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Are America's Constitutional Sheriffs Liberty's Last, Best Hope?

Ancient History and Modern Constitutional Powers of American Sheriffs (Part 1/2)


By —— Bio and Archives March 26, 2013

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Can America’s sheriffs save our Constitution and our precious liberties? The exhaustive history of the sheriff has yet to be written, but much is known of the rise of these county leaders, once called shire reeves, in old England. Sheriffs are termed the “the oldest appointment of the English crown.” They represent transition from simple local rule to a nationalized attempt at keeping law and order. Sheriffs were first established when the Anglo-Saxon kingdoms were finally assembled into the Wessex-based Kingdom of England sometime around 1000 AD.

In the Colonies, the Crown established sheriffs, as done in Britain by royal decree. But, before long, the democratic process was employed to elect them. Today, they are the last bastion of popular representation in law enforcement. Ironically, it now appears that the ancient sheriff, the last representative of popular, local federalism—might be the last chance for America to retain our civil liberties before the onslaught of Leviathan—the colossus of government tyranny. This hope is best represented by the Oath Keepers, a group educating and supporting local sheriffs as defenders of our Constitution against creeping federal insurgency. Add to this the doctrine of Nullification, or refusal to apply unconstitutional laws, which sheriffs are now applying across America on various topics, such as gun regulations, and refusing federal demand for control.

This article is composed in two parts to better describe the history, function and constitutional warrant of the local, county American sheriff.

I. What is a Sheriff

A sheriff is the main peace keeper of a county in both ancient England and modern America. The office is defined by Webster’s:

In the U.S., the chief law-enforcement officer for the courts in a county. He is ordinarily elected, and he may appoint a deputy. The sheriff and his deputy have the power of police officers to enforce criminal law and may summon private citizens (the posse comitatus, or “force of the county”) to help maintain the peace. The main judicial duty of the sheriff is to execute processes and writs of the courts. Officers of this name also exist in England, Wales, Scotland, and Northern Ireland. In England the office of sheriff existed before the Norman Conquest (1066).

II. Ancient History of the Sheriff—Britain

The office of sheriff is said to be “the oldest appointment of the English crown.” The term Sheriff is derived from the ancient British designate “shire reeve.” A shire is an English term defined by the Free Dictionary as: “A former administrative division of Great Britain, equivalent to a county.” The term reeve is defined by Webster’s as: “a local administrative agent of an Anglo-Saxon king,” or “a medieval English manor officer responsible chiefly for overseeing the discharge of feudal obligations.”

A. History of the Shire Reeves

Thomas Jefferson claimed of the office of sheriff: “there is no honorable law enforcement authority in Anglo-American law so ancient as that of the county sheriff whose role as a peace officer goes back at least to the time of Alfred the Great.”

To the contrary, Schenectady, NY Sheriff Buffardi offers this history of the beginnings of sheriffs in England to about 1000 AD, where groups of men—called hundreds, were assembled for defensive and taxation purposes:

The office of sheriff did not appear suddenly. It’s prolonged development began over 1000 years ago in England, arising simultaneously as local government structure evolved. This form of government allowed early English people to be divided into smaller units subject to the considerations of a national interest and central authority of the king. The formation of the units was crucial to the central authority because the population was scattered and Saxon kings had no large standing armies, a centralized court system, or the ability to finance a government appropriately. The small unit management therefore became crucial to a national development of government.

While these shires (counties) were in the developmental and refinement stage, a custodian was chosen by the fellow members of the hundreds to be their “gerefa” or guardian. Later this title was to become known as “reeve”. The combination of the unit known as scir or shire and the administrative title of reeve would eventually develop into the word “sheriff”. With the exception of king, no English institution is older than this office. The earliest mention of a position somewhat like a sheriff was in the 970s during the reign of King Edgar.

Wessex King Cnut wrote a letter with one of the earliest uses of the term “sheriff” in 1027, mentioning abuses already associated with the office:

I command all the sheriffs and reeves over my whole kingdom, as they wish to retain my friendship and their own safety, that they employ no unjust force against any man neither rich nor poor, but all men of noble or humble birth shall have the right to enjoy just law, from which there is to be no deviation in any way, neither on account of the royal favour nor out of respect for any powerful man, nor in order to amass money for me.

III. The Rise of the Sheriff

Theodore Frank Thomas Plucknett describes “The Rise of the Sheriff,” in his masterpiece A Concise History of the Common Law. He explains how the creation of England in the early 10th century began with the unified Heptarchy which evolved into the Wessex-based Kingdom of England. This Anglo-Saxon Crown then began seek greater control by connecting with local institutions. The shire, ie county, was an ancient petty kingdom, represented by an alderman by way of the old royal families. These naturally tended to be resistant to modern, kingly centralization. To combat this resistance, the king sent a reeve to stand besides the alderman and represent his position. Plucknett describes this evolution:

Duties of the king’s reeve were very miscellaneous, including both administration and judicial business. It was inevitable as time went on the King’s reeve should grow in importance at the expense of the alderman, and that finally he should take the alderman’s place and become the principal officer of the shire under the name of “sheriff” or “shire reeve”.

As mentioned by Cnut, sheriffs over the years were accused of various acts of tyranny, and the king was forced to limit his power by keeping appointments to one year, and also demand an accounting afterward. Plucknett describes the battle for power between the burgeoning sheriffs and the crown:

At the time of the Norman Conquest the sheriff, as the King’s representative, enjoyed much judicial power, causing the Crown great anxiety, for there was no effective means of controlling him, except an occasional remedy of discharging him when popular unrest grew too strong. A number of attempts were made to find a check upon his powers as a royal judge. Sometimes the Crown appointed a permanent justiciar to sit in the county; the office of coroner was developed in order to serve as a check upon the sheriff; by the Great Charter (Magna Carta) it was finally declared no sheriff should for the future hold pleas of the Crown. This definitive solution robbed the sheriff of a great deal of his ancient power…

IV. Sheriff’s Consolidation of Power: The Tourn & Justicial Debt Collection

A. Biennial Tourn

The sheriff’s began to take on greater powers, by taking on bailiffs, absorbing tax powers, and quite often also acting as judges, according to Plucknett:

Sheriffs secured control over the hundred by appointing bailiffs. His influence further increased by means of the “Sheriff’s Tourn”. Twice a year local meetings were held, attended by the sheriff or his deputy, at which there came to meet him the reeve and his four best men to undergo a searching examination at his hands. They laid before them the most suspicious members of their community; those suspected of grave matters were arrested by the sheriff and held for the King’s Justice, while less serious offenders were amerced by the sheriff. By the close of the middle ages the Justices of the Peace took over for the tourns.

B. Sheriff as Judge & Debt Collector

Pucknett explains how the sheriff’s also were involved in collecting debts:

Another jurisdiction was exercised by the sheriff in the county court in virtue of a royal writ addressed to him, beginning with the word iusticies, “do justice upon” the defendant “so that rightly and without delay he render” to the plaintiff, e.g. a debt which he owes. Other writs were also “viscontial”, giving the sheriff jurisdiction, although not drawn in the form justicies. The implication seems clearly that down to the middle of the 13th century a large part of the nation’s litigation was in the county court. In this type of proceeding the sheriff was a judge in the modern sense, and the county court was merely the occasion upon which he exercised his jurisdiction. So complicated a situation could only result in confusion, and in fact it is very difficult to disentangle the two branches; The classical doctrine as described by Coke makes the suitors judges of the court in almost all cases. Thus was fulfilled the ancient policy of the crown in reducing the judicial importance of the sheriff at every possible opportunity.

V. Collapse of Sheriff’s Power: Evolution to Penal Reformer

A. Sheriff Howard, Prison Rehabilitator

Buffardi explains how the British sheriff’s power ebbed, and yet—as they still controlled prisons, they humanized the institution. Here, they exerted a mighty influence to help reform these terrible structures into more humane places.

Since the 16th century, the duties of sheriffs in England dealt chiefly with judicial issues, enforcement of debt, and service of process. John Howard, high sheriff of Bedfordshire, became a social activist for penal reform. He exercised the traditional, but usually neglected responsibility of visiting prisons and institutions. He was shocked at the conditions, particularly that jailers received no salary but made their living from prisoners in the form of fees. Many prisoners who had been discharged by the court system still remained in custody because they could not pay the discharge fees owed to their jailers.

Howard inspected prisons, prison ships, and houses of corrections throughout Europe and the US, finding all the facilities overcrowded, undisciplined, dirty, and ridden with disease. Thousands of prisoners were dying annually of diseases. Howard’s graphic descriptions of prison conditions horrified the English people. In 1779, he drafted the “Penitentiary Act,” based upon principles of secure and clean facility. Howard believed prison should not just be a place for industry and labor but also a place for contrition and penitence—a place that reformed inmates through the inculcation of good habits and religious instruction. All prisoners were to have healthy diets, access to conveniences that allowed for good hygiene, and all prisoners were to be provided with uniforms.

B. Decline of British Sheriffs & Rise of American

According to Buffardi, around the time of the development of the American sheriff, the English equivalent began to decline:

Since mid-16th century until the present, England’s sheriffs have had little political clout or government importance compared to the wealth of power enjoyed during medieval times. The justice of the peace relieved the last vestiges of the position’s former judicial duties. The Lord’s Lieutenant removed its military importance and appointment powers of the office were taken away from the king and transferred to parliament. This removed all of the king’s previous opportunity for political patronage, once so important to the position. The serious decline of the office might have been the death of the sheriff if it had not been for England’s colonization. Finding new life on different soil would allow this faltering office to flourish in a transplanted environment. Invigorated in the New World, the office of sheriff would find a whole new potential.

Conclusion

The fascinating rise and decline of the British sheriff foreshadows next week’s history of the American sheriff and their still-undiminished importance as local law-keeper and defender of the Constitution.



Kelly OConnell -- Bio and Archives | Comments

Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico.

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