Some persons seem to have supposed that this was a prohibition
merely upon officers bearing the specific names of "sheriffs,
constables, coroners and bailiffs," to hold criminal trials. But
such is not the meaning. If it were, the name could be changed,
and the thing retained; and thus the prohibition be evaded. The
prohibition applies (as will presently be seen) to all officers
of the king whatsoever; and it sets up a distinction between
officers of the king, ("our bailiffs,") and officers chosen by
the people.
The prohibition upon the king's justices sitting in criminal
trials, is included in the words "vel alii balivi nostri," (or
other our bailiffs.) The word bailif was anciently a sort of
general name for judicial officers and persons employed in and
about the administration of justice. In modern times its use, as
applied to the higher grades of judicial officers, has been
superseded by other words; and it therefore now, more generally,
if not universally, signifies an executive or police officer, a
servant of courts, rather than one whose functions are purely
judicial.
The word is a French word, brought into England by the Normans.
Coke says, "Baylife is a French word, and signifies an officer
concerned in the administration of justice of a certain province;
and because a sheriff hath an office concerning the
administration of justice within his county, or bailiwick,
therefore be called his county baliva sua, (his bailiwick.)
"I have heard great question made what the true exposition of
this word balivus is. In the statute of Magna Carta, cap. 28, the
letter of that statute is, nullus balivus de eaetero ponat
aliqnem ad legem manifestam nec ad juramentum simplici loquela
sua sine testibus fidelibus ad hoc inductis." (No bailiff from
henceforth shall put any one to his open law, nor to an oath {of
self-exculpation) upon his own simple accusation, or complaint,
without faithful witnesses brought in for the same.) "And some
have said that balivus in this statute signifieth any judge; for
the law must be waged and made before the judge. And this statute
(say they) extends to the courts of common pleas, king's bench,
&c;., for they must bring with them fideles testes, (faithful
witnesses,) &c;., and so hath been the usage to this day." 1
Coke's Inst., 168 b.
Coke makes various references, in his margin to Bracton, Fleta,
and other authorities, which I have not examined, but which, I
presume, support the opinion expressed in this quotation.
Coke also, in another place, under the head of the chapter just
cited from Magna Carta, that "no bailiff shall put any man to his
open law," &c;., gives the following commentary upon it, from the
Mirror of Justices, from which it appears that in the time of
Edward I., (1272 to 1307,) this word balivus was understood to
include all judicial, as well as all other, officers of the king.
Public-domain text, read in full here on John Shaqi.
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