Joseph Ritson.

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THE OFFICE OF BAILIFF OF A LIBERTY ***




Produced by MWS, Chris Pinfield and the Online Distributed
Proofreading Team at http://www.pgdp.net (This file was
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Internet Archive/American Libraries.)





Transcriber's Note.

Apparent typographical errors have been corrected. The use of hyphens has
been rationalised.

Italics are indicated by _underscores_. Small capitals have been replaced
by full capitals.

Square brackets, which indicate sidenotes and footnotes, are also present
in the text.

There are several words in Anglo-Saxon script. These are indicated by
=equal signs=. The individual characters have been replaced by their
modern equivalents: "wynn" by "w", and so on.




THE
OFFICE
OF
BAILIFF
OF A
LIBERTY.


BY JOSEPH RITSON, Esq.
BARRISTER AT LAW,
LATE HIGH BAILIFF OF THE SAVOY.


Ballivus cujuscunque manerii esse debet in verbo verax, et in opere
diligens ac fidelis, ac pro discreto appruatore cognitus, plegiatus, &
electus, qui de communioribus legibus pro tanto officio sufficienter se
cognoscat, et quòd sit ita justus, quòd ob vindictam vel cupiditatem non
quærat versus tenentes domini, vel aliquos sibi subditos, occasiones
injustas, per quas destrui debent, seu graviter amerciari. FLETA. _l. 2.
c. 73._


LONDON:
PRINTED BY A. STRAHAN,
LAW-PRINTER TO THE KINGS MOST EXCELLENT MAJESTY;
FOR J. BUTTERWORTH, LAW-BOOKSELLER,
FLEET-STREET.

1811.




ADVERTISEMENT.


The little work now offered to the public was originally compiled by Mr.
Ritson about the same period as similar treatises, on _The Office of
Constable_, and _The Jurisdiction of the Court-Leet_, published in his
lifetime. The author's attachment to the subject, it is believed, induced
him to defer the publication of the present digest, in the hope of
increasing its value by ampler information or more diligent research; and
this object appears to have been sufficiently pursued, during the latter
years of the author's life, to answer his wishes, as the work was left by
him in every respect ready for the press.

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

JOSEPH FRANK.

Stockton-upon-Tees,
1st February 1811.




PREFACE.


The subject of the following digest is not, as may be hastily imagined, a
matter of mere curiosity or antiquarian research. The officer of whom it
treats exercises his function in many parts of the kingdom, in its
fullest extent, at this day; though the attention requisite in certain
branches of his duty may in some places, no doubt, have induced him to
neglect them.

The want of such a compilation as the present must have been more or less
felt by every one who has acted in the execution of this office; and
indeed it ought to seem much more extraordinary (considering the
multitude of similar publications on other subjects) that it should not
have been attempted long ago, than that it appears at present.

Little can, and less need be said in favour of a work which has no
obligations either to genius or to judgement: some labour, however, has
undoubtedly been exerted in the compilation, which, should it have the
good fortune to prove so far serviceable to those whom it most concerns,
as to render the discharge of an ancient and honorable office an object
of less difficulty or hazard, the 'compiler' will not have reason to
regret.




CONTENTS.


Page

INTRODUCTION xi


BOOK I. Of a franchise or liberty 1

Chap. I. Of franchises in general 1

- - II. Of the liberty of _Retorna Brevium_, or return
of writs 3


BOOK II. Of the bailiff of a franchise or liberty 16

Chap. I. Of his quality 16

- - II. Of his creation or appointment, and interest
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 must or shall do
or not do 26

- - VI. Of his indemnity and protection 54

- - VII. Of his responsibility and punishment 59

- - VIII. Of his fees 68

- - IX. Pleadings 71


APPENDIX 76




INTRODUCTION.


Bailiff (_Baillif_, or _Baillie_ French; _Ballivus_, Latin; from
_balliare_ to deliver, intrust, or commit,) is the name given by the
Normans to those ministers of the law whom the Saxons called =gerefa=,
_greve_ or _reve_[1]: an appellation which, however corruptly, we still
retain in the word _sheriff_, (=scyre-gerefa=, or _shire-reve_,) and by
which the bailiff of a manor is in many parts of the kingdom known to
this day. The sheriff himself did not, it is true, long continue to enjoy
the title of bailiff, which gave place to the more honorable one of
_vicecomes_ or _viscount_ (_qui fungitur vice comitis_,) by which name
alone he was constantly stiled in all judicial proceedings, till the
progressive ascendency of the English tongue restored to him his ancient
and original appellation. His county, however, is still called his
_bailiwick_[2], he is often mentioned in _Magna Charta_ and ancient
statutes along with _alii ballivi_, and is himself frequently included
under that title[3]. Between this officer and the bailiff of a hundred,
manor or liberty, such a perfect resemblance appears to have subsisted,
in all respects, that there cannot be a doubt that both were the produce,
if not of the same hand, at least, of the same system. The division of
the kingdom into counties, hundreds and tithings, is well known to be
owing to the wise policy of the great Ælfred[4]; each county, hundred or
tithing is agreed to have been subjected to an officer known by the
common name of the =gerefa=; he who presided over the county at large
being usually, by way of distinction, called the =heh= or =scyre-gerefa=
and sometimes the =scyr=-man, as the others were stiled the =hundred= and
=tything-gerefa= or the hundreder, and tithingman[5]. We are but
imperfectly acquainted with the duty of this officer till after the
conquest. It is said, indeed, that the sheriff, in the time of the
Saxons, was not the minister of the King, but the officer of the
=Ealderman= or =Eorl=[6]. 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 sheriff was to the former, the inferior =gerefa= or bailiff was
to the latter. Certain it is that not only the several courts of which we
shall have occasion to speak, but what we now call manors or liberties,
existed from a very early period, nor was it possible for the Norman
Kings to enlarge, in favour of their own countrymen, the amazing powers
which almost every petty Saxon thain or lord exercised in his
jurisdiction, either from the nature of the constitution and ordinary
course of law, or the liberal grants of the Saxon monarchs: powers which
the Norman jurists never found themselves able to express in a different
language[7].

The sheriff was originally elected by the freeholders or suitors of the
great Court Baron of the county, commonly called the County Court; the
bailiff by the freeholders of the hundred or manor, suitors to the Court
Baron of each division[8]: and when the right of election in the former
case was wrested from the people by the Norman tyrants[9], the same right
in the latter case was usurped by the lord of the hundred or manor. The
sheriff presided as judge in the folkmote or leet of the county, the
bailiff in that of the hundred or manor. The former sat as principal
executive officer of the County Court; the bailiff, of the Court Baron;
the freeholders or suitors being the judges in each to this day: and
though both seem to have been anciently considered as the Kings courts,
yet offences were in one alledged to be _contra pacem ballivi_, and in
the other _contra pacem vicecomitis_[10]. The fines and amerciaments
imposed in these courts were levied, and the process of the court
executed by the sheriff and bailiff in the same manner; each having his
serjeants or inferior officers to assist him: and in the proceedings of
the above courts, or others nearly similar, and held by or before the
same persons, was comprehended the whole system, as well of the civil as
of the criminal law of that age, not only before the institution of
judges itinerant, but (in many cases at least) long after. The revenue of
the crown was collected and accounted for by the sheriff and bailiff
within their respective jurisdictions: And as each of them governed the
tenants in peace, so he led them forth to war when necessity
required[11]. Each of them had likewise his proper _aid_ or _scot_, which
he assessed upon the landholders within his bailiwick, who frequently
complained of it as an intolerable grievance, and as such it was at
length abolished. The Kings writ is thought not to have run as it now
does till about the institution of the Eyre or Iter of the Justices by K.
_H. 2_.[12] How his commands were signified before this invention does
not clearly appear[13]; but certainly after it took place, the execution
of the writ (though necessarily directed to the sheriff) was as much the
duty of the bailiff within the franchise, as of the sheriff without; nor
could the latter, without a special authority, interfere in the most
trivial matter which belonged to the other. In short, whatever the
sheriff did or could do in the county at large the bailiff could do and
did within his franchise, whether hundred[14] or manor. Such was the
ancient constitution, and such in a great measure will appear from the
following sheets to be the law at this day.

[1] From =gerefen= _tollere_, _rapere_, _exigere_. _Exactor Regis (sc.
mulctarum & jurium suorum). Ideo scil. quod mulctas regias et
delinquentium facultates, in fiscum raperent, exigerent, deportarent._
Spelman, _voce_ REVE.

[2] See _Co. Lit. 168, b._ Whenever the sheriff in any judicial
proceedings speaks or is spoken to of his county, the law in fact has
regularly no other name for it; _in comitatu meo_ or _tuo_ for instance
has (frequently at least) a very different meaning.

[3] _2 Inst. 19._ Blount, _voce_ Bailiff. And see _Fortescue on
Monarchy_, 124. _Sed quia_ vicecomes ... _fuit_ ... magnus domini Regis
ballivus. _M. Paris._ 801. The governors of the city of London were
originally called portreves, then bailiffs, then sheriffs, and at last
mayors. _Stows Survey_, by Strype. _B. v. c. 6._

[4] _Ingulphus (apud scriptores post Bedam)._ 870. _Gul. Malmesburiensis
de Gestis Regum. Ibi._ 44. Camdens _Britannia. clxvii._ _Seldeni
Analecta, Opera, ii._ 922. Notes upon Draytons Polyolbion. Song xi.
(Works. iv. 1839.) Shires, however, it is certain there were before this
time. See Bradys Hist. of Eng. i. 84. 116. and Sir J. Spelmans Life of
Ælfred. 110.

[5] The _præpositus villæ_, or bailiff of a manor, was also called the
=tungerefa= or Tungreve. _Vide_ Spelman, _voce_ Grafio.

[6] Hickes. Dis. Epis. 49.

[7] Infangtheof, outfangtheof, thol, theam, soc, sac, blodwite,
fythewite, flyhtewite, fledwite, ferdwite, hengewite, leirwite,
childwite, wardwite, grithbrech, hamsocn, forstall, ordel, oreste,
flemenefrith, miskennyng, burgbruch, &c. &c.

[8] Kennet, Par. Ant. Glos. v. _præpositus_. Another title common to
sheriff, bailiff, and reve.

[9] This privilege was restored to the people by the _Articuli super
Chartas_; _28 E. 1. c. 8._ but resumed in the following reign, and has
ever since continued in the crown. _9 E 2. st. 2. Jenk._ 229. They enjoy
the right of electing the coroner still; chiefly, it is supposed,
because it has not been thought worth taking from them.

[10] _Fleta. l. 2. c. 53._ § 1. The _steward_ has been in possession of
this branch of the bailiffs office for many centuries. When this
transfer took place would be scarcely possible to discover. It should
seem, however, to have been gradual, and might possibly have its rise
from the _Senescallus_, the =Styweard= or _major-domo_ being sometimes
more conversant in forensic matters than the bailiff, whose office
chiefly concerned the management of the lords demesne and other
out-of-door concerns. The _Mirror_ (written in the time of _E. 2._)
constantly speaks of the bailiff as judge of the court leet; see also
Ken. _Par. Ant._ p. 319. And thus Finch, speaking of the County Court
and Court Baron, says "the suitors are the judges and the _bailiff_ and
sheriff are but ministers." _Law._ 248. And hence, perhaps, it has been
held that both offices might be enjoyed by one and the same person.
_Cro. Jac._ 178. (cites _29 H. 8._) And it should seem from Bracton that
writs were indifferently directed to either the steward, or the bailiff,
_ballivo vel senescallo_. _l. 5. c. 32._

About the time that this separation took place, the lowest branches of
the bailiffs office were transfered to an inferior minister, named a
_reve_, of whom we read at large in _Fleta. l. 2. c. 76._ But possibly
this was only the case in extensive manors and demesnes, where a single
person was found unequal to the discharge of the united functions of
_steward_, _bailiff_, and _reve_.

[11] Lambards _Perambulation of Kent._ p. 484.

[12] _V._ Prynne, Animad. on 4 Inst. p. 150. _Hickes. Dis. Ep._ p. 8.
48. See however in Madox, His. Ex. p. 100. an instance of justices
itinerant in the time of K. Stephen. Writs unknown to the Saxons.
_Hickes. u. s._ p. 8.

[13] A collection of all the writs and charters that can be met with of
the first three or four Norman kings would be a useful, curious, and
interesting work.

[14] Most hundreds have, by statute or otherwise, been united to the
body of the county and power of the sheriff. But many of them, having
been granted in fee, still exist as independent franchises.




THE
OFFICE
OF
BAILIFF OF A LIBERTY.

BOOK I.

Of a FRANCHISE or LIBERTY[15].




CHAPTER I.

OF FRANCHISES IN GENERAL.


[Sidenote: Royal privilege.]

[Sidenote: Forfeiture.]

A franchise is a royal privilege in the hands of a subject; and is
forfeited by misusing it. _Finch_, 164.

[Sidenote: Record.]

If a franchise be of record in any court of the King it is sufficient.
_27 H. 6. 9._

[Sidenote: _Quo warranto._]

Allowance of franchises in _Quo warranto_ or in Eyre shall conclude the
King, for this is the suit of the King to try franchise; _contra_ of
allowance in the Common Bench or other court. _10 H. 7. 13._ _Br.
Fraunches & Liberties_, 40.

[Sidenote: General statute.]

Franchise bound by general statute, _tam_ within _quam_ without the
franchise. _19 H. 6. 1._

Franchise or other special liberty or privilege shall not be defeated by
general statute. _19 H. 6. 64._[16]

[Sidenote: Prisons.]

Albeit divers lords of liberties have custody of the prisons and some in
fee, yet the prison itself is the Kings _pro bono publico_; and therefore
it is to be repaired at the common charge; for no subject can have the
prison itself. _2 Inst._ 589.

None can claim a prison as a franchise, unless they have also a
jail-delivery of felony, which the dean and chapter of Westminster hath
not, and therefore ought to send a calendar of 'prisoners' to Newgate, or
return the _Habeas Corpus_ to _B. R._ with a claim of their franchise. _1
Salk._ 343.

[Sidenote: _Magna Charta._]

By _Mag. Char._ c. 38., are saved to all archbishops, &c. earls, barons,
and all others, all liberties and free customs which they had enjoyed
before.

In the preamble to many of the old statutes it is stipulated that all the
lords spiritual and temporal, and the other lieges of the King having
liberties and franchises, shall have and enjoy all their liberties and
franchises which they have of the grant of the Kings progenitors and of
his own grant and confirmation. This is the constant preface to the
petition rolls to which the King always answers "_Le Roy le voet_." _Rot.
Parl._ _passim_. And that all persons and corporations may fully enjoy
their liberties, [and] franchises, [was] one prime cause of calling
parliaments, and so declared, and the conservation of them one chief
petition of the commons when violated. _Abridgement of the Records_[17].
_Table_, _voce_ Liberties.

[15] Note, that these words are in this work used in two different
senses, but both equally common: viz. 1. for the privilege itself, as
the franchise or liberty of _Retorna Brevium_: 2. for the manor or
territory in or over which that privilege is exercised, as the Liberty
or Franchise of the Savoy. There will seldom, if ever, be any confusion
or obscurity on this account.

[16] Vide _Co. Lit._ 115. and the case of the King against Pugh.
_Douglas_ 179.

[17] Published by Prynne under the name of Sir Robert Cotton, but said
to have been actually compiled by William Bowyer, keeper of the records
in the Tower in the time of Queen Elizabeth.




CHAPTER II.

OF THE LIBERTY OF _Retorna Brevium_, OR RETURN OF WRITS.


[Sidenote: Roll of Liberties.]

[Sidenote: _Non omittas._]

By _W. 2. c. 39._ The treasurer of the exchequer shall deliver in a roll
all the liberties in all shires that have return of writs. And if the
sheriff answer that he hath made return to the bailiffs of any other
liberty than is contained in the said roll, the sheriff shall be
forthwith punished as a disheritor of the King and his crown[18]. And if
peradventure he answer that he hath returned the writ to the bailiffs of
some liberty that indeed hath return who hath done nothing therein[19],
the sheriff shall be commanded that he shall not omit by reason of the
aforesaid liberty, but that the Kings precept shall be executed; and that
he make known to the bailiffs to whom he returned the writ that they be
at a day contained in the writ to answer why they have not made execution
of the Kings precept. And if they come at the day and acquit themselves
that return of the writ was not made to them, the sheriff shall be
forthwith condemned to the lord of the same liberty, and likewise the
party grieved by the delay in restitution of damages. And if the bailiffs
come not at the day, or come and do not acquit themselves in manner
aforesaid, in every judicial writ, so long as the plea endureth, the
sheriff shall be commanded that he omit not because of the liberty, &c.

That the statute, in this respect, was little more than a declaration of
the common law, appears from _Bracton. l. 5. c. 32._

[Sidenote: Indenture.]

By _12 E. 2. c. 5._ Of returns which shall be made to sheriffs by
bailiffs of such franchises as have full return of the Kings writs, an
indenture shall be made between the bailiff of the franchise by his
proper name, and the sheriff by his proper name. And if any sheriff
change the return so delivered to him by indenture, and thereof be
convicted at the suit of the lord of the franchise, of whom he shall have
received such return, if the lord shall have sustained any damage, or his
franchise be imblemished, and at the suit of the party who shall have
sustained damage by that occasion, he shall be punished on behalf of the
King for his false return, and render to the lord and to the party double
damages.

[Sidenote: Prescription.]

Return of writs may be claimed by prescription as appertaining to a
manor. But more especially may it be claimed as appertaining to an
honour. _Hardres._ 423.

[Sidenote: Escheat,]

Where a man hath _Retorna Brevium_, which liberty comes to the hands of
the King by escheat _vel aliter_, this unity in the King shall not
extinguish the liberty. _Keilwey._ 72.[20]

[Sidenote: A dangerous liberty!]

This liberty of Retorna Brevium (saith C. B. Hale) is a dangerous liberty
for him that hath it; for he is to be responsible for all the defaults of
his bailiffs, as escapes, &c. And if the bailiff do not account for the
collection of the Kings revenue he is responsible for it; 'tis a feather
in his cap, but a thorn in his foot. _2 Vent._ 406.

[Sidenote: Sheriff.]

This liberty though it carries an exemption, yet it doth not exclude, but
that the sheriff may execute writs within it. But then it is a wrong for
which the lord of the liberty may have his action: but in some cases the
sheriff may lawfully do it, as in the case of the King. A _non omittas_,
_&c._ in case of execution of a writ of waste, whereto he is particularly
empowered by the statute, and sometimes where the thing is divided[21].
(By Hale C. B.) _2 Vent._ 406.

[Sidenote: Warrant.]

If an action be brought in a county, and the place where, _&c._ is the
franchise of another who hath return and execution of writs within the
said franchise, yet the writ shall issue to the sheriff, and he ought to
make over a warrant to the bailiff of the franchise to execute the same
writ; and the writ shall not be directed to the bailiff, &c. for he is
not officer to the court. And moreover it shall be intended that all
vills in the county are within the power of the sheriff till the contrary
be made appear by return of the sheriff. _35 H. 6. 42._

To the sheriff the writ must be directed, though it be for a thing done
in a franchise, and he shall send to a [_l._ the] bailiff of the
franchise who shall serve it as a servant to the sheriff[22], and the
sheriff return it _Finch._ 238.

[Sidenote: Service by sheriff.]

And though the sheriff serve an execution in a franchise, yet it is good.
And the lord of the franchise is driven to his action upon the case
against the sheriff, for the sheriff is immediate officer. _Id._ _Ib._

Where the sheriff makes execution in franchise it is good, for he is
immediate officer to the court; otherwise where bailiff makes execution
in the guildable; and the lord of the franchise in the first case shall
have his remedy for infringing the franchise. _11 H. 4. Br. Execution._
32.

[Sidenote: The King party.]

If the sheriff without _Non Omittas_ serve process within liberty or
franchise that hath return of writs it is good. _11 H. 4. 9._ _20 H. 7.
7._ But the lord of the franchise shall have action upon the case against
him. _Fitz. Nat. bre._ 95.[23] But if the King be party the lord hath no
remedy, for the writ for the King is always _Non Omittas_ in law. _41
lib. Ass._ 17. _Cromp. J. P._ 164.[24]

Where the King is party the _venire facias_ shall make mention of _non
omittas_; for where the King is party the sheriff shall not write to the
bailiff of the franchise, but serve the process himself. _41 Ass._ p. 17.
_Br. Fraunches & Liberties_, 18.

The King hath no other minister than the sheriff, and where the King is a
party no franchise shall be allowed. _Fitz. Chal._ 129.

Where the King is party as against felon or otherwise in action, the
franchise shall not take place, but the sheriff ought to enter the
franchise and serve the process, unless this clause _licet fuerimus pars_
be in the charter, in which case it seems otherwise. _38 Ass._ p. 19.
_Br. Fraunches & Liberties_, 31.

If the King grant _returna omnium brevium_, yet he shall not have return
of the summons of the exchequer. _22 Ass._ p. 49. _Br. Patentes_, 32.

[Sidenote: Arrest by sheriff.]

_Per Glynn_ Ch. J. Mich. 1658; if one be arrested by the sheriff of the
county within a liberty, without a _non omittas_, yet the arrest is good;
for the sheriff is sheriff of the whole county, but the bailiff of the
liberty may have his action against the sheriff for entering his
liberty[25]; but upon a _quo minus_, a sheriff may enter any liberty, and
execute it _impune_. _R. S. L._ 116. _cites_ _Pract. Reg._ 72. _Viner,
Franchises_, (_B._) 6.

[Sidenote: _Non omittas_, _Capias utlagatum_, _Quo minus_.]

The sheriff, upon a _non omittas_, _capias utlagatum_, or _quo minus_,
may enter and make an arrest in any franchise. _L. P. R._ 635. _Viner,


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