Atrocious Judges Part 25

[2] See Forsyth's _History of Trial by Jury_, ch. iv. sec. 4.

[3] History of England, Appendix, I.

[4] The decision of this majority would seem to have been princ.i.p.ally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superst.i.tious appeal to the ordeal.

[5] History of England, Appendix, II.

[6] We may observe that even at present, whether in England or America, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities.

[7] In the king's absence--and the Anglo-Norman kings were often absent on visits to their continental dominions--this chief justiciary acted in all respects as the king's subst.i.tute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. Such was the case with Ranulphus de Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise in Latin, _On the Laws and Customs of the Kingdom of England_, is the oldest book of the common law. He went with Richard I. on the third crusade, and was killed at the siege of Acre.

[8] It might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were subst.i.tuted for the exercise of the reasoning faculties.

[9] Not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king's courts, by the writ of _pone_ and others.

[10] Originally, and down to a comparatively recent period, the Inns of Court were real schools, "readers" or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. Now, the examination is a mere form, and the student seeks instruction where he pleases. Even the nominal term of study has been reduced to five, and in some cases to three years.

[11] This distinction between attorneys and barristers, though still in full vogue in England and in several of the British colonies, is not recognized in the United States, where, indeed, it never had but a feeble and transient existence.

[12] Down to the period of the reformation the abbots of the greater monasteries sat also in this house.

[13] If the Lords, says Campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. It certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them.

[14] Hence the necessity of venue, that is, the allegation in all declarations and indictments of some place in some county where the matter complained of happened, in order to a trial by a jury of the vicinage. In personal actions this necessity of trying a case in the county where the transaction occurred was got rid of by first setting out the true place of the transaction, and then alleging under a _videlicet_ a venue in the county where the action was brought, which latter allegation the courts would not allow to be disputed. But in criminal proceedings and real actions the necessity of a trial in the county where the offence was committed or the land lies still continues.

The origin of the jury in a body of neighbors who decided from their own knowledge will seem less remarkable when we recollect that by the customs of the Anglo-Saxons all sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. See Palgrave's _English Commonwealth_, vol. i. p. 213.

[15] See Forsyth's _Trial by Jury_, ch. x. sec. 1.

[16] Down to the time of Elizabeth _all_ cases occurring in Middles.e.x county, in which Westminster lies, were thus tried in bank.

[17] In London and Middles.e.x four sessions were held a year; in the four northern counties only one.

[18] This history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the District Courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be r.e.t.a.r.ded in their action, if not reduced to imbecility by divisions among their members.

[19] The appeal from the English colonial courts to the king in council--the appeal cases being heard and decided by a committee of the privy councillors learned in the law--is another remnant of the old system, in which the const.i.tution of the ancient Aula Regis has been very accurately preserved.

[20] Both these courts proceeded according to the forms of the civil law, and without a jury. But occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of Henry VIII. the trial of all maritime felonies before the Admiralty Court was directed to be by jury.

[21] Hyde, (afterwards Lord Clarendon,) himself a lawyer, by whom the usurpations of this court were brought to the notice of Parliament, stated that more damages had been given by the earl marshal in his days, for words of supposed defamation, of which the law took no notice, than by all the courts of Westminster Hall during a whole term.

[22] The name is sometimes spelt Brabacon, Brabancon, Brabason, and Brabanson.

[23] Hume, who designates them "desperate ruffians," says "troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another; they often acted in an independent manner, and under leaders of their own. The greatest monarchs were not ashamed, on occasion, to have recourse to their a.s.sistance; and as their habits of war and depredation had given them experience, hardiness, and courage, they generally composed the most formidable part of those armies which decided the political quarrels of princes."--Vol. i. 438. In America we have no mercenary soldiers, but plenty of mercenary politicians, almost as much to be dreaded.--_Ed._

[24] They were removed because, during the king's absence on the continent, they had been guilty of taking bribes, and other misdemeanors.

Of De Wayland, one of their number, and the first chief justice of the Common Pleas, Lord Campbell gives the following account: When arrested, on the king's return from Aquitaine, conscious of his guilt, he contrived to escape from custody, and, disguising himself in the habit of a monk, he was admitted among friars-minors in a convent at Bury St. Edmund's.

However, being considered a heinous offender, sharp pursuit was made after him, and he was discovered wearing a cowl and a serge jerkin. According to the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. At the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. Still it would have been deemed sacrilegious to take him from his asylum by violence; but the lord chief justice preferred surrendering himself to peris.h.i.+ng from want. He was immediately conducted to the Tower of London.

Rather than stand a trial, he pet.i.tioned for leave to abjure the realm; this favor was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the crown. Having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side at Dover, he was put on board a s.h.i.+p and departed to foreign parts. He is said to have died in exile, and he left a name often quoted as a reproach to the bench till he was superseded by Jeffreys and Scroggs.

[25] That is, in the ordinary discharge of his duties. His attempt to take away the liberties of the Scotch we shall presently see.--_Ed._

[26] Just like our northern candidates for the presidency, and the dough-face politicians who contrive to get chosen to Congress by northern const.i.tuencies, whose rights they then barter away and betray.--_Ed._

[27] This is the very ground upon which it is attempted, now, to justify the repeal of the Missouri prohibition of slavery, while Brabacon's defence of English judges in Scotland is a counterpart to the justification by our federal judges of the authority given to slave-catching commissioners.--_Ed._

[28] May the pending attempts of the Southern States, countenanced and supported by the federal judges, to establish a "superiority" and "direct dominion" over the north, be met and repelled with similar spirit and success!--_Ed._

[29] He had been murdered by a body of insurgent peasants headed by Jack Straw, one of the leaders in Wat Tyler's insurrection.--_Ed._

[30] Some of our federal judges would no doubt like very much to see this rule established among us.--_Ed._

[31] The persistence of Richard II. in the same arbitrary principles of which the advocacy cost Tresilian his life, caused his deposition a few years afterwards, as to which, Lord Campbell observes,--

"While we honor Lord Somers and the patriots who took the most active part in the revolution of 1688, by which a king was cas.h.i.+ered, hereditary right was disregarded, and a new dynasty was placed on the throne, we are apt to consider the kings of the house of Lancaster as usurpers, and those who sided with them as rebels. Yet there is great difficulty in justifying the deposition of James II., and condemning the deposition of Richard II. The latter sovereign, during a reign of above twenty years, had proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to const.i.tutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppression; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather, was now almost unanimously resolved to submit no longer to his rule."

[32] Fuller, in praising Fortescue and Markham, says, "These I may call two chief justices of the chief justices, for their signal integrity; for though the one of them favored the house of Lancaster, and the other of York, in the t.i.tles to the crown, both of them favored the house of Justice in matters betwixt party and party."

[33] A list by no means limited to England, but very much lengthened out in America.--_Ed._

[34] Some of our American advocates of constructive treasons have laid down the law much in the same spirit.--_Ed._

[35] It was, we may suppose, from this charge that Mr. Justice Curtis, of the Supreme Court of the United States, got the law retailed in his charge to the grand jury of the Ma.s.sachusetts District, in consequence of which indictments were found against Wendell Phillips and Theodore Parker for obstructing the execution of the fugitive slave act--on the ground that certain speeches of theirs in Faneuil Hall against that statute "referred to a purpose" and "incited to an act" of resistance to it, thereby making their expression of opinion criminal.--_Ed._

[36] The recent claim set up in America for legislative supremacy over conscience--a claim contended for by so many of our leading lawyers and divines--is not less blasphemous and outrageous than this claim of Henry VIII., and belongs to the same category.--_Ed._

[37] This would hardly be allowed by some of our American juridical deniers and deriders of the "higher law." It is hard to distinguish a law (such as the fugitive slave act) which sets the moral sentiment at defiance, from a law that G.o.d shall not be G.o.d.--_Ed._

[38] One striking instance, among a thousand, both old and new, how little the so much vaunted decisions of courts virtually amount to. Decisions that are to stand, can only stand upon their own inherent rect.i.tude and reasonableness, and not upon the authority of those who make them.--_Ed._

[39] Some of our American judges who have of late attained a very unenviable public character have also the reputation of being virtuous and amiable in private life.--_Ed._

[40] Noy at this time was of the popular party. He afterwards went over to the court, and was made attorney general.--_Ed._

[41] Similar pretences of respect for law and popular rights often serve as preface here in America to judgments as atrocious as that of Chief Justice Hyde.--_Ed._

[42] This is the universal excuse for all sins, whether of omission or commission, on the part of courts who pay but little regard to Bishop Burnet's sensible observation that a precedent against reason "signifies no more but that the like injustice has been done before."--_Ed._

[43] Though the lawyers, both in England and America, have long since abandoned the pretence, so impudently maintained by Hyde, of a right in the executive authorities to imprison for contempt, into the ground and nature of which the courts had no right to inquire, they still claim for themselves and for one another--at least in Pennsylvania--a like right, and insist with the same unction upon the absolute necessity of trusting "the courts" in these matters, and of relying upon their "mercy." See, in the Appendix, No. 3, the opinion of the Supreme Court of Pennsylvania, as delivered by Judge Black, of which the insolent conclusion was evidently borrowed from the above opinion of Chief Justice Hyde.--_Ed._

[44] This celebrated lawyer, who had succeeded Fleming as chief justice of the King's Bench, had been, as well as Crewe, turned out of office after holding the place for three years, because he would not allow the government to interfere with his administration of justice. He was now the leader of the popular party in the House of Commons.--_Ed._

[45] We have had recent striking instances in America of the same thing in some of the "misconstructions" placed by judges on the laws in restraint of drunkenness and liquor selling.--_Ed._

[46] Like those given by several federal judges in support of the fugitive slave act.--_Ed._

[47] Noy had begun, like Brampston, a flaming patriot, but, like him and so many other lawyers, had been bought over to the side of power by the hope of promotion, and being made attorney general, had advised the issue of the writs for s.h.i.+p money.--_Ed._