ing our funds of credit, and to fupport them establishing our prefent perpetual taxes: the whole of which is entirely new fince the restoration in 1660; and by far the greatest part fince the revolution in 1688. And the fame may be faid 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 fo perfuafive an energy with respect to the perfons themselves, and fo prevailing an interest with their friends and families, as will amply make amends for the lofs of external prerogative. - Bur, though this profufion of offices fhould have no effect on individuals, there is ftill another newly acquired branch of power; and that is, not the influence only, but the force of a difciplined army: paid indeed ultimately by the people, but immediately by the crown: raifed 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 muft, by the nature of our conftitution, if raised at all, be at the abfolute difpofal of the crown. And there need but few words to demonftrate how great a truft is thereby repofed in the prince by his people. A truft, that is more than equivalent to a thoufand little troublefome prerogatives. ADD to all this, that befides the civil lift, the immenfe -revenue of almoft feven millions fterling, which is annually paid to the creditors of the public, or carried to the finking 337] fund, is firft depofited in the royal exchequer, and thence ilued out to the refpective offices of payment. This revenue the people can never refufe to raife, because it is made perpe,tual by act of parliament: which alfo, when well confidered, will appear to be a truft 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 lift century. Much is indeed given up; but much is alfa acquired. The ftern commands of prerogative have yielded to the milder voice of influence: the flavifh and exploded doctrine of non-refiftance has given way to a military efta blishment blishment by law; and to the difufe of parliaments has fucceeded a parliamentary trust of an immense perpetual revenue. When, indeed, by the free operation of the finking fund, our national debts fhall be leffened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will fuffer our formidable army to be thinned and regulated; and when (in confequence of all) our taxes fhall be gradually reduced; this adventitious power of the crown will flowly and imperceptibly diminish, as it flowly and imperceptibly rofe. But, till that shall happen, it will be our efpecial duty, as good fubjects and good Englishmen, to reverence the crown, and yet guard against corrupt and fervile influence from those who are intrufted. with it's authority; to be loyal, yet free; obedient, and yet independent; and, above every thing, to hope that we may long, very long, continue to be governed by a fovereign, who, in all those public acts that have perfonally proceeded from himself, hath manifefted the highest veneration for the free conflitution of Britain; hath already in more than one inftance remarkably ftrengthened it's outworks; and will therefore never harbour a thought, or adopt a perfuafion, in any the remoteft degree detrimental to public liberty. OF IN CHAPTER THE ΝΙΝΤΗ. SUBORDINATE MAGISTRATES. a N a former chapter of these commentaries we diftinguished magiftrates into two kinds; fupreme, or those in whom the fovereign power of the ftate refides; and fubordinate, or those who act in an inferior fecondary sphere. We have hitherto confidered the former kind only; namely, the fupreme legislative power or parliament, and the fupreme executive power, which is the king; and are now to proa ch. 2. page 146. ceed [ 338 ] ceed to inquire into the rights and duties of the principal fubordinate magiftrates. 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 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 trial. Neither fhall I here treat of the office and authority of the lord chancellor, or the other judges of the fuperior courts of juftice; because 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 mayors and aldermen, or other magiftrates of particular corporations; because 339] thefe are mere private and strictly municipal rights, depending entirely upon the domestic conftitution of their respective franchifes. But the magiftrates and officers, whose 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 inquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and laftly, their rights and duties. And first of fheriffs, I. THE heriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, raine genera, the reeve, bailiff, or officer of the fhire. He is called in Latin vice-comes, as being the deputy of the earl or comes; to whom the cuftody of the shire is faid to have been committed at the first divifion of this kingdom into counties. But the earls in process of time, by reafon of their high employments and attendance on the king's person, by Leon. 70. 2 Leon. 175. Comb. 143. 5 Mod. 8. Salk. 347. Carth. 291. not not being able to transact the business of the county, were delivered of that burden; referving to themselves the honour, but the labour was laid on the fheriff. So that now the sheriff 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 subject 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 sheriffs in every fhire, when the fhrievalty is not of inheritance. For antiently in fome counties the fheriffs were hereditary; as I apprehend they were in Scotland till the ftatute 20 Geo.II. c. 43; and still continue in the county of Westmorland to this day (1): the city of London having also [ 340 ] the inheritance of the fhrievalty of Middlesex vested in their body by charter (2). The reafon of these popular elections is affigned in the fame ftatute, c. 13. " that the commons "might chufe fuch as would not be a burden to them." And herein appears plainly a ftrong trace of the democratical part of our conftitution; in which form of government d 13 Rep. 72. d c Dalton of fheriffs, c. 1. (1) The earl of Thanet is hereditary fheriff of Westmorland. This office may defcend to, and be executed by, a female; for "Ann countefs of Pembroke had the office of hereditary fheriff "of Weftmorland, and exercised it in perfon. At the affizes at "Appleby fhe fat with the judges on the bench." Harg. Co. Litt. 326. (2) The election of the fheriffs of London and Middlesex was granted to the citizens of London for ever in very ancient times, upon condition of their paying 300l. a year to the king's exchequer. In confequence of this grant, they have always elected two fheriffs, though thefe conftitute together but one officer; and if one die, the other cannot act till another is elected. (4 Bac. Abr. 447.) In the year 1748, the corporation of London made a byelaw, impofing a fine of 600 l. upon every perfon, who being elected, should refuse to serve the office of fheriff. See the cafe of Evans, efq. and the chamberlain of London, 2 Burn. E.L. 185. it is an indifpenfable requifite, that the people fhould chufe their own magiftrates. 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 the 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 chose twelve electors, and they nominated three perfons, ex quibus rex unum confirmabat1. 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 sheriffs fhould from thenceforth be affigned by the chancellor, treasurer, and the judges; as being perfons in whom the fame trust might with confidence be repofed. By ftatutes 14 Edw. III. c. 7. 23 Hen. VI. c. 8. and 21 Hen. VIII. c. 20. (3) the chancellor, treasurer, prefident of the king's council, chief juftices, 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, ufed commonly to bear date the fixth day of November . The ftatute of Cambridge, 12 Ric. II. c. 2. ordains, that the chancellor, treasurer, keeper of the privy feal, fteward of the king's house, the king's chamberlain, clerk of the rolls, the juftices of the one bench and the other, barons of the exchequer, and all other that fhall be called to ordain, name, or make juftices of the peace, Sheriffs, and other officers of the king, fhall be fworn to act indifferently, and to appoint no man that fueth either privily or openly to be put in office, but fuch only as they shall judge to be the best and most fufficient. And the custom 341 now is (and has been at least ever fince the time of Fortefcue, who was chief justice and chancellor to Henry the fixth) that all the judges, together with the other great officers and privy counfellors, meet in the exchequer on the e Montefq. Sp.L.b. 2. c. 2. 8 Stat. 12 Edw. IV. c. I. h de L. L. c. 24. (3) This laft ftatute, as is obferved by Mr. Wooddefon, 1 vol. 89. feems quite to a different purpose, morrow |