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Geo. III., cap. 54, imposes on them many specific duties, and implies a general obligation to see to the execution of the Act. There is, however, a point strictly of legal construction on which I should be glad of your deliberate opinion. By the 3rd section of the Militia Act, the Crown may authorize three Deputy Lieutenants to do all such things as might lawfully be done by the Lord Lieutenant, and a similar power is given to the Lord Lieutenant himself by 46 Geo. III., cap. 90, sec. 45. Now remembering the object of the Militia Act, and that the Volunteer Act in particular was subsequent to it, is this power limited to militia purposes ? or does it include all legal functions of the Lord Lieutenant whatever they may be? Also, in the 2nd section of the Militia Act, what is the legal force of the word “their” Deputy Lieutenants ? General deference and attention to instructions, &c., is always given by the Deputies to the Lord Lieutenant: but, as in the other matter, common usage and convention has so much to do with it that I should be very glad to know what legal claim there may be to require any such subordination from them. Any information on the general subject, as far as written authority is concerned, which you may happen to meet with I should be very thankful for.
MR. HARWARD TO LORD LYTTELTON. My LORD,
I have at length the honour to submit to your Lordship my Report on the Offices and Duties of Lord Lieutenants and their Deputy Lieutenants. The time I have taken to prepare this Report, will, I fear, seem large indeed compared with the results embodied in it. The subject is, however, beset with difficulties, and it has received more meagre treatment than any other of like importance within my knowledge. A reference to the title, and a mere glance at the probabilities connected with its origin, are all the information afforded by the usual sources of ready information on like questions.
The origin of the office, like all those of ancient date, is involved in some obscurity, but I trace its root in the AngloSaxon Ealdorman or Duke. The word itself denotes both civil and military pre-eminence.
The powers and dignity of the Ealdorman doubtless differed in different Saxon races and kingdoms. This indeed was necessarily so from the connexion of this officer with territorial government. In 814 we find that the kingdom of Kent had three of these officers, whilst Mercia had sixteen. The Ealdorman was inseparable from his shire, and as conquest increased or diminished the number of shires comprised in a kingdom, so the number of these officers increased or diminished also. Every freeman in the county was bound to attend the Ealdorman's court and military muster.
The laws of Edgar enact as follows :-“Twice in a year be a shire moot held, and let both the Bishop of the shire and the Ealdorman be present, and there expound both the law of God, and of the world.” This shire moot, or folk moot, was viewed with great reverence, and heavy fines were inflicted for any breach of the peace thereat. I may not omit to mention, by way of caution, that in the year 780 the Ealdorman of Northumberland was, by the other officers of the county, burned, because he had been guilty of cruelty and oppression in the exercise of his judicial functions.
In 825, an interesting trial took place at Worcester in the presence of Hama, the woodreeve, who attended for Eadwulf the Ealdorman. The public officers had encroached on certain rights of pasture belonging to Worcester Cathedral, and the Bishop, having given security, attended to make good his claim on oath. Other documents are extant showing that the Ealdorman really stood at the head of the justice of the county, and that he doubtless had the power of holding plea and proceeding to execution both in civil and criminal cases.
That the Ealdorman was the military leader of the county is equally clear; true it is that he had armed retainers of his own, but he was also the leader of the armed force of the
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shire, and often we' read of his leading, in Saxon times, the posse comitatus, or levy en masse of the freemen of the county, to repel invasion, or to exercise the functions of the higher police.
That the Sheriffs were at that time the Ealdorman's subordinate officers both in a civil and military point of view, I cannot doubt.
The Ealdorman's dignity appears to have been supported by grants of lands—which at first passed with the office—a share of fines and voluntary offerings, and, in addition to these, hereditary lands or personal grants from the Crown. In 855, Ealhhan, Bishop of Worcester, and his chapter, gave eleven hides of land to Edelwulf and his duchess, for life, on condition that he would be a good and true friend to the monastery.
The nobility, power, and wealth of the Ealdorman doubtless secured to him a brilliant position. The whole executive government, in fact, was an aristocratical association of the Ealdormen, with the King for President.
The appointment of the Ealdorman was part of the King's prerogative. The office was in general held for life, subject to expulsion for treason and other grave offences; but the appointment seems to have always received, and it indeed probably required, the sanction of the higher nobles, whilst the Ealdormian was installed by the superior shire authorities.
A great change, both in the supreme and local governments of the country, necessarily followed the Norman Conquest. The Ealdorman was, from his power, obnoxious to the new governments ; but the same objection did not apply to his subordinate officer, the Sheriff, and hence the extinction for a time of the one office, and the increase in dignity of the other. The Sheriff, too, was popular with the people, who in him recognised at least a remnant of their former institutions.
The creation of the office of Custos Rotulorum, which relates exclusively to civil duties, was in part a return to the civil supremacy of the Ealdorman. This office is noticed much earlier than that of Lord Lieutenant, and it was clearly in existence prior to the 25th Edward III., inasmuch as the Custos Rotulorum of the County Palatine of Lancaster is appointed by the Crown in right of the duchy.
The appointment to this office was originally vested in the Crown, by virtue of its royal prerogative as declared by the 37th Henry VIII., c. 1., and though transferred to the Lord Chancellor by the 3rd Edward VI., c. 1., was restored to the Crown by the 1st William & Mary, c. 21. The Custos is a justice of the peace, and by custom, if not by virtue of his appointment, the chief of the justices; for Lambarde, in his Eirenarcha, p. 371, says, that among the officers he hath worthily the first place, both for that he was always one of the quorum, for the most part picked out either for wisdom, countenance, or credit. Blackstone, in his Commentaries, Book 4, c. 19, s. 7, treats him as the first civil officer in the county.
The creation of the office of Lord Lieutenant was, I believe, in like manner a partial return to the military supremacy of Ealdorman. This office, according to Blackstone, was first created about the reign of Henry VIII., or his children, and superseded the old Commission of Array. Hallam, in his Middle Ages, Volume I., page 552, treats it as having been created in the reign of Mary ; but this is probably incorrect, as the office of Lieutenant (which is the term generally used in Acts of Parliament) is recognised in the 2nd & 3rd Edward VI., c. 2. In the 3rd & 4th Phil. & Mary, c. 3, the same officer is called Lord Lieutenant. Hallam, too, treats the office as a revival of the ancient local Earldom or Comitatus, but does not cite any authority for it.
The office is treated both by Blackstone and Hallam as a military one; and the statutes above referred to, as well as the 13th Car. II., c. 6, have reference to the military defence of the realm. The latter Act was passed after the Restoration, to recognise the right of the Crown to the sole power and command of the militia ; and by the 13th & 14th Car. II., c. 3, s. 2, the Crown is authorised to appoint Lieutenants for the different counties. As Lieutenants had clearly
been previously appointed by the Crown, I am inclined to think that this Act would be considered only as declaratory of the right to appoint Lieutenants, and it was probably passed in order to define and restrict that right; hence Lieutenants appointed under it were appointed only for the purposes of the Act, and the appointment consequently only confers upon them the power and duties defined by the Act itself. That Act was, however, subsequently repealed, and ultimately, by the 42nd Geo. III., c. 90, a similar power was given to the Crown, and under it the present Lord Lieutenants are appointed, and by it, their duties and powers are, I conceive, defined, except so far as further duties or powers are cast upon or given to them by the different subsequent Militia and Volunteer Acts.
Having thus shortly traced the origin of the two offices of Custos Rotulorum and Lord Lieutenant, I will endeavour to deal with your Lordship’s questions, premising that of late years the two offices have been conferred upon the same person, who in common parlance is termed the Lord Lieutenant only.
I have been unable to find any direct authority for the general pre-eminence which is allowed to the Lord Lieutenant, but I conceive that such pre-eminence is in a great measure attributable to the office strictly so called, as although I find that the Custos Rotulorum is treated as first among the justices, (see Lambarde supra,) I do not find anything in that office which would be likely to give him general pre-eminence. Your Lordship is, I think, right in treating that pre-eminence as the creature of custom, but it is a custom in all probability based upon tradition of the early importance of the office. It clearly does not now give precedence over the Sheriff, who is treated by Blackstone and others as the first man in the county, and superior in rank to any nobleman therein. (1 Blackstone's Commentaries, p. 343, and Tomlins Law Dictionary, citing Camden's Brit.) I am not aware of any express authority conferring upon the Lord Lieutenant