Part 20 (1/2)
_Ex uno disce omnes._ From one judge learn the characters of all.[91]
I give in the note additional and abundant authorities for the meaning ascribed to the word _bailiff_. The importance of the principle involved will be a sufficient excuse for such an acc.u.mulation of authorities as would otherwise be tedious and perhaps unnecessary.[92]
The foregoing interpretation of the chapter of Magna Carta now under discussion, is corroborated by another chapter of Magna Carta, which specially provides that the king's justices shall ”go through every county” to ”take the a.s.sizes” (hold jury trials) in three kinds of _civil_ actions, to wit, ”novel disseisin, mort de ancestor, and darrein presentment;” but makes no mention whatever of their holding jury trials in _criminal_ cases,--an omission wholly unlikely to be made, if it were designed they should attend the trial of such causes. Besides, the chapter here spoken of (in John's charter) does not allow these justices to sit _alone_ in jury trials, even in _civil_ actions; but provides that four knights, chosen by the county, shall sit with them to keep them honest. When the king's justices were known to be so corrupt and servile that the people would not even trust them to sit alone, in jury trials, in _civil_ actions, how preposterous is it to suppose that they would not only suffer them to sit, but to sit alone, in _criminal_ ones.
It is entirely incredible that Magna Carta, which makes such careful provision in regard to the king's justices sitting in civil actions, should make no provision whatever as to their sitting in _criminal_ trials, if they were to be allowed to sit in them at all. Yet Magna Carta has no provision whatever on the subject.[93]
But what would appear to make this matter absolutely certain is, that unless the prohibition that ”no bailiff, &c., _of ours_ shall hold pleas of our crown,” apply to all officers of the king, justices as well as others, it would be wholly nugatory for any practical or useful purpose, because the prohibition could be evaded by the king, at any time, by simply changing the t.i.tles of his officers. Instead of calling them ”sheriffs, coroners, constables and bailiffs,” he could call them ”_justices_,” or anything else he pleased; and this prohibition, so important to the liberty of the people, would then be entirely defeated.
The king also could make and unmake ”justices” at his pleasure; and if he could appoint any officers whatever to preside over juries in criminal trials, he could appoint any tool that he might at any time find adapted to his purpose. It was as easy to make justices of Jeffreys and Scroggs, as of any other material; and to have prohibited all the king's officers, _except his justices_, from presiding in criminal trials, would therefore have been mere fool's play.
We can all perhaps form some idea, though few of us will be likely to form any adequate idea, of what a different thing the trial by jury would have been _in practice_, and of what would have been the difference to the liberties of England, for five hundred years last past, had this prohibition of Magna Carta, upon the king's officers sitting in the trial of criminal cases, been observed.
The principle of this chapter of Magna Carta, as applicable to the governments of the United States of America, forbids that any officer appointed either by the executive or _legislative_ power, or dependent upon them for their salaries, or responsible to them by impeachment, should preside over a jury in criminal trials. To have the trial a legal (that is, a _common law_) and true trial by jury, the presiding officers must be chosen by the people, and be entirely free from all dependence upon, and all accountability to, the executive and legislative branches of the government.[94]
[Footnote 87: The proofs of this principle of the common law have already been given on page 120, _note_.
There is much confusion and contradiction among authors as to the manner in which sheriffs and other officers were appointed; some maintaining that they were appointed by the king, others that they were elected by the people. I imagine that both these opinions are correct, and that several of the king's officers bore the same official names as those chosen by the people; and that this is the cause of the confusion that has arisen on the subject.
It seems to be a perfectly well established fact that, at common law, several magistrates, bearing the names of aldermen, sheriffs, stewards, coroners and bailiffs, were chosen by the people; and yet it appears, from Magna Carta itself, that some of the _king's_ officers (of whom he must have had many) were also called ”sheriffs, constables, coroners, and bailiffs.”
But Magna Carta, in various instances, speaks of sheriffs and bailiffs as ”_our_ sheriffs and bailiffs;” thus apparently intending to recognize the distinction between officers _of the king_, bearing those names, and other officers, bearing the same official names, but chosen by the people. Thus it says that ”no sheriff or bailiff _of ours_, or any other (officer), shall take horses or carts of any freeman for carriage, unless with the consent of the freeman himself.”--_John's Charter_, ch.
36.
In a kingdom subdivided into so many counties, hundreds, t.i.things, manors, cities and boroughs, each having a judicial or police organization of its own, it is evident that many of the officers must have been chosen by the people, else the government could not have maintained its popular character. On the other hand, it is evident that the king, the executive power of the nation, must have had large numbers of officers of his own in every part of the kingdom. And it is perfectly natural that these different sets of officers should, in many instances, bear the same official names; and, consequently that the king, when speaking of his own officers, as distinguished from those chosen by the people, should call them ”our sheriffs, bailiffs,” &c., as he does in Magna Carta.
I apprehend that inattention to these considerations has been the cause of all the confusion of ideas that has arisen on this subject,--a confusion very evident in the following paragraph from Dunham, which may be given as an ill.u.s.tration of that which is exhibited by others on the same points.
”Subordinate to the ealdormen were the _gerefas_, the sheriffs, or reeves, _of whom there were several in every s.h.i.+re, or county_.
_There was one in every borough, as a judge._ There was one at every gate, who witnessed purchases outside the walls; and there was one, higher than either,--the high sheriff,--who was probably the reeve of the s.h.i.+re. This last _appears_ to have been appointed by the king.
Their functions were to execute the decrees of the king, or ealdormen, to arrest prisoners, to require bail for their appearance at the sessions, to collect fines or penalties levied by the court of the s.h.i.+re, to preserve the public peace, _and to preside in a subordinate tribunal of their own_.”--_Dunham's Middle Ages_, sec. 2, B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41.
The confusion of _duties_ attributed to these officers indicates clearly enough that different officers, bearing, the same official names, must have had different duties, and have derived their authority from different sources,--to wit, the king, and the people.]
[Footnote 88: _Darrein presentment_ was an inquest to discover who presented the last person to a church; _mort de ancestor_, whether the last possessor was seized of land in demesne of his own fee; and _novel disseisin_, whether the claimant had been unjustly disseized of his freehold.]
[Footnote 89: He has no power to do it, _either with, or without, the king's command_. The prohibition is absolute, containing no such qualification as is here interpolated, viz., ”_without the king's command_.” If it could be done _with_ the king's command, the king would be invested with arbitrary power in the matter.]
[Footnote 90: The absurdity of this doctrine of c.o.ke is made more apparent by the fact that, at that time, the ”justices” and other persons appointed by the king to hold courts were not only dependent upon the king for their offices, and removable at his pleasure, _but that the usual custom was, not to appoint them with any view to permanency, but only to give them special commissions for trying a single cause, or for holding a single term of a court, or for making a single circuit; which, being done, their commissions expired_. The king, therefore, could, _and undoubtedly did, appoint any individual he pleased, to try any cause he pleased, with a special view to the verdicts he desired to obtain in the particular cases_.
This custom of commissioning particular persons to hold jury trials, in _criminal_ cases, (and probably also in _civil_ ones,) was of course a usurpation upon the common law, but had been practised more or less from the time of William the Conqueror. Palgrave says:
”The frequent absence of William from his insular dominions occasioned another mode of administration, _which ultimately produced still greater changes in the law_. It was the practice of appointing justiciars to represent the king's person, to hold his court, to decide his pleas, to dispense justice on his behalf, to command the military levies, and to act as conservators of the peace in the king's name.[95] ... The justices who were a.s.signed in the name of the sovereign, and whose powers were revocable at his pleasure, derived their authority merely from their grant.... Some of those judges were usually deputed for the purpose of relieving the king from the burden of his judicial functions.... The number as well as the variety of names of the justices appearing in the early chirographs of 'Concords,' leave reason for doubting whether, anterior to the reign of Henry III., (1216 to 1272,) _a court, whose members were changing at almost every session, can be said to have been permanently const.i.tuted. It seems more probable that the individuals who composed the tribunal were selected as suited the pleasure of the sovereign, and the convenience of the clerks and barons_; and the history of our legal administration will be much simplified, if we consider all those courts which were afterwards denominated the Exchequer, the King's Bench, the Common Pleas, and the Chancery, _as being originally committees, selected by the king when occasion required_, out of a large body, for the despatch of peculiar branches of business, _and which committees, by degrees, a.s.sumed an independent and permanent existence_.... Justices itinerant, who, despatched throughout the land, decided the 'Pleas of the Crown,' may be obscurely traced in the reign of the Conqueror; _not, perhaps, appointed with much regularity, but despatched upon peculiar occasions and emergencies_.”--_1 Palgrave's Rise and Progress_, &c., p. 289 to 293.
The following statute, pa.s.sed in 1354, (139 years after Magna Carta,) shows that even after this usurpation of appointing ”justices” of his own, to try criminal cases, had probably become somewhat established in practice, in defiance of Magna Carta, the king was in the habit of granting special commissions to still other persons, (especially to sheriffs,--_his_ sheriffs, no doubt,) to try particular cases:
”Because that the people of the realm have suffered many evils and mischiefs, for that sheriffs of divers counties, by virtue of commissions and general writs granted to them at their own suit, for their singular profit to gain of the people, have made and taken divers inquests to cause to indict the people at their will, and have taken fine and ransom of them to their own use, and have delivered them; whereas such persons indicted were not brought before the king's justices to have their deliverance, it is accorded and established, for to eschew all such evils and mischiefs, that such commissions and writs before this time made shall be utterly repealed, and that from henceforth no such commissions shall be granted.”--_St. 28 Edward III._, ch. 9, (1354.)
How silly to suppose that the illegality of these commissions to try criminal cases, could have been avoided by simply granting them to persons under the t.i.tle of ”_justices_,” instead of granting them to ”_sheriffs_.” The statute was evidently a cheat, or at least designed as such, inasmuch as it virtually a.s.serts 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.”