The Van Buren press. [volume] (Van Buren, Ark.) 1859-1914, 1896-09-26
TRIAL AT BAR.


| The Recent Revival of an Old English
Law Procedure.
The adoption in the case of DR.. Jane
son and his companions in the Trans
vaal raid of the mode of procedure
! known as u trial at bar" has naturally
aroused considerable curiosity concern
ing this veritable English legal institu-
ton. Originally criminal as well rs
civil cases in England were invariably
triable by Jury of the vicinage," sum-
moned by the sheriff of the county in
which the cause Of action arose. the
''aua regis" of the Norman kings of
England, which was the germ of the
parliament as we'll rs of the higher
law court, sometimes supererogated to
! itself the trial of eases of sufficient mo-
ment, either because of the Importance
of the parties concerned or the issues
involved Gradually out of the "aula
regis" (royal counci) was evolved the
| kings court at Westminster, and prior
even to Magma Charta indictments had
not infrequently been removed from
the counties in which they were found
in order to be tried "coram rege," or,
according to the explanation of Sergt.
i Pulling in his work "On the Order of
the Golf" before the full bench of the
kings justices. In theory, If not in
practice, an English freeman was thus
entitled TO a trial by his peers at the
bar of the kings bench, under the di-
rection of the kings immediate repre-
sentatiyes, the justices sitting at West
minister.
The inconvenience of summoning wit
nesses and jurors from distant counties
to trial at the kings bench was early
felt, however, and the practice was fixed
by the statute of Westminster, passed
in the thirteenth year of the reign Of
Edward l., whereby the court was en-
powered to grant writ of "nisi prius,'
commanding the sheriff to bring his
Jury to Westminster in the next fell
lowing term, "unlexs the justices of
assize should first come to his county"
/ The words "un1ess' (nisi) and first
| (prius) explains the meaning and origin
of the writ. A justice of assize, of
course, invariably came to the county
upon his circuit before the date of the
return of the writ; and thus arose the
custom of trying criminal causes at
! the assizes in the various counties, in
stead of at the reeves Tor sheriif's)
court, as formerly, or at the kings
I court at the capital.
The right to order trial at bar on
the application of the party indicted
remains legally unimpaired. In prae-
tice it has been suspended, however,
unless very strong reasons for such n
mode of procedure be presented to the
court. Within the last half century it
has been granted to n judge of SUI
| perior court and to master in chan
cery and it has been suggested that
an order for such trial would be made
as q matter of course in favor of a bar
rister. But this is doubtful, since an
application for trial at bar made on
behalf of a colonial judge was denied
! little over a year ago. SO far as sub
jects of the British crown are con-
cerned the right may be considered OBJ
solete.
The statute of Edward I. is not bind
! ing on the crown; but its natural tend
ency to make the award of the writ
I.isi prius the rule, and trial at bar the
exception, has been effectual in rem
dering applications by the attorney
general for trials by the full bench eX-
tremely rare, and only resorted to in
cases in which the government has
some privity of interest. or presump-
tive right to interfere in the subject
matter Of the litigation. This form OF
procedure was thus brought into requi-
sition in the case of "The Queen VS.,
Daniel O'Connell," in 1913; "The Queen
VS.. Castro" in 1874, and 1.-THE Queen
vs. Parnell," in 1889. Technically, the
trial at bar is supposed to take place
before the whole bench; according to a
stituted not by all the justices of the
| queens bench, but by division of the
| high court, consisting of three or more
| judges. The right of each of the judges
! presiding at a trial at bar to charge
the jury in the order Of their seniority
must lead, and sometimes has led, to
rather ludicrous complications. In
the jameson case Lord Chief Justice
Russell was permitted to make his
charge without any dissent on the
! part of his associates on the bench;
but in the famous case of the seven
bishops, the four judges sitting at the
trial-Chief Justice Wright and JUS
tees Holloway, Powell and Allybone-
not only differed in opinion, but gave
contrary directions to the jury.-Phil.