An Essay on the Trial By Jury

of Magna Carta must be construed together,) that no judge or other officer appointed

al 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, co

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

ition is in

lacita coronae nostrae." (No sheriff, constable, coroner, or other our bailiffs

minal 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 wi

l 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 supersede

word, brought into En

ustice of a certain province; and because a sheriff hath an office concerning the administration of

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 jud

a, and other authorities, which I have not examined, but whic

s open law," &c;., gives the following commentary upon it, from the Mirror of Justices, from which it appears that in the time o

justice, no minister of the king, nor other steward, nor bailiff, have power to make a freeman make oath, (of self-exculpation,) without the ki

in the original French,) and t

, in this act, is comprehended every justice, minis

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 jus

l 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 sh

de 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

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 b

, (dependent upon the crown and the legislature), have been in regard to everything in Magna

as 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 pie

uds by which the English people have

om one judge learn the

rd bailiff. The importance of the principle involved will be a sufficient excuse for such

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

ces sitting in civil actions, should make no provision whatever as to their sitting in criminal trials, if t

anging 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 officer

by jury would have been in practice, and of what would have been the difference to the liberties of England, for five hundred ye

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

e of the common law have alread

hey 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

sheriff, stewards, coroners and bailiffs, were chosen by the people; and yet it appears, from Magna Carta itself, that s

een 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 bail

t 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 o

eas that has arisen on this subject, a confusion very evident in the following paragraph from Dunh

s 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 the

ferent officers, bearing the same official names, must have had different duties, and

rch; mort de ancestor, whether the last possessor was seized of land in demesne of his own

e, containing no such qualification as is here interpolated, viz., "without the king's command." If i

t 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; w

(and probably also in civil ones,) was of course a usurpation upon the common law, but

ieving 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 cour

f his own, to try criminal cases, had probably become somewhat established in practice, in defiance of Magna Carta, the king was in the

nd 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, i

f "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

ed, 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 termin

ings would sometimes go, in their attempts to get the judicial power out of

ity. 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

, but that they also commissioned individuals to sit in singular and particular eases, as occasion required; and that they therefore readily could, and naturally

hat they, (and not the people, as by the common law,) were the fountains of justice. It was only

after Magna Carta, and how necessary to liberty was the principle of Magna Carta and the c

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 a

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;

those oracular responses by which courts assume to determine that certain statutes, in restraint of individual li

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

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 w

tures to sit either in civil or criminal trials; but to allow them to sit in crimina

liffs, as used in the statute of 1

judges of the court, as manifestl

his own cause;) and therefore a fine levied before the baylifes of Salopwas reversed, because one of the baylifes

ndon (undoubtedly chosen by the people, or at any rate not appointed by the king)

, 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 mo

;" 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 hat

s, which plainly recognize the fact that " the mayor and bail

r 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 comm

er as applicable not only to "the citie of London, specially named for the cause aforesaid, but extended by equity to all other privileged places,"

istrate, corresponding with the Englis

ith duties similar to those of a sheriff. * * The judge o

iliff'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,

fficer appointed for the administration of justice within a certain district. The office, as

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 nei

ce in the parliaments or courts of France, answering to the E

... The chief magistrate, in divers ancient corporations, are called bailiffs, as in Ipswich, Yarmouth, Colche

rd bailli is thus explained by Richelet, (Dictionaire, &e;.:) Bailli. He who in a province has the superintendence of justice, who is the ordinary judge of the nobles, who is their head for the ban and arriere ban, [9] and who maintains the right and prope

inistered by certain officers called bailiffs; and in England we have several counties in which justice hath been, and still is, in small suits, administered to the inhabitants by the officer whom we now call sheriff, or viscount; (one of which names descends from the Saxons, the other from the Normans.) And, though the sheriff is not called bailiff, yet it was probable that was one of his nam

sessed of certain jurisdictions, having the same pow

bailiffs of hundreds might anciently hold plea of appeal and approvers; but since that time the hundred courts, except certain franchises, are swallowed in the county courts; and now the bailiff's name and office is grown into contempt, they being generally officers to serve writ

viz., bailiffsof liberties; sheriffs' bailiffs; bai

rn to take distresses, truly impanel jurors, make

te the process thereof. " Besides these, there are also

riff of the county, over which the lord of the liberty appointeth a bailiff, with such powers within his precinct as an un

to do such offices as appertain thereunto, as to summon the court, warn the tenants and resiants; also, to summon the Leet and Homage, levy fines, and

d, for their adroitness, to arrest persons; or bailiffs of hundreds, who collect fines, summon jurie

n England, and officers under that title on the continen

; a magistrate who is second in

er de justice.) A bailiff; a sort o

Magna Carta, ch. 28, signifies

tenant de robe. The seigniories, with which high courts were connected, employed bailiffs, who thus constituted, almost everywhere, the lowest order of judges. From the courts of the nobility, the appellation passed to the royal courts; from thence to the parliaments. In the greater bailiwicks of cities of importance, Henry II. established a collegial constitution under the name of presidial courts... The name of bailiff was introduced into England with William I. The counties were also called bailiwicks, (bailivae,) while the subdivisions were called hundreds, but, as the courts of the hundreds have long since ceased, the English bailiffs are only a kind of subordinate officers of justice, like the French huissiers. These correspond very nearly to the officers called constables in the United States. Every sheriff has someof them under

ll England, Alderman of the King, Alderman of the County, Alderman of the City or Borough,

(except some privileged officers and citizens,) are summoned to meet at a certain

ny man to his open law, (put him on trial,) nor to an oath (that is, an oath of self- exculpation) upon his (the bailiff's) own accusation or testimony, without credible witness

Carta evidently does not contemplate "bailiffs" while acting in their judicial capacity, (for they were not allowed to sit in criminal trials at all,) but only in the character of witnesses, and that the meaning of the cha

ll "bailiffs," to those chosen by the people, as well as those appointed by the king. And the prohibition is obviously founded upon the idea (a very sound one in that age certainly, and probably also in this) that

sation or testimony alone. But such a provision would have been unnecessary and senseless, for two reasons; first, because the bailiffs or magistrates had no power to "hold pleas of the crown," still less to try or condemn a man; that power resting wholly with the juries; second, because if bailiffs or magistrates could try and condemn a man, without a jury, the prohibition upon their doing so upon their own accusation or testimony alone, would give no additional protection to the accused, so long as these same bailiff

ases, were allowed to swear in their own behalf; and it will

the sense of having any authority over the jury; but are only assistants to, and teachers and servants of, the jury. The foreman of the jury is