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CHAPTER X.

OF MAGISTRATES AND OTHER PUBLIC OFFICERS.

[IN a former chapter of these Commentaries we distinguished magistrates into supreme, and subordinate, or secondary (a). Hitherto, we have considered the former kind only, viz. the supreme legislative power, or parliament, and the supreme executive power, which is the king. We will now proceed to inquire into the rights and duties of the principal subordinate magistrates. In this inquiry, however, we shall not be called upon to investigate the powers and duties of his majesty's great officers or principal secretaries of state, because they have not any considerable share of magistracy conferred upon them (b), and the functions which they exercise by virtue of certain modern statutes (c) are not of such a nature as to constitute them subordinate magistrates. Neither shall we here 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 Book V. of these Commentaries. Nor, again, is this the place to speak of mayors and aldermen, or other officials engaged in the administration of local government, whose rights and duties will be discussed under the Social Economy of the Realm (Part III. of this Book). But the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are those who are found

(a) Vide sup. p. 361.

(b) Com. Dig. Officer, E. 8; Entick V. Carrington (1765), 2 Wils. 275.

(c) E.g., Prisons Act, 1835; Fugitive Offenders Act, 1881, Part I.

[dispersed throughout all parts of the kingdom bearing jurisdiction and authority, that is to say, those representatives of the royal authority whose functions are confined to particular places, such as sheriff's, coroners, justices of the peace, and constables.

I. First, The Sheriff. The sheriff is an officer of very great antiquity; and his name is said to be derived from two Saxon words, scyre gerefa, the reeve, bailiff, or officer of the shire. He is called in Latin rice-comes, not (as has been erroneously supposed) (d), because he was the deputy of the earl or comes;] for even before the time of legal memory the earl had nothing to do with the government of any county (except in the case of the palatine earldoms), and it was not to him but to the sheriff that the crown committed the custodiam comitatus. The sheriff was the governor of the shire, the captain of its forces, the

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sident of its court, a distinctively royal officer appointed by the king, dismissible at a moment's notice, strictly "accountable to the exchequer " (e). The name rire comes is probably a mere attempt to translate the Saxon scyre gereja.

[Sheriffs were formerly chosen by the inhabitants of the several counties: in confirmation of which it was ordained by the Articuli Super Cartas (28 E4*. L. (1366) (X), that the people should have the election of drift, in every shire where the shrievary was not of inleikann. Formerly, in some counties, the deriffs were and a shrievalty of inheritan migha desena on, and t bereditary s executed by, a female. For example, the eflenty of Westmoreland having been granted by K'ng Job Robert de Veteripont and his res ventas, ne jeton

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[shrievalty came by descent to the Earl of Thanet; and on the death of that nobleman in 1849, without issue, it became a question whether the office passed under a devise thereof in his will, or escheated to the Crown. To remedy this inconvenience, all hereditary claims and title to the office of sheriff of Westmoreland were abolished in 1850 (g), and the Crown was empowered to appoint as in other counties; and this provision is continued in the Sheriffs Act, 1887. The City of London, also, had at one time the inheritance of the shrievalty of Middlesex vested in their body under a charter of Henry the First, on condition of their paying 300l. a year to the king's exchequer; and the Sheriffs Act, 1887 (h), recognized and continued this right of election. But the Local Government Act, 1888 (i), provided that the Crown (and not the city) should appoint the sheriff of Middlesex ; that the Crown should appoint the sheriff for the county of London created by that Act, and that (with the consent of the city) such sheriff might exercise his jurisdiction in the city also (k); and that the city sheriff's should have no jurisdiction except in the city (1). The popular election of the sheriff, in all probability, required also the royal approbation; and these elections growing tumultuous, they were put an end to by the 9 Edw. II. (1315), st. 2, under which the sheriffs were to be thenceforth assigned by the chancellor, treasurer, and judges. The Statute of Cambridge (12 Ric. II. (1388), c. 2), ordained, that all that should be called to name or make justices of the peace, sheriff's, and other officers of the king, should be sworn to act indifferently, and to appoint no man that sued either privily or openly to be put in office, but such only as they should judge to be the best and most sufficient (m). And the custom ever since the time

(g) 13 & 14 Vict. c. 30. (h) Sect. 33.

(i) Sect. 46 (6).

(k) Sect. 40 (2).

(7) Sect. 41 (8).

(m) See also 14 Edw. 3 (1340), st. 1, c. 7; 23 Hen. 6 (1445), c. 9; 21 Hen. 8 (1529), c. 20;

[of Fortescue (n), who was chief justice and chancellor to Henry the Sixth, was, that all the judges, together with the other great officers and privy councillors, should meet in the Exchequer (now represented by the King's Bench Division of the High Court of Justice) (0) on the morrow of All Souls (changed by the Michaelmas Term Act, 1751(p), to the morrow of St. Martin, i.e., 12th November), and then and there the judges should propose three persons for each county to be reported, if approved of, to the king, who should afterwards appoint one of them to be sheriff. And though in one case it was laid down that Queen Elizabeth might, by her prerogative, make a sheriff without the election of the judges, non obstante aliquo statuto in contrarium (q), yet this was afterwards adjudged bad law; the doctrine of non obstante, which sets the prerogative above the law, having been effectually demolished by the Bill of Rights (r).] Under the Sheriffs Act, 1887, s. 6, the annual appointment of sheriffs is made at the Royal Courts of Justice on the 12th day of November in every year, in the manner heretofore in use, and by the same high officers, or two of them, together with the judges, or two of them. And by the same Act, in continuance of a similar provision in the Fines Act, 1833, whenever any person is duly pricked or nominated to be sheriff of any county, a warrant is to be made out and signed by the clerk to the privy council, and transmitted by him to the person so appointed; and this appointment so made is of the same effect as if by patent under the great seal. A duplicate of the warrant is within ten days from the date thereof to be transmitted by the clerk of the privy council to the clerk of the peace for the county; and the sheriff so appointed continues in office until his successor is duly and fully appointed. In the

Michaelmas Term Act, 1751, s. 12; Supreme Court of JudicaLure Act, 1873, s. 96.

(n) De Leg. Angliæ, ch. 24.

(0) Judicature Act, 1881, s. 16.
(p) See s. 12.
(7) Dy. 225, 226.

(r) 2 Inst. 559.

event of his dying within the term of his office, the under-sheriff takes his place, and acts as occasional sheriff (s).

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[Sheriffs, by virtue of several old statutes, are to continue in office for one year, and no longer; and yet it hath been said, that a sheriff may be appointed durante bene placito (t), as indeed the form of their appointment expresses (u). Their office determines therefore on their death, or by the expiration of the year of office, whichever event first happens; and formerly it determined also on the demise of the Crown, but it is not now determined by that event (r). By the Sheriffs Act, 1887, s. 5, continuing a like provision of the 1 Ric. II. (1377), 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 after, if there be any other sufficient person within the county.] But otherwise the discharge of the office of sheriff is compulsory upon the party chosen; and if he refuses to serve, having no legal exemption, he is liable to an indictment or information (y). And it is said, that no man can be exempt from this office but by Act of Parliament or letters patent ().

By the Sheriffs Act, 1887, s. 4, continuing a like provision contained in the 14 Car. II. (1662), c. 21, no person shall be assigned for sheriff, unless he have sufficient lands within the county to answer the king and his people (a); and as the sheriff 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.

(s) Sheriffs Act, 1887, s. 25.

(1) 4 Rep. 32 b.

(u) Dalt. Sheriffs, 8.

(x) Sheriffs Act, 1887, s. 3. (y) 9 Rep. 46; Harrison Evans (1767), 3 Bro. P. C. 465;

V.

R. v. Woodrow (1788), 2 T. R. 731.

(z) Watson, Office and Duty of a Sherif, p. 5.

(a) 9 Edw. 2 (1315), st. 2; 2 Edw. 3 (1328), c. 4; 5 Edw. 3 (1331), c. 4.

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