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superseded by other words; and it therefore now, more generally,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.
[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.