Gaoler

lawful warrant to his custody; and if he suffered any to escape, the sheriff had to answer to the crown, in a criminal, or to the party injured in a civil case(x). (108) And to this end he was required to have lands sufficient within the county to answer the claims of the sovereign and his people. The absolute authority of the sheriff over the gaoler was, however, curtailed by various statutes, and now by the 28 & 29 Vict. c. 126, this latter officer is appointed by the justices at sessions, instead of by the sheriff, and holds office during their pleasure. The legal custody of all prisoners confined in prison under the above act is vested in the gaoler, not in the sheriff, except as regards prisoners under sentence of death, over whom, for the purpose of carrying the sentence into effect, the sheriff has the same jurisdiction as he possessed before the statute. The only prisoners for whose escape the sheriff is now liable, are debtors, and for their safe custody the gaoler is bound to give him security.

The vast expense, which custom had introduced in serving the office of high sheriff, had become so burthensome to the subject, that it was enacted, by statute 13 & 14 Car. 2, c. 21, that no sheriff (except of London, Westmoreland, and towns which are counties of themselves) 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 decency, he might not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these cases, of 2001. The expenses attendant on the shrievalty have been still further diminished by 22 & 23 Vict. c. 32, s. 18, enacting that the justices of any county may direct a certain number of *police to be employed in keeping order in the assize court and its precincts, and that when this has been done, it shall be unnecessary [ *415] for the sheriff to provide javelin men, or men in livery, notwithstanding the statute of Charles II.

II. The office of coroner is very ancient. He is called coroner, coronator, because he has principally to do with pleas of the crown, or such wherein the sovereign is more immediately concerned (y). And in this light Antiquity and the lord chief justice of the queen's bench is the principal coroner in the kingdom, and may (if he pleases) exercise the jurisdiction (x) Dalt. Sheriff, 465; Milton's Case, 4 Rep. 34. (y) 2 Inst. 31; 4 Inst. 271.

II. Coroner. origin of the office.

(108) The liability of a sheriff in civil actions for the escape of a party in his custody on civil process is the settled law of the several states. A sheriff who releases a debtor imprisoned upon an execution, in pursuance of an order of the court which is invalid upon its face, is liable for an escape. Bullymore v. Cooper, 2 Lans. 71; 46 N. Y. (1 Sick.) 236; Bush v. Pettibone, 4 N. Y. (4 Comst.) 300; 5 Barb. 273. The insufficiency of the jail is no legal excuse for an escape. Kepler v. Barker, 13 Ohio St. 177; see Haygood v. Justices, 20 Ga. 845; State v. Halford, 6 Rich. Law (S. C.) 58; Smith v. Hart, 2 Bay, 395; Parsons v. Lee, Jeff. 50. But a sheriff is not liable for the escape of a debtor whom he has arrested on a process which was not sufficient to authorize the arrest, or was void. Hitch'cock v. Baker, 2 Allen (Mass.), 431; Carpentier v. Willett, 31 N. Y. (4 Tiff.) 90; 28 How. Pr. 225; 1 Keyes, 510; Tuttle v. Wilson, 24 Ill. 553; Howard v. Crawford, 15 Ga. 423; Kidder v. Barker, 18 Vt. 454. Errors, irregularities or defects in the judgment or execution will not be allowed as a defense to an action for an escape. Bensel v. Linch, 44 N. Y (5 Hand) 162; 2 Rob. 448.

A rescue, by a mob, of a defendant taken in execution, is no defense. Abbott v. Holland, 20 Ga. 598. Nothing but the act of God, or of the enemies of the country, will excuse a sheriff for an escape. Fairchild v. Case, 24 Wend. 381; Rainey v. Dunning, 2 Murph. 386.

of a coroner in any part of the realm (z), the puisne judges of that court being also "sovereign coroners of the land "(a).

But there are also particular coroners for every county of England; usually four, but sometimes six, and sometimes fewer(b). This officer (c) is of equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earl gave up the wardship of the county.

The mode of

Except in some few instances, such as the coroner of a royal verge, of the admiralty, or one who is appointed by the council or corporation of a borough, the election of the coroner is now regulated by the 7 & 8 Vict. c. appointment. 92(d), and he is still chosen by the freeholders of the county (e) (or district, if the county has been divided into districts, in pursuance of the act), in the county court of such county or district, which the sheriff is ordered to hold for the purpose of such election (f). (109)

This is the mode in which, by the policy of our ancient *laws, the [ *416] sheriffs, conservators of the peace, and all other officers concerned in matters that affected the liberty of the people were appointed (g); and as verderors of the forest were appointed, whilst that office existed, their business being 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(h): 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.(i) that none but lawful and discreet knights should be chosen; and there was an instance in the 15 Edw. III., of a man being removed from this office because he was only a merchant(k). But it was afterwards held sufficient if a man had lands enough to be made a knight, whether he were really knighted or not(7): for the coroner ought to have an estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for misbehaviour(m); and if he has not enough to answer, his fine shall be levied on the county, as the punishment for electing an insufficient officer(n).

This does not apply to the coroner of a borough, who requires no qualification, provided he be a "fit person," and neither alderman nor councillor of the borough (0).

Although in very early times, no coroner would condescend to be paid for serving his country, and though he was by the aforesaid statute of Westm. I. expressly forbidden to take reward, under pain of a great forfeiture to the crown; yet coroners were allowed fees for their attendance on inquests by the

(109) In the several states coroners are elected at the same time and in the same manner as sheriffs; and their powers and duties are generally similar to those of coroners in England. For the statutory provisions relating to them the statutes of the particular state must be examined.

statute 3 Hen. 7, c. 1, which sir *Edward Coke complained of(p); though since his time those fees have been much enlarged (q).

[*417]

The system of payment by fees, however, being found very inconvenient in counties, was abolished by the 23 & 24 Vict. c. 116, and county coroners are now paid by salary, calculated proportionately to the fees received(r).

The coroner is chosen for life: but may be removed, either by being made sheriff, which is an office incompatible with the other; or by the writ de coronatore exonerando, 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(s). And by the statute 23 & 24 Vict. c. 116, s. 6, inability or misbehaviour in office are also made causes of removal, such removal to be effected by the lord chancellor, who exercises a general jurisdiction over coroners(t).

The functions of a coroner are like those of the sheriff, either judicial or ministerial; but principally judicial. His duty is in a great measure ascertained by statute 4 Edw. 1., De officio coronatoris: 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"(u): for, if the body be not found, the coroner cannot sit(x). He was formerly obliged to sit at the very place where the death happened: but it is now provided by the 6 & 7 Vict. c. 12, s. 1, that, as it is often unknown where persons lying dead have come *by their deaths, the inquest may be held by the

coroner within whose jurisdiction the body shall be found; and his [ *418]

inquiry is made by a jury from the county, over whom he is to preside. This jury must consist of at least twelve, and it is desirable to have a larger number, as, in the event of their not being unanimous, the verdict of a majority (not less than twelve) is sufficient (y). If any be found guilty by this inquest of murder or other homicide, the coroner is to commit them to prison for further trial, and is also to inquire concerning their lands, goods, and chattels, which are forfeited thereby: and he should certify the whole of this inquisition (under his own seal and the seals of his jurors(z)), together with the evidence thereon, to the court of queen's bench, or the next assizes. By 6 & 7 Vict. c. 83, any coroner may by writing under his hand and seal appoint any fit and proper person to act for him as a deputy in the holding of inquests, subject, however, to the lord chancellor's approval of such appointment; which the coroner also may at any time revoke.

Another duty appertaining to the coroner is to inquire concerning treasuretrove(a); 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 (saith the old statute of Edw. I.(b)) where one liveth

(p) 2 Inst. 210.

ventum, quam vulneratum et cæsum. Potest (q) Stat. 25 Geo. 2, c. 29; 1 Vict. c. 68, s. 3. enim homo etiam ex aliá causá subito mori. (r) Jervis on Coroners, 3rd ed. 75—78. Stiern. de jure Goth. 1. 3, c. 4. (8) F. N. B. 163, 164

(t) Broom, Const. L. p. 791. Ward, 30 L. J. Ch. 775. (u) 4 Inst. 271.

Ex parte

(x) Thus, in the Gothic constitution, before any fine was payable by the neighbourhood, for the slaughter of a man therein, de corpore delicti constare opportebat; i. e. non tam fuisse aliquem in territorio isto mortuum in

(y) Cobat's case, 2 Hale, P. C. 161(k). (2) Stat. 33 Hen. 8, c. 12, s. 3; 1 & 2 P. & M. c. 13, s. 5; 2 West. c. 13; Crompt. Off. Just. Peace, 264; Tremain. P. C. 621.

An inquisition cannot now be quashed for not being under seal, except in cases of murder and manslaughter, 6 & 7 Vict. c. 83, s. 2. (a) Ante, chap. viii.

(b) 4 Edw. 1, De Officio Coronatoris.

riotously, haunting taverns, and hath done so of long time;" whereupon he might be attached, and held to bail, upon this suspicion only.

The ministerial office of the coroner is as the sheriff's substitute. 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), *process being then awarded to the coroner, instead of the sheriff, for [*419] execution (c).

III. The subordinate magistrates next to be considered, are justices of the peace; the principal of whom is the custos rotulorum (d), or keeper of the

(III.) Justices of the peace, antiquity and origin of the office.

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, peculiar officers were appointed by the common law for the maintenance of the public peace. Of these some had, and still have, the power of maintaining it annexed to offices which they hold; others had it merely by itself, and were thence named custodes or conservatores pacis.

The sovereign(e) is, by her office and dignity royal, the principal conservator of the peace within her 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 queen's peace. The lord chancellor or keeper, the lord treasurer, the lord high steward of England, the justices of the court of queen's bench (by virtue of their offices), and the master of the rolls (by prescription), are general conservators of the peace throughout the kingdom, and may commit all breakers of it, or bind them in recognizances to keep it(ƒ): the other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county(g); as is the sheriff(h); and either of them may take a recognizance or security for the peace. Constables 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(i).

*Those who were, without any office, simply and merely conserva[ *420] tors of the peace, either claimed that power by prescription (k); or were bound to exercise it by the tenure of their lands(); 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 "(m). 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 (n), giving a plausible

(c) 4 Inst. 271.

(d) Post, vol. iv. p. 356.

(e) Lambard, Eirenarch. 11.

(f) Lamb. 12.

(7) Britton, 3.

() F. N. B. 81.

(2) Lamb. 13.

(k) Lamb. 14, 15.

(1) Ib. 16.

(m) 1b. 15.

(n) Hist. A. D. 1327

account of the manner of his obtaining the crown; saying that it was done ipsius patris bene placito: and 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(o), 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(p) 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 crown(q); this assignment being construed to be by the queen's commission (r). But still *they were called only conservators, wardens, or keepers of the peace, till the [*421] statute 34 Edward 3, c. 1, gave them the power of trying felonies; and then they acquired the more honourable appellation of justices(s).

These justices are appointed by the queen's special commission under the great seal, the form of which was settled by the judges, A. D. 1590(t), and has been very slightly altered since. This appoints all the justices named in it(u), jointly and separately, 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, were 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 were 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 all of them to that dignity, naming them over again in the quorum clause, 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(x). When any justice intends to act under this commission, he sues out a writ of dedimus potestatem, from the clerk of the crown in chancery, empowering certain persons therein named to administer the usual oaths to him (y). This being done, he is at liberty to act.

*Touching the number and qualifications of justices; it was ordained [*422] by 18 Edw. 3, st. 2, c. 2, that two or three of the best reputation in each county, should 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. 3, c. 1, that one lord, and three, or four of the most worthy men in the county, with some learned in the law, should be made justices in every county. Afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by stats. 12 Ric. 2, c. 10, and 14 Ric. 2, c.

(0) Stat. 1 Edw. 3, st. 2, c. 16.

(p) A barretor is said to be a common mover of suits and quarrels either in courts or elsewhere in the country. Jacob's Law Dict. ad verb. See also The Case of Barretry, 8 Rep. 36 b.; post, vol. iv.

(7) Lamb. 19.

oath of office (3 Burn's Just. 908, 29th ed.), an oath that the justice possessed the property qualification (post, p. 423), and the oath provided by 30 & 31 Vict. c. 75, in lieu of the oaths of allegiance, supremacy, and abjuration. By 31 & 32 Vict. c. 72, every justice must now take the oath of allegiance and the

(r) Stat. 4 Edw. 3, c. 2; 18 Edw. 3, st. 2, c. 2. judicial oath therein contained, and must

(8) Lamb. 22.

(t) Ib. 41.

(u) Lamb. 33; Burn. tit. Justices, s. 2. (z) Stat. 26 Geo. 2, c. 27. See also st. 7 Geo. 3, c. 21, amended by 4 Geo. 4, c. 27.

(y) Till July, 1868, these oaths were the

make a declaration to the effect of the oath set forth in 18 Geo. 2, c. 20, but quære, whether the judicial oath is in substitution of the former official oath, or whether a declaration to the effect of that oath must be taken?