Friday, May 30, 2008

Blackstone ss35

"Section 35. Part 1 of Chapter 9 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 9, Part 1"

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.

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.

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.

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 Lon-
don 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 circum-
stanced, 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.

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.

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.

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 mis-*doers,
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.

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

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 500l.[y]

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 200l.[**missing ,?] a very large penalty in those early days.
And no under-sheriff or sheriff's officer shall practice as an attor-
ney, 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.

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[**typo for gaolers?] and sheriff's officers toward the unfortunate
persons in their custody are well restrained and guarded against by
statute 32 Geo. II. c. 28.

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

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.

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 eli-
gendo[k]: in which it is expressly commanded the sheriff, "quod
talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi
." 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].

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
, 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.
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
; 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.

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].

End of section 35