||It has been suggested that Court bailiff (Poland) be merged into this article. (Discuss) Proposed since June 2013.|
A bailiff (from Middle English baillif, Old French baillis, bail "custody, charge, office"; cf. bail, based on the adjectival form, baiulivus, of Latin bajulus, carrier, manager), is a manager, overseer or custodian; a legal officer to whom some degree of authority or jurisdiction is given. Bailiffs are of various kinds and their offices and duties vary greatly.
- 1 Germany
- 2 Great Britain
- 3 Low Countries and German-speaking lands
- 4 Pre-Revolutionary France
- 5 Modern bailiffs
- 5.1 Belgium
- 5.2 British Isles
- 5.2.1 Channel Islands
- 5.2.2 England and Wales
- 5.2.3 Isle of Man
- 5.2.4 Scotland
- 5.3 Canada
- 5.4 The Netherlands
- 5.5 United States
- 6 Other uses of the word
- 7 See also
- 8 References
- 9 Other projects
The term was first applied in Norman England to the king's officers charged with local administrative authority, such as sheriffs, mayors, hundreders—the chief officer of a territorial hundred—and the first civil officers of the Channel Islands. The term eventually narrowed to refer to an officer of a hundred court, appointed by a sheriff, and who assisted judges at assizes, served process, executed writs, assembled juries, and collected fines in court. In this later role, the bailiff has essentially replaced the pre-Conquest office of scyldhǣta (scultheta). Likewise, in Scotland a bailie was the chief magistrate of a barony (baron bailie) or part of a county, but now refers to a municipal officer corresponding to an English alderman. The district within which the bailiff exercises his jurisdiction is still called his bailiwick. 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 and the Bailiff of Dover Castle.
Under the manorial system a bailiff of the manor represented the peasants to the lord, oversaw the lands and buildings of the manor, collected fines and rents, and managed the profits and expenses of the manor and farm (see Walter of Henley). Bailiffs were outsiders and free men, that is, not from the village. Borough bailiffs would be in charge of the villagers in the town.
Low Countries and German-speaking lands
The office of bailiff was used in Flanders, Zealand, the Netherlands, Hainault, and in northern France. The bailiff was a civil servant who represented the ruler in town and country. In Flanders the count usually appointed the bailiff.
In the Low Countries and German-speaking Europe this position was known as baljuw (from bailli), but other words were used such as schout "reeve, (medieval) bailiff" (Holland, Antwerp, Mechelen, 's-Hertogenbosch, Turnhout), meier "majordomo" (Asse, Leuven), drossāte "steward, seneschal" (other parts of Brabant), amman (Brussels), and Amtmann and Ammann (Germany, Switzerland, Austria). The Amtmann was the senior official appointed by a territorial lord to oversee the administration and jurisdiction of a manorial estate or equivalent.
Under the Ancien Régime in France, the bailli (earlier baillis), or bailie, was the king's chief officer in a bailiwick or bailiery (bailliage), serving as chief magistrate for boroughs and baronies, administrator, military organizer, and financial agent. In southern France the term generally used was sénéchal who held office in a sénéchaussée. The bailie convened a bailie court (cour baillivale) which was an itinerant court of first instance. The administrative network of bailiwicks was established in the 13th century over the Crown lands (the domaine royal) by Philip Augustus who commissioned the first bailiff under the name bailli. They were based on pre-existing tax collection districts (baillie) which had been in use in formerly sovereign territories, e.g., the Duchy of Normandy. Bailie courts, as royal courts, were made superior over existent local courts; these lower courts were called:
- provost courts (prévôtés royales), sat by a provost (prévôt) appointed and paid by the bailie;
- Norman vicomtés, sat by a viscount (vicomte) (position could be held by non-nobles);
- elsewhere in northern France, châtellenies, sat by a castel 5 $5 foot long (position could be held by non-nobles);
- or, in the south, vigueries or baylies, sat by a viguier or bayle.
The bailie court was presided over by a lieutenant-bailie (lieutenant général du bailli). Bailie courts had appellate jurisdiction over lower courts (manorial courts, provost courts) but was the court of first instance for suits involving the nobility. Appeal of bailie court judgments lay in turn with the provincial Parlements. In an effort to reduce the Parlements' caseload, several bailie courts were granted extended powers by Henry II of France and were thereafter called presidial courts (baillages présidiaux). Bailie and presidial courts were also the courts of first instance for certain crimes (previously the jurisdiction of manorial courts): sacrilege, treason, kidnapping, rape, heresy, money defacement, sedition, insurrection, and illegal bearing of weapons.
By the late 16th century, the bailie's role had become mostly symbolic, and the lieutenant-bailie was the only one to hear cases. The administrative and financial role of the bailie courts declined in the early modern period (superseded by the king's royal tax collectors and provincial governors, and later by intendants), and by the end of the 18th century, the bailiwicks, which numbered in the hundreds, had become purely judicial.
Ushers, beadles and tipstaffs
In medieval France court bailiffs did not exist as such, but their functions were carried out by several court officers. The ussier (modern huissier), or usher, originally the doorkeeper, kept order in the court. The somoneor (mod. semonneur), or court crier, adjourned and called the court to order and announced its orders or directions. The bedel (mod. bedeau), or beadle, was the court's messenger and served process, especially summonses (sumunse, somonse, mod. semonce). And finally the sergens (mod. sergent), or tipstaff, enforced judgments of the court, seized property, and made arrests. The tipstaff's badge of authority was his verge, or staff, made of ebony, about 30 cm long, decorated with copper or ivory, and mandatory after 1560.
The Parlement courts consolidated most of these functions in its tipstaff (varlet), and the rest of the court system followed suit as the tipstaff was given the broadest powers. During the Renaissance, the four officers were reduced to two - the huissier and sergent - who took on all these functions, with the distinction being that the huissier served in higher courts and sergent in bailie courts (sergent royal) and manorial courts (sergent de justice). In 1705 the two professions were fused by royal edict under the name huissier.
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, though the latter under an Anglo Saxon law system is not identical to the former who is typical for many countries influenced by the Napoleonic Code. It 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. 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.
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.
England and Wales
There are seven offices whose holders are commonly referred to as 'bailiffs'.
Bailiffs (other than County Court, water bailiffs and jury bailiffs) will be replaced by the term enforcement agents when the Tribunals, Courts and Enforcement Act 2007, comes into force which has been announced as April 2014.
Civilian enforcement officers
Civilian enforcement officers are employees and contractors of Her Majesty's Courts and Tribunals Service and carry out the enforcement of magistrates and Crown Court orders. The companies contracted to carry out this work are: Marston Group, Collectica, Excel Enforcement and Swift Credit. These companies are contacted to enforce magistrate and crown court orders which include but are not limited to: the enforcement of arrest warrants, the collection of unpaid fines and the service of documents. More information about the work of ceo's can be found via form EX345 on the HMCTS website. In July 2013 HMCTS announced it is to fully contract out its current compliance and enforcement services to a private company, this will involve the transfer of over 500 HMCTS employees. This decision has lead to official strike action by some HMCTS employees on 30/07/2013.
County court bailiff
County court bailiffs are employed by Her Majesty's Courts and Tribunals Service and carry out enforcement for county courts - mainly involving payment of unpaid county court judgments. They can seize and sell goods to recover a debt. They can also affect 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.
High Court enforcement officer
High Court enforcement officers are authorised by the Lord Chancellor to execute High Court writs. They can seize and sell goods to cover the amount of a debt owed. They can also enforce and supervise the possession of property and the return of goods. They replaced sheriff's officers in April 2004. Legislation relating the High Court enforcement officers includes the Sheriffs Act 1887, The High Court Enforcement Officers Regulations 2004 and the Courts Act 2003.
Unlike a county court bailiff, who is a civil servant, an HCEO is an agent of the High Court appointed by the Lord Chancellor. In order to engage the services of an HCEO, a writ (of fieri facias) has to be obtained from the High Court. The debt must be over £600 and it cannot be one where judgement has been obtained for a debt owed under the Consumer Credit Act 1974.
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. Certificated bailiffs are required to gain peaceable entry into property before a levy of goods inside a property can take place. They cannot enforce the collection of money due under High Court or county court orders. Certificated Bailiffs are increasingly being used by Local authorities and HMCTS to carry out the enforcement of both Bail and Non-Bail arrest warrants. This usually involves the Bailiff locating a wanted person and taking them into custody. It is common misconception that a Police Officer has to be present to assist the Bailiff with an arrest however this is not a legal requirement and would only be the case where the Bailiff needs assistance with the arrest or transportation of the prisoner to the Court. Where the person is arrested outside of Court hours the Bailiff may take the detainee to a Police station where they will be held until the Court reopens for business.
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.
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 and are to be deemed as a constable with the same powers and privileges for the purpose of the enforcement of the Salmon and Freshwater Fisheries Act 1975.
In England and 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.
Isle of Man
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 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.
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 residential evictions, seizures, and other processes order by the court, are performed by sheriffs under the office of the Attorney General of Ontario or "private" bailiffs if initiated without a court order.
Private bailiffs are licensed by the Province of Ontario's Ministry of Consumer Services under the Bailiffs Act. Assistant bailiffs are similarly licensed, but must be supervised by a bailiff. Bailiffs in this capacity assist others who have a right to exercise self-help to repossess or seize something, or to evict under a commercial tenancy. Bailiffs are agents of the person contracting their services, not government employees or peace officers, and are prohibited from using force to seize goods or evict tenants.
In the Netherlands, the term bailiff translates to Baljuw, which had various meanings and sometimes carried the same privileges and duties as the title Drost or Drossaard, depending on the jurisdiction. Pieter Cornelisz Hooft for example, carried both the titles "Drost van Muiden" and "Baljuw van Goeilandt", that were more or less honorary titles by that time. The two neighboring areas had needed the office to oversee the appointment of local council staff (mostly referred to as "schout & schepenen"), whose most important interests were the passage of travelers and goods by water (Muiden) and overland (Gooiland). The Netherlands was governed by waterschappen as well as by regional city councils, and both institutions once had honorary titles of Baljuw or Drost.
These days, the term "Bailiff" is not used in the Netherlands, except 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.
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, corrections officers 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.
In rural areas, this responsibility is often carried out by the junior lawyer in training under the judge's supervision called a law clerk who also has the title of bailiff.
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.
- Indiana: In the State of Indiana, Bailiffs are administrative assistants that are employed by judges who reside in a county judicial circuit. For example, a County Court Judge, Superior Court Judge, and Circuit Court Judge may have at least one Bailiff who is in charge of calling a jury, seating a jury, as well as attending to a juror's needs. They are sworn officers of the court.
- 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 decorum. 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.
- Massachusetts: The Trial Court officers are responsible for the security of all court buildings in the state as well as for the people who work in or visit them.
- 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.
- Vermont: A high bailiff is an elected county officer who performs certain duties when the sheriff is unable to do so.
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.
- One or more of the preceding sentences incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Bailiff". Encyclopædia Britannica 3 (11th ed.). Cambridge University Press
- "Civilian Enforcement Officers [...] execute warrants of arrest, committal, detention and distress" (PDF). hmctsformfinder.justice.gov.uk.
- "HMcourts-service.gov.uk". HMcourts-service.gov.uk. 2011-04-01. Retrieved 2013-07-30.
- "About HM Courts & Tribunals Service". Hmcourts-service.gov.uk. 2011-04-01. Retrieved 2013-07-30.
- Sprack, J (2006). A Practical Approach to Criminal Procedure (11th ed.). Oxford: Oxford University Press. ISBN 0-19-929830-0. 21.01-21.06
- Ontario Ministry of Correctional Services Act (see Section 19)
- "Courts of Justice Act, Section 141". E-laws.gov.on.ca. Retrieved 2013-07-30.
- The Role and Rights of Bailiffs, Ministry of Consumer Services
- [dead link]
- MDcourts.gov[dead link]
- New York State Court Officers Association official website. Accessed February 1, 2010.
- "Stateuniversity.com". Encyclopedia.stateuniversity.com. Retrieved 2013-07-30.[dead link]
- "Fromoldbooks.org". Fromoldbooks.org. Retrieved 2013-07-30.