The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER VII.

The Subject Continued. Of Sheriffs and Coroners.

The sheriffis an officer of high respectability in our juridical system, and was known to the most early ages of the common law.

Among the Saxons, his power was very great and extensive—judicial as well as ministerial. In his ministerial character, he executed the writs of the king and the judgments of his courts: in his judicial character, the sheriff presided in the several courts of justice comprehended within the sphere of his jurisdiction. He was chosen in the county court by the votes of the freeholders; and, like the king himself, says Selden,a was entitled to his honour by the people’s favour.

All the other nations of Gothick and German origin, who, on the ruins of the Roman empire, founded kingdoms in the different parts of Europe, had officers of the same kind with the sheriffs of the Anglo-Saxons. This is a strong evidence of their high antiquity, as well as general respectability.b In some of the Gothick constitutions, the sheriffs were elected by the people, but confirmed by the king. The election and appointment were made in this manner: the people chose twelve electors; those electors nominated three persons to the king; from those three the king selected one, who was the confirmed sheriff.c

The popular elections of the sheriffs, in England, were lost by the people in the reigns of Edward the second1 and Edward the third; and a new mode of appointment was substituted in their place.d In the time of Lord Chancellor Fortescue, the manner of the election of sheriffs was as follows. Every year there met, in the court of exchequer, all the king’s counsellors, as well lords spiritual and temporal, as all other the king’s justices, all the barons of the exchequer, the master of the rolls, and certain other officers. All these, by common consent, nominated of every county three persons of distinction, such as they deemed best qualified for the office of sheriff, and presented them to the king. Of the persons so nominated and returned, the king made choice of one, who, by virtue of the king’s letters patent, was constituted high sheriffof that county, for which he was so chosen.e This mode of nomination and appointment still continues in England.f

It has been usual to appoint them annually. But in the reign of Henry the fifth,2 we find from this custom a parliamentary exception, rendered very remarkable by the reason assigned for it. The king is permitted to appoint sheriffs for four years; “because by wars and pestilence there are not a sufficient number remaining, in the different counties, to discharge this office from year to year.”g

By a parliamentary regulation made in the reign of Edward the second, and repeated in that of Edward the third, it was directed that sheriffs should be chosen from such persons as had lands in their shires, and that those lands should be sufficient to answer to the king and his people, if grieved.h

By a law of the United States, a marshal is appointed for each district for the term of four years; but is removable from his office at pleasure.i As no particular mode is specified by the law for appointing the marshal, his appointment falls, of course, under the general provision made by the national constitution.j The president nominates, and, with the advice and consent of the senate, appoints him. His powers and his duties are, in general, coincident with those of a sheriff.k

By the constitution of Pennsylvania,l sheriffs are chosen by the citizens of each county: two persons are chosen for the office; one of the two is appointed by the governour. We observe, here, another instance of the old Saxon and German customs revived in the constitution of this commonwealth.

Our sheriffs are elected and hold their offices for three years, if they behave themselves well; but no person shall be twice chosen or appointed sheriff in any term of six years. The converse of this regulation we find in an act of parliament—No man, who has served the office of sheriff for one year, can be compelled to serve it again within three years afterwards.m The reason of this converse regulation may be collected from another act of parliament. The expense which custom had introduced in serving the office of high sheriff became so burthensome, that it was enacted, that no sheriff 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 may not have less than twenty men in England and twelve in Wales.n

An attention to the powers and duties of the sheriff will disclose, I think, a peculiar propriety in the compound mode of election and appointment, directed by our constitution. He executes the process of courts, and, in his county, is the principal conservator of the peace: so far he is an executive officer, and should be appointed by the governour. He returns jurors: for this reason, he should be chosen by the people. Invested with the double character, he should receive his authority partly from both. As he is elected and appointed for three years, and can serve only once in the period of six years; he is, in a considerable degree, independent, and may, therefore, be presumed impartial in the exercise of his very important duties and powers. Those duties and powers we are now concisely to describe.

The judicial power of the sheriff, which, in former times, was very great and extensive, is, by our juridical system, transferred, with great propriety, to other establishments: for it is obviously incongruous, that executive and judicial authority should be united in the same person.

Permit me here to observe, that the accumulation of unnecessary and even inconsistent powers seems to be the principal objection against the old Saxon institutions. In most other respects, they are not more venerable on account of their antiquity, than on account of their matured excellence. Permit me also here to observe, that, in the correct distribution of the powers of government, the constitution of Pennsylvania approaches, if it does not reach, theoretick perfection.

The ministerial power of the sheriff is of great importance to the impartial administration of justice, and to the internal peace and tranquillity of the commonwealth. He is the chief officer, says my Lord Coke, within the shire. To his custody the county is committed. This custody is three-fold. 1. Of the life of justice; for no suit begins, and no process is served, but by the sheriff. It belongs to him also to return indifferent juries, for the trials of men’s properties, liberties, and lives. 2. Of the life of the law; for, after suits long and chargeable, he makes execution, which is the life and fruit of the law. 3. Of the life of the republick; for, within the county, he is the principal conservator of the peace, which is the life of the commonwealth.o

With regard to process issuing from the courts of justice, the sheriff’s power and duty is, to execute it, not to dispute its validity: though the writ be illegal, the sheriff is protected and indemnified in serving it.p From this general rule, however, one exception must be taken and allowed. He must judge, at his peril, whether the court, from which the process issued, has or has not jurisdiction of the cause.q

The selection and the return of jurors is a most momentous part of the power and duty of a sheriff. It is that part, in which abuses are most fatal: it is that part, in which there is the greatest opportunity and temptation to commit them. Let us speak of former times. In the reign of Edward the first, the parliament was obliged to interpose its authority to give relief to the people against sheriffs, who harassed jurors unnecessarily, by summoning them from a great distance, and who returned such as would not give an impartial verdict. This last abuse, says a modern writerr on the English law, was never perfectly removed till the late act was made for balloting juries. In an account of Cornwall, written by Mr. Carew,3 we are informed, that, in the reign of Henry the seventh,4 an article of charge for the “friendship of the sheriff,” was common in an attorney’s bill.s

As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the authority of a sheriff is important; his duty is proportionably great. To preserve or restore the publick tranquillity, to ensure or enforce the effectual execution of the law, he is invested with the high power of ordering to his assistance the whole strength of the county over which he presides.

The law is mild in its mandates; but it will be obeyed. It knows, it presumes, it will suffer none of its ministers to know or to presume, any power superiour to its own. If any man, says my Lord Coke, however great, might resist the sheriff in executing the king’s writs; it would be regular and justifiable in the sheriff to return such resistance: but such a return would redound greatly to the dishonour of the king and his crown: what redounds to the dishonour of the king and his crown, is against the common law: and, therefore, if necessity require it for the due execution of the king’s writs, the sheriff may, by the common law, take the posse comitatus5 to suppress such unlawful force and resistance.t

When necessity requires it, the sheriff not only may, but must at his peril, employ the strength of his county. In the reign of Edward the second, a sheriff had the king’s writ to deliver possession of land: the sheriff returned that he could not execute the writ by reason of resistance. This was considered as an insult upon the authority, with which he was invested; and because he took not the power of the county in aid of the execution, he was amerced at twenty marks.u

Besides the warrant of the common law, continues my Lord Coke, the sheriff has his letters patent of assistance, by which the king commands, that all archbishops, bishops, dukes, earls, barons, knights, freemen, and all others of the county shall attend, assist, and answer to the sheriff, in every thing which belongs to his office. No man above fifteen and under seventy years of age, ecclesiastical or temporal, is exempted from this service: for so it is by construction of law.

How easily are these cases applied to the United States and to Pennsylvania, under the operation of the fine rule, that the empire of the law is stronger as well as safer than the empire of man!

I proceed to consider the office of coroner. This office, though much neglected, though, perhaps, despised, is an office, both ancient and dignified. It forms no inconsiderable part of a complete juridical system.

In the time of the Saxons, as we are informed by Mr. Selden, he was one of the two chief governours of the county. He was made by election of the freeholders in their county court, as the sheriff was, and from among the men of the chiefest rank in the county.v

By the constitutionw of this commonwealth, sheriffs and coroners are chosen and appointed in the same manner. We see here another revival of the Saxon and German institutions.

To the office of sheriff, that of coroner is, in many instances, a necessary substitute: for if the sheriff is interested in a suit, or if he is of affinity with one of the parties to a suit, the coroner must execute and return the process of the courts of justice.x

But the most important duty and business of a coroner is of another nature. When any person is killed, or dies suddenly, or dies in prison, the coroner must hold an inquest concerning the manner of his death. This inquest must be held upon the view of the body; for if the body cannot be found, the coroner cannot sit. He must certify his inquisition to the court of king’s bench or to the next assizes.y

The lord chief justice of the king’s bench is the supreme coroner of all England, and may exercise that jurisdiction in any part of the kingdom.z

From the statute of Wales, made in the twelfth year of Edward the first, and which, by the remedies provided for Wales, informs us, at the same time, what was the law and practice of England—from this statute we learn, that the coroner was directed to attend and summon a jury, when a man was wounded so dangerously, that his life was despaired. This branch of a coroner’s duty is now totally neglected. “It is a regulation, however,” says the learned observer upon the ancient statutes, “which deserves much to be revived: and I should conceive that this attendance of the coroner with a jury, when a dangerous wound had been received, was to prevent the dying words of the person murdered from being evidence; as this kind of proof, though allowed at present, cannot be too cautiously admitted. It is presumed, indeed, that the words of a person expiring cannot but be true considering the situation, under which he gives the information. But may not a dying man, though a good christian, deprived of expected happiness in life by a wound, received, perhaps, from an enemy, rather wish his punishment more eagerly than he should do? And may not those about the dying person, who are generally relations, repeat what he said more strongly on the trial, than possibly the words were delivered?”a

[a. ]Bac. on Gov. 41.

[b. ]2. Hen. 245.

[c. ]1. Bl. Com. 340

[1. ]Edward II (1284–1327) was king of England from 1307 to 1327.

[d. ]4. Bl. Com. 420.

[e. ]Fort. de laud. c. 24.

[f. ]Wood. 70.

[2. ]Henry V (1387–1422) was king of England from 1413 to 1422.

[g. ]Bar. on St. 386.

[h. ]2. Reev. 78.

[i. ]Laws. U. S. 1. cong. 1. sess. c. 20. s. 27.

[j. ]Art. 2. s. 2.

[k. ]“The marshals of the several districts, and their deputies, shall have the same powers in executing the laws of the United States, as sheriffs and their deputies, in the several states, have by law, in executing the laws of the respective states.” Laws U. S. 3. cong. 2. sess. c. 101. s. 9. The same provision was contained in a prior law, repealed by that above cited. Laws U. S. 2. cong. 1. sess. c. 28. s. 9. Ed.

[l. ]Art. 6. s. 1.

[m. ]St. 1. R. 2. c. 11. 1. Bl. Com. 343.

[n. ]St. 13 and 14. C. 2. c. 21. 1. Bl. Com. 346.

[o. ]1. Ins. 168. a.

[p. ]6. Rep. 54. 9. Rep. 68.

[q. ]10. Rep. 76. 2. Wil. 384.

[r. ]Bar. on St. 185.

[3. ]Richard Carew (1555–1620) wrote The Survey of Cornwall (1602).

[4. ]Henry VII (1457–1509) was king of England from 1485 to 1509.

[s. ]Bar. on St. 458.

[5. ]The power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance.

[t. ]2. Ins. 193.

[u. ]2. Ins. 194.

[v. ]Bac. on Gov. 41.

[w. ]Art. 6. s. 1.

[x. ]4. Ins. 271.

[y. ]1. Bl. Com. 349.

[z. ]4. Rep. 57 b.

[a. ]Bar. on St. 124.