An Essay on the Trial By Jury

Part 4 out of 6

3. That these presumptions shall be overcome, in a court of
justice, only by evidence, the sufficiency of which, and by law,
the justice of which, are satisfactory to the under- standing and
consciences of all the jurors.

These are the bases on which the trial by jury places the
property, liberty, and rights of every individual.

But some one will say, if these are the principles of the trial by
jury, then it is plain that justice must often fail to be done.
Admitting, for the sake of the argument, that this may be true,
the compensation for it is, that positive injustice will also
often fail to be done; whereas otherwise it would be done
frequently. The very precautions used to prevent injustice being
done, may often have the effect to prevent justice being done. Bu
are we, therefore, to take no precautions against injustice? By no
means, all will agree. The question then arises Does the trial
by jury, as here explained, involve such extreme and unnecessary
precautions against injustice, as to interpose unnecessary
obstacles to the doing of justice? Men of different minds may very
likely answer this question differently, according as they have
more or less confidence in the wisdom and justice of legislators,
the integrity and independence of judges, and the intelligence of
jurors. This much, however, may be said in favor of these
precautions, viz., that the history of the past, as well as our
constant present experience, prove how much injustice may, and
certainly will, be done, systematically and continually, for the
want of these precautions that is, while the law is authoritatively
made and expounded by legislators and judges. On the other hand,
we have no such evidence of how much justice may fail to be done,
by reason of these precautions that is, by reason of the law being
left to the judgments and consciences of jurors. We can determine
the former point that is, how much positive injustice is done
under the first of these two systems because the system is in full
operation; but we cannot determine how much justice would
fail to be done under the latter system, because we have, in
modern times, had no experience of the use of the precautions
themselves. In ancient times, when these precautions were
nominally in force, such was the tyranny of kings, and such the
poverty, ignorance, and the inability of concert and resistance,
on the part of the people, that the system had no full or fair
operation. It, nevertheless, under all these disadvantages,
impressed itself upon the understandings, and imbedded itself
in the hearts, of the people, so as no other system of civil liberty
has ever done.

But this view of the two systems compares only the injustice done,
and the justice omitted to be done, in the individual cases adjudged,
without looking beyond them. And some persons might, on
first thought, argue that, if justice failed of being done under
the one system, oftener than positive injustice were done under
the other, the balance was in favor of the latter system. But such
a weighing of the two systems against each other gives no true
idea of their comparative merits or demerits; for, possibly, in
this view alone, the balance would not be very great in favor of
either. To compare, or rather to contrast, the two, we must
consider that, under the jury system, the failures to do justice
would be only rare and exceptional cases; and would be owing
either to the intrinsic difficulty of the questions, or to the
fact that the parties had. transacted their business in a manner
unintelligible to the jury, and the effects would be confined to
the individual or individuals interested in the particular suits.
No permanent law would be established thereby destructive of the
rights of the people in other like cases. And the people at large
would continue to enjoy all their natural rights as before. But
under the other system, whenever an unjust law is enacted by the
legislature, and the judge imposes it upon the jury as
authoritative, and they give a judgment in accordance therewith,
the authority of the law is thereby established, and the whole
people are thus brought under the yoke of that law; because they
then understand that the law will be enforced against them in
future, if they presume to exercise their rights, or refuse to
comply with the exactions of the law. In this manner all unjust
laws are established, and made operative against the rights of the
people.

The difference, then, between the two systems is this: Under the
one system, a jury, at distant intervals, would (not enforce any
positive injustice, but only) fail of enforcing justice, in a dark
and difficult case, or in consequence of the parties not having
transacted their business in a manner intelligible to a jury; and
the plaintiff would thus fail of obtaining what was rightfully due
him. And there the matter would end, for evil, though not for
good; for thenceforth parties, warned, of the danger of losing
their rights, would be careful to transact their business in a
more clear and intelligible manner. Under the other system the
system of legislative and judicial authority positive injustice
is not only done in every suit arising under unjust laws, that
is, men's property, liberty, or lives are not only unjustly taken
on those particular judgments, but the rights of the whole people
are struck down by the authority of the laws thus enforced, and a
wide-sweeping tyranny at once put in operation.

But there is another ample and conclusive answer to the argument
that justice would often fail to be done, if jurors were allowed
to be governed by their own consciences, instead of the direction
of the justices, in matters of law. That answer is this:

Legitimate government can be formed only by the voluntary
association of all who contribute to its support. As a voluntary
association, it can have for its objects only those things in
which the members of the association are all agreed. If,
therefore, there be any justice, in regard to which all the
parties to the government are not agreed, the objects of the
association do not extend to it. [3]

If any of the members wish more than this, if they claim to have
acquired a more extended knowledge of justice than is common to
all, and wish to have their pretended discoveries carried into
effect, in reference to themselves, they must either form a
separate association for that purpose, or be content to wait until
they can make their views intelligible to the people at large.
They cannot claim or expect that the whole people shall practise
the folly of taking on trust their pretended superior knowledge,
and of committing blindly into their hands all their own
interests, liberties, and rights, to be disposed of on principles,
the justness of which the people themselves cannot comprehend.

A government of the whole, therefore, must necessarily confine
itself to the administration of such principles of law as all the
people, who contribute to the support of the government, can
comprehend and see the justice of. And it can be confined within
those limits only by allowing the jurors, who represent all the
parties to the compact, to judge of the law, and the justice of
the law, in all cases whatsoever. And if any justice be left
undone, under these circumstances, it is a justice for which the
nature of the association does not provide, which the association
does not undertake to do, and which, as an association, it is
under no obligation to do.

The people at large, the unlearned and common people, have
certainly an indisputable right to associate for the establishment
and maintenance of such a government as they themselves see the
justice of, and feel the need of, for the promotion of their own
interests, and the safety of their own rights, without at the same
time surrendering all their property, liberty, and rights into the
hands of men, who, under the pretence of a superior and
incomprehensible knowledge of justice, may dispose of such
property, liberties, and rights, in a manner to suit their own
selfish and dishonest purposes.

If a government were to be established and supported solely by
that portion of the people who lay claim to superior knowledge,
there would be some consistency in their saying that the common
people should not be received as jurors, with power to judge of
the justice of the laws. But so long as the whole people (or all
the male adults) are presumed to be voluntary parties to the
government, and voluntary contributors to it support, there is no
consistency in refusing to any one of them more than to another
the right to sit as juror, with full power to decide for himself
whether any law that is proposed to be enforced in any particular
case, be within the objects of the association.

The conclusion, therefore, is, that, in a government formed by
voluntary association, or on the theory of voluntary association,
and voluntary support, (as all the North American governments
are,) no law can rightfully be enforced by the association in its
corporate capacity, against the goods, rights, or person of any
individual, except it be such as all the members of the
association agree that it may enforce. To enforce any other law,
to the extent of taking a man's goods, rights, or person, would be
making some of the parties to the association accomplices in what
they regard as acts of injustice. It would also be making them
consent to what they regard as the destruction of their own
rights. These are things which no legitimate system or theory of
government can require of any of the parties to it.

The mode adopted, by the trial by jury, for ascertaining whether
all the parties to the government do approve of a particular law,
is to take twelve men at random from the whole people, and accept
their unanimous decision as representing the opinions of the
whole. Even this mode is not theoretically accurate; for
theoretical accuracy would require that every man, who was a
party to the government, should individually give his consent to the
enforcement of every law in every separate case. But such a thing
would be impossible in practice. The consent of twelve men is
therefore taken instead; with-the privilege of appeal, and (in
case of error found by the appeal court) a new trial, to guard
against possible mistakes. This system, it is assumed, will
ascertain the sense of the whole people "the country" with
sufficient accuracy for all practical purposes, and with as much
accuracy as is practicable without too great inconvenience and
expense.

5. Another objection that will perhaps be made to allowing jurors
to judge of the law, and the justice of the law, is, that the law
would be uncertain.

If, by this objection, it be meant that the law would be uncertain
to the minds of the people at large, so that they would not know
what the juries would sanction and what condemn, and would not
therefore know practically what their own rights and liberties
were under the law, the objection is thoroughly baseless and
false. No system of law that was ever devised could be so entirely
intelligible and certain to the minds of the people at large as
this. Compared with it, the complicated systems of law that are
compounded of the law of nature, of constitutional grants, of
innumerable and incessantly changing legislative enactments, and
of countless and contradictory judicial decisions, with no uniform
principle of reason or justice running through them, are among the
blindest of all the mazes in which unsophisticated minds were ever
bewildered and lost. The uncertainty of the law under these
systems has become a proverb. So great is this uncertainty, that
nearly all men, learned as well as unlearned, shun the law as
their enemy, instead of resorting to it for protection. They
usually go into courts of justice, so called, only as men go into
battle when there is no alternative left for them. And even then
they go into them as men go into dark labyrinths and caverns
with no knowledge of their own, but trusting wholly to their
guides. Yet, less fortunate than other adventurers, they can have
little confidence even in their guides, for the reason that the
guides themselves know little of the mazes they are threading.
They know the mode and place of entrance; but what they will
meet with on their way, and what will be the time, mode, place,
or condition of their exit; whether they will emerge into a prison,
or not; whether wholly naked and destitute, or not; whether with
their reputations left to them, or not; and whether in time or
eternity; experienced and honest guides rarely venture to predict.
Was there ever such fatuity as that of a nation of men madly bent
on building up such labyrinhs as these, for no other purpose than
that of exposing all their rights of reputation, property, liberty,
and life, to the hazards of being lost in them, instead of being
content to live in the light of the open day of their own
understandings?

What honest, unsophisticated man ever found himself involved
in a lawsuit, that he did not desire, of all things, that his cause
might be judged of on principles of natural justice, as those
principles were understood by plain men like himself? He would
then feel that he could foresee the result. These plain men are
the men who pay the taxes, and support the government. Why
should they not have such an administration of justice as they
desire, and can understand?

If the jurors were to judge of the law, and the justice of the
law, there would be something like certainty in the administration
of justice, and in the popular knowledge of the law, and men
would govern themselves accordingly. There would be something
like certainty, because every man has himself something like
definite and clear opinions, and also knows something of the
opinions of his neighbors, on matters of justice. And he would
know that no statute, unless it were so clearly just as to command
the unanimous assent of twelve men, who should be taken at random
from the whole community, could be enforced so as to take from him
his reputation, property, liberty, or life. What greater certainty can
men require or need, as to the laws under which they are to live?
If a statute were enacted by a legislature, a man, in order to know
what was its true interpretation, whether it were constitutional, and
whether it would be enforced, would not be under the necessity of
waiting for years until some suit had arisen and been carried through
all the stages of judicial proceeding, to a final decision. He would
need only to use his own reason as to its meaning and its justice,
and then talk with his neighbors on the same points. Unless he
found them nearly unanimous in their interpretation and approbation
of it, he would conclude that juries would not unite in enforcing it,
and that it would consequently be a dead letter. And he would be
safe in coming to this conclusion.

There would be something like certainty in the administration of
justice, and in the popular knowledge of the law, for the further
reason that there would be little legislation, and men's rights
would be left to stand almost solely upon the law of nature, or
what was once called in England "the common law," (before so
much legislation and usurpation had become incorporated into the
common law,) in other words, upon the principles of natural justice.
Of the certainty of this law of nature, or the ancient English
common law, I may be excused for repeating here what, I have
said on another occasion.

"Natural law, so far from being uncertain, when compared with
statutory and constitutional law, is the only thing that gives any
certainty at all to a very large portion of our statutory and
constitutional law. The reason is this. The words in which
statutes and constitutions are written are susceptible of so many
different meanings, meanings widely different from, often
directly opposite to, each other, in their bearing upon men's
rights, that, unless there were some rule of interpretation for
determining which of these various and opposite meanings are the
true ones, there could be no certainty at all as to the meaning of
the statutes and constitutions themselves. Judges could make
almost anything they should please out of them. Hence the
necessity of a rule of interpretation. And this rule is, that the
language of statutes and constitutions shall be construed, as
nearly as possible, consistently with natural law.

The rule assumes, what is true, that natural law is a thing
certain in itself; also that it is capable of being learned. It
assumes, furthermore, that it actually is understood by the
legislators and judges who make and interpret the written law.
Of necessity, therefore, it assumes further, that they (the
legislators and judges) are incompetent to make and interpret the
written law, unless they previously understand the natural law
applicable to the same subject. It also assumes that the people
must understand the natural law, before they can understated the
written law.

It is a principle perfectly familiar to lawyers, and one that must
be perfectly obvious to every other man that will reflect a
moment, that, as a general rule, no one can know what the written
law is, until he knows what it ought to be; that men are liable to
be constantly misled by the various and conflicting senses of the
same words, unless they perceive the true legal sense in which the
words ought to be taken. And this true legal sense is the sense
that is most nearly consistent with natural law of any that the
words can be made to bear, consistently with the laws of language,
and appropriately to the subjects to which they are applied.

Though the words contain the law, the words themselves are not
the law. Were the words themselves the law, each single written
law would be liable to embrace many different laws, to wit, as
many different laws as there were different senses, and different
combinations of senses, in which each and all the words were
capable of being taken.

Take, for example, the Constitution of the United States. By
adopting one or another sense of the single word "free," the
whole instrument is changed. Yet the word free is capable of some
ten or twenty different senses. So that, by changing the sense of
that single word, some ten or twenty different constitutions could
be made out of the same written instrument. But there are, we will
suppose, a thousand other words in the constitution, each of which
is capable of from two to ten different senses. So that, by
changing the sense of only a single word at a time, several
thousands of different constitutions would be made. But this is
not all. Variations could also be made by changing the senses of
two or more words at a time, and these variations could be run
through all the changes and combinations of senses that these
thousand words are capable of. We see, then, that it is no more
than a literal truth, that out of that single instrument, as it
now stands, without altering the location of a single word, might
be formed, by construction and interpretation, more different
constitutions than figures can well estimate.

But each written law, in order to be a law, must be taken only in
some one definite and distinct sense; and that definite and
distinct sense must be selected from the almost infinite variety
of senses which its words are capable of. How is this selection to
be made? It can be only by the aid of that perception of natural
law, or natural justice, which men naturally possess.
Such, then, is the comparative certainty of the natural and the
written law. Nearly all the certainty there is in the latter, so
far as it relates to principles, is based upon, and derived from,
the still greater certainty of the former. In fact, nearly all the
uncertainty of the laws under which we live, which are a mixture
of natural and written laws, arises from the difficulty of
construing, or, rather, from the facility of misconstruing, the
written law; while natural law has nearly or quite the same
certainty as mathematics. On this point, Sir William Jones, one of
the most learned judges that have ever lived, learned in Asiatic
as well as European law, says, and the fact should be kept
forever in mind, as one of the most important of all truths: "It
is pleasing to remark, the similarity, or, rather, the identity of
those conclusions which pure, unbiased reason, in all ages; and
nations, seldom fails to draw, in such juridical inquiries as are
not fettered and manacled by positive institutions." [4] In short,
the simple fact that the written law must be interpreted by the
natural, is, of itself, a sufficient confession of the superior
certainty of the latter.

The written law, then, even where it can be construed consistently
with the natural, introduces labor and obscurity, instead of
shutting them out. And this must always be the case, because
words do not create ideas, but only recall them; and the same
word may recall many different ideas. For this reason, nearly all
abstract principles can be seen by the single mind more clearly
than they can be expressed by words to another. This is owing to the
imperfection of language, and the different senses, meanings, and
shades of meaning, which different individuals attach to the same
words, in the same circumstances. [5]

Where the written law cannot be construed consistently with the
natural, there is no reason why it should ever be enacted at all.
It may, indeed, be sufficiently plain and certain to be easily
understood; but its certainty and plainness are but a poor
compensation for its injustice. Doubtless a law forbidding men to
drink water, on pain of death, might be made so intelligible as to
cut off all discussion as to its meaning; but would the
intelligibleness of such a law be any equivalent for the right to
drink water?

The principle is the same in regard to all unjust laws. Few
persons could reasonably feel compensated for the arbitrary
destruction of their rights, by having the order for their
destruction made known beforehand, in terms so distinct and
unequivocal as to admit of neither mistake nor evasion. Yet this
is all the compensation that such laws offer.

Whether, therefore, written laws correspond with, or differ from,
the natural, they are to be condemned. In the first case, they are
useless repetitions, introducing labor and obscurity. In the
latter case, they are positive violations of men's rights.
There would be substantially the same reason in enacting
mathematics by statute, that there is in enacting natural law.
Whenever the natural law is sufficiently certain to all men's
minds to justify its being enacted, it is sufficiently certain to
need no enactment. On the other hand, until it be thus certain,
there is danger of doing injustice by enacting it; it should,
therefore, be left open to be discussed by anybody who may be
disposed to question it, and to be judged of by the proper
tribunal, the judiciary. [6]

It is not necessary that legislators should enact natural law in
order that it may be known to the people, because that would be
presuming that the legislators already understand it better than
the people, a fact of which I am not aware that they have ever
heretofore given any very satisfactory evidence. The same sources
of knowledge on the subject are open to the people that are open
to the legislators, and the people must be presumed to know it as
well as they.

The objections made to natural law, on the ground of obscurity,
are wholly unfounded. It is true, it must be learned, like any
other science; but it is equally true that it is very easily
learned. Although as illimitable in its applications as the
infinite relations of men to each other, it is, nevertheless, made
up of simple elementary principles, of the truth and justice of
which every ordinary mind has an almost intuitive perception. It
is the science of justice, and almost all men have the same
perceptions of what constitutes justice, or of what justice
requires, when they understand alike the facts from which their
inferences are to be drawn. Men living in contact with each other,
and having intercourse together, cannot avoid learning natural
law, to a very great extent, even if they would. The dealings of
men with men, their separate possessions, and their individual
wants, are continually forcing upon their minds the questions,
Is this act just? or is it unjust? Is this thing mine? or is it
his? And these are questions of natural law; questions, which, in
regard to the great mass of cases, are answered alike by the human
mind everywhere.

Children learn many principles of natural law at a very early age.
For example: they learn that when one child has picked up an
apple or a flower, it is his, and that his associates must not take it
from him against his will. They also learn that if he voluntarily
exchange his apple or flower with a playmate, for some other
article of desire, he has thereby surrendered his right to it, and
must not reclaim it. These are fundamental principles of natural
law, which govern most of the greatest interests of individuals
and society; yet children learn them earlier than they learn that
three and three are six, or five and five, ten. Talk of enacting
natural law by statute, that it may be known! It would hardly be
extravagant to say, that, in nine cases in ten, men learn it
before they have learned the language by which we describe it.
Nevertheless, numerous treatises are written on it, as on other
sciences. The decisions of courts, containing their opinions upon
the almost endless variety of cases that have come before them,
are reported; and these reports are condensed, codified, and
digested, so as to give, in a small compass, the facts, and the
opinions of the courts as to the law resulting from them. And
these treatises, codes, and digests are open to be read of all
men. And a man has the same excuse for being ignorant of
arithmetic, or any other science, that he has for being ignorant
of natural law. He can learn it as well, if he will, without its
being enacted, as he could if it were.

If our governments would but themselves adhere to natural law,
there would be little occasion to complain of the ignorance of the
people in regard to it. The popular ignorance of law is
attributable mainly to the innovations that have been made upon
natural law by legislation; whereby our system has become an
incongruous mixture of natural and statute law, with no uniform
principle pervading it. To learn such a system, if system it can
be called, and if learned it can be, is a matter of very similar
difficulty to what it would be to learn a system of mathematics,
which should consist of the mathematics of nature, interspersed
with such other mathematics as might be created by legislation, in
violation of all the natural principles of numbers and quantities.

But whether the difficulties of learning natural law be greater or
less than here represented, they exist in the nature of things,
and cannot be removed. Legislation, instead of removing, only
increases them; This it does by innovating upon natural truths and
principles, and introducing jargon and contradiction, in the place
of order, analogy, consistency, and uniformity.

Further than this; legislation does not even profess to remove the
obscurity of natural law. That is no part of its object. It only
professes to substitute something arbitrary in the place of
natural law. Legislators generally have the sense to see that
legislation will not make natural law any clearer than it is.
Neither is it the object of legislation to establish the authority
of natural law. Legislators have the sense to see that they can
add nothing to the authority of natural law, and that it will
stand on its own authority, unless they overturn it.
The whole object of legislation, excepting that legislation which
merely makes regulations, and provides instrumentalities for
carrying other laws into effect, is to overturn natural law, and
substitute for it the arbitrary will of power. In other words, the
whole object of it is to destroy men's rights. At least, such is
its only effect; and its designs must be inferred from its effect.
Taking all the statutes in the country, there probably is not one
in a hundred, except the auxiliary ones just mentioned, that
does not violate natural law; that does not invade some right or
other.

Yet the advocates of arbitrary legislation are continually
practising the fraud of pretending that unless the legislature
make the laws, the laws will not be known. The whole object of
the fraud is to secure to the government the authority of making
lawsthat never ought to be known."

In addition to the authority already cited, of Sir William Jones,
as to the certainty of natural law, and the uniformity of men's
opinions in regard to it, I may add the following:

"There is that great simplicity and plainness in the Common Law,
that Lord Coke has gone so far as to assert, (and Lord Bacon
nearly seconds him in observing,) that 'he never knew two
questions arise merely upon common law; but that they were
mostly owing to statutes ill-penned and overladen with provisos.' "
3 Eunomus, 157 8.

If it still be said that juries would disagree, as to what was
natural justice, and that one jury would decide one way, and
another jury another; the answer is, that such a thing is hardly
credible, as that twelve men, taken at random from the people at
large, should unanimously decide a question of natural justice one
way, and that twelve other men, selected in the same manner,
should unanimously decide the same question the other way,
unless they were misled by the justices. If, however, such things
should sometimes happen, from any cause whatever, the remedy
is by appeal, and new trial.

[1] Judges do not even live up to that part of their own maxim,
which requires jurors to try the matter of fact. By dictating to
them the laws of evidence, that is, by dictating what evidence
they may hear, and what they may not hear, and also by dictating
to them rules for weighing such evidence as they permit them to
hear, they of necessity dictate the conclusion to which they
shall arrive. And thus the court really tries the question of
fact, as well as the question of law, in every cause. It is
clearly impossible, in the nature of things, for a jury to try, a
question of fact, without trying every question of law on which
the fact depends.

[2] Most disagreements of juries are on matters of fact, which are
admitted to be within their province. We have little or no
evidence of their disagreements on matters of natural justice. The
disagreements of courts on matters of law, afford little or no
evidence that juries would also disagree on matters of law that
is, of justice, because the disagreements of courts are generally
on matters of legislation, and not on those principles of abstract
justice, by which juries would be governed, and in regard to which
the minds of men are nearly unanimous.

[3] This is the principle of all voluntary associations
whatsoever. No voluntary association was ever formed, and in the
nature of things there never can be one formed, for the
accomplishment of any objects except those in which all the
parties to the association are agreed. Government, therefore, must
be kept within these limits, or it is no longer a voluntary
association of all who contribute to its support, but a mere
tyrant established by a part over the rest.

All, or nearly all, voluntary associations give to a majority, or
to some other portion of the members less than the whole, the
right to use some limited discretion as to themeans to be used to
accomplish the ends in view; but the end themselves to be
accomplished are always precisely defined, and are such as every
member necessarily agrees to, else he would not voluntarily join
the association.

Justice is the object of government, and those who support the
government, must be agreed as to the justice to be executed by it,
or they cannot rightfully unite in maintaining the government
itself.

[4] Jones on Bailments,

[5] Kent, describing the difficulty of construing the written law,
says:

"Such is the imperfection of language, and the want of technical
skill in the makers of the law, that statutes often give occasion
to the most perplexing and distressing doubts and discussions,
arising from the ambiguity that attends them. It requires great
experience, as well as the command of a perspicuous diction, to
frame a law in such clear and precise terms, as to secure it from
ambiguous expressions, and from all doubts and criticisms upon its
meaning " Kent, 460.

The following extract from a speech of Lord Brougham, in the
House of Lords, confesses the same difficulty:

There was another subject, well worthy of the consideration of
government during the recess, the expediency, or rather the
absolute necessity, of some arrangement for the preparation of
bills, not merely private, but public bills, in order that
legislation might be consistent and systematic, and that the
courts might not have so large a portion of their time occupied in
endeavoring to construe acts of Parliament, in many cases
unconstruable, and in most cases difficult to be construed." Law
Reporter, 1848, p. 525.

[6] This condemnation of written laws must, of course, be
understood as applying only to cases where principles and rights
are involved, and not as condemning any governmental
arrangements, or instrumentalities, that are consistent with natural
right, and which must be agreed upon for the purpose of carrying
natural law into effect. These things may be varied, as expediency
may dictate, so only that they be allowed to infringe no principle of
justice. And they must, of course, be written, because they do not
exist as fixed principles, or laws in nature.

CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL

It may probably be safely asserted that there are, at this day,
no legal juries, either in England or America. And if there are
no legal juries, there is, of course, no legal trial, nor
"judgment," by jury.

In saying that there are probably no legal juries, I mean that
there are probably no juries appointed in conformity with the
principles of the common law.

The term jury is a technical one, derived from the common law;
and when the American constitutions provide for the trial by
jury, they provide for the common law trial by jury; and not
merely for any trial by jury that the government itself may
chance to invent, and call by that name. It is the thing, and not
merely the name, that is guarantied. Any legislation, therefore,
that infringes any essential principle of the common law, in the
selection of jurors, is unconstitutional; and the juries selected
in accordance with such legislation are, of course, illegal, and
their judgments void.

It will also be shown, in a subsequent chapter, [1] that since
Magna Carta, the legislative power in England (whether king or
parliament) has never had any constitutional authority to
infringe, by legislation, any essential principle of the common
law in the selection of jurors. All such legislation is as much
unconstitutional and void, as though it abolished the trial by
jury altogether. In reality it does abolish it.

What, then, are the essential principles of the common law,
controlling the selection of jurors?

They are two.

1. That all the freemen, or adult male members of the state,
shall be eligible as jurors. [2]

Any legislation which requires the selection of jurors to be made
from a less number of freemen than the whole, makes the jury
selected an illegal one.

If a part only of the freemen, or members of the state, are
eligible as jurors, the jury no longer represent "the country,"
but only a part of "the country."

If the selection of jurors can be restricted to any less number
of freemen than the whole, it can be restricted to a very small
proportion of the whole; and thus the government be taken out of
the hands of " the country," or the whole people, and be thrown
into the hands of a few.

That, at common law, the whole body of freemen were eligible as
jurors, is sufficiently proved, not only by the reason of the
thing, but by the following evidence:

1. Everybody must be presumed eligible, until the contrary
be shown. We have no evidence, that I am aware of, of a
prior date to Magna Carta, to disprove that all freemen were
eligible as jurors, unless it be the law of Ethelred, which
requires that they be elderly [3] men. Since no specific age
is given, it is probable, I think, that this statute meant
nothing more than that they be more than twenty-one years
old. If it meant anything more, it was probably contrary to
the common law, and therefore void.

2. Since Magna Carta, we have evidence showing quite
conclusively that all freemen, above the age of twenty-one
years, were eligible as jurors.

The Mirror of Justices, (written within a century after
Magna Carta,) in the section " Of Judges" that is, jurors
says:

"All those who are not forbidden by law may be judges
(jurors).

To women it is forbidden by law that they be judges; and thence it
is, that feme coverts are exempted to do suit in inferior courts.
On the other part, a villein cannot be a judge, by reason of the
two estates, which are repugnants; persons attainted of false
judgments cannot be judges, nor infants, nor any under the age of
twenty-one years, nor infected persons, nor idiots, nor madmen,
nor deaf, nor dumb, nor parties in the pleas, nor men
excommunicated by the bishop, nor criminal persons. * * And
those who are not of the Christian faith cannot be judges, nor those
who are out of the king's allegiance." Mirror of Justices, 59 60.

In the section " Of Inferior Courts," it is said:

"From the first assemblies came consistories, which we now call
courts, and that in divers places, and in divers manners: whereof
the sheriffs held one monthly, or every five weeks according to
the greatness or largeness of the shires. And these courts are
called county courts, where the judgment is by the suitors, if
there be no writ, and is by warrant of jurisdiction ordinary. The
other inferior courts are the courts of every lord of the fee, to
the likeness of the hundred courts. There are other inferior
courts which the bailiffs hold in every hundred, from three weeks
to three weeks, by the suitors of the freeholders of the hundred.
All the tenants within the fees are bounden to do their suit
there, and that not for the service of their persons, but for the
service of their fees. But women, infants within the age of
twenty-one years, deaf, dumb, idiots, those who are indicted or
appealed of mortal felony, before they be acquitted, diseased
persons, and excommunicated persons are exempted from doing
suit." Mirror of Justices, 50 51.

In the section "Of the Sheriff's Turns," it is said:

"The sheriff's by ancient ordinances hold several meetings twice
in the year in every hundred; where all the freeholders within the
hundred are bound to appear for the service of their fees."
Mirror of Justices, 50.

The following statute was passed by Edward I., seventy years after
Magna Carta:

"Forasmuch also as sheriffs, hundreders, and bailiffs of
liberties, have used to grieve those which be placed under them,
putting in assizes and juries men diseased and decrepit, and
having continual or sudden disease; and men also that dwelled not
in the country at the time of the summons; and summon also an
unreasonable number of jurors, for to extort money from some of
them, for letting them go in peace, and so the assizes and juries
pass many times by poor men, and the rich abide at home by
reason of their bribes; it is ordained that from henceforth in one
assize no more shall be summoned than four and twenty; and
old men above three score and ten years, being continually sick,
or being diseased at the time of the summons, or not dwelling in
that country, shall not be put in juries of petit assizes." St. 13
Edward I., ch. 38. (1285.)

Although this command to the sheriff's and other officers, not to
summon, as jurors, those who, from age and disease, were
physically incapable of performing the duties, may not, of itself,
afford any absolute or legal implication, by which we can
determine precisely who were, and who were not, eligible as jurors
at common law, yet the exceptions here made nevertheless carry a
seeming confession with them that, at common law, all male
adults were eligible as jurors.

But the main principle of the feudal system itself, shows that all
the full and free adult male members of the state that is, all
who were free born, and had not lost their civil rights by crime,
or otherwise must, at common law, have been eligible as jurors.
What was that principle? It was, that the state rested for support
upon the land, and not upon taxation levied upon the people
personally. The lands of the country were considered the property
of the state, and were made to support the state in this way: A
portion of them was set apart to the king, the rents of which went
to pay his personal and official expenditures, not including the
maintenance of armies, or the administration of justice. War and
the administration of justice were provided for in the following
manner. The freemen, or the free-born adult male members of the
state who had not forfeited their political rights were
entitled to land of right, (until all the land was taken up,) on
condition of their rendering certain military and civil services,
to the state. The military services consisted in serving
personally as soldiers, or contributing an equivalent in horses,
provisions, or other military supplies. The civil services
consisted, among other things, in serving as jurors (and, it would
appear, as witnesses) in the courts of justice. For these services
they received no compensation other than the use of their lands.
In this way the state was sustained; and the king had no power to
levy additional burdens or taxes upon the people. The persons
holding lands on these terms were called freeholders in later
times freemen meaning free and full members of the state.

Now, as the principle of the system was that the freeholders held
their lands of the state, on the condition of rendering these
military and civil services as rents for their lands, the
principle implies that all the freeholders were liable to these
rents, and were therefore eligible as jurors. Indeed, I do not
know that it has ever been doubted that, at common law, all the
freeholders were eligible as jurors. If all had not been eligible,
we unquestionably should have had abundant evidence of the
exceptions. And if anybody, at this day, allege any exceptions,
the burden will be on him to prove them. The presumption clearly
is that all were eligible.

The first invasion which I find made, by the English statutes,
upon this common law principle, was made in I285, seventy years
after Magna Carta. It was then enacted as follows:

"Nor shall, any be put in assizes or juries, though they ought to
be taken in their own shire, that hold a tenement of less than the
value of twenty shillings yearly. And if such assizes and juries
be taken out of the shire, no one shall be placed in them who
holds a tenement of less value than forty shillings yearly at the
least, except such as be witnesses in deeds or other writings,
whose presence is necessary, so that they be able to travel."
St. 13 .Edward I., ch. 38. (1285.)

The next invasion of the common law, in this particular, was made
in 1414, about two hundred years after Magna Carta, when it was
enacted:

"That no person shall be admitted to pass in any inquest upon
trial of the death of a man, nor in any inquest betwixt party and
party in plea real, nor in plea personal, whereof the debt or the
damage declared amount to forty marks, if the same person have
not lands or tenements of the yearly value of forty shillings above
all charges of the same." 2 Henry V., st. 2, ch. 3. (1414.)

Other statutes on this subject of the property qualifications of
jurors, are given in the note. [4]

From these statutes it will be seen that, since 1285, seventy
years after Magna Carta, the common law right of all free British
subjects to eligibility as jurors has been abolished, and the
qualifications of jurors have been made a subject of arbitrary
legislation. In other words, the government has usurped the
authority of selecting the jurors that were to sit in judgment
upon its own acts. This is destroying the vital principle of the
trial by jury itself, which is that the legislation of the government
shall be subjected to the judgment of a tribunal, taken
indiscriminately from the whole people, without any choice by the
government, and over which the government can exercise no
control. If the government can select the jurors, it will, of course,
select those whom it supposes will be favorable to its enactments.
And an exclusion of any of the freemen from eligibility is a
selection of those not excluded.

It will be seen, from the statutes cited, that the most absolute
authority over the jury box that is, over the right of the
people to sit in juries has been usurped by the government; that
the qualifications of jurors have been repeatedly changed, and
made to vary from a freehold of ten shillings yearly, to one of
"twenty pounds by the year at least above reprises." They have
also been made different, in the counties of Southampton, Surrey,
and Sussex, from what they were in the other counties; different
in Wales from what they were in England; and different in the city
of London, and in the county of Middlesex, from what they were in
any other part of the kingdom.

But this is not all. The government has not only assumed
arbitrarily to classify the people, on the basis of property, but
it has even assumed to give to some of its judges entire and
absolute personal discretion in the selection of the jurors to be
impaneled in criminal cases, as the following statutes show.

"Be it also ordained and enacted by the same authority, that all
panels hereafter to be returned, which be not at the suit of any
party, that shall be made and put in afore any justice of gaol
delivery or justices of peace in their open sessions to inquire
for the king, shall hereafter be reformed by additions and taking
out of names of persons by discretion of the same justices before
whom such panel shall be returned; and the same justices shall
hereafter command the sheriff, or his ministers in his absence, to
put other persons in the same panel by their discretions; and that
panel so hereafter to be made, to be goodand lawful. This act to
endure only to the next Parliament " 11 Henry VII., ch. 24, sec.
6. (1495.)

This act was continued in force by 1 Henry VIII, ch. 11, (1509,)
to the end of the then next Parliament.

It was reenacted, and made perpetual, by 3 Henry VIII., ch. 12.
(1511.)

These acts gave unlimited authority to the king's' justices to
pack juries at their discretion; and abolished the last vestige of
the common law right of the people to sit as jurors, and judge of
their own liberties, in the courts to which the acts applied.

Yet, as matters of law, these statutes were no more clear
violations of the common law, the fundamental and paramount
"law of the land," than were those statutes which affixed the
property qualifications before named; because, if the king, or the
government, can select the jurors on the ground of property, it
can select them on any other ground whatever.

Any infringement or restriction of the common law right of the
whole body of the freemen of the kingdom to eligibility as jurors,
was legally an abolition of the trial by jury itself. The juries
no longer represented "the country," but only a part of the
country; that part, too, on whose favor the government chose to
rely for the maintenance of its power, and which it therefore saw
fit to select as being the most reliable instruments for its
purposes of oppression towards the rest. And the selection was
made on the same principle, on which tyrannical governments
generally select their supporters, viz., that of conciliating
those who would be most dangerous as enemies, and most
powerful as friends that is, the wealthy. [6]

These restrictions, or indeed any one of them, of the right of
eligibility as jurors, was, in principle, a complete abolition of
the English constitution; or, at least, of its most vital and
valuable part. It was, in principle, an assertion of a right, on
the part of the government, to select the individuals who were to
determine the authority of its own laws, and the extent of its own
powers. It was, therefore, in effect, the assertion of a right, on
the part of the government itself, to determine its own powers,
and the authority of its own legislation, over the people; and a
denial of all right, on the part of the people, to judge of or
determine their own liberties against the government. It was,
therefore, in reality, a declaration of entire absolutism on the
part of the government. It was an act as purely despotic, in
principle, as would have been the express abolition of all juries
whatsoever. By "the law of the land," which the kings were sworn
to maintain, every free adult male British subject was eligible to
the jury box, with full power to exercise his own judgment as to
the authority and obligation of every statute of the king, which
might come before him. But the principle of these statutes (fixing
the qualifications of jurors) is, that nobody is to sit in
judgment upon the acts or legislation of the king, or the
government, except those whom the government itself shall select
for that purpose. A more complete subversion of the essential
principles of the English constitution could not be devised.

The juries of England are illegal for another reason, viz., that
the statutes cited require the jurors (except in London and a few
other places) to be freeholders. All the other free British
subjects are excluded; whereas, at common law, all such subjects
are eligible to sit in juries, whether they be freeholders or not.

It is true, the ancient common law required the jurors to be
freeholders; but the term freeholder no longer expresses the same
idea that it did in the ancient common law; because no land is now
holden in England on the same principle, or by the same tenure, as
that on which all the land was held in the early times of the
common law.

As has heretofore been mentioned, in the early times of the
common law the land was considered the property of the state;
and was all holden by the tenants, so called, (that is, holders,)
on the condition of their rendering certain military and civil services
to the state, (or to the king as the representative of the state,)
under the name of rents. Those who held lands on these terms
were called free tenants, that is, free holders meaning free persons,
or members of the state, holding lands to distinguish them from
villeins, or serfs, who were not members of the state, but held
their lands by a more servile tenure, and also to distinguish them
from persons of foreign birth, outlaws, and all other persons, who
were not members of the state.

Every freeborn adult male Englishman (who had not lost his civil
right" by crime or otherwise) was entitled to land of right; that
is, by virtue of his civil freedom, or membership of the body
politic. Every member of the state was therefore a freeholder; and
every freeholder was a member of the state. And the members of
the state were therefore called freeholders. But what is material to
be observed, is, that a man's right to land was an incident to his
civil freedom; not his civil freedom an incident to his right to
land. He was a freeholder because he was a freeborn member of
the state; and not a freeborn member of the state because he was a
freeholder; for this last would be an absurdity.

As the tenures of lands changed, the term freeholder lost its
original significance, and no longer described a man who held land
of the state by virtue of his civil freedom, but only one who held
it in fee-simple that is, free of any liability to military or
civil services. But the government, in fixing the qualifications
of jurors, has adhered to the term freeholder after that term has
ceased to express the thing originally designated by it.

The principle, then, of the common law, was, that every freeman,
or freeborn male Englishman, of adult age, &c;., was eligible to
sit in juries, by virtue of his civil freedom, or his being a
member of the state, or body politic. Rut the principle of the
present English statutes is, that a man shall have a right to sit
in juries because he owns lands in fee-simple. At the common law
a man was born to the right to sit in juries. By the present
statutes he buys that right when he buys his land. And thus this,
the greatest of all the political rights of an Englishman, has
become a mere article of merchandise; a thing that is bought and
sold in the market for what it will bring.

Of course, there can be no legality in such juries as these; but
only in juries to which every free or natural born adult male
Englishman is eligible.

The second essential principle of the common law, controlling the
selection of jurors, is, that when the selection of the actual
jurors comes to be made, (from the whole body of male adults,)
that selection shall be made in some mode that excludes the
possibility of choice on the part of the government.

Of course, this principle forbids the selection to be made by any
officer of the government.

There seem to have been at least three modes of selecting the
jurors, at the common law. 1. By lot. [7] 2. Two knights, or other
freeholders, were appointed, (probably by the sheriff,) to select
the jurors. 3. By the sheriff, bailiff, or other person, who held
the court, or rather acted as its ministerial officer. Probably
the latter mode may have been the most common, although there
may be some doubt on this point.

At the common law the sheriff's, bailiffs, and other officers were
chosen by the people, instead of being appointed by the king. (4
Blackstone, 413. Introduction to Gilbert's History of the Common
Pleas, p. 2; note, and p. 4.) This has been shown in a former
chapter. [8] At common law, therefore, jurors selected by these
officers were legally selected, so far as the principle now under
discussion is concerned; that is, they were not selected by any
officer who was dependent on the government.

But in the year 1315, one hundred years after Magna Carta, the
choice of sheriff's was taken from the people, and it was enacted:

"That the sheriffs shall henceforth be assigned by the chancellor,
treasurer, barons of the exchequer, and by the justices. And in
the absence of the chancellor, by the treasurer, barons and
justices." 9 Edward II., st. 2. (1315.)

These officers, who appointed the sheriffs, were themselves
appointed by the king, and held their offices during his pleasure.
Their appointment of sheriffs was, therefore, equivalent to an
appointment by the king himself. And the sheriffs, thus appointed,
held their offices only during the pleasure of the king, and were
of course mere tools of the king; and their selection of jurors
was really a selection by the king himself. In this manner the
king usurped the selection of the jurors who were to sit in
judgment upon his own laws.

Here, then, was another usurpation, by which the common law trial
by jury was destroyed, so far as related to the county courts, in
which the sheriff's presided, and which were the most important
courts of the kingdom. From this cause alone, if there were no
other, there has not been a legal jury in a county court in
England, for more than five hundred years.

In nearly or quite all the States of the United States the juries
are illegal, for one or the other of the same reasons that make
the juries in England illegal.

In order that the juries in the United States may be legal that
is, in accordance with the principles of the common law it is
necessary that every adult male member of the state should have
his name in the jury box, or be eligible as a juror. Yet this is
the case in hardly a single state.

In New Jersey, Maryland, North Carolina, Tennessee, and
Mississippi, the jurors are required to be freeholders. But this
requirement is illegal, for the reason that the term freeholder,
in this country, has no meaning analogous to the meaning it had in
the ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors are required
to be "freeholders or householders." Each of these requirements is
illegal.

In Florida, they are required to be "householders."

In Connecticut, Maine, Ohio, and Georgia, jurors are required to
have the qualifications of "electors."

In Virginia, they are required to have a property qualification of
one hundred dollars.

In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio,
Indiana, Michigan, and Wisconsin, certain civil authorities of the
towns, cities, and counties are authorized to select, once in one,
two, or three years, a certain number of the people a small
number compared with the whole from whom jurors are to be
taken
when wanted; thus disfranchising all except, the few thus
selected.

In Maine and Vermont, the inhabitants, by vote in town meeting,
have a veto upon the jurors selected by the authorities of the
town.

In Massachusetts, the inhabitants, by vote in town meeting, can
strike out any names inserted by the authorities, and insert
others; thus making jurors elective by the people, and, of course,
representatives only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, by
the county commissioners.

In North Carolina, "the courts of pleas and quarter sessions shall
select the names of such persons only as are freeholders, and as
are well qualified to act as jurors, &c;.; thus giving the courts
power to pack the juries." (Revised Statutes, 147.)

In Arkansas, too, "It shall be the duty of the county court of
each county * to make out and cause to be delivered to the sheriff
a list of not less than sixteen, nor more than twenty-three
persons, qualified to serve as grand jurors;" and the sheriff is
to summon such persons to serve as grand jurors.

In Tennessee, also, the jurors are to be selected by the county
courts.

In Georgia, the jurors are to be selected by "the justices of the
inferior courts of each county, together with the sheriff and
clerk, or a majority of them."

In Alabama, "the sheriff; judge of the county court, and clerks of
the circuit and county courts," or "a majority of" them, select
the jurors.

In Virginia, the jurors are selected by the sheriffs; but the
sheriff's are appointed by the governor of the state, and that is
enough to make the juries illegal. Probably the same objection
lies against the legality of the juries in some other states.

How jurors are appointed, and what are their qualifications, in
New Hampshire, Rhode Island, Pennsylvania, Delaware, South
Carolina, Kentucky, Iowa, Texas, and California, I know not.
There
is little doubt that there is some valid objection to them, of the
kinds already suggested, in all these states.

In regard to jurors in the courts of the United States, it is
enacted, by act of Congress:

"That jurors to serve in the courts of the United States, in each
state respectively, shall have the like qualifications and be
entitled to the like exemptions, as jurors of the highest court of
law of such state now have and are entitled to, and shall
hereafter, from time to time, have and be entitled to, and shall
be designated by ballot, lot, or otherwise, according to the mode
of forming such juries now practised and hereafter to be practised
therein, in so far as such mode may be practicable by the courts
of the United States, or the officers thereof; and for this
purpose, the said courts shall have power to make all necessary
rules and regulations for conforming the designation and
empanelling of jurors, in substance, to the laws and usages now in
force in such state; and, further, shall have power, by role or
order, from time to time, to conform the same to any change in
these respects which may be hereafter adopted by the legislatures
of the respective states for the state courts." St. 1840, ch.
47, Statutes at Large, vol. 5, p. 394.

In this corrupt and lawless manner, Congress, instead of taking
care to preserve the trial by jury, so far as they might, by
providing for the appointment of legal juries incomparably the
most important of all our judicial tribunals, and the only ones on
which the least reliance can be placed for the preservation of
liberty have given the selection of them over entirely to the
control of an indefinite number of state legislatures, and thus
authorized each state legislature to adapt the juries of the
United States to the maintenance of any and every system of
tyranny that may prevail in such state.

Congress have as much constitutional right to give over all the
functions of the United States government into the hand of the
state legislatures, to be exercised within each state in such
manner as the legislature of such state shall please to exercise
them, as they have to thus give up to these legislatures the
selection of juries for the courts of the United States.

There has, probably, never been a legal jury, nor a legal trial by
jury, in a single court of the United States, since the adoption
of the constitution.

These facts show how much reliance can be placed in written
constitutions, to control the action of the government, and
preserve the liberties of the people.

If the real trial by jury had been preserved in the courts of the
United States that is, if we had had legal juries, and the
jurors had known their rights it is hardly probable that one
tenth of the past legislation of Congress would ever have been
enacted, or, at least, that, if enacted, it could have been
enforced.

Probably the best mode of appointing jurors would be this: Let the
names of all the adult [male] [9] members of the state, in each
township, be kept in a jury box, by the officers of the township;
and when a court is to be held for a county or other district, let
the officers of a sufficient number of townships be required
(without seeing the names) to draw out a name from their boxes
respectively, to be returned to the court as a juror. This mode of
appointment would guard against collusion and selection; and
juries so appointed would be likely to be a fair epitome of "the
country."

[1]On the English Constitution.

[2] 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."

[3] 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.

[4] In 1485 it was enacted, by a statute entitled " Of what credit
and estate those jurors must be which shall be impaneled in the
Sheriff's Turn."

"That no bailiff nor other officer from henceforth return or
impanel any such person in any shire 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 shires, to the yearly value of twenty
shillings at the least, or else lands and tenements holden by
custom of manor, commonly called copy-hold, within the said
shires, to the yearly value of twenty-six shillings 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
shire 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 shillings at the least, to
inquire of the concealments of others," &c;., &c;. 3 Henry VII,
ch. 1. (1486.)

A statute passed in 1494, in regard to jurors in the city of
London, enacts:

"That no person nor persons hereafter be impaneled, 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; [5] and that no person or persons
hereafter be impaneled, 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 Sussex, 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 shillings, or copyhold lands to the yearly value of thirteen
shillings four pence, above all charges within any of the said
counties, or men of less livelihood, if there be not so many
there, not withstanding the statute of 1 Richard III., ch. 4. To
endure to the next parliament." 11 Henry VII., ch. 24. (1494.)
This statute was continued in force by 19 Henry VII., ch. 16
(1503.)

In 1531 it was enacted, "That every person or person 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 moveable
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 judices of assize, 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
shillings, 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 linquae) 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
assize, 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 then 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
some, 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. 5. (1664-5,)

By a statute passed 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. 10, 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 Middlesex, 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.)

[5] A mark was thirteen shillings and four pence.

[6] 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
constitution; 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 constitution, 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.

[7] Lingard says: "These compurgators or jurors * * were
sometimes * * drawn by lot." 1 Lingard's History of England,
p. 300.

[8] Chapter 4, p. 120, note.

[9] Editor's Note: (The following was not in Spooner's addition)
With the ratification of Article XIX of amendment to the
Constitution for the United States, August 20, 1920, women were
fully enfranchised with all rights of voting and jury service in all states
of the Union.

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. [1]

But previous to Magna Carta, the kings had adapted 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;" [2] 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 bailif 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.

Coke 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 be 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 eaetero ponat
aliqnem 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
Coke's Inst., 168 b.

Coke 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.

Coke 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, [3] nor receive
any plaint, without witnesses present who testify the plaint to
be true." Mirror of Justices, ch. 5, sec. 2, p. 257.

Coke 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.

Coke 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 Coke, 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 he tried before the king's justices, on account
of their superior Iearning; and that it permitted all lesser
offenses 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. [4]

Coke 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 Coke 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.

Coke'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.

Ex uno disce omnes. From one judge learn the characters of all.
[6]

I give in the note additional and abundant authorities for the
meaning ascribed to the word bailiff. The importance of the
principle involved will be a sufficient excuse for such an
accumulation of authorities as would otherwise be tedious and
perhaps unnecessary. [7]

The foregoing interpretation of the chapter of Magna Carta now
under discussion, is corroborated by another chapter of Magna
Carta, which specially provides that the king's justices shall
"go through every county" to "take the assizes" (hold jury
trials) in three kinds of civil actions, to wit, "novel
disseisin, mort de ancestor, and darrein presentment;" but makes
no mention whatever of their holding jury trials in criminal cases,
an omission wholly unlikely to be made, if it were designed
they should attend the trial of such causes. Besides, the here
spoken of (in John's charter) does not allow these justices to
sit alone in jury trials, even in civilactions; but provides that
four knights, chosen by the county, shall sit with them to keep
them honest. When the king's justices were known to be so
corrupt and servile that the people would not even trust them
to sit alone, in jury trials, in civil actions, how preposterous is
it to suppose that they would not only suffer them to sit, but to
sit alone, in criminal ones.

It is entirely incredible that Magna Carta, which makes such
careful provision in regard to the king's justices sitting in
civil actions, should make no provision whatever as to their
sitting in criminal trials, if they were to be allowed to sit in
them at all. Yet Magna Carta has no provision whatever on the
subject. [10]

But what would appear to make this matter ahsolute1y certain is,
that unless the prohibition that "no bailiff, &c;., of ours shall
hold pleas of our crown," apply to all officers of the king,
justices as well as others, it would be wholly nugatory for any
practical or useful purpose, because the prohibition could be
evaded by the king, at any time, by simply changing the titles of
his officers. Instead of calling them "sheriffs, coroners,
constables and bailiffs," he could call them "justices," or
anything else he pleased; and this prohibition, so important to
the liberty of the people, would then be entirely defeated. The
king also could make and unmake "justices" at his pleasure; and
if he could appoint any officers whatever to preside over juries
in criminal trials, he could appoint any tool that he might at
any time find adapted to his purpose. It was as easy to make
justices of Jeffreys and Scroggs, as of any other material; and
to have prohibited all the king's officers, except his justices,
from presiding in criminal trials, would therefore have been mere
fool's play.

We can all perhaps form some idea, though few of us will be
likely to form any adequate idea, of what a different thing the
trial by jury would have been in practice, and of what would have
been the difference to the liberties of England, for five hundred
years last past, had this prohibition of Magna Carta, upon the
king's officers sitting in the trial of criminal cases, been
observed.

The principle of this chapter of Magna Carta, as applicable to
the governments of the United States of America, forbids that any
officer appointed either by the executive or legislative power,
or dependent upon them for their salaries, or responsible to them
by impeachment, should preside over a jury in criminal trials. To
have the trial a legal (that is, a common law) and true trial by
jury, the presiding officers must be chosen by the people, and be
entirely free from all dependence upon, and all accountability
to, the executive and legislative branches of the government.
[12]

[1] The proofs of this principle of the common law have already
been given on page 120, note.

There is much confusion and contradiction among authors as to
the manner in which sheriffs and other officers were appointed; some
maintaining that they were appointed by the king, others that
they were elected by the people. I imagine that both these
opinions are correct, and that several of the king's officers
bore the same official names as those chosen by the people; and
that this is the cause of the confusion that has arisen on the
subject.

It seems to be a perfectly well established fact that, at common
law, several magistrates, bearing the names of aldermen, sheriff,
stewards, coroners and bailiffs, were chosen by the people; and
yet it appears, from Magna Carta itself, that some of the king's
officers (of whom he must have had many) were also called
"sheriffs, constables, coroners, and bailiffs."

But Magna Carta, in various instances, speaks of sheriffs and
bailiffs as "our sheriff's and bailiffs;" thus apparently
intending to recognize the distinction between officers of the
king, bearing those names, and other officers, bearing the same
official names, but chosen by the people. Thus it says that "no
sheriff or bailiff of ours, or any other (officer), shall take
horses or carts of any freeman for carriage, unless with the
consent of the freeman himself." John's Charter, ch. 36.

In a kingdom subdivided into so many counties, hundreds,
tithings, manors, cities and boroughs, each having a judicial or
police organization of its own, it is evident that many of the
officers must have been chosen by the people, else the government
could not have mainlined its popular character. On the other
hand, it is evident that the king, the executive power of the
nation, must have had large numbers of officers of his own in
every part of the kingdom. And it is perfectly natural that these
different sets of officers should, in many instances, bear the
same official names; and, consequently that the king, when
speaking of his own officers, as distinguished, from those chosen
by the people, should call them "our sheriffs, bailiffs," &c;, as
he does in Magna Carta.

I apprehend that inattention to these considerations has been the
cause of all the confusion of ideas that has arisen on this
subject, a confusion very evident in the following paragraph
from Dunham, which may be given as an illustration of that which
is exhibited by others on the same points.

"Subordinate to the ealdormen were the gerefas, the sheriffs, or
reeves, of whom there were several in every shire, or county.
There was one in every borough, as a judge. There was one at
every gate, who witnessed purchases outside the walls; and there
was one, higher than either, the high sheriff, who was probably
the reeve of the shire. This last appears to have been appointed
by the king. Their functions were to execute the decrees of the
king, or ealdormen, to arrest prisoners, to require bail for
their appearance at the sessions, to collect fines or penalties
levied by the court of the shire, to preserve the public peace,
and to preside in a subordinate tribunal of their own."
Durham's Middle Ages, sec. 2, B. 2, ch. 1. - 57 Lardner's Cab.
Cyc., p 41.

The confusion of duties attributed to these officers indicates
clearly enough that different officers, bearing the same official
names, must have had different duties, and have derived their
authority from different sources, to wit, the king, and the
people.

[2] Darrein presentement was an inquest to discover who
presented the last person to a church; mort de ancestor, whether
the last possessor was seized of land in demesne of his own fee;
and novel disseisin, whether the claimant had been unjustly
disseized of his freehold.

[3] He has no power to do it, either with, or without, the king's
command. The prohibition is absolute, containing no such
qualification as is here interpolated, viz., "without the king's
command." If it could be done with the king's command, the king
would be invested with arbitrary power in the matter.

[4] The absurdity of this doctrine of Coke is made more apparent
by the fact that, at that time, the "justices" and other persons
appointed by the king to hold courts were not only dependent upon
the king for their offices, and removable at his pleasure, but
that the usual custom was, not to appoint them with any view to
permanency, but only to give them special commissions for trying
a single cause, or for holding a single term of a court, or for
making a single circuit; which, being done, their commissions
expired. The king, therefore, could, and undoubtedly did, appoint
any individual he pleased, to try any cause he pleased, with a
special view to the verdicts he desired to obtain in the
particular cases.

This custom of commissioning particular persons to hold jury
trials, in criminal cases, (and probably also in civil ones,) was
of course a usurpation upon the common law, but had been
practised more or less from the time of William the Conqueror.
Palgrave says:

"The frequent absence of William from his insular dominions
occasioned another mode of administration, which ultimately
produced still greater changes in the law. It was the practice of
appointing justiciars to represent the king's person, to hold his
court, to decide his pleas, to dispense justice on his behalf, to
command the military levies, and to act as conservators of the
peace in the king's name. [5] .. The justices who were assigned
in the name of the sovereign, and whose powers were revocable at
his pleasure, derived their authority merely from their grant...
Some of those judges were usually deputed for the purpose of
relieving the king from the burden of his judicial functions...
The number as well as the variety of names of the justices
appearing in the early chirographs of 'Concords,' leave reason
for doubting whether, anterior to the reign of Henry III., (1216
to 1272,) a court, whose members were changing at almost every
session, can be said to have been permanently constituted. It
seems more probable that the individuals who composed the
tribunal were selected as suited the pleasure of the sovereign,
and the convenience of the clerks and barons; and the history of
our legal administration will be much simplified, if we consider
all those courts which were afterwards denominated the
Exchequer, the King's Bench, the Common Pleas, and the Chancery,
as being originally committees, selected by the king when occasion
required, out of a large body, for the despatch of peculiar
branches of business, and which committees, by degrees, assumed
an independent and permanent existence... Justices itinerant,
who, despatched throughout the land, decided the ' Pleas of the
Crown,' may be obscurely traced in the reign of the Conqueror;
not, perhaps, appointed with much regularity, but despatched upon
peculiar occasions and emergencies." 1 Palgrave's Rise and
Progress, &c;., p. 289 to 293.

The following statute, passed in 1354, (139 years after Magna
Carta,) shows that even after this usurpation of appointing
"justices " of his own, to try criminal cases, had probably
become somewhat established in practice, in defiance of Magna
Carta, the king was in the habit of granting special commissions
to still other persons, (especially to sheriffs, his sheriffs,
no doubt,) to try particular cases:

"Because that the people of the realm have suffered many evils
and mischiefs, for that sheriffs of divers counties, by virtue of
commissions and general writs granted to them at their own suit,
for their singular profit to gain of the people, have made and
taken divers inquests to cause to indict the people at their
will, and have taken fine and ransom of them to their own use,
and have delivered them; whereas such persons indicted were not
brought before the king's justices to have their deliverance, it
is accorded and established, for to eschew all such evils and
mischiefs, that such commissions and writs before this time made
shall be utterly repealed, and that from henceforth no such
commissions shall be granted." St. 28 Edward III., ch. 9,
(1354.)

How silly to suppose that the illegality of these commissions to
try criminal eases, could have been avoided by simply granting
them to persons under the title of "justices," instead of
granting them to "sheriffs." The statute was evidently a cheat,
or at least designed as such, inasmuch as it virtually asserts
the right of the king to appoint his tools, under the name of
"justices," to try criminal cases, while it disavows his right to
appoint them under the name of "sheriffs."

Millar says: "When the king's bench came to have its usual
residence at Westminster, the sovereign was induced to grant
special commissions, for trying particular crimes, in such parts
of the country as were found most convenient; and this practice
was gradually modeled into a regular appointment of certain
commissioners, empowered, at stated seasons, to perform circuits
over the kingdom, and to hold courts in particular towns, for the
trial of all sorts of crimes. These judges of the circuit,
however, never obtained an ordinary jurisdiction, but continued,
on every occasion, to derive their authority from two special
commissions: that of oyer and terminer, by which they were
appointed to hear and determine all treasons, felonies and
misdemeanors, within certain districts; and that of gaol
delivery, by which they were directed to try every prisoner
confined in the gaols of the several towns falling under their
inspection." Millar's Hist. View of Eng. Gov., vol. 2, ch. 7,
p. 282.

The following extract from Gilbert shows to what lengths of
usurpation the kings would sometimes go, in their attempts to get
the judicial power out of the hands of the people, and entrust it
to instruments of their own choosing:

"From the time of the Saxons," (that is, from the commencement
of the reign of William the Conqueror,) "till the reign of Edward
the first, (1272 to 1307,) the several county courts and sheriffs
courts did decline in their interest and authority. The methods
by which they were broken were two-fold. First, by granting
commissions to the sheriffs by writ of JUSTICIES, whereby the
sheriff had a particular jurisdiction granted him to be judge of
a particular cause, independent of the suitors of the county
court," (that is, without a jury;) "and these commissions were
after the Norman form, by which (according to which) all power of
judicature was immediately derived from the king." Gilbert on
the Court of Chancery, p. l.

The several authorities now given show that it was the custom of
the Norman kings, not only to appoint persons to sit as judges in
jury trials, in criminal cases, but that they also commissioned
individuals to sit in singular and particular eases, as occasion
required; and that they therefore readily could, and naturally
would, and therefore undoubtedly did, commission individuals
with a special view to their adaptation or capacity to procure such
judgments as the kings desired.

The extract from Gilbert suggests also the usurpation of the
Norman kings, in their assumption that they, (and not the people,
as by the common law,) were the fountains of justice. It was only
by virtue of this illegal assumption that they could claim to
appoint their tools to hold courts.

All these things show how perfectly lawless and arbitrary the
kings were, both before and after Magna Carta, and how necessary
to liberty was the principle of Magna Carta and the common law,
that no person appointed by the king should hold jury trials in
criminal cases.

[5] In this extract, Palgrave seems to assume 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.

[6] The opinions and decisions of judges and courts are
undeserving of the least reliance, (beyond the intrinsic merit of
the arguments offered to sustain them,) and are unworthy even to
be quoted as evidence of the law, when those opinions or
decisions are favorable to the power of the government, or
unfavorable to the liberties of the people. The only reasons that
their opinions, when in favor of liberty, are entitled to any
confidence, are, first, that all presumptions of law are in favor
of liberty; and, second, that the admissions of all men, the
innocent and the criminal alike, when made against their own
interests, are entitled to be received as true, because it is
contrary to human nature for a man to confess anything but truth
against himself.

More solemn farces, or more gross impostures, were never
practised upon mankind, than are all, or very nearly all, those
oracular responses by which courts assume to determine that
certain statutes, in restraint of individual liberty, are within
the constitutional power of the government, and are therefore
valid and binding upon the people.

The reason why these courts are so intensely servile and corrupt,
is, that they are not only parts of, but the veriest creatures
of, the very governments whose oppressions they are thus seeking
to uphold. They receive their offices and salaries from, and are
impeachable and removable by, the very governments upon whose
acts they affect to sit in judgment. Of course, no one with his
eyes open ever places himself in a position so incompatible with
the liberty of declaring his honest opinion, unless he do it with
the intention of becoming a mere instrument in the hands of the
government for the execution of all its oppressions.

As proof of this, look at the judicial history of England for the
last five hundred years, and of America from its settlement. In
all that time (so far as I know, or presume) no bench of judges,
(probably not even any single judge,) dependent upon the
legislature that passed the statute, has ever declared a single
penal statute invalid, on account of its being in conflict either
with the common law, which the judges in England have been
sworn to preserve, or with the written constitutions, (recognizing
men's natural rights,) which the American judges were under oath
to maintain. Every oppression, every atrocity even, that has ever
been enacted in either country, by the legislative power, in the
shape of a criminal law, (or, indeed, in almost any other shape,)
has been as sure of a sanction from the judiciary that was
dependent upon, and impeachable by, the legislature that enacted
the law, as if there were a physical necessity that the
legislative enactment and the judicial sanction should go
together. Practically speaking, the sum of their decisions, all
and singular, has been, that there are no limits to the power of
the government, and that the people have no rights except what
the government pleases to allow to them.

It is extreme folly for a people to allow such dependent,
servile, and perjured creatures to sit either in civil or
criminal trials; but to allow them to sit in criminal trials, and
judge of the people's liberties, is not merely fatuity, it is
suicide.

[7] Coke, speaking of the word bailiffs, as used in the statute
of 1 Westminster, ch. 35, (1275,) says:

"Here bailiffs are taken for the judges of the court, as
manifestly appeareth hereby." 2 Inst., 229.

Coke also says, ' It is a maxim in law, aliguis non debet esse
judex in propria causa, (no one ought to be judge in his own
cause;) and therefore a fine levied before the baylifes of Salopwas
reversed, because one of the baylifes was party to the fine,
quia non potest esse judex et pars," (because one cannot be judge
and party.) 1 Inst., 141 a.

In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor
and bailiffs of London (undoubtedly chosen by the people, or at
any rate not appointed by the king) are manifestly spoken of as
judges, or magistrates, holding jury trials, as follows:

Ch. II. "It is provided, also, that if any man lease his tenement
in the city of London, for a term of years, and he to whom the
freehold belongeth causeth himself to be impleaded by collusion,
and maketh default after default, or cometh into court and giveth
it up, for to make the termor (lessee) lose his term, (lease,)
and the demandant hath his suit, so that the termor may recover
by writ of covenant; the mayor and bailiffs may inquire by a good
inquest, (jury,) in the presence of the termor and the demandant,
whether the demandant moved his plea upon good right that he
had,
or by collusion, or fraud, to make the termor lose his term; and
if it be found by the inquest (jury) that the demandant moved his
plea upon good right that he had, the judgment shall be given
forthwith; and if it be found by the inquest (jury) that he
impleaded him (self ) by fraud, to put the termor from his term,
then shall the termor enjoy his term, and the execution of
judgment for the demandant shall be suspended until the term be
expired." 4 Edward I., ch. 11, (1278.)

Coke, in his commentary on this chapter, calls this court of "the
mayor and bailiffs" of London, " the court of the hustings, the
greatest and highest court in London;" and adds, "other cities
have the like court, and so called, as York, Lincoln, Winchester,
&e;. Here the city of London is named; but it appeareth by that
which hath been said out of Fleta, that this act extends to such
cities and boroughs privileged, that is, such as have such
privilege to hold plea as London hath." 2 Inst., 322.

The 12th chapter of the same statute is in the following words,
which plainly recognize the fact that " the mayor and bailiffs of
London" are judicial officers holding courts in London.

"It is provided, also, that if a man, impleaded for a tenement in
the same city, (London,) doth vouch a foreigner to warranty, that
he shall come into the chancery, and have a writ to summon his
warrantor at a certain day before the justices of the beach, and
another writ to the mayor and bailiff of London, that they shall
surcease (suspend proceedings) in the matter that is before them
by writ, until the plea of the warrantee be determined before the
justices of the bench; and when the plea at the bench shall be
determined, then shall he that is vouched be commanded to go into
the city," (that is, before "the mayor and bailiffs " court,) "to
answer unto the chief plea; and a writ shall be awarded at the
suit of the demandant by the justices unto the mayor and
bailiffs, that they shall proceed in the plea," &c;. 6 Edward
I., ch. 12, (1278.)

Coke, in his commentary on this chapter, also speaks repeatedly
of "the mayor and bailiffs" as judges holding courts, and also
speaks of this chapter as applicable not only to "the citie of
London, specially named for the cause aforesaid, but extended by
equity to all other privileged places," (that is, privileged to
have a court of "mayor and bailiffs,") "where foreign voucher is
made, as to Chester, Durham, Salop," &e;. 2 Inst., 325 7.

BAILIE. In Scotch law, a municipal magistrate, corresponding
with the English alderman.[8] Burrill's Law Dictionary.

BAILLIFFE Baillif. Fr. A bailiff: a ministerial officer with
duties similar to those of a sheriff. * * The judge of a court. A
municipal magistrate, &c;. Burrill's Law Dict.

BAILIFF - The word bailiff is of Norman origin, and was applied
in England, at an early period, (after the example, it is said,
of the French,) to the chief magistrates of counties, or shires,
such as the alderman, the reeve, or sheriff, and also of inferior
jurisdictions, such as hundreds and wapentakes. Spelman, voc.
Balivus; 1 Bl. Com.,344. See Bailli, Ballivus. The Latin ballivus
occurs, indeed, in the laws of Edward the Confessor, but Spelman
thinks it was introduced by a later hand. Balliva (bailiwick) was
the word formed from ballivus, to denote the extent of territory
comprised within a bailiff's jurisdiction; and bailiwick is still
retained in writs and other proceedings, as the name of a
sheriff's county. 1 Bl. Com., 344. See Balliva. The office of
bailiff was at first strictly, though not exclusively, a judicial
one. In France, the word had the sense of what Spelman calls
justitia tutelaris. Ballivus occurs frequently in the Regiam
Majestatem, in the sense of a judge. Spelman. In its sense of a
deputy, it was formerly applied, in England, to those officers
who, by virtue of a deputation, either from the sheriff or the
lords of private jurisdictions, exercised within the hundred, or
whatever might be the limits of their bailiwick, certain judicial
and ministerial functions. With the disuse of private and local
jurisdictions, the meaning of the term became commonly restricted
to such persons as were deputed by the sheriff to assist him in
the merely ministerial portion of his duty; such as the summoning
of juries, and the execution of writs. Brande.. The word
bailiff is also applied in England to the chief magistrates of
certain towns and jurisdictions, to the keepers of castles,
forests and other places, and to the stewards or agents of lords
of manors. Burrill's Law Dict.

"BAILIFF, (from the Lat. ballivus; Fr. baillif, i. e., Praefectus
provinciae,) signifies an officer appointed for the
administration of justice within a certain district. The office,
as well as the name, appears to have been derived from the
French," &c;. Brewster's Encyclopedia.

Millar says, "The French monarchs, about this period, were not
content with the power of receiving appeals from the several
courts of their barons. An expedient was devised of sending royal
bailiffs into different parts of the kingdom, with a commission
to take cognizance of all those causes in which the sovereign was
interested, and in reality for the purpose of abridging and
limiting the subordinate jurisdiction of the neighboring feudal
superiors. By an edict of Phillip Augustus, in the year 1190,
those bailiffs were appointed in all the principal towns of the
kingdom." Millar's Hist. View of the Eng. Gov., vol. ii., ch.

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