History of the Sheriff – Conservator of the Peace

History of the Sheriff – Conservator of the Peace

(Research consolidated from Wikipedia)

A conservator of the peace is defined as a public official authorized to conserve and maintain the public peace.^[1] Under common law, conservators of the peace included judges,^[2] police, sheriffs, and constables.^[3]

The king is mentioned as the first. Then come the chancellor, the treasurer, the high steward, the master of the rolls, the chief justice ant the justices of the King’s-bench, all the judges in their several courts, sheriffs, coroners, constables; and some are said to be conservators by tenure, some by prescription, and others by commission.^[4]

Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence^[5]

As Conservators of the Peace, police have long had the authority to order groups of persons threatening the public peace to disperse, or to arrest without a warrant for a breach of the peace.

It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby thereunto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, sidewalks, parks and places.^[6]

Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, for example, police officers continue to be obligated, by law, to maintain the public peace.^[7]

Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats — importantly, they have long been vested with the responsibility for preserving the public peace. See, e.g., O. Allen, DUTIES AND LIABILITIES OF SHERIFFS 59 (1845) (“As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great”); E. Freund, POLICE POWER § 86, p. 87 (1904) (“The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority”).

Historical origins

Under early Saxon law, each county or shire in England was divided into an indefinite number of hundreds, each composing ten groups of ten families governed by a constable with his own court. Each member of the group and subgroup was individually responsible for preserving the peace and apprehending criminals. This is shown in laws recorded by Saxon kings, such as:

Let him who takes a thief, or to whom one taken is given, and he then lets conceals the theft, pay for the thief according to his wer. If he be an ealdorman, let him forfeit his shire, unless the king is willing to be merciful to him.^[8]

That a thief shall be pursued…. If there be present need, let it be made known to the hundredman, and let him make it known to the tithingmen; and let all go forth to where God may direct them to go. Let them do justice on the thief, as it was formerly the enactment of Edmund I.^[9]

And the man who neglects this, and denies the doom of the hundred, and the same be afterwards proved against him, let him pay to the hundred xxx. pence; and for the second time lx. pence, half to the hundred, half to the lord. If he do so a third time, let him pay half a pound; for the fourth time, let him forfeit all that he owns, and be an outlaw, unless the king allow Him to remain in the country.^[10]

In 920 AD, King Edward the Elder set forth that the reeve or gerefa of the shire, a royal official, should hold court each month to try cases of both civil and criminal matters. The modern term “sheriff” originates from the Saxon “shire reeve” and the term gerefa.^[11] The shire reeve was the earliest public official charged specifically with keeping the King’s peace.

I will that each reeve have a gemot always once in four weeks, and so do that every man be worthy of folk-right; and that every suit have an end, and a term when it shall be brought forward. If that any one disregard, let him make bot as we before ordained.^[12]

The Norman invasion of England eventually disrupted the Saxon hundreds system. Gradually, disregard for collective responsibility in conserving the peace led to relaxed requirements for the King’s subjects to appear at each session of court. The baronage and clergy were no longer required to appear unless specifically required, and persons having matters before the court could have attorneys appear on their behalf.^[13] In response to the loss of this collective responsibility, Henry III of England appointed four specific knights in each county deemed responsible for conserving the peace.

The King to Alured de Lincoln, Ivo de Rocheford, John de Strods, and William de Kaymens, of the county of Dorset, greeting: Whereas, in our Parliament lately holden at Oxford, it was ordained, that all excesses, transgressions, and injuries, done in our realm, should be inquired into by four knights of each county, that (the truth thereof being known) those offences might be more easily corrected; which same knights should take their corporal oaths, in the full county court, or (if such county court be not speedily held) before the sheriffs and coroners; as we have enjoined all our sheriffs faithfully to take such inquisition as aforesaid, we command you, by the fealty you owe us, that, having yourselves, first taken the oath beforementioned, by the oaths of good and lawful men of the county aforesaid, by whomsoever and upon whomsoever lately perpetrated; and this as well concerning justices and sheriffs as our bailiffs and other persons whatsoever. And such inquisition, under your own seals, as well as those of the jurors, you shall bring to Westminster, in the octaves of St. Michael, to be delivered by our own hands to our council there. Moreover, we have commanded our sheriff of the aforesaid county, that, having taken your oaths in form aforesaid, he cause good and lawful men, by whom the said inquisition may be best made, to come before you, at such days and places as you may appoint.^[14]

The specific term “Conservator of the Peace” came into being upon the codification and expansion of the authority of the office under Henry III’s son, Edward I^[15] . Under Edward I, Conservators of the Peace were not only charged with keeping the peace, but where also given the authority to try certain offenses previously heard by the Reeve’s court. These itinerant judges were the earliest historical predecessors to the Justice of the Peace. Conservators of the Peace appointed under Edward I were considered to be in positions of great public trust and social stature.

Edward, Earl of Cornwall, was appointed conservator of the King’s peace for the counties of Middlesex, Essex, Hertford, Cambridge, Huntingdon, Norfolk, Suffolk, Kent, Surrey, Oxford, Bedford, Bucks, Berks, Northhampton, Lincoln, and Rutland; and the various sheriffs, nobles, knights, and other persons in those counties, are commanded to assist the Earl, and those whom he shall depute under him to keep the peace. Rot. Walliæ^[16] 10 EDW. I. m. 9.

Richard de Amundeville was in the same year appointed conservator of the peace, together with the sheriff, in the county of Warwick; but the sheriff was to take counsel and direction from Richard de Amundeville as to what he did for the better preservation of the peace. Rot. Pat.^[17] 10 EDW. I. m. 8.

Besides the above exalted personages, others were commissioned in the same year to go into counties, for the purpose of making inquiries concerning those who were indicted for infractions of the peace, and other offences, and of apprehending all those found guilty, and delivering them to the sheriff, to be kept in ward until the King should further direct. Rot. Pat. 10 EDW. I. m. 8.^[18]

Immediately after the death of Edward I and the accession of Edward II of England in 1307, officers were appointed in every county in England as Conservators of the Peace. Their commissions stated that they shall constantly reside within their respective counties, visit every place therein and the King’s laws shall be strictly observed. If any disturbances occur, the Conservators are to raise the posse comitatus, arrest the offenders and keep them in custody until the King shall further direct.^[19]

Edward III strengthened the office and authority of the Conservator of the Peace, but not necessarily for any altruistic interest in maintaining the public peace.

In the reign of Edward III, an act of parliament ordained “that in every shire of the realm good men and lawful which were no maintainers of evil nor barrators in the county, should be assigned to keep the peace, …to repress all intention of uproar and force even in the first seed thereof and before that it should grow up to any offer of danger.” Lambard, book 1, ch. 4; 2 Hale, P. C., ch. 7, note 1. The real purpose of this act seems to have been to enable the king, Edward III, to appoint men upon whom he could rely in the different counties, to repress any effort of the people to release his father, Edward II, from prison.^[20]

When the English colonists settled at Jamestown in 1607 they brought not only the common customary law of England, but the law as modified by English statutes of general operation up to that time.^[21]

We see here, at the beginning of permanent civilized life on this continent, not only the contemplation of and provision for civil offices among the colonists, but also the practical application of the principle of local self-government, a principle of Anglo-Saxon derivation which, surviving the Norman Conquest, has always obtained, to a great and increasing extent, in England, and has ever been one of the fundamental principles of civil liberty in the rise, growth and progress of governments and governmental institutions in America.^[22]

With formation of government within the American colonies, the offices of sheriff, justice and constable were adopted from the English common law and the English ordinances. A warrant issued by a Native American magistrate directed an early colonial constable to arrest a suspect.

1. I, Hidondi. 2. You, Peter Waterman. 3. Jeremy Wicket. 4. Quick you take him. 5. Fast you hold him. 6. Straight you bring him. 7. Before me, Hidondi.^[23]

A minister from a Massachusetts Bay colony described an arrest warrant that was served by early American constables in a private home in 1651.

On Sunday after their arrival, ‘not having freedom in our spirits,’ says Clark, ‘for want of a clear call from God to go unto the public assemblie to declare there what was the mind, and counsel of God concerning them,’ he ‘judged it a thing suitable’ to hold divine service in the house and with the family of Witter, and four or five others who came in to join their worship. While thus engaged, there came in two constables with a warrant for their arrest. A request to finish the services was denied, and ‘the erroneous persons being strangers,’ whom the writ of Justice Bridges commanded should be brought before him in the morning, were marched off as prisoners — bail being refused — to the inn for safe keeping.^[24]

The Commonwealth of Virginia‘s adaptation of the ancient common law office of Conservator of the Peace was described by the Virginia Supreme Court in 1923:

The office of conservators of the peace is a very ancient one, and their common law authority to make police inspection, without a search warrant, extends throughout the territory for which they are elected or appointed, as the case may be, in private as well as in public places, and upon private as well as public property, unless inhibited from entry for such purpose without a search warrant by some rule of the common law, or by the Constitution, or by statute. It was provided in EDW. III, ch. 15, that “in every shire of the realm good men and lawful, which are no maintainers of evil nor barretors [sic] in the county, shall be assigned to keep the peace;” of which it was said that this “was as much as to say that in every shire the King himself should place special eyes and watches over the people, that should be both willing and wise to foresee, and should be also enabled with meet authority to repress all intention of uproar and force even in the first seed thereof and before that it should grow up to any offer of danger.” This was but declaratory of the common law authority of conservators of the peace. That authority could not have been at all efficiently exercised if a search warrant had had to be first obtained before any entry could have been lawfully made upon any land in private tenure. And while the duties and powers of police officers are, in modern times, largely defined and regulated by statute, it is elementary that the common law may be relied on to supply many incidents (of their powers), “and others are based on what may be necessarily implied from the powers expressly conferred.”^[25]

The Sheriff:

A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country.

The word “sheriff” is a contraction of the term “shire reeve*”.

[*A reeve is a term used to refer to a variety of administrative and judicial officials serving under the king or other nobles in Anglo-Saxon England and later medieval England.]

The term, from the Old English scīrgerefa, designated a royal official responsible for keeping the peace (a “reeve”) throughout a shire or county on behalf of the king.^[1] The term was preserved in England notwithstanding the Norman Conquest. From the Anglo-Saxon kingdoms the term spread to several other countries, at an early point to Scotland, latterly to Ireland and the United States.

The position of sheriff now exists in various countries:

• Sheriffs are administrative legal officials (similar to bailiffs*) in Ireland, Australia, and Canada.

[*A bailiff (from Late Latin baiulivus, adjectival form of baiulus) is a governor or custodian (cf. bail); a legal officer to whom some degree of authority, care or jurisdiction is committed. Bailiffs are of various kinds and their offices and duties vary greatly.]

• Sheriffs are judges in Scotland.
• Sheriff is a ceremonial position in England, Wales, and India.
• In the United States of America the role of a sheriff varies between different states and counties. In many rural areas, sheriffs and their deputies are the principal form of police, while in urban areas they may have more specialized duties, such as administering the county jail, prisoner transport, serving warrants, service of process or police administration. While sheriffs also patrol outside of a city/town limits or jurisdiction.

In British English, the political or legal office of a sheriff is called a shrievalty.

Ireland:

In Ireland, a sheriff can be either:

• A court officer in both Dublin City and County and Cork City and County who earn their fees from poundage (commission)
• Civil servants employed by the Revenue Commissioners, known popularly as “tax sheriffs”

In both cases sheriffs are charged with enforcing civil judgements against debtors within their bailiwick*. Outside Dublin and Cork the County Registrar carries out the functions of the sheriff regarding judgements. The Dublin and Cork sheriffs also perform all the duties of returning officers in elections (other than local elections) and some other duties concerning pounds. Sheriffs may appoint court messengers, subject to approval of the Minister for Justice, to assist them with their work.

[*A bailiwick (pronounced /ˈbeɪlɨwɪk/) is the area of jurisdiction of a bailiff. The term was also applied to a territory in which the sheriff's functions were exercised by a privately appointed bailiff under a royal imperial writ. The word is now more generally used in a metaphorical sense, to indicate a sphere of authority, experience, activity, study, or interest.

At Bicester in Oxfordshire the lord of the manor of Market End was the Earl of Derby who in 1597 sold a 9,999 year lease to 31 principal tenants. This in effect gave the manorial rights to the leaseholders, ‘purchased for the benefit of those inhabitants or others who might hereafter obtain parts of the demesne’. The leaseholders elected a bailiff to receive the profits from the bailiwick, mainly from the administration of the market and distribute them to the shareholders. From the bailiff’s title the arrangement became known as the Bailiwick of Bicester Market End. By 1752 all of the original leases were in the hands of ten men, who leased the bailiwick control of the market to two local tradesmen.

The term originated in France (bailie being the Old French term for a bailiff). Under the ancien régime in France, the bailli was the king's representative in a bailliage, charged with the application of justice and control of the administration. In southern France, the term generally used was sénéchal (cf seneschal) who held office in the sénéchaussée. The administrative network of baillages was established in the 13th century, based on the earlier medieval fiscal and tax divisions (the 'baillie') which had been used by earlier sovereign princes. (For more on this French judicial system, see bailli, prévôt and Early Modern France.)

A bailiwick (German: ballei) was also the territorial division of the Teutonic Order.

In English, the original French bailie was combined with '-wic', the Anglo-Saxon suffix meaning a village, to produce a term meaning literally 'bailiff's village' - the original geographic scope of a bailiwick. In the 19th century, it was absorbed into American English as a metaphor for one's sphere of knowledge or activity.

The term survives in administrative usage in the British Crown dependencies of the Channel Islands, which for administrative purposes are grouped into the two bailiwicks of Jersey (comprising the island of Jersey and uninhabited islets such as the Minquiers and Écréhous) and Guernsey (comprising the islands of Guernsey, Sark, Alderney, Brecqhou, Herm, Jethou and Lihou). Each Channel Island bailiwick is headed by a Bailiff.]

Originally posted by Kev on February 1, 2011 on Tír na Saor @: http://freemanireland.ning.com/forum/topics/history-of-the

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