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.
The Mirror says: "The point which forbiddeth that no bailiff put a freeman to his oath without suit, is to be understood in this manner, that no justice, no minister of the king, nor other steward, nor bailiff, have power to make a freeman make oath, (of self-exculpation,) without the king's command, [3] nor receive any plaint, without witnesses present who testify the plaint to be true." Mirror of Justices, ch. 5, sec. 2, p. 257.
Coke quotes this commentary, (in the original French,) and then endorses it in these words:
"By this it appeareth, that under this word balivus, in this act, is comprehended every justice, minister of the king, steward, and bailiff." 2 Inst., 44.
Coke also, in his commentary upon this very chapter of Magna Carta, that provides that "no sheriff; constable; coroner, or other our bailiffs, shall hold pleas of our crown," expresses the opinion that it "is a general law," (that is, applicable to all officers of the king,) " by reason of the words vel alii balivi nostri, (or other our bailiffs,) under which words are comprehended all judges or justices of any courts of justice. "And he cites a decision in the king's bench, in the 17th year of Edward I., (1289,) as authority; which decision he calls "a notable and leading judgment." 2 Inst., 30 1.
And yet Coke, in flat contradiction of this decision, which he quotes with such emphasis and approbation, and in flat contradiction also of the definition he repeatedly gives of the word balivus showing that it embraced all ministers of the king whatsoever, whether high or low, judicial or executive, fabricates an entirely gratuitous interpretation of this chapter of Magna Carta, and pretends that after all it only required that felonies should he tried before the king's justices, on account of their superior Iearning; and that it permitted all lesser offenses to be tried before inferior officers, (meaning of course the king's inferior officers.) 2 Inst., 30.
And thus this chapter of Magna Carta, which, according to his own definition of the word balivus, applies to all officers of the king; and which, according to the common and true definition of the term "pleas of the crown," applies to all criminal cases without distinction, and which, therefore, forbids any officer or minister of the king to preside in a jury trial in any criminal case whatsoever, he coolly and gratuitously interprets into a mere senseless provision for simply restricting the discretion of the king in giving names to his own officers who should preside at the trials of particular offences; as if the king, who made and unmade all his officers by a word, could not defeat the whole object of the prohibition, by appointing such individuals as he pleased, to try such causes as he pleased, and calling them by such names as he pleased, if he were but permitted to appoint and name such officers at all; and as if it were of the least importance what name an officer bore, whom the king might appoint to a particular duty. [4]