843 lines
50 KiB
Markdown
843 lines
50 KiB
Markdown
# ILLEGAL JUDGES
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It is a principle of Magna Carta, and therefore of the trial by jury,
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(for all parts of Magna Carta must be construed together,) that no judge
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or other officer _appointed by the king_, shall preside in jury trials,
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_in criminal cases_, or “pleas of the crown.”
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This provision is contained in the great charters of both John and
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Henry, and is second in importance only to the provision guaranteeing
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the trial by jury, of which it is really a part. Consequently, without
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the observance of this prohibition, there can be no genuine or
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_legal_—that is, _common law_—trial by jury.
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At the common law, all officers who held jury trials, whether in civil
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or criminal cases, were chosen by the people.[^87]
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But previous to Magna Carta, the kings had adopted the practice of
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sending officers of their own appointment, called justices, into the
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counties, to hold jury trials in some cases; and Magna Carta authorizes
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this practice to be continued so far as it relates to _three_ kinds of
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_civil_ actions, to wit: “novel disseisin, mort de ancestor, and darrein
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presentment;”[^88] but specially forbids its being extended to criminal
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cases, or pleas of the crown.
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This prohibition is in these words:
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> “Nullus vicecomes, constabularius, coronator, _vel alii balivi
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> nostri_, teneant placita coronæ nostræ.” (No sheriff, constable,
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> coroner, _or other our bailiffs_, shall hold pleas of our
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> crown.)—_John’s Charter_, ch. 53. _Henry’s ditto_, ch. 17.
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Some persons seem to have supposed that this was a prohibition merely
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upon officers _bearing the specific names of_ “_sheriffs, constables,
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coroners and bailiffs_,” to hold criminal trials. But such is not the
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meaning. If it were, the _name_ could be changed, and the _thing_
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retained; and thus the prohibition be evaded. The prohibition applies
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(as will presently be seen) to all officers of the king whatsoever; and
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it sets up a distinction between officers _of the king_, (“_our_
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bailiffs,”) and officers chosen by the people.
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The prohibition upon the king’s _justices_ sitting in criminal trials,
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is included in the words “_vel alii balivi nostri_,” (or other our
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bailiffs.) The word _bailiff_ was anciently a sort of general name for
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_judicial officers_ and persons employed in and about the administration
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of justice. In modern times its use, as applied to the higher grades of
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judicial officers, has been superseded by other words; and it therefore
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now, more generally, if not universally, signifies an executive or
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police officer, _a servant of courts_, rather than one whose functions
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are purely judicial.
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The word is a French word, brought into England by the Normans.
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> Coke says, “_Baylife_ is a French word, and signifies an officer
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> concerned in the administration of justice of a certain province; and
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> because a sheriff hath an office concerning the administration of
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> justice within his county, or bailiwick, therefore he called his
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> county _baliva sua_, (his bailiwick.)
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> “I have heard great question made what the true exposition of this
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> word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter
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> of that statute is, _nullus balivus de cætero ponat aliquem ad legem
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> manifestam nec ad juramentum simplici loquela sua sine testibus
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> fidelibus ad hoc inductis_.” (No bailiff from henceforth shall put
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> any one to his open law, nor to an oath (of self-exculpation) upon
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> his own simple accusation, or complaint, without faithful witnesses
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> brought in for the same.) “And some have said that _balivus_ in this
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> statute signifieth _any judge_; for the law must be waged and made
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> before the judge. And this statute (say they) extends to _the courts
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> of common pleas_, _king’s bench_, &c., for they must bring with them
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> _fideles testes_, (faithful witnesses,) &c., _and so hath been the
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> usage to this day_.”—_1 Coke’s Inst._, 168 b.
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Coke makes various references, in his margin to Bracton, Fleta, and
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other authorities, which I have not examined, but which, I presume,
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support the opinion expressed in this quotation.
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Coke also, in another place, under the head of the chapter just cited
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from Magna Carta, that “_no bailiff shall put any man to his open law_,”
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&c., gives the following commentary upon it, from the _Mirror of
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Justices_, from which it appears that in the time of Edward I., (1272 to
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1307,) this word _balivus_ was understood to include _all judicial_, as
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well as all other, officers of the king.
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> The Mirror says: “The point which forbiddeth that no _bailiff_ put a
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> freeman to his oath without suit, is to be understood in this
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> manner,—_that no justice, no minister of the king_, nor other
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> steward, nor bailiff, have power to make a freeman make oath, (of
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> self-exculpation,) _without the king’s command_,[^89] nor receive any
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> plaint, without witnesses present who testify the plaint to be
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> true.”—_Mirror of Justices_, ch. 5, sec. 2, p. 257.
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Coke quotes this commentary, (in the original French,) and then endorses
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it in these words:
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> “By this it appeareth, that under this word _balivus_, in this act,
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> is comprehended _every justice, minister of the king_, steward, and
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> bailiff.”—2 _Inst._, 44.
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Coke also, in his commentary upon this very chapter of Magna Carta, that
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provides that “_no sheriff, constable, coroner, or other our bailiffs,
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shall hold pleas of our crown_,” expresses the opinion that it “_is a
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general law_,” (that is, applicable to all officers of the king,) “by
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reason of the words _vel alii balivi nostri_, (or other our bailiffs,)
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_under which words are comprehended all judges or justices of any courts
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of justice_.” And he cites a decision in the king’s bench, in the 17th
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year of Edward I., (1289,) as authority; which decision he calls “a
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notable and leading judgment.”—_2 Inst._, 30—1.
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And yet Coke, in flat contradiction of this decision, which he quotes
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with such emphasis and approbation, and in flat contradiction also of
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the definition he repeatedly gives of the word _balivus_, showing that
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it embraced _all ministers of the king whatsoever_, whether high or low,
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judicial or executive, fabricates an entirely gratuitous interpretation
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of this chapter of Magna Carta, and pretends that after all it only
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required that _felonies_ should be tried before the king’s _justices, on
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account of their superior learning_; and that it permitted all lesser
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offences to be tried before inferior officers, (meaning of course the
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_king’s_ inferior officers.)—_2 Inst._, 30.
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And thus this chapter of Magna Carta, which, according to his own
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definition of the word _balivus_, applies to all officers of the king;
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and which, according to the common and true definition of the term
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“pleas of the crown,” applies to all criminal cases without distinction,
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and which, therefore, forbids any officer or minister of the king to
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preside in a jury trial in any criminal case whatsoever, he coolly and
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gratuitously interprets into a mere senseless provision for simply
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restricting the discretion of the king in giving _names_ to his own
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officers who should preside at the trials of particular offences; as if
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the king, who made and unmade all his officers by a word, could not
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defeat the whole object of the prohibition, by appointing such
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individuals as he pleased, to try such causes as he pleased, and calling
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them by such names as he pleased, _if he were but permitted to appoint
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and name such officers at all_; and as if it were of the least
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importance what _name_ an officer bore, whom the king might appoint to a
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particular duty.[^90]
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Coke evidently gives this interpretation solely because, as he was
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giving a general commentary on Magna Carta, he was bound to give some
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interpretation or other to every chapter of it; and for this chapter he
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could invent, or fabricate, (for it is a sheer fabrication,) no
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interpretation better suited to his purpose than this. It seems never to
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have entered his mind, (or if it did, he intended that it should never
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enter the mind of anybody else,) that the object of the chapter could be
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to deprive the king of the power of putting his creatures into criminal
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courts, to pack, cheat, and browbeat juries, and thus maintain his
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authority by procuring the conviction of those who should transgress his
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laws, or incur his displeasure.
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This example of Coke tends to show how utterly blind, or how utterly
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corrupt, English judges, (dependent upon the crown and the legislature),
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have been in regard to everything in Magna Carta, that went to secure
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the liberties of the people, or limit the power of the government.
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Coke’s interpretation of this chapter of Magna Carta is of a piece with
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his absurd and gratuitous interpretation of the words “_nec super eum
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ibimus, nec super eum mittemus_,” which was pointed out in a former
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article, and by which he attempted to give a _judicial_ power to the
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king and his judges, where Magna Carta had given it only to a jury. It
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is also of a piece with his pretence that there was a difference
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between _fine_ and _amercement_, and that _fines_ might be imposed by
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the king, and that juries were required only for fixing _amercements_.
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These are some of the innumerable frauds by which the English people
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have been cheated out of the trial by jury.
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_Ex uno disce omnes._ From one judge learn the characters of all.[^91]
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I give in the note additional and abundant authorities for the meaning
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ascribed to the word _bailiff_. The importance of the principle involved
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will be a sufficient excuse for such an accumulation of authorities as
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would otherwise be tedious and perhaps unnecessary.[^92]
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The foregoing interpretation of the chapter of Magna Carta now under
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discussion, is corroborated by another chapter of Magna Carta, which
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specially provides that the king’s justices shall “go through every
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county” to “take the assizes” (hold jury trials) in three kinds of
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_civil_ actions, to wit, “novel disseisin, mort de ancestor, and darrein
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presentment;” but makes no mention whatever of their holding jury trials
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in _criminal_ cases,—an omission wholly unlikely to be made, if it
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were designed they should attend the trial of such causes. Besides, the
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chapter here spoken of (in John’s charter) does not allow these justices
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to sit _alone_ in jury trials, even in _civil_ actions; but provides
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that four knights, chosen by the county, shall sit with them to keep
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them honest. When the king’s justices were known to be so corrupt and
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servile that the people would not even trust them to sit alone, in jury
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trials, in _civil_ actions, how preposterous is it to suppose that they
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would not only suffer them to sit, but to sit alone, in _criminal_ ones.
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It is entirely incredible that Magna Carta, which makes such careful
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provision in regard to the king’s justices sitting in civil actions,
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should make no provision whatever as to their sitting in _criminal_
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trials, if they were to be allowed to sit in them at all. Yet Magna
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Carta has no provision whatever on the subject.[^93]
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But what would appear to make this matter absolutely certain is, that
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unless the prohibition that “no bailiff, &c., _of ours_ shall hold pleas
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of our crown,” apply to all officers of the king, justices as well as
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others, it would be wholly nugatory for any practical or useful purpose,
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because the prohibition could be evaded by the king, at any time, by
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simply changing the titles of his officers. Instead of calling them
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“sheriffs, coroners, constables and bailiffs,” he could call them
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“_justices_,” or anything else he pleased; and this prohibition, so
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important to the liberty of the people, would then be entirely defeated.
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The king also could make and unmake “justices” at his pleasure; and if
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he could appoint any officers whatever to preside over juries in
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criminal trials, he could appoint any tool that he might at any time
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find adapted to his purpose. It was as easy to make justices of Jeffreys
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and Scroggs, as of any other material; and to have prohibited all the
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king’s officers, _except his justices_, from presiding in criminal
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trials, would therefore have been mere fool’s play.
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We can all perhaps form some idea, though few of us will be likely to
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form any adequate idea, of what a different thing the trial by jury
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would have been _in practice_, and of what would have been the
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difference to the liberties of England, for five hundred years last
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past, had this prohibition of Magna Carta, upon the king’s officers
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sitting in the trial of criminal cases, been observed.
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The principle of this chapter of Magna Carta, as applicable to the
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governments of the United States of America, forbids that any officer
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appointed either by the executive or _legislative_ power, or dependent
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upon them for their salaries, or responsible to them by impeachment,
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should preside over a jury in criminal trials. To have the trial a legal
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(that is, a _common law_) and true trial by jury, the presiding officers
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must be chosen by the people, and be entirely free from all dependence
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upon, and all accountability to, the executive and legislative branches
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of the government.[^94]
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[^87]: The proofs of this principle of the common law have
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already been given on page 120, _note_.
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There is much confusion and contradiction among authors as to the manner
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in which sheriffs and other officers were appointed; some maintaining
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that they were appointed by the king, others that they were elected by
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the people. I imagine that both these opinions are correct, and that
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several of the king’s officers bore the same official names as those
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chosen by the people; and that this is the cause of the confusion that
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has arisen on the subject.
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It seems to be a perfectly well established fact that, at common law,
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several magistrates, bearing the names of aldermen, sheriffs, stewards,
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coroners and bailiffs, were chosen by the people; and yet it appears,
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from Magna Carta itself, that some of the _king’s_ officers (of whom he
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must have had many) were also called “sheriffs, constables, coroners,
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and bailiffs.”
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But Magna Carta, in various instances, speaks of sheriffs and bailiffs
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as “_our_ sheriffs and bailiffs;” thus apparently intending to recognize
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the distinction between officers _of the king_, bearing those names, and
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other officers, bearing the same official names, but chosen by the
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people. Thus it says that “no sheriff or bailiff _of ours_, or any other
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(officer), shall take horses or carts of any freeman for carriage,
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unless with the consent of the freeman himself.”—_John’s Charter_, ch.
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36.
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In a kingdom subdivided into so many counties, hundreds, tithings,
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manors, cities and boroughs, each having a judicial or police
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organization of its own, it is evident that many of the officers must
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have been chosen by the people, else the government could not have
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maintained its popular character. On the other hand, it is evident that
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the king, the executive power of the nation, must have had large numbers
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of officers of his own in every part of the kingdom. And it is perfectly
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natural that these different sets of officers should, in many instances,
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bear the same official names; and, consequently that the king, when
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speaking of his own officers, as distinguished from those chosen by the
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people, should call them “our sheriffs, bailiffs,” &c., as he does in
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Magna Carta.
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I apprehend that inattention to these considerations has been the cause
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of all the confusion of ideas that has arisen on this subject,—a
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confusion very evident in the following paragraph from Dunham, which may
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be given as an illustration of that which is exhibited by others on the
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same points.
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> “Subordinate to the ealdormen were the _gerefas_, the sheriffs, or
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> reeves, _of whom there were several in every shire, or county_.
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> _There was one in every borough, as a judge._ There was one at every
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> gate, who witnessed purchases outside the walls; and there was one,
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> higher than either,—the high sheriff,—who was probably the reeve of
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> the shire. This last _appears_ to have been appointed by the king.
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> Their functions were to execute the decrees of the king, or
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> ealdormen, to arrest prisoners, to require bail for their appearance
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> at the sessions, to collect fines or penalties levied by the court of
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> the shire, to preserve the public peace, _and to preside in a
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> subordinate tribunal of their own_.”—_Dunham’s Middle Ages_, sec. 2,
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> B. 2, ch. 1. 57 _Lardner’s Cab. Cyc._, p. 41.
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The confusion of _duties_ attributed to these officers indicates clearly
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enough that different officers, bearing, the same official names, must
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have had different duties, and have derived their authority from
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different sources,—to wit, the king, and the people.
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[^88]: _Darrein presentment_ was an inquest to discover who
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presented the last person to a church; _mort de ancestor_, whether the
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last possessor was seized of land in demesne of his own fee; and _novel
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disseisin_, whether the claimant had been unjustly disseized of his
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freehold.
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[^89]: He has no power to do it, _either with, or without, the
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king’s command_. The prohibition is absolute, containing no such
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qualification as is here interpolated, viz., “_without the king’s
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command_.” If it could be done _with_ the king’s command, the king would
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be invested with arbitrary power in the matter.
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[^90]: The absurdity of this doctrine of Coke is made more
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apparent by the fact that, at that time, the “justices” and other
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persons appointed by the king to hold courts were not only dependent
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upon the king for their offices, and removable at his pleasure, _but
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that the usual custom was, not to appoint them with any view to
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permanency, but only to give them special commissions for trying a
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single cause, or for holding a single term of a court, or for making a
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single circuit; which, being done, their commissions expired_. The king,
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therefore, could, _and undoubtedly did, appoint any individual he
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pleased, to try any cause he pleased, with a special view to the
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verdicts he desired to obtain in the particular cases_.
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This custom of commissioning particular persons to hold jury trials, in
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_criminal_ cases, (and probably also in _civil_ ones,) was of course a
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usurpation upon the common law, but had been practised more or less from
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the time of William the Conqueror. Palgrave says:
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> “The frequent absence of William from his insular dominions
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> occasioned another mode of administration, _which ultimately produced
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> still greater changes in the law_. It was the practice of appointing
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> justiciars to represent the king’s person, to hold his court, to
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> decide his pleas, to dispense justice on his behalf, to command the
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> military levies, and to act as conservators of the peace in the
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> king’s name.[^95] ... The justices who were assigned in the name of
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> the sovereign, and whose powers were revocable at his pleasure,
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> derived their authority merely from their grant.... Some of those
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> judges were usually deputed for the purpose of relieving the king
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> from the burden of his judicial functions.... The number as well as
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> the variety of names of the justices appearing in the early
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> chirographs of ‘Concords,’ leave reason for doubting whether,
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> anterior to the reign of Henry III., (1216 to 1272,) _a court, whose
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> members were changing at almost every session, can be said to have
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> been permanently constituted. It seems more probable that the
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> individuals who composed the tribunal were selected as suited the
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> pleasure of the sovereign, and the convenience of the clerks and
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> barons_; and the history of our legal administration will be much
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> simplified, if we consider all those courts which were afterwards
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> denominated the Exchequer, the King’s Bench, the Common Pleas, and
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> the Chancery, _as being originally committees, selected by the king
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> when occasion required_, out of a large body, for the despatch of
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> peculiar branches of business, _and which committees, by degrees,
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> assumed an independent and permanent existence_.... Justices
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> itinerant, who, despatched throughout the land, decided the ‘Pleas of
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> the Crown,’ may be obscurely traced in the reign of the Conqueror;
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> _not, perhaps, appointed with much regularity, but despatched upon
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> peculiar occasions and emergencies_.”—_1 Palgrave’s Rise and
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> Progress_, &c., p. 289 to 293.
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The following statute, passed in 1354, (139 years after Magna Carta,)
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shows that even after this usurpation of appointing “justices” of his
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own, to try criminal cases, had probably become somewhat established in
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practice, in defiance of Magna Carta, the king was in the habit of
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granting special commissions to still other persons, (especially to
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sheriffs,—_his_ sheriffs, no doubt,) to try particular cases:
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> “Because that the people of the realm have suffered many evils and
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> mischiefs, for that sheriffs of divers counties, by virtue of
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> commissions and general writs granted to them at their own suit, for
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> their singular profit to gain of the people, have made and taken
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> divers inquests to cause to indict the people at their will, and have
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> taken fine and ransom of them to their own use, and have delivered
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> them; whereas such persons indicted were not brought before the
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> king’s justices to have their deliverance, it is accorded and
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> established, for to eschew all such evils and mischiefs, that such
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> commissions and writs before this time made shall be utterly
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> repealed, and that from henceforth no such commissions shall be
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> granted.”—_St. 28 Edward III._, ch. 9, (1354.)
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How silly to suppose that the illegality of these commissions to try
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criminal cases, could have been avoided by simply granting them to
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persons under the title of “_justices_,” instead of granting them to
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“_sheriffs_.” The statute was evidently a cheat, or at least designed as
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such, inasmuch as it virtually asserts the right of the king to appoint
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his tools, under the name of “justices,” to try criminal cases, while it
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_disavows_ his right to appoint them under the name of “sheriffs.”
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> Millar says: “When the king’s bench came to have its usual residence
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> at Westminster, the sovereign was induced to _grant special
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> commissions, for trying particular crimes_, in such parts of the
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> country as were found most convenient; and this practice was
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> _gradually_ modelled into a regular appointment of certain
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||
> commissioners, empowered, at stated seasons, to perform circuits over
|
||
> the kingdom, and to hold courts in particular towns, for the trial of
|
||
> all sorts of crimes. These judges of the circuit, however, _never
|
||
> obtained an ordinary jurisdiction, but continued, on every occasion,
|
||
> to derive their authority from two special commissions_: that of
|
||
> _oyer and terminer_, by which they were appointed to hear and
|
||
> determine all treasons, felonies and misdemeanors, within certain
|
||
> districts; and that of _gaol delivery_, by which they were directed
|
||
> to try every prisoner confined in the gaols of the several towns
|
||
> falling under their inspection.”—_Millar’s Hist. View of Eng. Gov._,
|
||
> vol. 2, ch. 7, p. 282.
|
||
|
||
The following extract from Gilbert shows to what lengths of usurpation
|
||
the kings would sometimes go, in their attempts to get the judicial
|
||
power out of the hands of the people, and entrust it to instruments of
|
||
their own choosing:
|
||
|
||
> “From the time of the _Saxons_,” (that is, from the commencement of
|
||
> the reign of William the Conqueror,) “till the reign of Edward the
|
||
> first, (1272 to 1307,) the several county courts and sheriffs courts
|
||
> did decline in their interest and authority. The methods by which
|
||
> they were broken were two-fold. _First, by granting commissions to
|
||
> the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a
|
||
> particular jurisdiction granted him to be judge of a particular
|
||
> cause, independent of the suitors of the county court_,” (that is,
|
||
> without a jury;) “_and these commissions were after the Norman form,
|
||
> by which (according to which) all power of judicature was immediately
|
||
> derived from the king_.”—_Gilbert on the Court of Chancery_, p. 1.
|
||
|
||
The several authorities now given show that it was the custom of the
|
||
_Norman_ kings, not only to appoint persons to sit as judges in jury
|
||
trials, in criminal cases, but that they also commissioned individuals
|
||
to sit in singular and particular cases, as occasion required; and that
|
||
they therefore readily _could_, and naturally _would_, and therefore
|
||
undoubtedly _did_, commission individuals with a special view to their
|
||
adaptation or capacity to procure such judgments as the kings desired.
|
||
|
||
The extract from Gilbert suggests also the usurpation of the _Norman_
|
||
kings, in their assumption that _they_, (and _not the people_, as by the
|
||
_common law_,) were the fountains of justice. It was only by virtue of
|
||
this illegal assumption that they could claim to appoint their tools to
|
||
hold courts.
|
||
|
||
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.
|
||
|
||
[^91]: The opinions and decisions of judges and courts are
|
||
undeserving of the least reliance, (beyond the intrinsic merit of the
|
||
arguments offered to sustain them,) and are unworthy even to be quoted
|
||
as evidence of the law, _when those opinions or decisions are favorable
|
||
to the power of the government, or unfavorable to the liberties of the
|
||
people_. The only reasons that their opinions, _when in favor of
|
||
liberty_, are entitled to any confidence, are, first, that all
|
||
presumptions of law are in favor of liberty; and, second, that the
|
||
admissions of all men, the innocent and the criminal alike, _when made
|
||
against their own interests_, are entitled to be received as true,
|
||
because it is contrary to human nature for a man to confess anything but
|
||
truth against himself.
|
||
|
||
More solemn farces, or more gross impostures, were never practised upon
|
||
mankind, than are all, or very nearly all, those oracular responses by
|
||
which courts assume to determine that certain statutes, in restraint of
|
||
individual liberty, are within the constitutional power of the
|
||
government, and are therefore valid and binding upon the people.
|
||
|
||
The reason why these courts are so intensely servile and corrupt, is,
|
||
that they are not only parts of, but the veriest creatures of, the very
|
||
governments whose oppressions they are thus seeking to uphold. They
|
||
receive their offices and salaries from, and are impeachable and
|
||
removable by, the very governments upon whose acts they affect to sit in
|
||
judgment. Of course, no one with his eyes open ever places himself in a
|
||
position so incompatible with the liberty of declaring his honest
|
||
opinion, unless he do it with the intention of becoming a mere
|
||
instrument in the hands of the government for the execution of all its
|
||
oppressions.
|
||
|
||
As proof of this, look at the judicial history of England for the last
|
||
five hundred years, and of America from its settlement. In all that time
|
||
(so far as I know, or presume) no bench of judges, (probably not even
|
||
any single judge,) dependent upon the legislature that passed the
|
||
statute, has ever declared a single _penal_ statute invalid, on account
|
||
of its being in conflict either with the common law, which the judges in
|
||
England have been sworn to preserve, or with the written constitutions,
|
||
(recognizing men’s natural rights,) which the American judges were under
|
||
oath to maintain. Every oppression, every atrocity even, that has ever
|
||
been enacted in either country, by the legislative power, in the shape
|
||
of a criminal law, (or, indeed, in almost any other shape,) has been as
|
||
sure of a sanction from the judiciary that was dependent upon, and
|
||
impeachable by, the legislature that enacted the law, as if there were a
|
||
physical necessity that the legislative enactment and the judicial
|
||
sanction should go together. Practically speaking, the sum of their
|
||
decisions, all and singular, has been, that there are no limits to the
|
||
power of the government, and that the people have no rights except what
|
||
the government pleases to allow to them.
|
||
|
||
It is extreme folly for a people to allow such dependent, servile, and
|
||
perjured creatures to sit either in civil or criminal trials; but to
|
||
allow them to sit in criminal trials, and judge of the people’s
|
||
liberties, is not merely fatuity,—it is suicide.
|
||
|
||
[^92]: Coke, speaking of the word _bailiffs_, as used in the
|
||
statute of 1 _Westminster_, ch. 35, (1275,) says:
|
||
|
||
> “Here _bailiffs_ are taken for the _judges of the court_, as
|
||
> manifestly appeareth hereby.”—2 _Inst._, 229.
|
||
|
||
Coke also says, “It is a maxim in law, _aliquis non debet esse judex in
|
||
propria causa_, (no one ought to be judge in his own cause;) and
|
||
therefore a fine levied before the _baylifes of Salop_ was reversed,
|
||
because one of the _baylifes_ was party to the fine, _quia non potest
|
||
esse judex et pars_,” (because one cannot be _judge_ and party.)—_1
|
||
Inst._, 141 a.
|
||
|
||
In the statute of Gloucester, ch. 11 and 12, (1278,) “the mayor and
|
||
_bailiffs_ of London (undoubtedly chosen by the people, or at any rate
|
||
not appointed by the king) are manifestly spoken of as _judges_, or
|
||
magistrates, holding _jury_ trials, as follows:
|
||
|
||
> _Ch. II._ “It is provided, also, that if any man lease his tenement
|
||
> in the city of London, for a term of years, and he to whom the
|
||
> freehold belongeth causeth himself to be impleaded by collusion, and
|
||
> maketh default after default, or cometh into court and giveth it up,
|
||
> for to make the termor (lessee) lose his term, (lease,) and the
|
||
> demandant hath his suit, so that the termor may recover by writ of
|
||
> covenant; _the mayor and bailiffs may inquire by a good inquest_,
|
||
> (_jury_,) in the presence of the termor and the demandant, whether
|
||
> the demandant moved his plea upon good right that he had, or by
|
||
> collusion, or fraud, to make the termor lose his term; and if it be
|
||
> found by the inquest (jury) that the demandant moved his plea upon
|
||
> good right that he had, the judgment shall be given forthwith; and if
|
||
> it be found by the inquest (jury) that he impleaded him (self) by
|
||
> fraud, to put the termor from his term, then shall the termor enjoy
|
||
> his term, and the execution of judgment for the demandant shall be
|
||
> suspended until the term be expired.”—_6 Edward I._, ch. 11, (1278.)
|
||
|
||
> Coke, in his commentary on this chapter, calls this court of “the
|
||
> mayor and _bailiffs_” of London, “_the court of the hustings, the
|
||
> greatest and highest court in London;_” and adds, “other cities have
|
||
> the like court, and so called, as York, Lincoln, Winchester, &c. Here
|
||
> the city of London is named; but it appeareth by that which hath been
|
||
> said out of Fleta, that this act extends to such cities and boroughs
|
||
> privileged,—that is, such as have such privilege to hold plea as
|
||
> London hath.”—_2 Inst._, 322.
|
||
|
||
The 12th chapter of the same statute is in the following words, which
|
||
plainly recognize the fact that “the mayor and _bailiffs_ of London” are
|
||
judicial officers holding courts in London.
|
||
|
||
> “It is provided, also, that if a man, impleaded for a tenement in the
|
||
> same city, (London,) doth vouch a foreigner to warranty, that he
|
||
> shall come into the chancery, and have a writ to summon his warrantor
|
||
> at a certain day before the justices of the bench, _and another writ
|
||
> to the mayor and bailiffs of London, that they shall surcease_
|
||
> (suspend proceedings) _in the matter that is before them by writ_,
|
||
> until the plea of the warrantee be determined before the justices of
|
||
> the bench; and when the plea at the bench shall be determined, then
|
||
> shall he that is vouched be commanded to go into the city,” (that is,
|
||
> before “the mayor and _bailiffs’_” court,) “to answer unto the chief
|
||
> plea; and a writ shall be awarded at the suit of the demandant by the
|
||
> justices _unto the mayor and bailiffs, that they shall proceed in the
|
||
> plea_,” &c.—_6 Edward I._, ch. 12, (1278.)
|
||
|
||
Coke, in his commentary on this chapter, also speaks repeatedly of “the
|
||
mayor and _bailiffs_” _as judges holding courts_; and also speaks of
|
||
this chapter as applicable not only to “the citie of London, specially
|
||
named for the cause aforesaid, but extended by equity to all other
|
||
privileged places,” (that is, privileged to have a court of “mayor and
|
||
_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_.
|
||
|
||
BAILIFFE.—_Baillif._ Fr. A bailiff: a ministerial officer with duties
|
||
similar to those of a sheriff.... _The judge of a court._ A municipal
|
||
magistrate, &c.—_Burrill’s Law Dict._
|
||
|
||
BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in
|
||
England, at an early period, (after the example, it is said, of the
|
||
French,) to the chief magistrates of counties, or shires, such as the
|
||
alderman, the reeve, or sheriff, and also of inferior jurisdictions,
|
||
such as hundreds and wapentakes.—_Spelman, voc. Balivus; 1 Bl. Com._,
|
||
344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in
|
||
the laws of Edward the Confessor, but Spelman thinks it was introduced
|
||
by a later hand. _Balliva_ (bailiwick) was the word formed from
|
||
_ballivus_, to denote the extent of territory comprised within a
|
||
bailiff’s jurisdiction; and _bailiwick_ is still retained in writs and
|
||
other proceedings, as the name of a sheriff’s county.—_1 Bl. Com._,
|
||
344. _See Balliva._ _The office of bailiff was at first strictly, though
|
||
not exclusively, a judicial one._ In France, the word had the sense of
|
||
what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in
|
||
the _Regiam Majestatem_, in the sense of a _judge_.—_Spelman._ In its
|
||
sense of a _deputy_, it was formerly applied, in England, to those
|
||
officers who, by virtue of a deputation, either from the sheriff or the
|
||
lords of private jurisdictions, exercised within the hundred, or
|
||
whatever might be the limits of their bailiwick, certain _judicial_ and
|
||
ministerial functions. With the disuse of private and local
|
||
jurisdictions, the meaning of the term became commonly restricted to
|
||
such persons as were deputed by the sheriff to assist him in the merely
|
||
ministerial portion of his duty; such as the summoning of juries, and
|
||
the execution of writs.—_Brande._ ... The word _bailiff_ is also
|
||
applied in England to the chief magistrates of certain towns and
|
||
jurisdictions, to the keepers of castles, forests and other places, and
|
||
to the stewards or agents of lords of manors.—_Burrill’s Law Dict._
|
||
|
||
“BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus
|
||
provinciæ_,) signifies an officer appointed for the administration of
|
||
justice within a certain district. The office, as well as the name,
|
||
appears to have been derived from the French,” &c.,—_Brewster’s
|
||
Encyclopedia._
|
||
|
||
Millar says, “The French monarchs, about this period, were not content
|
||
with the power of receiving appeals from the several courts of their
|
||
barons. An expedient was devised of sending royal _bailiffs_ into
|
||
different parts of the kingdom, with a commission to take cognizance of
|
||
all those causes in which the sovereign was interested, and in reality
|
||
for the purpose of abridging and limiting the subordinate jurisdiction
|
||
of the neighboring feudal superiors. By an edict of Phillip Augustus, in
|
||
the year 1190, those _bailiffs_ were appointed in all the principal
|
||
towns of the kingdom.”—_Millar’s Hist. View of the Eng. Gov._, vol.
|
||
ii., ch. 3, p. 126.
|
||
|
||
> “BAILIFF-_office_.—Magistrates who formerly administered justice in
|
||
> the parliaments or courts of France, answering to the English
|
||
> sheriffs, as mentioned by Bracton.”—_Bouvier’s Law Dict._
|
||
|
||
> “There be several officers called _bailiffs_, whose offices and
|
||
> employments seem quite different from each other.... The chief
|
||
> magistrate, in divers ancient corporations, are called _bailiffs_, as
|
||
> in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers
|
||
> of the forest, who are termed bailiffs.”—_1 Bacon’s Abridgment_,
|
||
> 498-9.
|
||
|
||
> “BAILIFF signifies a keeper or superintendent, and is directly
|
||
> derived from the French word _bailli_, which appears to come from the
|
||
> word _balivus_, and that from _bagalus_, a Latin word signifying
|
||
> generally a governor, tutor, or superintendent.... The French word
|
||
> _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
|
||
> 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
|
||
> intrusted to them by their superior.”—_Political Dictionary._
|
||
|
||
“BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus
|
||
provinciæ_, and as the name, so the office itself was answerable to that
|
||
of France, where there were eight parliaments, which were high courts
|
||
from whence there lay no appeal, and within the precincts of the several
|
||
parts of that kingdom which belonged to each parliament, _there were
|
||
several provinces to which justice was administered by certain officers
|
||
called bailiffs_; and in England we have several counties in which
|
||
justice hath been, and still is, in small suits, administered to the
|
||
inhabitants by the officer whom we now call _sheriff_, or _viscount_;
|
||
(one of which names descends from the Saxons, the other from the
|
||
Normans.) And, though the sheriff is not called _bailiff_, yet it was
|
||
probable that was one of his names also, because the county is often
|
||
called _balliva_; as in the return of a writ, where the person is not
|
||
arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus
|
||
in balliva mea_, &c.; (the within named A.B. is not found in my
|
||
bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3,
|
||
ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as
|
||
bailiffs of hundreds.
|
||
|
||
“_Bailies_, in Scotland, are magistrates of burghs, possessed of certain
|
||
jurisdictions, having the same power within their territory as sheriffs
|
||
in the county....
|
||
|
||
“As England is divided into counties, so every county is divided into
|
||
hundreds; within which, in ancient times, the people had justice
|
||
administered to them by the several officers of every hundred, which
|
||
were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch.
|
||
34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and
|
||
approvers; but since that time the hundred courts, except certain
|
||
franchises, are swallowed in the county courts; and now the _bailiff’s_
|
||
name and office is grown into contempt, they being generally officers to
|
||
serve writs, &c., within their liberties; though, in other respects, the
|
||
name is still in good esteem, for the chief magistrates in divers towns
|
||
are called _bailiffs_; and sometimes the persons to whom the king’s
|
||
castles are committed are termed _bailiffs_, as the _bailiff_ of Dover
|
||
Castle, &c.
|
||
|
||
“Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of
|
||
liberties; sheriffs’ _bailiffs_; _bailiffs_ of lords of manors;
|
||
_bailiffs_ of husbandry, &c....
|
||
|
||
“_Bailiffs_ of liberties or franchises are to be sworn to take
|
||
distresses, truly impanel jurors, make returns by indenture between them
|
||
and sheriffs, &c....
|
||
|
||
“_Bailiffs of courts baron_ summon those courts, and execute the process
|
||
thereof....
|
||
|
||
“Besides these, there are also _bailiffs of the forest_ ...”—_Jacob’s
|
||
Law Dict. Tomlin’s do._
|
||
|
||
“BAILIWICK, _balliva_,—is not only taken for the county, but signifies
|
||
generally that liberty which is exempted from the sheriff of the county,
|
||
over which the lord of the liberty appointeth a _bailiff_, with such
|
||
powers within his precinct as an under-sheriff exerciseth under the
|
||
sheriff of the county; such as the _bailiff_ of Westminster.”—_Jacob’s
|
||
Law Dict. Tomlin’s do._
|
||
|
||
“_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis,
|
||
Manerii._—He is one that is appointed by the lord, or his steward,
|
||
within every manor, to do such offices as appertain thereunto, as to
|
||
summon the court, warn the tenants and resiants; also, to summon the
|
||
Leet and Homage, levy fines, and make distresses, &c., of which you may
|
||
read at large in _Kitchen’s Court-leet and Court-baron_.”—_A Law
|
||
Dictionary, anonymous_, (_in Suffolk Law Library_.)
|
||
|
||
“BAILIFF.—In England an officer appointed by the sheriff. Bailiffs are
|
||
either special, and appointed, for their adroitness, to arrest persons;
|
||
or bailiffs of hundreds, who collect fines, summon juries, attend the
|
||
assizes, and execute writs and processes. _The sheriff in England is the
|
||
king’s bailiff...._
|
||
|
||
“_The office of bailiff formerly was high and honorable in England, and
|
||
officers under that title on the continent are still invested with
|
||
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
|
||
of magistrate.”—_Boyer’s French Dict._
|
||
|
||
“By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any
|
||
judge_.”—_Cunningham’s Law Dict._
|
||
|
||
“BAILIFF.—In the court of the Greek emperors there was a grand
|
||
_bajulos_, first tutor of the emperor’s children. The superintendent of
|
||
foreign merchants seems also to have been called _bajulos_; and, as he
|
||
was appointed by the Venetians, this title (balio) was transferred to
|
||
the Venetian ambassador. From Greece, the official _bajulos_
|
||
(_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced
|
||
into the south of Europe, and denoted a superintendent; hence the eight
|
||
_ballivi_ of the knights of St. John, which constitute its supreme
|
||
council. In France, the royal bailiffs were commanders of the militia,
|
||
administrators or stewards of the domains, _and judges of their
|
||
districts_. In the course of time, only the first duty remained to the
|
||
bailiff; hence he was _bailli d’épée_, _and laws were administered in
|
||
his name by a lawyer, as his deputy, lieutenant de robe_. The
|
||
seigniories, with which high courts were connected, employed bailiffs,
|
||
who thus constituted, almost everywhere, _the lowest order of judges_.
|
||
From the courts of the nobility, the appellation passed to the royal
|
||
courts; from thence to the parliaments. In the greater bailiwicks of
|
||
cities of importance, Henry II. established a collegial constitution
|
||
under the name of _presidial courts_.... _The name of bailiff was
|
||
introduced into England with William I._ The counties were also called
|
||
_bailiwicks_, (_ballivæ_,) while the subdivisions were called
|
||
_hundreds_; but, as the courts of the hundreds have long since ceased,
|
||
the English bailiffs are only a kind of subordinate officers of justice,
|
||
like the French _huissiers_. These correspond very nearly to the
|
||
officers called _constables_ in the United States. Every sheriff has
|
||
some of them under him, for whom he is answerable. In some cities the
|
||
highest municipal officer yet bears this name, as the high bailiff of
|
||
Westminster. In London, the Lord Mayor is at the same time bailiff,
|
||
(which title he bore before the present became usual,) _and administers,
|
||
in this quality, the criminal jurisdiction of the city, in the court of
|
||
old Bailey_, where there are, annually, eight sittings of the court, for
|
||
the city of London and the county of Middlesex. _Usually, the recorder
|
||
of London supplies his place as judge._ In some instances the term
|
||
_bailiff_, in England, is applied to the chief magistrates of towns, or
|
||
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._
|
||
|
||
[^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
|
||
Carta, that “no _bailiff_ from henceforth shall put any man to his open
|
||
law, (put him on trial,) nor to an oath (that is, an oath of
|
||
self-exculpation) upon his (the bailiff’s) own accusation or testimony,
|
||
without credible witnesses brought in to prove the charge,” _is itself_
|
||
a “provision in regard to the king’s justices sitting in criminal
|
||
trials,” and therefore implies that _they are to sit_ in such trials.
|
||
|
||
But, although the word _bailiff_ includes all _judicial_, as well as
|
||
other, officers, and would therefore in this case apply to the king’s
|
||
justices, if they were to sit in criminal trials; yet this particular
|
||
chapter of Magna Carta evidently does not contemplate “_bailiffs_” while
|
||
acting in their _judicial_ capacity, (for they were not allowed to sit
|
||
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]
|
||
|
||
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
|
||
Carta; but simply “no bailiff,” &c. The prohibition, therefore, applies
|
||
to all “bailiffs,”—to those chosen by the people, as well as those
|
||
appointed by the king. And the prohibition is obviously founded upon the
|
||
idea (a very sound one in that age certainly, and probably also in this)
|
||
that public officers (whether appointed by king or people) have
|
||
generally, or at least frequently, too many interests and animosities
|
||
against accused persons, to make it safe to convict any man on their
|
||
testimony alone.
|
||
|
||
The idea of Coke and others, that the object of this chapter was simply
|
||
to forbid _magistrates_ to put a man on trial, when there were no
|
||
witnesses against him, but only the simple accusation or testimony of
|
||
the magistrates themselves, before whom he was to be tried, is
|
||
preposterous; for that would be equivalent to supposing that magistrates
|
||
acted in the triple character of judge, jury and witnesses, _in the same
|
||
trial_; and that, therefore, _in such cases_, they needed to be
|
||
prohibited from condemning a man on their own accusation or testimony
|
||
alone. But such a provision would have been unnecessary and senseless,
|
||
for two reasons; first, because the bailiffs or magistrates had no power
|
||
to “hold pleas of the crown,” still less to try or condemn a man; that
|
||
power resting wholly with the juries; second, because if bailiffs or
|
||
magistrates could try and condemn a man, without a jury, the prohibition
|
||
upon their doing so upon their own accusation or testimony alone, would
|
||
give no additional protection to the accused, so long as these same
|
||
bailiffs or magistrates were allowed to decide what weight should be
|
||
given, _both to their own testimony and that of other witnesses_; for,
|
||
if they wished to convict, they would of course decide that any
|
||
testimony, however frivolous or irrelevant, _in addition to their own_,
|
||
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.
|
||
|
||
[^94]: In this chapter I have called the justices “_presiding_
|
||
officers,” solely for the want of a better term. They are not
|
||
“_presiding_ officers,” in the sense of having any authority over the
|
||
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.
|
||
|
||
[^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.
|
||
|
||
[^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.
|
||
|
||
[^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._
|
||
|
||
[^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.
|