An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗

Chapter 7 (Illegal Judges) Pg 131

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.

 

Chapter 7 (Illegal Judges) Pg 132

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

Chapter 7 (Illegal Judges) Pg 133

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

Chapter 7 (Illegal Judges) Pg 134

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