Americans' right to elect their Sheriffs comes from ancient English legal tradition.
David Kopel
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.
... 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.
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...
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.
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).
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