statute recites and ratifies the 14 Edw. III. c. 7. which provides only for the nomina tion of one perfon to fill the office when vacant; yet the former ftatute 9 Edw. II. ft. 2. leaves the number indefinite, viz. fheriffs fhall be affigned by the chancellor, &c. and if fuch a ftatute had paffed in the courfe of thofe eleven years, it is probable that it would have been referred to by fubfequent ftatutes. I fhould conceive that the practice originated from the confideration that, as the king was to confirm the nomination by his patent, it was more convenient and respectful to prefent three to him than only one; and though this proceeding did not exactly correfpond with the direc tions of the statute, yet it was not contrary to it's fpirit, or in ftrictnefs to it's letter; and therefore the judges might, perhaps, think themselves warranted in faying, that the three perfons were chofen according to the tenor of the ftatute.

nizes this to be the law of the land, fome of our writers! have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chofen by the judges or no. This is grounded on a very particular cafe in the fifth year of queen Elizabeth, when, by reafon of the plague, there was no Michaelmas term kept at Westminster; fo that the judges could not meet there in craftino animarum to nominate the fheriffs: whereupon the queen named them herself, without fuch previous affembly, appointing for the most part one of the two remaining in the last year's lift. And this cafe, thus circumstanced, is the only authority in our books for the making these extraordinary fheriffs. It is true, the reporter adds, that it was held that the queen by her prerogative might make a fheriff without the election of the judges, non obflante aliquo ftatuto in contrarium: but the doctrine of non obflante's, which fets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated Weftminster-hall when king James abdicated the kingdom. However, it must be acknowleged, that the practice of occafionally naming what are called pocket-fheriffs, by the fole authority of the crown, hath uniformly continued to the reign of his present majefty; in which, I believe, few (if any) compulsory instances have occurred (6).

SHERIFFS, by virtue of feveral old ftatutes, are to continue in their office no longer than one year: and yet it hath Jenkins. 229.

k Dyer. 225.

(6) When the king appoints a perfon fheriff, who is not one of the three nominated in the exchequer, he is called a pocket-sheriff. It is probable, that no compulsory inftance of the appointment of a pocket-fheriff ever occurred; and the unanimous opinion of the judges, preferved in the record cited by the learned Commentator from 2 Inft. 559. precludes the poflibility of fuch a cafe. This is an ungracious prerogative; and whenever it is exercised, unlefs the occafion is manifeft, the whole adminiftration of justice throughout one county for a twelvemonth, if not corrupted, is certainly fufpected. The cause ought to be urgent or inevitable, when recourfe is had to this prerogative.

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been faid that a fheriff may be appointed durante bene placito, or during the king's pleasure; and fo is the form of the royal writ". Therefore, till a new fheriff be named, his office cannot be determined, unless by his own death, or the demife of the king; in which laft cafe it was ufual for the fucceffor to send a new writ to the old sheriff: but now by ftatute 1 Ann. ft. 1. c. 8. all officers appointed by the pre[343ceding king may hold their offices, for fix months after the king's demife, unless sooner displaced by the fucceffor. We may farther obferve, that by ftatute 1 Ric. II. c. 11. no man that has served the office of fheriff for one year, can be com pelled to serve the same again within three years after (7).

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WE fhall find it is of the utmost importance to have the fheriff appointed according to law, when we confider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the fuperior courts of justice, or as the king's bailiff.

In his judicial capacity he is to hear and determine all caufes of forty fhillings 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 cafes. He is likewife to decide the elections of knights of the fhire, (fubject to the control of the house of commons,) of coroners, and of verderors; to judge of the qualification of voters, and to return fuch as he shall determine to be duly elected.

As the keeper of the king's peace, both by common law and special commiffion, he is the firft man in the county, and fuperior in rank to any nobleman therein, during his office".

14 Rep. 32.

m Dalt. of fheriffs. 8.

n Ibid. 7.

• Dalt. c. 4.
P1 Roll. Rep. 237.

(7) If there be other fufficient within the county. Until a different regulation was made by 8 Eliz. c. 16. in a great many inftances two counties had one and the fame sheriff: this is fill the cafe in the counties of Cambridge and Huntingdon.

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343 He may apprehend, and commit to prifon, all perfons 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 mifdoers, and commit them to gaol for fafe cuftody. 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 purfuing felons, he may command all the people of his county to attend him; which is called the poffe comitatus, or power of the county 9: and this fummons every perfon 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 [344] fheriff is thus the principal confervator of the peace in his county, yet by the express directions of the great charter, 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 juftice should be alfo the judges; should impofe, as well as levy, fines and amercements; fhould one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary juftice of the peace during the time of his office" for this would be equally inconfiftent; he being in many refpects the fervant of the justices.

In his ministerial capacity the fheriff is bound to execute all procefs iffuing from the king's courts of juftice. In the commencement of civil caufes, he is to ferve the writ, to arrest, and to take bail; when the cause comes to trial, he muft fummon and return the jury; when it is determined, he muft fee the judgment of the court carried into execution. In criminal matters, he also arrefts and imprisons, he returns the jury, he has the custody of the delinquent, and he

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