Offices and places of Trust whether Originall or Deputed is pernicious to the Kings Majesty for it corrupts the Chrystall stream of His Justice and in makes that Vendible that should be free For he that will be so sordid as to buy against Law will think himself indulged to be so base as to sell also against it 2. That the light of Nature is not so dim and purblind but it can see nor so extremely degenerated but it can abhor Corruption and unworthiness in places of Trust 3. That venalis Justitia is worm-wood to the people of the Realm yea I may say venome that empoysons its purest morall streams and makes the Law a leaden Lesbian Rule to bend at every beck of the Diana of Profit or if I may modestly say it to traile after her posteriors Thus the ship of the Realm must shift her sailes as the wind of the Goddesse-money shall blow and it must saile this or that or any other way though it be upon apparent Shelves and Rocks to the hazard of its Ruine if money bids 4. It spoiles the Harmony of the World by inverting the Order of Nature Virtus post Nummos c. 5. It is a Bar to Ingenuity and Study after all noble endowments as I said before if Gold shall over-ballance Goodness if an Asse laden with money shall carry the precedency and preheminence before an Heroick and Generous soul never so well furnished and laden with Worth and Learning the richest eaâ—…hly furniture of mankind But Sir before I come to your Question let me have a little more Liberty and I will not trespasse long upon you It is certain That His Majesty doth not nor His Ancestors have not sold Offices and Places of Trust in their mediate dispose nor have they usually unless upon misinformation disposed them to persons unfit and uncapable and if sometimes it so happened the wisdom of upright Judges have laid them aside notwithstanding they had Patents under the Great Seal of England and when they were so put out the Kings of England have given their Places to other fit and capable persons I shall give you at this time but one instance Bro. Office pl 48. 5 E. 4. rot 66. which was one Vintor who was made Clerk of the Crown by Edward the fourth by Letters Patents but being found unsufficient was laid aside by the Judges of that time and that King by advice of the Judges appointed one West a fit person in his place It is also certain that divers places under the Lord Chancellor or Lord Keeper are by prescription in his dispose and have been and usually are sold as the Cursitors places c. the 6. Clerks c. in the dispose of the Master of the Rolls and sold by him The Philizers c. in the dispose of the chief Justice of the Common Pleas and other Places in the dispose of the chief Justice of the Kings Bench and Justices of Assize and have been also sold by them respectively which time and silence hath admitted them also to sell I have omitted any particular or distinct discourse of Judiciall Places though yet some light touches of them also may be observed herein as conceiving no man so far benighted with Ignorance and consequently so hardy as to affirm them to be Vendible by Law or to be given to such men as are insufficient or as Learned Bacon saith in another Case to such as are Blind in the Colours of good and evill Philosophers have an Axiome That there are Principia quae dicuntur DIGNITATES ob id quod jure illis fides habenda sit cum ea unusquisque statim admittit ut totum unum quodlibet majus est sua parte There is a Communis conceptio vel Notitia i.e. a Notion not meerly probable and so obvious onely to wise men but such a Notion that for its dignity and self-evidence may justly be styled the universall suffrage of all mankind in all Nations so cogent and if I may say it Mathematically Demonstrative that it fetches its clear bare-faced and fore-right proofs from the Common Remaines of lapsed Nature so that a Midnight Ethnicke can without Pause or Study not onely tell you that he that buyes dearly cannot give freely but that a blind Polyphemus in such a Magistracy is a Monstrum c. ingens cui lumen ademptum Thus much in generall and briefly touching the sale of Offices and insufficiency of Officers the Law affording much more if need required or had I more time Charon He that was born in a bottle and never looked into the world but through a hole may easily see the inconveniences that pursue at the heels of such practises but here I desist as to what I promised to say in Generall Now to give you the best satisfaction in short to your Question viz. Quest In whose dispose the Clerk-ship of the Peace in every County is Answ I must confess that I did think this a very needlesse question when the experience of all my life and I believe of yours hath been that the Custos Rotulorun had the gift of that Place and I ever looked upon the Clerk of the Peace as his servant he himself being the Keeper of the Records and answerable for them and not his Clerk and I did alwaies conceive with submission to better Judgments that the Donation of this Place of Clerkship was an inseparable insident to the Custos like that Case of Scrogs in Dyer Dyer 175. pl. 25. where Queen Mary granted the Exigenters Place for London being vacant after the death of Sir Robert Brook chief Justice to one Colshill and afterwards made Sir Anthony Brown chief Justice of the Common Pleas Of the Common Pleas. who refused Colshill and made Scrogs Exigenter in his Place and a great strife arising about it Queen Eliz. in the first year of her Raign referred it to Sir Nicholas Bacon Chancellor the Judges of the Kings Bench and Exchequer Atturney Generall and Atturney of the Dutchy exclusis omnibus Justiciariis de Communi Banco who after great deliberation and dispute did resolve that Colshill had no Title and that the Donation of this Office did not belong to the Queen but only to the disposition of the chief Justice and as an inseparable incident belonging to the person of the chief Justice and that by use and prescription Mittons Case Co. lib. 4. f. 33 34. In Mittons Case in the Lord Coke where the fore-mentioned case is cited it is resolved that though Queen Eliz. by her Letters Patents under the Great Seal had granted to the said Mitton the Office of Clerk of the County-Court or shire-Clerk of the County of Somerset with all fees c. for term of life in the vacancy of a Sheriff and after made Arthur Hopton Esq Sheriff there who interrupted Mitton in that place claiming it as incident to his Office and upon his complaint to the Lords of the Council it was referred to
word of God as to either of those single qualifications 12. R. 2. cap. 2. But if we descend a little lower and look into the next Kings Raigne we shall find a most Excellent Statute made in the 12. year of that King viz. Richard the second The words of which Statute I shall set down at large because of the inestimable worth and value of it viz. It is accorded that the Chancellor Treasurer Keeper of the Privy Seal Steward of the Kings house the Kings Chamberlain Clerke of the Rolls the Justices of the one Bench or the other Barons of the Exchequer and all others that shall be called to ordain Justices of the Peace Sheriffes Escheators Customers Comptrollers or ANY OTHER Officer or Minister of the King shall be firmly sworn That they shall not ordain name or make Justices of Peace Sheriffe Escheator Customer Comptroller nor any other Officer or Minister of the King for ANY GIFT BROCAGE FAVOUR or AFFECTION nor that none that PURSUETH by him or by others PRIVILIE or OPENLIE to be in any manner of OFFICE shall be put in the same Office or in any OTHER but that they make all such Ministers or Officers of the BEST and MOST LAWFULL men and SUFFICIENT to their ESTIMATION and KNOWLEDGE Com. 379. Certainly this is a Statute that is a most Excellent one none beneath the Spirit of God could pen a better unlesse he could get a pen made of a quill snatcht from the wing of a Seraphym to doe it but alas it is a carcasse without a soul and we have need of the head and hands of Seraphyms to put it in Execution Of this law the Lord Coke saith Co. littl f. 234. Sect. 379. That it is worthy to be written in letters of Gold but more worthy to be put in Execution for saith he certainly never shall Justice be duly administred but when the Officers and Ministers of Justice be of such quality and come to their places in such manner as by this law is required 5. E. 6. c. 16. There is another Excellent Statute made in the 5. year of Edward the sixth against buying and selling of some sort of Offices to which there is a severe penalty annexed by which Statute no Office in any wise relating to the Administration of Justice or Clerkship in any Court of Record or concerning the Kings Treasure Revenue Accompt Aulnage Auditorship Surveyor or keeping of any His Majesties Castles Fortresses c. may be bought or sold and if it be then all and every such person and persons as shall bargain or sell any of the said Office or Offices Deputation or Deputations of any of the said Offices or any part of them or that shall take any money fee reward or profit for any the said Office or Offices Deputation or Deputations c. or that shall take any Covenant Bond or Assurance for any money reward or profit to be given for any the said office or Offices Deputation or Deputations c. The person so bargaining or selling or that shall take any such Promise Covenant Bond or Assurance shall not only forfeit his estate and interest therein but also every person so Buying Giving or Assuring shall be adjudged a disabled person to have or enjoy the said Office or Offices Deputation or Deputations c. and that all such Bargains Sales Promises Covenants and Assurances as is before specified shall be void In this Act are excepted some Offices as the Office of Parkership or of the keeping of any Park House or Mannor Garden Chase or Forrest such Offices as are in the dispose of the two Chief Justices of the Kings Bench and Common Pleas and Justices of Assize Upon this Satute a famous Case between Sir Robert Vernon the Kings Cofferer and Sir Arthur Ingram was adjudged in Michaelmas Term 13. Jac. Co. Lit. f. 234. Sect. 379. Co. 3. Institutes c. 71. f. 154. Sir Arthur Ingram gave a summe of money to the said Sir R. V. for surrendring his Office to the King with intent to have a grant made to him the said Sir A. I. which was accordingly done and Sir Arthur Ingram admitted to the place and sworn and yet the Lord Chancellor Egerton and the Judges did resolve that the said Office was void and Sir A. I. disabled to â—ave or take the said Office and that a non obstante in his grant could not dispence with this Act to enable the said Sir A. I. to enjoy it and Sir Arthur Ingram was thereupon removed and Sir Marmaduke Darrell by the Kings Commandment sworn in his place and all Promises Bonds and Assurances between Sir R. Vernon and Sir A. Ingram adjudged void Co. lib. 3. f. 83. in Twynes â—… Case I shall instance in one Case more upon this Statute and leave you to examine the Authorities in the Margin to satisfie your self further if you see cause the Case was between one Lee and his Wife Excutrix of one Smith deceased Plaintiff and Mary Colshill Executrix of Thomas Colshill Defendant in debt upon an Obligation of 1000. markes Intr. Rot. 1707. Colshill the Testator had the Office of one of the Customers of Queen Elizabeth by Letters Patents to him and his Deputies and by Indenture between him and Smith the Testator of the Plaintiff and for 600. l. paid and a 100. l. per annum to be paid during the life of Colshil made a deputation of the said Office to Smith and Colshill covenanted with Smith that if Colshill should die before him that then his Executor should pay unto him 300. l. and divers Covenants were in the said Indenture concerning the said Office and the enjoying of it and Colshill was bound in the said Obligation to perform the Covenant and the Breach was alleadged in the non-payment of the said 300. l. for as much as Smith over-lived Colshill and although the said Covenant to repay the said 300. l. was lawfull yet for as much as the rest of the Covenants were against the Statute of 5 E. 6. c. 16. 5 E. 6. c. 16. and if the addition of a lawfull Covenant should make the Obligation of force the Statute should serve for little or no purpose for this cause it was adjudged that the Obligation was utterly void Co. Lit. 120. Cro. 1. rep 425. 330. Cro. 2. rep f. 385. pl. 16. Hob. rep f. 75. Co. 12. pars f. 74. 101. c. These two Cases give you intimation enough what the Law of England deems of selling of Offices as an addition to what is before yet I shall refer you to the severall Cases in the Margin to satisfie your self more fully wherein you shall find corrupt Ecclesiasticall preferments which are quodammodo Offices or Symony to fall under the same censure of our Law as well as other Lawes From all the Authorities and Lawes that I have thus troubled you with the mentioning of give me leave to infer thus much 1. That the sale of
chief Justice Wray and Anderson before whom Counsel was heard and the matter often debated after conference with the other Judges it was agreed by all the Justices Nemine contradicente aut reluctante that Mittons grant was void in Law and one of the Reasons given thereof in short in this That the County-Court and all entring of proceedings there are incident to the Office of the Sheriff and therefore cannot by Letters Patents be divided from it and although the said Grant had been made to Mitton when the Office of Sheriff was void yet it had been void and when the Queen shall appoint one he shall avoid it And though I conceive this were enough to satisfie you in so easie a Case as to whose gift it is and that it is an incident to the Custos Rotulorum yet I shall direct you to two Statutes and the opinion of a very Learned and Reverend Judge in the point and then forbear your further trouble till I hear of your further doubts herein 37 H. 8. c. 1. The first Statute is 37 H. 8. c. 1. wherein the third Paragraph of that Stature you shall find that the Custos Rotulorum for the time being for every shire of this Realm and Wales and other Dominions c. shall at all times thereafter Nominate Elect Appoint and Assign all and every Person or Persons which thereafter should be Clerks of the Peace within any the said shires c. You may peruse the Statute at large for your better satisfaction and see the provisoes in the close of the Act. 3 4. E. 6. c. 1. The second Statute is 3 4. E. 6. c. 1. whereby in the third Paragraph also of that Statute it is ordained that the Person or Persons that Appointed Elected Named or Assigned to exercise and enjoy the Office of Custos Rotulorum in every County may exercise the same by himself or his sufficient Deputy c. so that it is implied by this Statute that there is no necessity of a Clerk of the Peace if the Custos will please to exercise the Place himself as it seems he may and take no Deputy as the high Sheriff may exercise the Place of his Deputy-Sheriff himself if he please in his own Person and Deputies in such cases are but Instruments Acted by the principall Agent and are accounted but partes animatae dominorum doing that which the Masters themselves may take upon them but if they please for ease or Honours sake they may forbear Co. 2. Instit f. 674. It now remaines that I give you the opinion of the aforementioned Learned Judge which is the Lord Cokes in his second Institutes to wit Comment upon the Statute of the 27 H. 8. c. 16. speaking of the Custos Rotulorum saith That his Place is of the gift of the Lord Chancellor or Lord Keeper and he may exercise his Office by Deputy and hath the Custody of all Bargains and Sales c. and of all Records and Rolls of the Sessions of Peace and of the Commission of Peace whence he takes his name of Office c. He hath the gift of the Clerk-ship of the Peace to exercise by himself or his Deputy but he continueth no longer in his place then the Custos Rotulorum doth Thus Sir you have my sudden and indigested thoughts not so methodically as I could wish nor so largely as I could have done had not your Command bound my searches within the Confine of so small a space of time but I hope however you will take it in good part I have in the Margin for your better satisfaction set down the Authorities and Cases in Law that warrant my assertions to the end that if you please you may try what is here said by the Touâ—… and have recourse to the Spring-head I am SIR Your humble Servant E.N. Sept. 19. 1660. FINIS