(47)

CERTAIN

SELECT OBSERVATIONS

ON

THE SEVERAL OFFICES, AND OFFICERS,

IN THE

MILITIA OF ENGLAND,

With the power of the Parliament to raise the same, as they shall judge expedient, &c.

Collected and found among the Papers of the late Mr. John Pymm,

A Member of the House of Commons,

Writ in the Year 1641. MS.

WHEN kings were first ordained in this realm, the kingdom was

counties was committed to some earl, to govern and defend it against the enemies of the realm. Mirror of Justice, p. 8.

Those earls, after they received their government in each county, divided them into centurians or hundreds; and in every hundred was appointed a centurian or constable, who had his portion and limits assigned him to keep and defend with the power of the hundred, and were to be ready, upon all alarms, with their arms. against the common enemy. These, in some places, are called wapentakes, which, in French, doth signify taking of arms. Mirror, p. 10, 12. Henry VIII. folio. 16, 17.

King Alfred first ordained two parliaments to be kept every year, for the government of the people, where they were to receive laws and justice. Mirror, p. 10, 11.

The peers, in parliament, were to judge of all wrong's done by the king to any of his subjects. Mirror, p. 9.

The ancient manner of choosing and appointing of officers, was by those over whom their jurisdiction extended.

Instances.

1. Tythingman: this man was, and at this day is, chosen by the men of his own tything, and by them presented to the leet, to be sworn for the true execution of his office.

2. Constable: this officer is chosen by the inhabitants who are to be governed by him, and those of the place where his jurisdiction lieth, and presented unto the leet to be sworn.

3. Coroner: this officer hath jurisdiction within the whole county, and therefore was chosen by the freeholders of the county, in the countycourt. Cook's Magna Charta, p. 174, 175, 559.

4. Such as had charge to punish such as were violaters of MagnaCharta; these were chosen in the county-court, as appeareth by Stat. 28. Ed. I. c. 1. 17.

5. Sheriffs: were, in time past, and by the common law, to be chosen likewise in the county-court. Lamb. Saxon laws, fol. 136. stat. 28. Ed. I. c. 8, 13. Cook's Magna Charta, 175, 559. Mirror, p. 8.

6. Lieutenants of counties (anciently known by the name of Heretoch) were chosen in the county-court (which Cook upon Magna Charta, p. 69. calls the folkmote.) Lamb. Saxon laws, folio 136. Mirror, p. 8, 11, 12.

7. Majors and bayliffs, in boroughs and towns corporate, are chosen by the commonalty of the same corporation within their jurisdiction.

8. Conservators of the peace were anciently chosen by the freeholders in the county-court. Cook's Magna Charta, 558, &c.

9. Knights for the parliament are to be chosen in the county-court, stat. 7. H. IV. cap. 15. 1. H. V. 1. 8. H. VI. cap. 7. 10. H. VI. cap. 2.

10. Verderers of the forest are chosen within their jurisdiction, by the inhabitants. Cook's Magna Charta, 559.

11. Admirals, being the sheriffs of the counties, as Selden in his Mare Clausum, p. 169, 188, affirms, must be chosen as the sheriffs were, viz. in the county-court. But the parliament of R. II. folio 29, saith, they are chosen in the parliament, the representative body of the realm, because they had the defence of the realm by sea committed unto them.

12. The captain of Calais, viz. Richard Earl of Warwick, in the time of Henry VI. refused to give up his captainship of Calais unto the king, because he received it in parliament. Cowel's interpreter in the word Parliament.

13. The lord chancellor: to whom is committed the great seal of England, being the publick faith of the kingdom, was in former times chosen in parliament. Lamb. Archeion, p. 48. Dan. Chronicle, p. 189, 148, 195.

14. Lord treasurer: an officer to whom is of trust committed the treasure of the kingdom, was, in like manner, chosen in parliament.

15. Chief justice: an officer unto whom is committed the administration of the justice of the realm, was chosen in parliament. Lamb. Archeion, p. 48. ut supra.

Anno 15. Ed. III, the king was petitioned in parliament, that the high officers of the kingdom might, as in former times, be chosen in parliament. To which the king yielded, that they should be sworn in

parliament. Dan. Chronicle, p. 195. Quære the parliament roll and petitions.

And it appeareth, by a printed statute, Anno 15 Ed. III. cap. 3. that the great officers of the kingdom were sworn to maintain Magna Charta.

16. The great council of the king and kingdom, namely, the parliament, is chosen by the commons; for they choose the knights and citizens, and burgesses, or barons, for so the citizens were anciently called; and the cinque-ports retain that name to this day.

And this was, as I conceive, the ancientest constitution of the kingdom, for choosing of their officers.

In the next place, it will be requisite to inquire, which of these officers are now altered, and by what authority. And, first, of sheriffs:

The choice of sheriffs was first taken from the freeholders by the statute of 9 Edward II, and the choice of them committed to the lord chan cellor, treasurer, the barons of the exchequer, and the justices of either. bench. Cook's Magna Charta, p. 559.

This election is to be made the morrow after All Souls Day in the exchequer, by statute 14 Edward III, c. 7.

Quere 1. If they choose none at that day and place, but at some other time, whether the choice be good? Or if he be chosen by any

other ?

Objection. The king himself doth usually make and appoint sheriffs every county by his prerogative.

Solution. It hath been agreed by all the judges, that the king cannot appoint any other to be sheriff, than such as are named and chosen according to the statute of Lincoln. Cook's Magna Charta, p. 559.

If so, then it is questionable, whether the making of Mr. Hastings sheriff of Leicestershire be warrantable by law, or not?

Quære 2. If no sheriff be legally chosen, whether the freeholders of the county shall not choose one, as they were accustomed, before the making of the stat. of 9 Ed. II for these reasons.

J. If there be no sheriff legally chosen, there will be a failure of justice, which the law will not permit.

2. Because the statute is in the affirmative, and therefore doth not altogether take away their power of choosing, because affirmative statutes do not alter the common law.

Next, let us consider the choice of justices of the peace, who, as they are commissioners of the peace, are not officers by the common law; and, therefore, this case will differ in some respects from the former, it being an office created by statute.

1. I conceive that no court may be erected without the authority of parliament: for the court of First Fruits was erected by stat. 32 Henry VIII, cap. 45. the Court of Wards by stat. 32. Henry VIII. cap. 46.

the Court of Justice in Wales by stat. 34. H. VIII. c. 26. And power to erect courts given I Mar. sess. 2. cap. 10. And it was resolved in this parliament, at the trial of the Earl of Strafford, that the court at York was against law, albeit it hath had continuance these hundred years, because it was not erected by parliament.

And justices of the peace, being judges of record, were first ordained by statute, as appeareth by 18 Ed. III. cap. 2, and 34 Ed. III. cap. 1, with such other additions of power, as later statutes have given unto them.

Justices of peace then having their being by vertue of the statute-law, they are to be ordained in the same manner as the statutes prescribe, and not otherwise :

1. After their first institution, the statutes did leave the choice of them indefinitely in the crown, as I conceive, until the statute of 12 R. II. 27, which statute doth instruct the chancellor, treasurer, keeper of the privy-seal, steward and chamberlain of the king's house, the clerk of the rolls, the justices of both benches, barons of the exchequer, and others, to name and make them.

1

*

2. Other statutes do appoint what persons shall be chosen to be justices of the peace; namely, such as reside in the same county where they are justices of peace, as stat. 12. R. II. c. 10. And they must be of the most sufficient knights, esquires, and gentlemen of the same county, stat. 17. Rich. II. 10. and dwelling in the same county, 2 H. V. stat. ii. cap. 1. (except lords, and justices of assizes) upon this last statute, it may be doubted if choice may be made of any lords, and justices of assizes, which have no residence, or estate, in the county where they are so made justices of the peace; which, if it doth, it doth repeal all former statutes, which confines them to such persons as are of the same county; which I conceive is against their meaning, for that "statute doth only dispence with the residence of lords and justices of assize, because men of the same county, inhabiting in the county where they are justices of peace, in regard of their other employments in the commonwealth, which necessarily requireth their absence, and so it amounteth only to a dispensation for their residency.

Objection. The common practice is, that the lord keeper doth appoint whom he pleases, and that by virtue of the statute of 18 Henry VI. cap. 1.

Solution, True! such is the practice; but the doubt is, how warrantable his act is? for the statute of 18 H. VI. doth give the lord chancellor (alone by himself) no other power, but in case there be no men of sufficiency in the county, and where none of twenty pounds per annum are to be found. For, in such case, he hath power to appoint such as he conceives are men most fit. But, in case there are men of sufficient estates in the county to be found, he must join with the others mentioned in the statute, viz. the treasurer, privy-seal, &c. who have a joint and undivided power with him.

If this be so, then it may be doubted, whether the lord viscount Faulkland, being no peer of the realm, Sir Peter Miche, Sir Edward Nichols, of late put into the commission of the peace, in many counties

of this kingdom, are, by the law, capable of being justices of the peace in those counties where they do not reside? Et sic de similibus.

Quare also, whether a justice of the peace, being once legally chosen according to the statute beforementioned, may be put out at the pleasure of the lord keeper alone, without any just cause alledged, for being a justice of record, whether some matter of record must not appear to disable him? for, being settled by law, he is to be displaced by law, and not upon displeasure or surmise.

3. A third office is, the lieutenants in every county, in former times known (for the name only is out of use) by the name of Heretoch, Lamb, Saxon Laws, fol. 136. And here will fall into debate the ordinance in parliament, about the settling of the militia of the kingdom.

The choice of these, as was formerly mentioned, was by the freeholders in the county-court: but, of later times, they have exercised the same power, being appointed by the king, under the shadow of his prerogative.

First, it is to be demanded, whether the king's prerogative can take away that ancient right, which the subjects had, by law, invested in them? If so, then the king, by his prerogative, may do wrong, which is contrary to a maxim in law. Fortescue de Legibus, &c. fol. 25. If not, then whether the power of choosing a lieutenant, or Heretoch, doth not yet remain in the subject, so as they may now choose one as well, and by the same right they did in former times?

If freeholders of a county may yet choose, then I conceive the parliament, being the representative body of the whole kingdom, may appoint lieutenants; because they include them, or, at least, they are not excluded from such a power, no more than where the statute, giving power unto justices of peace to inquire of a riot, doth exclude the power of the king's bench, which no man will affirm. And therefore the ordinance of the militia is legal.

That the parliament hath power to make an ordinance, may be proved A minori. For,

If the inhabitants of a town, without any custom to inable them, may make an ordinance, or bye law, for the reparation of their church, highway, or bridge in decay, or any the like thing, being for their publick good, and upon a pecuniary pain, in case of neglect, and if it be made by the greater part, that it shall bind all within the town, as hath been agreed for law, 44 Ed. III. fol. 19. Cook. Lib. V. fol. 63, the Chamberlain of London's case, Clarke's case, and Jefferyes's case, ibid. fol. 64, 65.

If a township be amerced, and the neighbours, by assent, shall assess a certain sum upon every inhabitant, and agree, that if it be not paid by such a day, that certain persons, thereto assigned, shall distrain; and, in this case, the distress is lawful. Doctor and Student, fol. 74, 6, cap. 9.

If a bye law, that every one that holdeth land shall pay one penny towards the reparation of a church, and, for non-payment, shall forfeit to the churchwardens twenty shillings, be good and doth bind, as the book saith, 21. H. VII. fol. 20. holdeth.