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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 chancellor, 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 mortow after All Souls Day in the exchequer, by statute 14 Edward III. c.7.
Qucre 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 in 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. Hasting 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.
1. 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 ot 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.
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 statụte 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.
Qucre 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 ņot, 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 parljament, 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, thereth assigned, shall distrain; and, in this case, the distress iş 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 church wardens twenty shillings, be good and doth bind, as the book saith, 21. H. VII. fol. 20. holdeth.
If a town make bye laws, and they shall bind every one of the town, if it be for the common good, as 11 H. VII, fol. 14, then, by the same reason, máy the parliament make ordinances, and bye laws, for the common good of the kingdom, as shall bind all. For, if a town may make ordinance, much more may the knights and burgesses of the parliament, because they have their power ad faciendum et consentiendum; as appeareth of record under their bands, and seals in chancery, in their return of their several elections for knights and burgesses.
Lastly, as every private man is, by law, bound to preserve the peace; as in case an affray be made by two, and a third man standing by shall not use his best endeavour to part them, and
may be indicted and fined for it: why may not the parliament, being intrusted with the preservation of the peace of the realm, make an ordinance for the preservation of the peace in case of apparent danger?
Ordinance made in parliament 8 Ed. II, for the preservation of the alienation of the king's land, and fines set upon such as presume to break them. Rot. Parl. 28 H. VI. Art. 29.
The judges and courts at Westminster may make an ordinance, for fees to be paid unto the clerk of their courts, and for bar fees taken by sheriff and gaolers, 21 H. VII. fol. 17.
An ordinance made in parliament, 21 F.d. III, fol. 60, for exemption of the abbot of Bury from the jurisdiction of the bishop of Norwich. Selden's Titles of Honour, page 702, 12 H. VII, fol. 25.
Heyborne and Keylond's case, M. 14 Ed. IV, Rot. 60, in Banco Reg. Crook, page 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 colonel, admiral, &c.?
1. None, by the intention of the law, can do knights service, before he be twenty-one years 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 personal attendance, for, otherwise, the county may be otherthrown unawares, in the absence of such a govemor from his charge.
AN ARGUMENT OF LAW,
THE BILL OF ATTAINDER OF HIGH TREASON
THOMAS EARL OF STRAFFORD:
At a Conference in a Committee of both Houses of Parliament.
BY MR. ST. JOHN,
His Majesty's Sollicitor General,
Published by Order of the Commons House. London, printed Anno Domini, 1641.
Quarto, containing eighty Pages.
My Lords, THI "HE knights, citizens, and burgeses of the commons house of
parliament have passed a bill for the attainting of Thomas, Earl of Strafford, of high treason. The bill hath been transmitted from them to your lordships. It concerns not him alone, but your lordships and the commons too, though in different respects.
It is to make him as miserable a man, as man or law can make him.
Not loss of life alone, but with that of honour, name, posterity, and estate; of all that is dear to all.
To use his own expression, an eradication of him both root and branch, as an Achan, a troubler of the state, as an execrable, as an accursed thing
This bill, as it concerns his lordship the highest that can be in the penal part, so doth it, on the other side, as highly concern your lordships and the commons, in that which ought to be the tenderest, the judicatory within, that judge not them who judge him; and, in that which is most sacred amongst men, the publick justice of the kingdom.
The kingdom is to be accounted unto for the loss of the meanest member, much more for one so near the head.
The commons are concerned in their account for what is done, your lordships in that which is to be done.
The business, therefore, of the present conference is to acquaint your lordships with those things that satisfied the commons in passing of this bill; such of them as have come within my capacity, and that I can remember, I am commanded from the commons, at this time, to present unto your lordships.
My lords, in judgments of greatest moment, there are but two ways for satisfying those that are to give them ; either the lex lata, the law