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.[91]
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.[92]
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
chapter here spoken of (in John's charter) does not allow these justices
to sit _alone_ in jury trials, even in _civil_ actions; 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.[93]
Public-domain text, read in full here on John Shaqi.
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