An Essay on the Trial by Jury Part 20

_Ex uno disce omnes._ From one judge learn the characters of all.[91]

I give in the note additional and abundant authorities for the meaning ascribed to the word _bailiff_. The importance of the principle involved will be a sufficient excuse for such an acc.u.mulation of authorities as would otherwise be tedious and perhaps unnecessary.[92]

The foregoing interpretation of the chapter of Magna Carta now under discussion, is corroborated by another chapter of Magna Carta, which specially provides that the king's justices shall "go through every county" to "take the a.s.sizes" (hold jury trials) in three kinds of _civil_ actions, to wit, "novel disseisin, mort de ancestor, and darrein presentment;" but makes no mention whatever of their holding jury trials in _criminal_ cases,--an omission wholly unlikely to be made, if it were designed they should attend the trial of such causes. Besides, the chapter here spoken of (in John's charter) does not allow these justices to sit _alone_ in jury trials, even in _civil_ actions; but provides that four knights, chosen by the county, shall sit with them to keep them honest. When the king's justices were known to be so corrupt and servile that the people would not even trust them to sit alone, in jury trials, in _civil_ actions, how preposterous is it to suppose that they would not only suffer them to sit, but to sit alone, in _criminal_ ones.

It is entirely incredible that Magna Carta, which makes such careful provision in regard to the king's justices sitting in civil actions, should make no provision whatever as to their sitting in _criminal_ trials, if they were to be allowed to sit in them at all. Yet Magna Carta has no provision whatever on the subject.[93]

But what would appear to make this matter absolutely certain is, that unless the prohibition that "no bailiff, &c., _of ours_ shall hold pleas of our crown," apply to all officers of the king, justices as well as others, it would be wholly nugatory for any practical or useful purpose, because the prohibition could be evaded by the king, at any time, by simply changing the t.i.tles of his officers. Instead of calling them "sheriffs, coroners, constables and bailiffs," he could call them "_justices_," or anything else he pleased; and this prohibition, so important to the liberty of the people, would then be entirely defeated.

The king also could make and unmake "justices" at his pleasure; and if he could appoint any officers whatever to preside over juries in criminal trials, he could appoint any tool that he might at any time find adapted to his purpose. It was as easy to make justices of Jeffreys and Scroggs, as of any other material; and to have prohibited all the king's officers, _except his justices_, from presiding in criminal trials, would therefore have been mere fool's play.

We can all perhaps form some idea, though few of us will be likely to form any adequate idea, of what a different thing the trial by jury would have been _in practice_, and of what would have been the difference to the liberties of England, for five hundred years last past, had this prohibition of Magna Carta, upon the king's officers sitting in the trial of criminal cases, been observed.

The principle of this chapter of Magna Carta, as applicable to the governments of the United States of America, forbids that any officer appointed either by the executive or _legislative_ power, or dependent upon them for their salaries, or responsible to them by impeachment, should preside over a jury in criminal trials. To have the trial a legal (that is, a _common law_) and true trial by jury, the presiding officers must be chosen by the people, and be entirely free from all dependence upon, and all accountability to, the executive and legislative branches of the government.[94]

[Footnote 87: The proofs of this principle of the common law have already been given on page 120, _note_.

There is much confusion and contradiction among authors as to the manner in which sheriffs and other officers were appointed; some maintaining that they were appointed by the king, others that they were elected by the people. I imagine that both these opinions are correct, and that several of the king's officers bore the same official names as those chosen by the people; and that this is the cause of the confusion that has arisen on the subject.

It seems to be a perfectly well established fact that, at common law, several magistrates, bearing the names of aldermen, sheriffs, stewards, coroners and bailiffs, were chosen by the people; and yet it appears, from Magna Carta itself, that some of the _king's_ officers (of whom he must have had many) were also called "sheriffs, constables, coroners, and bailiffs."

But Magna Carta, in various instances, speaks of sheriffs and bailiffs as "_our_ sheriffs and bailiffs;" thus apparently intending to recognize the distinction between officers _of the king_, bearing those names, and other officers, bearing the same official names, but chosen by the people. Thus it says that "no sheriff or bailiff _of ours_, or any other (officer), shall take horses or carts of any freeman for carriage, unless with the consent of the freeman himself."--_John's Charter_, ch.

36.

In a kingdom subdivided into so many counties, hundreds, t.i.things, manors, cities and boroughs, each having a judicial or police organization of its own, it is evident that many of the officers must have been chosen by the people, else the government could not have maintained its popular character. On the other hand, it is evident that the king, the executive power of the nation, must have had large numbers of officers of his own in every part of the kingdom. And it is perfectly natural that these different sets of officers should, in many instances, bear the same official names; and, consequently that the king, when speaking of his own officers, as distinguished from those chosen by the people, should call them "our sheriffs, bailiffs," &c., as he does in Magna Carta.

I apprehend that inattention to these considerations has been the cause of all the confusion of ideas that has arisen on this subject,--a confusion very evident in the following paragraph from Dunham, which may be given as an ill.u.s.tration of that which is exhibited by others on the same points.

"Subordinate to the ealdormen were the _gerefas_, the sheriffs, or reeves, _of whom there were several in every shire, or county_.

_There was one in every borough, as a judge._ There was one at every gate, who witnessed purchases outside the walls; and there was one, higher than either,--the high sheriff,--who was probably the reeve of the shire. This last _appears_ to have been appointed by the king.

Their functions were to execute the decrees of the king, or ealdormen, to arrest prisoners, to require bail for their appearance at the sessions, to collect fines or penalties levied by the court of the shire, to preserve the public peace, _and to preside in a subordinate tribunal of their own_."--_Dunham's Middle Ages_, sec. 2, B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41.

The confusion of _duties_ attributed to these officers indicates clearly enough that different officers, bearing, the same official names, must have had different duties, and have derived their authority from different sources,--to wit, the king, and the people.]

[Footnote 88: _Darrein presentment_ was an inquest to discover who presented the last person to a church; _mort de ancestor_, whether the last possessor was seized of land in demesne of his own fee; and _novel disseisin_, whether the claimant had been unjustly disseized of his freehold.]

[Footnote 89: He has no power to do it, _either with, or without, the king's command_. The prohibition is absolute, containing no such qualification as is here interpolated, viz., "_without the king's command_." If it could be done _with_ the king's command, the king would be invested with arbitrary power in the matter.]

[Footnote 90: The absurdity of this doctrine of c.o.ke is made more apparent by the fact that, at that time, the "justices" and other persons appointed by the king to hold courts were not only dependent upon the king for their offices, and removable at his pleasure, _but that the usual custom was, not to appoint them with any view to permanency, but only to give them special commissions for trying a single cause, or for holding a single term of a court, or for making a single circuit; which, being done, their commissions expired_. The king, therefore, could, _and undoubtedly did, appoint any individual he pleased, to try any cause he pleased, with a special view to the verdicts he desired to obtain in the particular cases_.

This custom of commissioning particular persons to hold jury trials, in _criminal_ cases, (and probably also in _civil_ ones,) was of course a usurpation upon the common law, but had been practised more or less from the time of William the Conqueror. Palgrave says:

"The frequent absence of William from his insular dominions occasioned another mode of administration, _which ultimately produced still greater changes in the law_. It was the practice of appointing 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 a.s.signed 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 from the burden of his judicial functions.... The number as well as the variety of names of the justices appearing in the early chirographs of 'Concords,' leave reason for doubting whether, anterior to the reign of Henry III., (1216 to 1272,) _a court, whose members were changing at almost every session, can be said to have been permanently const.i.tuted. It seems more probable that the individuals who composed the tribunal were selected as suited the pleasure of the sovereign, and the convenience of the clerks and barons_; and the history of our legal administration will be much simplified, if we consider all those courts which were afterwards denominated the Exchequer, the King's Bench, the Common Pleas, and the Chancery, _as being originally committees, selected by the king when occasion required_, out of a large body, for the despatch of peculiar branches of business, _and which committees, by degrees, a.s.sumed an independent and permanent existence_.... Justices itinerant, who, despatched throughout the land, decided the 'Pleas of the Crown,' may be obscurely traced in the reign of the Conqueror; _not, perhaps, appointed with much regularity, but despatched upon peculiar occasions and emergencies_."--_1 Palgrave's Rise and Progress_, &c., p. 289 to 293.

The following statute, pa.s.sed in 1354, (139 years after Magna Carta,) shows that even after this usurpation of appointing "justices" of his own, to try criminal cases, had probably become somewhat established in practice, in defiance of Magna Carta, the king was in the habit of granting special commissions to still other persons, (especially to sheriffs,--_his_ sheriffs, no doubt,) to try particular cases:

"Because that the people of the realm have suffered many evils and mischiefs, for that sheriffs of divers counties, by virtue of commissions and general writs granted to them at their own suit, for their singular profit to gain of the people, have made and taken divers inquests to cause to indict the people at their will, and have taken fine and ransom of them to their own use, and have delivered them; whereas such persons indicted were not brought before the king's justices to have their deliverance, it is accorded and established, for to eschew all such evils and mischiefs, that such commissions and writs before this time made shall be utterly repealed, and that from henceforth no such commissions shall be granted."--_St. 28 Edward III._, ch. 9, (1354.)

How silly to suppose that the illegality of these commissions to try criminal cases, could have been avoided by simply granting them to persons under the t.i.tle of "_justices_," instead of granting them to "_sheriffs_." The statute was evidently a cheat, or at least designed as such, inasmuch as it virtually a.s.serts the right of the king to appoint his tools, under the name of "justices," to try criminal cases, while it _disavows_ his right to appoint them under the name of "sheriffs."

Millar says: "When the king's bench came to have its usual residence at Westminster, the sovereign was induced to _grant special commissions, for trying particular crimes_, in such parts of the country as were found most convenient; and this practice was _gradually_ modelled into a regular appointment of certain 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 a.s.sumption that _they_, (and _not the people_, as by the _common law_,) were the fountains of justice. It was only by virtue of this illegal a.s.sumption 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.]

[Footnote 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 ent.i.tled 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 ent.i.tled 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 a.s.sume to determine that certain statutes, in restraint of individual liberty, are within the const.i.tutional 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 pa.s.sed 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 const.i.tutions, (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.]

[Footnote 92: c.o.ke, 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.

c.o.ke 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.)

c.o.ke, 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.)

c.o.ke, 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 munic.i.p.al 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 munic.i.p.al 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 _just.i.tia 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 a.s.sist 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., _Praefectus provinciae_,) 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 princ.i.p.al towns of the kingdom."--_Millar's Hist. View of the Eng. Gov._, vol.