Imágenes de páginas
PDF
EPUB

in various manors, formerly parcel of the duchy, which have been sold, subject to a reservation of minerals(p).

*By the Cornwall Submarine Mines Act, 1858 (21 & 22 Vict. c. 109), [ *399] s. 1, all mines and minerals(9) lying under the sea shore, between high and low water mark, and under other places (below high water mark), even below low water mark, being in and part of the county of Cornwall, are, as between her majesty and his royal highness the prince of Wales and duke of Cornwall, declared to be vested in his royal highness, as part of the territorial possessions of the duchy; and by s. 2, all mines and minerals lying below low water mark, under the open sea, adjacent to, but not being part of, the county of Cornwall, are, as between her majesty and the prince, declared to be vested in her majesty, as part of the soil and territorial possessions of the crown(r).

The estates and revenues(s) of the duchy of Cornwall are managed by the prince of Wales and duke of Cornwall, with the advice of his council, the members of which are appointed by letters patent under the prince's seal.

By the Duchy of Cornwall Management Act, 1863 (26 & 27 Vict. c. 49), the duke of Cornwall, or the personage for the time being entitled to the revenues of the duchy, is now empowered (subject in certain cases to the approval of the board of treasury) to sell any part of the possessions of the duchy, to purchase other lands, to settle disputed claims, to refer disputes to arbitration, to grant leases, *and to exercise other powers in relation to the management of the estates of the duchy.

[ *400] By the 23 & 24 Vict. c. 53, the provisions of the 9 Geo. 3, c. 16 (commonly known as the Nullum Tempus Act), were made applicable to the duchy of Cornwall, and by the 24 & 25 Vict. c. 62, those provisions were extended.

The general tendency of the changes in the constitution' since Car. 1. has been against prerogative.

This finishes our inquiries into the fiscal prerogatives of the crown; or the royal revenue, both ordinary and extraordinary. We have now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, considered in his several capacities and points of view. But, before we entirely dismiss this subject, it may not be improper to take a short comparative review of the power, or prerogative of the crown, as it stood in former days, and as it stands at present. And we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century; from the petition of right in 3 Car. I. to the accession of George III. So that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of

(p) Although a large extent of land, parcel of the possessions of the duchy, was sold at or about the commencement of the present century, to raise funds for the redemption of the land tax on the residue of the estates of the duchy, those estates, other than land below high water mark in Cornwall, and waste lands out of that county, now comprise about 50,000 acres of land.

(g) Which expression is by s. 8 of the above-cited act interpreted to comprehend all mines, minerals, stone, substrata, and the ground and soil in, upon, or under, which the same may lie.

(r) Generally as to the tenure of the duchy of Cornwall see The Prince's Case, 8 Rep. 1.

VOL. I.-33

(8) The net income of the duchy in the year 1838 (the year after the accession of her majesty to the throne), was 11,5367.; in 1861, the net income of the duchy was 46,6167.; and in 1867, it was 55,4631. In the last-mentioned year, the payments out of the duchy revenues to the use of his royal highness the prince of Wales and duke of Cornwall, amounted to 54,927. 98. 11d.

The gross revenue of the duchy in 1867, included 50,1781. from rents and profits of courts; 6,2831. from minerals; and 16,2167. from the annuity charged on the consolidated fund under the act 1 & 2 Vict. c. 120.

king James I.: particularly by the abolition of the star-chamber and high commission courts in the reign of Charles I., and by the disclaiming of martial law and the power of levying taxes on the subject by the same prince: by the disuse of forest laws; and by the many excellent provisions enacted in the time of Charles II.; especially the abolition of military tenures, purveyance, and preemption; the habeas corpus act; and the act to prevent the discontinuance of parliaments for above three years; and, since the Revolution, by the strong and emphatic words in which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officials from the house of commons; by rendering the seats of the judges *permanent, and their salaries liberal and inde[ *401] pendent; and by restraining the royal pardon from obstructing parliamentary impeachments. Besides all this, if we consider how the crown is impoverished and stripped of its ancient revenues, so that it must greatly rely on the liberality of parliament for its necessary support and maintenance, we might perhaps at first be led to think, that the balance is sufficiently inclined to the popular scale, and that the executive magistrate has not power enough left to check the united will of the lords and commons.

But, on the other hand, it is to be considered, that every sovereign in the first parliament after his accession, has by long usage a truly royal revenue settled upon him for his life; and should never have occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. This restores to the crown all the constitutional independence which it can legitimately need, and frees the sovereign from being liable to coercion by a threat of reducing or withdrawing his annual allowance.

In addition to constitutional checks on the royal prerogative, the latest of which were imposed upwards of a century ago, we must remember that the personal authority of the crown has been considerably diminished within the last fifty years, not by express enactments, but by the natural course of events. The sovereign, indeed, has now, as formerly, the power of appointing his own ministers, but as these cannot hold office in the face of a hostile majority of the legislature, the royal choice is practically limited to the man who for the time being can command the votes of the house of commons. This has led to the practice of the monarch not appointing all the ministers of state himself, but merely selecting one who possesses the above qualification. This one (popularly called the premier) is usually appointed first lord of the treasury, and allowed to select his own colleagues, the crown appointing the objects of his choice to the *offices for which they have been thus designated. [*402] The ministry, once appointed, hold office during the will of the lower house, and though the royal pleasure may turn the balance when the scales of party are nearly even, and may occasionally influence some appointment, yet practically England is governed by the premier and his colleagues, supported by a majority of the legislative body.

Let it not be inferred from anything above propounded that it can to any loyal subject be a matter of indifference what individual occupies the throne. The personal influence of the reigning monarch, which now principally depends on private character, is very great, it operates both socially and politically; and the respect with which the conduct of our present most gracious sovereign has inspired her attached people, is perhaps the strongest, as it is decidedly the most glorious bulwark of the British throne.

*CHAPTER IX.

[*403]

SUBORDINATE MAGISTRATES.

IN a former chapter of these Commentaries(a) 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 sovereign; and are now to proceed to inquire into the rights and duties of the principal subordinate magistrates.

And herein we are not to investigate the powers and duties of the great officers of state, the principal secretaries, or the like; because they do not appear to be in that capacity in any considerable degree the object of our laws, nor have they any very important share of magisterial power conferred upon them; except that the secretaries of state have in some instances been allowed the power of commitment in order to bring offenders to trial(b). 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 volume of these Commentaries. Nor shall I enter into any minute disquisitions, with regard to the rights and dignities of [ *404] 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 have a jurisdiction and authority dispersedly throughout the kingdom; who are principally sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor; in treating of whom I shall inquire into, first, their antiquity and origin; next, the manner in which they are appointed and may be removed; and lastly, their rights and duties.

I. The sheriff is an officer of great antiquity in this kingdom, his name being derived from two Saxon words, reipe gepera, the reeve, bailiff, or officer I. Sheriff. An- of the shire. He is called in Latin vice-comes, as being the tiquity and origin of the office. 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 (c), reserving to themselves the honour, whilst the labour was laid on the sheriff. So that now the sheriff does all the queen's business in the county; and though he be still called vice-comes, yet he is entirely independent of, and not subject to, any local authority; the crown, by letters patent, having long committed custodiam comitatus to the sheriff, and him alone, and the appointment of the sheriff (which, since the 3 & 4

(a) Ch. 2, p. 173.

(b) Search's Case, 1 Leon. 70; Hellyard's Case, 2 Ib. 175; R. v. Kendal, Comb. 343; Yaxley's Case, Carth. 291. As to the ille

gality of general warrants issued by secretaries of state, see Broom's Const. L. pp. 525, et seq.

(c) Dalton of Sheriffs, 2.

Will. 4, c. 99, has been by warrant in the form set forth in the schedule to that act, made out and signed by the clerk of the privy council, instead of by letters *patent under the great seal), is also made to him only. This office [ *405] was so honourable in ancient times that we hear of its being filled by barons, earls, dukes and even the sons of kings, among whom may be mentioned Edward, eldest son of Henry III. (afterwards Edward I.), who was sheriff of Rutland for five years(d).

Sheriffs were formerly chosen by the inhabitants of the several counties(e).(105) In confirmation of which it was ordained by statute 28 Edw. 1, c. 8, that the The mode of people should have the election of sheriffs in every shire, where appointment. the shrievalty is not of inheritance. For anciently in some counties the office of sheriff was hereditary, as it continued to be in the county of Westmoreland, till the 13 & 14 Vict. c. 30. The citizens of London have also

(d) Spel. Gloss. Vicecom.

(e) Lamb. de priscis Ang. leg. 147.

(105) In the United States sheriffs are generally elected by the people in the same manner as other public officers. The officers under the United States government who discharge duties similar to those of a sheriff are called marshals, who are appointed by the president and senate.

The powers, rights and duties of sheriffs in this country are very similar to those of a sheriff in England. An alien, not qualified as an elector in his county, is ineligible to the office of sheriff. State v. Smith, 14 Wis. 497.

A sheriff who receives money paid to redeem mortgaged premises, is in no sense the agent of the party, but acts in his official capacity. Horton v. Maffitt, 14 Minn. 289. So in making an arrest under a warrant, or by authority of a statute, he acts officially. Warner v. Grace, id. 487. In acting under a bench warrant issued upon an indictment he cannot arrest the party in another state, as he would be considered a mere individual without legal process. Mandeville v. Gurnsey, 51 Barb. 99. A prisoner who has escaped from civil process cannot be pursued and re-arrested in another state. Bromley v. Hutchins, 8 Vt. 194. And the rule is the same where the escape is from criminal process. Mandeville v. Gurnsey, 51 Barb. 99 See Butolph v. Blust, 41 How. Pr. 481. See 1 Wait's Pract. 657, 658, 694, and cases cited He cannot levy upon any real estate except such as is situated within his county. Kent v. Roberts, 2 Story, 591.

A sheriff, as such, cannot legally serve an execution on his deputy, even though it is directed to him. Dane v. Gilmore, 51 Me. 544. But see contra Ford v. Dyer, 26 Miss. (4 Cush.) 243. Nor can he serve the writ when he is the plaintiff of record, though he has no interest in the suit. Knott v. Jarbee, 1 Metc. (Ky.) 504. So of a service by his deputy, when the sheriff is plaintiff. May v. Walters, 2 McCord, 470; Chambers v. Thomas, 3 A. K. Marsh, 526. So a deputy sheriff cannot serve an execution issued in his own favor. Chambers v. Thomas, 1 Litt. 268; Samuel v. Commonwealth, 6 Monr. 173. When the sheriff is a real or a nominal party, the writ or process should be directed to and served by a coroner. Barker v. Remick, 43 N. H. 238. And cannot be executed by a deputy of the sheriff. Stewart v. Magness, 1 Cold. (Tenn.) 310.

Nor can a sheriff, while in the discharge of his official duty, divest himself of his official character, and do as an individual what he cannot do as a public officer; such as to warrant the title to property which he is selling as an officer. Ball v. Pratt, 36 Barb. 402. If he receives money as sheriff, without an operative execution in his hands, he acts without authority, and unofficially, and his acts will not bind the plaintiff, unless acting as the pri vate agent of the latter. Crane v. Bedwell, 25 Miss. 507. A purchase by a sheriff at his own sale, either for himself or as the agent of another, is entirely void. Harrison v. McHenry, 9 Ga. 164; Ormond v. Faircloth, 1 Murph. 35, and C. & N. 550. But see Arnold v. Brown, 24 Pick. 89.

A sheriff is, ex officio, a conservator of the peace, and it is not merely his right, but it is his duty, to arrest all persons, with their abettors, who oppose the execution of legal pro cess. Coyles v. Hartin, 9 Johns. 85.

the inheritance of the shrievalty of Middlesex vested in their body by charter of king John(f), the reason of these popular elections being assigned in the 28 Edw. 1, c. 13, that the commons might choose such as would not be a burden to them. And here appears plainly a 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 (g). 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 the county courts (which office is still for some purposes executed by our sheriff(h)) were elected by the people, though confirmed by the king, and the form of their election was thus managed: the people, or incolæ territorii, chose twelve electors, and they nominated three persons, ex quibus rex unum confirmabat(i). But with us in England these popular elections, growing tumultuous, were put an end to by the statute 9 Edw. *2, st. 2, which enacted, that the sheriffs should from thenceforth be [ *406] assigned by the chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. By statutes 14 Edw. 3, st. 1, c. 7, 23 Hen. 6, c. 7, and 21 Hen. 8, c. 20, the chancellor, treasurer, president of the king's council, chief justices, and chief baron, are to make this election; and that on the morrow of All Souls in the exchequer. And the king's letters patent, appointing the new sheriffs, used commonly to bear date the sixth day of November(j). The statute of Cambridge, 12 Ric. 2, c. 2, ordained that the chancellor, treasurer, keeper of the privy seal, steward of the king's house, the king's chamberlain, clerk of the rolls, the justices of the one bench and the other, barons of the exchequer, and all others who might be called to ordain, name, or make justices of the peace, sheriffs, and other officers of the king, should be sworn to act indifferently, and to appoint no man that sueth either privily or openly to be put in office, but such only as they should judge to be the best and most sufficient. And the custom now is (and has been at least ever since the time of Fortescue (k), who was chief justice and chancellor to Henry VI.), that the judges, together with the other great officers and privy councillors, meet in the exchequer on the morrow of St. Martin (1), yearly and then and there the judges propose three persons, to be reported (if approved of) to the queen, who afterwards appoints one of them to be sheriff; and it has been decided that where the appointment is open to no legal objection, and the appointee can offer no legal excuse for not accepting the office, it is a misdemeanor to refuse to serve(m).

*This custom of the twelve(n)judges proposing three persons, seems [*407]

similar to the Gothic constitution before mentioned; with this differ

ence, that among the Goths the twelve nominators were first elected by the

(f) 3 Rep. 72.

(g) Montesq. Sp. L. b. 2, c. 2.

(h) Post, pp. 409, 410, 415.

(i) Stiern. de jure Goth. 1. 1, c. 3. (j) Stat. 12 Edw. 4, c. 1.

(k) De Leg. c. 24.

(1) 24 Geo. 2, c. 48, s. 12.

(m) R. v. Woodrow, 2 T. R. 731. See also R. v. Bower, 1 B. & C. 585.

By an act of the Common Council, any one elected sheriff of London is obliged to serve, under a penalty of 400%., unless he can swear that he is not worth 20,000. The payment of the penalty operates to exempt thenceforth

from liability to serve, unless the person paying it, afterwards becomes an alderman. Impey on Sheriffs, 23, 27. Pulling, Laws and Customs of London, 134. See also City of London v. Vanacre, Salk. 142.

The sheriff was formerly required on his appointment to take an oath prescribed by 3 Geo. 1, c. 15, s. 18; but now under the 31 & 32 Vict. c. 72, he must make a declaration merely in the form of such oath.

(n) Increased to fifteen under 11 Geo. 4 & 1 Will. 4, c. 70, s. 1, and to eighteen under 31 & 32 Vict. c. 125, s. 11.

« AnteriorContinuar »