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

Instances . 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 . 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 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 . 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 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 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 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 for 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 .