inate three persons to the
king, who afterwards appoints one of them to be sheriff. This custom,
of the _twelve_ judges nominating _three_ persons, seems borrowed from
the Gothic constitution beforementioned; with this difference, that
among the Goths the twelve nominors were first elected by the people
themselves. And this usage of ours at it's first introduction, I am
apt to believe, was founded upon some statute, though not now to be
found among our printed laws: first, because it is materially
different from the directions of all the statutes beforementioned;
which it is hard to conceive that the judges would have countenanced
by their concurrence, or that Fortescue would have inserted in his
book, unless by the authority of some statute: and also, because a
statute is expressly referred to in the record, which sir Edward Coke
tells us[h] he transcribed from the council book of 3 Mar. 34 Hen. VI.
and which is in substance as follows. The king had of his own
authority appointed a man sheriff of Lincolnshire, which office he
refused to take upon him: whereupon the opinions of the judges were
taken, what should be done in this behalf. And the two chief justices,
sir John Fortescue and sir John Prisot, delivered the unanimous
opinion of them all; "that the king did an error when he made a person
sheriff, that was not chosen and presented to him according to the
_statute_; that the person refusing was liable to no fine for
disobedience, as if he had been one of the _three_ persons chosen
according to the tenor of the _statute_; that they would advise the
king to have recourse to the _three_ persons that were chosen
according to the _statute_, or that some other thrifty man be
intreated to occupy the office for this year; and that, the next year,
to eschew such inconveniences, the order of the _statute_ in this
behalf made be observed." But, notwithstanding this unanimous
resolution of all the judges of England, thus entered in the council
book, some of our writers[i] have affirmed, that the king, by his
prerogative, may name whom he pleases to be sheriff, whether chosen by
the judges or no. This is grounded on a very particular case in the
fifth year of queen Elizabeth, when, by reason of the plague, there
was no Michaelmas term kept at Westminster; so that the judges could
not meet there _in crastino Animarum_ to nominate the sheriffs:
whereupon the queen named them herself, without such previous
assembly, appointing fo