Court of assizes

“ Yet the ancient assisa and the ancient jurata, always closely connected, and resembling each other in most essential features, can both claim to be ancestors of the modern civil "jury,"—the name of the more popular institution having survived. Magna Carta, in providing for the frequent holding of the three Petty Assizes, marked a stage in the development of the Civil Jury; while, in enforcing the criminal procedure of Henry Plantagenet, and guarding it from abuse, the Charter had also a vital bearing on the genesis of the Grand Jury and the Petty Jury alike. ”

“ Was not one of them invited to dinner, by a gentleman of the first rank, during his stay in the West Indies, and did he not so conduct himself before one of the gentleman's daughters, that his royal highness was under the necessity of [379] making a precipitate retreat? Yet this outrage upon decency was only noticed by one fearless historian! And amongst the courtiers, where is morality to be found? Yet these individuals are the judges, as well as the jury, and are even empowered to assault, insult, and reproach the consort of the first magistrate, their sovereign the king! ”

“ To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatures, all nations have found it necessary to establish one tribunal paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. ”

“ Then, under the safe appeal of truth to time, there gradually evolved, as between man and man, the method of voluntary submission to a judicial tribunal. Twisted and gnarled was this growth however, for even under Anglo-Saxon law the right of trial by battle was jealously guarded, and lasted for many years. A noble knight charged with an offense could always demand trial by battle; and if he succeeded in running through the body or otherwise disabling the man who made the accusation, he thereby established his own innocence and was acquitted by the court. ”

“ When, therefore, it was conceded on the argument that if the affair at Lathrop had taken place in the court-room during the sitting of the court, the jurisdiction of the Circuit Court would be unquestionable, it is difficult for me to see why the whole question of federal jurisdiction was not embraced in that concession. Assassinating a judge on the bench would no more obstruct and defeat public justice than assassinating him on his way to the bench. In each case he is proceeding in the line of official duty imposed on him by law and his official oath. ”

“ All these halls of justice are thronged by such a compact and democratic crowd that one of the attributes of the magistrates is a little flask of vinegar or smelling-salts placed on the bench, by the side of the Code, before each of the three judges of the Tribunal and before the Substitut. The avocats do not enjoy this privilege, nor the Greffiers unless they have been very long in the service of the court. Here, also, the pressure of affairs is so great that the judges leave the bench, saying to their consciences: "Well! those who are innocent can appeal!" ”

“ This has been done in the constitution of the United States. Its framers were well aware of their responsibilities to secure justice to the people; and well knew, as the object of all trials in courts was to determine the suits between citizens, that it could not be done satisfactorily to them, unless they had the privilege to appeal from the first tribunal which had jurisdiction of a suit to another which should have authority to pronounce definitively upon its merits. ”

“ And certainly, even in England, the King's Bench never claimed or exercised the power to issue a mandamus to an inferior court of record, commanding it to reverse its judgment, in a matter where the law authorized it to judge. ”

“ But still more than by the passing of attainders were the lives, liberties, and property of the nobles submitted to the will of the king, by the institution of the Court of the Star Chamber. This court set aside all other courts at will, and by abandoning the use of juries in it, laid Magna Charta and the life and fortune of every man, at the foot of the throne. From the moment, in fact, that this court was formally erected by the 3 Henry VII., c. 1, there was an end of the Constitution, the privilege of Habeas Corpus was suspended, and Parliament legislated in vain. ”

“ When insurrection has swept away the judicial tribunals of a State as well as of the United States, the commanding general in the exercise of the war power had authority to organize a provisional court for the trial of civil as well as of criminal cases. And what if he does call it a Provost Court, provided he show, as he here is alleged by the other side to have done, that the court was meant to be one for the trial of civil causes also? The community must be saved from chaos, and courts are the means by which this end is attained. ”

“ And now, in the modern age, when the State seeks to do justice between the parties, the hazards of litigation have become still more complex and fruitful. The modern court is little like the tribal assembly, and one now will hardly seek the law-courts to vindicate his courage or to promote his honor. ”

“ Although the cases in England against officers of the crown were generally at law, there can be no reasonable doubt that the Court of Chancery, at the time when our Constitution was adopted, had full power, by means of the writ of injunction, to restrain an officer of the crown from violating the law where the remedy at law in a suit for damages or for possession of property, real or personal, would have been wholly inadequate and ineffective. ”

“ It is to make us accusers, judges, jury, and executioners too, if we please. It is to give us an executive power, to which, in our legislative capacities, we are not entitled. It is to give us a power, which even the executive power itself has not, which the prerogative of the crown dare not assume, which the king himself cannot exercise. My lords, the king cannot touch the hair of any man's head in this country, though he be guilty of high treason, but by means of the law. ”

“ It is idle to argue that the withholding or suspending of the writ of habeas corpus is an appropriate means of constituting a judicial tribunal. It is a caricature of argument to say, that Congress must create a court in which the whole judicial power is to vest, and at the same time may withhold from that court any of the instruments necessary to the practical exercise of judicial power. ”

“ It is still more strange to hear a judge, whose name is known the world over, gravely charging a jury as to the value, as evidence of identity, of a wart under the tail of a costermonger's donkey, the ownership of which is in dispute. Yet, like every feature of an English court, it is eminently practical and free from form or affectation.
The highly paid judges of the High Court, sit in the smallest case; the idea seems to be that if a man desires to assert his rights, however insignificant, it is the duty of the Government to afford him the opportunity. ”

“ Prior to this the penalty had usually been imprisonment followed by ransom. The penalty for a woman of treason, e.g. killing her husband, who was her lord, was burning at the stake.
Trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. (Trial by combat eventually fell into disuse, but was not abolished until 1819.) Assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. ”

“ The king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him.
Judicial Procedure
The prohibition against maintenance was given penalties in 1406 of 100s. per person for a knight or lower giving livery of cloth or hats, and of 40s. for the receiver of such. A person who brought such suit to court was to be given half the penalty. The Justices of Assize and King's Bench were authorized to inquire about such practices. The statute explicitly included ladies and any writing, oath, or promise as well as indenture. ”

“ It cannot be the Doge, for the State Inquisitors keep him in absolute bondage; nor would one naturally imagine that the nobles would relish this court, for the nobles are more exposed to the jealousy of the State Inquisitors than the citizens, or inferior people; and least of all ought [184] the citizens to support a Tribunal, to which none of them can ever be admitted. As, however, the body of the nobility alone can remove this Tribunal from being part of the constitution, and yet, we find, they have always supported it ”

“ But I will not take the law from the Court; the jury are my judges; I will not take the dictum of his lordship. I cannot sit down without going further into my defence, unless it is positively decided that I shall not proceed.
The Chief Justice: You must not deny the truth of the Christian religion, nor are you to go into irrelevant matter; if I am wrong you can appeal to the Court of King's Bench.
Mr. Carlile: By what means can I appeal to the Court of King's Bench when I am confined within the walls of a prison? ”

“ In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency. ”

“ Henry II. had in the early years of his reign applied the same principle to the uses of civil litigation by an ordinance known as the “Great Assize,” whereby disputes concerning the possession of land might, if the litigants chose, be settled before the justices of the king’s court by the unanimous oath of twelve lawful knights chosen according to a prescribed form from among those dwelling in the district where the land lay, and therefore competent to swear to the truth or falsehood of the claim. ”

“ Barons and earls settled their disputes in the field rather than in the royal courts. And men relied increasingly on the protection of the great men of their neighborhood and less on the King's courts for the safety of their lives and land. Local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. Men serving in an assize often lied to please their lord instead of telling the truth. Lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. ”

“ The young man was committed to prison; but, ‘the poor man’s friends being satisfied with a piece of money, none being to pursue the murder, he was by moyen [influence] cleansed by a white assize (as they call it) and let go free.’—Row. This trial took place before the regality court of St Andrews. On the ensuing 17th January, letters were raised by the king’s advocate against the assize, but with what result does not appear.—P. C. R.
Nov. ”

“ The judicium parium was secured to earls and barons in later reigns, not merely by giving seats on the judicial bench to a few holders of “baronies,” but by bringing the case before the entire body of earls and barons in commune concilium. What the barons got at first was “judgment” by peers. The actual “trial” was the “battle,” the fellow-peers acting as umpires and enforcing fair play. [845] Although new modes of procedure came to prevail, the Court of Peers continued its control, and the judgment of peers gradually passed into the modern trial by peers. ”

“ While it may be admitted that, in some senses, the writ of mandamus may properly be denominated a suit at law, it is still material to inquire whether it was intended to be embraced in the gift of power to hear and determine all suits at common law, of a civil nature, conferred by the Judiciary Act. ”

“ But in this instance, the state of Georgia has surrendered her right to control the pleadings to Congress, who have forbidden the plea here urged. The law of Congress is, therefore, the law of the place where the suit is instituted.
If all the Courts of the United States are bound to consider a judgment in one state as conclusive in every other; if before all Courts of justice in the Union such a judgment is a domestic judgment, and nothing will be heard against it which goes to divest it of that character; surely an executor or administrator will not be permitted to degrade it. ”

“ With the sentences of courts martial which have been convened regularly, and have proceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them. ”

“ This is a term frequently applied throughout the South and West to bodies of men who constitute themselves into a tribunal for the purpose of exercising a species of vicarious jurisdiction over those offences to which the ordinary courts of justice administer neither so swift nor so severe a punishment as they conceive them to merit. In other words, they are usually a set of scoundrels, who, having no legitimate occupation, have formed themselves into a peripatetic court, presided over by Judge Lynch; and are at once a terror and a scourge to the locality they infest. ”