men among themselves, in each separate division or community, are subverted, the arm of the executive government must be strengthened, that it may be enabled to rule the whole in one mass, and on an uniform system. That such a change would be in the end highly detrimental to public and individual liberty requires no proof.

Agreeably to these principles, the executive government of every county is vested in the sheriff, who ought to be, and usually is, a person of condition and estate residing there; the administrative part is entrusted to the justices of the peace, including all the principal persons within the province, who also (as we have seen) exercise a criminal jurisdiction; the queen's peace is kept by constables elected by the people; and the administration of each parish is committed to churchwardens, vestries, overseers of the poor, and surveyors of high roads, for the most part appointed by the same popular method.

The cities, boroughs, and considerable towns of the realm, as they afford peculiar facilities for self-government, and differ materially from the agrarian districts, have an independent and peculiar constitution. They clearly require a government sufficiently vigorous to maintain peace and good order among the mass of citizens that inhabit them, and adapted to the many wants incident to their peculiar nature; but if they were placed under the immediate power of the executive, their public liberty would be at an end. Our public law has therefore wisely constructed their municipal constitutions on a very popular model. They are, in truth, little municipal republics, electing their own magistrates, and managing their municipal affairs by means of deliberative assemblies, by virtue of their charters and of acts of the legislature.

But the authority of all these magistrates and officers,

whether in counties or towns, emanates equally from the crown; and the jurisdiction of the superior courts of law, especially the court of queen's bench, overshadows the whole system, keeping all her majesty's subjects within the limits defined by their allegiance to her person and dignity, and their obedience to the law of the land.

But of these institutions we must now take a more detailed view. And, first, of the magistrates and officers by whom the county and its subdivisions are governed.

The most important of these is the sheriff, an officer, according to Blackstone, "of very great antiquity in this kingdom, his name being derived from two Saxon words, scire gerefa, the reve, 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; reserving to themselves the honour, but the labour was laid on the sheriff."? Thus the sheriff is entrusted with all the queen's business in the county; and though bearing the title of rice-comes, he is a perfectly independent officer, the queen committing to the sheriff (formerly by letters patent, but now by warrant), and to him alone, the custody of the county.

The inhabitants of the several counties formerly chose the sheriffs; a privilege which was confirmed by stat. 28 Ed. I. c. viii.; but in some counties the sheriffs were hereditary, as they still continue in the county of Westmorland; the city of London having also the inheritance

1 Dalton of Sheriffs, c i.

2 Blackst. Com. b. i. c. ix.

3 Stat. 3 and 4 Wm. IV. c. xcix. § 3. The form of the royal warrant is given in the schedule to the act.

of the shrievalty of Middlesex vested in their body by charter. Those popular elections growing tumultuous were put an end to by the statute 9 Ed. III. c. vii., which enacted that the sheriffs should from thenceforward be assigned by the chancellor, treasurer, and the judges; but these provisions were altered by subsequent statutes. By statute 14 Ed. III. c. vii., 23 Hen. VI. c. vii., and 21 Hen. VIII. c. xx., 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. The statute of Cambridge, 12 Rich. II. c. ii., 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 openly or privily to be put in office, but such only as they shall judge to be the best and most sufficient. "And the custom," as Blackstone informs us, "now is, and has been at least ever since the time of Fortescue3 (who was chief justice and chancellor to Henry VI.), that all the judges, together with the other great officers and privy councillors, meet in the exchequer on the morrow of All Souls yearly (which day is now altered to the morrow of St, Martin by the stat. 24 Geo. II. c. xlviii.), and then and there the judges propose three persons to be reported, if

13 Rep. 72. The two sheriffs of the city of London are jointly the sheriff of Middlesex. They are elected by the liverymen of London.

2 Stat. 12 Ed. IV. c. i.

3 Fortesc. de Laud. Leg. Angl. c. xxiv.

approved of, to the sovereign, who afterwards appoints one of them to be sheriff." And where the appointment is legal, and there is no sufficient excuse, it is a misdemeanour to refuse to serve.2

Blackstone acknowledges that the practice of occasionally naming what are called pocket-sheriffs,--that is to say, a person not one of the three nominated in the exchequer, --by the sole authority of the crown, had uniformly continued to the reign of king George III. But our great commentator holds that the only authority for making these extraordinary sheriffs (contrary to an unanimous opinion of all the judges, in the 34th of Henry VI.3) is a case in the reign of queen Elizabeth, where the queen named the sheriffs, the judges being prevented by reason of the plague from meeting in crastio animarum to nominate them; and he remarks that the opinion of the reporter in that case, which supports the legality of the proceeding in question, is grounded on the doctrine of

1 Blackst. Com. b. i. c ix. p. 339–341.

2 Rex v. Woodrow, 2 Term. Rep. 731. By stat. 2 and 3 Vict. officers of the militia are no longer exempt from serving the office of sheriff, except those who were employed in actual service in the militia before the end of the war, in 1815.

3 Coke cites this record in his 2d Inst. 559. The two chief justices, sir John Fortescue (the celebrated writer) and sir John Prisot, delivered the unanimous opinion of the judges, "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,"&c. &c. The validity of the acts of these illegally appointed sheriffs, which seems not to be disputed, is a curious instance of the application of the rule, fieri non debuit, sed factum valet; and will probably remind the reader of the famous law, Barbarius Philippus, and the comment of Gothofredius thereon. See the same principle in Margate Pier Comp. v. Hannam, 3 B. & A. 266.

4 Dyer, 225.

non obstante, which sets the prerogative above the laws, and was effectually demolished by the bill of rights at the revolution. Yet it has been held by some of our writers,' notwithstanding the opinion of the judges above referred to, and the statute 34 and 35 Hen. VIII. c. xxvi. s. 61,

1 See Jenkins, 229, where that judge grounds his opinion upon the argument that the statute 9 Ed. II. is only affirmative, and therefore does not prevent the king from making sheriffs without the assembly of the judges and as to the distinction between affirmative and negative words in this respect, see Hawkins, P. C. b. ii. c. ii. § 6, and c. xxvii. § 53, and c. iv. § 10. But Jenkins cites no authority. The words in the text, it has been held by some of our writers, are Blackstone's. Dyer, 225, cites Hobart, 146, and 2 Keble, 281. Hobart gives three cases: a case of non obstante; the case of queen Eliz. in Dyer, already mentioned in the text; and another case, also in Dyer, where the commission of trial of piracy, under the statute 28 Hen. VIII. c. xiii., was held good by all the judges except Catleyn and Weston, though the commissioners were not nominated by the chancellor, as the statute appoints. (Dyer, 211.) And Hobart says, that the statutes in those cases, and the like, were made to ease the sovereign of labour, and not to deprive him of power. In the case of the commission of trial of piracy, Catleyn (chief just.) and Weston (just.) dissented on the ground that the statute, being a penal statute, must be adhered to strictly. Keble cites all these cases from Dyer, and distinctly puts them upon the prerogative doctrine of dispensations. But the arguments of Jenkins and Hobart seem distinguishable from that doctrine; for they are grounded on the supposed intention of the law to provide a mode of appointing sheriffs, without thereby excluding another method of doing the same thing. In the case of the commission for trial of piracies, it is argued that the commission is good without the nomination of the chancellor, because the issuing commissions is a ministerial and not a judicial act. But it would seem that the distinction is in this respect without a difference, because the law intended that a discretionary power of nominating fit persons should be vested in the chancellor. And so, if the law expressly entrusts to certain persons the important power of nominating fit persons for sheriffs, under the sanction of an oath, it is difficult to argue that it may equally be exercised by the ministers of the crown, to whom that power is not so entrusted, and who are bound by no such oath.