Joseph Ritson.

The office of bailiff of a liberty online

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OFFICE



OF



BAILIFF



OF A



LIBERTY.



OFFICE

BAILIFF

OF A ///t/t^/

LIBERTY. / •



By JOSEPH RITSON, Efq.

BARRISTER AT LAW,
LATE HIGH BAILIFF OF THE SAVOY.



"^



Ballivus cujuscimque manerii e(Te debet in verbo verax, et in opere
diligens ac fidelis, ac prodifcreto nppruatore cognitus, plegiatus, & ele&us,
qui de communioribus legibus pro tanto officio fufficienter fe cognofcat,
et quod fit ita juftus, quod ob vindictam vel cupidita'.ern non quxrat
verlus tenentes domini, vel aliquos fibi fubditos, occafiones injuftas, per
quas dcftrui dehent, feu graviter amerciari. Fleta. /. 2. c, 73.

LONDON:

PRINTED BY A. ST RAH AN,

LAW-PRINTER TO THE KINGS MOST EXCELLENT MAJESTY;

FOR J. BTJTTERWORTH, LAW-BOOKSELLER,

FLEET-8 1-REET. ^ ^ # /^ f, cK , L .




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ry



LOAN STACK



ADVERTISEMENT.






HPIIE little work now offered to the public
-*- was originally compiled by Mr. Ritfon about
the fame period as fimilar treatifes, on The Office
of Con/table, and The Jurisdiction cf the Court'
Lcet, publifhed in his lifetime. The authors
attachment to the fubject, it is believed, induced
him to defer the publication of the prefent digeft,
in the hope of increafing its value by ampler
information or more diligent refearch ; and this
object appears to have been fufficiently purfued,
during the latter years of the authors life, to
anfwer his wifhes, as the work was left by him
in every refpect ready for the prefs.

The editor feels it due to the memory of his
much honored and lamented uncle to add, that
the recent publications to which Mr. Ritfons
name, from interefted motives, has been, very
unwarrantably, affixed, are not intitled to any
credit.

JOSEPH FRANK.

Stockton upon-Tees,
nt February i8u.



048



PREFACE.



r T" , HE fubject of the following digeft is not, as may
-*■ be haftily imagined, a matter of mere curiofity
or antiquarian refearch. The officer of whom it treats
exercifes his function in many parts of the kingdom,
in its fulled extent, at this day ; though the attention
requifite in certain branches of his duty may in fome
places, no doubt, have induced him to neglett them.

The want of fuch a compilation as the prefent
mull have been more or lefs felt by every one who
has a£r,ed in the execution of this office ; and indeed
it ought to feem much more extraordinary (confider-
ing the multitude of fimilar publications on other fub-
jects) that it mould not have been attempted long
ago, than that it appears at prefent.

Little can, and lefs need be faid in favour of a
work which has no obligations either to genius or
to judgement : fome labour, however, has undoubtedly
been exerted in the compilation, which, fhould it have
the good fortune to prove fo far ferviceable to thofe
whom it mod concerns, as to render the discharge of
an ancient and honorable office an object of lefs
difficulty or hazard, the « compiler' will not have rea»
fon to regret.



CONTENTS.



Page

INTRODUCTION xi

BOOK I. Of a franchife or liberty - - i

Chap. I. Of franchifes in general i

II. Of the liberty of Retorna Brcvium,

or return of writs - 3

BOOK II. Of the bailiff of a franchife or li-
berty - - - - 16
Chap. I. Of his quality - - -16

II. Of his creation or appointment,

and intereft in his office - - 17

III. Of his qualification - - 18

IV. Of his power and capacity ; i. e.

what he may or may not do or

be - 20

V. Of his duty, i. e. what he muft or

fhall do or not do - - -26

VI. Of his indemnity and protection 54

VII. Of his refponfibility and punifhment 59

VIII. Of his fees - - - 68

IX. Pleadings* - - - 71

Appendix - - 76



[ » 3



INTRODUCTION.



BAILIFF (Bail/if, or Baffle French ; Ballivus,
Latin ; from balliare to deliver, intruft, or com-
mit,) is the name given by the Normans to thofe
mini Iters of the law whom the Saxons called gepepa,
greve or reve *: an appellation which, however cor-
ruptly, we ftill retain in the word J/ierif, (fcyne- genera,
or Jhire-reve,) and by which the bailiff of a manor
is in many parts of the kingdom known to this day.
The fheriff himfelf did not, it is true, long continue
to enjoy the title of bailiff, which gave place to the
more honorable one of vicecomes or vifcount [qui fun-
git ur vice comitis,) by which name alone he was con-
ftantly (tiled in all judicial proceedings, till the pro-
greffive afcendency of the Englifh tongue reftored to
him his ancient and original appellation. His county,
however, is ftill called his bailiwick f , he is often
mentioned in Magna Charta and ancient ftatutes along
with alii fal/ivi, and is himfelf frequently included
under that titled Between this officer and the bailiff

of



* From jeriepen tollere, rapere, ex'igcre. Exactor Regis (fc. muhtarum
Iff jurium Juorum"). Ideo fell, quod mulctas regias et delinqtientium facilitates,
inji/cum rapercnt, cxigerent, deportarent. Spelman, voce reve.

f See Co. Lit. 168, b. Whenever the iheriff in any judicial pro-
ceedings fpeaks or is fpoken to of his county, the law in fael has regu-
larly no other name for it ; in comitatu meo or tuo for inftance has (fre.
quently at leaft) a very different meaning.

i 2 Inf. 19. Blount, voce Bailiff. And fee Forte/cue en Monarchy,
124* Scd quia vicecomes . .full . . . maguus domini Re^is baliivus-

M. Paris



INTRODUCTION.



of a hundred, manor or liberty, fuch a perfect refem-
blance appears to have fubfifted, in all refpects, that
there cannot be a doubt that both were the produce,
if not of the fame hand, at leaft, of the fame fyflem.
The divifion of the kingdom into counties, hundreds
and tithings, is well known to be owing to the wife
policy of the great iElfred *; each county, hundred or
tithing is agreed to have been fubje&ed to an officer
known by the common name of the genepa ; he who
prefided over the county at large being ufually, by
way of diftin£tion, called the heh or r-cyne-genepa and
fometimes the pcyVman, as the others were fliled
the hunbreb and typing- genepa or the hundreder, and
tithingmanf . We are but imperfectly acquainted with
the duty of this officer till after the conqueft. It is
faid, indeed, that the fheriff, in the time of the Sax-
ons, was not the minifler of the King, but the officer
of the Galbenman or 6onl $. And what this alderman
or earl was to the county, the lord or thain was, no
doubt, to his manor or liberty, and what the fheriff
was to the former, the inferior genepa or bailiff was
to the latter. Certain it is that not only the feveral
courts of which we {hall have occafion to fpeak, but
what we now call manors or liberties, exifted from a very



M. Paris. 801. The governors of the city of London were originally-
called portreves, then bailiffs, then fheriffs, and at laft mayors. Stows
Survey, by Strype. B. v. c. 6.

* Ingulf bus (apudfcriptores pojl Bedam). 870. Gul. Malmesburienfis de
Gejlis Rcgum. Hi. 44. Camdens Britannia, clxvii. Seld.ni AnaleEla,
Opera, ii. 9x2. Notes upon Draytons Polvolbion. Song xi. (Works, iv.
1839.) Shires, however, it is certain there were before this time. See
Bradys Hill, of Eng. i. 84. 116. and Sir J. Spelmans Life of Alfred, no.

■f The prapofttus -villa, or bailiff of a manor, was alfo called the
tun^enepa or Tungreve. Vide Spelman, -voce Grafio.

i Hickef. Dif. Epis. 49.

early



INTRODUCTION. Xlli

early period, nor was it poflible for the Norman Kings
to enlarge, in favour of their own countrymen, the
amazing powers which almoft every petty Saxon thain
or lord exercifed in his jurifdicYton, either from the
nature of the conftitution and ordinary courfe of law,
or the liberal grants of the Saxon monarchs : powers
which the Norman jurifts never found themlelves able
to exprefs in a different language *.

The fherifF was originally elected by the freeholders
or fuitors of the great Court Baron of the county,
commonly called the County Court ; the bailiff by the
freeholders of the hundred or manor, fuitors to the
Court Baron of each divifionf : and when the right of
election in the former cafe was wrefted from the
people by the Norman tyrants;};, the fame right in the
latter cafe was ufurped by the lord of the hundred or
manor. The fheriff prefided as judge in the folk-
mote or leet of the county, the bailiff in that of the
hundred or manor. The former fat as principal exe-
cutive officer of the County Court •, the bailiff, of the
Court Baron ; the freeholders or fuitors being the judges
in each to this day : and though both feem to have been



* Infangtheof, cutfangtheof, thol, theam, foe, fac, blodwite, fythe-
wite, flyhtewite, (ledwite, ferdwite, hengewit , leirwite, childwite, wardwite,
grithbiech, hanr.focn, forftall, ordel, orefte, flemenefrith, miskennyng,
burgbruch, &c. &c.

f Kennet, Par. Ant. G!of. v. fraftfitut. Another title common to
flieriff, bailiff, and reve.

% This privilege was reftored to the people by the Arthulifuper Chartas;
i8 E. i. c. 8. but refumed in the following reign, and has ever fince
continued in the crown. 9 E z. f. a. Jcnk. 229. They enjoy the right
of eleding the coroner ftill; chiefly, it is fuppoled, btcaufe it has not been
thought worth taking from them.



anciently



XIV INTRODUCTION.

anciently confidered as the Kings courts, yet offences
were in one alledged to be contra pacem ballivi, and in
the other contra pacem vicecomitis *. The fines and amer-
ciaments impofed in thefe courts were levied, and the
procefs of the court executed by the fheriff and bailiff
in the fame manner ; each having his ferjeants or in-
ferior officers to affift him : and in the proceedings of
the above courts, or others nearly fimilar, and held by
or before the fame perfons, was comprehended the
whole fyftem, as well of the civil as of the criminal
law of that age, not only before the inftitution of
judges itinerant, but (in many cafes at leaft) long
after. The revenue of the crown was collected and ac-
counted for by the fheriff and bailiff within their re-
fpective jurifdidHons : And as each of them governed
the tenants in peace, fo he led them forth to war when
neceffity required f . Each of them had likewife his



* Fleta. I. 2. r. 53. § 1. The feiuard has been in pofTeflion of this
branch of the bailiffs office for many centuries. When this transfer took
place would be fcarcely poffible to dil'cover. It fhould feem, however, to
have been gradual, and might poffibly have its rife from the Stnefeallus,
the 8*ypea/Vt> or major-domo being fometimes more converfant in forenfic
matters than the bailiff, whole office chiefly concerned the management
of the lords demefne and other out-of-door concerns. The Mirror
(written in the time of E. 2.) conftantly fpeaks of the bailiff as judge of
the court leet ; fee alio Ken. Par. Ant. p. 319. And thus Finch, fpeak-
ing of the County Court and Court Baron, fays " the fuitors are the judges
3nd the bailiff and fheriff are but minifters." Laiv. 248. And hence,
perhaps, it has been held that both offices might be enjoyed by one and
the fame perfon. do. Jac. 178. (cites 29 H. 8.) And it fhould feem
from Bracton that writs were indifferently diredlod to either the fteward,
or the bailiff, ballroo vel fenefcailo. 1. 5. 1. 32.

About the time that this feparation took place, the Ioweft branches of
the bailiffs office were transfered to an inferior min.fter, named a rive, of
whom we read at large in Fleta. 1. 1. c. 76. But poffibly this was only
the cafe in extenfive manors and demefnes, where a fingle perfon was
found unequal to the d'.fcharge of the united functions of Jle-ward, bailiff,
and revc.

•\ Lambards Perambulation of Kent. p. 484.

2 proper



INTRODUCTION. XV

proper aid or fcot, which he aflbfled upon the land-
holders within his bailiwick, who frequently com-
plained of it as an intolerable grievance, and as fuch
it was at length abolifhed. The Kings writ is thought
not to have run as it now does till about the inftitution
of the Eyre or Iter of the Juftices by K. H. 2.* How
his commands were fignified before this invention
does not clearly appear f ; but certainly after it took
place, the execution of the writ (though neceffarily
directed to the fheriff) was as much the duty of the
bailiff within the franchife, as of the fheriff without ;
nor could the latter, without a fpecial authority, in-
terfere in the moft trivial matter which belonged to
the other. In fhort, whatever the fheriff did or could
do in the county at large the bailiff could do and did
within his franchife, whether hundred % or manor.
Such was the ancient conftitution, and fuch in a great
meafure will appear from the following meets to be
the law at this day.



* V. Prynne, Animad. on 4 Inft, p. 150. Hides. Dif. Ef>.\\ 8. 48.
See however in Madox, Hif. Ex. p. 100. an inftance of juftices itinerant
in the time of K. Stephen. Writs unknown to the Saxons. Hides, u.f.

f.%.

f A colle&ion of all the writs and charters that can be met with of
the firft three or four Norman kings would be a ufeful, curious, and in-
tereding work.

$ Moft hundreds have, by ftatute or othenvife, been united to the
body of the county and power of the fherifF. But many of them, having
fcten granted in fee, full exift as independent franchifes.



THE



THE

OFFICE



BAILIFF OF A LIBERTY,



BOOK I.

Of a Franchise or Liberty*.



CHAPTER I.

OF FRANCHISES IN GENERAL.



A FRANCHISE is a royal privilege in the hands of Royal privilege.
a fubjeck •, and is forfeited by misufing it. Forfeiture.
Finch, 164.

IfV franchife be of record in any court of the King Reccri
it is fufficient. 27 H. 6. 9.

Allowance of franchifes in Quo warranto or in Eyre Q"« warrant
fhall conclude the King, for this is the fuit of the King



* Note, that thefe words are in this work ufed in two different fenfes,
but both equally common: viz. I. for the privilege itfelf, as the franchifo
or liberty of Retorr.a Brevium : 2. for the manor or territory in or
over which that privilege is exercifed, as the Liberty or Franrhife of the
Savoy. There will feldom, if ever, be any confufion or obfcunty on this
account

B tO



2 FRANCHISES IN GENERAL. [B. L

to try franchife ; contra of allowance in the Common
Bench or other court. 10 if. 7. 13. Br. Frauncbes
\2f Liberties ) 40.

General ftatute. Franchife bound by general ftatute, fam within
quam without the franchife. 19 H. 6. 1.

Frmchife or other fpecial liberty or privilege fhall
not be defeated by general ftatute. 19 H. 6. 64.*

Prifors. Albeit divers lords of liberties have cuftody of the

prifons and fome in fee, yet the prifon itfelf is the
Kings pro bcno publico j and therefore it is to be re-
paired at the common charge ; for no fubjecl; can
have the prifon itfelf. 2 lnjl. 589.



None can claim a prifon as a franchife, unlefs they
have alfo a jail-delivery of felony, which the dean and
chapter of Weftminfter hath not, and therefore ought
to fend a calendar of ' prifoners' to Newgate, or return
the Habeas Corpus to B. R. with a claim of their fran-
chife. 1 SalL 343.



<..^^.



Magna Cbarta. By Mag. Char. c. 38., are faved to all archbifhops,
s^pttf*-*^/ "j?- & c « earls, barons, and all others, all liberties and free

cuftoms which they had enjoyed before.

In the preamble to many of the old ftatutes it is
ftipulated that all the lords fpiritual and temporal, and
the other lieges of the King having liberties and fran-
chises, fhall have and enjoy all their liberties and fran-



* Vide Ce. Lit. 115, and the cafe of the King aeainft Pugh. Douglas
179.

5 chife*



Ch. II.] RET0RNA BREVIUM. 3

chifes which they have of the grant of the Kings pro-
genitors and of his own grant and confirmation. This
is the confbnt preface to the petition rolls to which the
King always anfwers " Le Roy le voet" Rot. Purl,
pajftm. And that all pcrfons and corporations may
fully enjoy their liberties, [and] franchifes, [was]
one prime caufe of calling parliaments, and fo de-
clared, and the confervation of them one chief petition
of the commons when violated. Abridgement of the
Records *'. Table, voce Liberties.



CHAPTER II.

of THE LIBERTY of Retorna Brevium, OR RETURN
OF WRITS.

BY W. 2. c. 30. The treafurer of the exchequer r ]1 of I.iber-
fhall deliver in a roll all the liberties in all {hires that tl !^ //,. s.

have return of writs. And if the fherifF anfwer that
he hath made return to the bailiffs of any other liberty
than is contained in the faid roll, the fherifF fhall be
forthwith punifhed as a disheritor of the King and his
crown f , And if peradventure he anfwer that he hath

returned



• Publiihed by Prynne under the name of Sir Robert Cotton, but faid
to have been actually compiled by M'itliam Bowyer, keeper of the records
in the Tower in the time of Queen Elizabeth.

+ In the Kings Bench the lheriffreturned MancC lallivo ' Lileriatis de D.
and it was laid that he hath not fuch a franchife, and if it be inrolled in
the chancery that A. hath retorna irevium, yet if it be not inrolled in the
exchequer, as the flatute of IV. 2. c. 39. and if the fherifF return other
liherty he (hall be punifhed as a difinheritor of the Crown by fuch llatute,
and the juftices may fend certiorari out of chancery to the treafurer, that
he bring the roll of liberties in his hand, and lhew it to the jufticss. II £.4. 4.
Br, Jtttornc dt brUfe. 98.

b % This



4 RETORNA BREVIUM. [B. T",

returned the .-writ to tlie bailiff's of fome liberty that
indeed hath return who hath done nothing therein*,
the fheriff fhall be commanded that he ihall not omit
by reafon of the aforefejd liberty, but that the kings
precept fhall be executed ; and that he make known to
the bailiffs to whom lie returned the writ that they be
at a day contained in the writ to anfwer why they have
not made execution of the kings precept. And if



This Roll of Liberties is furpofed to be loft ; at Ie?. ft the clerks of the
Treafurers Remembrancers office, on inquiry there, could give no account
■of it ; any more than the bag-benrer of the Kings could of the " little booke,' '
mentioned by Powell to be in the Kings Remembrancers office, "intituled,
Liber de Ball, pro Angl. of all the bailiwicks throughout England," which
he calls " an ancient booke, made Anno nSo."

Per Curiam, where the bailiff makes iufufficient return, the fheriff
may return quod nullum dedit refponfum, for an infufficient return is as no
return; and in praecipe againft two, the bailiff returns the one fummoned
and the other not, this is no anfwer, and if the fheriff return this, he
Ihall be amerceo, but by Favifour if the bailiff make dubious return and
the fheriff return it over he fhall not be amerced, qutcre. 5 U. 7. 27,
Br. Retorne de brief e. 89.

In Precipe quod reddat, to the grand capias the fheriff returned quod
mandavi balll-vo, libertatis, who returns that he hath taken the land into
the hands of the King, and fays nothing that he hath fummoned the tenant.
Martin, another fum-mons wkh rron omittas fhall be awarded, and the
fheriff fhall not be amerced, for the bailiff hath not ferved the writ;
for as much as he had in commandment to do two things, and he has done
but one ; and fo it is as if he had laid nothing either of one or the other.
Babb, a non omittas fhall not be awarded but where the bailiff hath not
given any return, but here he hath given a return which is not fuffi-
cient, and for this he (hall be amerced. T. 4 H. 6. [25.] Fitz. Amerce
ment. I.

In trefp.ifs the fheriff returned the Capias quod ntandaiit Ballivo Libera
tat';:, quijic refpondit quod cepit corpus ; but the bailiff does not bring in
the body ; but the defendant would have anfwered by attorney, and was
not received. And the plaintiff prayed Stent alias to the fheriff, and
/ton omittas. And for that the writ was ferved he could have nothing
but a writ to the fheriff to diftrain the bailiff to fend the body, 8c&
S7 £. 3. 7.

* This nihil is to be underftood, not only where nothing at all is done^
but aHo where the bailiff of the liberty maketh an infufficient return,
for that is nihil in law, and tiisrefore a non Gmitas, &c. 2 Injl. 452.

they



Ch. II.] RET0RNA DRF.VIDM. £ /

they come at the day and acquit thcmfelves that return
of the writ was not made to them, the fheriff (hall be
forthwith condemned to the lord of the fame liberty,
and likewifc the party grieved by the delay in re ft it u-
tion of damages. And if the bailiffs come not at the
day, or come and do not acquit themfelves in manner
aforefaid, in every judicial writ, fo long as the plea
endureth, the fheriff fhall be commanded that he omit
not becaufe of the liberty, &c.

That the ftatute, in this refpect, was little more
than a declaration of the common law, appears from
Braclon. 1. 5. c. 32.

By 12 E. 2. c. 5. Of returns which fhall be made Indenture,
to fheriffs by bailiffs of fuch franchifes as have full re-
turn of the Kings writs, an indenture fhall be made
between the bailiff of the franchife by his proper name,
and the fheriff by his proper name. And if any fheriff
change the return fo delivered to him by indenture,
and thereof be convicted at the fuit of the lord of the
franchife, of whom he fhall have received fuch return,
if thejord fhall have fuftained any damage, or his fran-
chife be imblemifhed, and at the fuit of the party who
fhall have fuftained damage by that occafion, he fhall
he punifhed on behaJf of the King for his falfe return,
and render to the lord and to the party double da-
mages.

Return of writs may "be claimed t>y prescription as Preoption,
appertaining to a manor. But more efpecially may it
be claimed as appertaining to an honour. Hardres,

.423-

B 3 Where



Etcheat,



6 RETORKA BREVIUM. [B. I.

Where a man hath Retorna Brevium, which liberty
comes to the hands of the king by efcheat vel aliter>
this unity in the King fhall not extinguifh the liberty.

Kcihvey. 72.*



A rimeerous
iibsrty !



This liberty of Retorna Brevium (faith C. B. Hale)
is a dangerous liberty for him that hath it ; for he is
to be refponfible for all the defaults of his bailiffs, as
efcapes, &c. And if the bailiff do not account for
the collection of the Kings revenue he is refponfible
for it ; 'tis a feather in his cap, but a thorn in his
foot. 2. Vent. 406.



Sheriff.



This liberty though it carries an exemption, yet it
doth not exclude, but that the fheriff may execute



* (1.) The King may have liberties by the fuppreflion of abbeys
(34 H. 8.) or by other means. And a liberty (hall not be intended to
be extinct, unlels it be fo (hewn, but fhall be laid to be Hill in ejfe. Cre.
Jae. 44a.

When the King grants any privileges, liberties, franchises, &c. which
were privileges, liberties, or franchifes in his own hands as parcel of the
fiowers of his'croK'n, as bona ct ctalla felomim fugitivorum utlagaterum
&C. bona et catalla ivtzviatc, exUahur ; deodanda, tureccum maris, &c.
within fuch pofTeflions, there if they come again to the King, they are
merged in the crown, and he has them again in Jure Corona ; and if the
wreck, or gen ds waifed, eftrays, &c. were appendant before to po(Te(Tions>
now the appendancy is extinct, and the King is i'eiled of them in Jure
Corona. But when a privilege, liberty, franchife or jurifdiclion was
at the beginning erected and created by the King, and was not any fuch
flower before in the garland of the crown, there, by the r.ccellion of them
rgain to the crown they are not extinct nor the appendancy of them fevered
from the poiTefiions ; as if a fair, market, hundred, leet, park, warren,
(t Jtmilia, are appendants to manors, or in giofs, and afterwards they
come back to the King, they remain as they were before, in ejft, not
merged in the crown, for they were at fir ft created and newly erecled by
the King, and were not in ejfc before, and time and ufage have made them
Epuendant. 9 Ref. 25, b.

writs



Ch. II.] KETORN'A BREVIUM. 7

writs within it. But then it is a wrong for which
the lord of the liberty may have his a&ion : but
in fome cafes the fhcriff may lawfully do it, as in
the cafe of the King. A von omittas^ isc. in cafe
of execution * of a writ of wafte, whereto he is
particularly empowered by the ftatute, and fome-
times where the thing is divided*. (By Hale C. B.)
2 Vent. 406.



* Writ iffued to the fhcriff to enquire of wafte, who returned quod
mandavi ballivo Mutatis qui mihi nullum dedit refponfunt, and for this


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