ſince the time of Forteſcue[1], who was chief juſtice and chancellor to Henry the ſixth) that all the judges, together with the other great officers, meet in the exchequer chamber on the morrow of All Souls yearly, (which day is now altered to the morrow of St. Martin by the laſt act for abbreviating Michaelmas term) and then and there propoſe three perſons to the king, who afterwards appoints one of them to be ſheriff. This cuſtom, of the twelve judges propoſing three perſons, ſeems borrowed from the Gothic conſtitution before-mentioned; 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 before-mentioned; 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 expreiſſy referred to in the record, which ſir Edward Coke tells us[2] 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 thriſty 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 may be obſerved." But, notwithſtanding
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Ch. 9.
of Persons.
341
this
