[Footnote t: _cap._ 17.]
[Footnote u: Stat. 1 Mar. st. 2. c. 8.]
IN his ministerial capacity the sheriff is bound to execute all
process issuing from the king's courts of justice. In the commencement
of civil causes, he is to serve the writ, to arrest, and to take bail;
when the cause comes to trial, he must summon and return the jury;
when it is determined, he must see the judgment of the court carried
into execution. In criminal matters, he also arrests and imprisons, he
returns the jury, he has the custody of the delinquent, and he
executes the sentence of the court, though it extend to death itself.
AS the king's bailiff, it is his business to preserve the rights of
the king within his bailiwick; for so his county is frequently called
in the writs: a word introduced by the princes of the Norman line; in
imitation of the French, whose territory is divided into bailiwicks,
as that of England into counties[w]. He must seise to the king's use
all lands devolved to the crown by attainder or escheat; must levy all
fines and forfeitures; must seise and keep all waifs, wrecks, estrays,
and the like, unless they be granted to some subject; and must also
collect the king's rents within his bailiwick, if commanded by process
from the exchequer[x].
[Footnote w: Fortesc. _de L.L._ c. 24.]
[Footnote x: Dalt. c. 9.]
TO execute these various offices, the sheriff has under him many
inferior officers; an under-sheriff, bailiffs, and gaolers; who must
neither buy, sell, nor farm their offices, on forfeiture of 500_l._[y]
[Footnote y: Stat. 3 Geo. I. c. 15.]
THE under-sheriff usually performs all the duties of the office; a
very few only excepted, where the personal presence of the
high-sheriff is necessary. But no under-sheriff shall abide in his
office above one year[z]; and if he does, by statute 23 Hen. VI. c. 8.
he forfeits 200_l._ a very large penalty in those early days. And no
under-sheriff or sheriff's officer shall practice as an attorney,
during the time he continues in such office[a]: for this would be a
great inlet to partiality and oppression. But these salutary
regulations are shamefully evaded, by practising in the names of other
attorneys, and putting in sham deputies by way of nominal
under-sheriffs: by reason of which, says Dalton[b], the under-sheriffs
and bailiffs do grow so cunning in their several places, that they are
able to deceive, and it may be well feared that many of them do
deceive, both the king, the high-sheriff, and the county.
[Footnote z: Stat. 42 Edw. III. c. 9.]
[Footnote a: Stat. 1 Hen. V. c. 4.]
[Footnote b: of sheriffs, c. 115.]
BAILIFFS, or sheriff's officers, are either bailiffs of hundreds, or
special bailiffs. Bailiffs of hundreds are officers appointed over
those respective districts by the sheriffs, to collect fines therein;
to summon juries; to attend the judges and justices at the assises,
and quarter sessions; and also to execute writs and process in the
several hundreds. But, as these are generally plain men, and not
thoroughly skilful in this latter part of their office, that of
serving writs, and making arrests and executions, it is now usual to
join special bailiffs with them; who are generally mean persons
employed by the sheriffs on account only of their adroitness and
dexterity in hunting and seising their prey. The sheriff being
answerable for the misdemesnors of these bailiffs, they are therefore
usually bound in a bond for the due execution of their office, and
thence are called bound-bailiffs; which the common people have
corrupted into a much more homely appellation.
GAOLERS are also the servants of the sheriff, and he must be
responsible for their conduct. Their business is to keep safely all
such persons as are committed to them by lawful warrant: and, if they
suffer any such to escape, the sheriff shall answer it to the king, if
it be a criminal matter; or, in a civil case, to the party injured[c].
And to this end the sheriff must[d] have lands sufficient within the
county to answer the king and his people. The abuses of goalers and
sheriff's officers toward the unfortunate persons in their custody are
well restrained and guarded against by statute 32 Geo. II. c. 28.
[Footnote c: Dalt. c. 118. 4 Rep. 34.]
[Footnote d: Stat. 13 & 14 Car. II. c. 21.]
THE vast expense, which custom had introduced in serving the office of
high-sheriff, was grown such a burthen to the subject, that it was
enacted, by statute 13 & 14 Car. II. c. 21. that no sheriff should
keep any table at the assises, except for his own family, or give any
presents to the judges or their servants, or have more than forty men
in livery; yet, for the sake of safety and decency, he may not have
less than twenty men in England and twelve in Wales; upon forfeiture,
in any of these cases, of 200_l._
II. THE coroner's is also a very antient office at the common law. He
is called coroner, _coronator_, because he hath principally to do with
pleas of the crown, or such wherein the king is more immediately
concerned[e]. And in this light the lord chief justice of the king's
bench is the principal coroner in the kingdom, and may (if he pleases)
exercise the jurisdiction of a coroner in any part of the realm[f].
But there are also particular coroners for every county of England;
usually four, but sometimes six, and sometimes fewer[g]. This
officer[h] is of equal antiquity with the sheriff; and was ordained
together with him to keep the peace, when the earls gave up the
wardship of the county.
[Footnote e: 2 Inst. 31. 4 Inst. 271.]
[Footnote f: 4 Rep. 57.]
[Footnote g: F.N.B. 163.]
[Footnote h: Mirror, c. 1. Sec. 3.]
HE is still chosen by all the freeholders in the county court, as by
the policy of our antient laws the sheriffs, and conservators of the
peace, and all other officers were, who were concerned in matters that
affected the liberty of the people[i]; and as verderors of the forests
still are, whose business it is to stand between the prerogative and
the subject in the execution of the forest laws. For this purpose
there is a writ at common law _de coronatore eligendo_[k]: in which
it is expressly commanded the sheriff, "_quod talem eligi faciat, qui
melius et sciat, et velit, et possit, officio illi intendere_." And,
in order to effect this the more surely, it was enacted by the statute
of Westm. I[l], that none but lawful and discreet knights should be
chosen. But it seems it is now sufficient if a man have lands enough
to be made a knight, whether he be really knighted or not[m]: and
there was an instance in the 5 Edw. III. of a man being removed from
this office, because he was only a merchant[n]. The coroner ought also
to have estate sufficient to maintain the dignity of his office, and
answer any fines that may be set upon him for his misbehaviour[o]: and
if he have not enough to answer, his fine shall be levyed on the
county, as a punishment for electing an insufficient officer[p]. Now
indeed, through the culpable neglect of gentlemen of property, this
office has been suffered to fall into disrepute, and get into low and
indigent hands: so that, although formerly no coroner would condescend
to be paid for serving his country, and they were by the aforesaid
statute of Westm. I. expressly forbidden to take a reward, under pain
of great forfeiture to the king; yet for many years past they have
only desired to be chosen for the sake of their perquisites; being
allowed fees for their attendance by the statute 3 Hen. VII. c. 1.
which sir Edward Coke complains of heavily[q]; though they have since
his time been much enlarged[r].
[Footnote i: 2 Inst. 558.]
[Footnote k: F.N.B. 163.]
[Footnote l: 3 Edw. I. c. 10.]
[Footnote m: F.N.B. 163, 164.]
[Footnote n: 2 Inst. 32.]
[Footnote o: F.N.B. 163, 164.]
[Footnote p: Mirr. c. 1. Sec. 3. 2 Inst. 175.]
[Footnote q: 2 Inst. 210.]
[Footnote r: Stat. 25 Geo. II. c. 29.]
THE coroner is chosen for life: but may be removed, either by being
made sheriff, or chosen verderor, which are offices incompatible with
the other; or by the king's writ _de coronatore exonerando_, for a
cause to be therein assigned, as that he is engaged in other business,
is incapacitated by years or sickness, hath not a sufficient estate in
the county, or lives in an inconvenient part of it[s]. And by the
statute 25 Geo. II. c. 29. extortion, neglect, or misbehaviour, are
also made causes of removal.
[Footnote s: F.N.B. 163, 164.]
THE office and power of a coroner are also, like those of a sheriff,
either judicial or ministerial; but principally judicial. This is in
great measure ascertained by statute 4 Edw. I. _de officio
coronatoris_; and consists, first, in enquiring (when any person is
slain or dies suddenly) concerning the manner of his death. And this
must be "_super visum corporis_[t];" for, if the body be not found,
the coroner cannot sit[u]. He must also sit at the very place where
the death happened; and his enquiry is made by a jury from four, five,
or six of the neighbouring towns, over whom he is to preside. If any
be found guilty by this inquest of murder, he is to commit to prison
for further trial, and is also to enquire concerning their lands,
goods and chattels, which are forfeited thereby: but, whether it be
murder or not, he must enquire whether any deodand has accrued to the
king, or the lord of the franchise, by this death: and must certify
the whole of this inquisition to the court of king's bench, or the
next assises. Another branch of his office is to enquire concerning
shipwrecks; and certify whether wreck or not, and who is in possession
of the goods. Concerning treasure trove, he is also to enquire who
were the finders, and where it is, and whether any one be suspected of
having found and concealed a treasure; "and that may be well perceived
(saith the old statute of Edw. I.) where one liveth riotously,
haunting taverns, and hath done so of long time:" whereupon he might
be attached, and held to bail, upon this suspicion only.
[Footnote t: 4 Inst. 271.]
[Footnote u: Thus, in the Gothic constitution, before any fine was
payable by the neighbourhood, for the slaughter of a man therein, "_de
corpore delicti constare oportebat; i.e. non tam fuisse aliquem in
territorio isto mortuum inventum, quam vulneratum et caesum. Potest
enim homo etiam ex alia causa subito mori_." Stiernhook _de jure
Gothor._ _l._ 3. _c._ 4.]
THE ministerial office of the coroner is only as the sheriff's
substitute. For when just exception can be taken to the sheriff, for
suspicion of partiality, (as that he is interested in the suit, or of
kindred to either plaintiff or defendant) the process must then be
awarded to the coroner, instead of the sheriff, for execution of the
king's writs[w].
[Footnote w: 4 Inst. 271.]
III. THE next species of subordinate magistrates, whom I am to
consider, are justices of the peace; the principal of whom is the
_custos rotulorum_, or keeper of the records of the county. The common
law hath ever had a special care and regard for the conservation of
the peace; for peace is the very end and foundation of civil society.
And therefore, before the present constitution of justices was
invented, there were peculiar officers appointed by the common law for
the maintenance of the public peace. Of these some had, and still
have, this power annexed to other offices which they hold; others had
it merely by itself, and were thence named _custodes_ or
_conservatores pacis_. Those that were so _virtute officii_ still
continue; but the latter sort are superseded by the modern justices.
THE kings majesty[x] is, by his office and dignity royal, the
principal conservator of the peace within all his dominions; and may
give authority to any other to see the peace kept, and to punish such
as break it: hence it is usually called the king's peace. The lord
chancellor or keeper, the lord treasurer, the lord high steward of
England, the lord mareschal, and lord high constable of England (when
any such officers are in being) and all the justices of the court of
king's bench (by virtue of their offices) and the master of the rolls
(by prescription) are general conservators of the peace throughout the
whole kingdom, and may commit all breakers of it, or bind them in
recognizances to keep it[y]: the other judges are only so in their own
courts. The coroner is also a conservator of the peace within his own
county[z]; as is also the sheriff[a]; and both of them may take a
recognizance or security for the peace. Constables, tythingmen, and
the like, are also conservators of the peace within their own
jurisdictions; and may apprehend all breakers of the peace, and commit
them till they find sureties for their keeping it[b].
[Footnote x: Lambard. Eirenarch. 12.]
[Footnote y: Lamb. 12.]
[Footnote z: Britton. 3.]
[Footnote a: F.N.B. 81.]
[Footnote b: Lamb. 14.]
THOSE that were, without any office, simply and merely conservators of
the peace, were chosen by the freeholders in full county court before
the sheriff; the writ for their election directing them to be chosen
"_de probioribus et melioribus in comitatu suo in custodes pacis_[c]."
But when queen Isabel, the wife of Edward II, had contrived to depose
her husband by a forced resignation of the crown, and had set up his
son Edward III in his place; this, being a thing then without example
in England, it was feared would much alarm the people; especially as
the old king was living, though hurried about from castle to castle;
till at last he met with an untimely death. To prevent therefore any
risings, or other disturbance of the peace, the new king sent writs to
all the sheriffs in England, the form of which is preserved by Thomas
Walsingham[d], giving a plausible account of the manner of his
obtaining the crown; to wit, that it was done _ipsius patris
beneplacito_: and withal commanding each sheriff that the peace be
kept throughout his bailiwick, on pain and peril of disinheritance and
loss of life and limb. And in a few weeks after the date of these
writs, it was ordained in parliament[e], that, for the better
maintaining and keeping of the peace in every county, good men and
lawful, which were no maintainers of evil, or barretors in the
country, should be _assigned_ to keep the peace. And in this manner,
and upon this occasion, was the election of the conservators of the
peace taken from the people, and given to the king[f]; this assignment
being construed to be by the king's commission[g]. But still they were
called only conservators, wardens, or keepers of the peace, till the
statute 34 Edw. III. c. 1. gave them the power of trying felonies; and
then they acquired the more honorable appellation of justices[h].
[Footnote c: Lamb. 16.]
[Footnote d: Hist. _A.D._ 1327.]
[Footnote e: Stat. 1 Edw. III. c. 16.]
[Footnote f: Lamb. 20.]
[Footnote g: Stat. 4 Edw. III. c. 2. and 18 Edw. III. st. 2. c. 2.]
[Footnote h: Lamb. 23.]
THESE justices are appointed by the king's special commission under
the great seal, the form of which was settled by all the judges,
_A.D._ 1590[i]. This appoints them all[k], jointly and severally, to
keep the peace, and any two or more of them to enquire of and
determine felonies, and other misdemesnors: in which number some
particular justices, or one of them, are directed to be always
included, and no business to be done without their presence; the words
of the commission running thus, "_quorum aliquem vestrum, A. B. C. D.
&c. unum esse volumus_;" whence the persons so named are usually
called justices of the _quorum_. And formerly it was customary to
appoint only a select number of justices, eminent for their skill and
discretion, to be of the _quorum_; but now the practice is to advance
almost all of them to that dignity, naming them all over again in the
_quorum_ clause, except perhaps only some one inconsiderable person
for the sake of propriety: and no exception is now allowable, for not
expressing in the form of warrants, &c, that the justice who issued
them is of the _quorum_[l].
[Footnote i: Lamb. 43.]
[Footnote k: See the form itself, Lamb. 35. Burn. tit. justices, Sec.
1.]
[Footnote l: Stat. 26 Geo. II. c. 27.]
TOUCHING the number and qualifications of these justices; it was
ordained by statute 18 Edw. III. c. 2. that _two_, or _three_, of the
best reputation in each county shall be assigned to be keepers of the
peace. But these being found rather too few for that purpose, it was
provided by statute 34 Edw. III. c. 1. that one lord, and three, or
four, of the most worthy men in the county, with some learned in the
law, shall be made justices in every county. But afterwards the number
of justices, through the ambition of private persons, became so large,
that it was thought necessary by statute 12 Ric. II. c. 10. and 14 Ric
II. c. 11. to restrain them at first to six, and afterwards to eight
only. But this rule is now disregarded, and the cause seems to be (as
Lambard observed long ago[m]) that the growing number of statute
laws, committed from time to time to the charge of justices of the
peace, have occasioned also (and very reasonably) their encrease to a
larger number. And, as to their qualifications, the statutes just
cited direct them to be of the best reputation, and most worthy men in
the county: and the statute 13 Ric. II. c. 10. orders them to be of
the most sufficient knights, esquires, and gentlemen of the law. Also
by statute 2 Hen. V. st. 1. c. 4. and st. 2. c. 1. they must be
resident in their several counties. And because, contrary to these
statutes, men of small substance had crept into the commission, whose
poverty made them both covetous and contemptible, it was enacted by
statute 18 Hen. VI. c. 11. that no justice should be put in
commission, if he had not lands to the value of 20_l._ _per annum_.
And, the rate of money being greatly altered since that time, it is
now enacted by statute 5 Geo. II. c. 11. that every justice, except as
is therein excepted, shall have 100_l._ _per annum_ clear of all
deductions; and, if he acts without such qualification, he shall
forfeit 100_l._ which[n] is almost an equivalent to the 20_l._ _per
annum_ required in Henry the sixth's time: and of this qualification[o]
the justice must now make oath. Also it is provided by the act 5 Geo.
II. that no practising attorney, solicitor, or proctor, shall be
capable of acting as a justice of the peace.
[Footnote m: Lamb. 34.]
[Footnote n: See bishop Fleetwood's calculations in his _chronicon
pretiosum_.]
[Footnote o: Stat. 18 Geo. II. c. 20.]
AS the office of these justices is conferred by the king, so it
subsists only during his pleasure; and is determinable, 1. By the
demise of the crown; that is, in six months after[p]. 2. By express
writ under the great seal[q], discharging any particular person, from
being any longer justice. 3. By superseding the commission by writ of
_supersedeas_, which suspends the power of all the justices, but does
not totally destroy it; seeing it may be revived again by another
writ, called a _procedendo_. 4. By a new commission, which virtually,
though silently, discharges all the former justices that are not
included therein; for two commissions cannot subsist at once. 5. By
accession of the office of sheriff or coroner[r]. Formerly it was
thought, that if a man was named in any commission of the peace, and
had afterwards a new dignity conferred upon him, that this determined
his office; he no longer answering the description of the commission:
but now[s] it is provided, that notwithstanding a new title of
dignity, the justice on whom it is conferred shall still continue a
justice.
[Footnote p: Stat. 1 Ann. c. 8.]
[Footnote q: Lamb. 67.]
[Footnote r: Stat. 1 Mar. st. 1. c. 8.]
[Footnote s: Stat. 1 Edw. VI. c. 7.]
THE power, office, and duty of a justice of the peace depend on his
commission, and on the several statutes, which have created objects of
his jurisdiction. His commission, first, empowers him singly to
conserve the peace; and thereby gives him all the power of the antient
conservators at the common law, in suppressing riots and affrays, in
taking securities for the peace, and in apprehending and committing
felons and other inferior criminals. It also empowers any two or more
of them to hear and determine all felonies and other offences; which
is the ground of their jurisdiction at sessions, of which more will be
said in it's proper place. And as to the powers given to one, two, or
more justices by the several statutes, that from time to time have
heaped upon them such an infinite variety of business, that few care
to undertake, and fewer understand, the office; they are such and of
so great importance to the public, that the country is greatly obliged
to any worthy magistrate, that without sinister views of his own will
engage in this troublesome service. And therefore, if a well meaning
justice makes any undesigned slip in his practice, great lenity and
indulgence is shewn to him in the courts of law; and there are many
statutes made to protect him in the upright discharge of his
office[t]: which, among other privileges, prohibit such justices from
being sued for any oversights without notice beforehand; and stop all
suits begun, on tender made of sufficient amends. But, on the other
hand, any malicious or tyrannical abuse of their office is sure to be
severely punished; and all persons who recover a verdict against a
justice, for any wilful or malicious injury, are entitled to double
costs.
[Footnote t: Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c.
44.]
IT is impossible upon our present plan to enter minutely into the
particulars of the accumulated authority, thus committed to the charge
of these magistrates. I must therefore refer myself at present to such
subsequent parts of these commentaries, as will in their turns
comprize almost every object of the justices' jurisdiction: and in the
mean time recommend to the student the perusal of Mr Lambard's
_eirenarcha_, and Dr Burn's _justice of the peace_; wherein he will
find every thing relative to this subject, both in antient and modern
practice, collected with great care and accuracy, and disposed in a
most clear and judicious method.
I SHALL next consider some officers of lower rank than those which
have gone before, and of more confined jurisdiction; but still such as
are universally in use through every part of the kingdom.
IV. FOURTHLY, then, of the constable. The word constable is frequently
said to be derived from the Saxon, koning-staple, and to signify the
support of the king. But, as we borrowed the name as well as the
office of constable from the French, I am rather inclined to deduce
it, with sir H. Spelman and Dr Cowel, from that language, wherein it
is plainly derived from the Latin _comes stabuli_, an officer well
known in the empire; so called because, like the great constable of
France, as well as the lord high constable of England, he was to
regulate all matters of chivalry, tilts, turnaments, and feats of
arms, which were performed on horseback. This great office of lord
high constable hath been disused in England, except only upon great
and solemn occasions, as the king's coronation and the like, ever
since the attainder of Stafford duke of Buckingham under king Henry
VIII; as in France it was suppressed about a century after by an edict
of Louis XIII[u]: but from his office, says Lambard[w], this lower
constableship was at first drawn and fetched, and is as it were a very
finger of that hand. For the statute of Winchester[x], which first
appoints them, directs that, for the better keeping of the peace, two
constables in every hundred and franchise shall inspect all matters
relating to _arms_ and _armour_.
[Footnote u: Philips's life of Pole. ii. 111.]
[Footnote w: of constables, 5.]
[Footnote x: 13 Edw. I. c. 6.]