| Ex uno disce omnes
. From
one judge learn the characters of all.
[6] |
|
I give in the note additional and abundant authorities for the meaning ascribed to the
word bailiff. The importance of the principle involved will be a sufficient excuse for
such an accumulation of authorities as would otherwise be tedious and perhaps unnecessary.
[7]
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[6]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 reasons 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 the criminal alike,
when
made against their own interests
, are entitled to be received as true, because it
is contrary to human nature for a man to confess anything but truth against himself.
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More solemn farces, or more gross impostures, were never practised upon mankind,
than are all, or very nearly all, those oracular 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.
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The reason why these courts are so intensely servile and corrupt, is, that they are
not only parts of, but the veriest 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.
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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.
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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.
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[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 Salop was
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.
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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:
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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.)
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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.
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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.
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"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 warrantor 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.)
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|
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.
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BAILIE. – In Scotch law, a municipal magistrate, corresponding with the
English alderman.[8]–
Burrill's
Law Dictionary.
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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.
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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, forests and other places, and
to the stewards or agents of lords of manors. –
Burrill's Law
Dict.
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"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.
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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.
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"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.
|
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"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.
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" 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.
|
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" 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 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 was
one of his names also, because the county is often called balliva;
as in the return of a writ, where the person is not arrested, the sheriff saith, infra-nominatus, A. B. non est inventus in balliva mea, &c.;
(the within named A. B. is not found in my bailiwick, &c.) And in the statute of Magna
Carta, ch. 28, and 14 Ed. 8, ch. 9, the word bailiff seems to
comprise as well sheriffs, as bailiffs of hundreds.
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BAILIES
, in Scotland, are magistrates of burghs, possessed of certain
jurisdictions, having the same power within their territory as sheriffs in the county.
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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 every hundred, which were the bailiffs. And it
appears by Bracton, (lib. 3, tract. 2, ch. 34,) that bailiffs of hundreds might anciently hold plea of appeal and
approvers; but since that time the hundred courts, except 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 writs, &c.,
within their liberties; though, in other respects, the name is still in good esteem, for
the chief magistrates in divers towns are called bailiffs;
and sometimes the persons to whom the king's castles are committed are termed bailiffs, as the bailiff of Dover
Castle, &c.,
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"Of the ordinary bailiffs there are several
sorts, viz., bailiffs of liberties; sheriffs' bailiffs; bailiffs of lords of manors;
bailiffs of husbandry, &c. "Bailiffs
of liberties or franchises are to be sworn to take distresses,
truly
impanel jurors
, make returns by indenture between them and sheriffs, &c. "Bailiffs of courts baron summon those courts, and execute the
process thereof. " Besides these, there are also
bailiffs of
the forest
... "– Jacob's Law Dict. Tomlin's do.
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"BAILIWICK, balliva, – 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 appointeth a bailiff,
with such powers within his precinct as an under-sheriff exerciseth under the sheriff of
the county; such as the bailiff of Westminster." – Jacob's Law Dict. Tomlin's do.
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"
A bailiff of a Leet, Court-baron, Manor, Balivus Letae,
Baronis, Manerii.
– He is one that is appointed by the lord, or his steward,
within every manor, to do such offices as appertain thereunto, as to summon the court,
warn the tenants and resiants; also, to summon the Leet and Homage, levy fines, and make
distresses, &c., of which you may read at large in
Kitchen's
Court-leet and Court-baron.
" –
A Law Dictionary,
anonymous, (in Suffolk Law Library.)
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"Bailliff – In England an officer appointed by the sheriff. Bailiff's 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 writs and
processes,
The sheriff in England is the king's bailiff. " The
office of bailiff formerly was high and honorable in England, and officers under that
title on the continent are still invested with important functions." – Webster.
|
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" BAILLI, (Scotland.) – An alderman; a magistrate who is second in rank
in a royal burgh." – Worcester.
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"Baili, or Bailiff. – (Sorte d'officier de
justice.) A bailiff; a sort of magistrate." –
Boyer's
French Dict.
|
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"By some opinions, a bailiff, in Magna Carta, ch.
28, signifies any judge." –
Cunningham's
Law Dict.
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"BAILIFF. – In the court of the Greek emperors there was a grand bajulos, first tutor of the emperor's children. The superintendent
of foreign merchants seems also to have been called bajulos;
and, as he was appointed by the Venetians, this title (balio) was transferred to the
Venetian ambassador. From Greece, the official
bajulos (ballivus,
bailli
, in France; bailiff, in England,) was
introduced into the south of Europe, and denoted a superintendent; hence the eight ballivi 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 judges of their districts. In
the course of time, only the first duty remained to the bailiff; hence he was
bailli d'epee, and laws were administered in his name by a lawyer, as his
deputy, lieutenant de robe.
The seigniories, 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 parliaments. In the greater bailiwicks of cities of
importance, Henry II. established a collegial constitution under the name of presidial courts...
The name of bailiff was
introduced into England with William I.
The counties were also called bailiwicks, (bailivae,) 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 huissiers. 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 this name, as the high bailiff of Westminster. In London, the
Lord Mayor is at the same time bailiff; (which title he bore before the present became
usual,)
and administers, 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 Middlesex.
Usually,
the recorder of London supplies his place as judge.
In some instances the term bailiff, in England, is applied to the chief magistrates of towns,
or to the commanders of particular castles, as that of Dover. The term baillie, in Scotland, is applied to a judicial police-officer,
having powers very similar to those of justices of peace in the United States."
– Encyclopaedia Americana.
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[8]Alderman was 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
Wapentake. These were all judicial officers. See Law
Dictionaries.
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[9]" Ban and arriere 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 personally, or by proxy." – Boyer.
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| 166, 167, 168, 169 |
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The foregoing interpretation of the chapter of Magna Carta now under discussion, is
corroborated by another chapter of Magna Carta, which specially provides that the king's
justices shall "go through every county" to "take the assizes" (hold
jury trials) in three kinds of civil actions, to wit, "novel disseisin, mort de
ancestor, and darrein presentment;" but makes no mention whatever of their holding
jury trials in criminal cases, – an omission
wholly unlikely to be made, if it were designed they should attend the trial of such
causes. Besides, the 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. [10]
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[10]Perhaps it may be said (and such, it has already been seen, is the opinion of
Coke and others) that 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 bailiff's) 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.
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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 (simplici loquela) 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." [11]
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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,"&c. The prohibition, therefore, applied to all
"bailiffs," – to those 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 probably also in this) that public officers (whether appointed by 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.
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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 were no witnesses
against him, but only the simple accusation or testimony of 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
case
, 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 bailiffs 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 these 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.
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[11]At the 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.
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170
|
But what would appear to make this matter ahsolute1y certain is, that unless the
prohibition that "no bailiff, &c., of ours
shall hold pleas of our crown," apply to all officers of the king, justices as well
as others, it would be wholly nugatory for any practical or useful purpose, because the
prohibition could be evaded by the king, at any time, by simply changing the titles of his
officers. Instead of calling them "sheriffs, coroners, constables and bailiffs,"
he could call them "justices," or anything
else he pleased; and this prohibition, so important to the liberty of the people, would
then be entirely defeated. The king also could make and unmake "justices" at his
pleasure; and if he could appoint any officers whatever to preside over juries in criminal
trials, he could appoint any tool that he might at any time find adapted to his purpose.
It was as easy to make justices of Jeffreys and Scroggs, as of any other material; and to
have prohibited all the king's officers, except his justices,
from presiding in criminal trials, would therefore have been mere fool's play.
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171
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We can all perhaps form some idea, though few of us will be likely to form any
adequate idea, of what a different thing the trial by jury would have been in practice, and of what would have been the difference to
the liberties of England, for five hundred years last past, had this prohibition of Magna
Carta, upon the king's officers sitting in the trial of criminal cases, been observed. The
principle of this chapter of Magna Carta, as applicable to the governments of the United
States of America, forbids that any officer appointed either by the executive
or legislative power, or dependent upon them for their
salaries, or responsible to them by impeachment, should preside over a jury in criminal
trials. To have the trial a legal (that is, a common law) and true trial by jury, the
presiding officers must be chosen by the people, and be entirely free from all dependence
upon, and all accountability to, the executive and legislative branches of the government.
[12]
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[12]In this chapter I have 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 are only assistants 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.
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