Chapter M (11)

The true etymology of the word iz _par_, or _bar_, a landholder or baron, and _le mote_, the meeting. I say _mote_, for this waz the Saxon spelling of the word, after the prepositiv _ge_ waz dropped. It waz originally _gemote_, az in _witena-gemote_; afterwards the _ge_ waz disused, az in _falk-mote_. What the original French orthography waz, I am not certain; but the word came to England from France, and we find the French article prefixed, _par-le-ment; a meeting of the barons_. The same sound waz used in Germany, Burgundy, and other parts of Europe, and in all, it had the same meening, which it, in some mesure, retains in France to this day.

The _commune concilium_ of England, before the conquest, consisted of the _witena_, or wise men. It retained the name of _witena-gemote_, til after the Norman invasion. It iz perhaps impossible, at this distance of time, to ascertain exactly the manner of summoning this national assembly, or whether the commons or lesser nobility were entitled to a seet. In old charters, the king iz said to hav passed laws by advice of the archbishops, bishops, abbots, erls and wise men of the relm; seniorum sapientium populi. But we are not able to determin whether theze seniores sapientes were admitted on account of their age and wisdom; or whether possession of real estate waz a requisit qualification. So much iz certain, that in France and Germany, where we first heer of _parliaments_, all the _barons_, that iz, all the nobility, were entitled to a seet in the national council, in right of their baronys; and this iz asserted to hav been the case in England.[82] This fact, so well attested in history az to be undeniable, ought long ago to hav led the critical enquirer to the true origin of the French word, parlement. The name of parliament took its rise under the feudal system, when the assembly of men, so called, consisted solely of barons or bars. It iz from this circumstance that the provincial assemblies of France are properly denominated _parliaments_. The erly Norman princes, who introduced the name into England, summoned none to their council but the clergy and nobility, and sometimes a few only of the greater barons. The house of lords iz strictly a _parliament_, according to the original of the word, altho since the commons hav made a part of the legislature, the name iz extended to the whole body.

[82] Stuarts English Constitution, p. 275.

The word _peer_ iz said to be derived from the Latin _par_ equal; and this circumstance haz been the occasion of innumerable encomiums on the English _trial by peers_. So far az equality in the condition of judges and parties, iz an excellence in any judicial system, the present practice of trial by jury iz esteemable among a free peeple; for whatever may be the origin of the word _peer_, a trial by men of the naborhood may often proov a capital security against a court devoted to party. But it iz at least doubtful whether _peers_, az used for jurors, came from the Latin _par_; for it iz almost certain that the word _peer_, az used for nobles, iz derived from the German _par_, a landholder, and this iz undoubtedly the tru primitiv sense of the word. That there waz such a word in ancient Germany, iz unquestionable; and _paramount_, which signifies the lord of highest rank, iz from the same root; _par-amount_, the _par_ or _baron above_ the rest. The jurists on the continent latinized the word, calling the lords _pares_; and this, in later ages, waz mistaken for the plural of the Latin _par_.

Az the pares or barons claimed almost exclusiv jurisdiction over their manors, and held courts of justice, ether in person or by their bailiffs, they came to be considered az the supreme judges in the last resort of all civil and criminal causes. _Pares_ or _barons_ became equivalent to _judges_. Hence the _house of peers_ in England iz the supreme judicatory of the nation. Hence the _parliaments_ (meetings of peers) in France are supreme courts of justice.

_Twelv_ waz a favorit number with our Saxon ancestors, and the king, or lord paramount, with twelv judges, constituted the supreme court or council among the ancient Germans. It will hardly be considered a digression to examin this institution with more attention; for if I mistake not, the rudiments of it are visible az far back az the Christian era; or even az the Gothic migrations to the west and north of Europe.

In the Edda, or system of Gothic mythology, compiled by Snorro Sturleson, supreme judge of Iceland, about the year 1220, we may discern the principles which would naturally giv rise to the practice of trial by _twelv men_. The Edda will indeed be said to be a collection of fables. To this I answer, fable iz generally, perhaps always, founded on fact; whatever additions may be made in a course of time by imperfect tradition. The Edda iz acknowledged to contain an authentic account of the opinions of the northern nations at the time it waz written. This iz all I ask.

Snorro, and Torfæus the historian of the north, inform us that even in Scythia, "Odin, the supreme god of the Goths, performed the functions of cheef preest, assisted by _twelv pontiffs, who distributed justice_."[83]

[83] Mallets North. Antiq. Vol. I. 61. The northern nations
had, like the Greeks, _twelv_ principal deities, and this
article in their religious beleef might originate the
institution of _twelv preests_, _twelv judges_, &c. Many
civil institutions among rude nations, may be traced to their
religious opinions; and perhaps the preference given to the
number _twelv_, in Germany, in Greece, and in Judea, had its
origin in some circumstances az ancient az the race of the
Jews.

_Odin_, which in Anglo Saxon, waz _Woden_, waz the supreme
god of the Goths, answering to the Jupiter of the Greeks: And
it iz remarkable that the words, _god_, _good_, _odin_ and
_woden_, all sprung from one source. We shall not be
surprized that the same word should begin with such different
letters, when we reflect that such changes are very common.
The Danes omit _w_ in _word_; a dictionary they call
_ord-bog_, a word book; and the Spaniards, in attempting to
pronounce _w_, always articulate _g_. See my Dissertations,
p. 335.

Let us attend to a fact confirming the account. Mallet, a historian of credit, testifies that the hall or seet of justice, may be stil seen in different parts of Sweden and Denmark. "Theze monuments, whoze rude bulk haz preserved them from the ravages of time, are only vast unhewn stones, commonly _twelv_ in number, set upright, and placed in form of a circle. In the middle iz a stone, much larger than the rest, on which they made a seet for their king. The other stones served az a barrier to keep off the populace, and marked the place of thoze whom the peeple had appointed to make the election (of king.) They treeted also in the same place of the most important affairs."[84] There iz one neer Lunden,[85] in Scania, another at Leyra, in Zealand, and a third neer Viburg, in Jutland.

[84] North. Antiq. Vol. I. 169.

[85] London, in England, probably had its name from this
place.

This being a well attested fact, we are disposed to beleev what iz related in the Edda, Fable 7th, where it iz asked, "what the universal father did when he bilt Asgard, (the divine abode.") It iz answered, agreeable to the receeved opinion of the Goths, "he in the beginning established governors, and ordered there to decide whatever differences should arize among men, and to regulate the government in the plain, called Ida, wherein are _twelv_ seets for themselves, besides the throne which iz occupied by the universal father."[86]

[86] North. Antiq. Vol. II. 41.

On this passage, the translator of Mallets History haz the following note. "Theze judges were twelv in number. Waz this owing to there being twelv primary deities among the Gothic nations, az there were among the Greeks and Romans? This I shall not take upon me to decide; but I think one may plainly observe here the first traces of a custom, which hath extended itself to a great many other things. Odin, the conqueror of the north, established a supreme court in Sweden, composed of twelv members, to assist him in the functions of the preesthood and government. This doubtless gave rise to what waz afterwards called the senate. And the same establishment in like manner took place in Denmark, Norway, and other northern States. Theze senators decided in this last appeal, all differences of importance; they were, if I may say so, the assessors of the prince; and were in number twelv, az we are expressly informed by Saxo, in hiz life of king Regner Lodbrog. Nor are other monuments wanting, which abundantly confirm this truth. We find in Zealand, in Sweden, neer Upsal, and if I am not mistaken, in the county of Cornwal, large stones, to the number of twelv, ranged in the form of a circle, and in the midst of them, one of a superior height. Such in thoze rude ages, waz the hall of audience; the stones that formed the circumference, were the seets of the senators; that in the middle, the throne of the king. The like monuments are found also in Persia, neer Tauris. Travellers frequently meet there with large circles of hewn stones; and the tradition of the country reports, that theze are the places where the _caous_ or giants formerly held their councils.[87] I think one may discover vestiges of this ancient custom, in the fable of the _twelv peers_ of France, and in the establishment of twelv jurymen in England, who are the _proper judges_, according to the ancient laws of that country."

[87] See Chardin's Travels, Vol. III.

It iz certain that some outlines of this mode of deciding controversies by _twelv_, may be seen in the customs of the Cimbri and Teutones, long before the Christian era. But I cannot find that the idea of _equality_ ever entered into the original institution. On the other hand, every old authority that I hav consulted confirms me in the opinion, that the _twelv men_ were chosen from among the landholders or better classes of peeple; that they were the _judges_ of the court, and that the distinction between judges and jury, law and fact, iz a refinement or improovment on the original constitution, and comparativly of modern date.

It iz certain that a difference of rank existed among the Germans in the time of Tacitus. "Reges ex nobilitate, duces ex virtute sumunt."[88] The same writer expressly declares, that matters of inferior concern and private justice came within the jurisdiction of their _princes_. "De minoribus rebus principes consultant, de majoribus, omnes."[89] In another passage, he is more explicit: "Principes jura per pagos vicosque reddunt."[90] Cesar iz still more explicit: "Principes regionum atque pagorum inter suos jus dicunt, controversiasque minuunt."[91] Theze _principes regionum atque pagorum_, Blackstone says, we may fairly constur to be lords of hundreds and manors;[92] they were originally electiv, az we are informed by Tacitus, "eliguntur in conciliis principis," and each had a hundred comites, or assistant judges, who were chosen from among the peeple. "Centeni singulis, explebe comites, concilium simul et auctoritas, adsunt."[93] Theze hundred assistants, or companions, were chosen _ex plebe_; but when chosen formed the _concilium principis_. The prince waz their president, chosen by themselves, _eliguntur in conciliis principes_, and had _auctoritatem_, authority or jurisdiction in the town or district.

[88] Tac. de Mor. Germ. c. 7.

[89] Tac. de Mor. Germ. c. 11.

[90] C. 12.

[91] De Bello Gallico. lib. VI. c. 21.

[92] Com. Vol. III. 35. This cannot be strictly true; for the
_principes_ were electiv; and therefore could not hav owned
the land (pagus) or exercised the office of judge in right of
their property. The kings, princes, and generals of the
ancient Germans were elected; some for their _nobility_, that
iz, the respectability of their families, arising from the
valor and merits of their ancestors; others, az their
_duces_, military commanders, were chosen for their
_virtues_, their personal bravery. This I take to be the
meening of that passage in Tacitus, "Reges ex nobilitate,
duces ex virtute sumunt."

"The _Comites ex plebe_," says Selden, chap. 18, "made one
rank of freemen superior to the rest in wisdom." The Saxon
nobles were called _adelingi_, or wel born; the freemen,
_frilingi_, or free born; the latter might be assistants in
the judicial department. The lower ranks were called _lazzi_
or slaves; and indolence iz so necessary a consequence of
bondage, that this word _lazzi_, or _lazy_, haz become
sinonimous with _indolent_, _sluggish_. This word iz a living
national satire upon every species of slavery. But the effect
of slavery iz not merely indolence; its natural tendency iz
to produce _dishonesty_; "almost every slave, being, says Dr.
Franklin, from the nature of hiz employment, a theef." Az a
striking proof of this, we may instance the change of meening
in the words _villain_ and _knave_, which at first denoted
_tenant_ and _plowman_, but during the oppressions of the
feudal system, come to signify, _a rogue_. _Vassal_ also
denoted originally, a _tenant_ or _feudatory_ of a superior
lord. It waz an honorable name, the barons being called the
kings _vassals_. But servitude iz to natural a consequence of
the tenure of lands under a proprietor, in see, that _vassal_
haz become sinonimous with slave.[c] The change of meening in
theze words iz a volum of instruction to princes and
legislators. Reduce men to bondage, and they hav no motiv but
feer to keep them industrious and honest, and of course, most
of them commence rogues and drones. Why hav not the tyrants
of Europe discovered this truth? Good laws, and an equal
distribution of the advantages and the rights of government,
would generally be an effectual substitute for the bayonet
and the gallows. Look thro Europe; wherever we see poverty
and oppression, there we find a nursery of villains. A
difference in the property, education and advantages,
originates the difference of character, between the nobleman
of nicest honor, and the culprits that swing at Tyburn.

[c] Blackstone, Vol. II. 52, says, "we now uze the
word _vassal_ opprobriously, az sinonimous to slave
or bondman, on _account of the prejudices we hav
justly conceived against the doctrins grafted on
the feudal system_." So good a man ought not to hav
uzed the word _prejudice_; and so great a man ought
to hav assigned a better reezon for this
_opprobriousness_ of the modern word _vassal_.

[93] De Mor. Germ. c. 13.

The idea of equality iz no where suggested; on the contrary; the hundredors when chosen became a court or legislature in the district, competent to the general purposes of government. No mention iz made of a distinction between the legislativ and judicial departments; on the other hand, we may safely conclude, from the passeges of Cesar and Tacitus before quoted, that the powers of making laws and deciding causes were vested in the same men. Cesar says, "nullus est in pace communis magistratus," nor could the Germans, in their primitiv simple mode of living, need such a magistrate. The princes _jus dicunt, controversiasque minuunt_, distributed justice, by the assistance of their _comites_, and according to the circumstances of the peeple.[94] This at leest waz the case with respect to matters of small magnitude.

[94] The practice of choosing assistant judges in the Roman
commonwealth, waz something similar to our mode of
impannelling a jury. Theze assistants were sometimes a
hundred, and it iz not improbable, the Roman and German
customs of electing that number might be derived from the
same original.

The Prætor, (cheef justice) or princeps judicum appointed by him, summoned a number of persons, who were called _judices selecti_, select judges. Theze were to giv their verdict in criminal matters, like our juries. On the day of trial, the first thing after opening the court, waz the _sortitio judicum_, or impannelling of the jury, performed by the _judex quæstionis_ or cheef judge on the trial, who took by lot such a number of the _judices selecti_, or jurymen, az the law, on which the accusation waz founded, had determined. Liberty waz given to the parties to reject, (challenge) and the places of thoze rejected, were filled by new appointments.--_Kennetts Antiq. of Rome_, 138.

The number of _comites principis_, or assistants, waz originally a _hundred_. This gave name to the district which they governed, and which afterwards consisted of any indefinit number, still retaining the primitiv name. In later ages, the number of assistant judges waz reduced; a grand jury still consists of twenty four; a petit jury commonly consists of twelv, but on certain occasions, and by the custom of particular places in England, may be composed of sixteen, eight or six.[95]

[95] See Coke Litt. and Hargraves notes on this subject.

Such waz the constitution of the ancient Germans, in which we may discover the principles of the system which they every where established, after their conquests in Gaul, Spain, Italy and Britain.

_Twelv_ waz a favorit number, not only with the Saxons, but with all the nations of northern original. They had twelv principal deities; they numbered the units up to _twelv_, instead of stopping at ten, like other nations;[96] they had twelv judges to assist their kings or princes; their hall for the election of their kings consisted of twelv huge stones, placed in a circle. Hence we discover the origin of the twelv senators of Sweden,[97] Denmark and Norway; the twelv counsellors of state in ancient times; the fable, az it iz called, of the twelv peers in France; the twelv judges in England, and the trial by twelv peers or jurors, which waz formerly common to all the northern nations of Europe.[98]

[96] Mallets North. Antiquities.

[97] Mentioned in the preceding note, copied from Mallet.

[98] These facts gave rise to Cokes quaint remarks, "that the
law delighteth herself in the number of twelv;" and he adds,
"the number of twelv iz much respected in holy writ; as 12
apostles, 12 stones, 12 tribes, &c." On juries, fol. 155.

On the Gothic establishments in the south and west of Europe, government took a military complection. The kings parcelled out the conquered lands among their generals, called _duces_ or _principes_, by the Latin writers; and by the Saxons, _heretoga_. The generals of first rank receeved or acquired whole provinces, az Burgundy, and the principalities of Germany. Theze territories they distributed among their inferior officers and _comites_ or retainers, of whom every lord had great numbers about hiz person. Theze constituted a secondary, but very numerous class of nobility; and altho there might be differences of rank and property among them, they were called by one general appellation. In England, they were called _thanes_, from a word signifying _to serve_, because they held their lands by the condition of military service. On the continent, they were called _barons_, that is freemen, or tenants of land, upon condition of rendering certain military and honorable service to their superior lord, who waz called lord _paramount_.

Blackstone remarks, that "a baron's iz the most general and _universal_ title of nobility; for originally every one of the peers of superior rank had also a barony annexed to hiz title."[99] The origin of this title haz occasioned great enquiry among antiquaries; but the difficulty vanishes upon my hypothesis, which derives the word from _bar_, a landholder and freeman; for on the establishment of the feudal tenures, all the lands were held by a few men; the proprietors were all called _barons_, and this accounts for the _universality_ of the title just mentioned. Thus the bishops, after they had obtained gifts of large tracts of land or manors, resigned them to the conqueror, William; accepted them again subject to the conditions of lay fees, claimed rank with the nobility, and took their seets in the English house of lords. Actual possession of a barony waz originally requisit to constitute a lord of parliament; but the title iz now granted by the king without the possession.

[99] Com. Vol. I. 398.

Blackstone mentions the difficulty of tracing the word _baron_ to its primitiv sense; but confirms the foregoing explanation when he says, "the most probable opinion iz that _barons_ were the same az our _lords of manors_."[100] The name indeed waz not used in England (so far as can be collected from English writers) till after the conquest. But it iz certain that the feudal system, tho not in all its severity, waz established in England before that period; and degrees of nobility were cotemporary with the Saxon establishments in the island. The first class were called in Saxon _heretoga_, that iz generals or military commanders. But the most ancient and perhaps the most important civil title waz that of _earles_ or _ealdormen_. Theze erls were called also in Saxon _schiremen_, for they exercised supreme jurisdiction in the _shires_. After the conquest they were called by the corresponding Norman title _counts_, from _comites_, because they were the king's companions in war; and their jurisdiction waz called a _county_.[101]

[100] Com. Vol. I. 399.

[101] I am by no meens certain that this derivation of
_counts_ from _comites_, iz just; it iz at leest az probable
az otherwise, that _contees_ may be a Gothic word. But this
iz conjecture.

Inferior to theze in rank were the Saxon _thanes_, who were so called from the Saxon _thanian_ ministrare, because they were the _comites_ or attendants of the ancient kings or earls. Theze were numerous, and after the conquest called by the equivalent continental title, _barons_. Of theze there were different ranks, _thani majores_ or _thani regis_, who served the king in places of high importance, and took rank next to the bishops and abbots. Theze had inferior thanes under them, called _thani minores_, who were also _lords of manors_.[102] The word _peer_ I suppose to be derived from the same root az _baron_, bar or par, and to be equivalent in sense. It iz cleer to me that _landholder_, or man by way of eminence, waz its original meening; and that it iz a proper name of the ancient nobility, given them az proprietors of vast tracts of land, and that it had no reference to _equality_ of rank.

[102] See Cowel on the word _thane_; and in Domesday,
"thanus, est tenens, qui est caput manerii."

But there are better proofs of this point than that drawn from this supposed derivation. The true original signification of the word we hav in the phrases, _house of peers_, _peers of the relm_, _peerage_. And for this assertion we hav the best authorities in the language. Cowel, from whom Johnson and most modern lawyers have borrowed their definitions of law terms, after explaining the word _peer_ az denoting jurors, says expressly, "but this word iz _most principally used for thoze that be of the nobility of the relm and lords of the parliament_." Here the author haz mentioned a well supported fact, and quotes ancient authorities. But he immediately leevs fact, and runs into conjecture, az to the reezon of this appellation, which he deduces from a preconceeved, but probably erroneous, opinion. "The reezon whereof iz, that altho there be a distinction of degrees in our nobility, yet in all public actions they are equal; az in their votes of parliament, &c." Here the author takes it for granted that the word _peer_ signifies _equal_, and assigns, az a cause of its _most principal_ appropriation to the nobility, that the men, tho of different ranks, hav an _equal vote_ in parliament. This a curious reason indeed! A man must be more credulous than I am, to beleev this slight circumstance would giv rise to such a particular appropriation of a name. One would think that the same reezon would hav given the name to the clergy in convocation and other ecclesiastical courts. Yet the learned and candid Blackstone haz copied the same reezon. "The commonalty, like the nobility, are divided into several degrees; and, az the lords, tho different in rank, yet all them are _peers_ in respect of their nobility; so the commoners, tho some are greatly superior to others, yet all are in law _peers_, in respect of their _want_ of _nobility_."[103] This appeers very extraordinary, that an _equality of suffrage_ should giv an appellation in preference to _difference of rank_, which iz, so much more obvious and more flattering to the haughty barons. But if the commoners are _peers_ or _equals in suffrage_ az well az the lords; that iz, on the _same principle_; or as Blackstone states it, if the _lords_ are _peers_ because they are _noble_, and the commoners are _peers_, because they are _not noble_, why hav not the commoners the same appellations of _peers of the relm_? The lords are not _equally_ noble, by Blackstone's own statement, for they are of very different ranks; and the commons are not equally _ignoble_, (this word iz used merely for contrast) for they are of different ranks: Yet the vote of one commoner iz az good in the house of commons, az that of another; and the vote of one lord, in the other house, iz az good az that of another. If the _equality of suffrage_ iz a proper ground for the title of _peers_ in one house, the reezon extends to the other. Yet commoners are not _peers of the relm_; and until a good reezon can be assigned for the distinction of titles between the houses, I shall beleev that the word _peer_ had originally no reference to _equality_.[104]

[103] Com. Vol. I. 403. "But the same author, in page 399,
says, the right of _peerage_ seems to hav been originally
territorial, that iz, annexed to lands, manors, &c. the
proprietors of which were, in right of thoze estates, allowed
to be _peers of the relm_;" that iz, in plain English,
certain men, in right of their estates, were allowed to be
_equals_ of the relm. This will not pass for reezon and truth
on this side of the Atlantic.

[104] Horne, in hiz Mirror of Justices, chap. I. sect. 2.
says, "altho the king ought not to hav any _peer_ (that iz,
_equal_) in the land, yet because he cannot be a judge in a
case where he iz a party, it waz behovefull by the law that
he should hav _companions_ to heer and determin of all writs
and plaints of all wrongs, &c. Theze companions are now
called _countees_, _earles_, according to the Latin
_comites_, &c." This iz singular! The king ought to hav no
_equal_; therefore he ought to hav _companions_ for judges;
or, in plainer words, if possible, the king ought not to hav
_equals_ in the kingdom, therefore he should hav _peers_ to
heer and determin criminal causes. Common sense at leest, if
not etymology, will say, "the king ought not to hav _equals_,
but he must hav _judges_."

But say the English lawyers and antiquaries, "the bishops are not in strictness held to be _peers of the relm_, but only _lords of parliament_."[105] Why not? What is the distinction? Here our authors leev us in the dark; but perhaps the foregoing clu will leed us to the light. Bishops were not the original proprietors of baronies; they were not _bars_ or _pars_, the hereditary lords of manors, consequently not _peers of the relm_. This iz such an obvious solution of the question, that I am surprized it should hav been overlooked. Under the papal hierarchy, the clergy gained vast influence over the minds of men, and by a variety of expedients, became possessed of large estates, and some of them, of ancient baronies. But their acquisitions were comparativly of modern date, and many of them usurpations, altho in consequence of their estates they obtained a seet in the house of lords. They are therefore _lords of parliament_; but the ancient peers, priding themselves upon the antiquity of their families, and claiming certain prescriptiv rights, would not admit the clergy to an equal share of authority and honor; for to this day, a vote of the temporal lords iz good against every vote of the clergy.[106]

[105] Blackstone, Vol. I. 157, from Staunford P C. 153.

[106] It iz now held that _e converso_, a vote of the
spiritual lords, if a majority, iz good against all the
temporal lords; but Coke douts it. Supposing this to be
admitted, the privilege is modern, and makes nothing against
my supposition.

"The appellation _peer_," says Cowel, "seems to be borrowed from France, and from thoze _twelv peers_ that Charlemagne instituted in that kingdom." The same word waz used by other nations. Theze twelv peers constituted a great council or supreme court, and the members were all _barons_, or of the nobility.[107] Can the word, applied to the members of this council, signify _equal_? By no meens. Here we trace the word to a remote period of antiquity, and find it used by the emperor of Germany; or at leest an appellation given to one of the first councils in hiz dominions. This iz the pure primitiv sense of the word _peers_, _barons_, that iz, in the full latitude of its signification, all the ancient nobility; who held lands of him ether immediately or mediately; who formed hiz supreme judicial court, and in some countries, hiz legislativ assembly; who were hereditary councillors of the crown; and cheef _judges_ of all causes arising on their own manors, except such az were of great consequence.

[107] It haz been remarked that _baron_ iz the most general
title of nobility; indeed every nobleman waz originally a
_baron_. Coke. I. 74. The lords of manors, both in England
and on the continent, were the suitors in the king's court,
and called _pares curtis_ or _curiæ_. The lords tenants were
called the _peers_ of hiz court baron. See Blackstone, Vol.
I. ch. 4.

This explanation accounts for what Selden has remarked, chap. 65, that "the barons of England, before the reign of Edward I, were rather the _great_ and _richer sort_ of men, than _peers_, altho they were of the number." That iz, the Saxon thanes, who were great landholders, but inferior to the erls, had, after the conquest, receeved the appellation of _barons_ from the continent; but, being a secondary class of nobility, had not claimed or acquired the power and privileges of the German and French princes and nobles who had the title of _peers_, until the Norman kings had introduced, into the kingdom, the oppressiv and invidious distinctions of the feudal tenures, in the full extent of the system.

It will be enquired, if this iz the sense of the word, how came juries of common freeholders to be called _peers_? The answer iz eesy; the jurors were the _judges_ of the inferior courts, and not merely the equals of the parties, az iz commonly supposed. The _erl_ or _baron_, in strictness; but more commonly, the vice-comes, sheriff or lords deputy, waz the president or cheef justice, and the jurors, the _assistant judges_. For this opinion, numberless authorities may be produced. The barons were the assistant judges, _peers_, in the court of the lord paramount or king, and thus became judges by prescription; so the word _peer_ or _baron_, in time, became equivalent to _judge_. Az the nobles were judges in the kings court, and decided on appeels in the last resort, so the freeholders who constituted the court in the county, hundred or manor, came to be denominated _peers_, that iz, _judges_.

Reeve, in hiz history of the English Law, remarks, that "the administration of justice in the days of William the conqueror, waz so commonly attendant on the rank and character of a baron, that _baro_ and _justiciarius_ were often used _synonimously_." Blackstone says, "it iz probable the barons were the same az our lords of manors, to which the name of court baron (which iz the lords court, and incident to every manor) givs some countenance." Vol. I. 398. It iz surprizing, theze writers should approach so neer the tru original and meening of the word, _baron_, and not reech it.

Most writers on the ancient state of government in Europe, hav remarked that the nobility held the office of judges. "Les mesmes comtes," says Mezeray, "et ducs, qui jugeoint les François, les menoient a la guerre." tom. I. p. 118. The counts and dukes were both judges and generals.

"Duo--comitum munera fure; unum videlicet justitiæ populis ministrandæ, alterum militiæ sibi subjectæ, quando in bellum eundum erat, educendæ atque regendæ." Muratori. Antiq. Ital. tom. I. p. 399. The counts had two offices or departments of business; the administration of justice, and command of the troops in war.

Stuart, in hiz English Constitution, remarks, "that the erls presided in the courts of law. Their jurisdiction extended over their feefs: In all causes, civil and criminal, they judged without appeel, except in cases of the utmost consequence." Part 3. Sect. 3.

I presume it iz needless to multiply authorities. The strongest argument in favor of my opinions iz drawn from the supreme judiciary powers of the house of lords in England. The lords are _peers_ of the relm; that iz, the ancient prescriptiv judges or barons, who claim the privilege by hereditary right or immemorial usuage. The _house of peers_, iz literally and in fact, _a house of judges_; an assembly of all the ancient judges in the kingdom. So Selden relates of the Saxons, whom he supposes to be descended from the same original az the Greeks, and long prior to the ages of Roman glory; "their country they divided into counties or circuits, all under the government of _twelv lords_, like the Athenian territory under the Archontes. Theze, with the other _princes_, had the _judicial power of distributiv justice_ committed to them, with a hundred commoners out of each division." Tit. Saxons. The same writer declares, chap. 58, that the nobles "were in their most ordinary work, _meetings of judges_, or _courts of judicature_; that the king and hiz barons made many laws and constitutions which hav obtained the name of statutes," (which he supposes may hav been equitable decisions of new causes, which afterwards had the force of laws) "that the judges of this supreme court are the _baronage_ of England; and that the house of lords still retain their supreme judiciary powers by ancient prescriptiv right."

In addition to this authority, I would remark that the modern supreme judiciary of Scotland iz copied almost exactly from the ancient Saxon trial by laghmen or thanes. The lords of session, or president and fourteen judges, are a court of law and fact, without a jury; and this iz exactly the _old_ trial by _peers_.

The parliaments in France are justly said by lord Coke, to be _ordinary courts of justice_; another striking evidence of what I hav advanced. The word _parliament_ came from France, where it denotes that assembly of barons, which constitutes the supreme _court of justice_ in each of the several provinces. This iz the original import of the word, and the parliaments in France still retain that signification. This name waz introduced into England, under the Norman princes, and superseded the Saxon name of the national assembly, _witena-gemote_. Indeed, during the depression of the peeple, under the first princes of the Norman line, when the military tenures were established with rigor, national assemblies were called but seldom, and when summoned, consisted principally of the bishops and peers (barons) of the relm. They however acquired the name of _parliament_, and retain it to this day; altho one branch of that body iz composed of commoners. The tru meening of _parliament_ iz a _meeting_ of _barons_ or _peers_, and their principal business waz to decide controversies: They had original jurisdiction over causes in which the nobles were parties, az men of rank would not seek redress before an inferior tribunal; and they had an appellate jurisdiction over other causes in the last resort. The parliament of England iz a legislativ body; but the _house of lords_ retains the primitiv privilege of finally deciding controversies. This branch of the legislature alone answers to the _parliaments_ in France, which approach neer the ancient institution.[108]

[108] The Norman princes might well call their councils
_parliaments_, _meetings of barons_; for they often summoned
none but the barons and clergy, and sometimes but a few of
the barons. Henry the third, once summoned but twenty five
barons of two hundred and fifty, then in the kingdom, and one
hundred and fifty of the clergy. Yet this meeting waz a
_parliament_. Selden, chap. 67.

So in England, the house of lords, and even the temporal lords alone, were called formerly a _parliament_. Blackstone, b. IV, c. 19, upon the authority of ancient books and records, repeetedly denominates the house of peers, when acting az a court of supreme judicature, a _parliament_, a _full parliament_; and the spiritual lords are not permitted to giv any vote upon _gilty_ or _not gilty_, for they are not ancient _peers_ (that iz, barons, prescriptiv judges) of the relm. It haz been douted whether the spiritual lords had a right to sit in the house on the trial of a peer; but by a determination of the lords in the erl of Danby's case, 1679, they were permitted "to stay and sit in court in capital cases, till the court proceeds to the vote of gilty or not gilty." Still they form no part of the court; the temporal lords constituting a _full parliament_, that iz, az I hav explained the tru primitiv meening of the word, _a meeting of barons or judges_.[109]

[109] Thoze who wish to see a more particular account of the
extensiv judicial powers of the barons in Europe, may consult
Robertson's Charles V. Vol. I. page 49, and note [Z] page
250, where the authorities are referred to.

I would just add on this head, that the institution of _twelv judges_ in England, iz copied from the ancient mode of trial in Germany. The old _Curia Regis_ consisted of the king, hiz grand justiciary, the officers of hiz palace and _his barons_. This court followed the kings person wherever he went. Out of this were formed the several courts now established at Westminster. But the title of _barons of the exchequer_ and _barons_ of the cinque ports, who are judges, furnishes an additional argument in favor of my opinions.

The foregoing explanation of the words, _baron_ and _peer_, leeds to a probable account of the _trial by peers_. It can be prooved that the jurors were the _judges_ of the county, hundred and manor courts, and the probability iz that the suitors in theze courts receeved the appellation of _peers_, from the circumstance of their being landholders. Several authorities seem at leest to favor this opinion.

"Concerning the institution of this court by the laws and ordinances of ancient kings, and especially of Alfred, it appeereth that the first kings of this relm had all the lands of England in demesne, and les grand manors et royalties, they reserved to themselves; and of the remnant, they, for the defence of the relm, enscoffed the barons of the relm, with such jurisdiction az the court baron now hath, and instituted the freeholders to be _judges of the court baron_."[110]

[110] Coke Litt. 74. That the freeholders were judges iz tru;
but that the barons and freeholders derived their authority
from kings, iz wholly a mistake.

"The manor courts are of two sorts. The first iz by the common law, and iz called the court baron, az some hav said, for that it iz the freeholders or freemens court, (for _barons_ in one sense signifie _freemen_) and of that court the _freeholders_, being suitors, be _judges_. The second iz the copyholders court, which iz called a court baron, because among the laws of king Edward the confessor, it iz said: "Barones vero qui suam habent curiam de suis hominibus," taking the name of the baron who waz lord of the manor, or for that properly in the eye of the law, it hath relation to the _freeholders who are judges of this court_. And in ancient charters and records, the _barons_ of London and the cinque ports do signify the _freemen_ of London and the cinque ports."[111] Theze passages are express to my purpose. Indeed it must hav been that the freeholders, now called _jurors_, were judges; for the lord of the manor waz cheef judge or president merely, and we heer nothing, at this erly period of Saxon jurisprudence, of a distinction between law and fact.

[111] 1. Coke Litt. 73.

Horne, in the Mirror of Justices, asserts[112] "that by the constitutions of Alfred, the free tenants in every county, hundred and manor, were to meet together and _judge their nabors_." "Every free tenant hath ordinary jurisdiction in theze courts." "The lords and tenants shall incur certain penalties by the _judgement of the suitors_." "Theze courts are called county courts, where the _judgement iz by the suitors_, if there be no writ, and iz by warrant of ordinary jurisdiction." That iz, when there waz no special court held by the justices in eyre.[113] So also in a book called the "Diversity of Courts," written in Henry the eighth's time, it iz said, "in the court baron the _suitors are the judges_, and _not_ the _steward_."

[112] Cap. I. Sect. III.

[113] He must speak of the state of things after the
conquest, otherwise _justices in eyre_ would not hav been
mentioned.

Cowel tels us, "the court baron iz more properly _curia baronum_, i. e. the court of _freeholders_, (for so barones does also signify) over whom the lord of the manor presides. In this court the _freeholders are judges_."[114]

[114] Law Dict. _Court baron._

Selden's authority confirms this fact. He says, "neether waz the bishops nor sheriffs work, in the folk-mote or county court, other than directory or declaratory; for the _freemen_ were judges of the fact, and the other did but _edocere jura populo_."[115] Here a distinction iz cleerly made beetween the _freemen_ and the _populus_; the freemen were the judges, and the bishop or sheriff edocuit jura, proclaimed the decision to the multitude. The freemen, or landholders, then were the _peers_ of the court; they were not the _equals_ of the multitude, for the _populus_, the laborers of all descriptions, were considered az belonging to an inferior class of men, and had no voice in the folk-mote.

[115] Bacon's Selden chap. 24.

To sum up the whole, we hav the authority of the correct and judicious Blackstone, who expressly asserts, book III. chapters IV and V, that in the court baron, the hundred court and county court, the freeholders or suitors are _the judges_, and the steward in the two former, and the sheriff in the latter, are _the registrars or ministerial officers_. Now it iz well known that before the conquest, theze included _all the courts_ that were in the kingdom, except the _witena-gemote_, in which there waz nothing like a jury, separate from the members of that council. So that the freeholders or jurors were not only _judges_, but they were the _sole judges_ in all the inferior courts in the kingdom; and of course there could be little or no distinction between _law_ and _fact_. Nay, more, the suitors were the _witnesses_ also; and the principal reezon for summoning _freeholders of the vicinage_ waz originally this; it waz supposed they were acquainted with the facts in dispute. Hence laws were made to compel the jurors to _tell the truth, if they knew the facts_, which waz always supposed, till the contrary appeered. In theze courts small causes were decided; and the county court had cognizance of ecclesiastical causes, az well az civil, and often determined disputes between the nobles, about real estates of immense value.

But important matters were generally brought before the _witena-gemote_, or assembly composed of the king, bishops, erls and wise men. This waz a national council, which united in itself all powers, legislativ, judicial, civil and ecclesiastical, in law and equity. Such a thing az a jury waz never known in this supreme court. William the conqueror first separated the civil from the ecclesiastical authority, and substituted the _aula regiæ_, a high court, consisting of hiz cheef officers and barons, in place of the Saxon _witena-gemote_. This court waz the supreme judicature in the nation; a jury waz no part of it, and it followed the king wherever he went, till it waz fixed by Magna Charta in Westminster Hall. Afterwards, in the reigns of Henry III and Edward I, several courts were carved out of the _Aula Regis_; az the common pleas, the court of kings bench, the exchequer and chancery courts; and it does not appeer that a jury, distinct from the judges, formed any part of the important common law courts, till after this period. The distinction therefore between judges and jury, law and fact, seems not to hav been known, till the dissolution of the _Aula Regis_, at the cloze of the thirteenth century.

Let us enquire what kind of men theze freeholders were, who were summoned az jurors or judges at theze courts.

Lord Coke iz express, and quotes Glanvil and Bracton for authorities, that "in ancient times the jurors were _twelv knights_," (that iz, probably, persons holding land amounting to a knights see.)[116]

[116] Some say this see waz eight hundred akers of land;
others, six hundred and eighty, or 20l. a year, which,
considering the difference in the value of money, waz equal
perhaps to 300l. or 400l. at the present time. Here seems to
be a confusion of ancient and modern ideas. The ancient
knights see waz a certain tract of land; in later times that
see was valued at 20l. in money.

Henry III issued writs to the several counties to enquire into the liberties of hiz subjects, by _twelv good and lawful knights_.[117] The Saxon laws are more explicit. "Habeantur placita in singulis wapentachiis, ut exeantur _duodecem thayni_ et præpositus cum eis, et jurent super sanetuarium, quod eis dabitur in manu, quod neminem innocentem velint accusare, vel noxium concelare."[118] Here the law of Ethelred iz explicit in ordaining a court of twelve _thayni_, thanes or barons, with their præpositus or president, who waz the officer of the hundred. Cowel remarks on this passage, "that this may seem to intend the number of _judges_, and not of the _jury_; but the jury themselves, in some cases, are judges, that iz, they are _judges_ of the _fact_, and the judge iz bound to giv sentence according to their verdict." This writer here supposes the _thayni_ to be really _jurors_ and _judges_; but _judges_ only of the _fact_. This iz _the fundamental error_ of most lawyers who hav written on the subject; they take it for granted, that the distinction of _law_ and _fact_ waz coeval with the trial by twelv freeholders. Yet a single circumstance, mentioned by Cowel in the same page, with the passage quoted, might hav undeceeved him, which iz, that "trial by jury waz anciently called _duodecem virale judicium_," the _judgement_ of twelv men. Their sentence or decision waz called a _judgement_; the distinction between the _verdict_ of a jury, and the _judgement_ of the court, waz unknown in the erly ages of the Saxons; nor can I find it mentioned, till after the conquest.

[117] Hale's Hist of Com. Law, 154.

[118] L L Ethel. c. 4.

This, and similar passages, hav however occasioned much dispute among other English lawyers and antiquaries. They hav adopted the opinion, that a jury must consist of twelv equal commoners, and cannot explain what iz ment by summoning _twelv thanes_. "Brady and Hicks," says Stuart, "contended that theze thanes were _not jurors_, but _judges_ or _lawyers_. Coke and Spelman were of a different opinion." The truth iz, they were both _jurors_ and _judges_; and a knowlege of the tru primitiv sense of one little monosyllable in our language, would hav unravelled the whole mystery to theze learned enquirers.

The most usual word for jurors, in the Saxon laws, iz _lahmen_ or _lagemen_; a word that haz puzzled the law writers, az it seems to meen something more than _equals_; and they hav no idea of any thing in a jury, but _equality_. Hicks supposed them to be judges, "duodeni jure consulti," men versed in law. Spelman rendered the word, _legales homines_, good and lawful men; very inadequate words indeed; but the error haz been copied times without number, and still prevails. _Lahman_ iz literally a _law man_, man of the law, a judge. Law waz in a rude state, at that period; but the thanes were both _lawyers_ and _judges_; _jure consulti_.[119] Professional distinctions could not be but little known, amidst an unlettered peeple, who had few positiv laws, and fewer records and precedents; and the _lahmen_, the _seniores thani_, or _meliores viri_, az they were called, were summoned at certain times to decide controversies, according to law, where a law waz provided; otherwise according to their discretion. The decisions of theze _lahmen_ were held in esteem; many of them were preserved and handed down by tradition, and I hav no dout, theze, rather than statutes, gave rise to the general and particular customs, which are called the common law of England.[120]

[119] We find by ancient records, that the clergy, before the
conquest, were sometimes summoned az jurors or judges in the
temporal courts.[d] But the _thanes_ were the most usual
judges in the courts baron. The proper Saxon name of this
court waz _halimate_ or _halmote, hallmeeting_; "Omnis causa
terminetur vel hundredo, vel comitatu, vel _halimote_, socam
habentiam, vel dominorum curia."[e] And in W. Thorn, Anno
1176, the judges of this court are expressly said to be
thanes, "_thanenses, qui_ in _Halimoto_ suo, in Thaneto,
omnia sua judicia exerceri," (debent.) Selden, chap. 47,
mentions a law of Henry I, which recites a custom of that
time, by which "the _bishops_ and _erls_, with _other the
cheef men_ of the county, were present in the county court az
assistants in directory of judgement." Nothing can be more
explicit. And altho Selden, in a passage hereafter quoted,
mentions a compromise between Gunthrune, the Dane, and the
Saxon king, that men of a rank inferior to lords should be
tried by their _equals_, yet this inferior rank could extend
only to _freemen_; for others were never admitted upon
juries.

[d] See Selden, tit Sax. bishops.

[e] L. L. Hen. I. cap. 10.

[120] "And the sheriffs and bailiffs caused the free tenants
of their bailiwicks to meet at the counties and hundreds, at
which justice waz so done, that every one so judged hiz nabor
by such judgement az a man could not elsewhere receev in the
like cases, until such times az the customs of the relm were
put in writing, and certainly established."---- Mirror. chap
1. sect. 3.

Coke defines _lahman_ to be one, "habens socam et sacam super homines suos;" that iz, liberty of holding a court over hiz tenants: Which explanation he quotes from Bracton. "Soke,(or soc) significat libertatem curiæ tenentium quam _socam_ appellamus."[121]

[121] Fleta. lib. I. c. 47.

This word iz found in domesday and in the laws of Edward the confessor. Cowel quotes a passage from an ancient book, where Ulvet, the Son of Forno, iz called _lagaman_ of the city of York, where, he says, it doutless signified some cheef officer, az judge or recorder. Thoze who had _socam_ et _sacam_, or jurisdiction over the persons and estates of their tenants, were the _thanes_ or barons; and this iz agreed by Lambard, Somner, Coke, Cowel, and most writers on law.[122] Lambard, whoze authority iz very respectable, speeks of a jury thus: "In singulis Centuriis comitia sunto, atque liberæ conditionis viri duodeni ætate superiores unà cum præposito, sacra tenentes juranto, &c." Of a jury _per medietatem linguæ_, he says, "Viri duodeni _jure consulti_, Angliæ sex, Walliæ totidem, Anglis et Wallis jus dicunto." Fol. 91. 3. Here Lambard not only describes jurors az men of _free condition_ and respectable for age, but az _jure consulti_, the _judges_ of the court; and _jus dicunto_; they were men who administered law and justice. This, it appeers from all ancient testimonies, waz the uniform practice among the Saxons. The jurors were twelv _thanes_ or men of free condition; _lahmen_, _jure consulti_, or judges, and constituted the _court_; with the præpositus, or proper officer of the district, az their president, who sat az the deputy of the erl, in the county court; the deputy of the lord of the manor, in the court baron; or az the cheef magistrate of the hundred. And one source of error in understanding this ancient institution, haz been the wrong translation of _lahman_, by Spelman and others, who rendered the word, _legalis homo_; a good and lawful man. The meening iz not so indefinit az a _lawful man_, which could not be redily understood or explained. Rude nations do not deal in such vague ideas. The meening iz, _man of law_, whoze business it waz to know the law and administer justice.[123]

[122] _Laghman_, to this day, iz the name of a judge or
magistrate, both in Sweden and Iceland. In theze countries it
retains its primitiv and tru English meening.--Mallets North.
Antiq. Vol. I.