Argument for the Defendant in Error.—On the other Side it was argued with the Judgment, That 'tis clear and apparent that this Act of W. & M. was made only to satisfy Doubts, and prevent Questions about the Office for the Custody of the Great Seal, but to settle the Manner of naming the Custos and Clerk of the Peace. And that 'tis in Part introductive of a new Law; and in part a Revivor of the old But the general End was, that the Office of Clerk should be filled and executed by a learned, able, honest Person; because it concerns the Administration of Justice. He is the King's Attorney in many Respects; he not only writes the Sense of the Justices in their Orders; but draws Indictments, and upon Traverses he joins Issue, as one qui pro Domino Rege in ea parte sequitur, and prays Judgment for the King in many Cases; joins in Demurrer, when Occasion requires, and is, in the Sessions, the same as the Clerk of the Crown is in the King's Bench. Now to accomplish this End of having a Person well qualified, and to encourage and oblige him to his good Behaviour, it requires a Residence in the County; it enjoins that the Person named be able; it subjects him to the Jurisdiction of the Justices, who have a daily Observance of his Demeanour; it gives them a Power to remove him upon a just Complaint, which they could not before; it frees him from the usual Temptation to Fraud and Corruption, by introducing him gratis & sine pretio, and to provoke his Care and Diligence, it gives him a more durable Estate in his Office, than he had before, when he bought it, viz. Freehold, an Estate for his Life. That it should be so, is convenient; because, then he will be encouraged to endeavour the Increase of his Knowledge in that Employment, which he may enjoy during Life: Whereas precarious dependant Interests in Places tempt Men to the contrary.
That this is an Estate for Life, appears from the Words of the Act; they do direct how long he shall enjoy his Office; so long only as he shall behave himself well. If the Word only had been omitted, there could be no Colour for a Doubt. By 1 Inst. 42. 'Tis an Estate for Life, determinable upon Misbehaviour; for during [162] good Behaviour is during Life; 'tis so long as he doth behave himself well; i.e. If he behaves himself well in it so long as he lives, he is to have it so long as he lives; during Life, and during good Demeanour, are therefore synonymous Phrases, the same Thing when used with relation to Offices; the Condition annexed, if observed, continues it during Life, the contrary determines it. This is the Rule and Law in case of Offices in general, and must hold in this: For this is an Office, 2 H. 7. 1. He is called Att' Domini Regis. 'Tis capable of being enjoyed for Life; and consequently of being granted so; especially when an Act of Parliament declares it shall be so. There's nothing in the Nature of the Employment that hinders it; and there can be no Doubt, but that a Statute may impower a Custos in Possession, who hath only an Estate at will, to name a Clerk to hold during Life or good Behaviour. The Justices are at Pleasure; suppose then the Act had said, That they should name him in this Manner; he must have continued, tho' they had died, or had been removed. The Case is the same here; he is as much intrusted with the Acts of the Justices, as with the Records belonging to the keeping of the Custos. Then there's nothing in the Act that favours of an Intention to make him dependent on the Custos's Office: The Custos is to name him, but the Justices have the Control over him; he is an Officer to the Sessions, and the Justices only can remove him. The Limitation of the Interest of the Custos in his Office, and that of the Clerk, are different; and that shews, that the Duration of the one was not to depend on the other. Besides, the Custos is to name, not when he shall be made Custos (as it would have been worded, if the Intention advanced on the other Side had been true) but whensoever it shall be void. It doth not say, every new Custos shall; or that every Custos shall name: But generally when 'tis void, he shall, &c.
Objections answered.—Then as to the Objection, That this new Act is consistent with the 37 H. 8. and therefore that is still in Force: 'Twas answered, That by the former Act he was intirely placed under the Custos who had Power to displace him upon Miscarriage. The Sessions then could not do it, tho' a Court, and a Court of Record: They might suspend him, but could not deprive him of his Office, even for ill Demeanour: This was that Act. Now the present Law abridges the Power of the Custos: He must name a Resident; before he might appoint any able Person: The Person was then removeable by the Custos; now only
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