Page:EB1911 - Volume 24.djvu/883

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849
SHERIFF


Treasury in accordance with the Treasury order of the 2nd of August 1898. The order lays down with somewhat grim humour that the sheriff is not limited to the allowances, but may spend more if he likes. A sheriff cannot during his year of office act as a magistrate for the county of which he is sheriff. See the works on the history of law by Stubbs, Pollock and Maitland and Holdsworth. Also W. S. McKechnie, Magna Carta (1905); Sir M. Hale, A Short Treatise touching Shenjfs Accompts (1683); Greenwood, Bouleuterion (1685); The Compleat Shertf (1696); Impey (1786); Atkinson (1878); Churchill and Bruce (1882); and Mather (1903).

Scotland.-As far as is known the sheriff did not exist in Scotland before the beginning of the Norman period. In the feudal system he became as in England the centre of the local administration of justice, the representative of the crown in executive as well as judicial business, and was always a royal officer appointed by and directly responsible to the king. The earliest sheriffs on record belong to the reigns of Alexander I. and David I., and the office was common before the death of Alexander III. In many cases it had become hereditary, instances being those of De Sinton in Selkirk and Agnew in Galloway. The ordinance of Edward I. in 1305 rejected the hereditary character of the office, but an act of James II. shows that the office had again become hereditary.

One of the consequences was that sheriffs ignorant of law required deputes to discharge their judicial duties. In the course of succeeding reigns, down to that of James VI., the jurisdiction of the sherilfs came to be much limited by grants of baronies and realities which gave the grantees the right to hold both civil and criminal courts of less or greater jurisdiction to the exclusion of the sheriff.

The civil jurisdiction of the sheriff was originally of very wide extent, and was deemed specially applicable to questions relating to the land within the shire, but after the institution of the court of session in 1532 it became restricted, and all causes relating to property in land, as well as those requiring the action called declaratory for establishing ultimate right, and most of those requiring equitable remedies, were withdrawn from it. Nor did it possess any consistoriai, jurisdiction. Practically, therefore, the civil jurisdiction of the sheriff fell under the head of actions concluding for payment of money and actions to regulate the possession of land. The criminal jurisdiction of the sheriff was in like manner in its origin of almost universal extent. But this was first limited to cases where the offenders were caught in or shortly after the act, afterwards to cases in which the trial could be held within forty days, and subsequently further restricted as the business of the justiciary court became more organized. The punishment of death, having by long disuse come to be held beyond the power of the sheriff, and the statutory punishments of transportation or penal servitude never having been entrusted to him, his jurisdiction as regards crimes. was usually said to be limited to those punishable arbitrarily, that is, by imprisonment, fine or admonition.

As a consequence of the suppression of the Jacobite rising of 1745, after the 1st of March 1748 all heritable sheriff ships were extinguished by 20 Geo. II. c. 43. The act declared that there should be but one sheriff-depute or stewart-depute in every shire or stewartry, who was to be an advocate of three years' standing, appointed by the crown. Since 1769 the sheriff-depute has held his office ad 'vitam aut culpam. Power was given to him by 20 Geo. II. c. 43 to appoint one or more sheriffs substitute. In 1787 the sheriff-substitute was placed on the civil establishment and paid by the crown; in 1825 a qualification of three years' standing (now five years by the Sheriff Courts (Scotland) Act 1877) as an advocate or procurator before a sheriff court was required (6, Geo. IV. c. 23); in 1838 he was made removable by the sheriff-depute only with the consent of the lord president and lord justice clerk, and it was made compulsory that he should .reside in the sheriffdom, the provision of zo Geo. II. c. 43, which required the sheriff-depute so to reside for four months of each year, being repealed (1 & 2 Vict. c. 119). In 1877 the right of appointment of the substitutes was transferred frorn the sheriff-depute to the crown by the act of 1877. While the sheriff-depute has still power to hear cases in the first instance, and is required to hold a certain number of sittings in each place where the sheriff-substitute holds courts, and also once a year a small-debt court in every place where a circuit small-debt court is appointed to be held, the ordinary course of civil procedure is that the sherii-substitute acts as judge of first instance, with an appeal under certain restrictions from his decision to the sheriff-depute, and from him to the court of session in all causes exceeding £25 in value. An appeal direct from the sheriff-substitute to the court of session is competent, but is not often resorted to. By the Interpretation Act 1889, s. 28, the word “ sheriff ” in any act relating to Scotland is to include a sheriff-substitute.

As regards criminal proceedings, summary trials are usually conducted by the sheriff-substitute; trials with a jury either by him or, in important cases, by the sheriff-depute. The sheriff substitute also has charge of the preliminary investigation into crime, the evidence in which, called a precognition, is laid before him, and if necessary taken before him on oath at the instance of his procurator-fiscal, the local crown' prosecutor. The duties of the sheriff-depute are now divided into ministerial or administrative and judicial. The ministerial are the supervision of the accounts of the inferior officers of the sherilfdom; the superintendence of parliamentary elections; the holding by himself or his substitutes of the courts for registration of electors; the preparation of the list of persons liable to serve both on criminal and civil juries; the appointment of sheriff officers and supervision of the execution of judicial writs by them; and the striking of the “ fiars." He has also to attend the judges of justiciary at the circuit courts for the county or counties over which his jurisdiction extends., The judicial duties of the sheriff-depute are, as regards crimes, the trial of all causes remitted by the counsel of the crown for the trial by sheriff and jury, as well as summary trials if he chooses to take them. This now means most crimes for which a maximum of two years' imprisonment (in practice eighteen months is the longest sentence imposed) is deemed sufficient, and which are not by statute reserved for the justiciary court. His civil jurisdiction is regulated by several statutes too technical for detail, but may be said generally to extend to all suits which conclude for payment of money, whatever may be the cause of action, with the exception of a few' where the payment depends on status, all actions with reference to the possession of land or right in land, and actions relative to the right of succession to movable property. In bankruptcy he has a cumulative and alternative jurisdiction with the court of session, and in the service of heirs with the sheriff of chancery. The courts which the sheriff holds are (I) the criminal court; (2) the ordinary civil court; (3) the small-debt court for cases under £12 in value (6 Geo. IV. c. 48); (4) the debts recovery court for cases above £12 and under £50 in value (Debts Recovery [Scotland] Act 1867)¥ and (5) the registration court. His judgment in the criminal court is subject to review by the court of justiciary, and in the ordinary civil court and the debts recovery court by the court of session. In the small-debt court it 1s final, except in certain .cases where an appeal lies to the next circuit court of justiciary. The sheriff-substitute may competently exercise all the judicial jurisdiction of the sheriff, subject to appeal in civil cases other than small debt cases. As regards his administrative functions he assists the sheriff generally, and may act for him in the registration and flars court, and he superintends the preliminary stage of criminal inquiries, consulting with the sheriff if necessary; but the other administrative duties of the office are conducted by the sheriff-depute in person. The executive functions of the sheriff are performed by messengers-atarms. The civil jurisdiction depends on numerous statutes known as the Sheriff Courts and Small Debts Acts. The salaries of sheriffs depute vary from £2000 to £500 a year, those of sheriffs-substitute from £1400 to £500.

There is a principal sheriff-clerk appointed by the crown for each county, who has depute clerks under him in the 'principal towns, and a procurator-fiscal for the conduct of criminal 'prosecutions for each county and district of a county, who is appointed by the sheriff with the sanction of the home secretary. Besides the sheriffs of counties, there is a sheriff of chancery appointed by the crown, whose duties are confined to the service of heirs, with a salary of £500.

See the various works on sheriff court practice, such as those' of ]. D. Wilson (1883) and J. M. Lees (1889), and Green, Encyc. of Scots. Law, s.'v. “ Sheriff.”

I reland.-The sheriff has much the same duties as in England. His position is defined by numerous statutes, beginning with 53, Geo. III. c. 68 (1817). There is no consolidating act such as that of 1887 in England.-United

States.-The office of sheriff is generally elective.