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

• 1. Tythingman. This man was, and at this day is chosen by the men of his owne tything, and by them presented to the Leete to be sworne 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.
• [Page]3. Coroner. This Office hath jurisdiction within the whole County, and therefore was chosen by the Freeholders of the County, in the County-court. Cooke Magna Carta, p. 174, 175, 559.
• 4. Such as had charge to punish such as were violaters of Magna Carta, these were chosen in the County-Court as appeareth by Stat. 28. Ed 1. c. 1.17.
• 5. Sheriffe. 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. 1. c. 8, 13. Cookes Magna Carta, 175, 559. Myrror p. 8.
• 6. Lieutenants of Counties (anciently known by the name of He­retoch) were chosen in the County-court, (which Cooke upon Magna carta p. 69. cals the Folkmote) Lamb. Saxon laws, fol. 136. Myrror pag. 8. 11, 12.
• 7. Majors and Bayliffes in Burrowes 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, Cooke, agna C arta, 558, &c.
• 9. Knights for the Parliament are to be chosen in the County-court Stat. 7 H. 4. cap. 15. 1 H. 5.1.8 H. 6. cap. 7.10 H. 6. cap. 2.
• 10. Verderers of the Forrest are chosen within their jurisdiction by the inhabitants. Cooke magna Carta 559.
• 11. Admirall, being the Sheriffs of the Counties, as Selden in his Mare clausum, p. 169, 188. affirmes, must be chosen as the Sheriffes were, viz. in the County-court. But the Parliament of R. 2. fol. 29. saith they were chosen in the Parliament the representative body of the Realme, because he had the defence of the Realm by Sea commit­ted unto him.
• 12. The Captaine of Callis, viz. Rich. Earle of Warwick in time of H. 6. refused to give up his Captain-ship of Callis unto the King, be­cause he received it in Parliament. Cowels Interpreter in the word Parliament.
• 13. The Lord Chancellor to whom is committed the great Seale of England, being the publique faith of the Kingdome, was in former times chosen in Parliament, Lamb. Archeion. p. 48. Dan. chronicle, p. 139, 148, 195.
• 14. Lord-Treasurer, an Officer to whom is of trust committed the Treasure of the Kingdome, was in like manner chosen in Parliament.
• 15. The Chief-Justice an Officer unto whom is committed the ad­ministration [Page]of the justice of the Realm was chosen in Parliament, Lamb. Archeior. p. 48. ut supra.
  • Anno 15. Ed 3. the King was petitioned in Parliament, that the high Officers of the Kingdome might (as in former times) be chosen in Parliament, to which the King yeelded that they should be sworn in Parliament, Dan. chronicle p. 195. Quaere the Parliament role and petitions.
  • And it appeareth by a printed Statute Anno 15 Ed. 3. cat. 3, that the great Officers o [...] the Kingdome were sworne to maintaine Magna Carta.
• 16. The great Councell of the King and Kingdom namely the Par­liament, is chosen by the commons, for they choose the Knights and Citizens, and Burgesses, or B [...]rons, for so the Citizens were anciently called, and the Cinqueports retaine that name to this day.

And this was, as I conceive, the ancientest Constitution of the King­dome for choosing of their Officers.

In the next place it will be requisite to enqui e which of these Offi [...]ers are now altered, and by what au [...]hority; and fi [...]st of Sheriffes.

The choice of Sheriffes was first taken from the Freeholders by Stat. 9 Ed. 2. and the choice of them committed to the Lords Chan­cellor, Treasurer, the Barons of the Exchequer, and the Justices of either Bench, Cooke magna Carta, p. 559.

This election is to be made the morrow after All-soules-day in the Exchequer, by stat. 14 Ed. 3. c. 7.

• 1. Quaere. 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.
  • Ob. The King himselfe doth usually make and appoint Sheriffes of every County by his Prerogative.
  • Sol. It hath been agreed by all the Judges that the King cannot ap­point any other to be Sheriffe then such as are named and chosen ac­cording to the statute of Lincoln. Cooke magna Carta p. 559.
    • If so, then it is questionable whether the making of M. Hastings She­riffe of Leicestershire be warrantable by Law or not.
• 2. Quaere. If no Sheriffe 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. 2. for these reasons.
  • [Page]1. If there be no Sheriffe legally chosen, there will be a fayler of justice which the Law will not permit.
  • 2. Because the statute is in the affi mative, and therefore doth not altogether take away their power of choosing, because affirmative statutes doe 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 sta [...]u [...]e.

1. I conceive that no Cou [...]t may be erected without the authority of Parliament. For the Court of first fruits was erected by stat. 32. H. 8 cap. 45. the Court of Wards by stat. 32 H. 8. cap. 46. the Court of Justice in Wales by stat. 34 H. 8. cap. 26. And power to erect Courts given, 1 Mar. s [...]ss 2. cap. 10. And it was resolved in this Parliament at the try all of the Earle of Strafford, that the Cou [...]t at Yorke was against Law, albeit it hath had continuance these 100 yeeres, because it was not erected by Parliament.

And Justices of peace being Judges of Record were first ordained by stat. as appeareth by 18 Ed. 3. cap. 2. And 34 Ed. 3. cap. 1. with such other addition 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 choise of them indefinitly in the Crown (as I conceive) untill the statute of 12 R. 2.27. Which statute doth intrust the Chancellor, Treasurer, Keeper of the privy seale, Steward and Chamberlaine of the Kings House, the Clarke of the Rolles, the Justices of both Benches, Barrons of the Exchequer and others, to name and make them.

2. Other statutes doe 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. 2. c. 10. And they must be of the most sufficient Knights, Esquires, and Gentlemen of the same County. Stat. 17. Richard 2.10. and dwelling in the same County, 2 Hen. 5. Stat. 2. c. 1. (Except Lords and Justices of Assizes) upon this last Statute it may be doubted if choyce 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 repeale all former statutes which confines them to such persons as are of the [Page]same County, which I conceave is against their meaning, for that statute doth onely 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 imployments in the Common-wealth, which necessarily requireth their absence, and so it amounteth onely to a dispensation for their residency.

• Ob. The common practise is that the Lord Keeper doth appoint whom he please, and that by vertue of the Statute of 18. Henry 6. Cap. 1.
• Sol. True! such is the practice, but the doubt is how warantable his Act is, for the statute of 18. H. 6. doth give the Lord Chauncellor (alone by himselfe) no other power but in Case there be no men of sufficiency in the County, and where none of 20.l. per annum are to be found. For in such Case hee hath power to appoint such as hee conceives are men most fit. But in case there are men of sufficient e­states in the County to be found, he must joyne with the others men­tioned in the statute, viz. the Treasurer, privy Seale, &c. who have a joynt and undivided power with him.
  • If this be so, then it may be doubted whether the Lord Vicount Fauckland being no Peere of the Realme, Sir Peter Miche, Sir Edward Nichols of late put into the Commission of the peace, in many Counties of this Kingdome, are by the Law capable of being Ju­stices of the peace in those Counties where they doe not reside? Et sic de similibus.

Quere also, whether a Justice of the peace being once legally cho­sen according to the statute before mentioned, may be put out at the pleasure of the Lord Keeper alone, without any just cause alleged, for being a Justice of record, whether some matter of record must not appeare 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 onely is out of use) by the name of Here [...]ch, Lamb. Saxon Lawes. fol. 136. And here will fall into debate the Ordinance in Parliament, about the setling of the Militia of the Kingdome.

The choise 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 Kings prerogative can [Page]take away th [...]t ancient right which the Subjects had by Law in­vested in them? if so! then the King by his prerogative may doe wrong, which is contrary to a maxime in Law. Fortescue de legibus, &c. fol. 25. If not, then whether the power of chusing a Lieutenant or Heretoch doth not yet remaine in the Subject, so as they may now chuse one aswell, and by the same right they did in former times?

If Freeholders of a Co [...]nty may yet chuse, then I conceive the Par­liament, being the representative body of the whole Kingdome may appoint Lieutenants: because they include them, or at least they are not excluded from such a power. No more then where the statute giving power unto Justices of peace to enquire of a riot, doth ex­clude the power of the Kings Bench, which no man will affirme. And therefore the ordinance of the Militia is legall.

That the Parliament hath power to make an Ordinance, may be proved A minori. For

If the inhabitants of a Towne, without any custome to inable them may make an ordinance, or by-Law for the reparation of their Church, Highway, or Bridge in decay, or any the like thing being for their publike good, and upon a pecuniary paine in case of neglect, and if it be made by the greater part, that it shall bind all with­in that Towne, as hath beene agreed for Law. 44. Ed. 3. fol. 19. Cook. lib. 5. fol. 63 the Chamberlaine of Londons case, Clarkes case and Jeffryes case. ibid. fol. 64, 65.

If a Township be amerced and the Neighbours by assente shall assesse a certaine sum upon every inhabitant, and agree that if it be not payd by such a day, that certaine persons thereto assigned shall distraine: and in this case the distresse is lawfull. Doctor and student, fol. 74.6. cap. 9.

If a by-Law that every one that holdeth Land shall pay 1.d. to­wards the reparation of a Church, and for non payment shall forfeit to the Church-wardens 20.s. be good and doth bind, as the booke saith 21. H. 7. fol. 20 Holdeth.

If a Towne make by-Lawes, and they shall binde every one of the Towne if it be for the common good, as 11. H. 7. fol. 14. then by the same reason may the Parliament make ordinances, and by-Lawes for the common good of the kingdome, as shall bind all. For if a Towne may make Ordinances much more may the Knights and Bur­gesses of the Parliament, because they have their power ad faciendum & consentiendum. As appeareth of record under their hands, and [Page]seales in Chauncery, in the returne of their severall elections for Knights and Burgesses.

Lastly, as every private man is by Law bound to preserve the pe [...]ce, as in case an affraye be made by two, and a third man standing by shall not use his best indeavor to part them, and preserve the peace, he may be indited and fined for it: why may not the Parliament being intrusted with the preservation of the peace of the Realm, make an Ordinance fot the preservation of the peace in case of apparant danger?

Ordinance made in Parliament 8. Ed. 2. for the preservation of the alienation of the Kings Land, and Fines set upon such as presume to breake them. rot. Parl. 28. H. 6. art. 29.

The Judges and Courts at Westminster, may make an Ordi­nance for Fees to be paid unto the Clearke of their Courts, and for bar fees taken by Sheriff and Jaylors. 21. H. 7. fol. 17.

An Ordinance made in Parliament 21. Ed. 3. fol. 60 for exemption of the Abbot of Bury from the jurisdiction of the Bishop of Norwich, Seldens Titles of Honor. pag. 702. 12. H. 7. fol. 25.

Heyborne and Keyl [...]nds case. M. 14. Ed. 4. rot. 60. in Bauco Reg. Crooke pag. 25. who had his money taken away from him by vertue of an Ordinance, and was adjudged that the Ordinance did bind him.

Whether an Infant may be a Colonell, Admirall, &c.

• 1. NOne by the intention of the Law can doe knights service, before hee be xxi yeeres of age. And this is the reason of wardship.
• 2, It is an office of trust which may not be executed by a deputy.
• 3. Such an office requires personall attendance, for otherwise the County may be overthrowne unawares, In the absence of such a Governour from his charge.