last century, we must acknowledge these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of Great Britain should maintain, with an income in any degree less than what is now established by parliament.

*This finishes our inquiries into the fiscal prerogatives of the king, or [*334] his revenue, both ordinary and extraordinary. We have therefore now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the king's majesty, considered in his several capacities and points of view. But, before we entirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. And we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century past; from the petition of right in 3 Car. I, to the present time. So that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of King James the First; particularly by the abolition of the star chamber and high commission courts in the reign of Charles the First, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince; by the disuse of forest laws for a century past; and by the many excellent provisions enacted under Charles the Second, especially the abolition of military tenures, purveyance, and pre-emption, the habeas corpus act and the act to prevent the discontinuance of parliaments for above three years; and since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries liberal and independent; and by restraining the king's pardon from obstructing parliamentary impeachments. Besides all this, if we consider how the crown is impoverished and stripped of all ancient revenues, so that it must greatly rely on the liberality of parliament for its necessary support and maintenance, we may perhaps be led to think that the balance is inclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left to form that check upon the lords and commons which the founders of our constitution intended.

*But on the other hand, it is to be considered that every prince, in the [*335] first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. This restores to him that constitutional independence which at his first accession seems, it must be owned, to be wanting. And then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an English monarch is now in no danger of being overborne by either the nobility or the people. The instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections, but they are not the weaker upon that account. In short, our national debt and taxes (besides the inconveniences before mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government as we cannot think was intended by our patriot ancestors, who gloriously struggled for the abolition of the then formidable parts of the prerogative, and, by an unaccountable want of foresight, established this system in their stead. The entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers created by and removable at the royal pleasure, that they have extended the influence of government to every corner of the nation. Witness the commissioners and the multitude of dependents on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the post-masters, and their

servants, planted in every town, and upon every public road: the commissioners of the stamps, and their distributors, which are full as scattered, and full as numerous; the officers of the salt duty, which, though a species of excise, and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land-tax; the managers of lotteries, (33) and the commissioners of hack. ney coaches; all of which are either mediately or immediately appointed by the crown, and removable at pleasure, without any reason assigned: [*336] these, it requires but little penetration to see, must give that power on which they depend for subsistence an influence most amazingly extensive. To this may be added the frequent opportunities of conferring particular obligation, by preference in loans, subscriptions, tickets, remittances, and other money transactions, which will greatly increase this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. All this is the natural, though perhaps the unforseen, consequence of erecting our funds of credit, and to support them, establishing our present perpetual taxes: the whole of which is entirely new since the restoration in 1660, and by far the greatest part since the revolution in 1688. And the same may be said with regard to the officers in our numerous army, and the places which the army has created. All which put together give the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative.

But, though this profusion of offices should have no affect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force of a disciplined army: paid indeed ultimately by the people, but immediately by the crown: raised by the crown, officered by the crown, commanded by the crown. They are kept on foot, it is true, only from year to year, and that by the power of parliament; but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. And there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people; a trust that is more than equivalent to a thousand little troublesome prerogatives.

Add to all this, that, besides the civil list, the immense revenue of almost seven millions sterling which is annually paid to the creditors of the public, or carried to the sinking *fund, is first deposited in the royal exchequer, and [*337] thence issued out to the respective offices of payment. This revenue the people can never refuse to raise, because it is made perpetual by act of parliament; which also, when well considered, will appear to be a trust of great delicacy and high importance.

Upon the whole, therefore, I think it is clear, that whatever may have become of the nominal, the real power of the crown has not been too far weakened by any transactions in the last century. Much is indeed given up; but much is also acquired. The stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. When, indeed by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well-planned and national militia, will suffer our formidable army to be thinned and regulated; and when, in consequence of all, our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But till that shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with its authority; to be loyal, yet free; obedient, and

(33) Lotteries are now abolished.

yet independent; and, above every thing, to hope that we may long, very long. continue to be governed by a sovereign who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of Britain; hath already in more than one instance remarkably strengthened its outworks; and will, therefore, never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty.

CHAPTER IX.

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 inquire 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 [*339] 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 inquire 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 reme genera, the reeve, 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.

(b) 1 Leon. 73. 2 Leon. 175. Comb. 143. 5 Mod. 84. Salk. 347. Carth. 291.

(a) Ch. ii. p. 146.
(c) Dalton of Sheriffs, c. 1.

Sheriffs were formerly chosen by the inhabitants of the several counties. In confirmation of which it was ordained by statute 28 Edw. I. c. 8, that the people should have election of sheriffs in every shire where the shrievalty is not of inheritance. For anciently in some counties the sheriffs were hereditary; as I apprehend they were in Scotland till the statute 20 Geo. II, c. 43; and still continue in the county of Westmoreland to this day; *the city of London having also the inheritance of the shrievalty of Middlesex [*340] 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 choose such as would not be a burden 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 choose 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 the 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 incolæ 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 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, 23 Hen. VI, c. 8, and 21 Hen. VIII, c. 20, the chancellor, treasurer, president of the king's council, chief justices, and chief baron are to make this election; and that on the morrow of All Souls in the exchequer. And the king's letters patent, appointing the new sheriffs, used commonly to bear date the 6th day of November. (g) The statute of Cambridge, 12 Ric. II, c. 2, ordains, that the chancellor, treasurer, keeper of the privy seal, steward of the king's house, the king's chamberlain, clerk of the rolls, the justices of the one bench and the other, barons of the exchequer, and all other that shall be called to ordain, name, or make justices of the peace, sheriffs, and other officers of the king, shall be sworn to act indifferently, and to appoint no man that sueth either privily or openly to be put in office, but such only as they shall judge to be the best and most sufficient. And the custom now is (and has been at least *ever [*341] since the time of Fortescue, (h) who was chief justice and chancellor to Henry the Sixth) that all the judges, together with the other great officers and privy counsellors, meet in the exchequer on the morrow of All Souls yearly, (which day is now altered to the Morrow of St. Martin by the last act for abbreviating Michaelmas term,) and then and there the judges propose three persons, to be reported (if approved of) to the king, who afterwards appoints one of them to be sheriff. (1)

This custom, of the twelve judges proposing three persons, seems borrowed from the Gothic constitution before mentioned; with this difference, that among the (d) 3 Rep. 72. (e) Montesq. Sp. L. b. 2. c. 2. (ƒ) Stiernh. de jure Goth. l. 1, c. 3. (g) Stat. 12 Edw. IV, c. 1.

(h) De L. L. c. 21.

(1) The following is the present mode of appointing the sheriffs: On the morrow of St. Martin, (12 Nov.) the lord chancellor, first lord of the treasury and chancellor of the exchequer, and the judges of the superior courts of the common law, meet in the exchequer chamber, the chan cellor of the exchequer presiding. The judges then report the names of three fit persons in each county, and of these the first on the list is chosen, unless he assigns good reasons for exemp tion. The list thus made is again considered at a meeting of the cabinet held on the morrow of purification, (3 Feb.,) at the president of the council's, and attended by the clerks of the council, when the excuses of the parties nominated are again examined, and the names are finally determined on for approval of the queen, who, at a meeting of the privy council, pierces the parchment with a punch opposite the name of the person selected for each county; and hence has arisen the expression of "pricking the sheriffs." The judges annually add to their lists the requisite number, by inserting those recommended by the retiring sheriff.

In Westmoreland the office of sheriff is hereditary in the family of the Earl of Thanet.

Goths the twelve nominors were first elected by the people themselves. And this usage of ours at its 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 direction of all the statutes before mentioned. 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, (i) he transcribed from the council book of 3 March, 34 Henry VI, and which is in substance as follows. The king had of his own authority appointed a man sheriff of Linconshire, 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; (2) (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 entreated 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, [*342] and the statute 34 and 35 Hen. VIII, c. 26, § 61, which expressly recog nizes this to be the law of the land, some of our writers (j) have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. This is grounded on a very particular case in the fifth year of Queen Elizabeth, when, by reason of the plague, there was no Michaelmas term kept at Westminster; so that the judges could not meet there in crastino animarum to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list. (k) And this case, thus circumstanced, is the only anthority 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. However, it must be acknowledged, that the practice of occasionally naming what are called pocket-sheriffs, by the sole authority of the crown, hath uniformly continued to the reign of his present majesty; in which, I believe, few, (if any) compulsory instances have occurred. (3)

(i) 2 Inst. 559.

(j) Jenkins, 229.

(k) Dyer, 225.

(2) [In The King v. Woodrow, 2 T. R. 731, an information was granted against a person so refusing, and the reason assigned was, "because the vacancy of the office occasioned a stop of public justice." It should also seem, that indictment would properly have lain, but that the information was granted because the year would be nearly expired before the indictment could be tried.]

(3) [When the king appoints a person sheriff who is not one of the three nominated in the exchequer, he is called a pocket-sheriff. It is probable, that no compulsory instance of the appointment of a pocket-sheriff ever occurred; and the unanimous opinion of the judges, preserved in the record cited by the learned commentator from 2 Inst. 559, precludes the possibility of such a case. Formerly, if a person refused to take upon him the office of sheriff, he was punished in the star-chamber; but now, if he refuses to take the office, or the oaths, or officiates as sheriff before he has qualified himself, he may be proceeded against by information in the king's bench: Carth. 307; 3 Lev. 116; 2 Mod. 300; Dyer, 167; and this though he was excommunicated, whereby he cannot take the test to qualify himself; 2 Mod. 300: or was not qualified by taking the sacrament within a year preceding. Vide 4 Mod. 269; Salk. 167. 1 Ld. Raym. 29. 2 Vent. 248.]

The sacramental test is no longer required. Stat. 31 and 32 Vic. c. 72.