V. Local Magistrates under John. The urgent need of preventing the petty tyrants who controlled the administration of the various districts from exercising jurisdiction over the lives and limbs of freemen can be abundantly illustrated from the details furnished by contemporary records of the ingenious and cruel oppressions they constantly resorted to. Ineffectual attempts had indeed been made more than once to restrain their evil practices, as in August, 1213, when directions were issued from the Council of St. Alban’s commanding the sheriffs, foresters, and others, to abstain from unjust dealing,[[648]] and, again, some two months later, when John, at the instance of Nicholas of Tusculum, the papal legate, promised to restrain their violence and illegal exactions.[[649]] Little or nothing, however, was effected in the way of reform; and Magna Carta, in addition to condemning certain specified evils, contained two general provisions, namely, chapter 45, which indicated what type of men should be appointed as Crown officials, and the present chapter, which forbade local magistrates to encroach on the province of the king’s justices. These local magistrates are comprehensively described under four different names.[[650]]
(1) The sheriff. No royal officer was better or more justly hated than the sheriff. The chapter under discussion affords strong evidence alike of his importance and of the jealousy with which his power was viewed. The very briefest sketch of the origin and growth of the office is all that is here possible. Long before the Conquest, in each shire of England, the interests, financial and otherwise, of the kings of the royal house of Wessex had been entrusted to an agent or man of business of their own appointing, known as a scir-gerefa (or shire-reeve). These officers were continued by the Norman monarchs with increased powers under the new name of vice comites.[[651]] It is an illustration of the tenacity of the Anglo-Saxon customs and names that this Latin title never took root, whereas the old title of sheriff continues to the present day.
It is true that in England during the Anglo-Saxon period the chief power over each shire or group of shires had been shared among three officers—the bishop, the earl, and the sheriff. The bishop, by the natural differentiation of functions, soon confined his labours to the spiritual affairs of his diocese; while the deliberate policy of the Conqueror and his successors relegated the earl to a position of dignity altogether severed from the possession of real power. Thus the sheriff was left without a rival within his shire. For a period of at least one hundred years after the Norman Conquest he wielded an excessive local authority as the sole tyrant of the county. He was not indeed irresponsible, but it was difficult for his victims to obtain the ear of the distant king, who alone was strong enough to punish him. The zenith of the sheriff’s power, however, was passed in the twelfth century, and before its close changes had been introduced with the view of checking his abuses. Henry II. frequently punished his sheriffs for their misdeeds, and removed them from office.
It has already been explained how in 1194 the sheriff’s powers were further restricted, while new officers were appointed in each county to share the authority still left to him. To the very next year (1195) is usually traced the origin of the justices of the peace, who gradually took over the chief duties of the sheriff until they had practically superseded him as the ruling power in the county. In Tudor days a new rival appeared in the Lord Lieutenant, then first appointed in each shire to represent the Crown in its military capacity, and particularly to take over command of the militia of the county. The fall of the sheriff from his former high estate was thus gradual, although finally most complete. From presiding, as he did in his golden age, over all the business of the district—financial, administrative, military, and judicial—the sheriff has become, in England at the present day, a mere honorary figure-head of the county executive. A high sheriff is still chosen annually by King Edward for each county by picking[picking] at random one name out of a list of three leading land-owners presented to him for that purpose by the judges. The gentleman on whom this sometimes unwelcome dignity is thrust is still nominally responsible during his year of office for the execution of all writs of the superior Courts within his county, for returning the names of those elected to serve in the House of Commons, and for many other purposes; but his responsibility is chiefly theoretical. All the real duties of his office are now performed in practice by subordinates. What really remains to him is an empty and expensive honour, usually shunned rather than courted. In Scotland and America the sheriff also exists at the present day, but his position and functions have in these countries developed in very different directions. In Scotland, in opposition to what has happened in England and America, the sheriff has remained emphatically a judicial officer, the judge of an inferior court, namely, the local court of his shire, known as “the Sheriff Court.” He has thus retained intact his judicial functions, to which such nominal administrative duties as still remain to him are entirely subordinate. In the United States of America, on the contrary, the sheriff is a purely executive official, possessing perhaps more real power, but notably less honour and social distinction than fall to the lot of the English high sheriff. The duties of his office are sometimes performed by him in person; he may even set out at the head of the posse comitatus in pursuit of criminals. Three completely different offices have thus sprung from the same constitutional root, and all three are still known by one name in England, Scotland, and America respectively.
(2) The constable. Portions of certain counties were exempted, partially or entirely, from the sheriff’s bailiwick, and placed under the authority of specially appointed magistrates. Thus districts afforested were administered by forest wardens assisted by verderers who excluded the sheriffs and coroners; while royal fortresses, together with the land immediately surrounding them, were under the sole command of officers known indifferently as castellans or constables.[[652]] The offices of warden of a particular forest and warden of an adjacent royal castle were frequently conferred on the same individual. Indeed, chapter 16 of the Forest Charter of Henry III. seems to use the term “castellans” as the recognized name of forest wardens, whom it forbids to hold “pleas of the forest,” although they may attach or “keep” them (with the co-operation of the verderers), and present them for trial before the king’s emissaries when next sent to hold a forest eyre—thus offering a complete parallel between procedure at “forest pleas” and that prescribed by the present chapter for ordinary pleas of the Crown.[[653]]
The name constable is an ambiguous one, since it has at different periods of history been applied to officers of extremely different types. The king’s High Constable, a descendant of the horse-thegn of the Anglo-Saxon kings, was originally that member of the royal household who was specially responsible for the king’s stables. At a later date, he shared with the Earl Marshal the duties of Commander-in-chief of the king’s armies. The name of constable was also used in a wider sense to designate other and subordinate royal ministers. It came to be applied to commanders of small bodies of troops, whether in castles or elsewhere. At a later date the word lost its warlike associations, and was used in connection with the duties of watch and ward. A constable was a person specially entrusted with enforcing order in his own locality. Thus each hundred had its high constable and each village its petty constable in the fourteenth and fifteenth centuries.[[654]] These various officials were thus, at different dates, all designated by a name usually, at the present day, confined to ordinary members of the police force.
The word as used in Magna Carta had not yet lost its military character, but denoted the castellan who commanded the troops which garrisoned a royal castle.[[655]] Such an office was one of great trust; and correspondingly wide powers were conferred upon its holder. The warden of a castle held an important military command, and acted as gaoler of the prisoners confided to the safe-keeping of his dungeons. He had authority, under certain ill-defined restrictions, to take whatever he thought necessary for provisioning the garrison—a privilege, the exercise of which frequently led to abuses, guarded against by chapters 28 and 29 of Magna Carta, where they are discussed under the head of purveyance. He had also, to a limited extent, judicial authority. Not only did he try pleas for small debts to which Jews were parties, but he enjoyed a jurisdiction over all petty offences committed within the precincts of the castle, analogous to that of the sheriff within the rest of the county. This power of trying and punishing misdemeanours was not taken away by the Great Charter, and was confirmed by implication in 1300 by a statute which directed that the constable of Dover Castle should not hold within the castle gate “foreign” pleas of the county which did not affect “the guard of the castle.”[[656]] It is not known at what date the judicial powers of constables fell into disuse; but they still acted as gaolers at a much later period. In the reign of Henry IV. complaint was made that constables of castles were appointed justices of the peace, and imprisoned in one capacity the victims whom they had unjustly condemned in another. This practice was put down by statute in 1403.[[657]]
It would seem that at an earlier period the constable sometimes acted as a deputy-sheriff. Chapter 12 of the Assize of Northampton provided that when the sheriff was absent the nearest castellanus might take his place in dealing with a thief who had been arrested. His interference outside his own precincts must, however, have been regarded with great jealousy, and the coroners, after their appointment in 1194, would naturally act as substitutes during the sheriff’s absence.
(3) The coroners. The coroners of each county, after their institution in 1194, seem to have shared with the sheriff most of the powers of which the latter had previously enjoyed a monopoly. The nature of their duties is explained by the oath of office sworn in the same words for many centuries, “ad custodienda ea quae pertinent ad coronam.” Their duty was to guard royal interests generally; and their “keeping” of royal pleas was merely one aspect of this wider function. Besides “attaching” those suspected of crimes—that is, receiving formal accusations and taking such sureties as might be necessary, it was their duty to make all such preliminary investigations as might throw light on the case when the formal trial was afterwards held; they had, for example, to examine the size and nature of the victim’s wounds in a charge of mayhem.[[658]] They were required, in particular, to keep a watchful eye on all royal property, being responsible for the safe-keeping of deodands, wrecks, and treasure trove. They had also to appraise the value of all chattels of criminals forfeited to the king. When felons took refuge in sanctuary, it was the coroner who arranged for their leaving the country on forfeiting all that they had. They also kept a record of those who had been outlawed, and received “appeals” or private accusations of criminal charges.[[659]]
Magna Carta forbade the coroner to determine the pleas of the Crown; but, even after 1215, he sometimes did justice upon felons caught red-handed, whose guilt was self-evident without trial. An act of Edward I.[[660]] accurately defined his duties, empowering him to attach pleas of the Crown and to present criminals to the justices for trial, but forbidding him to proceed further alone.