The Office of the Sheriff A Millennium of Tradition

The office of Sheriff is the oldest continuing institution known to English law. Its history extends at least a millennium prior to the present day. The name is derived from Anglo Saxon words ‘shire reeve’. Coke described it thus: “the whole realm is parted and divided into shires; reeve is praepositus; so as shireeve is the reve of the shire … and he is called praefectus, because he is the chief officer to the King, within the shire”. The office of Sheriff probably owes its ultimate origins to the reign of King Alfred in the ninth century. King Alfred divided England into several Counties, governed by either judges, Vicecomites or Sheriffs.

The office of Sheriff probably owes its ultimate origins to the reign of King Alfred in the ninth century. King Alfred divided England into several Counties, governed by either Judges, Vicecomites or Sheriffs.

During the five centuries preceding the Norman Conquest in 1066, a period sometimes referred to as the ‘Heptarchy’ since England during most of that time was made up of a number of small kingdoms – the recognised law of the land was that of the Angles (England derived its name from this) and Saxons who had colonised the country. The dignitary, next in importance to the King, was the Ealdorman, who was clothed with both civil and military authority. He was appointed by the King with the consent of the Witenagemot, was often of royal extraction, and was referred to by early Latin writers as ‘ Dux’ or ‘Comes’ and often acted in the capacity of overlord of several shires at once.

In time we find the Office of Ealdorman tending to become hereditary, a circumstance which did not insure the competency of the official to discharge the duties of the office. The Ealdorman was also absent from the shire for long periods of time, since he was obliged to accompany the King to the ward; and so we find another official called ‘Vice Comes’ or ‘shire reeve’ coming into prominence and gradually taking over the actual management of the shire from the Ealdorman or Earl.

In the century immediately preceding the Norman Conquest, the Sheriff sat with the Earl and the Bishop of the shire in the folk-moot or shire-moot the name given to the ancient assembly of freemen of the shire, acting as its president or chairman.

In judicial and military matters, the Sheriff had wide jurisdiction. He collected the royal revenue. He had to proclaim the King’s peace, and he was responsible for the apprehension of criminals, rousing the whole country if necessary by the official ‘hue and cry’. It is this position of the Sheriff i.e. being the executive officer of the Crown, which has all along been the outstanding characteristic of the office.

The two centuries following the Norman Conquest was the halcyon period for the office of Sheriff. William the Conqueror’s separation of the lay and the ecclesiastical courts left the Sheriff supreme in the shire courts and head of every department of county administration.

The Normans introduced juries and a system of itinerant judges. These two reforms were to form important and enduring parts of the Sheriff’s functions to the present day. The appointment of itinerant judges meant that the office of the Sheriff became shorn of its criminal jurisdiction. Nevertheless, the shire-moot remained the Sheriff’s court, where all important proclamations affecting the shire were made. The establishment of a circuit judge system gave the Sheriff a new and significant responsibility for the reception and safety of the judge while in his county. This duty arose from his status as the chief executive officer of the Crown and the first gentleman of the shire. The accommodation of a judge involved the maintenance of a considerable establishment of servants and the preparation of substantial hospitality. A writer of the period describes the visit of a judge of the assize as follows:

“In all the counties of England, the Sheriff comes to the edge of his county and receives the visiting judge from the hand of the Sheriff of the next county and conducts him to the county town attended with the gentry, and there is a large house in the town hired for the judge, and all the Sheriff’s officers attend him, and he in person; also he sends the judge a present the first night of meat and wine and also gives him one dinner”.

As time went on, some Sheriffs found that the cost of maintaining his appointments in keeping with his position, together with the cost of maintaining a free table, had become burdensome, so in the reign of Charles II an act was passed declaring that no sheriff should.

• In the time of the assize keep or maintain or cause to be kept or maintained one or more table or tables for the receipt of entertainment of any person or persons resorting to the said assize, other than those of his own retinue.
• Make or send any present to the judge or judges of the assize, nor give gratuities to their servants.
• Have more than forty men servants with liveries attending upon him in the time of the said assize, nor under the number of twenty men servants in any county whatsoever within the Kingdom of England.

Most importantly, the Sheriff was a distinctively royal officer, appointed by the king, dismissible at a moment’s notice, and strictly accountable to the Exchequer. The directness of the sheriff’s relationship with the monarch in the period after the conquest was a characteristic that was to wane over the centuries prior to the settlement of Australia. Nonetheless, this relationship was sufficiently important to cause significant confusion as to the exact nature of the role of New South Wales’ early Sheriffs. This aspect will be discussed in detail in the section relating to the history of Sheriffs in New South Wales.

The office of Sheriff is recognised in the Magna Carta 1215. Sheriffs were amongst those to which the Magna Carta was particularly addressed. Of the sixty three clauses, twenty seven are directly concerned with the Sheriff and his Office. Lines 30-32 of the document refer to the Sheriff’s power to seize the chattels of a deceased person to satisfy a debt if he is able to show the patent of summons of the Crown. Lines 45-46 confirm the Crown’s power to appoint the Sheriff, and undertakes to appoint only such men who know well the law of the realm and who will observe it appropriately. The Sheriff is also referred to in lines 21-23 as the Crown’s agent for the summoning of all individuals who held land directly through the Crown in order to receive the common counsel of the realm for scutage (or the levy of Crown monies).

The practice for the appointment of Sheriffs was determined during the reign of Edward II in a manner that affirmed the relationship between the shrievalty and the Crown. Prior to Edward II, a variety of means of attaining the office prevailed, either through hereditary means, life tenure, or country election. The popular elections were described as tumultuous which no doubt prompted Edward II to enact to the effect that Sheriffs would be assigned by the chancellor, treasurer and the judges. The means by which the appointment was made is curious and persists to this day in England. Preparatory to making a choice of a new Sheriff, all the judges, together with the other great officers and privy counsellors, meet annually in the Exchequer on the day following St. Martins Day. Three names are recommended to the sovereign, who in turn indicates his/her choice by ‘pricking’ the name of the successful individual.

It was in the reign of Queen Elizabeth I that the practice of selecting a Sheriff by ‘pricking’ his name with a bodkin on the parchment roll began. It is said that the Queen was sitting in the garden quietly doing her needlework when members of her Council interrupted by presenting her with the list of Sheriffs. Not wishing to leave her comfortable seat in the garden, and being without the use of her pen, she pricked a hole in the parchment against the name for each County with the nearest weapon to hand – her needle. This tradition lives on into the present day when a silver bodkin is used.

From the thirteenth century the power of the Sheriff began to decline. Edward III’s statute (1340) that the office could be held only on an annual basis was an important factor in this decline. Coke, however, felt able to describe the office of the Sheriff as having “a threefold custodie” consisting of: vitae justiciae, vitae legis, “he is after long suits and chargeable, to make execution which is the life and fruit of the law”, and vitae republicae, “he is principalis conservator pacis, within the county, which is the life of the commonwealth”.

Nineteenth century writers conceived of the office of Sheriff by means of a threefold categorisation, consisting of the ministerial, fiscal and judicial attributes of the Sheriff.

The Sheriff’s ministerial function was derived from his execution and return of all processes issuing from the king’s courts. This comprised both civil and criminal elements, some of which tasks have been assumed by what is now the police service. Civil matters required the serving of the writ, and where necessary, arrest and the taking of bail. In criminal matters the Sheriff was responsible to arrest and imprison those charged. The Sheriff summoned the jury and carried into execution the judgment of the court. The Sheriff’s most notable ministerial power stemmed from his role as the keeper of the King’s peace throughout the county. The Sheriff was empowered to imprison any person breaking the peace and was bound to pursue and arrest traitors, murderers, felons and rioters. The principal means at his disposal to keep the King’s peace was by the ‘posse comitatus’, which allowed him to summon as many men as was necessary to effect the execution of the king’s writs after resistance had prevented him. The notion of the posse comitatus re-emerged centuries later amidst the lawlessness of the American West, no doubt adopted by the nineteenth century American Sheriff as an expedient means to assist the few representatives of the law in a sparsely populated newly settled continent.

There is no recorded use of the posse comitatus in Australia. Certainly, settlement in the colony was over an increasingly large area, but the predominance of the military, know as the New south Wales Corps, ensured that there was not the same shortage of agents of the law. The ubiquitous Corps rather made irrelevant the need for raising of the hue and cry so common in medieval England. The particular adaptation of the Sheriff’s powers at settlement will be discussed more fully in the section on the Sheriff of New South Wales.

Other ministerial functions of the Sheriff were his attendance upon the judges to execute all their commands. He was also obliged to assist the justices of the peace within his county.

As King’s bailiff the Sheriff possessed a number of fiscal duties. He was responsible for all the interests of the Crown in matters of land, rents, fines, and forfeitures, which tasks are noe now performed by a number of different departments and statutory authorities. The Sheriff also seized for the King’s use the goods of attained felons, outlawed persons, wards, idiots and others to whom the law had denied title and therefore attracted the King’s parental authority.

The Sheriff possessed a limited judicial authority, which had to be exercised personally. He was empowered to hear matters where the sum in dispute was less than forty shillings. The extent of this jurisdiction was greatly reduced from the formerly extensive powers once exercised by Sheriffs in their own courtroom – the – tourn – in the period following the Norman conquest. The tourn had become virtually obsolete by the seventeenth century.

Notwithstanding the gradual decline in the power of the Sheriff after the thirteenth century, the Court of Common Pleas as late as 1861 felt able to confirm Blackstone’s remark that the high Sheriff of each county is “the keeper of the king’s peace, both by common law and special commission, … is the first man in the county, and superior to any nobleman therein during his office”.

Whether this exalted status also applied to the Office of Sheriff in New South Wales was a matter of some contention between the Colonial Office, the Governor and early Sheriffs.