Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression. John Campbell

the favorite method of the Anglo-Normans – were entirely superseded. The history of the trial by jury is exceedingly obscure. The petit jury may, however, be traced back to the old Anglo-Saxon method of trial by compurgation, the jury in its origin being only a body of witnesses drawn from the vicinage, who founded their verdict not upon the evidence of witnesses given before them, but upon their own personal knowledge of the matters in dispute.14

      The grand jury seems to have originated in the old Anglo-Saxon custom imbodied in one of the laws of Ethelred, by which was imposed upon the twelve senior thanes of every hundred the duty of discovering and presenting the perpetrators of all crimes within their district – a custom revived by the constitution of Clarendon, enacted A. D. 1164, by which twelve lawful men of the neighborhood were to be sworn by the sheriff, on the requisition of the bishop, to investigate all cases of suspected criminality as to which no individual dared to make an accusation. At first this accusing jury seems also to have served the purpose of a jury of trial. In what way the grand jury came to be separated from the petit jury, and how the former came to be increased to a number not exceeding twenty-three, of whom at least twelve must concur in order to find an indictment, is a point which still remains for the investigation of legal antiquaries.15

      The trial by jury, though of the progress of its development little is known, appears to have taken on substantially its existing form, both in civil and criminal cases, nearly contemporaneously with the new organization of the English courts, with the rise of the legal profession as distinct from that of the clergy, and with the commencement of the series of English statutes and law reports – all of which, as well as the existing constitution of the British House of Commons, may be considered as dating from the accession of Edward I., A. D. 1272, or somewhat less than six hundred years ago. In certain cases of great importance this trial took place and still takes place in bank, as it is called; that is, in Westminster Hall, before all the judges of the court in which the suit is pending;16 but in general, the trial is had in the county in which (if a criminal case) the offence had been committed, or (if a civil case) in which the venue is laid, before certain commissioners sent into the counties for that purpose, and who, under the new system, were the successors of the justices in eyre, or itinerant justices, who had formed a part of the ancient Aula Regis. Originally, separate commissions appear to have issued for criminal and civil cases – for the former a commission of oyer and terminer, (to hear and determine,) and of general jail delivery; and for the latter a commission of assize, so called from the name of a peculiar kind of jury trial introduced as a substitute for trial by battle, in real actions, that is, pleas relating to land, villainage, and advowsons. In the times in which land, villains, and the right of presentation to parishes, constituted the chief wealth, these real actions constituted also the chief business of the Common Pleas, which then had exclusive jurisdiction of civil controversies; but to this commission of assize was annexed another, called a commission of nisi prius, authorizing the commissioners to try all questions of fact arising in any of the courts of Westminster. This latter commission was so called because the writ issued to the sheriff of the county in which the cause of action was alleged to have originated, to summon a jury to try the case, directed such jury to be summoned to appear at Westminster on a day named, unless before (in Latin, nisi prius) that day commissioners should come into the county to try the case there. Hence the term nisi prius employed by lawyers to designate a trial by jury before one or more judges, commissioned to hold such trials within certain circuits, but whose directions to the jury, and other points of law decided by them in the course of the trial, are liable afterwards to be reviewed by the whole bench.

      Ultimately these commissions for both criminal and civil trials were given to the same persons, who also received a commission of the peace; and the whole territory of England being divided into six circuits, two of the judges, to whom other assessors were added, held assizes twice a year in each county,17 for the trial of issues found in Westminster Hall – a system closely imitated in all our American states.

      But the distribution of authority above described as having been originally made to the different courts of Westminster Hall, into which the Aula Regis was divided, did not long remain undisturbed. Courts have at all times, and every where, exhibited a great disposition to extend their jurisdiction, of which we have already had an example in the authority over marriages, wills, and the personal property of intestates, assumed by the English ecclesiastical courts; and considering the double jurisdiction under which we citizens of the United States live, – that of the federal and that of the state courts, – and the disposition so strongly and perseveringly exhibited by the federal courts to enhance their authority, while the state courts continue to grow weaker and tamer, this is, to us, a subject of no little interest.

      Besides the general love of extending their jurisdiction characteristic of all courts, and indeed only one of the manifestations of the universal passion for power, the English Courts of King’s Bench and Exchequer had a special motive for seeking to encroach on the exclusive civil jurisdiction of the Common Pleas. The salaries of the judges were very small – originally only sixty marks, equal to £40 sterling, or about $200 a year; nor was their amount materially increased down to quite recent times; but to this small salary were added fees paid by the parties to the cases tried before them; and the judges of the two other courts were very anxious to share with their brethren of the Common Pleas a part of the rich harvest which their monopoly of civil cases enabled them to reap from that source. Not only did the Court of King’s Bench start the idea that all suits in which damages were claimed for injuries to person or property, attended by violence or fraud, came properly within its jurisdiction as “savoring of criminality;” it found another reason for extending its jurisdiction, by suggesting that when a person was in the custody of its officers, he could not, with a due regard to “legal comity,” be sued on any personal claim in any other court, since that might result in his being taken out of the hands of their officer who already had him in custody, and was entitled to keep him. If any body had any claim against such a person, (such was the position plausibly set up,) it ought to be tried before the court in whose custody he already was. Having thus prepared the way, the Court of King’s Bench did not stop here; but by a fiction, introduced into the process with which the suit was commenced, that the defendant was already in the custody of their marshal for a fictitious trespass which he was not allowed to deny, jurisdiction was gradually assumed in all private suits except real actions.

      The Court of Exchequer in like manner claimed exclusive jurisdiction of suits for debt brought by the king’s debtors, since by neglecting to pay them they might be prevented from paying their debts to the king; and under the pretence, which nobody was allowed to dispute, that all plaintiffs were the king’s debtors, that court, too, gave an extent to their jurisdiction similar to that of the King’s Bench. The exclusive jurisdiction of real actions, which alone remained to the Common Pleas, by the disappearance of villainage and the great increase of personal property, every day declined in importance; but even this was at last taken from the Common Pleas by the invention of Chief Justice Rolle, during the time of the Commonwealth, of the action of ejectment, which proceeds from beginning to end upon assumptions entirely fictitious, but which by its greater convenience entirely superseded real actions in England and in most of the Anglo-American States.

      But while these three common law courts were thus exercising their ingenuity to intrench upon each other’s jurisdiction, their pertinacious adherence to powers and technicalities, and their unwillingness, except in matters where the alleged prerogative of the crown was concerned, to do any thing not sanctioned by precedent, led them to refuse justice or relief to private suitors in many crying cases. Such cases still continued to be brought by petition before the king, and by him were referred to his chancellor, who in the earlier times was commonly his confessor, and who since the abolition of the office of chief justiciary had become the first official of the realm. Undertaking in these cases to prevent a failure of justice by rising above the narrow technicalities of the common law, and guided by the general principles of equity and good conscience, the chancellor gradually assumed a most important jurisdiction, which in civil matters ultimately raised his court to a rank and importance above that of all the others. With the advance indeed of wealth and civilization, appeals

14

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

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

15

See Forsyth’s Trial by Jury, ch. x. sec. 1.

16

Down to the time of Elizabeth all cases occurring in Middlesex county, in which Westminster lies, were thus tried in bank.

17

In London and Middlesex four sessions were held a year; in the four northern counties only one.