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

Justice Was Administered by Certain Officers Called

Bailiffs; And In england We Have Several Counties In which

Chapter 7 (Illegal Judges) Pg 165

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.

 

Bailies,  In scotland,  Are Magistrates Of Burghs,  Possessed of

Certain Jurisdictions,  Having the Same Power Within Their

Territory As Sheriffs In the County.

 

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 Bailiffof

Dover Castle,  &C;.,

 

"Of The Ordinary Bailiffs There Are Several Sorts,  Viz.,  Bailiffsof

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.

 

"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.

 

"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;

Chapter 7 (Illegal Judges) Pg 166

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.)

 

"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.

 

"Bailli,  (Scotland.)   An Alderman; A Magistrate Who Is Second In

Rank In a Royal Burgh."   Worcester.

 

"Baili,  Or Bailiff.   (Sorte D'Officier De Justice.) A Bailiff; A

Sort Of Magistrate."   Boyer'S French Dict.

 

"By Some Opinions,  A Bailiff,  In magna Carta,  Ch. 28,  Signifies

Any Judge."   Cunningham'S Law Dict.

 

"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 Someof Them Under Him,  For Whom He Is Answerable. In some

Cities The Highest Municipal Officer Yet Bears This Name,  As The

Chapter 7 (Illegal Judges) Pg 167

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.

 

[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.

 

[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.

 

[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 Areto Sit

In Such Trials.

 

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]

 

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

Chapter 7 (Illegal Judges) Pg 168

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.

 

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