[3. Esquires created by the king's letters-patent, or other investiture (e); and their eldest sons; 4. Esquires by virtue of their offices; as justices of the peace, and others who bear any office of trust under the crown,] and are named esquires by the crown in their commission or appointment (f). [To these, however, may be added] barristersat-law (g), and [the esquires of knights of the bath, each of whom constitutes three at his installation; and all foreign peers; for not only these, but the eldest sons of peers of Great Britain, though frequently titular lords, are only esquires in the law, and must be so named in all legal proceedings (h). As for gentlemen, says Sir Thomas Smith (1), they be made good cheap in this kingdom; for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the liberal sciences, and, (to be short,) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman. A yeoman is he that hath free land of forty shillings by the year; who was antiently thereby qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires one that is probus et legalis homo (k).

The rest of the commonalty are tradesmen, artificers and labourers ;] and as to these, as well as all other persons, it was provided by 1 Hen. V. c. 5, that they must [be styled by the name and addition of their estate, degree

(e) This creation has long been disused. Esquires thus created were invested calcaribus argentatis, to distinguish them from the equites aurati. In the life of Chaucer, we are told that he was created scutifer to Edward the third. Scutifer is the same as armiger; and our word esquire is derived from scutum, or the French escu, a shield. (Christian's Blackstone, vol. i. p. 406.)

(f) See Talbot v. Eagle, 1 Taunt.

510.

(g) R. v. Brough, Esq., 1 Wils. 244. It is stated in Blount's Law Dict. and Glossary, that barristers were named esquires in the acts for poll-money.

(h) 3 Inst. 30; 2 Inst. 667.
(i) Commonw. of Eng. b. 1, c. 20.
(k) 2 Inst. 668.

[or mystery, and the place to which they belong, or where they have been conversant, in all indictments; in order, as it should seem, to prevent any clandestine or mistaken outlawry, by reducing to a specific certainty the person who is the object of its process.] But now by 14 & 15 Vict. c. 100, s. 24, it is enacted, that no indictment shall in future be held insufficient for want of, or imperfection in, the addition of any defendant.

CHAPTER X.

OF MAGISTRATES AND OTHER PUBLIC OFFICERS.

[IN a former chapter of these Commentaries, we distinguished magistrates into two kinds - supreme, or those in whom the sovereign power of the state resides, and subordinate, or those who act in an inferior secondary sphere (a). We have hitherto considered the former kind only; namely, the supreme legislative power of parliament, and the supreme executive power, which is the sovereign; and are now to proceed to inquire into the rights and duties of the principal subordinate magistrates.

And herein we are not to investigate the powers and duties of her majesty's great officers of state, the principal secretaries, or the like, because they are not in that capacity in any considerable degree the objects of our laws, nor have any very large share of magistracy conferred upon them, though the principal secretaries of state are allowed the power of commitment in order to bring to trial] persons accused of treason, or other crimes against the state (b); and have, by several modern provisions of the statute law, been intrusted with certain other miscellaneous functions connected with the administration of justice, and the social economy of the realm (c). [Neither is this the occasion to 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 a subsequent part of these Commentaries (d). Nor is it necessary to enter into any

[minute disquisitions with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations;] because these are merely private and municipal rights, and confined to the particular franchise. [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 and constables.

But before we enter upon this disquisition as to particular officers, we shall avail ourselves of this opportunity of making a few remarks in this place on the nature of offices in general.

Offices are a species of incorporeal hereditaments (e), and were enumerated as such in a former part of this work (ƒ). They have been defined as consisting in the right to exercise a public or private employment (g). But we here use the word office in its more limited and usual sense, comprising employments only of a public nature—such as entitle a man to act in the affairs of others, without their appointment or permission (h). The right of nomination to an antient office belongs, in most cases, to the crown; in some, to a subject: and new offices may be created by the crown; but not such as are contrary to the constitution, or prejudicial to the public (i). In some instances they are granted for life, or during good behaviour, in others during pleasure only; and in the case of particular offices, where no inconvenience can arise to the public from such a mode of limitation, they may be granted to a man and his heirs; or to one man for life, remainder over to another; or for a term of years: or if they relate to lands or houses, they are capable of being entailed (k). They may be distinguished into offices of trust (comprising those which are judicial), and offices merely ministerial. The former cannot in ge

(e) But they seem not to be tenements, unless they concern the realty. Co. Litt. 20 a.

(f) Vide sup. vol. 1. p. 648, n. (h).

(g) 2 Bl. Com. 36.

(h) See R. v. Burnell, Carth. 478.
(i) Bac. Ab. Offices, B.
(k) Co. Litt. 20 a.

neral be performed by deputy, the latter usually may (1). It is also a general rule with respect to a judicial office, that it cannot be granted in reversion (m); because, though the grantee may be able to execute it at the time of the grant, yet before the office falls, he may become insufficient; but ministerial offices, being capable of performance by deputy, may be so granted (n).

By the 5 & 6 Edw. VI. c. 16, no judicial office, or other office of trust (with some few exceptions), can be sold, under pain of disability to dispose of or hold the same. For the law presumes that he who buys an office will, by bribery, extortion, or other unlawful means, make his purchase good, to the manifest detriment of the public (0). And by 49 Geo. III. c. 126, it is made highly penal to buy, sell, or negotiate for the sale or purchase of any such office, or of any other of the public appointments in that act specified (p).

Where the right of conferring an office is in the crown, the appointment is usually made by letters-patent (q); where in a subject, it should regularly be made by an instrument under his seal (r); and, to render the appointment complete, the party should be in general sworn in, an oath being usually taken for the due execution of the duties (s); in addition to which, oaths are prescribed by

(1) Com. Dig. Officer, D.; R. v. Ferrand, 3 B. & Ald. 260; R. v. Gravesend, 2 B. & C. 602; R. v. Roberts, 3 Ad. & El. 771.

(m) Co. Litt. 3 b; Com. Dig. Officer, B. 14.

(n) Com. Dig. Officer, B. 13; 11 Rep. 4.

(0) Certain offices in the Queen's Bench and Common Pleas were saleable by the chief justices of those courts respectively till the year 1825, when this custom was abolished by 6 Geo. 4, cc. 82, 83.

(p) See Sterry v. Clifton, 9 C. B. 110.

(9) As to grant by letters-patent, vide sup. vol. 1. p. 616.

(r) Bac. Ab. Officer, E. L. (s) See Rex v. Roberts, 3 Ad. & El. 771. By 5 & 6 Will. 4, c. 62, 8. 9, churchwardens and sidesmen shall, in lieu of an oath, make and subscribe a declaration, that they will faithfully and diligently perform the duties of the office; and shall take no oath on quitting office. By 1 & 2 Vict. c. 105, all persons to whom an oath is lawfully administered on their appointment to any office or employment, or on any occasion whatever, are bound by the oath administered, s s. 2.