An Essay on the Trial by Jury Part 21

ii., ch. 3, 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_, &c.:) _Bailli._--_He who in a province has the superintendence of justice, who is the ordinary judge of the n.o.bles_, who is their head for the _ban_ and _arriere ban_,[97] 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 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. 3, 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 _bailiff_ of Dover Castle, &c.

"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._

"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; 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_.)

"BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are either special, and appointed, for their adroitness, to arrest persons; or bailiffs of hundreds, who collect fines, summon juries, attend the a.s.sizes, 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 t.i.tle 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 t.i.tle (balio) was transferred to the Venetian amba.s.sador. 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 const.i.tute 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 const.i.tuted, almost everywhere, _the lowest order of judges_.

From the courts of the n.o.bility, the appellation pa.s.sed to the royal courts; from thence to the parliaments. In the greater bailiwicks of cities of importance, Henry II. established a collegial const.i.tution under the name of _presidial courts_.... _The name of bailiff was introduced into England with William I._ The counties were also called _bailiwicks_, (_ballivae_,) 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 munic.i.p.al officer yet bears this name, as the high bailiff of Westminster. In London, the Lord Mayor is at the same time bailiff, (which t.i.tle 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 Middles.e.x. _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._]

[Footnote 93: Perhaps it may be said (and such, it has already been seen, is the opinion of c.o.ke 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.

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.[98]

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, applies 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.

The idea of c.o.ke 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 cases_, 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.]

[Footnote 94: 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 a.s.sistants 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.]

[Footnote 95: In this extract, Palgrave seems to a.s.sume that the king himself had a right to sit as judge, in _jury_ trials, in the _county_ courts, in both civil and criminal cases. I apprehend he had no such power at the _common law_, but only to sit in the trial of appeals, and in the trial of peers, and of civil suits in which peers were parties, and possibly in the courts of ancient demesne.]

[Footnote 96: _Alderman_ was a t.i.tle 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.]

[Footnote 97: "_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._]

[Footnote 98: 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.]

CHAPTER VIII.

THE FREE ADMINISTRATION OF JUSTICE.

The free administration of justice was a principle of the common law; and it must necessarily be a part of every system of government which is not designed to be an engine in the hands of the rich for the oppression of the poor.

In saying that the free administration of justice was a principle of the common law, I mean only that parties were subjected to no costs for jurors, witnesses, writs, or other necessaries for the trial, _preliminary to the trial itself_. Consequently, no one could lose the benefit of a trial, for the want of means to defray expenses. _But after the trial_, the plaintiff or defendant was liable to be amerced, (by the jury, of course,) for having troubled the court with the prosecution or defence of an unjust suit.[99] But it is not likely that the losing party was subjected to an amercement as a matter of course, but only in those cases where the injustice of his cause was so evident as to make him inexcusable in bringing it before the courts.

All the freeholders were required to attend the courts, that they might serve as jurors and witnesses, and do any other service that could legally be required of them; and their attendance was paid for by the state. In other words, their attendance and service at the courts were part of the rents which they paid the state for their lands.

The freeholders, who were thus required always to attend the courts, were doubtless the only witnesses who were _usually_ required in _civil_ causes. This was owing to the fact that, in those days, when the people at large could neither write nor read, few contracts were put in writing. The expedient adopted for proving contracts, was that of making them in the presence of witnesses, who could afterwards testify to the transactions. Most contracts in regard to lands were made at the courts, in the presence of the freeholders there a.s.sembled.[100]

In the king's courts it was specially provided by Magna Carta that "justice and right" should not be "sold;" that is, that the king should take nothing from the parties for administering justice.

The oath of a party to the justice of his cause was all that was necessary to ent.i.tle him to the benefit of the courts free of all expense; (except the risk of being amerced after the trial, in case the jury should think he deserved it.[101])

_This principle of the free administration of justice connects itself necessarily with the trial by jury, because a jury could not rightfully give judgment against any man, in either a civil or criminal case, if they had any reason to suppose he had been unable to procure his witnesses._

The true trial by jury would also compel the free administration of justice from another necessity, viz., that of preventing private quarrels; because, unless the government enforced a man's rights and redressed his wrongs, _free of expense to him_, a jury would be bound to protect him in taking the law into his own hands. A man has a natural right to enforce his own rights and redress his own wrongs. If one man owe another a debt, and refuse to pay it, the creditor has a natural right to seize sufficient property of the debtor, wherever he can find it, to satisfy the debt. If one man commit a trespa.s.s upon the person, property or character of another, the injured party has a natural right, either to chastise the aggressor, or to take compensation for the injury out of his property. But as the government is an impartial party as between these individuals, it is more likely to do _exact_ justice between them than the injured individual himself would do. The government, also, having more power at its command, is likely to right a man's wrongs more peacefully than the injured party himself could do it.

If, therefore, the government will do the work of enforcing a man's rights, and redressing his wrongs, _promptly, and free of expense to him_, he is under a moral obligation to leave the work in the hands of the government; but not otherwise. When the government forbids him to enforce his own rights or redress his own wrongs, and deprives him of all means of obtaining justice, except on the condition of his employing the government to obtain it for him, _and of paying the government for doing it_, the government becomes itself the protector and accomplice of the wrong-doer. If the government will forbid a man to protect his own rights, it is bound to do it for him, _free of expense to him_. And so long as government refuses to do this, juries, if they knew their duties, would protect a man in defending his own rights.

Under the prevailing system, probably one half of the community are virtually deprived of all protection for their rights, except what the criminal law affords them. Courts of justice, for all civil suits, are as effectually shut against them, as though it were done by bolts and bars. Being forbidden to maintain their own rights by force,--as, for instance, to compel the payment of debts,--and being unable to pay the expenses of civil suits, they have no alternative but submission to many acts of injustice, against which the government is bound either to protect them, _free of expense_, or allow them to protect themselves.

There would be the same reason in compelling a party to pay the judge and jury for their services, that there is in compelling him to pay the witnesses, or any other _necessary_ charges.[102]

This compelling parties to pay the expenses of civil suits is one of the many cases in which government is false to the fundamental principles on which free government is based. What is the object of government, but to protect men's rights? On what principle does a man pay his taxes to the government, except on that of contributing his proportion towards the necessary cost of protecting the rights of all? Yet, when his own rights are actually invaded, the government, which he contributes to support, instead of fulfilling its implied contract, becomes his enemy, and not only refuses to protect his rights, (except at his own cost,) but even forbids him to do it himself.

All free government is founded on the theory of voluntary a.s.sociation; and on the theory that all the parties to it _voluntarily_ pay their taxes for its support, on the condition of receiving protection in return. But the idea that any _poor_ man would voluntarily pay taxes to build up a government, which will neither protect his rights, (except at a cost which he cannot meet,) nor suffer himself to protect them by such means as may be in his power, is absurd.

Under the prevailing system, a large portion of the lawsuits determined in courts, are mere contests of purses rather than of rights. And a jury, sworn to decide causes "according to the evidence" produced, are quite likely, _for aught they themselves can know_, to be deciding merely the comparative length of the parties' purses, rather than the intrinsic strength of their respective rights. Jurors ought to refuse to decide a cause at all, except upon the a.s.surance that all the evidence, necessary to a full knowledge of the cause, is produced. This a.s.surance they can seldom have, unless the government itself produces all the witnesses the parties desire.

In criminal cases, the atrocity of accusing a man of crime, and then condemning him unless he prove his innocence at his own charges, is so evident that a jury could rarely, if ever, be justified in convicting a man under such circ.u.mstances.

But the free administration of justice is not only indispensable to the maintenance of right between man and man; it would also promote simplicity and stability in the laws. The mania for legislation would be, in an important degree, restrained, if the government were compelled to pay the expenses of all the suits that grew out of it.

The free administration of justice would diminish and nearly extinguish another great evil,--that of malicious _civil_ suits. It is an old saying, that "_multi litigant in foro, non ut aliquid lucrentur, sed ut vexant alios_." (Many litigate in court, not that they may gain anything, but that they may hara.s.s others.) Many men, from motives of revenge and oppression, are willing to spend their own money in prosecuting a groundless suit, if they can thereby compel their victims, who are less able than themselves to bear the loss, to spend money in the defence. Under the prevailing system, in which the parties pay the expenses of their suits, nothing but money is necessary to enable any malicious man to commence and prosecute a groundless suit, to the terror, injury, and perhaps ruin, of another man. In this way, a court of justice, into which none but a conscientious _plaintiff_ certainly should ever be allowed to enter, becomes an arena into which any rich and revengeful oppressor may drag any man poorer than himself, and hara.s.s, terrify, and impoverish him, to almost any extent. It is a scandal and an outrage, that government should suffer itself to be made an instrument, in this way, for the gratification of private malice. We might nearly as well have no courts of justice, as to throw them open, as we do, for such flagitious uses. Yet the evil probably admits of no remedy except a free administration of justice. Under a free system, plaintiffs could rarely be influenced by motives of this kind; because they could put their victim to little or no expense, _neither pending the suit_, (which it is the object of the oppressor to do,) nor at its termination. Besides, if the ancient common law practice should be adopted, of amercing a party for troubling the courts with groundless suits, the prosecutor himself would, in the end, be likely to be amerced by the jury, in such a manner as to make courts of justice a very unprofitable place for a man to go to seek revenge.

In estimating the evils of this kind, resulting from the present system, we are to consider that they are not, by any means, confined to the actual suits in which this kind of oppression is practised; but we are to include all those cases in which the fear of such oppression is used as a weapon to compel men into a surrender of their rights.