Part 21 (1/2)
ii., ch. 3, p. 126.
”BAILIFF-_office_.--Magistrates who formerly administered justice in the parliaments or courts of France, answering to the English sheriffs, as mentioned by Bracton.”--_Bouvier's Law Dict._
”There be several officers called _bailiffs_, whose offices and employments seem quite different from each other.... The chief magistrate, in divers ancient corporations, are called _bailiffs_, as in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers of the forest, who are termed bailiffs.”--_1 Bacon's Abridgment_, 498-9.
”BAILIFF signifies a keeper or superintendent, and is directly derived from the French word _bailli_, which appears to come from the word _balivus_, and that from _bagalus_, a Latin word signifying generally a governor, tutor, or superintendent.... The French word _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:) _Bailli._--_He who in a province has the superintendence of justice, who is the ordinary judge of the n.o.bles_, who is their head for the _ban_ and _arriere ban_,[97] and who maintains the right and property of others against those who attack them.... All the various officers who are called by this name, though differing as to the nature of their employments, seem to have some kind of superintendence intrusted to them by their superior.”--_Political Dictionary._
”BAILIFF, _balivus_. From the French word _bayliff_, that is, _praefectus provinciae_, and as the name, so the office itself was answerable to that of France, where there were eight parliaments, which were high courts from whence there lay no appeal, and within the precincts of the several parts of that kingdom which belonged to each parliament, _there were several provinces to which justice was administered by certain officers called bailiffs_; and in England we have several counties in which justice hath been, and still is, in small suits, administered to the inhabitants by the officer whom we now call _sheriff_, or _viscount_; (one of which names descends from the Saxons, the other from the Normans.) And, though the sheriff is not called _bailiff_, yet it was probable that was one of his names also, because the county is often called _balliva_; as in the return of a writ, where the person is not arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus in balliva mea_, &c.; (the within named A.B. is not found in my bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as bailiffs of hundreds.
”_Bailies_, in Scotland, are magistrates of burghs, possessed of certain jurisdictions, having the same power within their territory as sheriffs in the county....
”As England is divided into counties, so every county is divided into hundreds; within which, in ancient times, the people had justice administered to them by the several officers of every hundred, which were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch.
34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and approvers; but since that time the hundred courts, except certain franchises, are swallowed in the county courts; and now the _bailiff's_ name and office is grown into contempt, they being generally officers to serve writs, &c., within their liberties; though, in other respects, the name is still in good esteem, for the chief magistrates in divers towns are called _bailiffs_; and sometimes the persons to whom the king's castles are committed are termed _bailiffs_, as the _bailiff_ of Dover Castle, &c.
”Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of liberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors; _bailiffs_ of husbandry, &c....
”_Bailiffs_ of liberties or franchises are to be sworn to take distresses, truly impanel jurors, make returns by indenture between them and sheriffs, &c....
”_Bailiffs of courts baron_ summon those courts, and execute the process thereof....
”Besides these, there are also _bailiffs of the forest_ ...”--_Jacob's Law Dict. Tomlin's do._
”BAILIWICK, _balliva_,--is not only taken for the county, but signifies generally that liberty which is exempted from the sheriff of the county, over which the lord of the liberty appointeth a _bailiff_, with such powers within his precinct as an under-sheriff exerciseth under the sheriff of the county; such as the _bailiff_ of Westminster.”--_Jacob's Law Dict. Tomlin's do._
”_A bailiff of a Leet, Court-baron, Manor, Balivus Letae, Baronis, Manerii._--He is one that is appointed by the lord, or his steward, within every manor, to do such offices as appertain thereunto, as to summon the court, warn the tenants and resiants; also, to summon the Leet and Homage, levy fines, and make distresses, &c., of which you may read at large in _Kitchen's Court-leet and Court-baron_.”--_A Law Dictionary, anonymous_, (_in Suffolk Law Library_.)
”BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are either special, and appointed, for their adroitness, to arrest persons; or bailiffs of hundreds, who collect fines, summon juries, attend the a.s.sizes, and execute writs and processes. _The sheriff in England is the king's bailiff...._
”_The office of bailiff formerly was high and honorable in England, and officers under that t.i.tle on the continent are still invested with important functions._”--_Webster._
”BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in a royal burgh.”--_Worcester._
”_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort of magistrate.”--_Boyer's French Dict._
”By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any judge_.”--_Cunningham's Law Dict._
”BAILIFF.--In the court of the Greek emperors there was a grand _bajulos_, first tutor of the emperor's children. The superintendent of foreign merchants seems also to have been called _bajulos_; and, as he was appointed by the Venetians, this t.i.tle (balio) was transferred to the Venetian amba.s.sador. From Greece, the official _bajulos_ (_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced into the south of Europe, and denoted a superintendent; hence the eight _ballivi_ of the knights of St. John, which const.i.tute its supreme council. In France, the royal bailiffs were commanders of the militia, administrators or stewards of the domains, _and judges of their districts_. In the course of time, only the first duty remained to the bailiff; hence he was _bailli d'epee_, _and laws were administered in his name by a lawyer, as his deputy, lieutenant de robe_. The seigniories, with which high courts were connected, employed bailiffs, who thus const.i.tuted, almost everywhere, _the lowest order of judges_.
From the courts of the n.o.bility, the appellation pa.s.sed to the royal courts; from thence to the parliaments. In the greater bailiwicks of cities of importance, Henry II. established a collegial const.i.tution under the name of _presidial courts_.... _The name of bailiff was introduced into England with William I._ The counties were also called _bailiwicks_, (_ballivae_,) while the subdivisions were called _hundreds_; but, as the courts of the hundreds have long since ceased, the English bailiffs are only a kind of subordinate officers of justice, like the French _huissiers_. These correspond very nearly to the officers called _constables_ in the United States. Every sheriff has some of them under him, for whom he is answerable. In some cities the highest munic.i.p.al officer yet bears this name, as the high bailiff of Westminster. In London, the Lord Mayor is at the same time bailiff, (which t.i.tle he bore before the present became usual,) _and administers, in this quality, the criminal jurisdiction of the city, in the court of old Bailey_, where there are, annually, eight sittings of the court, for the city of London and the county of Middles.e.x. _Usually, the recorder of London supplies his place as judge._ In some instances the term _bailiff_, in England, is applied to the chief magistrates of towns, or to the commanders of particular castles, as that of Dover. The term _baillie_, in Scotland, is applied to a judicial police-officer, having powers very similar to those of justices of peace in the United States.”--_Encyclopaedia Americana._]
[Footnote 93: Perhaps it may be said (and such, it has already been seen, is the opinion of c.o.ke and others) that the chapter of Magna Carta, that ”no _bailiff_ from henceforth shall put any man to his open law, (put him on trial,) nor to an oath (that is, an oath of self-exculpation) upon his (the bailiff's) own accusation or testimony, without credible witnesses brought in to prove the charge,” _is itself_ a ”provision in regard to the king's justices sitting in criminal trials,” and therefore implies that _they are to sit_ in such trials.
But, although the word _bailiff_ includes all _judicial_, as well as other, officers, and would therefore in this case apply to the king's justices, if they were to sit in criminal trials; yet this particular chapter of Magna Carta evidently does not contemplate ”_bailiffs_” while acting in their _judicial_ capacity, (for they were not allowed to sit in criminal trials at all,) but only in the character of _witnesses_; and that the meaning of the chapter is, that the simple testimony (simplici loquela) of ”no bailiff,” (of whatever kind,) unsupported by other and ”credible witnesses,” shall be sufficient to put any man on trial, or to his oath of self-exculpation.[98]
It will be noticed that the words of this chapter are _not_, ”no bailiff _of ours_,”--that is, _of the king_,--as in some other chapters of Magna Carta; but simply ”no bailiff,” &c. The prohibition, therefore, applies to all ”bailiffs,”--to those chosen by the people, as well as those appointed by the king. And the prohibition is obviously founded upon the idea (a very sound one in that age certainly, and probably also in this) that public officers (whether appointed by king or people) have generally, or at least frequently, too many interests and animosities against accused persons, to make it safe to convict any man on their testimony alone.
The idea of c.o.ke and others, that the object of this chapter was simply to forbid _magistrates_ to put a man on trial, when there were no witnesses against him, but only the simple accusation or testimony of the magistrates themselves, before whom he was to be tried, is preposterous; for that would be equivalent to supposing that magistrates acted in the triple character of judge, jury and witnesses, _in the same trial_; and that, therefore, _in such cases_, they needed to be prohibited from condemning a man on their own accusation or testimony alone. But such a provision would have been unnecessary and senseless, for two reasons; first, because the bailiffs or magistrates had no power to ”hold pleas of the crown,” still less to try or condemn a man; that power resting wholly with the juries; second, because if bailiffs or magistrates could try and condemn a man, without a jury, the prohibition upon their doing so upon their own accusation or testimony alone, would give no additional protection to the accused, so long as these same bailiffs or magistrates were allowed to decide what weight should be given, _both to their own testimony and that of other witnesses_; for, if they wished to convict, they would of course decide that any testimony, however frivolous or irrelevant, _in addition to their own_, was sufficient. Certainly a magistrate could always procure witnesses enough to testify to something or other, which _he himself_ could decide to be corroborative of his own testimony. And thus the prohibition would be defeated in fact, though observed in form.]
[Footnote 94: In this chapter I have called the justices ”_presiding_ officers,” solely for the want of a better term. They are not ”_presiding_ officers,” in the sense of having any authority over the jury; but are only a.s.sistants to, and teachers and servants of, the jury. The foreman of the jury is properly the ”presiding officer,” so far as there is such an officer at all. The sheriff has no authority except over other persons than the jury.]