[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.
Public-domain text, read in full here on John Shaqi.
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