The Office of Sheriff is the oldest continuing institution or office known to English law. Its history extends at least one thousand years and can be traced back to the year 992, during which time a rich tapestry has evolved around the Office.
The Office of Sheriff has undergone profound change in the millennium of its existence. The Office owes its origins to the Anglo-Saxon system of local self government, where the “shire reeve” was the chief of a group of several hundred families. The whole realm is parted and divided into shires; so as the shireeve is the reeve of the shire because he is the chief officer to the King, within the shire. The Sheriff assumed a particular role under Alfred the Great for the maintenance of law and order in each county.
The Norman Conquest led to a centralisation of power. Since the Anglo-Saxons’ system of local self government threatened the authority of the Norman Kings, the Sheriff’s powers grew markedly as an appointee of the King, outstripping the hitherto equally important powers of the earldorman and the bishop.
From the thirteenth century onwards the power of the Sheriff began to decline, as the imperative for centralised power became less pressing on English monarchs. The Magna Carta of 1215 significantly confined the power of the King relative to his nobles and guaranteed certain liberties to his subjects. The 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. The Sheriff functioned as the King’s tax collector and his authority had expanded with the Crown’s avarice for the levying of scutage. While the Sheriff’s power was reduced along with his King’s, the Magna Carta affirmed the role of the Sheriff, mentioning the Office no less than nine times.
By the late eighteenth century and the settlement of Australia, the decline in the powers but not the status of the Office led to significant uncertainty in the role of the Sheriff in the new colony. Sheriffs were appointed by the Crown and came to the colony with the expectation that they would assume a role with the powers of a High Sheriff in England. This was perfectly understandable, but disregarded the peculiar circumstances of their function within a penal colony. Resources were scarce and the Sheriff was forced to occupy a role dominated by his attendance at court and as chief gaoler for those committed to custody. The little time he possessed for the serving of summons and other court orders was sorely strained and plagued with problems of personal liability and insufficient staff assistance.
The other states of Australia benefited from the evolutionary process undergone by the Office in New South Wales. Only the Tasmanian Sheriff has a history as long as that of New South Wales, and there the jurisdiction was so small and so almost exclusively penal oriented that problems of authority were unlikely to emerge. Western Australia’s geographic separation from the other colonies and its growing free population prompted the appointment of a Sheriff, along with its own civil court in 1832. South Australia, the only state not to begin as a convict colony, originally acquired its own Sheriff in 1837. Queensland and Victoria were offshoots of the Office in New South Wales, the first prompted by the penal settlement and the second required by the growing settlement in the Port Philip district. The Northern Territory’s much later settlement as a free territory meant that a Sheriff was not required until well into the twentieth century.
The Sheriff and capital punishment
One of the Sheriff’s traditional roles is that of executive officer of the court. This means that the Sheriff has the responsibility of enforcing the orders of the court, which require: the recovery of money; the seizure of property; the sale of a debtor’s property; and the arrest of people. In undertaking this duty, the Sheriff must act with complete independence and propriety.
In the past, the Sheriff’s duties also required him to administer the death penalty after a court had passed the sentence of death on a convicted person. The history of the death penalty forms a fascinating story of the beginnings of the colonies and their progress to state and nationhood.
The Sheriff was responsible for the actual arrangements for the execution of the ultimate penalty. The Sheriff was therefore obliged to concern himself with the details of ensuring a quick and painless death, an aim that he did not always achieve. The Sheriff would typically employ a hangman to do what must have been one of the least enviable jobs in the colony. The identity of the hangman was usually kept secret.
The Sheriff’s responsibility for the execution of the death penalty was common for all States. The significance and incidence of capital punishment until at least the close of the nineteenth century gave the office a recognition, and at times notoriety, that its role as the instrument of the courts’ civil jurisdiction would never bestow.
The role of the office today is certainly different from what it was in 992, but one which nonetheless respects its millennium of development. Its ancient responsibilities for the summoning of the juries, the security of the courts and the executing of court orders remain intact. The enormity of civil actions requiring execution, the growing complexity of court centres and the increasing rate of criminal trial disposition imply that the Office of Sheriff will continue the tradition of the oldest existing Anglo-Saxon legal office.
The Office of Sheriff in South Australia
South Australia is the only state in Australia that did not begin as a convict colony. Despite this fact, the appointment of the first Sheriff, Samuel Smart, was linked to the convict colony of Van Diemen’s Land. The South Australian Governor appointed Smart, a solicitor, in May 1837. Prior to his appointment, several Van Diemen’s Land convicts had escaped and were committing outrages in South Australia. These convicts were known to Smart. The apprehension of these convicts and the fact that Smart knew them, were significant factors in the Governor’s decision to appoint a Sheriff in South Australia.
Smart formed part of a judicial “team” to establish a separate legal authority in the colony; he was accompanied by Sir John William Jeffcott, who was to become the first judge. Smart was appointed for a year only, the position to be reviewed annually by the judge, with the consent of the Governor.
The origin of the Office in South Australia is notable for its creation from within the colony, rather than through a specific transfer of the position from England by means of a Colonial Office appointment and significant continuing Colonial Office control. As was observed in the study of the office in New South Wales, this transfer bestowed on English legacy on the position that was not always helpful given the peculiar conditions of a convict colony.
The Sheriff’s Office was established by the Supreme Court Act of 1837, which provided that the Court should have ministerial and other officers as might be necessary for the administration of justice in the Court and for the execution of the judgments and other orders. The Office persisted under these vaguely defined guidelines until an ordinance was passed, regulating the appointment of the Sheriff and his duties.
The Sheriff’s duties were extended in 1856 to allow him to act as returning officer for the colony, and as such he conducted elections after the introduction of responsible government.
From 1870 the Sheriff was accorded the responsibility of all gaols and the custody of all imprisoned debtors and criminals. This responsibility remained with the Sheriff until July, 1965, when the Sheriff’s Gaols and Prisons Department was discontinued. The creation of the new prisons department and the appointment of a permanent head for that department relieved the Sheriff of substantial responsibility.