 CHAPTER VI Juries of the present day illegal. It may probably be safely asserted that there are, at this day, no legal juries, either in England or America, and if there are no legal juries, there is, of course, no legal trial nor judgment by jury. In saying that there are probably no legal juries, I mean that there are probably no juries appointed in conformity with the principles of the common law. The term jury is a technical one, derived from the common law, and when the American constitutions provide for the trial by jury, they provide for the common law trial by jury, and not merely for any trial by jury that the government itself may chance to invent and call by that name. It is the thing, and not merely the name, that is guaranteed. Any legislation, therefore, that infringes any essential principle of the common law in the selection of jurors is unconstitutional, and the juries selected in accordance with such legislation are, of course, illegal, and their judgments void. It will also be shown in a subsequent chapter on the English Constitution, that since Magna Carta, the legislative power in England, whether king or parliament, has never had any constitutional authority to infringe, by legislation, any essential principle of the common law in the selection of jurors. All such legislation is as much unconstitutional and void as though it abolished the trial by jury altogether. In reality, it does abolish it. That then are the essential principles of the common law controlling the selection of jurors. They are two, one, that all the freemen or adult male members of the state shall be eligible as jurors. Note, although all the freemen are legally eligible as jurors, anyone may nevertheless be challenged and set aside at the trial for any special personal disqualifications, such as mental or physical inability to perform the duties, having been convicted or being under charge of crime, interest, bias, etc., but it is clear that the common law allows none of these points to be determined by the court, but only the triers. End footnote. Any legislation which requires the selection of jurors to be made from a less number of freemen than the whole makes the jury selected an illegal one. If a part only of the freemen or members of the state are eligible as jurors, the jury no longer represent the country but only a part of the country. If the selection of jurors can be restricted to any less number of freemen than the whole, it can be restricted to a very small portion of the whole, and thus the government be taken out of the hands of the country or the whole people and be thrown into the hands of a few. And at common law, the whole body of freemen where eligible as jurors is sufficiently proved, not only by the reason of the thing, but by the following evidence. First, everybody must be presumed eligible unless the contrary be shown. We have no evidence that I am aware of, of a prior date to Magna Carta, to disprove that all freemen were eligible as jurors unless it be the law of Ethelred, which requires that they be elderly men. Note, what was the precise meaning of the Saxon word which I have here called elderly I do not know. In the Latin translation, it is rendered by Sonoris, which may perhaps mean simply those who have attained their majority. End footnote. Since no specific age is given, it is probable, I think, that this statute meant nothing more than that they be more than twenty-one years old. If it meant anything more, it was probably contrary to the common law and therefore void. Second, since Magna Carta we have evidence showing quite conclusively that all freemen above the age of twenty-one years were eligible as jurors. The mirror of justice is written within a century after Magna Carta in the section of judges, that is jurors, says, all those not forbidden by law may be judges, jurors. To women it is forbidden by law that they be judges. And thence it is that femme covee are exempted to do suit in inferior courts. On the other part of a lane cannot be a judge by reason of the two estates, which are a pugnance. Persons attained to false judgments cannot be judges, nor infants, nor any under the age of twenty-one years, nor infected persons, nor idiots, nor madmen, nor dev, nor dumb, nor parties in the pleas, nor men excommunicated by the bishop, nor criminal persons. And those who are not of the Christian faith cannot be judges, nor those who are out of the king's allegiance. In the section of inferior courts it is said, From the first assemblies came consistories, which we now call courts, and that in diverse places and in diverse manners, whereof the sheriffs held one monthly or every five weeks according to the greatness or largeness of the shires. And these courts are called county courts, where the judgment is by the suitors, if there be no writ, and is by warrant of jurisdiction ordinary. The other inferior courts are the courts of every lord of the fee, to the likeness of the hundred courts. There are other inferior courts, which the bailiffs hold in every hundred, from three weeks to three weeks, by the suitors of the freeholders of the hundred. All the tenants within the fees are bounden to do their suit there, and that not for the service of their persons, but for the service of their fees. But women, infants within the age of twenty-one years, dev, dumb, idiots, those who are indicted or appealed of mortal felony before they be acquitted, diseased persons, and excommunicated persons are exempted from doing suit. Mirror of Justices, fifty to fifty-one. In the section of sheriffs' taunts, it is said, the sheriffs by ancient ordinances hold several meetings twice in the year in every hundred, where all the freeholders within the hundred are bound to appear for the service of their fees. Mirror of Justices, page fifty. The following statute was passed by Edward I, seventy years after Magna Carta. For as much also as sheriffs, hundreders, and bailiffs of liberties, have used to grieve those which be placed under them, putting in assizes and juries men diseased into crepit, and having continual or sudden disease, and men also that dwell not in the country at the time of the summons, and summon also an unreasonable number of jurors for to extort money from some of them, for letting them go in peace, and so the assizes and juries pass many times by poor men, and the rich abide at home by reason of their bribes. It is ordained that from henceforth, in one assize, no more shall be summoned than four and twenty. And old men, above three score in ten years being continually sick, or being diseased at the time of the summons, or not dwelling in that country, shall not be put in juries of petite assizes. Statute thirteen, Edward I, chapter thirty-eight, twelve eighty-five. Although this command to the sheriffs and other officers not to summon as jurors, those who, from age and disease, were physically incapable of performing their duties, may not of itself afford any absolute or legal implication, by which we can determine precisely who were and who were not eligible as jurors at common law, yet the exceptions here may nevertheless carry a seeming confession with them that, at common law, all male adults were eligible as jurors. But the main principle of the feudal system itself shows that all the full and free adult male members of the state, that is, all who were free-born and had not lost their civil rights by crime or otherwise, must, at common law, have been eligible as jurors. What was that principle? It was that the state rested for support upon the land, and not upon taxation levied upon the people personally. The lands of the country were considered the property of the state, and were made to support the state in this way. A portion of them was set apart to the king, the rents of which went to pay his personal and official expenditures, not including the maintenance of armies or the administration of justice. War and the administration of justice were provided for in the following manner. The freemen, or the free-born adult male members of the state, who had not forfeited their political rights, were entitled to land of right until all the land was taken up, on condition of their rendering certain military and civil services to the state. The military services consisted in serving personally as soldiers or contributing an equivalent in horses, provisions, or other military supplies. The civil services consisted, among other things, in serving as jurors, and it would appear as witnesses in the courts of justice. For these services they received no compensation other than the use of their lands. In this way the state was sustained, and the king had no power to levy additional burdens or taxes upon the people. The persons holding lands on these terms were called free-holders. In later times freemen, meaning free and full members of the state. Now as the principle of the system was that the free-holders held their lands of the state, on the condition of rendering these military and civil services as rent for their lands, the principle implies that all the free-holders were liable to these rents, and were therefore eligible as jurors. Indeed, I do not know that it has ever been doubted that, at common law, all the free-holders were eligible as jurors. If all had not been eligible, we unquestionably should have had abundant evidence of these exceptions. And if anybody at this day allege any exceptions, the burden will be on him to prove them. The presumption clearly is that all were eligible. The first invasion which I find made by the English statutes upon the common law principle was made in 1285, seventy years after Magna Carta. It was then enacted as follows, Nor shall any be put in the sizes or juries, though they ought to be taken in their own shire, that hold the tenement of less than the value of twenty shillings yearly. And if such as sizes and juries be taken out of the shire, no one shall be placed in them who holds a tenement of less value than forty shillings yearly at the least, except such as be witnesses in deeds or other writings whose presence is necessary so that they be able to travel. Statute 13, Edward I, Chapter 38, 1285. The next invasion of the common law in this particular was made in 1414, about two hundred years after Magna Carta, when it was enacted, that no person shall be admitted to pass in any inquest upon trial the death of a man, nor in any inquest betwixt party and party in plea real, nor in plea personal, whereof the debt or the damage declared amount to forty marks if the same person have not lands or tenements of the yearly value of forty shillings above all charges of the same. Statute 14, Edward I, Chapter 38, 1414. Other statutes on this subject of the property qualifications of jurors are given in the note. In 1483 it was enacted by a statute entitled, of what credit and estate those jurors must be which shall be impaneled in the sheriff's turn, that no bailiff nor other officer from henceforth return or impaneled any sedge person in any shire of England to be taken or put in or upon any inquiry in any of the said turns, but such as be of good name and fame and having lands and tenements of free hold within the same shires to the yearly value of twenty shillings at the least, or else lands and tenements holding by custom of manner commonly called copyhold within the said shires to the yearly value of twenty six shillings eight pence over all charges at the least. 1 Richard III, Chapter 4, 1483. In 1486 it was enacted that the justices of the peace of every shire this realm for the time being may take by their discretion or inquest, whereof every man shall have lands and tenements to the yearly value of forty shillings at the least to inquire the concealments of others, etc., etc., III, Henry VII, Chapter 1, 1486. A statute passed in 1494 in regard to jurors in the city of London in Acts, that no person nor persons hereafter be impaneled, summoned, or sworn in any jury or inquest in courts within the same city of London, except he be of lands, tenements, or goods, and chattels to the value of forty marks, note within note, a mark with thirteen shillings and four pence, and note, and that no person or persons hereafter be impaneled, summoned, nor sworn in any jury or inquest in any court within the said city for lands or tenements or action personal, wherein the debt or damage amounted to the sum of forty marks or above except he be in lands, tenements, goods, or chattels to the value of one hundred marks, 11, Henry VII, Chapter 21, 1494. The statute IV of Henry VIII, Chapter III, Section IV, 1512, requires juries in London to have goods to the value of one hundred marks. In 1494 it was enacted that it shall be lawful to every sheriff of the counties of Southampton, Surrey, and Sussex to impanel and summons twenty-four lawful men of such inhabiting within the precinct of his or their turns as o' suit to the same turn, whereof every one hath lands or freehold to the yearly value of ten shillings or copy-hold lands to the yearly value of thirteen shillings four pence above all charges within any of the said counties, or men of less livelihood, if there be not so many there, notwithstanding the statute of one Richard III, Chapter IV, to endure to the next parliament, 11, Henry VII, Chapter 26, 1494. The statute was continued in force by 19 Henry VII, Chapter 16, 1503. In 1531 it was enacted that every person or persons being the king's natural subject born, which either by the name of citizen, or of freeman, or any other name, doth enjoy and use the liberties and privileges of any city, borough, or town-corporate, where he dwelleth and maketh his abode, being worth in movable goods and substance to the clear value of forty pounds, be henceforth admitted in trials of murderers and felonies in every sessions and jail delivery, to be kept and holden in, and for the liberty of such cities, boroughs, and towns-corporate, albeit they have no freehold, any act, statute, use, custom, or ordinance to the contrary thereof notwithstanding. 23 Henry VIII, Chapter 13, 1531. In 1585 it was enacted that in all cases were any jurors to be retained for trial of any issue or issues joined in any of the Queen's Majesty's courts of King's Bench, Common Pleas, and the Exchequer, or before justices of the Assize, by the laws of this realm now in force ought to have a state of freehold in lands, tenements, or heritaments, of the clear yearly value of forty shillings, that in every such case the jurors that shall be returned from and after the end of this present session of parliament, shall every of them have a state of freehold in lands, tenements, or heritaments, to the clear yearly value of four pounds at least, 27 Elizabeth, Chapter 6, 1585. In 1664-5 it was enacted that all jurors, other than strangers upon trials, there in the dictatum lingui, who are to be returned for the trials of issue joined in any of His Majesty's courts of King's Bench, Common Pleas, or the Exchequer, or before justices of Assize, or Macy Prous, Oyer and Terminer, Jail Delivery, or General or Quarter Sessions of the Peace, from and after the twentieth day of April, which shall be in the year of our Lord 1665. In any county of this realm of England shall every of them then have, in their own name, or in trust for them, within the same county twenty pounds by the year, at least above reprises, in their own or their wives' right, of freehold lands, or of ancient domain, or of rents and fee, fee-tail, or for life, and that in every county within the dominion of Wales every such juror shall then have, within the same, eight pounds by the year, at the least, above reprises, in manner or foreset, all which persons having such a state as a foreset are hereby enabled, and made liable to be returned and serviced jurors for the trial of issue before the justices of foreset, any law or statute to the contrary, in any wise, notwithstanding. 16 and 17, Charles II, Chapter 3, 1664-5. By a statute passed in 1692 jurors in England are to have landed estates of the value of ten pounds a year, and jurors in Wales to have similar estates of the realm of six pounds a year. 4 and 5, William and Mary, Chapter 24, Section 14, 1692. By the same statute, Section 18, persons may be returned to serve upon the tales in any county of England who shall have, within the same county, five pounds by the year, above reprises, in the manner foreset. By statute 3, George II, Chapter 25, Section 19 and 20, no one is to be a juror in London who shall not be a householder within the said city, and have lands, tenements, or personal estate to the value of one hundred pounds. By another statute applicable only to the county of Middlesex that is enacted, that all leaseholders, upon leases, where the improved rents or value shall amount to fifty pounds or upwards per unum, over and above all ground rents or other reservations palable by virtue of the said leases, shall be liable and obliged to serve upon juries when they shall be legally summoned for that purpose. 4th, George II, Chapter 7, Section 3, 1731. End footnote. From these statutes it will be seen that, since 1285, seventy years after Magna Carta, the common law right of all free birdish subjects to eligibility as jurors has been abolished, and the qualifications of jurors have been made a subject of arbitrary legislation. In other words, the government has usurped the authority of selecting the jurors that were to sit in judgment upon its own acts. This is destroying the vital principle of the trial by jury itself, which is that the legislation of the government shall be subjected to the judgment of a tribunal taken indiscriminately from the whole people without any choice by the government, and over which the government can exercise no control. If the government can select the jurors, it will, of course, select those whom it opposes will be favorable to its enactments. And an exclusion of any of the freemen from eligibility is a selection of those not excluded. It will be seen from the statutes cited that the most absolute authority over the jury box, that is, over the right of the people to sit in juries, has been usurped by the government, that the qualifications of jurors have been repeatedly changed, and made to vary from a freehold of ten shillings yearly to one of twenty pounds by the year at least above our prices. They have also been made different in the counties of Southampton, Surrey, and Sussex from what they were in the other counties, different in Wales from what they were in England, and different in the city of London and in the county of Middlesex from what they were in any other part of the kingdom. But this is not all. The government has not only assumed arbitrarily to classify the people on the basis of property, but it has even assumed to give to some of its judges entire and absolute personal discretion in the selection of the jurors to be impaneled in criminal cases as the following statutes show. Be it also ordained and enacted by the same authority that all panels hereafter to be returned, which be not at the suit of any party that shall be made and put in for any justice of jail, delivery, or justices of peace in their open sessions to inquire for the king shall hereafter be reformed by additions in taking out of names of persons by discretion of the same justices before whom such panel shall be returned, and the same justices shall hereafter command the sheriff or his ministers in his absence to put other persons in the same panel by their discretions, and that panel so hereafter to be made to be good and lawful. This act to endure only to the next parliament. 11. Henry VII. Chapter 24. Section 6. 1495. This act was continued in force by 1 Henry VIII. Chapter 11. 1509. To the end of the then next parliament. It was reenacted and made perpetual by III Henry VIII. Chapter 12. 1511. These acts gave unlimited authority to the king's justices to pack juries at their discretion and abolish the last vestige of the common law right of the people to sit as jurors and judge of their own liberties in the courts to which the acts applied. Yet, as matters of law, these statutes were no more clear violations of the common law, the fundamental and paramount law of the land, than were those statutes which affixed the property qualifications before named, because if the king or the government can select the jurors on the ground of property, it can select them on any other ground, whatever. Any infringement or restriction of the common law right of the whole body of the freemen of the kingdom to eligibility as jurors was legally an abolition of the trial by jury itself. The juries no longer represented the country, but only a part of the country. That part, too, on whose favor the government chose to rely for the maintenance of its power and which it therefore saw fit to select as being the most reliable instruments for its purposes of oppression towards the rest. And the selection was made on the same principle on which tyrannical governments generally select their supporters, vis that of conciliating those who would be most dangerous as enemies and most powerful as friends, that is, the wealthy. Note, suppose these statutes instead of disenfranchising all whose freeholds were of less than the standard value fixed by the statutes had disenfranchised all whose freeholds were of greater value than the same standard. Would anybody ever have doubted that such legislation was inconsistent with the English Constitution or that it amounted to an entire abolition of the trial by jury? Certainly not. Yet it was as clearly inconsistent with the common law or the English Constitution to disenfranchise those whose freeholds fell below any arbitrary standard fixed by the government as it would have been to disenfranchise all whose freeholds rose above that standard. End of note. These restrictions, or indeed any one of them, of the right of eligibility as jurors, was in principle a complete abolition of the English Constitution, or at least of its most vital and valuable part. It was in principle an assertion of a right on the part of the government to select the individuals who were to determine the authority of its own laws and the extent of its own powers. It was therefore, in effect, the assertion of a right on the power of the government itself to determine its own powers and the authority of its own legislation over the people and a denial of all right on the part of the people to judge of or determine their own liberties against the government. It was therefore in reality a declaration of entire absolutism on the part of the government. It was an act as purely despotic in principle as would have been the express abolition of all juries whatsoever. By the law of the land which the kings were sworn to maintain, every free adult male British subject was eligible to the jury box with full power to exercise his own judgment as to the authority and obligation of every statute of the king which might come before him. But the principle of these statutes, fixing the qualifications of jurors, is that nobody is to sit in judgment upon the acts or legislation of the king or the government except those whom the government itself shall select for that purpose. A more complete subversion of the essential principles of the English Constitution could not be devised. The juries of England are illegal for another reason, viz, that the statutes cited require the jurors, except in London and a few other places, to be free holders. All the other free British subjects are excluded, whereas at common law, all such subjects are eligible to sit in juries, whether they be free holders or not. It is true the ancient common law requires the jurors to be free holders, but the term free holder no longer expresses the same idea that it did in ancient common law, because no land is now holding in England on the same principle, or by the same tenure as that on which all the land was held in the early times of the common law. As is here to Forben mentioned in the early times of the common law, the land was considered the property of the state, and was all-holden by the tenants so called, that is, holders, on the condition of their rendering certain military and civil services to the state, or to the king as the representative of the state, under the name of rents. Those who held lands on these terms were called free tenants, that is, free holders, meaning free persons or members of the state holding lands to distinguish them from valains or serfs who were not members of the state, but held their lands by more servile tenure, and also to distinguish them from persons of foreign birth, outlaws, and all other persons who were not members of the state. Every free-born adult male Englishman who had not lost his civil rights by crime or otherwise was entitled to land of right, that is, by virtue of his civil freedom or membership of the body politic. Every member of the state was therefore a free-holder, and every free-holder was a member of the state, and the members of the state were therefore called free-holders. But what is material to be observed is that a man's right to land was an incident to his civil freedom, not his civil freedom, an incident to his right to land. He was a free-holder because he was a free-born member of the state, and not a free-born member of the state because he was a free-holder, for this last would be an absurdity. As the ten years of lands changed, the term free-holder lost its original significance and no longer described a man who held land of the state by virtue of his civil freedom, but only one who held it in fee-simple, that is, free of any liability to military or civil services. But the government, in fixing the qualifications of jurors, has adhered to the term free-holder after that term has ceased to express the thing originally designated by it. The principle then of the common law was that every free-man or free-born male Englishman of adult aid, etc., was eligible to sit in juries by virtue of his civil freedom or his being a member of the state or body politic. But the principle of the present English statutes is that a man shall have a right to sit in juries because he owns lands in fee-simple. Out the common law a man was born to the right to sit in juries. By the present statutes he buys the right when he buys his land, and thus this, the greatest of all the political rights of an Englishman, has become a mere article of merchandise, a thing that is bought and sold in the market for what it will bring. Of course, there can be no legality in such juries as these, but only in juries to which every free or natural-born adult male Englishman is eligible. The second essential principle of the common law controlling the selection of jurors is that when the selection of the actual jurors comes to be made from the whole body of male adults, that selection shall be made in some mode that excludes the possibility of choice on the part of the government. Of course, this principle forbids the selection to be made by any officer of the government. There seem to have been at least three modes of selecting the jurors at the common law. One by lot note, Lingard says these compurgators or jurors were sometimes drawn by lot. First Lingard's history of England page 300, end-foot note. Two, two knights or other freeholders were appointed, probably by the sheriff to select the jurors. Three, by the sheriff, bailiff or other person who held the court or rather acted as its ministerial officer. Probably the latter mode may have been the most common, although there may be some doubt on this point. At the common law, the sheriff's bailiffs and other officers were chosen by the people instead of being appointed by the king. Fourth Blackstone, 413, introduction to Gilbert's history of the common police, page 2, note and page 4. This has been shown in a former chapter. Chapter 4, page 120, note. At the common law, therefore, jurors selected by these officers were legally selected, so far as the principle now under discussion is concerned. That is, they were not selected by any officer who was dependent on the government. But in the year 1315, 100 years after Magna Carta, the choice of sheriffs was taken from the people and it wasn't acted. That the sheriff shall henceforth be assigned by the chancellor, treasurer, barons of the exchequer and by the justices, and in the absence of the chancellor by the treasurer, barons and justices. Ninth Edward II, facture 2, 1315. These officers who appointed the sheriffs were themselves appointed by the king and held their offices during his pleasure. Their appointment of sheriff was, therefore, equivalent to an appointment by the king himself and the sheriffs, thus appointed, held their offices only during the pleasure of the king and were, of course, mere tools of the king and their selection of jurors was really a selection by the king himself. In this manner, the king usurped the selection of the jurors who were to sit in judgment upon his own laws. Here, then, was another usurpation by which the common law trial by jury was destroyed, so far as related to the county courts, in which the sheriffs presided and which were the most important courts of the kingdom. From this cause alone, if there were no other, there has not been a legal jury in the county court in England for more than 500 years. In nearly or quite all the states of the United States, the juries are illegal, for one or the other the same reasons that make the juries in England illegal. In order that the juries in the United States may be illegal, that is, in accordance with the principles of the common law, it is necessary that every adult male member of the state should have his name in the jury box or be eligible as a juror. Yet this is the case in hardly a single state. In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the juries are required to be freeholders, but this requirement is illegal for the reason that the term freeholder in this country has no meaning analogous to the meaning it had in the ancient common law. In Arkansas, Missouri, Indiana, and Alabama, juries are required to be freeholders or householders. Each of these requirements is illegal. In Florida they are required to be householders. In Connecticut, Maine, Ohio, and Georgia, jurors are required to have the qualifications of electors. In Virginia they are required to have a property qualification of $100. In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, Michigan, and Wisconsin, certain civil authorities of the towns, cities, and counties are authorized to select once in one, two, or three years a certain number of the people, a small number compared with the whole from whom jurors are to be taken when wanted, thus disenfranchising all except the few thus selected. In Maine and Vermont, the inhabitants by vote-in-town meaning have a veto upon the jurors selected by the authorities of the town. In Massachusetts, the inhabitants by vote-in-town meaning can strike out any names inserted by the authorities and insert others, thus making jurors elected by the people and, of course, representative only of a majority of the people. In Illinois, the jurors are selected for each term of court by the county commissioners. In North Carolina, the courts of pleas and quarter-sessions shall select the names of such persons only as our freeholders and as are well qualified to act as jurors, thus giving the courts power to pack the juries. Revised statutes 147. In Arkansas, too, it shall be the duty of the county court of each county to make out and cause to be delivered to the sheriff a list of not less than sixteen, nor more than 23 persons qualified to serve as grand jurors, and the sheriff is to summon such person to serve as grand jurors. In Tennessee, also, the jurors are to be selected by the county courts. In Georgia, the jurors are to be selected by the justices of the inferior courts of each county together with the sheriff and clerk or a majority of them. In Alabama, the sheriff judges the county court and clerks of the circuit and county courts or a majority of them select the jurors. In Virginia, the jurors are selected by the sheriffs, but the sheriffs are appointed by the governor of the state and that is enough to make the juries illegal. Probably the same objection lies against the legality of the juries in some other states. How jurors are appointed and what are their qualifications in New Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, Kentucky, Iowa, Texas and California, I know not. There is little doubt that there is some valid objection to them of the kinds already suggested in all these states. In regard to jurors in the courts of the United States, it is enacted by act of Congress. That jurors to serve in the courts of the United States in each state respectively shall have the like qualifications and be entitled to the like exemptions as jurors of the highest court of law of such state now have and are entitled to and shall be designated by ballot, lot or otherwise according to the mode of forming such juries now practiced and hereafter to be practiced therein. Insofar as such mode may be practicable by the courts of the United States or the officers thereof and for this purpose the said courts shall have power to make all necessary rules and regulations for confirming the designation and impaneling of jurors. In substance to the laws and usages now enforce in such state and further shall have power by rule or order from time to time to confirm the same to any change in these respects which may be hereafter adopted by the legislatures under respective states for the state courts. Statute 1840 chapter 47 statutes at large volume 5 page 394. In this corrupt and lawless manner Congress instead of taking care to preserve the trial by jury so far as they might by providing for the appointment of legal juries incomparably the most important of all are judicial tribunals and the only ones of which the least reliance can be placed for the preservation of liberty have given the selection of them over entirely to the control of an indefinite number of state legislatures and thus authorized each state legislature to adapt the juries the United States to the maintenance of any and every system of tyranny that may prevail in such state. Congress have as much constitutional right to give over all the functions of the United States government into the hands of the state legislatures to be exercised within each state in such manner as the legislature of such state shall please to exercise them as they have to thus give up to those legislatures the selection of juries for the courts of the United States. There has probably never been a legal jury nor a legal trial by jury in a single court of the United States since the adoption of the Constitution. These facts show how much reliance can be placed in written constitutions to control the action of the government and preserve the liberties of the people. If the real trial by jury had been preserved in the courts of the United States that is if we had had legal juries and the jurors had known their rights it is hardly probable that one-tenth of the past legislation of Congress would ever have been enacted or at least that if enacted it could have been enforced. Probably the best mode of appointing jurors would be this. Let the names of all the adult male members of the state in each township be kept in a jury box by the officers of the township and when a court is to be held for county or other district let the officers of a sufficient number of townships be required without seeing the names to draw out a name from their boxes respectively to be returned to the court as a juror. This mode of appointment would guard against collusion and selection and juries so appointed would be likely to be a fair epitome of the country. End of chapter 6. Chapter 7 part 1 of an essay on the trial by jury. This is a liver box recording. All liver box recordings are in the public domain. For more information or to volunteer please visit LibriVox.org read by Pathan. Trial by jury by Lysander Spooner chapter 7 part 1. Illegal judges. It is a principle of Magna Carta and therefore of the trial by jury. For all parts of Magna Carta must be construed together that no judge or other officer appointed by the king shall preside in jury trials in criminal cases or pleas of the crown. This provision is contained in the great charters of both John and Henry and is second in importance only to the provision guaranteeing the trial by jury of which it is really a part. Consequently without the observance of this prohibition there can be no genuine or legal that is common law trial by jury. At the common law all officers who held jury trials whether in civil or criminal cases were chosen by the people. Note the proofs of this principle the common law have already been given on page 120 and 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 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 alderman sheriffs and 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 freemen for carriage unless with the consent of the freemen himself. John's Charter chapter 36. In a kingdom subdivided into so many counties, hundreds, tree-hings, 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, etc., as he does in Magna Carta. I apprehend that in attention 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 Iroldamen were the Eurephes, the sheriffs or Reeves, of whom there were several in every shire or county. There was one in every borough as a judge who witnessed purchases outside the wall and there was one higher than either the highest sheriff who is 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 Iroldamen, 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, section 2, b. 2, chapter 1, 57, and Larkner's Cabinet Cyclopedia, page 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. End foot note. 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 de season, mol de sol, and dorin presentment. Note. Dorin presentment was an inquest to discover who presented the last person to a church, mol de sol, whether the last possessor was seized of land in the main of his own fee, and novel de season, whether the claimant had been unjustly deceived of his freehold. End foot note. But specially for bids is being extended to criminal cases, or pleas of the crown. This prohibition is in these words, nulus ve comes constubalaria scornator, del ali baliva nustri, teniant placchieta corna nustri. No sheriff constable coroner, or other R. Baleffs, shall hold pleas of our crown, John Charter chapter 53, Henry Stidow, chapter 17. Some person seemed to suppose that this was a prohibition merely upon officers bearing the specific names of sheriffs constables coroners and Baleffs 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 elated. 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 Baleffs, and officers chosen by the people. The prohibition upon the king's justices sitting in criminal trials is included in the words del ali baliva nustri, or other R. Baleffs. The word Baleff was anciently a sort of general name for judicial officers and persons employed in and about the administration of justice. In modern times it's used as applying 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. Koch says, Baleff is a French word and signifies an officer concerned in the administration of justice of a certain province, and because a sheriff have an office concerning the administration of justice within his county, or Baleff, therefore he called his county Baleffsua, his Baleff. I have heard great question made with the true exposition of this word Baleffs is. In the statute of Magna Carta, chapter twenty-eight, the letter of that statute is Nullus Baleffs de Caitor, Puanat, Alecui ad legem manifestam, nec ad yoramentum simplici locuala sua, sinitestibus vedelibus ad hoc inductis. No Baleff from henceforth shall put anyone 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 Balevels in this statute signify 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, kings bench, etc., for they must bring with them vedelis testes, faithful witnesses, etc., and so has been the usage to this day. First Cokes institutes one sixty-eight B. For they must bring with them vedelis testes, faithful witnesses, etc., and so has been the usage to this day. First Cokes institutes one sixty-eight 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, etc., 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 Balevels was understood to include all judicial as well as all other officers of the king. The Mirror says, the point which forbid it 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. Note, 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, is 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. End footnote. Nor receive any plaint without witnesses present who testify the plaint to be true. Mirror of Justices, chapter 5, section 2, page 257. Coak quotes this commentary in the original French and then endorses it in these words. By this it appears that under this word Balevels in this act is comprehended every justice minister of the king, steward, and bailiff. Coak also in his commentary upon this very chapter of Magna Carta that provides that no sheriff constable corner other Arbalas 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 Ali Balibo Nostri or other Arbalas 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 to 1289 as authority, which decision he calls a notable and leading judgment, 2nd institutes 30 to 31. And yet Coak in flat contradiction of this decision which he quotes such emphasis and approbation and in flat contradiction also the definition he repeatedly gives of the word Balevels 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 offenses to be tried before inferior officers, meaning of course the king's inferior officers. 2nd institutes page 30. And thus this chapter of Magna Carta which according to his own definition of the word Balevels applies to all officers of the king and which according to the common and true definition of the term please 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 the king in giving names to his own officers who should preside at the trials of particular offenses 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 the officer bore whom the king might appoint to a particular duty note 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 of all 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 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 has been practiced more or less from the time of William the conqueror Paul Grave says the frequent absence of William from his insular domains occasioned another mode of administration which ultimately produced still greater changes in the law it was the practice of appointing justiciaries 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 note with a note in this extract Paul Grave 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 domain and note the justices who were signed in the name of the sovereign and whose powers were revocable at his pleasure derive 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 chirograph of concords leave reason for doubting whether anterior to the reign of Henry the 3rd 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 compose 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 dominated by the exchequer the king's bench the common please and the chance re as being originally committees selected by the king when occasion required out of a large body for the dispatch of peculiar branches of business and which committees by degrees assumed an independent and permanent existence justices itinerant who dispatched throughout the land decided the police of the crown may be obscurity trace to the reign of the conqueror not perhaps appointed with much regularity but dispatched upon peculiar occasions and emergencies first Paul Gray's rise in progress etc page 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 of the people of the realm has suffered many evils and mischiefs for that sheriffs of diverse counties by virtue of commissions and general ritz granted to them at their own suit for their singular profit to gain of the people have made and taken diverse inquest 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 to establish for to issue all such evils and mischiefs that such commissions and ritz before this time made shall be utterly repealed and that from henceforth no such commissions shall be granted statute 28 Edward the third chapter 9 1354 how silly to suppose that the legality 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 in as much 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 Miller says when the king's bench came to have its usual residences 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 as stated seasons to perform circuits over the kingdom and to hold courts in particular towns for the trial of all sorts of crimes these trials 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 jail delivery by which they were directed to try every prisoner confined in the gels of the several towns falling under their inspection Miller's historical view of English government volume to chapter 7 page 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 entrusted 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 sheriff's courts did decline in their interest and authority the methods by which they were broken were twofold first by granting commissions to the sheriffs by written of Eustitias 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 judica chair was immediately derived from the king Gilbert on the court of chance re page one 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 adaption or capacity to procure such judgments as the kings desired the extraction Gilbert suggest also the ursipation 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 this legal 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 in the common law that no person appointed by the king should hold jury trials in criminal cases and footnote 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 should be to deprive the king of the power of putting his creatures into criminal courts to pack cheat and browbeat juries and thus maintains 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 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 Magna Carta is of a piece with his absurd and gratuitous interpretation of the words next super am I be most next super am but same us which was pointed out in a former article and by which he attempted to give a judicial power to the king and his judges were Magna Carta had given it only to a jury it is also of a piece with his pretense that there was a difference between fine and a mercenary in that finds might be imposed by the king and that juries were required only for fixing emersments these are some of the innumerable frauds by which the English people have been cheated out of the trial by jury ex-uno disque ominace from one judge learn the characters of all end of chapter 7 part 1 chapter 7 part 2 an essay on the trial by jury this is a LibriVox recording all LibriVox recordings on the public domain for more information or to volunteer please visit LibriVox.org read by Bethanne trial by jury by Lysander Spooner chapter 7 part 2 illegal judges note 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 reason 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 criminal alike when made against their own interest 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 imposters were never practiced upon mankind then are all or very nearly all these auricular 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 various 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 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 criminal law or indeed in almost any other shape has been a 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 survival 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 liberty is not merely fatuity it is suicide and foot note I give in the note additional and abundant authorities for the meaning described 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 note coke speaking of the word bailiffs as used in the statute of one Westminster chapter 35 1275 says here bailiffs are taken for the judges of the court as manifestly appear hereby second institutes to 29 coke also says it is a maximum law I like this known Debbie at essay you dexed in propria causa no one ought to be judge in his own cause and therefore a fine living before the bailiffs of shop sure was reversed because one of the bailiffs was party to the fine Queen known protest essay you dex at bars because one cannot be judge and party first institutes 141 a in the statute of Gloucester chapter 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 chapter 2 it is provided also that if any man leases tenement in the city of London for a term of years and he to whom the freehold belongeth cause of himself to be implicated by collusion and make it default after default or cometh into court and give it up for to make the term or leasy lose his term lease and the demand at hath his suit so that the term or may recover by writ of covenant the mayor and bailiff may inquire by a good inquest jury in the presence of the term or and the demandant whether the demandant moved his plea upon good right that he had or by collusion or fraud to make the term or 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 for it with and if it be found by the inquest jury that he hath impleted himself by fraud to put the term or from his term then show the term or enjoy his term and the execution of judgment for the demandant shall be suspended until the term be expired 6 Edward 1st chapter 11 1278 Koch 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 light court and so called as York London Winchester etc here the city of London is named but it appears by that which have been said out of Felita that this act extends to such cities and brews privileged that is such as have such privilege to hold police as London half 2nd Institutes 322 the 12th chapter of the same statute is in the following words which plainly recognize the fact the mayor and bailiffs of London are judicial officers holding courts in London it is provided also that a man impleted for a tenement in the same city London does voucher for another to warranty that he shall come into the chanceery and have a writ to summon his warrantor to a certain day before the justice 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 and tell the play by the warranty be determined before the justices of the bench and when the play 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 bailiff's court to answer into the chief play and a writ shall be awarded at the suit of the demanded by the justices unto the mayor and bailiff's that they shall proceed in the plea etc. 6 Edward the first chapter 12 1278 coke in his commentary on this chapter also speaks repeatedly of the mayor and bailiff's as judges holding courts and also speaks of this chapter is applicable not only to the cities of London especially named for the cause aforesaid but extended by equity to all other privileged places that is privileged to have a court of mayor and bailiff's where foreign voucher is made as at Chester Durham shop sure etc second institutes 325 to 7 Bailey in Scotch law a municipal matter straight corresponding with English alderman note Alderman is 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 wop and take these were all judicial officers see law dictionaries and note with a note borough's law dictionary bailiffy bailiff French a bailiff ministerial officer with duty similar to those of a sheriff the judge of a court a municipal mind district etc borough's law dictionary bailiff the word bailiff is of Norman origin and was applied in England at an early period after the example it is set of the French to the chief magistrates of counties or shires such as alderman the Reeve or sheriff and also in fewer jurisdictions such as hundreds and wop and takes Spillman vocabulary Bollywood's first blockstones commentaries 344 see Bali Bollywood's the Latin Bollywood's occurs indeed in the laws of Edward the Confessor but Spillman thinks it was introduced by a latter hand Bollywood bailiwick was the word formed from Bollywood's to denote the extent of territory comprised within a bailiff's jurisdiction and bailiwick is still retained in ritz and other proceedings as the name of a sheriff's county first blockstones commentaries 344 see Bollywood the office of bailiff was at first strictly they're not exclusively a judicial one in France the word had the sense of what Spillman calls Eustizia Tutlorious Bollywood's occurs frequently in the regium my estate them in the sense of a judge Spillman in its sense of a deputy it was formally 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 ritz brand 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 manners burles law and dictionary bailiff from the latin bolivus french bailiff ie prefectus provincia 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 etc brusters encyclopedia miller says the french monarchs about this period were not content with the power of receiving appeals from the several courts of their barons an experience 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 addictive philip augustus in the year 1190 those bailiffs were appointed in all the principal towns of the kingdom miller's historical view of the english government volume two chapter three page 126 bailiff office magistrates who formerly administered justice in the parliaments or courts of france answering to the english sheriffs as mentioned by brackton bouvert law dictionary there be several officers called bailiffs whose offices and employments seem quite different from each other the chief magistrate in diverse ancient corporations are called bailiffs as an ipswich yarmouth claw chester etc there are likewise officers of the forest who are termed bailiffs first brackton's abridgment 498 to 9 bailiff signifies a keeper or superintendent and is directly derived from the french word bailey which appears to come from the word bolivus and that from bogalis a latin word signifying generally a governor tutor or superintendent the french word bailey is thus explained by rich lay dictionary etc bailey he who in a province has a superintendent's of justice who is the ordinary judge of the nobles who is their head for the ban and aria ban 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 superintendents entrusted to them by their superior political dictionary note ban and aria 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 personal or by proxy boyer end footnote bailiff bolivus from the french word bailiff that is prefectus provincia and as the name so the office itself is answerable to that of france where there were eight parliaments which were high courts from once their lay nor appeal and within the precincts of the several parts of that kingdom which belong 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 one of his names also because the county is often called boliva as in the return of a writ where the person is not arrested the sheriff says the within named a b is not found in my bailiff etc and in the statute of magnacarta chapter twenty eight and fourteen edict three chapter nine the word bailiff seems to comprise as well sheriffs as bailiffs of hundreds bailies in scotland are magistrates of burles possessed of certain jurisdictions having the same power within their territory of 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 which every hundred which were the bailiffs and it appears by brackton lib three track two chapter 34 that bailiffs of hundreds might anciently hold plea of appeal and approvers but since that time the hundred courts accept 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 rids etc within their liberties though in other respects the name is still in good esteem for the chief magistrates in diverse towns are called bailiffs and sometimes the persons to whom the king's castles are committed are turned to bailiffs as the bailiff of dover castle etc of the ordinary bailiffs there are several sorts viz bailiffs of liberties sheriffs bailiffs bailiffs of lords of manners bailiffs of husbandry etc bailiffs of liberties or franchises are to be sworn to take distresses truly impaneled jurors make returns by indenture between them and sheriffs etc bailiffs of courts barren summon those courts and execute the process thereof besides these things there are also bailiffs of the forest jacob's law dictionary tamalans ditto bailiwick bolivua 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 appointed the bailiff with such powers within his precinct as an under sheriff exercises under the sheriff of the county such as the bailiff of westminster jacob's law dictionary tamalans ditto a bailiff of leet court barren manor bailiwick bolivus leta barondes manari he is one that is appointed by the lord or his steward within every manner to do such offices as appertain it there on two as to summon the court warn the tenants and regents also to summon the leet and homage levy fines and make distresses etc of which you may read at large in kitchen 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 ritz and processes the sheriff in england is the king's bailiff the office of bailiff formally was high and honorable in england and officers under that title on the continent are still invested with important functions webster bailey scotland an alderman a magistrate who is second in rank in a royal burg worster bailey or bailiff soft a officier de justice a bailiff a sort of magistrate boyer's french dictionary by some opinions a bailiff in magnacarta chapter 28 signifies any judge cunningham's law dictionary bailiff in the court of the greek emperors there was a grand bayoulas first tutor of the emperors children the superintendent of foreign merchants seems also to have been called bayoulos and as he was appointed by the ventinians this title baleo was transferred to the ventinian ambassador from grace the official bayoulos balevos baye in france bailiff in england was introduced into the south of europe and denoted a superintendent hence the eight ballavia 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 judge of their districts in the course of time only the first duty remained to the bailiff hence he was baye de pey and laws were administered in his name by a lawyer as his deputy lieutenant de rubbe the seniories 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 parliament in the greater balevex of cities of importance hammered the second established a collegial constitution under the name of presidial courts the name of bailiff was introduced into england with william the first the counties were also called bailiwix rally via 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 we see 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 his name as the high bailiff of west mister in london the lord mayor is at the same time bailiff which title he bore before the president became usual and administrators 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 middle sex usually the recorder of london supplies his place as judge in some instances the term bailiff in england is applying to the chief magistrates of towns or to the commanders of particular castles as that of dover the term bailey in scotland is applied to a judicial police officer having powers very similar to those of justices of peace in united states encyclopedia americana end footnote the foregoing interpretation of the chapter of magnacarta now under discussion is cooperated by another chapter of magnacarta which specially provides the king's justices shall go through every county to take the assizes whole jury trials in three kinds of civil actions to wit novel decision more than so and darin 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 nights chosen by the country shall sit with him 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 note perhaps it may be said and such it has already been seen is the opinion of coke and others but 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 bailiffs 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 simpliqui lucuela 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 note as a 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 and note within note 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 etc the prohibition therefore applies to all bailiffs to the ones 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 also probably in this that public officers where they're appointed by the 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 are no witnesses against him but only the simple accusation or testimony 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 bailiff 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 the 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 and footnote but what would appear to make this matter absolutely certain is that unless the prohibition that no bailiff etc of ours shall hold pleas of our crown apply to all officers of the king justices as well as others it would be wholly nukatory 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 unmaint justices at his pleasure if he could appoint any officers whatever to preside over juries and 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 scrogs as of any other material and to have prohibited all the king's officers accept his justices from presiding in criminal trials would therefore have been mere fools 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 jerry would have been in practice and of what would have been the difference in the liberties of england for 500 years last past had this prohibition of magnacarta upon the king's officers sitting in the trial of criminal cases been observed the principle of this chapter of magnacarta 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 illegal 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 note in this chapter i've 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 our only assistance 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 end footnote end of chapter seven part two chapter eight of an essay on the trial by jury this is a libra vox recording all libra vox recordings are in the public domain for more information or to volunteer please visit libra vox.org read by bethan trial by jury by lice anderspooner chapter eight the free administration of justice the free administration of justice was a principle of the common law and it must necessarily be a part of every system of government which is not designed to be an engine in the hands of the rich for the oppression of the poor in saying that the free administration of justice was a principle of the common law i mean only that parties were subjected to no cost for jurors witnesses ritz or other necessaries for the trial preliminary to the trial itself consequently no one could lose the benefit of a trial for the want of means to defray expenses but after the trial the plaintiff or defendant was liable to be immersed by the jury of course for having troubled the court with the prosecution or defense of an unjust suit note second salvin lectures 234 to 5 third blackstone 274 to 5 376 salvin says that both plaintiffs and defendants were liable to immersement blackstone speaks of plaintiffs being liable without saying whether defendants were so or not what the rule really was i do not know there would seem to be some reason in allowing defendants to defend themselves at their own charges without exposing themselves to immersements in case of failure and footnote but it is not likely that the losing party was objecting to an immersement as a matter of course but only in those cases where the injustice of his case was so evident as to make him inexcusable in bringing it before the courts all the freeholders were required to attend the courts that they might service jurors and witnesses and do any other service that could legally be required of them and their attendance was paid for by the state in other words their attendance and service of the courts were part of the rents which they paid the state for their lands the freeholders who were thus required always to attend the courts were doubtless the only witnesses who were usually required in civil causes this was only to the fact that in those days when the people at large could neither write nor read few contracts were put in writing the expedient adopted for proving contracts was that of making them in the presence of witnesses who could afterwards testify to the transactions most contracts in regard to lands were made at the courts in the presence of the freeholders there assembled note when any other witnesses than freeholders were required in a civil suit i am not aware of the manner in which their attendance was procured but it was doubtless done at the expense either of the state or the witnesses themselves and it was doubtless the same in criminal cases end of note in the king's court it was specially provided by magnacarta that justice and right should not be sold that is that the king should take nothing from the parties for administering justice the oath of a party to the justice of his cause was all it was necessary to entitle him to the benefit of the courts free of all expense accept the risk of being immersed after the trial in case the jury should think he deserved it note all claims were established in the first stage by the oath of the plaintiff except when otherwise especially directed by the law the oath by which any claim was supported was called the fore oath or pry your momentum and it was the foundation of his suit one of the cases which did not require this initiatory confirmation was when cattle could be tracked into another man's land and then the footmark stood for the fore oath second fall grace rise in progress etc 114 end foot note this principle the free administration of justice connects itself necessarily with the trial by jury because a jury could not rightfully give judgment against any man in either a civil or criminal case if they had any reason to suppose he had been unable to procure his witnesses the true trial by jury would also compel the free administration of justice from another necessity viz that of preventing private corals because unless the government enforced a man's rights and redressed his wrongs free of expense to him a jury would be bound to protect him in taking the law into his own hands a man has a natural right to enforce his own rights and redress his own wrongs if one man owe another a debt and refused to pay it the creditor has a natural right to seize sufficient property of the debtor wherever he can find it to satisfy the debt if one man could make a trespass upon the person property or character of another the injured party has a natural right either to chastise the aggressor or to take compensation for the injury out of his property but as the government is an impartial party as between these individuals it is more likely to do exact justice between them than the injured individual himself would do the government also having more power at its command is likely to right a man's wrongs more peacefully than the injured party himself could do it if therefore the government will do the work of enforcing a man's rights and redressing his wrongs promptly and free of expense to him he is under a moral obligation to leave the work in the hands of the government but not otherwise when the government forbids him to enforce his own rights or redress his own wrongs and deprives him of all means of obtaining justice except on the condition of his employing the government to obtain it for him and of paying the government for doing it the government becomes itself the protector and accomplice of the wrongdoer if the government will forbid a man to protect his own rights it is bound to do it for him free of expense to him and so long as the government refuses to do this juries if they knew their duties would protect a man in defending his own rights under the prevailing system probably one half of the community are virtually deprived of all protection for their rights except with the common law affords them courts of justice for all civil suits are as effectually shut against them as though were done by bolts and bars being forbidden to maintain their own rights by force as for instance to compel the payment of debts and being unable to pay the expenses of civil suits they have no alternative but submission to many acts of injustice against which the government is bound either to protect them free of expense or allow them to protect themselves there would be the same reason in compelling a party to pay the judge and jury for their services that there is in compelling him to pay the witnesses or any other necessary charges note among the necessary expenses of suits should be reckoned reasonable compensation to counsel for they are nearly or quite as important to the administration of justice as our judges jurors or witnesses and the universal practice of employing them both on the part of governments and private persons shows that their importance is generally understood as a mere matter of economy too it would be wise for the government to pay them rather than they should not be employed because they collect and arrange the testimony and law beforehand so as to be able to present the whole case to the court and jury intelligibly and in a short space of time whereas if they were not employed the court and jury would be under the necessity either of spending much more time than now in the investigation of causes or dispatching them in haste and with little regard to justice they would be very likely to do the latter thus defeating the whole object of the people in establishing courts to prevent the abuse of this right it should perhaps be left discretionary with the jury in each case to determine whether the counsel should receive any pay and if any how much from the government end footnote this compelling parties to pay the expenses of civil suits is one of the many cases in which government is false to the fundamental principles on which the free government is based what is the object of government but to protect men's rights on what principle does a man pay his taxes to the government except on that of contributing his proportion towards the necessary cost of protecting the rights of all yet when his own rights are actually invaded the government which he contributes to support instead of fulfilling its implied contract becomes his enemy and not only refuses to protect his rights except at his own cost but even forbids him to do it himself all free government is founded on the theory of voluntary association and on the theory that all the parties to it voluntarily pay their taxes for its support on the condition of receiving protection in return but the idea that any poor man would voluntarily pay taxes to build up a government which will neither protect his rights except at a cost which he cannot meet nor suffer himself to protect them by such means as may be in his power is absurd under the prevailing system a large portion of losses determined in courts are mere contest of purses rather than of rights and a jury sworn to decide causes according to the evidence produced are quite likely for ought they themselves can know to be deciding merely the comparative length of the party's purses rather than the intrinsic strength of their respective rights jurors ought to refuse to decide a cause at all except upon the assurance that all the evidence necessary to a full knowledge of the cause is produced this assurance they can seldom have unless the government itself produces all the witnesses the party's desire in criminal cases the atrocity of accusing a man of crime and then condemning him unless he proved his innocence at his own charges is so evident that a jury could rarely if ever be justified in convicting a man under such circumstances but the free administration of justice is not only indispensable to the maintenance of right between man and man it would also promote simplicity and stability in the laws the mania for legislation would be in an important degree restrained if the government were compelled to pay the expenses of all the suits that grew out of it the free administration of justice would diminish and nearly extinguish another great evil that of malicious civil suits it is an old saying that many litigate in court not that they may gain anything but that they may harass others many men promoters of revenge and oppression are willing to spend their own money in prosecuting a groundless suit if they can thereby compel their victims who are less able than themselves to bear the laws to spend money in the defense under the prevailing system in which the parties pay the expenses of their suits nothing but money is necessary to enable any malicious man to commence and prosecute a groundless suit to the terror injury and perhaps ruin of another man in this way a court of justice into which none but a conscientious plaintiff certainly should ever be allowed to enter becomes an arena into which any rich and vengeful oppressor may drag any man poorer than himself and harass, terrify, and impoverish him to almost any extent it is a scandal and an outrage that the government should suffer itself to be made an instrument in this way for the gratification of private malice we might nearly as well have no courts of justice as to throw them open as we do for such flogacious uses the evil probably immense of no remedy except a free administration of justice under a free system plaintiffs could rarely be influenced by motives of this kind because they could put their victim to little or no expense neither pending the suit which it is the object of the oppressor to do nor at its termination besides if the ancient common law practice should be adopted of immersing a party for troubling the courts with groundless suits the prosecutor himself would in the end be likely to be immersed by the jury in such a manner as to make courts of justice a very unprofitable place for a man to go to seek revenge in estimating the evils of this kind resulting from the present system we are to consider that they are not by any means confined to the actual suits in which this kind of oppression is practiced but we are to include all those cases in which the fear of such oppression is used as a weapon to compel men into a surrender of their rights end of chapter eight