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CHAPTER THE NINTH.
OF SUBORDINATE MAGISTRATES.
IN a former chapter of thefe commentariesa we diftinguifhed magiftrates into two kinds; fupreme, or thofe in whom the fovereign power of the ftate refides; and fubordinate, or thofe who act in an inferior fecondary fphere. We have hitherto confidered the former kind inly, namely, the fupreme legiflative power or parliament, and the fupreme exceutive power, which is the king: and are now to enquire into the rights and duties of the principal fubordinate magiftrates.
AND herein we are not to inveftigate the powers and duties of his majefty's great officers of ftate, the lord treafurer, lord chamberlain, the principal fecretaries, or the like; becaufe I do not know that they are in that capacity in any confiderable degree the objects of our laws, or have any very important fhare of magiftracy conferred upon them: except that the fecretaries of ftate are allowed the power of commitment, in order to bring offenders to trialb. Neither fhall I here treat of the office and authority of the lord chancellor, or the other judges of the fuperior courts of juftice; becaufe they will find a more proper place in the third part of thefe commentaries. Nor fhall I enter into any minute difquifitions, with regard to the rights and dignities of
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a ch. 2. pag. 142.
b 1 I. con. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.
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mayors
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mayors and aldermen, or other magiftrates of particular corporations; becaufe thefe are mere private and ftrictly municipal rights, depending entirely upon the domeftic conftitution of their refpective franchifes. But the magiftrates and officers, whofe rights and duties it will be proper in this chapter to confider, are fuch as are generally in ufe and have a jurifdiction and authority difperfedly throughout the kingdom: which are, principally, fheriffs; coroners; juftices of the peace; conftables; furveyors of highways; and overfeers of the poor. In treating of all which I fhall enquire into, firft, their antiquity and original; next, the manner in which they are appointed and may be removed; and, laftly, their rights and duties. And firft of fheriffs.
I. THE fheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, fhire reeve, the bailiff or officer of the fhire. He is called is Latin vice-comes, as being the deputy of the earl or comes; to whom the cuftody of the fhire is faid to have been committed at the firft divifion of this kingdom into counties. But the earls in procefs of time, by reafon of their high employments and attendance on the king's perfon, not being able to tranfact the bufinefs of the county, were delivered of that burdenc; referving to themfelves the honour, but the labour was laid on the fheriff. So that now the fheriff does all the king's bufinefs in the county; and though he be ftill called vice-comes, yet he is entirely independent of, and not fubject to the earl; the king by his letters patent committing cuftodiam comitatus to the fheriff, and him alone.
SHERIFFS were formerly chofen by the inhabitants of the feveral counties. In confirmation of which it was ordained by ftatute 28 Edw. I. c. 8. that the people fhould have election of fheriffs in every fhire, where the fhrievalty is not of inheritance. For antiently in fome counties, particularly on the borders, the fheriffs were hereditary; as I apprehend they are in Scotland, and in the county of Weftmorland, to this day: and the city of Lon-
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c Dalton of fheriffs, c. I.
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don
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don has alfo the inheritance of the fhrievalty of Middlefex vefted in their body by charterd. The reafon of thefe popular elections is affigned in the fame ftatute, c. 13. “that the commons might chufe fuch as would not be a burthen to them”. And herein appears plainly a ftrong trace of the democratical part of our conftitution; in which form of government it is an indifpenfable requifite, that the people fhould chufe their own magiftratese. This election was in all probability not abfolutely vefted in the commons, but required the royal approbation. For in the Gothic conftitution, the judges of their county courts (which office is executed by our fheriff) were elected by the people, but confirmed by the king: and the form of their election was thus managed; the people, or incolae territorii, chofe twelve electors, and they nominated three perfons, ex quibus rex unum confirmabatf. But, with us in England, thefe popular elections, growing tumultuous, were put an end to by the ftatute 9 Edw. II. ft. 2. which enacted, that the fheriffs fhould from thenceforth be affigned by the lord chancellor, treafurer, and the judges; as being perfons in whom the fame truft might with confidence be repofed. By ftatutes 14 Edw. III. c. 7. and 23 Hen. VI. c. 8. the chancellor, treafurer, chief juftices, and chief baron, are to make this election; and that on the morrow of All Souls in the exchequer. But the cuftom now is (and has been at leaft ever fince the time of Fortefcueg, who was chief juftice and chancellor to Henry the fixth) 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 perfons to the king, who afterwards appoints one of them to be fheriff. This cuftom, of the twelve judges nominating three perfons, feems borrowed form the Gothic conftitution beforementioned; with this difference, that among the Goths the twelve nominors were firft elected by the people themfelves. And this ufage of ours at it's firft introduction, I am apt to believe,
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d 3 Rep. 72.
e Montefq. Sp. L. b. 2. c. 2.
f Stiernhook de jure Gorb. l. I. c. 3.
g de L. L. c. 24.
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S f was
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was founded upon fome ftatute, though not now to be found among our printed laws: firft, becaufe it is materially different from the directions of all the ftatutes beforementioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortefcue would have inferted in his book, unlefs by the authority of fome ftatute: and alfo, becaufe a ftatute is expreffly referred to in the record, which fir Edward Coke tells ush he tranfcribed from the council book of 3 Mar. 34 Hen. VI. and which is in fubftance as follows. The king had of his own authority appointed a man fheriff of Lincolnfhire, which office he refufed to take upon him: whereupon the opinions of the judges were taken, what fhould be done in this behalf. And the two chief juftices, fir John Fortefcue and fir John Prifot, delivered the unanimous opinion of them all; “that the king did an error when he made a perfon fheriff, that was not chofen and prefented to him according to the ftatute; that the perfon refufing was liable to no fine for difobedience, as if he had been one of the three perfons chofen according to the tenor of the ftatute; that they would advife the king to have recourfe 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 efchew fuch inconveniences, the order of the ftatute in this behalf made be obferved.” But, notwithftanding this unanimous refolution of all the judges of England, thus entered in the council book, fome of our writersi have affirmed, that the king, by his prerogative, may name whom he pleafes to be fheriff, 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 Weftminfter; fo that the judges could not meet there in craftino Animarum to nominate the fheriffs: whereupon the queen named them herfelf, without fuch previous affembly, appointing for the moft part one of the two remaining in the laft year's liftk. And this cafe, thus circum-
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h 2 Inft. 559.
i Jenkins. 229.
k Dyer 225.
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ftanced, is the only precedent in our books for the making thefe 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 obftante aliquo ftatuto in contrarium: but the doctrine of non obftante's, which fets the prerogative above the laws, was effectually demolifhed by the bill of rights at the revolution, and abdicated Weftminfter-hall when king James abdicated the kingdom. So that fheriffs cannot now be legally appointed, otherwife than according to the known and eftablifhed law.
SHERIFFS, by virtue of feveral old ftatutes, are to continue in their office no longer than one year; and yet it hath been faidl that a fheriff may be appointed durante bene placito, or during the king's pleafure; and fo is the form of the royal writm. Therefore, till a new fheriff be named, his office cannot be determined, unlefs by his own death, or the demife of the king; in which laft cafe it was ufual for the fucceffor to fend a new writ to the old fheriffn: but now by ftatute I Ann. ft. c. 8. all officers appointed by the preceding king may hold their officers for fix months after the king's demife, unlefs fooner difplaced by the fucceffor. We may farther obferve, that by ftatute I Ric. II. c. II. no man, that has ferved the office of fheriff for one year, can be compelled to ferve the fame again within three years after.
WE fhall find it is of the utmoft importance to have the fheriff appointed according to law, when we confider his power and duty. Thefe are either as a judge, as the keeper of the king's peace, as a minifterial officer of the fuperior courts of juftice, 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 ti's proper place: and he has alfo judicial power in divers
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l 4 Rep. 32.
m Dalt. of fheriffs. 8.
n Dalt. 7.
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S f 2
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other civil cafeso. He is likewife to decide the elections of knights of the fire, (fubject to the houfe of commons) of coroners, and of verderors; to judge of the qualification of voters, and to return fuch as he fhall determine to be duly elected.
As the keeper of the king's peace, both by common law and fpecial commiffion, he is the firft man in the county, and fuperior in rank to any nobleman therein, during his officep. 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, purfue and take all traitors, murderers, felons, and other mifdoers, and commit them to gaol for fafe cuftody. He is alfo to defend his county againft any of the king's enemies when they come into the land: and for this purpofe, 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 countyq: which fummons every perfon above fifteen years old, and under the degree of a peer, is bound to attend upon warningr, under pain of fine and imprifonments. But though the fheriff is thus the principal confervator of the peace in his county, yet, by the exprefs directions of the great chartert, he, together with the conftable, 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 fhould be alfo the judges; fhould impofe, as well as levy, fines and amercements; fhould one day condemn a man to death, and perfonally execute him the next. Neither may he act as an ordinary juftice of the peace during the time of his officeu: for this would be equally inconfiftent; he being in many refpects the fervant of the juftices.
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o Dalt. c. 4.
p I Roll. Rep. 237.
q Dalt. c. 95.
r Lamb. Eiren. 315.
s Stat. 2 Hen V. c. 8.
t cap. 17.
u Stat. I Mar. ft. 2. c. 8.
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IN his minifterial 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 arreft, and to take bail; when the caufe 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 alfo arrefts and imprifons, he returns the jury, he has the cuftody of the delinquent, and he executes the fentence of the court, though it extend to death itfelf.
As the king's bailiff, it is his bufinefs to preferve the rights of the king within his bailiwick; for fo his county is frequently called in the writs: a word introduced by the princes of the Norman line; in imitation of the French, whofe territory is divided into bailiwicks, as that of England into countiesw. He muft feife to the king's ufe all lands devolved to the crown by attainder or efcheat; muft levy all fines and forfeitures; muft feife and keep all waifs, wrecks, eftrays, and the like, unlefs they be granted to fome fubject; and muft alfo collect the king's rents within his bailiwick, if commanded by procefs from the exchequerx.
To execute thefe various offices, the fheriff has under him many inferior officers; an under-fheriff, bailiffs, and gaolers; who muft neither buy, fell, nor farm their offices, on forfeiture of 5000 l. y
THE under-fheriff ufually performs all the duties of the office; a very few only excepted, where the perfonal prefence of the high-fheriff is neceffary. But no under-fheriff fhall abide in his office above one yearz; and if he does, by ftatute 23 Hen. VI. c. 8. he forfeits 200 l. a very large penalty in thofe early days. And no under-fheriff or fheriff's officer fhall practice as an attor-
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w Fortefc. de L. L. c. 24.
u Dalt. c. 9.
y Stat. 3. Geo. I. c. 15.
z Stat. 42 Edw. III. c. 9.
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ney, during the time he continues in fuch officea: for this would be a great inlet to partiality and oppreffion. But thefe falutary regulations are fhamefully evaded, by practifing in the names of other attorneys, and putting in fham deputies by way of nominal under-fheriffs: by reafon of which, fays Daltonb, the under-fheriffs and bailiffs do grow fo cunning in their feveral places, that they are able to deceive, and it may be well feared that many of them do deceive, both the king, the high-fheriff, and the county.
BAILIFFS, or fheriff's officers, are either bailiffs of hundreds, or fpecial bailiffs. Bailiffs of hundreds are officers appointed over thofe refpective diftricts by the fheriffs, to collect fines therein; to fummon juries; to attend the judges and juftices at the affifes, and quarter feffions; and alfo to execute writs and procefs in the feveral hundreds. But, as thefe are generally plain men, and not thoroughly fkilful in this latter part of their office, that of ferving writs, and making arrefts and executions, it is now ufual to join fpecial bailiffs with them; who are generally mean perfons employed by the fheriffs on account only of their adroitnefs and dexterity in hunting and feifing their prey. The fheriff being anfwerable for the mifdemefnors of thefe bailiffs, they are therefore ufually 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 alfo the fervants of the fheriff, and he muft be refponfible for their conduct. Their bufinefs is to keep fafely all fuch perfons as are committed to them by lawful warrant: and, if they fuffer any fuch to efcape, the fheriff fhall anfwer it to the king, if it be a criminal matter; or, in a civil cafe, to the party injuredc. And to this end the fheriff muftd have lands fufficient within the county to anfwer the king and his people.
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a Stat. I Hen. V. c. 4.
b of fheriffs, c. 115.
c Dalt. c. 118. 4 Rep. 34.
d Stat. 13 & 14 Car. II. c. 21.
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The abufes of goalers and fheriff's officers toward the unfortunate perfons in their cuftody are well reftrained and guarded againft by ftatute 32 Geo. II. c. 28.
THE vaft expenfe, which cuftom had introduced in ferving the office of high-fheriff, was grown fuch a burthen to the fubject, that it was enacted, by ftatute 13 & 14 Car. II. c. 21. that no fheriff fhould keep any table at the affifes, except for his own family, or give any prefents to the judges or their fervants, or have more than forty men in livery; yet, for the fake of fafety and decence, he may not have lefs than twenty men in England and twelve in Wales; upon forfeiture, in any of thefe cafes, of 200 l.
II. THE coroner's is alfo a very antient office at the common law. He is called coroner, coronator, becaufe he hath principally to do with pleas of the crown, or fuch wherein the king is more immediately concernede. And in this light the lord chief juftice of the king's bench is the principal coroner in the kingdom, and may (if he pleafes) exercife the jurifdiction of a coroner in any part of the realmf. But there are alfo particular coroners for every county of England; ufually four, but fometimes fix, and fometimes fewerg. This officerh is of equal antiquity with the fheriff; and was ordained together with him to keep the peace, when the earls gave up the wardfhip of the county.
HE is ftill chofen by all the freeholders in the county court, as by the policy of our antient laws the fheriffs, and confervators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the peoplei; and as verderors or the forefts ftill are, whofe bufinefs it is to ftand between the prerogative and the fubject in the execution of the foreft laws. For this purpofe there is a writ at common law de coronatore cli-
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d 2 Inft. 31. 4 Inft. 271.
f 4 Rep. 57.
g F. N. B. 163.
h Mirror, c. I. §. 3.
i 2 Inft. 558.
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gendok: in which it is expreffly commanded the fheriff, “quod talem eligi faciat, qui melius et fciat, et velit, et poffit, officio illi intendere.” And, in order to effect this the more furely, it was enacted by the ftatute of Weftm. Il, that none but lawful and difcreet knights fhould be chofen. But it feems it is now fufficient if a man have lands enough to be made a knight, whether he be really knighted or notm: and there was an inftance in the 5 Edw. III. of a man being removed from this office, becaufe he was only a merchantn. The coroner ought alfo to have eftate fufficient to maintain the dignity of his office, and anfwer any fines that may be fet upon him for his mifbehaviouro: and if he have not enough to anfwer, his fine fhall be levyed on the county, as a punifhment for electing an infufficient officerp. Now indeed, through the culpable neglect of gentlemen of property, this office has been fuffered to fall into difrepute, and get into low and indigent hands: fo that, althouth formerly no coroner would condefcend to be paid for ferving his country, and they were by the aforefaid ftatute of Weftm. I. expreffly forbidden to take a reward, under pain of great forfeiture to the king; yet for many years paft they have only defired to be chofen for the fake of their perquifites; being allowed fees for their attendance by the ftatute 3 Hen. VII. c. I. which fir Edward Coke complains of heavilyq; though they have fince his time been much enlargedr.
THE coroner is chofen for life: but may be removed, either by being made fheriff, or chofen verderor, which are offices incompatible with the other; or by the king's writ de coronatore exonerando, for a caufe to be therein affigned, as that he is engaged in other bufinefs, is incapacitated by years or ficknefs, hath not a fufficient eftate in the county, or lives in an inconvenient part of its. And by the ftatute 25 Geo. II. c. 29. extortion, neglect, or mifbehaviour, are alfo made caufes of removal.
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k F. N. B. 163.
l 3Edw. I. c. 10.
m F. N. B. 163, 164.
n 2 Inft. 32.
o F. N. B. 163, 164.
p Mirr. c. I. §. 3. 2 Inft. 175.
q 2 Inft. 210.
r Stat. 25 Geo. II. c. 29.
s F. N. B. 163, 164.
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THE office and power of a coroner are alfo, like thofe of a fheriff, either judicial or minifterial; but proncipally judicial. This is in great meafure afcertained by ftatute 4 Edw. I. de officio coronatoris; and confifts, firft, in enquiring (when any perfon is flain or dies fuddenly) concerning the manner of his death. And this muft be “fuper vifum corporist;” for, if the body be not found, the coroner cannot fitu. He muft alfo fit at the very place where the death happend; and his enquiry is made by a jury from four, five or fix of the neighbouring towns, over whome he is to prefind. If any be found guilty by this inqueft of murder, he is to commit to prifon for further trial, and is alfo to enquire comcerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he muft enquire whether any deodand has accrued to the king, or the lord of the franchife, by this death: and muft certify the whole of this inquifition to the court of king's bench, or the next affifes. Another branch of his office is to enquire concerning fhipwrecks; and certify whether wreck or not, and who is in poffeffion of the goods. Concerning treafure trove, he is alfo to enquire who were the finders, and where it is, and whether any one be fufpected of having found and concealed a treafure; “and that may be well perceived (faith the old ftatute of Edw. I.) where one liveth riotoufly, haunting taverns, and hath done fo of long time:” whereupon he might be attached, and held fo bail, upon this fufpicion only.
THE minifterial office of the coroner is only as the fheriff's fubftitute. For when juft exception can be taken to the fheriff, for fufpicion of partiality, (as that he is interefted in the fuit, or of kindred to either plaintiff or defendant) the procefs muft then be awarded to the coroner, inftead of the fheriff, for execution of the king's writsw.
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t 4 Inft. 271.
u Thus, in the Gothic conftitution, before any fine was payable by the neighbourhood, for the fiaughter of a man therein, “de corpore delieti conftare oportebat; i. e. non tam fuiffe aliquem in territorio ifte mortuum inventum, quam vulneratum et caefum, Poteft enim homo etiam ex alia caufa fubito mori.” Stiernhook de jure Gothor, l.3.c.4.
w 4 Inft. 271.
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Tt
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III. THE next fpecies of fubordinate magiftrates, whom I am to confider, are juftices of the peace; the principal of whom is the cuftos rotulorum, or keeper of the records of the county. The common law hath ever had a fpecial care and regard for the confervation of the peace; for peace is the very end and foundation of civil fociety. And therefore, before the prefent conftitution of juftices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. Of thefe fome had, and ftill have, this power annexed to other offices which they hold; others had it merely by itfelf, and were thence named cuftodes or confervatores pacis. Thofe that were fo virtute officii ftill continue; but the latter fort are fuperfeded by the modern juftices.
THE kings majeftyx is, by his office and dignity royal, the principal confervator of the peace within all his dominions; and may give authority to any other to fee the peace kept, and to punifh fuch as break it: hence it is ufually called the king's peace. The lord chancellor or keeper, the lord treafurer, the lord high fteward of England, the lord marefchal, and lord high conftable of England (when any fuch officers are in being) and all the juftices of the court if king's bench (by virtue of their offices) and the mafter of the rolls (by prefcription) are general confervators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep ity: the other judges are only fo in their own courts. The corone is alfo a confervator of the peace within his own countyz; as is alfo the fheriffa; and both of them may take a recognizance or fecurity for the peace. Conftables, tythingmen, and the like, are alfo confervators of the peace within their own jurifdictions; and may apprehend all breakers of the peace, and commit them till they find fureties for their keeping it b.
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x Lambard. Eirenarch. 12.
y Lamb. 12.
z Britton. 3.
a F. N. B. 81.
b Lamb. 14.
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THOSE that were, without any office, fimply and merely confervators of the peace, were chofen by the freeholders in full county court before the fheriff; the writ for their election directing them to be chofen “de probioribus et melioribus in comitatu fuo in cuftodes pacisc.” But when queen Ifabel, the wife of Edward II, had contrived to depofe her hufband by a forced refignation of the crown, and had fet up his fon Edward III in his place; this, being a thing then without example in England, it was feared would much alarm the people; efpecially as the old king was living, though hurried about from caftle to caftle; till at laft he met with an untimely death. To prevent therefore any rifings, or other difturbance of the peace, the new king fent writs to all the fheriffs in England, the form of which is preferved by Thomas Walfinghamd, giving a plaufible account of the manner of his obtaining the crown; to wit, that it was done ipfius patris beneplacito: and withal commanding each fheriff that the peace be kept throughout his bailiwick, on pain and peril of difinheritance and lofs of life and limb. And in a few weeks after the date of thefe writs, it was ordained in parliamente, 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, fhould be affigned to keep the peace. And in this manner, and upon this occafion, was the election of the confervators of the peace taken from the people, and given to the kingf; this affignment being conftrued to be by the king's commiffiong. But ftill they were called only confervators, wardens, or keepers of the peace, till the ftatute 34 Edw. III. c. I. gave them the power of trying felonies; and then they acquired the more honorable appellation of jufticesh.
.{FS}
c Lamb. 16.
d Hift. A. D. 1327.
e Stat. I Edw. III. c. 16.
f Lamb. 20.
g Stat. 4 Edw. III. c. 2. and 18 Edw. III. ft. 2. c. 2.
h Lamb. 23.
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T t 2
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THESE juftices are appointed by the king's fpecial commiffion under the great feal, the form of which was fettled by all the judges, A. D. 1590i. This appoints them allk, jointly and feverally, to keep the peace, and any two or more of them to enquire of and determine felonies, and other mifdemefnos: in which number fome particular juftices, or one of them, are directed to be always included, and no bufinefs to be done without their prefence; the words of the commiffion running thus, “quorum aliquem veftrum, A. B. C. D. &c. unum effe volumus;” whence the perfons fo named are ufally called juftices of the quorum. And formerly it was cuftomary to appoint only a felect number of juftices, eminent for their fkill and difcretion, to be of the quorum; but now the practice is to advance almoft all of them to that dignity, naming them all over again in the quorum claufe, except perhaps only fome one inconfiderable perfon for the fake of propriety: and no exception is now allowable, for not expreffing in the form of warrants, &c, that the juftice who iffued them is of the quouuml.
TOUCHING the number and qualifications of thefe juftices; it was ordained by ftatute 18 Edw. III. c. 2. that two, or these, of the beft reputation in each county fhall be affigned to be keepers of the peace. But thefe being found rather too few for that purpofe, it was provided by ftatute 34 Edw. III. c. I. that one lord, and three, or four, of the moft worthy men in the county, with fome learned in the law, fhall be made juftices in every county. But afterwards the number of juftices, though the ambition of private perfons, became fo large, that it was thought neceffary by ftatute 12 Rec. II. c. 10. and 14 Rec. II. c. 11. to reftrain them at firft to fix, and afterwards to eight only. But this rule is now difregarded, and the caufe feems to be (as Lambard obferved long agom) that the growing number of ftatute
.{FS}
i Lamb. 43.
k See the form itfelf, Lamb. 35. Burn. tit. Juffices, §. 2.
l Stat. 26 Geo. II. c. 27.
m Lamb. 34.
.{FE}
laws,
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Laws, committed from time to time to the charge of juftices of the peace, have occafioned alfo (and very reafonably) their encreafe to a larger number. And, as to their qualifications, the ftatutes juft cited direct them to be of the beft reputation, and moft worthy men in the county: and the ftatute 13 Ric. II. c. 10. orders them to be of the moft fufficient knights, efquires, and gentlemen of the law. Alfo by ftatute 2 Hen. V. ft. I. c. 4. and ft. 2. c. I. they muft be refident in their feveral counties. And becaufe, contrary to thefe ftatutes, men of fmall fubftance had crept into the commiffion, whofe poverty made them both covetous and contemptible, it was enacted by ftatute 18 Hen. VI. c. 11. that no juftice fhould be put in commiffion, if he had not lands to the value of 20 l. per annum. And, the rate of money being greatly altered fince that time, it is now enacted by ftatute 5 Geo. II. c. II. that every juftice, except as is therein excepted, fhall have 100 l. per annum clear of all deductions; and, if he acts without fuch qualification, he fhall forfeit 100 l. whichn is almoft an equivalent to the 20 l. per annum required in Henry the fixth's time: and of this qualificationo the juftice muft now make oath. Alfo it is provided by the act 5 Geo. II. that no practifing attorney, folicitor, or proctor, fhall be capable of acting as a juftice of the peace.
As the office of thefe juftices is conferred by the king, fo it fubfifts only during his pleafure; and is determinable, I. By the demife of the crown; that is, in fix months afterp. 2. By exprefs writ under the great fealq, difcharging any particular perfon from being any longer juftice. 3. By fuperfeding the commiffion by writ of fuper fedeas, which fufpends the power of all the juftices, but does not totally deftroy it; feeing it may be revived again by another writ, called a procedendo. 4. By a new commiffion, which virtually, though filently, difcharges all the former juftices that are not included therein; for two commiffions
.{FS}
n See bifhop Fleetwood's calculations in his chronicon pretiofum.
o Stat. 18 Geo. II. c. 20.
p Stat. I Ann. c. 8.
q Lamb. 67.
.{FE}
cannot
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Ch. 9.
Cannot fubfift at once. 5. By acceffion of the office of fheriff or coronerr. Formerly it was thought, that if a man was named in any commiffion of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer anfwering the defcription of the commiffion: but nows it is provided, that notwithftanding a new title of dignity, the juftice on whom it is conferred fhall ftill continue a juftice.
THE power, office, and duty of a juftice of the peace depend on his commiffion, and on the feveral ftatutes, which have created objects of his jurifdiction. His commiffion, firft, empowers him fingly to conferve the peace; and thereby gives him all the power of the antient confervators at the common law, in fuppreffing riots and affrays, in taking fecurities for the peace, and in apprehending and committing felons and other inferior criminals. It alfo empowers any two or more of them to hear and determine all felonies and other offences; which is the ground of their jurifdiction at feffions, of which more will be faid in it's proper place. And as to the powers given to one, two, or more juftices by the feveral ftatutes, that from time to time have heaped upon them fuch an infinite variety of bufinefs, that few care to undertake, and fewer underftand, the office; they are fuch and of fo great importance to the public, that the country is greatly obliged to any worthy magiftrate, that without finifter views of his own will engage in this troublefome fervice. And therefore, if a well meaning juftice makes any undefigned flip in his practice, great lenity and indulgence is fhewn to him in the courts of law; and there are many ftatutes made to protect him in the upright difcharge of his officet: which, among other privileges, prohibit fuch juftices from being fued for any overfights without notice beforehand; and ftop all fuits begun, on tender made of fufficient amends. But, on the other hand, any malicious or tyrannical abufe of their office is fure to be feverely punifhed; and all perfons who recover a verdict againft a juftice, for any wilful or malicious injury, are entitled to double cofts.
.{FS}
r Stat. I Mar. ft. I. c. 8.
s Stat. I Edw. VI. c. 7.
t Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c. 44.
.{FE}
IT
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IT is impoffible upon our prefent plan to enter minutely into the particulars of the accumulated aughority, thus committed to the charge of thefe magiftrates. I muft therefore refer myfelf at prefent to fuch fubfequent parts of thefe commentaries, as will in their turns comprize almoft every object of the juftices' jurifdiction: and in the mean time recommend to the ftudent the perufal of Mr Lambard's eirenarcba, and Dr Burn's juftice of the peace; wherein he will find every thing relative to this fubject, both in antient and modern practice, collected with great care and accuracy, and difpofed in a moft clear and judicious method.
ISHALL next confider fome officers of lower rank than thofe which have gone before, and of more confined jurifdiction; but ftill fuch as are univerfally in ufe through every part of the kingdom.
IV. FOURTHLY, then, of the conftable. The word conftable is frequently faid to be derived from the Saxon, koning-ftaple, and to fignify the fupport of the king. But, as we borrowed the name as well as the office of conftable from the french, I am rather inclined to deduce it, with fir H. Spelman and Dr Cowel, from that language, wherein it is plainly derived from the Latin comes ftabuli, an officer well known in the empire; fo called becaufe, like the great conftable of France, as well as the lord high conftable of England, he was to regulate all matters of chivalry, tilts, turnaments, and feats of arms, which were performed on horfeback. This great office of lord high conftable hath been fifufed in England, except only upon great and folemn occafions, as the king's coronation and the like, ever fince the attainder of Stafford duke of Buckingham under king Hemy VIII; as in France it was fuppreffed about a century after by an edict of Louis XIIIu: but from his office, fays Lambardw, this lower conftablefhip was at firft drawn and fetched, and is as it were a very finger of that hand. For the ftatute of Winchefterx, which
.{FS}
u philips's life of pole. ii. III.
w of conftables, 5.
x 13 Edw. I. c. 6.
.{FE}
firft
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firft appoints them, for the better keeping of the peace, two conftables in every hundred and franchife fhall infpect all matters relating to arms and armour.
CONSTABLES are of two forts, high conftables, and petty conftables. The former were firft ordained by the ftatute of Winchefter, as before-mentioned; and are appointed at the court leets of the franchife or hundred over which they prefide, or, in default of that, by the juftices at their quarter feffions; and are removeable by the fame authority that appoints themy. The petty conftables are inferior officers in every town and parifh, fubordinate to the high conftable of the hundred, firft inftituted about the reign of Edward IIIz. Thefe petty conftables have two offices united in them; the one antient, the other modern. Their antient office is that of headborough, tithing-man, or borfholder; of whom we formerly fpokea, and who are as antient as the time of the king Alfred: their more modern office is that of conftable merely; which was appointed (as was obferved) fo lately as the reign of edward III, in order to affift the high conftableb. And in general the antient headboroughs, tithing-men, and borfholders, were made ufe of to ferve as petty conftables; though not fo generally, but that in many places they ftill continue diftinct officers from the conftable. They are all chofen by the jury at the court leet; or, if no court leet be held, are appointed by two juftices of the peacec.
THE general duty of all conftables, both high and petty, as well as of the other officers, is to keep the king's peace in their feveral diftricts; and to that purpofe they are armed with very large powers, of arrefting, and imprifoning, of breaking open houfes, and the like: of the extent of which powers, confidering what manner of men are for the moft part put upon thefe offices, it is perhaps very well that they are generally kept in
.{FS}
y Salk. 150.
z Spelm. Gloff. 148.
a pag. 110.
b Lamb. 9.
c Stat. 14 & 15 Car. II. c. 12.
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ignorance.
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ignorance. One of their principal duties, arifing from the ftatute of Winchefter, which appoints them, is to keep watch and ward in their refpective jurifdictions. Ward, guard, or cuftodia, is chiefly intended of the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the difcretion of the juftices of the peace and the conftabled, the hundred being however anfwerable for all robberies committed therein, by day light, for having kept negligent guard. Watch is properly applicable to the night only, (being called among our Teutonic anceftors wacbt or wactae) and it begins at the time when ward ends, and ends when that begins; for, by the ftatute of Winchefter, in walled towns the gates fhall be clofed from funfetting to funrifing, and watch fhall be kept in every borough and town, efpecially in the fummer feafon, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themfelves. The conftable may appoint watchmen at his difcretion, regulated by the cuftom of the place; and thefe, being his deputies, have for the time being the authority of theri principal. But, with regard to the infinite number of other minute duties, that are laid upon conftables by a diverfity of ftatutes, I muft again refer to Mr Lambard and Dr Burn; in whofe compilations may be alfo feen, what duties belong to the conftable or tything-man indifferently, and what to the conftable only: for the conftable may do whatever the tything-man may; but it does not hold e converfo; for the tithing-man has not an equal power with the conftable.
V. WE are next to confider the furveyors of the highways. Every parifh is bound of common right to keep the high roads, that go through it, in good and fufficient repair; unlefs by reafon of the tenure of lands, or otherwife, this care is configned to fome particular private perfon. From this burthen no man was exempt by our antient laws, whatever other immnuities hemight enjoy: this being part of the trinoda neceffitas, to which every
.{FS}
d Dalt. juft. c. 104.
e Excubias et explorationes quas avactas vocant. Capitular. Hludovic. pii. cap. I. A. D. 815.
{FE}
U u
man's
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man's eftate was fubject; viz. expeditio contra boftem, arcium conftructio, et pontium reparatio: for, though the reparation of bridges only is expreffed, yet that of roads alfo muft be underftood; as in the Roman law, ad inftructiones reparationefque itinerum et pontium, nullum genus bominum, nulliufque dignitatis ac venerationis meritis, ceffare oportetf. And indeed now, for the moft part, the care of the roads only feems to be left to parifhes; that of bridges being in great meafure devolved upon the county at large, by ftatute 22 Hen. VIII. c. 5. If the parifh neglected thefe repairs, they might formerly, as they may ftill, be indicted for fuch their neglect: but it was not then incumbent on any particular office to call the parifh together, and fet them upon this work; for which reafon by the ftatute 2 & 3 ph. & M. c. 8. furveyors of the highways were ordered to be chofen in every parifhg.
THESE furveyors were originally, according to the ftatute of Philip and Mary, to be appointed by the conftable and churchwardens of the parifh; but nowh they are conftituted by two neithbouring juftices, out of fuch fubftantial inhabitants as have either 10 l. per annum of their own, or rent 30 l. a year, or are worth in perfonal eftate 100 l.
THESE office and duty confifts in putting in execution a variety of ftatutes for the repairs of the highways; that is, of ways leading from one town to another: by which it is enacted, I. That they may remove all annovances in the highways, or give notice to the owner to remove them; who is liable to penalties on noncompliance. 2. They are to call together all the inhabitants of the parifh, fix days in every year, to labour in repairing the highways; all perfons keeping draughts, or occupying lands,
.{FS}
f C. II. 74. 4.
g This office, Mr Dalton ( juft. cap. 50.) fays, exactly anfwers that of the curatores viarum of the Romans: but, I fhoud guefs that theirs was an office of rather more dignity and authority than ours, not only from comparing the method of making and mending the Roman ways with thofe of our country parifhes; but alfo becaufe one Thermus, who was the curator of the Flaminian way, was candidate for the confulfhip with Julius Caefar. (Cic. ad Attic. l. I. cp. I.)
h Stat. 3 W. & M. c. 12.
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being
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being obliged to fend a team for every draught, and for every 50 l. a year, which they keep or occupy; and all other perfons to work or find a labourer. The work muft be completed before harveft; as well for providing a good road for carrying in the corn, as alfo becaufe all hands are then fuppofed to be employed in harveft work. And every cartway muft be made eight feet wide at the leafti; and may be increafed by the quarter feffions to the breadth of four and twenty feet. 3. The furveyors may lay out their own money in purchafing materials for repairs, where there is not fufficient within the parifh, and fhall be reimburfed by a rate, to be allowed at a fpecial feffions. 4. In cafe the perfonal labour of the parifh be not fufficient, the furveyors, with the confent of the quarter feffions, may levy a rate (not exceeding 6 d. in the pound) on the parifh, in aid of the perfonal duty; for the due application of which they are to account upon oath. As for turnpikes, which are now univerfally introduced in aid of fuch rates, and the law relating to them, depend entirely on the particular powers granted in the feveral road acts, and therefore have nothing to do with this compendium of general law.
VI. I PROCEED therefore, laftly, to confider the overfeers of the poor; their original, appointment, and duty.
THE poor of England, till the time of Henry VIII, fubfifted entirely upon private benevolence, and the charity of welldifpofed chriftians. For, though it appears by the mirrourk, that by the common law the poor were to be “fuftained by parfons, rectors of the church, and the parifhioners; fo that none of them dye for default of fuftenance;” and though by the ftatutes 12 Ric. II. c. 7. and 19 Hen. VII. c. 12. the poor are directed to be fuftained in the cities or towns wherein they were born, or fuch wherein they had dwelt for three years (which feem to be the firft rudiments of parifh fettlements ) yet till the ftatute 27 Hen. VIII. c. 26.
.{FS}
i This, by the laws of the twelve tables at Rome, was the ftandard for roads that were ftraight; but, in winding ways, the breadth was directed to be fixteen feet. Ff. 8. 3. 8.
k c. I. §. 3.
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U u 2
I find
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I find no compulfory method chalked out for this purpofe: but the poor feem to have been left to fuch relief as the humanity of their neighbours would afford them. The monafteries were, in particular, their principal refource; and, among other bad effects which attended the monaftic inftitutions, it was not perhaps one of the leaft (though frequently efteemed quite otherwife) that they fupported and fed a very numerous and very idle poor, whofe fuftenance depended upon what was daily diftributed in alms at the gates of the religious houfes. But, upon the total diffolution of thefe, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickley felt throughout the kingdom: and abundance of ftatutes were made in the reign of king Henry the eighth, for providing for the poor and impotent; which, the preambles to fome of them recite, had of late years ftrangely increafd. Thefe poor were principally of two forts: fick and impotent, and therefore unable to work; idle and fturdy, and therefore able, but not willing, to exercife any honeft employment. To provide in fome meafure for both of thefe, in and about the metropolis, his fon Edward the fixth founded three royal hofpitals; Chrift's, and St. Thomas's, for the relief of the impotent through infancy or ficknefs; and Bridewell for the punifhment and employment of the vigorous and idle. But thefe were far from being fufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitlefs experiments, by ftatute 43 Eliz. c. 2. overfeers of the poor were appointed in every parifh.
BY virtue of the ftatute laft mentioned, thefe overfeers are to be nominated yearly in Eafter-week, or within one month after, by two juftices dwelling near the parifh. They muft be fubftantial houfeholders, and fo expreffed to be in the appointment of the jufticesl.
THEIR office and duty, according to the fame ftatute, are principally thefe: firft, to raife competent fums for the neceffary
.{FS}
l 2 Lord Raym. 1394.
.{FE}
relief
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relief of the poor, impotent, old, blind, and fuch other, being poor and not able to work: and, fecondly, to provide work for fuch as are able and cannot otherwife get employment: but this latter part of their duty, which, according to the wife regulations of that falutary ftatute, fhould go hand in hand with the other, is now moft fhamefully neglected. However, for thefe joint purpofes, they are empowered to make and levy rates upon the feveral inhabitants of the parifh, by the fame act of parliament; which has been farther explained and enforced by feveral fubfequent ftatutes.
THE two great objects of this ftatute feem to have been, I. To relieve the impotent poor, and them only. 2. To find employment for fuch as are able to work: and this principally by providing ftocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common work-houfe; a practice which tends to deftroy all domeftic connexions (the only felicity of the honeft and induftrious labourer) and to put the fober and diligent upon a level, in point of their earnings, with thofe who are diffolute and idle. Whereas, if none were to be relieved but thofe who are incapable to get their livings, and that in proportion to their parents, but fuch as are brought up in rags and idlenefs; and if every poor man and his family were employed whenever they requefted it, and were allowed the whole profits of their labour; --- a fpirit of chearful induftry would foon diffufe itfelf through every cottage; work would become eafy and habitual, when abfolutely neceffary to their daily fubfiftence; and the moft indigent peafant would go through his tafk withour a murmur, if affured that he and his childred (when incapable of work through infancy, age, or infirmity) would then, and then only, be intitled to fupport form his opulent neighbours.
THIS appears to have been the plan of the ftatute of queen Elizabeth; in which the only defect was confining the management of the poor to fmall, parochial, diftricts; which are fre-
quently
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quently incapable of furnifhing proper work, or providing an able director. However, the laborious poor were then at liberty to feek employment wherever it was to be had; none being obliged to refide in the places of their fettlement, but fuch as were unable or unwilling to work; and thofe places of fettlement being only fuch where they were born, or had made their abode, originally for three yearsm, and afterwards (in the cafe of vagabonds) for one year onlyn.
AFTER the reftoration, a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the fubdivifion of parifhes; has greatly increafed their number, by confining them all to their refpective diftricts; has given birth to the intricacy of our poor-laws, by multiplying and rendering more eafy the methods of gaining fettlements; and, in confequence, has created an infinity of expenfive lawfuits between contending neighbourhoods, concerning thofe fettlements and removals. By the ftatute 13 & 14 Car. II. c. 12. a legal fettlement was declared to be gained by birth, inhabitancy, apprenticefhip, or fervice for forty days; within which period all intruders were made removeable from any parifh by two juftices of the peace, unlefs they fettled in a tenement of the annual value of 10 l. The frauds, naturally confequent upon this provifion, which gave a fettlement by fo fhort a refidence, produced the ftatute I Jac. II. c. 17. which directed notice in writing to be delivered to the parifh officers, before a fettlement could be gained by fuch refidence. Subfequent provifions allowed other circumftances of notoriety to be equivalent to fuch notice given; and thofe circumftances have from time to time been altered, enlarged, or reftrained, whenever the experience of new inconveniences, arifing daily from new regulations, fuggefted the neceffity of a remedy. And the doctrine of certificates was invented, by way of counterpoife, to reftrain a man and his family from acquiring a new fettlement by any length of refidence whatever, unlefs in two particular excepted cafes; which makes parifhes very
.{FS}
m Stat. 19 Hen. VII. c. 12. I Edw. VI. c. 3. 3 Edw. VI. c. 16. 14 Eliz. c. 5.
n Stat. 39 Eliz. c. 4.
.{FE}
cautious
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cautious of giving fuch certificates, and of courfe confines the poor at home, where frequently employment can be had.
THE law of fettlements may be therefore now reduced to the following general heads; or, a fettlement in a parifh may be acquired, I. By birth; which is always prima facie the place of fettlement, until fome other can be fhewno. This is alfo always the place of fettlement of a baftard child; for a baftard, having in the eye of the law no father, cannot be referred to his fettlement, as other children mayp. But, in legitimate children, though the place of birth be prima facie the fettlement, yet it is not conclufively fo; foe there are, 2. Settlements by parentage, being the fettlement of one's father or mother: all children being really fettled in the parifh where their parents are fettled, until they get a new fettlement for themfelvesq. A new fettlement may be acquired feveral ways; as 3. By marriage. For a woman, marrying a man that is fettled in another parifh, changes her own: the law not permitting the feparation of hufband and wifer. But if the man be a foreigner, and has no fettlement, her's is fufpended during his life, if he be able to maintain her; but after his death fhe may return again to her old fettlements. The other methods of acquiring fettlements in any parifh are all reducible to this one, of forty days refidence therein: but this forty days refidence (which is conftrued to be lodging or lying there) muft not be by fraud, or ftealth, or in any clandeftine manner; but accompanied with one or other of the following concomitant circumftances. The next method therefore of gaining a fettlement, is, 4. By forty days refidence, and notice. For if a ftranger comes into a parifh, and delivers notice in writing of his place of abode, and number of his family, to one of the overfeers ( which muft be read in the church and regiftered) and refides there unmolefted for forty days after fuch notice, he is legally fettled therebyt. For the law prefumes that fuch a one
.{FS}
o I Lord Raym. 567.
p Salk. 427.
q Salk. 528. 2 Iord Raym, 1473.
r Stra. 544.
s Foley. 249.
t Stat. 13 & 14 Car. II. c. 12. I Jac. II. c. 17. 3 & 4 W. & M. c. II.
.{FE}
at
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at the time of notice is not likely to become chargeable, elfe he would not venture to give it; or that, in fuch cafe, the parifh would take care to remove him. But there are alfo other circumftances equivalent to fuch notice: therefore, 5. Renting for a year altenement of the yearl value of ten pounds, and refiding forty days in the parifh, gains a fettlement without noticeu; upon the principle of having fubftance enough to gain credit for fuch a houfe. 6. Being charged to and paying the public taxes and levies of the parifh; and, 7. Executing any public parochial office for a whole year in the parifh, as churchwarden, &c; are both of them equivalent to notice, and gain a fettlementw, when coupled with a refidence of forty days. 8. Being hired for a year, when unmarried, and ferving a year in the fame fervice; and 9. Being bound an apprentice for feven years; give the fervant and apprentice a fettlement, without noticex, in that place wherein they ferve the laft forty days. This is meant to encourage application to trades, and going out to reputable fervices. 10. Laftly, the having an eftate of one's own, and refiding thereon forty days, however fmall the value may be, in cafe it be acquired by act of law or of a third perfon, as by defcent, gift, devife, &c, is a fufficient fettlementy: but if a man acquire it by his own act, as by purchafe, (in it's popular fenfe, in confideration of money paid) thenz unlefs the confideration advanced, bona fide, be 30 l. it is no fettlement for any longer time, than the perfon fhall inhabit thereon. He is in no cafe removeable from his own property; but he fhall not, by any trifling or fraudulent purchafe of his own, acquire a permanent and lafting fettlement.
ALL perfons, not fo fettled, may be removed to their own parifhes, on complaint of the overfeers, by two juftices of the peace, if they fhall adjudge them likely to become chargeable to the parifh, into which they have intruded: unlefs they are in a way of getting a legal-fettlement, as by having hired a houfe of
.{FS}
u Stat. 13 & 14 Car. II. c. 12.
w Stat. 3 & 4 W. & M. c. 11.
x Stat. 3 & 4 W. & M. c. 11. 8 & 9 W. III. c. 10. and 31 Geo. II. c. II.
y Salk. 524.
z Stat. 9 Geo. I. c. 7.
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10 l.
.P 353
The RIGHTS of PERSONS.
BOOK I.
Ch. 9.
10 l. per annum, or living in an annual fervice; for then they are not removeable a. And in all other cafes, if the parifh to which they belong, will grant them a certificate, acknowleging them to be their parifhioners, they cannot be removed merely becaufe likely to become chargeable, but only when they become actually chargeableb. But fuch certificated perfons can gain no fettlement by any of the means above-mentioned; unlefs by renting a tenement of 10 l. per annum, or by ferving an annual office in the parifh, being legally placed therein: neither can an apprentice or fervant to fuch certificated perfon gain a fettement by fuch their fervicec.
THESE are the general heads of the laws relating to the poor which, by the refolutions of the courts of juftice thereon within a century paft, are branched into a great variety. And yet, notwithftanding the pains that has been taken about them, they ftill remain very imperfect, and inadequate to the purpofes they are defigned for: a fate, that has generally attended moft of our ftatute laws, where they have not the foundation of the common law to build on. When the fhires, the hundreds, and the tithings, were kept in the fame admirable order that they were difpofed in by the great Alfred, there were no perfons idle, confequently none but the impotent that needed relief: and the ftatute of 43 Eliz. feems entirely founded on the fame principle. But when this excellent fcheme was neglected and departed from, we cannot but obferve with concern, what miferable fhifts and lame expedients have from time to time been adopted, in order to patch up the flaws occafioned by this neglect. There is not a more neceffary or more certain maxim in the frame and conftitution of fociety, than that every individual muft contribute his fhare, in order to the well-being of the community: and furely they muft be very deficient in found policy, who fuffer one half of a parifh to continue idle, diffolute, and unemployed; and then form vifionary fchemes, and at length are amazed to find, that the induftry of the other half is not able to maintain the whole.
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a Salk. 472.
b Stat. 8 & 9 W. III. c. 30.
c Stat. 12 Ann. c. 18.
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