Commentaries on the Laws of England (Vol. 1 of 4), Book 1, Chapter 9
IN a former chapter of these commentaries1 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 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.2 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 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, 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;3 reserving to themselves the honor, but the labor 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 [custody of the county] 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 anciently 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 London has also the inheritance of the shrievalty of Middlesex vested in their body by charter.4 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.5 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 [territorial inhabitants], chose twelve electors, and they nominated three persons, ex quibus rex unum confirmabat6 [of whom the king confirmed one]. 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; and the king’s letters patent, appointing the new sheriffs, used commonly to bear date the sixth day of November.7 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 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 name no man that sues 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 since the time of Fortescue,8 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 form 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 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 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 us9 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 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, and the statute 34 & 35 Hen. VIII. c. 26. § 61. which expressly recognizes this to be the law of the land, some of our writers10 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 [on the morrow of All Souls] 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.11 And this case, thus circumstanced, 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 [notwithstanding any statute to the contrary]: 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. However, it must be acknowledged, that the practice of occasionally naming what are called pocket sheriffs, by the sole authority of the crown, has been uniformly continued to this day.
SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it has been said12 that a sheriff may be appointed durante bene placito, or during the king’s pleasure; and so is the form of the royal writ.13 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:14 but now by statute I Ann. St. c. 8. all officers appointed by the preceding king may hold their officers for six months after the king’s demise, unless sooner displaced by the successor. We may farther observe, that by statute I Ric. II. c. II. 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 its proper place: and he has also judicial power in diverse other civil cases.15 He is likewise to decide the elections of knights of the shire, (subject to 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.16 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 [officially] to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to jail 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:17 which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning,18 under pain of fine and imprisonment.19 But though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter,20 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 offense. 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:21 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.22 He must seize to the king’s use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seize 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 exchequer.23
To execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and jailers; who must neither buy, sell, nor farm their offices, on forfeiture of 5000£24
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;25 and if he does, by statute 23 Hen. VI. c. 8. he forfeits 200£ a very large penalty in those early days. And no under-sheriff or sheriff’s officer shall practice as an attorney, during the time he continues in such office:26 for this would be a great inlet to partiality and oppression. But these salutary regulations are shamefully evaded, by practicing in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs: by reason of which, says Dalton,27 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 assizes, and quarter sessions; and also to execute writs and process in the several hundreds. But, as these are generally plain men, and not thoroughly skillful 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 seizing their prey. The sheriff being answerable for the misdemeanors 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.
Jailers 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.28 And to this end the sheriff must29 have lands sufficient within the county to answer the king and his people. The abuses of jailers 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 burden to the subject, that it was enacted, by statute 13 & 14 Car. II. c. 21. that no sheriff should keep any table at the assizes, 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 decence, he may not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these cases, of 200£
II. THE coroner’s is also a very ancient office at the common law. He is called coroner, coronator, because he has principally to do with pleas of the crown, or such wherein the king is more immediately concerned.30 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.31 But there are also particular coroners for every county of England; usually four, but sometimes six, and sometimes fewer.32 This officer33 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 ancient 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;34 and as verderors or 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 eligendo35 [of choosing a coroner] in which it is expressly commanded the sheriff, “quod talem eligi faciat, qui melius et sciat, et velit, et possit officio illi intendere.” [“To cause one to be chosen who is best informed, and most willing and able to hold office.”] And, in order to effect this the more surely, it was enacted by the statute of Westm. I,36 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:37 and there was an instance in the 5 Edw. III. of a man being removed from this office, because he was only a merchant.38 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 misbehavior:39 and if he have not enough to answer, his fine shall be levied on the county, as a punishment for electing an insufficient officer.40 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. I. which Sir Edward Coke
complains of heavily;41 though they have since his time been much enlarged.42
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 exonerando [discharging the coroner], for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, has not a sufficient estate in the county, or lives in an inconvenient part of it.43 And by the statute 25 Geo. II. c. 29. extortion, neglect, or misbehavior, 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 coronatoris [the office of coroner]; and consists, first, in inquiring (when any person is slain or dies suddenly or in prison) concerning the manner of his death. And this must be “super visum corporis“44 [“in view of the body”] for, if the body be not found, the coroner cannot sit.45 He must also sit at the very place where the death happened; and his inquiry is made by a jury from four, five or six of the neighboring 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 inquire concerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he must inquire 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 assizes. Another branch of his office is to inquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. Concerning treasure trove, he is also to inquire 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 (says the old statute of Edw. I.) where one lives riotously, haunting taverns, and has done so of long time:” whereupon he might be attached, and held so 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.46
III. THE next species of subordinate magistrates, whom I am to consider, are justices of the peace; the principal of whom is the custos rotulorum, or keeper of the records of the county. The common law has ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. And therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. Of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named custodes [keepers] or conservatores pacis [keepers of the peace]. Those that were so virtute officii still continue; but the latter sort are superseded by the modern justices.
THE kings majesty47 is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is usually called the king’s peace. The lord chancellor or keeper, the lord treasurer, the lord high steward of England, the lord marshal, and lord high constable of England (when any such officers are in being) and all the justices of the court if king’s bench (by virtue of their offices) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it:48 the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county;49 as is also the sheriff;50 and both of them may take a recognizance or security for the peace. Constables, tithing-men, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it.51
THOSE that were, without any office, simply and merely conservators of the peace, either claim that power by prescription;52 or were bound to exercise it by the tenure of their lands;53 or, lastly, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen “de probioribus et potentioribus comitatus sui in custodes pacis.”54 [“From the most upright and powerful of their county as keepers of the peace.”] But when queen Isabel, the wife of Edward II, had contrived to depose her husband by a forced resignation of the crown, and had set up his son Edward III in his place; this, being a thing then without example in England, it was feared would much alarm the people; especially as the old king was living, though hurried about from castle to castle; till at last he met with an untimely death. To prevent therefore any risings, or other disturbance of the peace, the new king sent writs to all the sheriffs in England, the form of which is preserved by Thomas Walfingham,55 giving a plausible account of the manner of his obtaining the crown; to wit, that it was done ipsius patris beneplacito [by his father’s good pleasure]: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance and loss of life and limb. And in a few weeks after the date of these writs, it was ordained in parliament,56 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, should be assigned to keep the peace. And in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king;57 this assignment being construed to be by the king’s commission.58 But still they were called only conservators, wardens, or keepers of the peace, till the statute 34 Edw. III. c. I. gave them the power of trying felonies; and then they acquired the more honorable appellation of justices.59
THESE justices are appointed by the king’s special commission under the great seal, the form of which was settled by all the judges, A. D. 1590.60 This appoints them all,61 jointly and severally, to keep the peace, and any two or more of them to inquire of and determine felonies, and other misdemeanors: in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence; the words of the commission running thus, “quorum aliquem vestrum, A. B. C. D. &c. unum esse volumus” [“of whom we will that some one of you, A, B, C, D, etc, be one”]; whence the persons so named are usually called justices of the quorum. And formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the quorum; but now the practice is to advance almost all of them to that dignity, naming them all over again in the quorum clause, except perhaps only some one inconsiderable person for the sake of propriety: and no exception is now allowable, for not expressing in the form of warrants, etc, that the justice who issued them is of the quorum.62
TOUCHING the number and qualifications of these justices; it was ordained by statute 18 Edw. III. c. 2. that two, or these, of the best reputation in each county shall be assigned to be keepers of the peace. But these being found rather too few for that purpose, it was provided by statute 34 Edw. III. c. I. that one lord, and three, or four, of the most worthy men in the county, with some learned in the law, shall be made justices in every county. But afterwards the number of justices, though the ambition of private persons, became so large, that it was thought necessary by statute 12 Rec. II. c. 10. and 14 Rec. II. c. 11. to restrain them at first to six, and afterwards to eight only. But this rule is now disregarded, and the cause seems to be (as Lambard observed long ago63) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their increase to a larger number. And, as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county: and the statute 13 Ric. II. c. 10. orders them to be of the most sufficient knights, esquires, and gentlemen of the law. Also by statute 2 Hen. V. St. I. c. 4. and St. 2. c. I. they must be resident in their several counties. And because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute 18 Hen. VI. c. 11. that no justice should be put in commission, if he had not lands to the value of 20£ per annum. And, the rate of money being greatly altered since that time, it is now enacted by statute 5 Geo. II. c. II. that every justice, except as is therein excepted, shall have 100£ per annum clear of all deductions; and, if he acts without such qualification, he shall forfeit 100£ which64 is almost an equivalent to the 20£ per annum required in Henry the sixth’s time: and of this qualification65 the justice must now make oath. Also it is provided by the act 5 Geo. II. that no practicing attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace.
As the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, I. By the demise of the crown; that is, in six months after.66 2. By express writ under the great seal,67 discharging any particular person from being any longer justice. 3. By superseding the commission by writ of supersedeas, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a procedendo [proceeding]. 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner.68 Formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now69 it is provided, that notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice.
THE power, office, and duty of a justice of the peace depend on his commission, and on the several statutes, which have created objects of his jurisdiction. His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the ancient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more of them to hear and determine all felonies and other offenses; which is the ground of their jurisdiction at sessions, of which more will be said in its proper place. And as to the powers given to one, two, or more justices by the several statutes, that from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. And therefore, if a well meaning justice makes any undesigned slip in his practice, great lenity and indulgence is shown to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office:70 which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. But, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs.
IT is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. I must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprise almost every object of the justices’ jurisdiction: and in the mean time recommend to the student the perusal of Mr. Lambard’s Eirenarcha, and Dr Burn’s Justice of the Peace; wherein he will find everything relative to this subject, both in ancient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method.
I SHALL next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom.
IV. FOURTHLY, then, of the constable. The word constable is frequently said to be derived from the Saxon, koning-staple, and to signify the support of the king. But, as we borrowed the name as well as the office of constable from the french, I am rather inclined to deduce it, with Sir H. Spelman and Dr Cowel, from that language, wherein it is plainly derived from the Latin comes stabuli, an officer well known in the empire; so called because, like the great constable of France, as well as the lord high constable of England, he was to regulate all matters of chivalry, tilts, tournaments, and feats of arms, which were performed on horseback. This great office of lord high constable has been disused in England, except only upon great and solemn occasions, as the king’s coronation and the like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII; as in France it was suppressed about a century after by an edict of Louis XIII:71 but from his office, says Lambard,72 this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. For the statute of Winchester,73 which first appoints them, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to arms and armor.
CONSTABLES are of two sorts, high constables, and petty constables. The former were first ordained by the statute of Winchester, as before-mentioned; and are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removable by the same authority that appoints them.74 The petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of Edward III.75 These petty constables have two offices united in them; the one ancient, the other modern. Their ancient office is that of headborough, tithing-man, or borsholder; of whom we formerly spoke,76 and who are as ancient as the time of the king Alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of Edward III, in order to assist the high constable.77 And in general the ancient headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. They are all chosen by the jury at the court leet; or, if no court leet be held, are appointed by two justices of the peace.78
THE general duty of all constables, both high and petty, as well as of the other officers, is to keep the king’s peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. One of their principal duties, arising from the statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward, guard, or custodia, 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 discretion of the justices of the peace and the constable,79 the hundred being however answerable 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 ancestors wacht or wacta80) and it begins at the time when ward ends, and ends when that begins; for, by the statute of Winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. The constable may appoint watchmen at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. But, with regard to the infinite number of other minute duties, that are laid upon constables by a diversity of statutes, I must again refer to Mr. Lambard and Dr Burn; in whose compilations may be also seen, what duties belong to the constable or tithing-man indifferently, and what to the constable only: for the constable may do whatever the tithing-man may; but it does not hold e converso; for the tithing-man has not an equal power with the constable.
V. WE are next to consider the surveyors of the highways. Every parish is bound of common right to keep the high roads, that go through it, in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burden no man was exempt by our ancient laws, whatever other immunities he might enjoy: this being part of the trinoda necessitas [the threefold obligation], to which every man’s estate was subject; viz. expeditio contra hostem, arcium constructio, et pontium reparatio [going against the enemy, construction of towers and reparation of bridges]: for, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the Roman law, ad instructiones reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis mentis, cessare oportet.81 [With respect to the construction and repairing of ways and bridges no class of men of whatever rank or dignity should be exempted.] And indeed now, for the most part, the care of the roads only seems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by statute 22 Hen. VIII. c. 5. If the parish neglected these repairs, they might formerly, as they may still, be indicted for such their neglect: but it was not then incumbent on any particular office to call the parish together, and set them upon this work; for which reason by the statute 2 & 3 ph. & M. c. 8. surveyors of the highways were ordered to be chosen in every parish.82
THESE surveyors were originally, according to the statute of Philip and Mary, to be appointed by the constable and churchwardens of the parish; but now83 they are constituted by two neighboring justices, out of such substantial inhabitants as have either 10£ per annum of their own, or rent 30£ a year, or are worth in personal estate 100£.
THESE office and duty consists in putting in execution a variety of statutes for the repairs of the highways; that is, of ways leading from one town to another: by which it is enacted, 1. That they may remove all annoyances 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 parish, six days in every year, to labor in repairing the highways; all persons keeping drafts, or occupying lands, being obliged to send a team for every draft, and for every 50£ a year, which they keep or occupy; and all other persons to work or find a laborer. The work must be completed before harvest; as well for providing a good road for carrying in the corn, as also because all hands are then supposed to be employed in harvest work. And every cartway must be made eight feet wide at the least;84 and may be increased by the quarter sessions to the breadth of four and twenty feet. 3. The surveyors may lay out their own money in purchasing materials for repairs, where there is not sufficient within the parish, and shall be reimbursed by a rate, to be allowed at a special sessions. 4. In case the personal labor of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate (not exceeding 6 d. in the pound) on the parish, in aid of the personal duty; for the due application of which they are to account upon oath. As for turnpikes, which are now universally introduced in aid of such rates, and the law relating to them, depend entirely on the particular powers granted in the several road acts, and therefore have nothing to do with this compendium of general law.
VI. I PROCEED therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty.
THE poor of England, till the time of Henry VIII, subsisted entirely upon private benevolence, and the charity of well disposed Christians. For, though it appears by the mirrour,85 that by the common law the poor were to be “sustained by parsons, rectors of the church, and the parishioners; so that none of them dye for default of sustenance;” and though by the statutes 12 Ric. II. c. 7. and 19 Hen. VII. c. 12. the poor are directed to be sustained in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seem to be the first rudiments of parish settlements) yet till the statute 27 Hen. VIII. c. 26. I find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbors would afford them. The monasteries were, in particular, their principal resource; and, among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. But, upon the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of king Henry the eighth, for providing for the poor and impotent; which, the preambles to some of them recite, had of late years strangely increased. These poor were principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise any honest employment. To provide in some measure for both of these, in and about the metropolis, his son Edward the sixth founded three royal hospitals; Christ’s, and St. Thomas’s, for the relief of the impotent through infancy or sickness; and Bridewell for the punishment and employment of the vigorous and idle. But these were far from being sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitless experiments, by statute 43 Eliz. c. 2. overseers of the poor were appointed in every parish.
BY virtue of the statute last mentioned, these overseers are to be nominated yearly in Easter-week, or within one month after (though a subsequent nomination will be valid),86 by two justices dwelling near the parish. They must be substantial householders, and so expressed to be in the appointment of the justices.87
THEIR office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work: and, secondly, to provide work for such as are able and cannot otherwise get employment: but this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. However, for these joint purposes, they are empowered to make and levy rates upon the several inhabitants of the parish, by the same act of parliament; which has been farther explained and enforced by several subsequent statutes.
THE two great objects of this statute seem to have been, 1. To relieve the impotent poor, and them only. 2. To find employment for such as are able to work: and this principally by providing stocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common work-house; a practice which tends to destroy all domestic connections (the only felicity of the honest and industrious laborer) and to put the sober and diligent upon a level, in point of their earnings, with those who are dissolute and idle. Whereas, if none were to be relieved but those who are incapable to get their livings, and that in proportion to their parents, but such as are brought up in rags and idleness; and if every poor man and his family were employed whenever they requested it, and were allowed the whole profits of their labor; a spirit of cheerful industry would soon disuse itself through every cottage; work would become easy and habitual, when absolutely necessary to their daily subsistence; and the most indigent peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be entitled to support form his opulent neighbors.
THIS appears to have been the plan of the statute of queen Elizabeth; in which the only defect was confining the management of the poor to small, parochial, districts; which are frequently incapable of furnishing proper work, or providing an able director. However, the laborious poor were then at liberty to seek employment wherever it was to be had; none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work; and those places of settlement being only such where they were born, or had made their abode, originally for three years,88 and afterwards (in the case of vagabonds) for one year only.89
AFTER the restoration, a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivision of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor-laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive lawsuits between contending neighborhoods, concerning those settlements and removals. By the statute 13 & 14 Car. II. c. 12. a legal settlement was declared to be gained by birth, inhabitancy, apprenticeship, or service for forty days; within which period all intruders were made removable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of 10£. The frauds, naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute I Jac. II. c. 17. which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. Subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given; and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new regulations, suggested the necessity of a remedy. And the doctrine of certificates was invented, by way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted cases; which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently employment can be had.
THE law of settlements may be therefore now reduced to the following general heads; or, a settlement in a parish may be acquired, 1. By birth; which is always prima facie the place of settlement, until some other can be shown.90 This is also always the place of settlement of a bastard child; for a bastard, having in the eye of the law no father, cannot be referred to his settlement, as other children may.91 But, in legitimate children, though the place of birth be prima facie the settlement, yet it is not conclusively so; for there are, 2. Settlements by parentage, being the settlement of one’s father or mother: all children being really settled in the parish where their parents are settled, until they get a new settlement for themselves.92 A new settlement may be acquired several ways; as 3. By marriage. For a woman, marrying a man that is settled in another parish, changes her own: the law not permitting the separation of husband and wife.93 But if the man be a foreigner, and has no settlement, her’s is suspended during his life, if he remains in England, and be able to maintain her; but in his absence, or during (perhaps) his inability, or after his death she may return again to her old settlement.94 The other methods of acquiring settlements in any parish are all reducible to this one, of forty days residence therein: but this forty days residence (which is construed to be lodging or lying there) must not be by fraud, or stealth, or in any clandestine manner; but accompanied with one or other of the following concomitant circumstances. The next method therefore of gaining a settlement, is, 4. By forty days residence, and notice. For if a stranger comes into a parish, and delivers notice in writing of his place of abode, and number of his family, to one of the overseers (which must be read in the church and registered) and resides there unmolested for forty days after such notice, he is legally settled thereby.95 For the law presumes that such a one at the time of notice is not likely to become chargeable, else he would not venture to give it; or that, in such case, the parish would take care to remove him. But there are also other circumstances equivalent to such notice: therefore, 5. Renting for a year tenement of the yearly value of ten pounds, and residing forty days in the parish, gains a settlement without notice;96 upon the principle of having substance enough to gain credit for such a house. 6. Being charged to and paying the public taxes and levies of the parish; and, 7. Executing any public parochial office for a whole year in the parish, as churchwarden, etc; are both of them equivalent to notice, and gain a settlement,97 when coupled with a residence of forty days. 8. Being hired for a year, when unmarried, and childless, and serving a year in the same service; and 9. Being bound an apprentice for seven years; give the servant and apprentice a settlement, without notice,98 in that place wherein they serve the last forty days. This is meant to encourage application to trades, and going out to reputable services. 10. Lastly, the having an estate of one’s own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law or of a third person, as by descent, gift, devise, etc, is a sufficient settlement:99 but if a man acquire it by his own act, as by purchase, (in its popular sense, in consideration of money paid) then100 unless the consideration advanced, bona fide, be 30£ it is no settlement for any longer time, than the person shall inhabit thereon. He is in no case removable from his own property; but he shall not, by any trifling or fraudulent purchase of his own, acquire a permanent and lasting settlement.
ALL persons, not so settled, may be removed to their own parishes, on complaint of the overseers, by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish, into which they have intruded: unless they are in a way of getting a legal-settlement, as by having hired a house of 10£ per annum, or living in an annual service; for then they are not removable.101 And in all other cases, if the parish to which they belong, will grant them a certificate, acknowledging them to be their parishioners, they cannot be removed merely because likely to become chargeable, but only when they become actually chargeable.102 But such certificated persons can gain no settlement by any of the means above-mentioned; unless by renting a tenement of 10£ per annum, or by serving an annual office in the parish, being legally placed therein: neither can an apprentice or servant to such certificated person gain a settlement by such their service.103
THESE are the general heads of the laws relating to the poor which, by the resolutions of the courts of justice thereon within a century past, are branched into a great variety. And yet, notwithstanding the pains that has been taken about them, they still remain very imperfect, and inadequate to the purposes they are designed for: a fate, that has generally attended most of our statute laws, where they have not the foundation of the common law to build on. When the shires, the hundreds, and the tithings, were kept in the same admirable order that they were disposed in by the great Alfred, there were no persons idle, consequently none but the impotent that needed relief: and the statute of 43 Eliz. seems entirely founded on the same principle. But when this excellent scheme was neglected and departed from, we cannot but observe with concern, what miserable shifts and lame expedients have from time to time been adopted, in order to patch up the flaws occasioned by this neglect. There is not a more necessary or more certain maxim in the frame and constitution of society, than that every individual must contribute his share, in order to the well-being of the community: and surely they must be very deficient in found policy, who suffer one half of a parish to continue idle, dissolute, and unemployed; and then form visionary schemes, and at length are amazed to find, that the industry of the other half is not able to maintain the whole.
1. ch. 2. pag. 142.
2. 1 I. con. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.
3. Dalton of sheriffs, c. I.
4. 3 Rep. 72.
5. Montesq. Sp. L. b. 2. c. 2.
6. Stiernhook de jure Gorb. l. I. c. 3.
7. Stat. 12. Edw. IV. c. 1.
8. de L. L. c. 24.
9. 2 Inst. 559.
10. Jenkins. 229.
11. Dyer 225.
12. 4 Rep. 32.
13. Dalt. of sheriffs. 8.
14. Dalt. 7.
15. Dalt. c. 4.
16. I Roll. Rep. 237.
17. Dalt. c. 95.
18. Lamb. Eiren. 315.
19. Stat. 2 Hen V. c. 8.
20. cap. 17.
21. Stat. I Mar. St. 2. c. 8.
22. Fortesc. de L. L. c. 24.
23. Dalt. c. 9.
24. Stat. 3. Geo. I. c. 15.
25. Stat. 42 Edw. III. c. 9.
26. Stat. I Hen. V. c. 4.
27. of sheriffs, c. 115.
28. Dalt. c. 118. 4 Rep. 34.
29. Stat. 13 & 14 Car. II. c. 21.
30. 2 Inst. 31. 4 Inst. 271.
31. 4 Rep. 57.
32. F. N. B. 163.
33. Mirror, c. I. §. 3.
34. 2 Inst. 558.
35. F. N. B. 163.
36. 3Edw. I. c. 10.
37. F. N. B. 163, 164.
38. 2 Inst. 32.
39. F. N. B. 163, 164.
40. Mirr. c. I. §. 3. 2 Inst. 175.
41. 2 Inst. 210.
42. Stat. 25 Geo. II. c. 29.
43. F. N. B. 163, 164.
44. 4 Inst. 271.
45. Thus, in the Gothic constitution, before any fine was payable by the neighborhood, for the slaughter of a man therein, “de corpore delicti constare oportebat; i.e. non tam fuisse aliquem in territorio isto mortuum inventum quam vulneratum et caesum: Potest enim homo etiam ex alia causa subito mori.” [“It was necessary that the crime should be evident; that is, not merely that a person was found dead in that district, but that he was wounded and slain. For a man may die suddenly from other causes.”] Stiernhook de jure Gothor, l.3.c.4.
46. 4 Inst. 271.
47. Lambard. Eirenarch. 12.
48. Lamb. 12.
49. Britton. 3.
50. F. N. B. 81.
51. Lamb. 14.
52. Lamb. 15.
53. Ibid. 17.
54. Lamb. 16.
55. Hist. A. D. 1327.
56. Stat. I Edw. III. c. 16.
57. Lamb. 20.
58. Stat. 4 Edw. III. c. 2. and 18 Edw. III. St. 2. c. 2.
59. Lamb. 23.
60. Lamb. 43.
61. See the form itself, Lamb. 35. Burn. tit. Juffices, §. 2.
62. Stat. 26 Geo. II. c. 27.
63. Lamb. 34.
64. See bishop Fleetwood’s calculations in his chronicon pretiosum.
65. Stat. 18 Geo. II. c. 20.
66. Stat. I Ann. c. 8.
67. Lamb. 67.
68. Stat. I Mar. St. I. c. 8.
69. Stat. I Edw. VI. c. 7.
70. Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c. 44.
71. philips’s life of pole. ii. III.
72. of constables, 5.
73. 13 Edw. I. c. 6.
74. Salk. 150.
75. Spelm. Gloss. 148.
76. pag. 110.
77. Lamb. 9.
78. Stat. 14 & 15 Car. II. c. 12.
79. Dalt. just. c. 104.
80. Excubias et explorationes quas wactas vocant. [Watches and searches which they call wactas.] Capitular. Hludovic. pii. cap. I. A. D. 815.
81. C. II. 74. 4.
82. This office, Mr. Dalton (just. cap. 50.) says, exactly answers that of the curatores viarum [keepers of the ways] of the Romans: but, I should guess 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 those of our country parishes; but also because one Thermus, who was the curator of the Flaminian way, was candidate for the consulship with Julius Caesar. (Cic. ad Attic. l. I. cp. I.)
83. Stat. 3 W. & M. c. 12.
84. This, by the laws of the twelve tables at Rome, was the standard for roads that were straight; but, in winding ways, the breadth was directed to be sixteen feet. Ff. 8. 3. 8.
85. c. I. §. 3.
86. Stra. 1123.
87. 2 Lord Raym. 1394.
88. Stat. 19 Hen. VII. c. 12. I Edw. VI. c. 3. 3 Edw. VI. c. 16. 14 Eliz. c. 5.
89. Stat. 39 Eliz. c. 4.
90. I Lord Raym. 567.
91. Salk. 427.
92. Salk. 528. 2 Iord Raym, 1473.
93. Stra. 544.
94. Soley. 249.
95. Stat. 13 & 14 Car. II. c. 12. I Jac. II. c. 17. 3 & 4 W. & M. c. II.
96. Stat. 13 & 14 Car. II. c. 12.
97. Stat. 3 & 4 W. & M. c. 11.
98. Stat. 3 & 4 W. & M. c. 11. 8 & 9 W. III. c. 10. and 31 Geo. II. c. II.
99. Salk. 524.
100. Stat. 9 Geo. I. c. 7.
101. Salk. 472.
102. Stat. 8 & 9 W. III. c. 30.
103. Stat. 12 Ann. c. 18.
Based on the first edition, together with the most material corrections and additions in the second edition. Translation of Greek, Latin, Italian and French quotations (with some modifications) by J. W. Jones, Esq. (1823). Footnotes have been converted to chapter end notes. Spelling has been modernized. Copyright of text is in the Public Domain.
Founders Corner Library is researched, compiled, and edited (with occasional notes and commentary) by Steve Farrell, Editor In Chief of The Moral Liberal. As uniquely edited and or formatted by Mr. Farrell, Copyright © 2015 Steve Farrell and The Moral Liberal.