Part 19 (2/2)

It is a principle of Magna Carta, and therefore of the trial by jury, (for all parts of Magna Carta must be construed together,) that no judge or other officer _appointed by the king_, shall preside in jury trials, _in criminal cases_, or ”pleas of the crown.”

This provision is contained in the great charters of both John and Henry, and is second in importance only to the provision guaranteeing the trial by jury, of which it is really a part. Consequently, without the observance of this prohibition, there can be no genuine or _legal_--that is, _common law_--trial by jury.

At the common law, all officers who held jury trials, whether in civil or criminal cases, were chosen by the people.[87]

But previous to Magna Carta, the kings had adopted the practice of sending officers of their own appointment, called justices, into the counties, to hold jury trials in some cases; and Magna Carta authorizes this practice to be continued so far as it relates to _three_ kinds of _civil_ actions, to wit: ”novel disseisin, mort de ancestor, and darrein presentment;”[88] but specially forbids its being extended to criminal cases, or pleas of the crown.

This prohibition is in these words:

”Nullus vicecomes, constabularius, coronator, _vel alii balivi nostri_, teneant placita coronae nostrae.” (No sheriff, constable, coroner, _or other our bailiffs_, shall hold pleas of our crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17.

Some persons seem to have supposed that this was a prohibition merely upon officers _bearing the specific names of_ ”_sheriffs, constables, coroners and bailiffs_,” to hold criminal trials. But such is not the meaning. If it were, the _name_ could be changed, and the _thing_ retained; and thus the prohibition be evaded. The prohibition applies (as will presently be seen) to all officers of the king whatsoever; and it sets up a distinction between officers _of the king_, (”_our_ bailiffs,”) and officers chosen by the people.

The prohibition upon the king's _justices_ sitting in criminal trials, is included in the words ”_vel alii balivi nostri_,” (or other our bailiffs.) The word _bailiff_ was anciently a sort of general name for _judicial officers_ and persons employed in and about the administration of justice. In modern times its use, as applied to the higher grades of judicial officers, has been superseded by other words; and it therefore now, more generally, if not universally, signifies an executive or police officer, _a servant of courts_, rather than one whose functions are purely judicial.

The word is a French word, brought into England by the Normans.

c.o.ke says, ”_Baylife_ is a French word, and signifies an officer concerned in the administration of justice of a certain province; and because a sheriff hath an office concerning the administration of justice within his county, or bailiwick, therefore he called his county _baliva sua_, (his bailiwick.)

”I have heard great question made what the true exposition of this word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter of that statute is, _nullus balivus de caetero ponat aliquem ad legem manifestam nec ad juramentum simplici loquela sua sine testibus fidelibus ad hoc inductis_.” (No bailiff from henceforth shall put any one to his open law, nor to an oath (of self-exculpation) upon his own simple accusation, or complaint, without faithful witnesses brought in for the same.) ”And some have said that _balivus_ in this statute signifieth _any judge_; for the law must be waged and made before the judge. And this statute (say they) extends to _the courts of common pleas_, _king's bench_, &c., for they must bring with them _fideles testes_, (faithful witnesses,) &c., _and so hath been the usage to this day_.”--_1 c.o.ke's Inst._, 168 b.

c.o.ke 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.

c.o.ke also, in another place, under the head of the chapter just cited from Magna Carta, that ”_no bailiff shall put any man to his open law_,”

&c., gives the following commentary upon it, from the _Mirror of Justices_, from which it appears that in the time of Edward I., (1272 to 1307,) this word _balivus_ was understood to include _all judicial_, as well as all other, officers of the king.

The Mirror says: ”The point which forbiddeth that no _bailiff_ put a freeman to his oath without suit, is to be understood in this manner,--_that no justice, no minister of the king_, nor other steward, nor bailiff, have power to make a freeman make oath, (of self-exculpation,) _without the king's command_,[89] nor receive any plaint, without witnesses present who testify the plaint to be true.”--_Mirror of Justices_, ch. 5, sec. 2, p. 257.

c.o.ke quotes this commentary, (in the original French,) and then endorses it in these words:

”By this it appeareth, that under this word _balivus_, in this act, is comprehended _every justice, minister of the king_, steward, and bailiff.”--2 _Inst._, 44.

c.o.ke also, in his commentary upon this very chapter of Magna Carta, that provides that ”_no sheriff, constable, coroner, or other our bailiffs, shall hold pleas of our crown_,” expresses the opinion that it ”_is a general law_,” (that is, applicable to all officers of the king,) ”by reason of the words _vel alii balivi nostri_, (or other our bailiffs,) _under which words are comprehended all judges or justices of any courts of justice_.” And he cites a decision in the king's bench, in the 17th year of Edward I., (1289,) as authority; which decision he calls ”a notable and leading judgment.”--_2 Inst._, 30--1.

And yet c.o.ke, in flat contradiction of this decision, which he quotes with such emphasis and approbation, and in flat contradiction also of the definition he repeatedly gives of the word _balivus_, showing that it embraced _all ministers of the king whatsoever_, whether high or low, judicial or executive, fabricates an entirely gratuitous interpretation of this chapter of Magna Carta, and pretends that after all it only required that _felonies_ should be tried before the king's _justices, on account of their superior learning_; and that it permitted all lesser offences to be tried before inferior officers, (meaning of course the _king's_ inferior officers.)--_2 Inst._, 30.

And thus this chapter of Magna Carta, which, according to his own definition of the word _balivus_, applies to all officers of the king; and which, according to the common and true definition of the term ”pleas of the crown,” applies to all criminal cases without distinction, and which, therefore, forbids any officer or minister of the king to preside in a jury trial in any criminal case whatsoever, he coolly and gratuitously interprets into a mere senseless provision for simply restricting the discretion of the king in giving _names_ to his own officers who should preside at the trials of particular offences; as if the king, who made and unmade all his officers by a word, could not defeat the whole object of the prohibition, by appointing such individuals as he pleased, to try such causes as he pleased, and calling them by such names as he pleased, _if he were but permitted to appoint and name such officers at all_; and as if it were of the least importance what _name_ an officer bore, whom the king might appoint to a particular duty.[90]

c.o.ke evidently gives this interpretation solely because, as he was giving a general commentary on Magna Carta, he was bound to give some interpretation or other to every chapter of it; and for this chapter he could invent, or fabricate, (for it is a sheer fabrication,) no interpretation better suited to his purpose than this. It seems never to have entered his mind, (or if it did, he intended that it should never enter the mind of anybody else,) that the object of the chapter could be to deprive the king of the power of putting his creatures into criminal courts, to pack, cheat, and browbeat juries, and thus maintain his authority by procuring the conviction of those who should transgress his laws, or incur his displeasure.

This example of c.o.ke tends to show how utterly blind, or how utterly corrupt, English judges, (dependent upon the crown and the legislature), have been in regard to everything in Magna Carta, that went to secure the liberties of the people, or limit the power of the government.

c.o.ke's interpretation of this chapter of Magna Carta is of a piece with his absurd and gratuitous interpretation of the words ”_nec super eum ibimus, nec super eum mittemus_,” which was pointed out in a former article, and by which he attempted to give a _judicial_ power to the king and his judges, where Magna Carta had given it only to a jury. It is also of a piece with his pretence that there was a difference between _fine_ and _amercement_, and that _fines_ might be imposed by the king, and that juries were required only for fixing _amercements_.

These are some of the innumerable frauds by which the English people have been cheated out of the trial by jury.

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