It was only
by virtue of this illegal assumption that they could claim to
appoint their tools to hold courts.
All these things show how perfectly lawless and arbitrary the
kings were, both before and after Magna Carta, and how necessary
to liberty was the principle of Magna Carta and the common law,
that no person appointed by the king should hold jury trials in
criminal cases.
[5] In this extract, Palgrave seems to assume that the king
himself had a right to sit as judge, in jury trials, in the
county courts, in both civil and criminal cases. I apprehend he
had no such power at the common law, but only to sit in the trial
of appeals, and in the trial of peers, and of civil suits in
which peers were parties, and possibly in the courts of ancient
demesne.
[6] The opinions and decisions of judges and courts are
undeserving of the least reliance, (beyond the intrinsic merit of
the arguments offered to sustain them,) and are unworthy even to
be quoted as evidence of the law, when those opinions or
decisions are favorable to the power of the government, or
unfavorable to the liberties of the people.
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