An Essay On The Trial By Jury, Lysander Spooner [ebook reader browser .txt] 📗
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Bailiffs; And In england We Have Several Counties In which
Chapter 7 (Illegal Judges) Pg 165Justice 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 166Also, 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 167High 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 168Officers (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
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