Essay on the Trial by Jury — Ch 7 – Part 1 – Illegal Judges

IT is a principle of Magna Carta, and therefore of the trial by jury, (for all parts of Magna Carta must be construed together,) that no judge or other officer appointed by the king, shall preside in jury trials, in criminal cases, or "pleas of the crown."

This provision is contained in the great charters of both John and Henry, and is second in importance only to the provision guaranteeing the trial by jury, of which it is really a part.

Consequently, without the observance of this prohibition, there can be no genuine or legal that is, common law trial by jury.

At the common law, all officers who held jury trials, whether in civil or criminal cases, were chosen by the people.

[1] But previous to Magna Carta, the kings had adapted the practice of sending officers of their own appointment, called justices, into the counties, to hold jury trials in some cases; and Magna Carta authorizes this practice to be continued so far as it relates to three kinds of civil actions, to wit: "novel disseisin, mort de ancestor, and darrein presentment;" [2] but specially forbids its being extended to criminal cases, or pleas of the crown.

This prohibition is in these words: "Nullus vicecomes, constabularius, coronator, vel alii balivi nostri, teneant placita coronae nostrae."

(No sheriff, constable, coroner, or other our bailiffs, shall hold pleas of our crown.

) John's Charter, ch. 53, Henry's ditto, ch. 17. Some persons seem to have supposed that this was a prohibition merely upon officers bearing the specific names of "sheriffs, constables, coroners and bailiffs," to hold criminal trials.

But such is not the meaning.

If it were, the name could be changed, and the thing retained; and thus the prohibition be evaded.

The prohibition applies (as will presently be seen) to all officers of the king whatsoever; and it sets up a distinction between officers of the king, ("our bailiffs,") and officers chosen by the people.

The prohibition upon the king's justices sitting in criminal trials, is included in the words "vel alii balivi nostri," (or other our bailiffs.

) The word bailif was anciently a sort of general name for judicial officers and persons employed in and about the administration of justice.

In modern times its use, as applied to the higher grades of judicial officers, has been superseded by other words; and it therefore now, more generally, if not universally, signifies an executive or police officer, a servant of courts, rather than one whose functions are purely judicial.

The word is a French word, brought into England by the Normans.

Coke says, "Baylife is a French word, and signifies an officer concerned in the administration of justice of a certain province;

and because a sheriff hath an office concerning the administration of justice within his county, or bailiwick, therefore be called his county baliva sua, (his bailiwick.

) "I have heard great question made what the true exposition of this word balivus is.

In the statute of Magna Carta, cap.

28, the letter of that statute is, nullus balivus de eaetero ponat aliqnem ad legem manifestam nec ad juramentum simplici loquela sua sine testibus fidelibus ad hoc inductis."

(No bailiff from henceforth shall put any one to his open law, nor to an oath {of self-exculpation) upon his own simple accusation, or complaint, without faithful witnesses brought in for the same.

) "And some have said that balivus in this statute signifieth any judge; for the law must be waged and made before the judge.

And this statute (say they) extends to the courts of common pleas, king's bench, &c;.

, for they must bring with them fideles testes, (faithful witnesses,) &c;.

, and so hath been the usage to this day."

1 Coke's Inst.

, 168 b. Coke makes various references, in his margin to Bracton, Fleta, and other authorities, which I have not examined, but which, I presume, support the opinion expressed in this quotation.

Coke also, in another place, under the head of the chapter just cited from Magna Carta, that "no bailiff shall put any man to his open law," &c;.

, gives the following commentary upon it, from the Mirror of Justices, from which it appears that in the time of Edward I. , (1272 to 1307,) this word balivus was understood to include all judicial, as well as all other, officers of the king.

The Mirror says: "The point which forbiddeth that no bailiff put a freeman to his oath without suit, is to be understood in this manner, that no justice, no minister of the king, nor other steward, nor bailiff, have power to make a freeman make oath, (of self-exculpation,) without the king's command, [3] nor receive any plaint, without witnesses present who testify the plaint to be true."

Mirror of Justices, ch. 5, sec.

2, p. 257. Coke quotes this commentary, (in the original French,) and then endorses it in these words: "By this it appeareth, that under this word balivus, in this act, is comprehended every justice, minister of the king, steward, and bailiff."

2 Inst.

, 44. Coke also, in his commentary upon this very chapter of Magna Carta, that provides that "no sheriff; constable; coroner, or other our bailiffs, shall hold pleas of our crown," expresses the opinion that it "is a general law," (that is, applicable to all officers of the king,) " by reason of the words vel alii balivi nostri, (or other our bailiffs,) under which words are comprehended all judges or justices of any courts of justice.

"And he cites a decision in the king's bench, in the 17th year of Edward I. , (1289,) as authority; which decision he calls "a notable and leading judgment."

2 Inst.

, 30 1. And yet Coke, in flat contradiction of this decision, which he quotes with such emphasis and approbation, and in flat contradiction also of the definition he repeatedly gives of the word balivus showing that it embraced all ministers of the king whatsoever, whether high or low, judicial or executive, fabricates an entirely gratuitous interpretation of this chapter of Magna Carta, and pretends that after all it only required that felonies should he tried before the king's justices, on account of their superior Iearning; and that it permitted all lesser offenses to be tried before inferior officers, (meaning of course the king's inferior officers.

) 2 Inst.

, 30. And thus this chapter of Magna Carta, which, according to his own definition of the word balivus, applies to all officers of the king; and which, according to the common and true definition of the term "pleas of the crown," applies to all criminal cases without distinction, and which, therefore, forbids any officer or minister of the king to preside in a jury trial in any criminal case whatsoever, he coolly and gratuitously interprets into a mere senseless provision for simply restricting the discretion of the king in giving names to his own officers who should preside at the trials of particular offences; as if the king, who made and unmade all his officers by a word, could not defeat the whole object of the prohibition, by appointing such individuals as he pleased, to try such causes as he pleased, and calling them by such names as he pleased, if he were but permitted to appoint and name such officers at all; and as if it were of the least importance what name an officer bore, whom the king might appoint to a particular duty.

[4] Coke evidently gives this interpretation solely because, as he was giving a general commentary on Magna Carta, he was bound to give some interpretation or other to every chapter of it; and for this chapter he could invent, or fabricate, (for it is a sheer fabrication,) no interpretation better suited to his purpose than this.

It seems never to have entered his mind, (or if it did, he intended that it should never enter the mind of anybody else,) that the object of the chapter could be to deprive the king of the power of putting his creatures into criminal courts, to pack, cheat, and browbeat juries, and thus maintain his authority by procuring the conviction of those who should transgress his laws, or incur his displeasure.

This example of Coke tends to show how utterly blind, or how utterly corrupt, English judges, (dependent upon the crown and the legislature), have been in regard to everything in Magna Carta, that went to secure the liberties of the people, or limit the power of the government.

Coke's interpretation of this chapter of Magna Carta is of a piece with his absurd and gratuitous interpretation of the words "nec super eum ibimus, nec super eum mittemus," which was pointed out in a former article, and by which he attempted to give a judicial power to the king and his judges, where Magna Carta had given it only to a jury.

It is also of a piece with his pretence that there was a difference between fine and amercement, and that fines might be imposed by the king, and that juries were required only for fixing amercements.

These are some of the innumerable frauds by which the English people have been cheated out of the trial by jury.

Ex uno disce omnes.

From one judge learn the characters of all.

[6] 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 accumulation of authorities as would otherwise be tedious and perhaps unnecessary.

[7] 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 assizes" (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 here spoken of (in John's charter) does not allow these justices to sit alone in jury trials, even in civilactions; 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.

[10] But what would appear to make this matter ahsolute1y 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 titles 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.

[12] [1] 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, sheriff, 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 sheriff's 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, tithings, 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 mainlined 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 illustration 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."

Durham'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.

[2] Darrein presentement 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.

[3] 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.

[4] The absurdity of this doctrine of Coke 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.

[5] ..

The justices who were assigned in the name of the sovereign, and whose powers were revocable at his pleasure, derived their authority merely from their grant...

Some of those judges were usually deputed for the purpose of relieving the king 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 constituted.

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, assumed 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, passed 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 eases, could have been avoided by simply granting them to persons under the title of "justices," instead of granting them to "sheriffs."

The statute was evidently a cheat, or at least designed as such, inasmuch as it virtually asserts 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 modeled 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. l.

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 eases, 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.

[5] 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.