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.[87]
But previous to Magna Carta, the kings had adopted 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;"[88] 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 _bailiff_ 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judicial officers, has been superseded by other words; and it therefore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 he 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 caetero ponat aliquem 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_,[89] 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 be tried before the king's _justices, on
account of their superior learning_; and that it permitted all lesser
offences 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.[90]
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.[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 accumulation 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 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
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 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.[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, 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
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 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_."--_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 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.[95] ... The justices who were assigned in the name of
the sovereign, and whose powers were revocable at his pleasure,
derived their authority merely from their grant.... Some of those
judges were usually deputed for the purpose of relieving the king
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 cases, 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_ 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 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.]
[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 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.]
[Footnote 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., _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. 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, _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. 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 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_.)
"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'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_, (_ballivae_,) 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."--_Encyclopaedia Americana._]
[Footnote 93: Perhaps it may be said (and such, it has already been
seen, is the opinion of Coke and others) that the chapter of Magna
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.]
[Footnote 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.]
[Footnote 95: In this extract, Palgrave seems to assume that the king
himself had a right to sit as judge, in _jury_ trials, in the _county_
courts, in both civil and criminal cases. I apprehend he had no such
power at the _common law_, but only to sit in the trial of appeals, and
in the trial of peers, and of civil suits in which peers were parties,
and possibly in the courts of ancient demesne.]
[Footnote 96: _Alderman_ was a title anciently given to various
_judicial_ officers, as the Alderman of all England, Alderman of the
King, Alderman of the County, Alderman of the City or Borough, Alderman
of the Hundred or Wapentake. These were all _judicial_ officers. See Law
Dictionaries.]
[Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that
hold lands of the crown, (except some privileged officers and citizens,)
are summoned to meet at a certain place in order to serve the king in
his wars, either personally, or by proxy."--_Boyer._]
[Footnote 98: At the common law, parties, in both civil and criminal
cases, were allowed to swear in their own behalf; and it will be so
again, if the true trial by jury should be reestablished.]