Sheff. tells us he transcribed from the council book of 3d March, 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 Pristot, delivered the unanimous opinion of them all; "that the king did an error when he made a person sheriff that was not chosen and presented to him according to the statute; that the person refusing was liable to no fine for disobedience, as if he had been one of the three persons chosen according to the tenor of the statute; that they would advise the king to have recourse to the three persons that were chosen according to the statute, or that some other thrifty man be intreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the statute in this behalf made be observed." But notwithstanding this unanimous resolution of all the judges of England, thus entered in the council-book, and the statute 34 and 35 Hen. VIII. c. 26. § 61. which expressly recognizes this to be the law of the land, some of our writers have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or not. 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 annuarum to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of two remaining in the last year's list. And this case, thus circumstanced, is the only authority 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 contrariam; but the doctrine of non obstante 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, it is believed, few (if any) instances have occurred.
Sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said that a sheriff may be appointed durante bene placito, or during the king's pleasure; and so is the form of the royal writ. 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; but now, by statute 1 Anne st. 1. c. 8. all officers appointed by the preceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. We may farther observe, that by statute 1 Ric. II. c. 11. no man that has served the office of sheriff for one year can be compelled to serve the same again within three years after.
We shall find it is of the utmost importance to have
the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff.
In his judicial capacity he is to hear and determine all causes of 40 shillings value and under, in his county court: and he has also a judicial power in divers other civil cases. He is likewise to decide the elections of knights of the shire (subject to the controul of the House of Commons), of coroners, and of verders; to judge of the qualification of voters, and to return such as he shall determine to be duly elected.
As the keepers 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. He may apprehend, and commit to prison, all persons who break the peace, or attempt to break it; and may bind any one in a recognizance to keep the king's peace. He may, and is bound, ex officio, to pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. He is also to defend his county against any of the king's enemies when they come into the land; and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the posse comitatus, or power of the county; which summons, every person, above 15 years old, and under the degree of a peer, is bound to attend upon warning, under pain of fine and imprisonment. But though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter, he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. For it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office; 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. 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
Sherif. they be granted to some subject; and must also collect
Sherlock. the king's rents within his bailiwick, if commanded by
process from the exchequer.
To execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and goalers, who must neither buy, sell, nor farm their offices, on forfeiture of 500l.
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; and if he does, by statute 23 Hen. VI. c. 8. he forfeits 200l. a very large penalty in those early days. And no under sheriff or sheriff's officer shall practise as an attorney during the time he continues in such office: for this would be a great inlet to partiality and oppression. But these salutary regulations are shamefully evaded, by practising in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs: by reason of which, says Dalton, the under sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may well be feared that many of them do deceive, both the king, the high sheriff, and the county.