his own distinct capacity; the rest being rather the revenue of the
public, or it's creditors, though collected, and distributed again, in
the name and by the officers of the crown: it now standing in the same
place, as the hereditary income did formerly; and, as that has
gradually diminished, the parliamentary appointments have encreased.
The whole revenue of queen Elizabeth did not amount to more than
600000_l._ a year[g]: that of king Charles I was[h] 800000_l._ and the
revenue voted for king Charles II was[i] 1200000_l._ though it never
in fact amounted to quite so much[k]. But it must be observed, that
under these sums were included all manner of public expenses, among
which lord Clarendon in his speech to the parliament computed that the
charge of the navy and land forces amounted annually to 800000_l._
which was ten times more than before the former troubles[l]. The same
revenue, subject to the same charges, was settled on on [Transcriber's
Note: duplicate word] king James II[m]: but by the encrease of trade,
and more frugal management, it amounted on an average to a million and
half _per annum_, (besides other additional customs, granted by
parliament[n], which produced an annual revenue of 400000_l._) out of
which his fleet and army were maintained at the yearly expense of[o]
1100000_l._ After the revolution, when the parliament took into it's
own hands the annual support of the forces, both maritime and
military, a civil list revenue was settled on the new king and queen,
amounting, with the hereditary duties, to 700000_l._ _per annum_[p];
and the same was continued to queen Anne and king George I[q]. That of
king George II, we have seen, was nominally augmented to[r] 800000_l._
and in fact was considerably more. But that of his present majesty is
expressly limited to that sum; and, by reason of the charges upon it,
amounts at present to little more than 700000_l._ And upon the whole
it is doubtless much better for the crown, and also for the people, to
have the revenue settled upon the modern footing rather than the
antient. For the crown; because it is more certain, and collected with
greater ease: for the people; because they are now delivered from the
feodal hardships, and other odious branches of the prerogative. And
though complaints have sometimes been made of the encrease of the
civil list, yet if we consider the sums that have been formerly
granted, the limited extent under which it is now established, the
revenues and prerogatives given up in lieu of it by the crown, and
(above all) the diminution of the value of money compared with what it
was worth in the last century, we must acknowlege these complaints to
be void of any rational foundation; and that it is impossible to
support that dignity, which a king of Great Britain should maintain,
with an income in any degree less than what is now established by
parliament.
[Footnote g: Lord Clar. continuation. 163.]
[Footnote h: Com. Journ. 4 Sept. 1660.]
[Footnote i: _Ibid._]
[Footnote k: _Ibid._ 4 Jun. 1663. Lord Clar. _ibid._]
[Footnote l: _Ibid._ 165.]
[Footnote m: Stat. 1 Jac. II. c. 1.]
[Footnote n: Stat. 1 Jac. II. c. 3 & 4.]
[Footnote o: Com. Journ. 1 Mar. 20 Mar. 1688.]
[Footnote p: _Ibid._ 14 Mar. 1701.]
[Footnote q: _Ibid._ 17 Mar. 1701. 11 Aug. 1714.]
[Footnote r: Stat. 1 Geo. II. c. 1.]
THIS finishes our enquiries into the fiscal prerogatives of the king;
or his revenue, both ordinary and extraordinary. We have therefore now
chalked out all the principal outlines of this vast title of the law,
the supreme executive magistrate, or the king's majesty, considered in
his several capacities and points of view. But, before we intirely
dismiss this subject, it may not be improper to take a short
comparative review of the power of the executive magistrate, or
prerogative of the crown, as it stood in former days, and as it stands
at present. And we cannot but observe, that most of the laws for
ascertaining, limiting, and restraining this prerogative have been
made within the compass of little more than a century past; from the
petition of right in 3 Car. I. to the present time. So that the powers
of the crown are now to all appearance greatly curtailed and
diminished since the reign of king James the first: particularly, by
the abolition of the star chamber and high commission courts in the
reign of Charles the first, and by the disclaiming of martial law, and
the power of levying taxes on the subject, by the same prince: by the
disuse of forest laws for a century past: and by the many excellent
provisions enacted under Charles the second; especially, the abolition
of military tenures, purveyance, and preemption; the _habeas corpus_
act; and the act to prevent the discontinuance of parliaments for
above three years: and, since the revolution, by the strong and
emphatical words in which our liberties are asserted in the bill of
rights, and act of settlement; by the act for triennial, since turned
into septennial, elections; by the exclusion of certain officers from
the house of commons; by rendering the seats of the judges permanent,
and their salaries independent; and by restraining the king's pardon
from operating on parliamentary impeachments. Besides all this, if we
consider how the crown is impoverished and stripped of all it's
antient revenues, so that it greatly depends on the liberality of
parliament for it's necessary support and maintenance, we may perhaps
be led to think, that the ballance is enclined pretty strongly to the
popular scale, and that the executive magistrate has neither
independence nor power enough left, to form that check upon the lords
and commons, which the founders of our constitution intended.
BUT, on the other hand, it is to be considered, that every prince, in
the first parliament after his accession, has by long usage a truly
royal addition to his hereditary revenue settled upon him for his
life; and has never any occasion to apply to parliament for supplies,
but upon some public necessity of the whole realm. This restores to
him that constitutional independence, which at his first accession
seems, it must be owned, to be wanting. And then, with regard to
power, we may find perhaps that the hands of government are at least
sufficiently strengthened; and that an English monarch is now in no
danger of being overborne by either the nobility or the people. The
instruments of power are not perhaps so open and avowed as they
formerly were, and therefore are the less liable to jealous and
invidious reflections; but they are not the weaker upon that account.
In short, our national debt and taxes (besides the inconveniences
before-mentioned) have also in their natural consequences thrown such
a weight of power into the executive scale of government, as we cannot
think was intended by our patriot ancestors; who gloriously struggled
for the abolition of the then formidable parts of the prerogative; and
by an unaccountable want of foresight established this system in their
stead. The entire collection and management of so vast a revenue,
being placed in the hands of the crown, have given rise to such a
multitude of new officers, created by and removeable at the royal
pleasure, that they have extended the influence of government to every
corner of the nation. Witness the commissioners, and the multitude of
dependents on the customs, in every port of the kingdom; the
commissioners of excise, and their numerous subalterns, in every
inland district; the postmasters, and their servants, planted in every
town, and upon every public road; the commissioners of the stamps, and
their distributors, which are full as scattered and full as numerous;
the officers of the salt duty, which, though a species of excise and
conducted in the same manner, are yet made a distinct corps from the
ordinary managers of that revenue; the surveyors of houses and
windows; the receivers of the land tax; the managers of lotteries; and
the commissioners of hackney coaches; all which are either mediately
or immediately appointed by the crown, and removeable at pleasure
without any reason assigned: these, it requires but little penetration
to see, must give that power, on which they depend for subsistence, an
influence most amazingly extensive. To this may be added the frequent
opportunities of conferring particular obligations, by preference in
loans, subscriptions, tickets, remittances, and other money-transactions,
which will greatly encrease this influence; and that over those
persons whose attachment, on account of their wealth, is frequently
the most desirable. All this is the natural, though perhaps the
unforeseen, consequence of erecting our funds of credit, and to
support them establishing our present perpetual taxes: the whole of
which is entirely new since the restoration in 1660; and by far the
greatest part since the revolution in 1688. And the same may be said
with regard to the officers in our numerous army, and the places which
the army has created. All which put together gives the executive power
so persuasive an energy with respect to the persons themselves, and so
prevailing an interest with their friends and families, as will amply
make amends for the loss of external prerogative.
BUT, though this profusion of offices should have no effect on
individuals, there is still another newly acquired branch of power;
and that is, not the influence only, but the force of a disciplined
army: paid indeed ultimately by the people, but immediately by the
crown; raised by the crown, officered by the crown, commanded by the
crown. They are kept on foot it is true only from year to year, and
that by the power of parliament: but during that year they must, by
the nature of our constitution, if raised at all, be at the absolute
disposal of the crown. And there need but few words to demonstrate how
great a trust is thereby reposed in the prince by his people. A trust,
that is more than equivalent to a thousand little troublesome
prerogatives.
ADD to all this, that, besides the civil list, the immense revenue of
seven millions sterling, which is annually paid to the creditors of
the publick, or carried to the sinking fund, is first deposited in the
royal exchequer, and thence issued 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 also, when well
considered, 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 transactions in the last century. Much is
indeed given up; but much is also acquired. The stern commands of
prerogative have yielded to the milder voice of influence; the slavish
and exploded doctrine of non-resistance has given way to a military
establishment by law; and to the disuse of parliaments has succeeded a
parliamentary trust of an immense perpetual revenue. When, indeed, by
the free operation of the sinking fund, our national debts shall be
lessened; when the posture of foreign affairs, and the universal
introduction of a well planned and national militia, will suffer our
formidable army to be thinned and regulated; and when (in consequence
of all) our taxes shall be gradually reduced; this adventitious power
of the crown will slowly and imperceptibly diminish, as it slowly and
imperceptibly rose. But, till that shall happen, it will be our
especial duty, as good subjects and good Englishmen, to reverence the
crown, and yet guard against corrupt and servile 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 sovereign, who, in
all those public acts that have personally proceeded from himself,
hath manifested the highest veneration for the free constitution of
Britain; hath already in more than one instance remarkably
strengthened it's outworks; and will therefore never harbour a
thought, or adopt a persuasion, in any the remotest degree detrimental
to public liberty.
CHAPTER THE NINTH.
OF SUBORDINATE MAGISTRATES.
IN a former chapter of these commentaries[a] 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. We have hitherto considered the former kind
only, namely, the supreme legislative power or parliament, and the
supreme executive power, which is the king: and are now to proceed to
enquire into the rights and duties of the principal subordinate
magistrates.
[Footnote a: ch. 2. pag. 142.]
AND herein we are not to investigate the powers and duties of his
majesty's great officers of state, the lord treasurer, lord
chamberlain, the principal secretaries, or the like; because I do not
know that they are in that capacity in any considerable degree the
objects of our laws, or have any very important share of magistracy
conferred upon them: except that the secretaries of state are allowed
the power of commitment, in order to bring offenders to trial[b].
Neither shall I 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 the third part of these
commentaries. Nor shall I 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 mere private
and strictly municipal rights, depending entirely upon the domestic
constitution of their respective franchises. 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; constables; surveyors of
highways; and overseers of the poor. In treating of all which I shall
enquire into, first, their antiquity and original; next, the manner in
which they are appointed and may be removed; and, lastly, their rights
and duties. And first of sheriffs.
[Footnote b: 1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk.
347.]
I. THE sheriff is an officer of very great antiquity in this kingdom,
his name being derived from two Saxon words, shire reeve, the bailiff
or officer of the shire. He is called in Latin _vice-comes_, as being
the deputy of the earl or _comes_; to whom the custody of the shire is
said to have been committed at the first division of this kingdom into
counties. But the earls in process of time, by reason of their high
employments and attendance on the king's person, not being able to
transact the business of the county, were delivered of that burden[c];
reserving to themselves the honour, but the labour was laid on the
sheriff. So that now the sheriff does all the king's business in the
county; and though he be still called _vice-comes_, yet he is entirely
independent of, and not subject to the earl; the king by his letters
patent committing _custodiam comitatus_ to the sheriff, and him alone.
[Footnote c: Dalton of sheriffs, c. 1.]
SHERIFFS were formerly chosen by the inhabitants of the several
counties. In confirmation of which it was ordained by statute 28 Edw.
I. c. 8. that the people should have election of sheriffs in every
shire, where the shrievalty is not of inheritance. For antiently in
some counties, particularly on the borders, the sheriffs were
hereditary; as I apprehend they are in Scotland, and in the county of
Westmorland, to this day: and the city of London has also the
inheritance of the shrievalty of Middlesex vested in their body by
charter[d]. The reason of these popular elections is assigned in the
same statute, c. 13. "that the commons might chuse such as would not
be a burthen to them." And herein appears plainly a strong trace of
the democratical part of our constitution; in which form of government
it is an indispensable requisite, that the people should chuse their
own magistrates[e]. 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 their 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_[f]. 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 lord chancellor, treasurer, and the judges; as being
persons in whom the same trust might with confidence be reposed. By
statutes 14 Edw. III. c. 7. and 23 Hen. VI. c. 8. the chancellor,
treasurer, _chief_ justices, and _chief_ baron, are to make this
election; and that on the morrow of All Souls in the exchequer. But
the custom now is (and has been at least ever since the time of
Fortescue[g], who was chief justice and chancellor to Henry the sixth)
that _all_ the judges, and certain other great officers, meet in the
exchequer chamber on the morrow of All Souls yearly, (which day is now
altered to the morrow of St. Martin by the act for abbreviating
Michaelmas term) and then and there nominate three persons to the
king, who afterwards appoints one of them to be sheriff. This custom,
of the _twelve_ judges nominating _three_ persons, seems borrowed from
the Gothic constitution beforementioned; 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 directions of all the statutes beforementioned;
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[h] he transcribed from the council book of 3 Mar. 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
disobedience, as if he had been one of the _three_ persons chosen
according to the tenor of the _statute_; that they would advise the
king to have recourse to the _three_ persons that were chosen
according to the _statute_, or that some other thrifty man be
intreated to occupy the office for this year; and that, the next year,
to eschew 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, some of our writers[i] have 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 Westminster; 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[k]. And this case, thus circumstanced, is the only
precedent 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 Westminster-hall when king James abdicated the kingdom. So
that sheriffs cannot now be legally appointed, otherwise than
according to the known and established law.
[Footnote d: 3 Rep. 72.]
[Footnote e: Montesq. Sp. L. b. 2. c. 2.]
[Footnote f: Stiernhook _de jure Goth._ _l._ 1. _c._ 3.]
[Footnote g: _de L.L._ _c._ 24.]
[Footnote h: 2 Inst. 559.]
[Footnote i: Jenkins. 229.]
[Footnote k: Dyer 225.]
SHERIFFS, by virtue of several old statutes, are to continue in their
office no longer than one year; and yet it hath been said[l] that a
sheriff may be appointed _durante bene placito_, or during the king's
pleasure; and so is the form of the royal writ[m]. 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[n]: but now by
statute 1 Ann. st. 1. c. 8. all officers appointed by the preceding
king may hold their offices for six months after the king's demise,
unless sooner displaced by the successor. 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 after.
[Footnote l: 4 Rep. 32.]
[Footnote m: Dalt. of sheriffs. 8.]
[Footnote n: Dalt. 7.]
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 judicial power in divers other
civil cases[o]. 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.
[Footnote o: Dalt. c. 4.]
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[p]. 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, he may command all
the people of his county to attend him; which is called the _posse
comitatus_, or power of the county[q]: which summons every person
above fifteen years old, and under the degree of a peer, is bound to
attend upon warning[r], under pain of fine and imprisonment[s]. But
though the 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[u]: for this would be equally inconsistent; he being in
many respects the servant of the justices.
[Footnote p: 1 Roll. Rep. 237.]
[Footnote q: Dalt. c. 95.]
[Footnote r: Lamb. Eiren. 315.]