Thursday, January 24, 2019

The Office Of Sheriff: A Historical Perspective

The Office of Sheriff is one of the oldest offices known to the common law system of jurisprudence.

The Office of Sheriff is an office of great dignity and greater antiquity. It is not possible to state with exactitude the date when the first sheriff swore to protect the lives and property of citizens. Some historians date the office, or its prototype, to the ancient Roman pro-consul. Some express a belief that the office may have been derived from Saxon Germany. Others assume that the word sheriff is an Anglicization of the Arabic word sharif which literally translates illustrious or noble and signifies an Arab chief or prince who is a descendant of Mohammed through his daughter Fatima.

Ancient History

The Book of Daniel recounts the presence of the sheriff at the setting up of the golden image (c. 600 B.C.) by the Chaldean king of Babylon, Nebuchadnezzar:
" . . . Nebuchadnezzar the king sent to gather together the princes, the governors, and the captains, the judges, the treasurers, the counselors, the sheriffs, and all the rulers of the provinces, to come to the dedication of the image which Nebuchadnezzar the king had set up. Then the princes, the governors, and captains, the judges, the treasurers, the counselors, the sheriffs, and all the rulers of the provinces, were gathered together unto the dedication of the image that Nebuchadnezzar the king had set up; and they stood before the image that Nebuchadnezzar had set up.”

Medieval England

Historian W. A. Morris in his book on the Medieval English Sheriff to 1300 makes these observations:

"The Office of Sheriff is one of the most familiar and most useful to be found in the history of English institutions. With the single exception of kingship, no secular dignity now known to English-speaking people is older. The functions, status, and powers of the office, like those of kingship itself, have undergone change, but for over nine centuries it has maintained a continuous existence and preserved its distinguished features."

The sheriff was the deputy of the king in his shire and was accountable to none but the king to whom he was responsible for the royal levies of men for the army, money for the treasury, and for the preservation of the king's peace, for good order and for justice. Annually, or at shorter intervals, he made a progress throughout his domain, stopping at the more important towns to inquire into all matters of interest to the sovereign. He was accompanied by his court, composed as was the king's court, or representative nobles, freeholders, and burghers, before whom his officers brought persons accused of crime. Trial was had under the supervision of the sheriff and if conviction resulted, the sheriff imposed the sentence and executed it. Although in rank some noblemen might be higher, in temporal power and authority within his shire and within his term of office the sheriff was legally superior to them all. The sheriff was the representative of the king, accountable only to the king, and the king's authority lay in him.

History records that, even prior to the Conquest, the sheriff was a powerful officer, with both judicial and executive powers. Lady Doris M. Stenton, in her historical masterwork English Justice Between the Norman Conquest and the Great Charter: 1066-1215 (1964), provides many details of the powers and duties of the sheriff. Throughout the period 1066-1215, sheriffs were "men with powerful local connections," and often with powerful royal connection.

The work deals entirely with civil and ecclesiastical law to the exclusion of criminal law, though mention is made of enforcing "the peace of the sheriff” as well as "the peace of the king." The sheriff nonetheless played a central role in the English civil courts from before the Norman Conquest until the Magna Carta. The sheriff was, at the beginning of the period, "a great local lord." Prior to the Conquest and in the decades immediately thereafter, the sheriff was more akin to a judge than a law enforcement officer, with sheriffs serving at times as appellate judges. Then, in the gradual development of an official judicial class, pleas of the crown began to be removed from the jurisdiction of the sheriff and to be heard by a local justiciar in each shire. Thus, in the civil realm, the sheriff’s role evolved from that of judge to that of court officer with authority "to summon suitors to the court, to collect amercements from defaulters and carry out the judgments of the court."

Despite other historian’s claims that the sheriff assumed "the air of the errand boy of the royal courts," Lady Stenton asserts that such a conclusion "is hardly fair" and "is surely an exaggeration." Rather, "the thirteenth-century sheriff was the head within his shire of a complex system of local government centered on the county town, often on the royal castle, and employing an under-sheriff and a large staff of bailiffs or serjeants and clerks." Even in the enforcement of court orders, the sheriff was no "errand boy," but was authorized and expected to employ often-necessary force. "Many of the early writs . . . are addressed to the sheriff ordering him to restore the complainant to seisin." The procedure replaced the Anglo-Saxon "self-help" remedy, and, in those far-off days, frequently involved the occurrence or risk of violence. Even late in the period, many writs authorized the sheriff to act on the king's behalf in a judicial or an executive capacity.

The number and variety of the justices and viscontiel writs directed to the sheriff increased with the increasing volume of business in the royal courts held before justice’s itinerant. The very word justices implies that the sheriff in obeying such writs was acting through the shire courts as a judge in the modern sense. In obeying many viscontiel writs he was certainly acting in an executive capacity only, but it must have been difficult for a hard-pressed sheriff to be mindful of the distinction. But whether the suitors of the shire court were giving judgment in a case brought by one of their number by plaint, or the sheriff was acting on a justicies writ, or was leading the posse comitatus without writ to force a lord to replevy plough-beasts, all these pleas were part of the sheriff’s work in the shire court.

It is commonplace that in times going back to the Magna Carta, the sheriff was the chief law enforcement officer of the shire or county. Pollack and Maitland, in The History of English Law, provide the following:

"The law of arrest is rough and rude; it is as yet unpolished by the friction of nice cases. Before we say more of it we must call to mind two points in our criminal procedure. In the first place, any preliminary magisterial investigation, such as that which is now-a-days conducted by our justices of the peace, is still in the remote future, though the coroners are already making inquest when there is violent death. Secondly, there is no professional police force. The only persons who are specially bound to arrest malefactors are the sheriff, his bailiffs and servants and the bailiffs of those lords who have the higher regalities.”

Blackstone also confirms the common law power of the sheriff to make arrests without warrant for felonies and for breaches of the peace committed in his presence.

Colonial America

Apparently when the first counties were established in Virginia in 1634, the Office of Sheriff was officially transplanted to the North American continent. There is record of a sheriff being chosen by popular vote as early as 1651, but appointment was at that time apparently the rule.
Maryland and Virginia were apparently the first colonies to bring the office to the shores of the New World. It was therein specifically set forth that the sheriff should have as nearly as possible the same duties in these new states as he had in England.

Although sheriffs of colonial times were among the more affluent citizens, the position was not a costly one. In fact, it was generally profitable. There was not the entertaining to do and there was not the pomp and ceremony that there was in England. With the position being both honorable and profitable, it was greatly sought after by virtually all men of means. The sheriff was definitely the great man whether in England or colonial America although the colonists who had a decided propensity for abbreviating did frequently refer to him as the high sherr.

Though there was not the costly entertaining nor lavish pomp and pageantry in this country as there was in England, there was one very important ceremonial duty - that of proclaiming a new king or queen of England. When William and Mary assumed the throne in 1689, the sheriff of each county officially announced: "That tomorrow their most sacred Majesties, by Eleven of the Clock in the Morning, before the Court house Doore in James City, be proclaimed King and Queen of England, France and Ireland & of the Territories and Dominions thereunto appertaining…and that the Sheriffe Sumons the best appearance that can be had at that time, for the Testifying the due Honour and Obedience, and acclamations of Joy, by firing Great Guns, Sounding of Trumpets and beating of Drums."

The Modern Office of Sheriff

It hardly need be said that the modern Office of Sheriff carries with it, both in England and America, all of the common law powers, duties and responsibilities attendant upon an office of such antiquity and high dignity, except, insofar as the same have been legally modified within the constitutional ambit of legislative enactments. It is not only the power, but the duty, of sheriffs in their various jurisdictions to preserve the peace, enforce the laws and arrest and commit to jail felons and other “infractors” of statutory or common law, and to execute and carry out the mandates, orders and directions of the courts. In the exercise of executive and administrative functions, in conserving the public peace, in vindicating the law, and in preserving the rights of the government, the sheriff represents the sovereignty of the state and he has no superior in his county.

When a situation arises calling therefore it becomes the sheriffs right, and it is his duty, to determine what the public safety and tranquility demand and to act accordingly." Thomas Jefferson wrote in his The Value of Constitutions: "[T]he Office of Sheriff [is] the most important of all the executive offices of the county.”

Within the field of his responsibility for the maintenance of law and order the sheriff today retains his ancient character and is accountable only to the sovereign, the voters of his county, though he may be removed by the governor for cause. No other county official supervises his work or can require a report or an accounting from him concerning his performance of his duty. He chooses his own ways and means of performing it. He divides his time according to his own judgment of what is necessary and desirable but is always subject to call and is eternally charged with maintaining the peace of the county and the apprehension of those who break it. In the performance of this duty he is detective and patrolman, as well as executive and administrator, and he is emphatically one of those who may serve though they only stand and wait. These qualities and characteristics of the office need be recited not because they are novel but because they are so old that they are easily forgotten or unappreciated.

The Office of Sheriff in Georgia

The Office of Sheriff in Georgia is a constitutional office. The constitutionality of the office stems from the common law, from the constitutional provisions extended to certain offices in existence when the first Georgia Constitution was ratified, and because the sheriff is listed in the Georgia Constitution of 1983 as one of four independently elected county officers.
It was the intent of the General Assembly that the Office of Sheriff be the basic law enforcement office of the counties of this state. Georgia was one of the original thirteen colonies, and the common law and statutes of England constituted the law of force in the colony prior to Georgia's independence. On February 25, 1784, the common law and statutes of England in force prior to May 14, 1776, were adopted in Georgia by statute.

Additionally, the courts of this state long ago recognized the common law duties, rights and powers of the Office of Sheriff. In Elder v. Camp, the Georgia Supreme Court held," ‘[T]he Office of Sheriff carries with it, in America, all of its common-law duties and powers, except as modified by statute. . . Sheriffs are given power, and it is their duty, to preserve the peace.' . . . ‘[I]n exercising these duties and powers and acting as "a conservator of the peace within his county," a sheriff has the right and duty to "enforce the laws enacted for the protection of the lives, persons, property, health, and morals of the people."

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