The Volokh Conspiracy
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Speaking to the National Sheriffs' Association on Monday, Attorney General Sessions said, "I want to thank every sheriff in America. Since our founding, the independently elected sheriff has been the people's protector, who keeps law enforcement close to and accountable to people through the elected process." He continued, "The office of sheriff is a critical part of the Anglo-American heritage of law enforcement." Suprisingly, some persons thought these remarks controversial.
Ignoramuses do not know that our American legal system grew from the English legal system. Even today, the legal systems that came from the English system (e.g., U.S., Canada, Australia) have much more in common with each other than they do with systems that grew from different roots, such as the Napoleonic Codes that are the foundations of the legal systems in much of continental Europe and Latin America. (Louisiana, thanks to its French roots, blends the English and French systems.) As Attorney General Sessions accurately stated, the "office of sheriff" is part of our legal Anglo-American heritage. Indeed, today's "independently elected sheriff" comes from America's devotion to its ancient English legal roots.
In an article in the Journal of the Criminal Law and Criminology, I examined the Office of Sheriff, from its English origin to modern America. In the English system of government, the oldest title of office is "king" and the second oldest title of office is "sheriff." The Anglo-Saxon word for what we today call a "county" was "shire." The word "sheriff" is a compound of "seyre" (meaning "shire") and "reve" (meaning "bailiff" or "guardian"). The sheriff is therefore the guardian of the county. While Americans got rid of kings, they have fortified and improved the Office of Sheriff, drawing on its most ancient roots.
We can trace the modern office of sheriff to the reign of England's King Alfred the Great (871-99). The only English monarch to be dubbed "the Great," Alfred earned the honor by defeating repeated Danish invasions of England. For a while, he fought as guerilla in the swamps and marshes, keeping alive the principle of English sovereignty and leading the English back from the brink of annihilation. During the period of Danish oppression, the English had devolved into lawlessness and robbery. So when Alfred restored English sovereignty, he used the shires to organize community self-defense. The sheriff was the pillar of this self-defense system. As the county leader of the armed people, "the reeve became the guarantor of the survival of the group." (David R. Struckhoff, The American Sheriff 3 (1994)).
The Anglo-Saxon period in England ended in 1066, when the nation was conquered by the Norman French. It was a terrible time for the English. According to historian David Hume, the majority of Anglo-Saxons were reduced "to a state of real slavery." (David Hume, History of England, vol. 1, p. 437 (1778) (republished by Liberty Fund 1983). Centuries later, many English and Americans–such as Edward Coke (1552– 1634, the greatest jurist of his time) and Thomas Jefferson–would look back to the pre-Norman times as a state of lost liberty, which they sought to recover.
In the 1760s, the pre-eminent legal scholar William Blackstone wrote that in Anglo-Saxon times, "sheriffs were elected: following still that old fundamental maxim of the Saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves." (1 William Blackstone, Commentaries *409). Today, historians are not as sure as Blackstone was that Anglo-Saxon sheriffs were always elected; but as of the 1760s, his view was widely shared.
By the time that English settlement in North America began, in 1607, the Office of Sheriff had changed in some important and positive ways. Sheriffs had to take an oath to uphold the law. They also had to post a bond, as security against any malfeasance in office. Both requirements endure in modern American law. All state constitutions require constitutional officers to take an oath to uphold the constitution. Likewise, a bond is still required, although it may be satisfied by an insurance policy.
By 1607, the election of sheriffs of England was the exception rather than the rule. Some places, such as London, did have charters guaranteeing their right to elect sheriffs. Other counties might obtain the right by giving a sufficiently large gift to the monarch. As practical matter in England, the election of sheriffs in the seventeenth century was less important than formerly, because much of their work had been taken over by justices of the peace.
When the English crossed the Atlantic to America, they took the Office of Sheriff with them. Soon, they would begin shaping that office in a distinctively American way. Although nominally appointed by the royal governor, the American sheriff "was more of a county than a colonial official . . . ." (Cyrus Harreld Karraker, The Seventeenth-Century Sheriff: A Comparative Study of the Sheriff in England and in the Chesapeake Colonies, 1607-1689, at 156 (1930)). The colonial sheriff enjoyed "little of the social functions and prestige of the English official, but economic and political forces more than compensated for this loss . . . restoring to him some of the importance his ancestor early had in England as conservator of the peace . . . ." In sum, "[t]he office was taking on new strength in the colonies while continuing to decline in England. (Id. at 158-59).
An important American innovation was that the sheriff either had a salary or could only charge fees (e.g., for executing a civil judgment) that were fixed by law. This reform recognized the problem of some of the unsalaried English sheriffs who had used their office for personal enrichment.
The American practice of electing sheriffs began in 1652, when the Royal Governor of Virginia told each county to choose its own sheriffs. The commissioners of Northampton County asked the people of the county to elect the sheriff. William Waters became the first sheriff elected in America. It was not surprising that the reestablishment of popular election of sheriffs came from a county government; other than the New England town meetings, the first democratic governments in the American colonies were county governments.
The restoration of direct election of sheriffs "encouraged them to adopt an active role, whilst the fact that they were officials of county government helped to give them the opportunity to do so." Election "meant that sheriffs were amongst the first public officials to be elected in any newly settled area and were therefore able to develop their role with little opposition from competing organisations or officials." Steve Gullion, Sheriffs in Search of a Role, 142 New Law Journal 1156, 1157 (1992).
Americans came to understand the election of the sheriff as a right of the people. The 1802 Ohio Constitution was the first state constitution to formally specify that sheriffs must be elected. The large majority of American state constitutions now require that sheriffs be elected by the people of the county. Today, American sheriffs are elected in all states except Alaska (which has no counties), Hawaii, Rhode Island, and Connecticut (where the office of sheriff was abolished in 2000).
In creating what Jefferson called the "most important" of all the county offices, the American people modeled the office on the best features of the Anglo-Saxon Office of Sheriff. The Americans also included what they considered to be improvements that had taken place in the centuries after the Norman Conquest. As one historian would observe in 1930, "in America today . . . the sheriff retains many of his Anglo-Saxon and Norman characteristics. (Karraker, p. 159). Or as another historian put it, "Virtually no significant changes have occurred in the American system of county law enforcement during the past century. Most sheriffs and constables operate under the same basic laws and customs as existed at the creation of their posts." (Frank Richard Prassel, The Western Peace Officer 119 (1972)). In the American legal system of 2018, few things are so similar to 898 as the Office of Sheriff.
Today, most Americans enjoy a right that is denied almost everywhere else in the world, including England: the right of electing the chief law enforcement officers of their county. This is one application of a fundamental principle of American law: "The people, not the government, possess the absolute sovereignty." New York Times v. Sullivan, 376 U.S. 254, 274 (1964) (Justice Brennan quoting James Madison).
A modern historian of sheriffs urges that their contemporary role be recognized as a "tribune of the people" who champions their rights. (Johannes F. Spreen, The Future Shire Reeve–Tribune of the People, in Crime and Justice in America 43, 45 (John T. O'Brien & Marvin Marcus eds., 1979)). This description is consistent with the most admirable aspects of the role of sheriffs, from Anglo-Saxon times to the present. Unlike municipal police chiefs, FBI directors, or the heads of other law enforcement departments or agencies, American sheriffs are constitutional officers, directly accountable to the people through election. If an elected sheriff misuses his or her office, he or she can be replaced at the next election. Not so with abusive FBI directors, police chiefs, or the rest.
Attorney General Sessions was exactly right in praising the Anglo-American tradition of "the independently elected sheriff. . . the people's protector, who keeps law enforcement close to and accountable to people through the elected process." As in many fields of law, such as freedom of the press, America has built on its English legal foundation–taking good principles, and strengthening and extending them.