diff --git a/original/07.markdown b/original/07.markdown index 53d3fdb..637ed9a 100644 --- a/original/07.markdown +++ b/original/07.markdown @@ -325,7 +325,7 @@ the time of William the Conqueror. Palgrave says: justiciars to represent the king's person, to hold his court, to decide his pleas, to dispense justice on his behalf, to command the military levies, and to act as conservators of the peace in the - king's name.[95] ... The justices who were assigned in the name of + king's name.\footnotemark[ 95] ... The justices who were assigned in the name of the sovereign, and whose powers were revocable at his pleasure, derived their authority merely from their grant.... Some of those judges were usually deputed for the purpose of relieving the king @@ -430,6 +430,12 @@ All these things show how perfectly lawless and arbitrary the kings were both before and after Magna Carta, and how necessary to liberty was the principle of Magna Carta and the common law, that no person appointed by the king should hold jury trials in criminal cases.] +\footnotetext[ 95]{In this extract, Palgrave seems to assume that the king +himself had a right to sit as judge, in \emph{jury} trials, in the \emph{county} +courts, in both civil and criminal cases. I apprehend he had no such +power at the \emph{common law}, but only to sit in the trial of appeals, and +in the trial of peers, and of civil suits in which peers were parties, +and possibly in the courts of ancient demesne.} [Footnote 91: The opinions and decisions of judges and courts are undeserving of the least reliance, (beyond the intrinsic merit of the @@ -556,7 +562,7 @@ _bailiffs_,") "where foreign voucher is made, as to Chester, Durham, Salop," &c.--_2 Inst._, 325-7. BAILIE.--In Scotch law, a municipal magistrate, corresponding with the -English _alderman_.[96]--_Burrill's Law Dictionary_. +English _alderman_.\footnotemark[ 96]--_Burrill's Law Dictionary_. BAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties similar to those of a sheriff.... _The judge of a court._ A municipal @@ -625,7 +631,7 @@ ii., ch. 3, p. 126. _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:) _Bailli._--_He who in a province has the superintendence of justice, who is the ordinary judge of the nobles_, who is their head for the - _ban_ and _arriere ban_,[97] and who maintains the right and property + _ban_ and _arriere ban_,\footnotemark[ 97] and who maintains the right and property of others against those who attack them.... All the various officers who are called by this name, though differing as to the nature of their employments, seem to have some kind of superintendence @@ -710,7 +716,7 @@ important functions._"--_Webster._ "BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in a royal burgh."--_Worcester._ -"_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort +"_Baili, or Bailiff._--(\foreignlanguage{french}{Sorte d'officier de justice.}) A bailiff; a sort of magistrate."--_Boyer's French Dict._ "By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any @@ -754,6 +760,15 @@ to the commanders of particular castles, as that of Dover. The term _baillie_, in Scotland, is applied to a judicial police-officer, having powers very similar to those of justices of peace in the United States."--_Encyclopædia Americana._] +\footnotetext[ 96]{\emph{Alderman} was a title anciently given to various +\emph{judicial} officers, as the Alderman of all England, Alderman of the +King, Alderman of the County, Alderman of the City or Borough, Alderman +of the Hundred or Wapentake. These were all \emph{judicial} officers. See Law +Dictionaries.} +\footnotetext[ 97]{``\emph{Ban and arriere ban}, a proclamation, whereby all that +hold lands of the crown, (except some privileged officers and citizens,) +are summoned to meet at a certain place in order to serve the king in +his wars, either personally, or by proxy.''--\emph{Boyer.} [Footnote 93: Perhaps it may be said (and such, it has already been seen, is the opinion of Coke and others) that the chapter of Magna @@ -773,7 +788,7 @@ in criminal trials at all,) but only in the character of _witnesses_; and that the meaning of the chapter is, that the simple testimony (simplici loquela) of "no bailiff," (of whatever kind,) unsupported by other and "credible witnesses," shall be sufficient to put any man on -trial, or to his oath of self-exculpation.[98] +trial, or to his oath of self-exculpation.\footnotemark[ 98] It will be noticed that the words of this chapter are _not_, "no bailiff _of ours_,"--that is, _of the king_,--as in some other chapters of Magna @@ -809,6 +824,9 @@ was sufficient. Certainly a magistrate could always procure witnesses enough to testify to something or other, which _he himself_ could decide to be corroborative of his own testimony. And thus the prohibition would be defeated in fact, though observed in form.] +\footnotetext[ 98]{At the common law, parties, in both civil and criminal +cases, were allowed to swear in their own behalf; and it will be so +again, if the true trial by jury should be reëstablished.} [Footnote 94: In this chapter I have called the justices "_presiding_ officers," solely for the want of a better term. They are not @@ -817,25 +835,3 @@ jury; but are only assistants to, and teachers and servants of, the jury. The foreman of the jury is properly the "presiding officer," so far as there is such an officer at all. The sheriff has no authority except over other persons than the jury.] - -[Footnote 95: In this extract, Palgrave seems to assume that the king -himself had a right to sit as judge, in _jury_ trials, in the _county_ -courts, in both civil and criminal cases. I apprehend he had no such -power at the _common law_, but only to sit in the trial of appeals, and -in the trial of peers, and of civil suits in which peers were parties, -and possibly in the courts of ancient demesne.] - -[Footnote 96: _Alderman_ was a title anciently given to various -_judicial_ officers, as the Alderman of all England, Alderman of the -King, Alderman of the County, Alderman of the City or Borough, Alderman -of the Hundred or Wapentake. These were all _judicial_ officers. See Law -Dictionaries.] - -[Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that -hold lands of the crown, (except some privileged officers and citizens,) -are summoned to meet at a certain place in order to serve the king in -his wars, either personally, or by proxy."--_Boyer._] - -[Footnote 98: At the common law, parties, in both civil and criminal -cases, were allowed to swear in their own behalf; and it will be so -again, if the true trial by jury should be reëstablished.]