oblige him very often to contradict himself, to make and unmake his decisions: it would tend to confound all ideas of right among the mass of the people; as they would find it difficult to tell whether the prisoner was discharged by his innocence or obtained a pardon through favour. But with respect to the doctrine of Blackstone as to the incompatibility of pardons with a democratic polity, it is proper to observe, that in the United States of America, the president has an unlimited power to grant reprieves and pardons for offences against that republic, except in cases of impeachment: and, indeed, Chancellor Kent argues that the power of pardoning may exist with greater safety in free states than in any other forms of government, because abuses of the discretion unavoidably confided to the magistrate in granting pardons, are much better guarded against by the sense of responsibility under which he acts. It is, however, remarkable that the American constitution does not entrust to the president the prerogative of pardoning in cases of impeachment, whereas the English law (stat. 12 & 13 Will. III. c. ii.) only provides that a pardon shall not be pleaded in bar to an impeachment, and leaves the prerogative of mercy in other respects without limitation.

2

There now remains nothing to speak of but execution, the completion of human punishment. And this, in all cases, as well capital as otherwise, must be performed by the legal officer, the sheriff or his deputy, whose warrant for doing so was anciently by precept under the hand and seal of the judge, as it is still practised in the court of the lord high steward upon the execution of a peer3; afterwards it was established', that in case of life the judge may command execution to be done without any writ; and now the usage is, for the judge to sign the calendar, or list of the prisoners' names, with their separate judgments in the margin, which is left with the sheriff. As for a capital felony, it is written opposite to the prisoner's name, “let him be hanged by the neck;" formerly, in the days of Latin and abbreviation", "sus. per coll." And this, says Blackstone, is the only warrant that the sheriff has for so material an act as taking away the life of another. But on judgment of death given in parliament, execution is done by virtue of the king's writ.

The sheriff cannot alter the manner of the execution, by substituting one death for another, without being guilty of felony himself. And Sir Ed. Coke and Sir Matthew Hale hold, that even the king cannot change the punishment of the law by altering the hanging into

beheading; though where

beheading is a part of the sentence, the king may remit the rest. But others have thought, and, as Blackstone holds, more justly, that this prerogative being founded in mercy and immemorially exercised, is part of the common law.1

To conclude: Blackstone informs us, that if upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again. 2

We have now reviewed the whole system of the administration of justice, both civil and criminal, in the English constitution. The nature and authority of certain magistrates and officers, mostly of a subordinate description, some of whom are invested with both judicial and executive, and others with only executive or ministerial, functions, remain to be considered; and this will be the subject of the ensuing chapter.

CHAPTER XXII.

OF SHERIFFS, CORONERS, JUSTICES OF THE PEACE, CONSTABLES, SURVEYORS OF HIGHWAYS, OVERSEERS OF THE POOR, AND OF MUNICIPAL CORPORATIONS.

We have now chalked out the chief features of the administration of the judicial branch of the sovereign power. The various tribunals provided by the English constitution for the dispensation of justice have been described, their respective provinces pointed out, and the mode in which the stream of justice is made to flow throughout the kingdom from the courts at Westminster Hall has been shewn: but our survey of this, as well as the executive branch of the government, would be incomplete without an account of certain magistrates and officers who have a jurisdiction and authority dispersedly throughout the kingdom, and by means of whom the local government of the counties, hundreds, and parishes of the realm is conducted. These are principally sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor. It is a remarkable feature in the constitution of England, that the provinces whereof

1 Foster, 270. Fitzh. Nat. Brev. 144. h. 19. Rimer, Fed. 284.

2 Blackst. Com. b. iv. c. xxxii. 2 Hale, P. C. 412. 2 Hawk. P. C. 463. as to the time of execution, see stat. 6 & 7 W. IV. ch. 30.

the kingdom is composed are not (as in most other countries) governed by prefects, governors, or other salaried officers of the crown sent from the seat of government and under the direct control of the executive. A system of that description has the recommendations of great regularity, vigour, and uniformity of action, and is perhaps the best in countries where the people are unruly, semi-barbarous, or fond of constant changes; and also where the natural means of government arising from social subordination do not exist, or have been materially weakened by some convulsion. Our English civil polity is constructed on perfectly different principles. Its main principle is to engraft legal power upon social power, and thus make use of the means naturally produced by the social state of the people to govern them by law. Now there are two species of government into which men living in a social state fall by a kind of instinct. The first is government by patriarchal superiors or chiefs, who are respectable for their personal qualities or their rank, or powerful from their wealth, especially that which consists in land; and the second is government by magistrates elected by those who are to obey them.. These are the two forms of government upon which the whole system of our local and provincial polity is constructed. They are both productive of peace and harmony, because they are agreeable to nature; and they are also (under due regulation) highly favourable to liberty.

We shall, accordingly, see that our constitution desires that the people may govern themselves in those things which appertain to their local interests; not looking upon them in one light only, as members of the nation, but also considering the smaller aggregations or communities which the wants and interests of men naturally lead them to form within the kingdom on analogous grounds to those on which the general body or family of mankind have fallen into the grand divisions and communities called nations or kingdoms. Thus some ancient local magistrates and officers are elected by the people; and as for the others, the authority of the crown is (or ought to be) entrusted to those persons in each county whom the mass of the people there consider as their natural superiors and rulers by a kind of tacit consent. But to prevent this local government from falling into irregularities or degenerating into oligarchy, the law extends its sceptre over the whole, to keep both magistrates and people within those bounds which the constitution has set for them.

By these means divers important benefits are secured to the realm. The administration of the provinces being conducted by persons who have the greatest stake in their good and orderly government, and who highly estimate the duty, the honour and the advantage of exercising authority over those among whom all their chief interests

and possessions lie, it is placed in the hands of persons who receive no remuneration for their services. Thus the public treasury is greatly spared; the independence of parliament to which nothing can be more dangerous than a great number of salaried placemen, is preserved; and the people are induced cheerfully to obey magistrates who are not strangers sent among them to perform duties for the sake of official emoluments, but their neighbours to whom they are well accustomed, and of whose motives and independence they can enter tain no suspicion.

These peculiarities of our English system of internal polity, perhaps, in some degree explain that remarkable willingness to obey and even assist the law, which has sometimes excited the admiration of foreigners in this country; for the people naturally feel no distrust of or dislike to the authority of the laws, when it is wielded either by great magistrates, whose dignity and character forbid the supposition of misconduct, or by persons well known to and living among them in a private capacity, and who by their social position and weight are obviously the natural depositorics of power, unless degraded by some personal vice or other disqualification. Thus we have seen in the preceding chapter, that the common law requires hue and cry to be made for the pursuit of offenders (which is a species of popular police), and expects not only peace-officers, but all subjects of the crown, to arrest a felon; a duty which every Englishman is ready to perform according to his power, though considered in many other countries as exclusively the business of certain public servants, and highly derogatory to a man of condition or respectability.1

These important advantages must be ultimately attributed to the mixture of the monarchical, aristocratic, and democratic principles in this part of our civil polity: the first maintaining the unity and vigour of the system; the second furnishing those elements of subordination and social government whereon it is founded; and the third preventing the two former from degenerating into despotism or oligarchy, and infusing new health and nerve into the whole. These reflections also serve to explain why it is that in England political power, and the management of public affairs, are not exclusively concentrated in the capital, but remain in the hands of the whole nation. It would, indeed, obviously be otherwise, if the provinces were governed by paid servants of the crown; a constitution which would not only deprive them of their independence and spirit, but

1 Sir Thomas Smith Says, "Every Englishman is a sergeant to take the thief; and who sheweth negligence therein do not only incur evil opinion therefore, but hardly shall escape punishment."

draw persons of great estate and condition to the seat of government, patronage and power, from their native counties where their presence might appear useless, and their authority impertinent: and additional restraints on liberty would then become necessary; for when the people are no longer governed by influence, they must be ruled by power. If those institutions whereby the people are governed in detail by the most influential men among themselves in each separate division or community, are subverted, the arm of the executive government must be strengthened, that it may be enabled to rule the whole in one mass, and on an uniform system. That such a change would be in the end highly detrimental to public and individual liberty, requires no proof.

Agreeably to these principles, the executive government of every county is vested in the sheriff, who ought to be, and usually is, a person of condition and estate residing there; the administrative part is entrusted to the justices of the peace, including all the principal persons within the province, who also (as we have seen) exercise a criminal jurisdiction; the queen's peace is kept by constables elected by the people; and the administration of each parish is committed to churchwardens, vestries, overseers of the poor, and surveyors of high roads, for the most part appointed by the same popular method.

The cities, boroughs, and considerable towns of the realm, as they afford peculiar facilities for self-government and differ materially from the agrarian districts, have an independent and peculiar constitution. They clearly require a government sufficiently vigorous to maintain peace and good order among the mass of citizens that inhabit them, and adapted to the many wants incident to their peculiar nature; but if they were placed under the immediate power of the executive, their public liberty would be at an end. Our public law has therefore wisely constructed their municipal constitutions on a very popular model. They are, in truth, little municipal republics, electing their own magistrates, and managing their municipal affairs by means of deliberative assemblies, by virtue of their charters and of acts of the legislature.

But the authority of all these magistrates and officers, whether in counties or towns, emanates equally from the crown; and the jurisdiction of the superior courts of law, especially the court of queen's bench, overshadows the whole system, keeping all her majesty's subjects within the limits defined by their allegiance to her person and dignity, and their obedience to the law of the land.

Of these institutions we must now take a more detailed view. It is, however, necessary first to consider briefly certain important statutes relating generally to offices. By stat. 12 Ric. II. c. ii.',

1 Co. Litt. 234.