An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
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Acts They Affect To Sit In judgment. Of Course, No One With His
Eyes Open Ever Places Himself In a Position So Incompatible With
The Liberty Of Declaring his Honest Opinion, Unless He Do It With
The Intention Of Becoming a Mere Instrument In the Hands Of The
Government For The Execution Of All Its Oppressions.
As Proof Of This, Look At The Judicial History Of England For The
Last Five Hundred years, And Of America From Its Settlement. In
All That Time (So Far As I Know, Or Presume) No Bench Of Judges,
(Probably Not Even Any Single Judge,) Dependent Upon The
Legislature That Passed the Statute, Has Ever Declared a Single
Penal Statute Invalid, On Account Of Its Being in conflict Either
With The Common Law, Which The Judges In england Have Been
Sworn To Preserve, Or With The Written Constitutions, (Recognizing
Men'S Natural Rights,) Which The American Judges Were Under Oath
To Maintain. Every Oppression, Every Atrocity Even, That Has Ever
Been Enacted in either Country, By The Legislative Power, In the
Shape Of A Criminal Law, (Or, Indeed, In almost Any Other Shape,)
Has Been As Sure Of A Sanction From The Judiciary That Was
Dependent Upon, And Impeachable By, The Legislature That Enacted
The Law, As If There Were A Physical Necessity That The
Legislative Enactment And The Judicial Sanction Should Go
Together. Practically Speaking, The Sum Of Their Decisions, All
And Singular, Has Been, That There Are No Limits To The Power Of
The Government, And That The People Have No Rights Except What
The Government Pleases To Allow To Them.
It Is Extreme Folly For A People To Allow Such Dependent,
Servile, And Perjured creatures To Sit Either In civil Or
Criminal Trials; But To Allow Them To Sit In criminal Trials, And
Judge Of The People'S Liberties, Is Not Merely Fatuity, It Is
Suicide.
Chapter 7 (Illegal Judges) Pg 162
[7] Coke, Speaking of The Word Bailiffs, As Used in the Statute
Of 1 Westminster, Ch. 35, (1275,) Says:
"Here Bailiffs Are Taken For The Judges Of The Court, As
Manifestly Appeareth Hereby." 2 Inst., 229.
Coke Also Says, ' It Is A Maxim In law, Aliguis Non Debet Esse
Judex In propria Causa, (No One Ought To Be Judge In his Own
Cause;) And Therefore A Fine Levied before The Baylifes Of Salopwas
Reversed, Because One Of The Baylifes Was Party To The Fine,
Quia Non Potest Esse Judex Et Pars," (Because One Cannot Be Judge
And Party.) 1 Inst., 141 A.
In The Statute Of Gloucester, Ch. 11 And 12, (1278,) "The Mayor
And Bailiffs Of London (Undoubtedly Chosen By The People, Or At
Any Rate Not Appointed by The King) Are Manifestly Spoken Of As
Judges, Or Magistrates, Holding jury Trials, As Follows:
Ch. Ii. "It Is Provided, Also, That If Any Man Lease His Tenement
In The City Of London, For A Term Of Years, And He To Whom The
Freehold Belongeth Causeth Himself To Be Impleaded by Collusion,
And Maketh Default After Default, Or Cometh Into Court And Giveth
It Up, For To Make The Termor (Lessee) Lose His Term, (Lease,)
And The Demandant Hath His Suit, So That The Termor May Recover
By Writ Of Covenant; The Mayor And Bailiffs May Inquire By A Good
Inquest, (Jury,) In the Presence Of The Termor And The Demandant,
Whether The Demandant Moved his Plea Upon Good Right That He
Had,
Or By Collusion, Or Fraud, To Make The Termor Lose His Term; And
If It Be Found By The Inquest (Jury) That The Demandant Moved his
Plea Upon Good Right That He Had, The Judgment Shall Be Given
Forthwith; And If It Be Found By The Inquest (Jury) That He
Impleaded him (Self ) By Fraud, To Put The Termor From His Term,
Then Shall The Termor Enjoy His Term, And The Execution Of
Judgment For The Demandant Shall Be Suspended until The Term Be
Expired." 4 Edward I., Ch. 11, (1278.)
Coke, In his Commentary On This Chapter, Calls This Court Of "The
Mayor And Bailiffs" Of London, " The Court Of The Hustings, The
Greatest And Highest Court In london;" And Adds, "Other Cities
Have The Like Court, And So Called, As York, Lincoln, Winchester,
&E;. Here The City Of London Is Named; But It Appeareth By That
Which Hath Been Said Out Of Fleta, That This Act Extends To Such
Cities And Boroughs Privileged, That Is, Such As Have Such
Privilege To Hold Plea As London Hath." 2 Inst., 322.
The 12Th Chapter Of The Same Statute Is In the Following words,
Which Plainly Recognize The Fact That " The Mayor And Bailiffs Of
London" Are Judicial Officers Holding courts In london.
"It Is Provided, Also, That If A Man, Impleaded for A Tenement In
The Same City, (London,) Doth Vouch A Foreigner To Warranty, That
He Shall Come Into The Chancery, And Have A Writ To Summon His
Chapter 7 (Illegal Judges) Pg 163Warrantor At A Certain Day Before The Justices Of The Beach, And
Another Writ To The Mayor And Bailiff Of London, That They Shall
Surcease (Suspend Proceedings) In the Matter That Is Before Them
By Writ, Until The Plea Of The Warrantee Be Determined before The
Justices Of The Bench; And When The Plea At The Bench Shall Be
Determined, Then Shall He That Is Vouched be Commanded to Go Into
The City," (That Is, Before "The Mayor And Bailiffs " Court,) "To
Answer Unto The Chief Plea; And A Writ Shall Be Awarded at The
Suit Of The Demandant By The Justices Unto The Mayor And
Bailiffs, That They Shall Proceed in the Plea," &C;. 6 Edward
I., Ch. 12, (1278.)
Coke, In his Commentary On This Chapter, Also Speaks Repeatedly
Of "The Mayor And Bailiffs" As Judges Holding courts, And Also
Speaks Of This Chapter As Applicable Not Only To "The Citie Of
London, Specially Named for The Cause Aforesaid, But Extended by
Equity To All Other Privileged places," (That Is, Privileged to
Have A Court Of "Mayor And Bailiffs,") "Where Foreign Voucher Is
Made, As To Chester, Durham, Salop," &E;. 2 Inst., 325 7.
Bailie. In scotch Law, A Municipal Magistrate, Corresponding
With The English Alderman.[8] Burrill'S Law Dictionary.
Bailliffe Baillif. Fr. A Bailiff: A Ministerial Officer With
Duties Similar To Those Of A Sheriff. * * The Judge Of A Court. A
Municipal Magistrate, &C;. Burrill'S Law Dict.
Bailiff - The Word Bailiff Is Of Norman Origin, And Was Applied
In England, At An Early Period, (After The Example, It Is Said,
Of The French,) To The Chief Magistrates Of Counties, Or Shires,
Such As The Alderman, The Reeve, Or Sheriff, And Also Of Inferior
Jurisdictions, Such As Hundreds And Wapentakes. Spelman, Voc.
Balivus; 1 Bl. Com.,344. See Bailli, Ballivus. The Latin Ballivus
Occurs, Indeed, In the Laws Of Edward The Confessor, But Spelman
Thinks It Was Introduced by A Later Hand. Balliva (Bailiwick) Was
The Word Formed from Ballivus, To Denote The Extent Of Territory
Comprised within A Bailiff'S Jurisdiction; And Bailiwick Is Still
Retained in writs And Other Proceedings, As The Name Of A
Sheriff'S County. 1 Bl. Com., 344. See Balliva. The Office Of
Bailiff Was At First Strictly, Though Not Exclusively, A Judicial
One. In france, The Word Had The Sense Of What Spelman Calls
Justitia Tutelaris. Ballivus Occurs Frequently In the Regiam
Majestatem, In the Sense Of A Judge. Spelman. In its Sense Of A
Deputy, It Was Formerly Applied, In england, To Those Officers
Who, By Virtue Of A Deputation, Either From The Sheriff Or The
Lords Of Private Jurisdictions, Exercised within The Hundred, Or
Whatever Might Be The Limits Of Their Bailiwick, Certain Judicial
And Ministerial Functions. With The Disuse Of Private And Local
Jurisdictions, The Meaning of The Term Became Commonly Restricted
To Such Persons As Were Deputed by The Sheriff To Assist Him In
The Merely Ministerial Portion Of His Duty; Such As The Summoning
Of Juries, And The Execution Of Writs. Brande.. The Word
Bailiff Is Also Applied in england To The Chief Magistrates Of
Certain Towns And Jurisdictions, To The Keepers Of Castles,
Chapter 7 (Illegal Judges) Pg 164Forests And Other Places, And To The Stewards Or Agents Of Lords
Of Manors. Burrill'S Law Dict.
"Bailiff, (From The Lat. Ballivus; Fr. Baillif, I. E., Praefectus
Provinciae,) Signifies An Officer Appointed for The
Administration Of Justice Within A Certain District. The Office,
As Well As The Name, Appears To Have Been Derived from The
French," &C;. Brewster'S Encyclopedia.
Millar Says, "The French Monarchs, About This Period, Were Not
Content With The Power Of Receiving appeals From The Several
Courts Of Their Barons. An Expedient Was Devised of Sending royal
Bailiffs Into Different Parts Of The Kingdom, With A Commission
To Take Cognizance Of All Those Causes In which The Sovereign Was
Interested, And In reality For The Purpose Of Abridging and
Limiting the Subordinate Jurisdiction Of The Neighboring feudal
Superiors. By An Edict Of Phillip Augustus, In the Year 1190,
Those Bailiffs Were Appointed in all The Principal Towns Of The
Kingdom." Millar'S Hist. View Of The Eng. Gov., Vol. Ii., Ch.
8, P. 126.
"Bailiff- Office. Magistrates Who Formerly Administered justice
In The Parliaments Or Courts Of France, Answering to The English
Sheriffs, As Mentioned by Bracton." Bouvier'S Law Dict.
"There Be Several Officers Called bailiffs, Whose Offices And
Employments Seem Quite Different From Each Other... The Chief
Magistrate, In divers Ancient Corporations, Are Called bailiffs,
As In ipswich, Yarmouth, Colchester, &C;. There Are, Likewise,
Officers Of The Forest, Who Are Termed bailiffs." 1 Bacon'S
Abridgment, 498 9.
" Bailiff Signifies A Keeper Or Superintendent, And Is Directly
Derived from The French Word Bailli, Which Appears To Come From
The Word Balivus, And That From Bagalus, A Latin Word Signifying
Generally A Governor, Tutor, Or Superintendent... The French Word
Bailli Is Thus Explained by Richelet, (Dictionaire, &E;.:)
Bailli. He Who In a Province Has The Superintendence Of Justice,
Who Is The Ordinary Judge Of The Nobles, Who Is Their Head For
The Ban And Arriere Ban, [9] And Who Maintains The Right And
Property Of Others Against Those Who Attack Them... All The
Various Officers Who Are Called by This Name, Though Differing as
To The Nature Of Their Employments, Seem To Have Some Kind Of
Superintendence Intrusted to Them By Their Superior." Political
Dictionary.
" Bailiff, Balivus. From The French Word Bayliff, That Is,
Praefectus Provinciae, And As The Name, So The Office Itself Was
Answerable To That Of France, Where There Were Eight Parliaments,
Which Were High Courts From Whence There Lay No Appeal, And
Within The Precincts Of The Several Parts Of That Kingdom Which
Belonged to Each Parliament, There Were Several Provinces To
Which
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