BEfore I answer your Question, I shall▪ ac­cording to my best memory and skill (with­in that little stint of time, to which I am li­mited by you,) give you my judgement, how the Law expects the qualifications of all those, who are to be subordinate Magi­strates, Officers▪ and Deputies under His Majesty, in the managery of His Govern­ment, and Administration of Justice, to be; and because I tell you what the Law expects they should be, I do thereby omit to tell you▪ what the Law of God saith▪ they should be, but refer you to the 17. Exod. 19. &c. touching Jethroes Counsell to Moses, and the 1 Deut. 9. &c. which duely compared with our Law in this respect; you shall find this to be the daughter, (if not the first-born) of that, attended with the auxiliary force of Divines, Philosophers, Moralists, yea Pagans and Heathens in generall, that retain any thing of the first pure impresses of na­ture upon them, and are not quite immersed in forlorn and bar­ren Rusticity and Barbarisme.

And because Cicero in his first book of Offices▪ saith, that every orderly discourse, debet à definitione proficisci, I shall begin with such definition or description, that the Law only gives of an Of­fice or subordinate Magistracy; and then proceed according to my purpose.

Plowd. 380. Plowden a very learned Lawyer tells us, That an Office is a thing to be exercised by the body of a Man. Another Finches Law. fol. 162. But an Offi­cer is descri­bed to be, One who receiveth by publick Au­thority the Charge and o­ver-sight of hu­mane affaires belonging to the Common­wealth. Lawyer of great esteem saith, An Office is a duty of Attendance upon a Charge.

Sig de Jur. Rom. lib. 1. c. 20. This being the nature of an Office or Charge, the Law tells us the person or persons that must attend it ought be, Habiles & idonei, & pares Negotiis. As

• Co. lib. 8. f. 41. b.
  1. They ought to be honest. 2. Knowing and capable. 3. Able. 4. Diligent.
• [Page 2]
  12. R. 2. cap. 2.
  2. They ought to come to their Imployments and Offices, sine praemio, sine precio, & sine prece, &c.
• 2 Instit. f. 32.
  3. They ought to be a grace to the place, and not the place a grace to them.

Now the right choice of Officers and subordinate Ministers of State, according to these qualifications▪ will very much promote the happiness of the Kingdom, for it will be the principle▪ as well as the duty▪ of such men▪ to advance the Administration of Justice, 14 Prov. 34. and Justice or Righteousness, (as the wise man saith) exalteth a Nation.

And if these Praecognita be not observed in their choice, but that either money▪ or wry and warping affection▪ shall sway in this Case, (each of which the Law accounts Turpis Consideratio, for quilibet tonetur magis recompensare virtuoso, quam Amico aut venundatori.) Then may it be said to us, as once Ingurtha said to Rome, Co. lit. 234. Vade venalis Civitas, mox peritura, si emptorem invenias: and it is observed by the Lord Coke▪ out of Aerod. fol. 353. Aerod. 553. That nulla alia re magis Romana Respublica interiit, quam quod Magi­stratus Officia venalia erant.

It is most true▪ that if Offices and Places of Trust▪ in any Na­tion, should be given to men not qualified for them, or sold▪ as it were▪ in the market for the utmost penny▪ or for any money at all (in truth,) this would be a bar to all generous endeavours; for who would industriously and strenuously betake himself to any ingeni­ous Art or Profession, if money or squint-affection shall preponde­rate true worth? friends or money then will do that which paines, learning and long experience (which is the Oracle of time, and is indeed gotten by length of time and variety of occur­rences) shall never be able to compasse without them; these are the fodder of the Bruitish or sensuall part of man, but not his pu­rest earthly nutriment, much less his Heavenly one; and it is the fate of wise men often to be poor, and I cannot call it their fault to be modest; they are poor; they cannot buy; they are modest, they will not buy, because they conceive merit over-weighs money, or friendship, in wise mens esteem.

And now give me leave to transpose the order, I first began with, and to bring instances from History and other Authorities, before I come to give you the verdict of our Common and Sta­tute [Page 3] Lawes of England in this Case, and I pray pretermit my hasty faults of want of due order in what I offer, and be pleased to heed the matter proposed▪ and its weight▪ above a regular School-me­thod▪ which I affect, but have not time to observe; nor in truth do I esteem it of pure necessity, but among extreme Criticks, if things be but clearly offered to the Readers understanding.

It is observed by an Historian, Turkish Hi­story, fol. 227 as an Excellent quality in Ta­merlane the great, and Commander of the Tartars, That he be­stowed his preferments not on those that ambitiously sought the same, (for such he deemed unworthy) but on such, as whose mode­sty and desert he thought worthy of those his great favours. And the Historian observes further, that the services of his servants he never forgot—he kept a Catalogue of their Names and good Deserts, and that day was lost with him▪ wherein he had not GIVEN some­thing to such.

This Noble Scythian, for such he was by Nation, not only ob­serv'd, but searched our desert; kept a Catalogue of Deserving men, perused it every day (as well knowing, that merit and worth is too apt to retire it self into the shade of a modest priva­cy,) and (as we see) he was every day giving something to such, and not selling. And this he was taught to do from the meer light of reason and ordinary notions of nature, without any mo­tive of piety, the fear of God, or the least aide from true Re­gion.

Pacius annot: in Justini. In­stit. fol. 413. Minsinger. Scholia in Ju­stin. Instit. lib. 4. de publi­cis Judiciis. Tit. 18. f 913. Peter Martyrs Common pla­ces. fol. 47. See Godw. Antiq. f. 241. Minsinger. Ibid. The Romans had a Law which the Civil Lawyers call Lex Julia de Ambitu, which Cicero in his Oration pro Murena saith, he was Lator or Maker of: This Law enacted, that those who did compass and attain Honour and Magistracy by money, should be punished with great pecuniary Mulcts, and also be made Infamous: and the reason which that Law gives is, quia suae virtuti non Con­fidunt, sed per circuitum ambiunt populi suffragia & Magistratus; and one saith, Simile crimen Ecclesiasticum est simonia. And in­deed so it is, for Qui pecunia & largitionibus honores—Sacerdo­tia & Magistratus ambiunt, his poena deportationis est praestituta, This was the ancient punishment among the Romans, (to wit) exile and banishment, sed postea (saith he) Ex S. C. ad interpretationem leg. Juliae promulgato poena sed aureorum cum nominis Infamia est constituta, so that after it was turned (as is said before) into [Page 4] Mulct and Infamy. Thus far, (and it is very far) Scythians and Pagans go, now hear what others tell you.

Seneca in his Epistles saith, Seneca Epist. 91. Aureum seculum▪ in quo honores▪ me­lioribus (gratis) dabantur; for Salvian.dignitas in indigno est Ornamentum in luto, a great and a good mind becomes places of Trust, for Eccl. 10.6. folly ought not to be set up in dignity, if Solomon be of any credit with us.

It was an excellent Eulogy given by the Historian to Lewis the ninth of France, French Histo­ry fol. 153. That the Realm being corrupted with the Injustice and extortion of the former Raigns, by the sale of Offices and places of Trust, (it being most certain that what we buy in Grosse▪ we must sell by Retaile.) This King Lewis the ninth did ex­presly prohibite those sales, supplied such places▪ as were void▪ accor­ding to the merit of persons, after due examination, to draw good men▪ and of understanding, to apply themselves to study, otherwise they should have been shroudly tempted rather to have stored them­selves with money▪ then merit, with Gold then Goodness.

The honorable and learned Mornay, speaking to Henry the fourth of France in his Meditation upon the 101. Psalm, saith thus. Mornay on the 101. Psalm. fol. 135. The Princes Eye and Care should be upon the best sort of men, to set them in Offices, and BESTOW Charges upon them; those that affect such places he should alwaies suspect them, their persons and practises, for he that earnestly aimeth at an Office or Living, without doubt desireth it for the Profit, not for the Charge.

Reverend old Latimer, in a Sermon of his before King Ed­ward the sixth, hath these words. Latimer fifth Sermon be­fore King Ed­ward the sixth. God defend that ever any such enormity should be in England, That CIVIL OFFICES should be bought and sold, whereas men should have them given them for their worthiness—the holy Scripture qualifieth the Officers, men of Courage, Wise, fearing God, &c.

Learned Lavaterus▪ in his Commentary upon the Proverbs of Solomon, 29. chap. verse 4. tells you, Ludov. Lavat. fol. 291. b. That Munera dantes & ac­cipientes perdunt Rempublicam, nam ubi Corruptela munerum, lo­cum habet, vera Religio, & Justitia concidunt.

Bucer also hath to this purpose; Bucerus. Offices are not Livings and Salaries, but Charges and Duties; not preferments for favorites, but rewards for deserts. Julius. Theodosius, &c. Julius, Theodosius. &c. say much more.

Augustine▪ in his Book de Civitate Dei▪ saies, Aug. lib. 10. de Civ. Dei c. 14. That such as pro­vide themselves places▪ and are not PROVIDED for them, come into them and execute them not with a mind of doing good, but of Domineering, not of providing for others, but for their own turnes.

A learned Interpreter upon Joshuah, speaking of the backward­ness and loathness of Joshuah to be advanced to Moses Room, (though yet he was a man of a great Spirit and Wisdom,) not­withstanding Gods earnestness, and multiplyed incouragements to him lets fall this Conclusion: Qui Magistra­tus ambi unt co­rum sunt in­dignissimi. Multa honestè accipi possunt quae tamen ho­nestè peti [...]on possunt. None are lesse worthy of ad­vancement then those who hunt most eagerly after it, and those who ambitiously seek an Office or Honour, do ipso facto by that very Act discover their extreme unworthinesse, and that▪ of all other men▪ they deserve it not. It is certain, That a modest undervaluing of Self, is an ordinary attendant upon true worth; Austin. Nazienzen. Basil. Chrysostom. this will appear▪ if we consider how Austin often fled from preferment, Nazianzen refused it▪ till the perswasions and importunities of an Empe­rour prevailed with him. Bazil was Haled into it, Chrysostom hid himself from it, these men weighed their own strength and sufficiency, the importance of their Charge, the account they must give, and the slippery places they must stand in; the consi­deration whereof cooled all ambitious heats in them, and blunt­ed their Appetite to Honour or Advancement, they well know­ing what Causin saith, Causin. That the paths of Honour and Preferment are upon Ice, and bordered upon Precipices, as well as Honour and Ad­vancement▪ attained is scituated near unto it.

And all men know, that Honores mutant mores, sed raro in me­liores, quia Honor est sicut Hedera, quae arbores exsiccat, in quas serpit.

But there is little need of looking abroad▪ from other Autho­rities, Histories and Lawes▪ for aid against the sale of Offices and Places of Trust, or for disposing of them to the most Worthy, the Lawes of England are of themselves sufficient to this pur­pose.

Fleta▪ a very ancient Author▪ saith, Fleta. That the time of Edward the first, was very famous for good Judges and Officers, for they came to their places sine precio aut prece, without price or prayer.

34 E. 3. c. 1 The Statute of 34. E. 3. cap. 1. in the last Edition by Powlton, [Page 6] Ordaines that Justices of Peace of the most WORTHY of their Country shall be ELECTED, and joyned with some learned in the Law, &c. but if you look into the old ancient Edition of the Statutes, the words of that Statute is (the most valiant,) so that be it one or other, their Election implies them to be freely chosen; and their being most valiant or most worthy, fully an­swers the 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 [...]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 [Page 8] 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 [...] 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 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 [Page 9] 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 ea [...]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 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 [Page 12] 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 [Page 13] 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 Tou [...], and have recourse to the Spring-head. I am