Commentaries on the Laws of England Part 29

[Footnote c: Dalt. c. 118. 4 Rep. 34.]

[Footnote d: Stat. 13 & 14 Car. II. c. 21.]

THE vast expense, which custom had introduced in serving the office of high-sheriff, was grown such a burthen to the subject, that it was enacted, by statute 13 & 14 Car. II. c. 21. that no sheriff should keep any table at the a.s.sises, 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 decency, he may not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these cases, of 200_l._

II. THE coroner's is also a very antient office at the common law. He is called coroner, _coronator_, because he hath princ.i.p.ally to do with pleas of the crown, or such wherein the king is more immediately concerned[e]. And in this light the lord chief justice of the king's bench is the princ.i.p.al coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm[f].

But there are also particular coroners for every county of England; usually four, but sometimes six, and sometimes fewer[g]. This officer[h] 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.

[Footnote e: 2 Inst. 31. 4 Inst. 271.]

[Footnote f: 4 Rep. 57.]

[Footnote g: F.N.B. 163.]

[Footnote h: Mirror, c. 1. --. 3.]

HE is still chosen by all the freeholders in the county court, as by the policy of our antient 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[i]; and as verderors of 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 eligendo_[k]: in which it is expressly commanded the sheriff, "_quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere_." And, in order to effect this the more surely, it was enacted by the statute of Westm. I[l], 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[m]: and there was an instance in the 5 Edw. III. of a man being removed from this office, because he was only a merchant[n]. 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 misbehaviour[o]: and if he have not enough to answer, his fine shall be levyed on the county, as a punishment for electing an insufficient officer[p]. 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. 1.

which sir Edward c.o.ke complains of heavily[q]; though they have since his time been much enlarged[r].

[Footnote i: 2 Inst. 558.]

[Footnote k: F.N.B. 163.]

[Footnote l: 3 Edw. I. c. 10.]

[Footnote m: F.N.B. 163, 164.]

[Footnote n: 2 Inst. 32.]

[Footnote o: F.N.B. 163, 164.]

[Footnote p: Mirr. c. 1. --. 3. 2 Inst. 175.]

[Footnote q: 2 Inst. 210.]

[Footnote r: Stat. 25 Geo. II. c. 29.]

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_, for a cause to be therein a.s.signed, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it[s]. And by the statute 25 Geo. II. c. 29. extortion, neglect, or misbehaviour, are also made causes of removal.

[Footnote s: F.N.B. 163, 164.]

THE office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but princ.i.p.ally judicial. This is in great measure ascertained by statute 4 Edw. I. _de officio coronatoris_; and consists, first, in enquiring (when any person is slain or dies suddenly) concerning the manner of his death. And this must be "_super visum corporis_[t];" for, if the body be not found, the coroner cannot sit[u]. He must also sit at the very place where the death happened; and his enquiry is made by a jury from four, five, or six of the neighbouring 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 enquire concerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he must enquire 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 a.s.sises. Another branch of his office is to enquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. Concerning treasure trove, he is also to enquire 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 (saith the old statute of Edw. I.) where one liveth riotously, haunting taverns, and hath done so of long time:" whereupon he might be attached, and held to bail, upon this suspicion only.

[Footnote t: 4 Inst. 271.]

[Footnote u: Thus, in the Gothic const.i.tution, before any fine was payable by the neighbourhood, 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 h.o.m.o etiam ex alia causa subito mori_." Stiernhook _de jure Gothor._ _l._ 3. _c._ 4.]

THE ministerial office of the coroner is only as the sheriff's subst.i.tute. 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[w].

[Footnote w: 4 Inst. 271.]

III. THE next species of subordinate magistrates, whom I am to consider, are justices of the peace; the princ.i.p.al of whom is the _custos rotulorum_, or keeper of the records of the county. The common law hath 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 const.i.tution 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_ or _conservatores pacis_. Those that were so _virtute officii_ still continue; but the latter sort are superseded by the modern justices.

THE kings majesty[x] is, by his office and dignity royal, the princ.i.p.al 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 mareschal, and lord high constable of England (when any such officers are in being) and all the justices of the court of 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[y]: the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county[z]; as is also the sheriff[a]; and both of them may take a recognizance or security for the peace. Constables, tythingmen, 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[b].

[Footnote x: Lambard. Eirenarch. 12.]

[Footnote y: Lamb. 12.]

[Footnote z: Britton. 3.]

[Footnote a: F.N.B. 81.]

[Footnote b: Lamb. 14.]

THOSE that were, without any office, simply and merely conservators of the peace, 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 melioribus in comitatu suo in custodes pacis_[c]."

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 Walsingham[d], giving a plausible account of the manner of his obtaining the crown; to wit, that it was done _ipsius patris beneplacito_: 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[e], 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 _a.s.signed_ 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[f]; this a.s.signment being construed to be by the king's commission[g]. But still they were called only conservators, wardens, or keepers of the peace, till the statute 34 Edw. III. c. 1. gave them the power of trying felonies; and then they acquired the more honorable appellation of justices[h].

[Footnote c: Lamb. 16.]

[Footnote d: Hist. _A.D._ 1327.]

[Footnote e: Stat. 1 Edw. III. c. 16.]

[Footnote f: Lamb. 20.]

[Footnote g: Stat. 4 Edw. III. c. 2. and 18 Edw. III. st. 2. c. 2.]

[Footnote h: Lamb. 23.]

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[i]. This appoints them all[k], jointly and severally, to keep the peace, and any two or more of them to enquire of and determine felonies, and other misdemesnors: 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_;" 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, &c, that the justice who issued them is of the _quorum_[l].

[Footnote i: Lamb. 43.]

[Footnote k: See the form itself, Lamb. 35. Burn. t.i.t. justices, --.

1.]

[Footnote l: Stat. 26 Geo. II. c. 27.]

TOUCHING the number and qualifications of these justices; it was ordained by statute 18 Edw. III. c. 2. that _two_, or _three_, of the best reputation in each county shall be a.s.signed 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. 1. 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, through the ambition of private persons, became so large, that it was thought necessary by statute 12 Ric. II. c. 10. and 14 Ric 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 ago[m]) 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 encrease 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. 1. c. 4. and st. 2. c. 1. 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_l._ _per annum_.

And, the rate of money being greatly altered since that time, it is now enacted by statute 5 Geo. II. c. 11. that every justice, except as is therein excepted, shall have 100_l._ _per annum_ clear of all deductions; and, if he acts without such qualification, he shall forfeit 100_l._ which[n] is almost an equivalent to the 20_l._ _per annum_ required in Henry the sixth's time: and of this qualification[o]

the justice must now make oath. Also it is provided by the act 5 Geo.

II. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace.

[Footnote m: Lamb. 34.]