An Essay on the Trial by Jury Part 19

[Footnote 80: Although all the freemen are legally eligible as jurors, any one may nevertheless be challenged and set aside, at the trial, for any special _personal_ disqualification; such as mental or physical inability to perform the duties; having been convicted, or being under charge, of crime; interest, bias, &c. But it is clear that the common law allows none of these points to be determined by the court, but only by "_triers_."]

[Footnote 81: What was the precise meaning of the Saxon word, which I have here called _elderly_, I do not know. In the Latin translations it is rendered by _seniores_, which may perhaps mean simply those who have attained their majority.]

[Footnote 82: In 1483 it was enacted, by a statute ent.i.tled "Of what credit and estate those jurors must be which shall be impanelled in the Sheriff's Turn."

"That no bailiff nor other officer from henceforth return or impanel any such person in any s.h.i.+re of England, to be taken or put in or upon any inquiry in any of the said Turns, but such as be of good name and fame, and having lands and tenements of freehold within the same s.h.i.+res, to the yearly value of _twenty s.h.i.+llings_ at the least, or else lands and tenements holden by custom of manor, commonly called _copy-hold_, within the said s.h.i.+res, to the yearly value of twenty-six s.h.i.+llings eight pence over all charges at the least."--_1 Richard III._, ch. 4. (1483.)

In 1486 it was enacted, "That the justices of the peace of every s.h.i.+re of this realm for the time being may take, by their discretion, an inquest, whereof every man shall have lands and tenements to the yearly value of _forty s.h.i.+llings_ at the least, to inquire of the concealments of others," &c., &c.--_3 Henry VII._, ch. 1 (1486.)

A statute pa.s.sed in 1494, in regard to jurors in the city of London, enacts:

"That no person nor persons hereafter be impanelled, summoned, or sworn in any jury or inquest in courts within the same city, (of London,) except he be of lands, tenements, or goods and chattels, to the value of _forty marks_;[86] and that no person or persons hereafter be impanelled, summoned, nor sworn in any jury or inquest in any court within the said city, for lands or tenements, or action personal, wherein the debt or damage amounteth to the sum of forty marks, or above, except he be in lands, tenements, goods, or chattels, to the value of _one hundred marks_."--_11 Henry VII._, ch.

21. (1494.)

The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in London to have "_goods_ to the value of one hundred marks."

In 1494 it was enacted that "It shall be lawful to every sheriff of the counties of _Southampton_, _Surrey_, _and Suss.e.x_, to impanel and summons twenty-four lawful men of such, inhabiting within the precinct of his or their turns, as owe suit to the same turn, whereof every one hath lands or freehold to the yearly value of _ten_ s.h.i.+llings, or copy-hold lands to the yearly value of _thirteen s.h.i.+llings four pence_, above all charges within any of the said counties, or men of less livelihood, if there be not so many there, notwithstanding the statute of _1 Richard III._, ch. 4. To endure to the next parliament."--_11 Henry VII._, ch. 26. (1494.)

This statute was continued in force by _19 Henry VII._, ch. 16. (1503.)

In 1531 it was enacted, "That every person or persons, being the king's natural subject born, which either by the name of citizen, or of a freeman, or any other name, doth enjoy and use the liberties and privileges of any city, borough, or town corporate, where he dwelleth and maketh his abode, being worth in _movable goods and substance_ to the clear value of _forty pounds_, be henceforth admitted in trials of murders and felonies in every sessions and gaol delivery, to be kept and holden in and for the liberty of such cities, boroughs, and towns corporate, albeit they have no freehold; any act, statute, use, custom, or ordinance to the contrary hereof notwithstanding."--_23 Henry VIII._, ch. 13. (1531.)

In 1585 it was enacted, "That in all cases where any jurors to be returned for trial of any issue or issues joined in any of the Queen's majesty's courts of King's Bench, Common Pleas, and the Exchequer, or before justices of a.s.size, by the laws of this realm now in force, ought to have estate of freehold in lands, tenements, or hereditaments, of the clear yearly value of _forty s.h.i.+llings_, that in every such case the jurors that shall be returned from and after the end of this present session of parliament, shall every of them have estate of freehold in lands, tenements, or hereditaments, to the clear yearly value of _four pounds_ at the least."--_27 Elizabeth_, ch. 6. (1585.)

In 1664-5 it was enacted, "That all jurors (other than strangers upon trials _per medietatem linguae_) who are to be returned for the trials of issues joined in any of (his) majesty's courts of king's bench, common pleas, or the exchequer, or before justices of a.s.size, or nisi prius, oyer and terminer, gaol delivery, or general or quarter sessions of the peace, from and after the twentieth day of April, which shall be in the year of our Lord one thousand six hundred and sixty-five, in any county of this realm of England, shall every of them thon have, in their own name, or in trust for them, within the same county, _twenty pounds by the year_, at least, above reprises, in their own or their wives' right, of freehold lands, or of ancient demesne, or of rents in fee, fee-tail, or for life. And that in every county within the dominion of Wales every such juror shall then have, within the same, _eight pounds by the year_, at the least, above reprises, in manner aforesaid. All which persons having such estate as aforesaid are hereby enabled and made liable to be returned and serve as jurors for the trial of issues before the justices aforesaid, any law or statute to the contrary in any wise notwithstanding."--_16 and 17 Charles II._, ch. 3. (1664-5.)

By a statute pa.s.sed in 1692, jurors in England are to have landed estates of the value of _ten pounds a year_; and jurors in Wales to have similar estates of the realm of _six pounds a year_.--_4 and 5 William and Mary_, ch. 24, sec. 14. (1692.)

By the same statute, (sec. 18,) persons may be returned to serve upon the _tales_ in any county of England, who shall have, within the same county, _five pounds by the year_, above reprises, in the manner aforesaid.

By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in London, who shall not be "an householder within the said city, and have lands, tenements, or personal estate, to the value of _one hundred pounds_."

By another statute, applicable only to the county of _Middles.e.x_, it is enacted,

"That all leaseholders, upon leases where the improved rents or value shall amount to _fifty pounds or upwards per annum_, over and above all ground rents or other reservations payable by virtue of the said leases, shall be liable and obliged to serve upon juries when they shall be legally summoned for that purpose."--_4 George II._, ch. 7, sec. 3. (1731.)]

[Footnote 83: Suppose these statutes, instead of disfranchising all whose freeholds were of less than the standard value fixed by the statutes, had disfranchised all whose freeholds were of greater value than the same standard--would anybody ever have doubted that such legislation was inconsistent with the English const.i.tution; or that it amounted to an entire abolition of the trial by jury? Certainly not. Yet it was as clearly inconsistent with the common law, or the English const.i.tution, to disfranchise those whose freeholds fell below any arbitrary standard fixed by the government, as it would have been to disfranchise all whose freeholds rose above that standard.]

[Footnote 84: _Lingard_ says: "These compurgators or jurors * * were sometimes * * _drawn by lot_."--_1 Lingard's History of England_, p.

300.]

[Footnote 85: Chapter 4, p. 120, note.]

[Footnote 86: A mark was thirteen s.h.i.+llings and four pence.]

CHAPTER VII.

ILLEGAL JUDGES.

It is a principle of Magna Carta, and therefore of the trial by jury, (for all parts of Magna Carta must be construed together,) that no judge or other officer _appointed by the king_, shall preside in jury trials, _in criminal cases_, or "pleas of the crown."

This provision is contained in the great charters of both John and Henry, and is second in importance only to the provision guaranteeing the trial by jury, of which it is really a part. Consequently, without the observance of this prohibition, there can be no genuine or _legal_--that is, _common law_--trial by jury.

At the common law, all officers who held jury trials, whether in civil or criminal cases, were chosen by the people.[87]

But previous to Magna Carta, the kings had adopted the practice of sending officers of their own appointment, called justices, into the counties, to hold jury trials in some cases; and Magna Carta authorizes this practice to be continued so far as it relates to _three_ kinds of _civil_ actions, to wit: "novel disseisin, mort de ancestor, and darrein presentment;"[88] but specially forbids its being extended to criminal cases, or pleas of the crown.

This prohibition is in these words:

"Nullus vicecomes, constabularius, coronator, _vel alii balivi nostri_, teneant placita coronae nostrae." (No sheriff, constable, coroner, _or other our bailiffs_, shall hold pleas of our crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17.

Some persons seem to have supposed that this was a prohibition merely upon officers _bearing the specific names of_ "_sheriffs, constables, coroners and bailiffs_," to hold criminal trials. But such is not the meaning. If it were, the _name_ could be changed, and the _thing_ retained; and thus the prohibition be evaded. The prohibition applies (as will presently be seen) to all officers of the king whatsoever; and it sets up a distinction between officers _of the king_, ("_our_ bailiffs,") and officers chosen by the people.

The prohibition upon the king's _justices_ sitting in criminal trials, is included in the words "_vel alii balivi nostri_," (or other our bailiffs.) The word _bailiff_ was anciently a sort of general name for _judicial officers_ and persons employed in and about the administration of justice. In modern times its use, as applied to the higher grades of judicial officers, has been superseded by other words; and it therefore now, more generally, if not universally, signifies an executive or police officer, _a servant of courts_, rather than one whose functions are purely judicial.

The word is a French word, brought into England by the Normans.

c.o.ke says, "_Baylife_ is a French word, and signifies an officer concerned in the administration of justice of a certain province; and because a sheriff hath an office concerning the administration of justice within his county, or bailiwick, therefore he called his county _baliva sua_, (his bailiwick.)

"I have heard great question made what the true exposition of this word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter of that statute is, _nullus balivus de caetero ponat aliquem ad legem manifestam nec ad juramentum simplici loquela sua sine testibus fidelibus ad hoc inductis_." (No bailiff from henceforth shall put any one to his open law, nor to an oath (of self-exculpation) upon his own simple accusation, or complaint, without faithful witnesses brought in for the same.) "And some have said that _balivus_ in this statute signifieth _any judge_; for the law must be waged and made before the judge. And this statute (say they) extends to _the courts of common pleas_, _king's bench_, &c., for they must bring with them _fideles testes_, (faithful witnesses,) &c., _and so hath been the usage to this day_."--_1 c.o.ke's Inst._, 168 b.

c.o.ke makes various references, in his margin to Bracton, Fleta, and other authorities, which I have not examined, but which, I presume, support the opinion expressed in this quotation.

c.o.ke also, in another place, under the head of the chapter just cited from Magna Carta, that "_no bailiff shall put any man to his open law_,"

&c., gives the following commentary upon it, from the _Mirror of Justices_, from which it appears that in the time of Edward I., (1272 to 1307,) this word _balivus_ was understood to include _all judicial_, as well as all other, officers of the king.

The Mirror says: "The point which forbiddeth that no _bailiff_ put a freeman to his oath without suit, is to be understood in this manner,--_that no justice, no minister of the king_, nor other steward, nor bailiff, have power to make a freeman make oath, (of self-exculpation,) _without the king's command_,[89] nor receive any plaint, without witnesses present who testify the plaint to be true."--_Mirror of Justices_, ch. 5, sec. 2, p. 257.

c.o.ke quotes this commentary, (in the original French,) and then endorses it in these words:

"By this it appeareth, that under this word _balivus_, in this act, is comprehended _every justice, minister of the king_, steward, and bailiff."--2 _Inst._, 44.

c.o.ke also, in his commentary upon this very chapter of Magna Carta, that provides that "_no sheriff, constable, coroner, or other our bailiffs, shall hold pleas of our crown_," expresses the opinion that it "_is a general law_," (that is, applicable to all officers of the king,) "by reason of the words _vel alii balivi nostri_, (or other our bailiffs,) _under which words are comprehended all judges or justices of any courts of justice_." And he cites a decision in the king's bench, in the 17th year of Edward I., (1289,) as authority; which decision he calls "a notable and leading judgment."--_2 Inst._, 30--1.

And yet c.o.ke, in flat contradiction of this decision, which he quotes with such emphasis and approbation, and in flat contradiction also of the definition he repeatedly gives of the word _balivus_, showing that it embraced _all ministers of the king whatsoever_, whether high or low, judicial or executive, fabricates an entirely gratuitous interpretation of this chapter of Magna Carta, and pretends that after all it only required that _felonies_ should be tried before the king's _justices, on account of their superior learning_; and that it permitted all lesser offences to be tried before inferior officers, (meaning of course the _king's_ inferior officers.)--_2 Inst._, 30.

And thus this chapter of Magna Carta, which, according to his own definition of the word _balivus_, applies to all officers of the king; and which, according to the common and true definition of the term "pleas of the crown," applies to all criminal cases without distinction, and which, therefore, forbids any officer or minister of the king to preside in a jury trial in any criminal case whatsoever, he coolly and gratuitously interprets into a mere senseless provision for simply restricting the discretion of the king in giving _names_ to his own officers who should preside at the trials of particular offences; as if the king, who made and unmade all his officers by a word, could not defeat the whole object of the prohibition, by appointing such individuals as he pleased, to try such causes as he pleased, and calling them by such names as he pleased, _if he were but permitted to appoint and name such officers at all_; and as if it were of the least importance what _name_ an officer bore, whom the king might appoint to a particular duty.[90]

c.o.ke evidently gives this interpretation solely because, as he was giving a general commentary on Magna Carta, he was bound to give some interpretation or other to every chapter of it; and for this chapter he could invent, or fabricate, (for it is a sheer fabrication,) no interpretation better suited to his purpose than this. It seems never to have entered his mind, (or if it did, he intended that it should never enter the mind of anybody else,) that the object of the chapter could be to deprive the king of the power of putting his creatures into criminal courts, to pack, cheat, and browbeat juries, and thus maintain his authority by procuring the conviction of those who should transgress his laws, or incur his displeasure.

This example of c.o.ke tends to show how utterly blind, or how utterly corrupt, English judges, (dependent upon the crown and the legislature), have been in regard to everything in Magna Carta, that went to secure the liberties of the people, or limit the power of the government.

c.o.ke's interpretation of this chapter of Magna Carta is of a piece with his absurd and gratuitous interpretation of the words "_nec super eum ibimus, nec super eum mittemus_," which was pointed out in a former article, and by which he attempted to give a _judicial_ power to the king and his judges, where Magna Carta had given it only to a jury. It is also of a piece with his pretence that there was a difference between _fine_ and _amercement_, and that _fines_ might be imposed by the king, and that juries were required only for fixing _amercements_.

These are some of the innumerable frauds by which the English people have been cheated out of the trial by jury.