of Clare was by Letters Patent, dated the 9th Day of July Anno 1 W. & Ma. according to the 37 H. 8. made Custos Rotulorum for the County of Middlesex, and set forth the Letters Patent in hæc verba. Then they find that the Office of Clerk of the Peace for this County being void, the Earl of Clare by writing under his Hand and Seal, dated 19 July Anno primo, did nominate, appoint, and constitute the Plaintiff, Mr. Harcourt, to be Clerk of the Peace for Middlesex for so long Time only as he should well demean himself therein; and the Instrument was found in hæc verba. Then they find him to be a Person resident in the County, capable and sufficient to have and execute the Office; that he took upon him the Execution of the said Office; and before he did so, he at the Quarter Sessions for the said County, in open Sessions, took the Oath required by the late Act of this King, and the Oath of Clerk of the Peace, and did do and perform all Things necessary to make him a compleat Officer; and that during all the Time he did execute the said Office he demeaned himself well.
Then 'tis found, that on the fifth of February Anno tertio, the said Earl of Clare was in due Manner removed from being Custos; and William Earl of Bedford, by Letters Patent dated the sixth of Febr. was made Custos according to the 37 H. 8. and those Letters Patent are also found in hæc verba. Then they find an Appointment in Writing, dated the fifteenth of February by the said Earl, of the said Fox to be Clerk of the Peace for the said County; to hold the said Office for and during the Time the Earl should enjoy and exercise the said Office of Custos, so as he well demean himself therein. They likewise find Fox to be a Person capable, &c. and that he took the Oath, and did the other Things requisite to qualify himself for the said Office; that he did thereupon enter on the Execution of the said Office; and during the Time that he executed it, he well demeaned himself therein, and did take the Fees belonging to the said Office, which they found [159] to be to the Value of five Shillings; Sed utrum, &c. Et si, &c. Et si, &c. Upon this Judgment was given for the Plaintiff below.
Argument for the Plaintiff in Error. Origin of the Office of Clerk of the Peace, and of Custos Rotulorum.—And it was now argued for the Plaintiff in the Writ of Error, That this Judgment ought to be reversed. And first it was said, that whatsoever the Common Law was, as to ancient Offices, could be no Rule in this Matter: Many and most of those were for Life; but my Lord Coke says, That the Office of Chancellor of England could not be granted to any one for Life; because it was never so granted. The like of Treasurer: So that Custom, and nothing else, can govern in those Offices. But here can be no Pretence of its being a Common Law Office; for the Common Law knew no such Thing as Justices of the Peace, to whom, they say, he is a Clerk. That the first Statute which makes Justices, hath no Mention of Clerk; but it was merely an Incident; some Person of Necessity was to officiate in that Kind: And where he is called the Justices Clerk, it can only be, that he was one appointed by them to make and write their Records for them; and 'tis probable that in ancient Time, he that was their Clerk was Custos Rotulorum, and intrusted with the keeping of the Records. Then it coming to be an honorary Thing to be Custos, he that was the most eminent for Quality amongst them, was appointed to that Trust; and then he appointed his Clerk under him: For there's no ancient Statute or Law, that impowered the Chancellor to make a Custos; but he making out the Commission of the Peace, might very well name one of them to be Keeper of the Records, and to have the first Place amongst them. And such Person might very well appoint his Deputy or Servant, who in Time came to be Clerk of the Peace. We have no certain, but this is the most probable, Account of the Thing.
Then the Statute of 37 H. 8. recites, That the Chancellor had much perverted the Institution, by assuming to make Custos's for Life, and so the Clerks of the Peace were for Life likewise. The End of that Act was not only to remove ignorant Persons; for the Common Law it self would turn any such out of Office, if he be not able to perform the Duty of it; but the Grants for Life, were the great Grievance: And therefore to remedy that Mischief the Custos must be appointed by Bill signed with the King's own Hand, and at his Pleasure removeable; and the Clerk of the Peace to be appointed by the Custos, and to continue only
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