Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
It is little wonder, with this harsh rule obtaining, that by the time of
Edward I. history records that his justices had become extremely cautious
men, unwilling to decide nice points of law but referring every close
question to the Council for instruction.[48] The penalty of a mistake
or “false judgment” to them meant not only a fine, but disgrace and the
recall, if the King saw fit to so punish them, so this was not only
calculated to make a man cautions, but to prevent those of skill and
dignity from risking the expression of their judgment, when the penalty
for a mistake was such that it might forever ruin the future life and
hopes of the judge pronouncing judgment. The strange thing is that with
such a system, any self respecting man could be found to undertake the
performance of functions such as those required of a judge, when his
behavior was the means of ruining his future life, regardless of his pure
intentions in the performance of his official duty.
The tenure of office of the English judge continued for centuries, to
be at the pleasure of the Crown, and under the Plantagenets and the
Tudors, a Chief-Justice even, might be removed, like any other officer
of the King, at the pleasure of the sovereign,[49] and during this whole
period we find that the standards of the judiciary were in keeping with
this servile and undignified conception of the duties of such an office,
for the judges, with but few exceptions, during this period of servile
attachment to the Crown, were men of but mediocre ability, willing to
prostitute their high offices, to hold the esteem and favor of their
patron.
It was thus found, by experience, in England, that the proper discharge
of the impartial duties of the courts was consistent only with the
maintenance, at all times, of their dignity and independence, hence, it
was enacted, by statute, (13 William III., c. 2) that the commissions of
judges were to be held, not as formerly, during the mere pleasure of
the king, but so long as they should conduct themselves uprightly. They
can only be removed from office, upon the address of both houses of
Parliament and since the reign of George III., the commissions of judges
are not terminated with the death of the king, but they continue to
hold their office, notwithstanding the demise of the king, during their
good behavior, or until removed by the joint action of both houses of
Parliament.[50]
And not only did the English law raise the incumbent of the judgment seat
to a plane where he could view, with disdain the frowns of the tyrant
in the performance of his official functions, but that he might also be
free from the clamors of the populace, he was exempt from indictment for
any judicial act honestly done, or omitted, while sitting as a judge. In
other words, while acting in a judicial capacity, judges were not liable
for an honest mistake, but only for fraud or corruption.[51]
Public-domain text, read in full here on John Shaqi.
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