An Essay On The Trial By Jury, Lysander Spooner [ebook reader browser .txt] 📗

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 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 163

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.)

 

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 164

Forests 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