Bailiff
A bailiff (from Late Latin baiulivus, adjectival form of baiulus) is a governor or custodian (cf. bail); a legal officer to whom some degree of authority, care or jurisdiction is committed. Bailiffs are of various kinds and their offices and duties vary greatly.
Medieval bailiffs
Great Britain
The term was first applied in England to the king's officers generally, such as sheriffs, mayors, etc., and more particularly to the chief officer of a hundred. The county within which the sheriff exercises his jurisdiction is still called his bailiwick, while the term bailiff is retained as a title by the chief magistrates of various towns and the keepers of royal castles, such as the High Bailiff of Westminster, the Bailiff of Dover Castle, etc. Under the manorial system a bailiff was in charge of superintending the cultivation of the manor (see Walter of Henley).
Holland and Flanders
The rank of bailiff was used in Flanders, Holland, Henegouwen, Zeeland and in the north of France. The bailiff was a civil servant who represented the ruler in town and country. In Flanders the count usually appointed the bailiff and in France the king. The position originated in France when Philip II Augustus installed the first bailiff. In the northern parts of continental Europe this position was known as "baljuw" a direct derivative of the French word "bailli" but other words were used such as "drost", "drossaard" (Brabant), "amman" (Brussels), "meier" (Leuven, Asse), "schout" (Antwerp, 's-Hertogenbosch, Turnhout), "amtmann" and "ammann" (Germany, Switzerland, Austria).
France ancien régime
Under the ancien régime in France, the baillie was the king's representative in the bailliage (bailiwick), charged with the application of justice and control of the administration. In southern France, the term generally used was sénéchal who held office in the sénéchaussée.
The administrative network of baillages was established in the 13th century over the king's land (the domaine royal), notably by Philip Augustus. They were based on the earlier medieval fiscal and tax divisions (the "baillie") which had been used by earlier sovereign princes (such as the Duke of Normandy). The creation of the royal bailliages reduced prior existing judicial courts to a subaltern rank; these lower courts were called:
- prévôtés royales supervised by a prévôt appointed and paid by the bailli
- or (as was the case in Normandy) vicomtés supervised by a vicomte (the position could be held by non-nobles)
- or (in parts of northern France) châtellenies supervised by a châtelain (the position could be held by non-nobles)
- or, in the south, vigueries or baylies supervised by a viguier or a bayle.
The court or tribunal of the bailliage was presided by a lieutenant général du bailli. Tribunals in bailliages and sénéchaussées were the first court of appeal for lower courts, but the court of first instance for affairs involving the nobility. To appeal their decisions, one turned to the regional parlements. In an effort to reduce the case load in the parlements, certain bailliages were given extended powers by Henry II of France: these were called présidiaux. Bailliages and présidiaux were also the first court for certain crimes (these cases had formerly been under the supervision of the local seigneurs): sacrilege, lèse-majesté, kidnapping, rape, heresy, alteration of money, sedition, insurrections, and the illegal carrying of arms.
By the late 16th century, the role of the "bailli" had become merely honorary, and judicial power was invested solely in the lieutenant général of the bailliage. The administrative and financial role of the bailliages and sénéchaussées declined in the early modern period (superseded by the king's royal tax collectors and regional gouverneurs, and later by the intendants), and by the end of the 18th century, the bailliages, which numbered into the hundreds, served only a judicial function.
In French, a court bailiff is called a "huissier de justice".
Germany
Old Swiss Confederacy
Modern bailiffs
Belgium
Most of the functions associated with the older Dutch-language terms translated as 'bailiff' in English, are no longer found in one officer. The modern terms 'huissier de justice' (in French) or 'gerechtsdeurwaarder' (in Dutch) however, are usually translated into English as 'bailiff'. This is a sworn officer who may legally deliver exploits (process serving), see to the execution of court orders such as the confiscation of goods, or be an official legal witness. A similar officer is typical in many countries with a non-Anglo Saxon law system that is based on the Napoleonic Code. In Belgium, the bailiff can be appointed by a confiscating court to exercise the judicial mandate of 'schuldbemiddelaar' (in Dutch) or 'médiateur de dettes' (in French), a debt negotiator, in a procedure called 'collectieve schuldenregeling' (CSR) or 'médiation collective de dettes', a collectively negotiated settlement of debts, which is comparable with the regulations by the 'Wet Schuldsanering Natuurlijke Personen' (WSNP) in the Netherlands.
The official judicial tasks are often supplemented by tasks as independent entrepreneurs, for instance for non-judicial debt collecting, specific judicial advice or writing general conditions of sale, judicial assistance at lower courts (canton level), etc.
Canada
In parts of Canada, bailiffs are responsible for the service of legal process. In some jurisdictions, duties of the bailiff include the service of legal documents, repossession and evictions in accordance with court judgments, application of wheel clamps and the execution of arrest warrants. Some jurisdictions also require that applicants receive special training and have a degree in Paralegal Technology to become a bailiff.
Ontario
In Ontario, provincial bailiffs provide primary transportation of prisoners between correctional facilities such as jails and prisons. Under the Ministry of Correctional Services Act (Ontario), while transporting prisoners, bailiffs have the powers of police constables. When necessary, Provincial correctional officers will act as bailiffs for short and long term assignments and full-time bailiffs are typically recruited from the correctional officer ranks. Provincial bailiffs are armed with expandable batons and pepper spray and operate under the jurisdiction of the provincial Ministry of Community Safety and Correctional Services. Duties normally associated with bailiffs in other jurisdictions, such as evictions, seizures, and other civil matters, are performed by sheriffs under the office of the Attorney General of Ontario.
Private Bailiffs (Bailiffs and Assistant Bailiffs) are licensed by the Province of Ontario via the Ministry of Small Business and Consumer Services. Assistant Bailiffs are licensed, and must be supervised by a Bailiff which is appointed his position by the Registrar. Bailiffs in this capacity perform civil duties from the seizure of assets on behalf of their owners or creditors, property repossessions, execution of court orders (where the order permits a private Bailiff to perform the order), document service, and Commercial Landlord and Tenant matters including terminations of tenancy, and the seizure of goods for non payment of rent (distrain against goods and chattels). Assistant Bailiffs can assist a Bailiff in any of these tasks, or perform any of them individually, with exception of Commercial Landlord and Tenant matters. Private Bailiffs are more common and seen publicly than Bailiffs which are employed in the Correctional Services area, which are few as a number of Counties in the province use police constables for court and imprisonment person transfers.
The Netherlands
In these days, the rank "Bailiff" is not in used in the Netherlands, but there is one exception. The term is used for the position of president and some honorary Bailiffs of the Dutch branch of the Knights Hospitaller. A person who amongst others sees to the execution of court orders such as the confiscation of goods is called a deurwaarder.
United Kingdom
England & Wales
There are six offices whose holders are commonly referred to as 'bailiffs'.
Civilian enforcement officers are employed by Her Majesty's Courts Service and carry out enforcement for Magistrates' Courts - this mainly involves collection of unpaid fines given by the court.[1]
County court bailiffs are employed by Her Majesty's Courts Service and carry out enforcement for county courts - mainly involving payment of unpaid county court judgments.[1] They can seize and sell goods to recover a debt. They can also effect and supervise the possession of the property and the return of goods under hire purchase agreements, and serve court documents.They also execute arrest warrants and execute search warrants. Service of personal papers such as oral examinations and divorce papers can also aid the Tipstaff in their duties if necessary.[1]
High Court enforcement officers are employed by private companies and carry out enforcement for the High Court of Justice - they have almost the same function as County Court Bailiffs except the court for which they work.[1]
Certificated bailiffs are employed by private companies and enforce a variety of debts on behalf of organisations such as local authorities. They can seize and sell goods to cover the amount of the debt owed. They also hold a certificate, which enables them, and them alone, to levy distress for rent, road traffic debts, council tax and non-domestic rates. They cannot enforce the collection of money due under High Court or county court orders.[1]
Non-certificated bailiffs are employed by private companies and are entitled to recover the money owed for a variety of debts by seizing and selling goods but cannot levy distress for rent, road traffic debts, council tax or non-domestic rates, or enforce the collection of money due under High Court or county court orders.[1]
All the above bailiffs will be replaced by enforcement agents when the Tribunals, Courts and Enforcement Act 2007, s.63 comes into force.
Water bailiffs also exist in England and Wales to police bodies of water and prevent illegal fishing. They are generally employees of the Environment Agency. Jury bailiffs are court ushers who monitor juries during their deliberations and during overnight stays.[2][3]
Historical
 | This article needs to be updated. |
In England & Wales, the bailiff of a franchise or liberty is the officer who executes writs and processes, and impanels juries within the franchise. He is appointed by the lord of such franchise (who, in the Sheriffs Act 1887, § 34, is referred to as the bailiff of the franchise).
The bailiff of a sheriff is an under-officer employed by a sheriff within a county for the purpose of executing writs, processes, distraints and arrests. As a sheriff is liable for the acts of his officers acting under his warrant, his bailiffs are annually bound to him in an obligation with sureties for the faithful discharge of their office, and thence are called bound bailiffs. They are also often called 'bum-bailiffs', or, shortly, 'bums'. The origin of this word is uncertain; the New English Dictionary suggests that it is in allusion to the mode of catching the offender. Special bailiffs are officers appointed by the sheriff at the request of a plaintiff for the purpose of executing a particular process. The appointment of a special bailiff relieves the sheriff from all responsibility until the party is arrested and delivered into the sheriff's actual custody.
By the County Courts Act 1888, it is provided that there shall be one or more High Bailiffs, appointed by the judge and removable by the Lord Chancellor; and every person discharging the duties of high bailiff is empowered to appoint a sufficient number of able and fit persons as bailiffs to assist him, whom he can dismiss at his pleasure. The duty of the high bailiff is to serve all summonses and orders, and execute all the warrants, precepts and writs issued out of the court. The high bailiff is responsible for all the acts and defaults of himself, and of the bailiffs appointed to assist him, in the same way as a sheriff of a county is responsible for the acts and defaults of himself and his officers. By the same act (§49) bailiffs are answerable for any connivance, omission or neglect to levy any such execution. No action can be brought against a bailiff acting under order of the court without six days' notice (§52). Any warrant to a bailiff to give possession of a tenement justifies him in entering upon the premises named in the warrant, and giving possession, provided the entry be made between the hours of 6 a.m. and 10 p.m. (§ 142). The Law of Distress Amendment Act 1888 enacts that no person may act as a bailiff to levy any distress for rent, unless he is authorized by a County Court judge to act as a bailiff.
Scotland
The Scottish form of this post is the bailie. Bailies served as burgh magistrates in the system of local government in Scotland before 1975 when the system of burghs and counties was replaced by a two-tier system of regional councils and district councils. The two-tier system was later replaced by a system of unitary authorities.
Under the new arrangements the bailies were abolished and replaced by Justices of the Peace serving in the District Courts of Scotland, these posts no longer holding any authority within the local authority as an administrative body. However the term bailie is still used as an honorary title by Glasgow City Council for a number of senior councillors who can deputise for the Lord Provost.
The Scottish equivalent of a sheriff's bailiff or high bailiff is the sheriff officer (for the Sheriff Court) or the messenger-at-arms (for the Court of Session). These positions will be abolished by §60 of the Bankruptcy and Diligence etc. (Scotland) Act 2007, and replaced with the office of Judicial Officer under §57(1) of that enactment.
In Scotland, the office of water bailiff does exist, with power to enforce legislation relating to the illegal collection of salmon and trout.
Channel Islands
See also Bailiff (Channel Islands)
In the Channel Islands the bailiff is the first civil officer in each of the two bailiwicks. He is appointed by the Crown, and holds office until retirement. He presides as a judge in the Royal Court, and takes the opinions of the jurats; he also presides over the States, and represents the Crown on civic occasions. The bailiff in each island must, in order to fulfill his judicial role, be a qualified lawyer.
Isle of Man
The High Bailiff is the head stipendiary magistrate in the Isle of Man.
United States
Many in the United States use the word bailiff colloquially to refer to a peace officer providing court security. More often, these court officers are sheriff's deputies, marshals, or constables. The terminology varies among (and sometimes within) the several states.
From its staff, the Court may appoint by court order bailiffs as peace officers, who shall have, during the stated terms of such appointment, such powers normally incident to police officers, including, but not limited to, the power to make arrests in a criminal case, provided that the exercise of such powers shall be limited to any building or real property maintained or used as a courthouse or in support of judicial functions.
Whatever the name used, the agency providing court security is often charged with serving legal process and seizing and selling property (e.g., replevin or foreclosure). In some cases, the duties are separated between agencies in a given jurisdiction. For instance, a court officer may provide courtroom security in a jurisdiction where a sheriff handles service of process and seizures.
- Maryland: Within the state of Maryland there are two types of bailiffs, Circuit Court and District Court. Circuit Court bailiffs are employees of the prospective county of which they work and possess no law enforcement authority. They are unarmed and provide services to the courtroom judge, escort and maintain the jurors/jury pool, and maintain courtroom decor. District Court bailiffs provide similar services as their Circuit Court counterparts but differ in that they are employees of the state of Maryland, are armed, and have limited law enforcement authority while on duty.[4]
- New York: In the New York State Unified Court System, Court Officers, are responsible for providing security and enforcing the law in and around court houses. Under New York State penal code, they are classified as "peace officers." New York State Court Officers are able to carry firearms both on and off duty, and have the power to make warrantless arrests both on and off duty anywhere in the State of New York. They also have the authority to make traffic stops.[5]
Other uses of the word
As most people's contact with bailiffs is when a bailiff comes to take property to enforce debt, in former times in The Fens of eastern England, the term "Bailiff of Bedford" was often used as slang for destructive floods of the River Great Ouse.[1][2]
See also
References
- ^ a b c d e f http://www.hmcourts-service.gov.uk/courtfinder/forms/ex345.pdf
- ^ http://www.hmcourts-service.gov.uk/cms/careeropportunities.htm
- ^ Sprack, J (2006). A Practical Approach to Criminal Procedure (11th ed.). Oxford: Oxford University Press. ISBN 0-19-929830-0. 21.01-21.06
- ^ http://mdcourts.gov/jobs/CN09610.pdf
- ^ New York State Court Officers Association official website. Accessed February 1, 2010.
- Chisholm, Hugh, ed. (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press.
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