Essay on the Trial by Jury — Ch 7 – Part 2 – Illegal Judges

[6] 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.

[7] 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, aliguis 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 Salopwas 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."

4 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, &e;.

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 beach, and another writ to the mayor and bailiff 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," &e;.

2 Inst.

, 325 7. BAILIE.

In Scotch law, a municipal magistrate, corresponding with the English alderman.

[8] Burrill's Law Dictionary.

BAILLIFFE 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. , 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 principal towns of the kingdom."

Millar's Hist.

View of the Eng.

Gov. , vol. ii.

, ch. 8, 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, &e;.

:) 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, [9] 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, praefectus provinciae, 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.

8, 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 bailiffof Dover Castle, &c;.

, "Of the ordinary bailiffs there are several sorts, viz.

, bailiffsof 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 Letae, 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.

) "Bailliff In England an officer appointed by the sheriff.

Bailiff's 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'epee, 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, (bailivae,) 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 someof 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."

Encyclopaedia Americana.

[8] 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.

[9] "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.

[10] 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 areto 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."

[11] 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, applied 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 case, 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.

[11] 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 reestablished.

[12] 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.