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

1

The German graf, for which the Latin comes (in English, count or earl) was employed as an equivalent, is a form of the same word. The law Latin for sheriff is vice-comes, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl.

2

See Forsyth’s History of Trial by Jury, ch. iv. sec. 4.

3

History of England, Appendix, I.

4

The decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal.

5

History of England, Appendix, II.

6

We may observe that even at present, whether in England or America, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities.

7

In the king’s absence – and the Anglo-Norman kings were often absent on visits to their continental dominions – this chief justiciary acted in all respects as the king’s substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. Such was the case with Ranulphus de Granville, chief justiciary of Henry II., A. D. 1180-1191, whose treatise in Latin, On the Laws and Customs of the Kingdom of England, is the oldest book of the common law. He went with Richard I. on the third crusade, and was killed at the siege of Acre.

8

It might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties.

9

Not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king’s courts, by the writ of pone and others.

10

Originally, and down to a comparatively recent period, the Inns of Court were real schools, “readers” or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. Now, the examination is a mere form, and the student seeks instruction where he pleases. Even the nominal term of study has been reduced to five, and in some cases to three years.

11

This distinction between attorneys and barristers, though still in full vogue in England and in several of the British colonies, is not recognized in the United States, where, indeed, it never had but a feeble and transient existence.

12

Down to the period of the reformation the abbots of the greater monasteries sat also in this house.

13

If the Lords, says Campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. It certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them.

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.

18

This history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the District Courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members.

19

The appeal from the English colonial courts to the king in council – the appeal cases being heard and decided by a committee of the privy councillors learned in the law – is another remnant of the old system, in which the constitution of the ancient Aula Regis has been very accurately preserved.