Chapter M (12)

[123] Selden waz forced to confess the _jure consulti_ and
_ætate superiores_, so often mentioned in the Saxon laws, az
composing the homage or jury of twelv, to hav been _cheef men
both for experience and knowlege_. To such as _stumble at
this conceet_, as he expresses it, he remarks that the work
of jurors requires them to be cheef men, az they _judge of
matter of fact_; (a reezon drawn from the modern notions of
jurymen's province.) And he adds, the jurors, who were
co-assessors, with the bishop or sheriff in the court, were
seeted in the most eminent place, and might hav held it to
this day, az they do in Sweden, had the _cheef men_ still
holden the service. But the great became negligent of such
public duties, and left the business to thoze of a meener
condition, who would not or durst not take the bench; and
therefore took their seets on the floor--(took separate
seets.) He says further, that the Danes, on their settlement
in England, would not associate with men of this condition;
so that a compromise took place between Alfred, the Saxon
king, and Gunthrune, the Dane, by which it waz decreed, that
a lord or baron should be tried by twelv lords, and one of
inferior rank, by _eleven of his equals_ and _one lord_. This
waz in the case of homicide only; tho afterwards the law
might extend to other cases and civil suits. By hiz own
account of the matter, this writer supposes the trial by
_twelv_ waz originally a trial by the _cheef men_, (_thanes
lahmen_) and the idea of equality waz never suggested in the
practice till the ninth or tenth century. But juries existed
az courts for centuries before; and the word _peers_ iz
acknowleged to hav had its origin on the continent, where it
signified the lords or members of the high court instituted
by Charlemagne. In modern use, trial by _peers_ iz trial by
equals _generally_; for men are mostly become freemen and
landholders; but this waz not the primitiv practice; nor was
_equality_ the basis of the institution. Even if we suppose
the word peer to hav signified _equal_, as uzed originally on
the continent, it extended no privilege on that account to
the body of the nations where it waz used; for it ment only
the _kings equals_, hiz _comites_, hiz dukes, erls and
barons, among whom he waz merely _primus inter pares_. In
England Bracton, who wrote under Henry III, declares the king
waz considered in this light; and that the "_erls and barons
are his associates_, who ought to bridle him, when the law
does not."[f] The courts then which Charlemagne instituted in
France and Germany, consisted merely of the kings _peers_ or
_equals_; and in theze countries, the courts remain mostly on
the ancient footing; so that none but the nobility can be
tried by their _equals_. In this sense of the word therefore
juries were not used in England, till the compromise between
Alfred and Gunthrune, about the year 900. Before that period,
the jurors were not called or considered az _equals_; but
they were _thanes_, _jure consulti_, _lahmen_ and
_clergymen_. A distinction afterwards took place, and lords
were tried by _their_ equals, and commoners by _theirs_.

[f] L. I. c. 16.

But if we suppose the word to meen _legalis homo_, and that the only requisit in a juror, iz freedom; or that he should be _liber homo_; this would exclude a vast proportion of the English nation from the privilege. I know that Magna Charta repeetedly mentions theze freemen, _liberos homines_, and secures to them certain rights, among which iz, trial _per pares suos_, which I suppose to hav been originally, _by their judges_; altho at this period, the idea of equality in the condition of judges might hav prevailed: And indeed the _freemen_ were mostly tried by men of equal rank. I am sensible also that the modern construction of Magna Charta extends this privilege to every man in the relm of England; _omnis liber homo_ iz said to comprehend every English subject. I rejoice that by the struggles of a brave peeple, this construction of that compact haz actually taken effect in a considerable degree. But I cannot think all the English nation were comprehended in the words of the instrument; or that the privilege of _trial by peers_ waz extended, or ment to be extended, to all the peeple. Magna Charta waz merely a convention between the king and hiz barons, assembled at Runing-mead; and the laboring part of the peeple, debased by servitude under an oppressiv aristocracy, seem hardly to hav been in the contemplation of the parties. The villeins, rustics, or tenants at will, who probably composed a majority of the peeple, had one privilege indeed secured to them: It waz stipulated that they should not be deprived, by fine, of their carts, plows, and other instruments of husbandry; that iz, they should not be deprived of the meens of laboring for their masters. Further than this, a large proportion of the English were not noticed in Magna Charta, but were considered az a part of their lords property, and transferable, like moveables, at their plezure.

The _freemen_, or thoze classes of peeple which came within the description of _liberi homines_ in that famous convention, were the nobility and clergy tenants _in capite_, or such at most az had a life estate in lands, and could serve on juries. The lazzi, villeins, or modern copyholders, were not at that time capable of serving; they were below the rank of freemen; they had not the right of trial by peers, even in the common acceptation of the word; nor were they admitted to the privilege till the reign of Richard III. Multitudes of them are not _peers_ of _the commons_, even on the principle of equal suffrage, for they hav not the property requisit to qualify them for the privilege of voting at elections. Blackstone's assertion therefore, that every subject of the kingdom haz a right by Magna Charta, to trial by hiz equals, cannot be tru, for vast numbers of the nations are not, and never were, entitled to be jurors. But in the sense I understand and hav explained the word, every man haz a right to _trial by hiz peers_; that iz, by freeholders of the vicinity, who are _his judges_. The propriety of calling them _hiz judges, pares suos_, iz discovered in the gradation of courts established in England. The _peers of the relm_, or barons, were originally the suitors or judges in the kings court, where alone the nobility were tried; hence the barons were always tried by _their_ judges, _pares suos_. The clergy, the thanes of the lower class, or other freeholders who had life estates in lands, were the suitors in the courts of the counties, the hundreds and manors. Theze were the _judges_ of theze courts, and called _peers_. The freemen might be said to be tried by their _equals_; but the villeins were not; yet both were tried by _their_ peers; that iz, by the peers of theze inferior courts, who were exclusivly _the judges_.[124]

[124] "The division of the county waz done by _freemen_, who
are the _sole judges thereof_."[g] Selden, Matthew, Paris,
and others, testify that the _folk-mote_, peeple's meeting or
county court, waz a county parliament, invested with
legislativ or discretionary powers in county matters. In
theze small districts, they appeer to hav been competent to
decide all controversies, and make all necessary local
regulations. The legislativ, judicial and executiv powers,
both civil and ecclesiastical, were originally blended in the
same council; the witena-gemote had the powers of a
legislature, of a court of law, and of a court of equity over
the whole kingdom, in all matters of great and general
concern. But this court waz composed of lords, bishops, and
_majores natu_ or _sapientes_, men respected for their age
and lerning, who were of the rank of _freemen_. All the
freemen were bound also to do suit in the lords court, and to
attend the _folk-mote_ on the sheriffs summons; but _twelv_
were usually selected to sit az judges in common cases.

[g] Selden on the authority of Polydore.

The cast powers of the county court, when the freeholders
were all summoned and actually sat in judgement, may be
understood by two facts. One, the conquerors half-brother,
and Lanfrank, archbishop of Canterbury, had a dispute about
certain lands and tenements in Kent. The archbishop
petitioned the king, who issued hiz writ, and summoned the
freemen of the county, to take cognizance of the suit. After
three days trial, the freemen gave judgement for the
archbishop, and the decision waz final.

In like manner, two peers of the relm, a Norman and an
Italian, submitted a title in fifteen manors, two townships,
and many liberties, to the freeholders of the county, whose
judgement waz allowed by the king.[h]

[h] Selden. Chap. 48.

From what haz been advanced on this subject, if we may rely on substantial authorities, and at leest probable etymologies, the following conclusions may be safely deduced. That in ancient Germany, the _principes pagorum et regionum_, with a certain number of assistants, originally a hundred, sometimes twenty four, but commonly twelv, elected by the peeple, (not _pro re nata_, but for a stated period) formed a council (concilium) for the government of a district: That in their military expeditions, the _duces_, or generals, had their _life guards_, or comites, who attached themselves to the person of their cheef, and fought by hiz side:[125] That theze retainers, in some of the Teutonic dialects on the continent, were called _barons_, az they were called _thanes_ by the Saxons in England: That after the irruption of the northern nations into the south of Europe, the conquered lands were divided among the great officers and their retainers, az fees or stipendiary feuds, on the honorable tenure of military service: That the princes, erls and barons, hav been, from time immemorial, the assistant judges in the kings courts, and eech of them, a cheef judge, with power of holding courts, on hiz own demesnes: That parliaments on the continent were _assemblies of barons_, and originally _courts of justice_, az they are still in France: That the word _peers_ waz first used on the continent, to denote the members of this supreme judicial court, and in its primitiv sense, az derived from _bar_ or _par_, it signified freemen or landholders; and thence came to denote _judges_, who were originally the proprietors of lands or manors: That this latter sense iz its tru meening, whether applied to the house of lords or to a common jury, who were anciently the _judges_ of the inferior courts, and are still, in many cases, judges of law az well az fact, notwithstanding the modern distinction, which haz taken place in consequence of an extensiv and vastly complicated system of jurisprudence: That the house of lords in England retains the primitiv sense of the word _peers_, az well az the original right of _judging_ in the last resort, and this house alone iz a _parliament_, according to the ancient meening of the word on the continent: That the _freemen_ mentioned in Magna Charta and all the old law writers, were thoze who held their lands by honorable service, for term of life, or had estates of inheritance; and that the lazzi, villiens or bondmen, who constituted the major part of the nation, were not comprehended under the words _liberi homines_, were not entitled to be jurors themselves, and consequently could not be tried by their _equals_: That the twelv jurors among the Saxons were the _cheef men_ of the county and judges: That the idea of _equality_ in the jurors or judges waz introduced by the pride of the nobility, and the humble condition of their tenants, under the invidious distinctions of ranks created by the feudal system: That this idea however haz been the meens of preserving the rights of both in England; while the nations on the continent, having been less successful in their struggles, and not having wrested the _right of judging_ from the barons, the original _peers_ or proprietors of that right, hav not acquired a privilege, inestimable in a country where distinctions of rank prevail, and do not enjoy the blessings of equal liberty: That this privilege haz been considerably extended in England, by the abolition of military tenures, and the diffusion of property among the commons: But that America haz given the privilege its utmost extension, by making laws of inheritance that enable _every man_ to be a freeholder; thus reducing the English theory to practice, and entitling every man literally to the right of _trial by hiz equals_.

[125] "Magnaque et comitum æmulatio, quibus primus apud
principem suum locus; et principum, cui plurimi et acerrimi
comites."[i] The princes kept az many of these retainers in
their service in time of peace, az they could support. "Hæc
dignitas, hæ vires, magno semper elestorum juvenum globo
circumdari, in pace, decus, in bello, præsidium. Ibid."

[i] Tacitus de mor Germ. c. 13.

How far theze conclusions are supported by the foregoing authorities and arguments, every reeder will judge for himself. I hav ventured my opinions with my usual frankness, in opposition to thoze of the sages of the law, which hav been receeved for centuries. The vast weight of authority, and long established prepossessions of men in favor of a different theory, make me diffident of my own opinions on this subject; but there are many passages in ancient law writings, and many customs and laws still existing in the English constitution and government, which I cannot explain and reconcile on any other hypothesis.

The excellence of trial by peers, in ancient times, appeers to me to hav consisted in this; that twelv indifferent men of the naborhood, with the power of judges, were the guardians of life and property against the rapacity of the lord of the manor or hiz deputy. It iz a fact well known that _sheriffs_, the deputies of the erls, were in several counties hereditary officers; but when they were not, they had almost-unlimitted powers in the shire, which they often abused to oppress the peeple. Under the feudal system they appeer to hav been almost absolute tyrants; and the undue exercise of their powers, probably gave rise to thoze articles of Magna Charta, which declare, that "no freeman shall be taken, imprisoned, or diseized of hiz freehold, liberties, or free customs, but by the lawful judgement of hiz peers, or by legal process; that sheriffs should not hold county courts above once a month; that sheriffs, castellans, coroners, and kings bailiffs, should be restrained from holding pleas of the crown; that sheriffs, who had the management of the crown revenues, within their several districts, should not raize the farms of counties, hundreds and tythes, according to their plezure." Theze provisions were evidently designed to remedy actual evils; the violence and usurpations of the executiv officers, who acted under the king, or the great lords, with powers almost uncontrolled.[126] Against such petty tyrants, the revival or confirmation of the right of trial by twelv freeholders of the vicinage, must hav been a capital security: But freeholders alone could be impannelled on a jury; _freeholders_ alone could be diseized of _freeholds_; consequently the privilege of being tried by _equals_, could extend to freeholders only. With respect to all others, the excellence of the institution could not consist in the _equality of condition_ in the jurors; but in having twelv substantial freemen, impartial, independent men, unaccustomed to oppression, to check and control the ministers of justice.

[126] In the time of Henry II, there were in England eleven
hundred and fifteen castles, and az many tyrants az lords of
castles. William of Newbury says, in the reign of Stephen,
"Erant in Anglia quodammodo tot reges, vel potius tyranni,
quot domini castellorum." It waz the tyranny of theze lords
or their deputies, which rendered the intervention of twelv
judges of the naborhood, highly necessary to preserve the
peeple from the impositions of their rapacious masters. Hence
the privilege of this mode of trial derived an inestimable
valu.

Since the separation of court and jury, law and fact, juries, in civil cases, hav become of less consequence. Judges are appointed by the representativs of the peeple, ether in legislature or some other form, and are removeable for misbehavior. They are usually az good judges of fact as a jury, and better judges of law. One state[127] haz a statute empowering the parties to submit fact az well az law to the court. This places the court on its Saxon institution, except az to the number of judges. It iz also a common practice for the parties to agree on the facts, and submit the law to the court. The practice supersedes a jury. On commercial questions an ordinary jury are altogether unfit to decide; they are incompetent judges, because commerce iz regulated by peculiar laws, best known by merchants. Hence the institution of chambers of commerce, and the practice of referring causes to arbitrators of the mercantile profession.

[127] Connecticut.

But the principal valu and excellence of juries are preserved in criminal causes. Judges, by long custom, become hardened in the business of condemning, and may sometimes pronounce sentence, which, even when legal, may be unnecessary. Jurors, less accustomed to the cruel task, retain thoze feelings which sometimes pleed against evidence, in favor of humanity, and soften the rigor of penal laws.

I shall cloze theze remarks with two quotations from very respectable authors.

What Camden haz collected concerning the word _baron_, serves to illustrate and confirm my opinions on this subject; and the reeder will be pleezed with the following passage from his Britannia, Vol. I, page 238.

"Among the greater nobility, the barons hav next place. And here, tho I am not ignorant what the lerned write concerning the signification of this word in Cicero; yet I am willing to cloze with the opinion of Isidore, and of an ancient grammarian, who will hav _barons_ to be mercenary soldiers. This seems to be pretty plain from that known place of Hirtius in the Alexandrian war; "they run to the assistance of Cassius; for he always used to hav _barons_, and a good number of soldiers for sudden occasions, with their weapons reddy, about him, and separate from the rest." Nor iz the old Latin and Greek Glossary against us, when it translates _baro_ by ανηρ a man; az always in the laws of the Longobards, _baro_ iz used for a man.

The etymologies of this name which some hav fancied, do not by any meens please me. The French heralds will hav barons to be so called from _par-hommes_ in French; that iz, of equal dignity; the English lawyers say it iz from _robora belli_, the sinews of war; some Germans think it a contraction of banner-heirs, i. e. standard bearers; and Isidore derives it from bareis, i. e. grave or weighty. Alciatus thinks the name comes from the _berones_, an ancient peeple of Spain, which he says were formerly stipendiaries; but that other, from the German _bar_, i. e. _a free man_, pleezes me better.

The precise time when this name came into our island, I hav not yet discovered: The Britons disown it; and there iz not the leest mention made of it in the Saxon laws, nor iz it reckoned in Alfrick's Glossary among the titles of honor; for there, _dominus_ iz translated _laford_, which we hav contracted into _lord_. And among the Danes, the free lords, such az our barons are at this day, were called thanes, and (and az Andreas Velleius tells us) are termed so still. In Burgundy, the use of this name iz very ancient;[128] for Gregory of Tours says thus, "the barons of Burgundy, az well bishops az others of the laity, &c." The first mention of a baron in England, that I hav met with, iz in a fragment of the laws of Canutus, king of England and Denmark, and even there, according to different copies, it iz read vironus, baronus, and thani. But that the barons are there ment, iz plain from the laws of William the conqueror; in which that word in the laws of Canutus iz translated by _baro_. Take the whole passage. "Let the exercitals[129] be so moderated, az to be tolerable. An erl shall provide such things az are fitting, eight horses, four saddled and four unsaddled; four steel caps, and four coats of mail; eight javelins,[130] and az many shields; four swords, and two hundred mancae[131] of gold. But a kings _viron_ or _baron_, who iz next to him, shall hav four horses, two saddled and two unsaddled; two swords, four javelins, and az many shields, one steel cap, and fifty mancae of gold."

[128] About the year 580.

[129] Heriots or reliefs.

[130] Lancæe.

[131] Possibly for _Mancusæ_, i. e. thirty pence.

In the beginning of the Norman times, the valvasors and thanes were reckoned in order and dignity, next to the erls and barons, and the greater valvasors (if we may beleev thoze who hav written concerning feudal tenures) were the same that barons are now. So that baro may seem to hav come from that name; which time haz, by little and little, made somewhat smoother. But even then it was waz not a title of any great honor; for in thoze times there were erls who had their barons under them: And I remember, I hav red in the ancient constitutions of France, that there were ten barons under one erl, and az many cheeftans[132] under a baron. It iz likewise certain, that there are charters since the Norman conquest, wherein the erls write thus: "To all my barons, az well French az English, greeting, &c." Nay, even citizens of the better rank were called _barons_; so in domesday book the citizens of Warwick are stiled _barons_; and the citizens of London, with the inhabitants of the cinque ports, had the same title given them. But a few years after, az senators of Rome were chosen according to their estates, so they were accounted _barons_ with us, who held their lands by an entire barony, or thirteen knights fees, and one third of a knights fee, every fee (az we hav had it in ancient book) being computed at twenty pounds, which in all make four hundred marks; for that waz the value of one entire barony; and they who had land and revenues to this value, were wont to be summoned to parliament. It seems to _hav been a dignity, with jurisdiction, which our court-barons in some mezure show.[133] And the great number of barons iz an argument that they were such lords who could hold pleez within their own jurisdiction_, (like thoze whom the Germans call free-heirs) especially if they had their castles; for then they answered the definition of Baldus, the famous lawyer, who calls him a baron, that had a mere and mixt government in some castle, by the grant of the prince. And (az some would hav it) all who held baronies, seem to hav claimed that honor; so that some of our lawyers think, that baron and barony, erl and erldom, duke and dukedom, king and kingdom, were in the nature of conjugates. It iz certain, that in that age, king Henry III, reckoned one hundred and fifty baronies in England. From hence it iz, that in the charters and histories of that age, almost all noblemen are stiled barons; a name, which in thoze times waz exceeding honorable; the baronage of England including in a manner all the prime orders of the kingdom, dukes, marquisses, erls and barons.

[132] Capatanei.

[133] This opinion of the lerned Camden, adds no small weight
to my conjectures reflecting the origin of trial _per pares_.

But that name haz been much more honorable since king Henry III, out of such a multitude, which waz seditious and turbulent, summoned to parliament by writ, some of the best[134] only; "for he," (the words are taken out of an author of considerable antiquity) "after thoze great disturbances and heart-burnings between himself, Simon de Montefort, and other barons, were laid; appointed and ordained, that all such erls and barons of the kingdom of England, to whom the king should vouchsafe to direct hiz writs of summons, should come to hiz parliament, and no others, unless their lord the king should pleeze to direct other writs to them also." And what he began a little before hiz deth, waz strictly observed by Edward the I, and hiz successors. From that time they were only looked on as barons of the kingdom, whom the king by such writs of summons had called to parliament; until Richard the II, in the eleventh year of hiz reign, created John de Beauchamp of Holt, baron of Herderminster, by the delivery of a diploma, bearing date the tenth of October. From which time, the kings hav often conferred that honor by diploma, (or rather honorary letters) and the putting on of an honorary long robe. And that way of creating barons by diploma, and the other of writs of summons, are in use at this day; tho they are mentioned therein not by the name of _baron_, but of _chevalier_. They who are thus created, are called barons of parliament, barons of the kingdom, and barons honorary, to distinguish them from thoze who are commonly called barons according to the ancient constitution; az thoze of Burford and Walton, and such az were barons to the counts Palatine of Chester, and of Penbroch, who were feudal, and barons by tenure only."

[134] Optimos.

This account of Camden's, iz alone sufficient to convince me, that my opinions are right respecting the origin and signification of the word _baron_. But this author cleerly mistakes the meening in the passage quoted from Hirtius. "Cassius used to hav _barons_, and a good number of _soldiers_, for sudden occasions." Insted of mercenary soldiers, _barons_ here meens the _comites_, retainers, who were chosen men, and who served their cheef voluntarily. Theze attached themselves to the person of the cheef, az a military guard; at the same time, they served to gratify the pride of the hero: Hæc dignitas, hæ vires, says Tacitus.

I hav before remarked that it iz probable _bar_ and _vir_ are the same word. Camden tells us, the Greek Glossary translates _baro_ by ανηρ, and in the laws of William, the Norman, the _vironus_, _baronus_ and _thanus_, found in the laws of Canute, are translated by _baron_ or _viron_. _B_ and _v_ are convertible letters, and theze facts amount to a convincing proof that _bar_ and _vir_ are the same word, or from the same root. The progress of the word iz this. First it denoted a man or husband, _vir_; afterwards a freeman or proprietor of land, _bar_, _baron_, _viron_; in proportion az the valu of lands encreesed in Europe, the proprietors acquired welth and influence; they claimed exclusiv judicial powers on their manors, and thus the words _baron_ and _peer_ came to signify _judge_. Under the feudal system, theze barons became princes on their territories, subordinate only to the king or lord paramount. Power attends property, and theze barons finally assumed the right of controlling kings, and trampling on their tenants. Where the barons and princes combined, they established despotic authority over the peeple; when they quarrelled, one party or the other had recourse to the commons for assistance, and waz compelled to grant them considerable privileges.

The foregoing explanation of _baron_ iz confirmed by another fact now existing. In law, a _husband_ iz called _baron_ to this day, _baron_ and _femme_, husband and wife. Agreeable to this idea, the terms used in ancient infeudations by the tenant or vassal, were, _devenio vester homo_; I become your _man_; that iz, your _baron_, in the feudal sense of the word. And a jury, in conformity with the same idea, were anciently called _homagium_, the _homage_, or manhood; that iz, a court of _barons_, landholders or free tenants.

I would only remark further, that Camden iz probably mistaken in saying the Britons disown the word _baron_. In Welsh, _barn_ signifies a judge, and there can be little dout that the word iz from the same original; being written without the vowel _o_, agreeable to the Hebrew manner.

Different nations are more or less inclined to uze the vocal sounds and aspirates, according to the different genius of their languages. So in Irish the word waz pronounced with an aspirate, _barhon_, or _brehon_; for there iz little room to dout this old Irish word iz from the same root. At the time of the conquest of Ireland by Henry II, the Irish were governed by the _brehon law_, so stiled from _brehon_, the Irish name of judges.[135] We are also told that the ancient Irish had a custom of deciding causes by _twelv_ men[136]; and authors testify that the same practice existed in ancient Britain.[137] Their decision iz called by the erly writers, _duodecem virale judicium_. In short the universality of this word and the trial by twelv, iz a strong proof, that all the nations of Europe sprang from a common stock.[138]

[135] Blackstone Com. Vol. I. 100.

[136] Lelands Introd. to Hist. of Ireland.

[137] L. L. Hoeli.

[138] See my Dissertations on the English language, 313.

Sir William Temple derives _barons_ from the Russian _boiarons_, and supposes the word to be of Gothic original. Hiz only inaccuracy iz, that he takes a modern derivativ for the primitiv root; whereas the Russian _boiarons_ itself iz derived from _bar_, az wel az _baron_. The authority of this judicious and lerned writer wil however confirm what I hav advanced in the foregoing pages; I shal therefore cloze my remarks with a passage from hiz works, vol. III. 363.

"I know very well how much critic haz been employed by the most lerned, az Erasmus, Selden, Spelman, az well az many others, about the two words _baro_ and _feudum_; and how much pains hav been taken to deduce them from the Latin and Greek, and even the Hebrew and Egyptian tungs; but I find no reezon, after all they hav said, to make any doubt of their having been both the original of the Gothic or northern language; or of barons having been a term of dignity, of command, or of honor, among them, and feudum of a soldier's share of land. I find the first used abuv eight hundred years ago, in the verses mentioned of king Lodbrog, when one of hiz exploits waz to hav conquered eight _barons_. And tho fees or feuda were in use under later Roman emperors, yet they were derived from the Gothic customs, after so great numbers of thoze nations were introduced into the Roman armies. Az to the word _baro_, it iz not, that I find, at all agreed among the lerned, from whence to derive it; but what that term imports, it iz easy to collect from their several accounts, and confirm by what stil remains in all the constitutions of the Gothic government. For tho by _barons_ are now ment in England such az are created by patent, and thereby called to the house of lords; and _baron_ in Spanish signifies only a man of worth or note, and the quality denoted by that title be different in the several countries of Christendom; yet there iz no question, but they were originally such persons az, upon the conquest of any country, were, by the conquering prince, invested in the possession of certain tracts or proportions of free lands, or at leest az they held by no other tenure but that of military service, or attendance upon their prince in war with a certain number of armed men. Theze in Germany, France, Scotland, seem to hav had, and some stil to retain, a sovereign power in their territories, by the exercise of what iz called high and low justice, or the power of judging criminal az well az civil causes, and inflicting capital punishments. But I hav not found any thing of this kind recorded in England, tho the great barons had not only great number of knights, but even petty barons holding under them.

I think the whole relm of England waz, by William the conqueror, divided into baronies,[139] however the distinctions may hav been long since worn out; but in Ireland they still remain, and every county there iz divided into so many baronies, which seem to hav been the shares of the first barons. And such as theze great proprietors of land, composed, in all the north west regions (of Europe) one part of the states (estates general) of the country or kingdom."

[139] This iz not accurate. The thaneships or lordships of
the Saxons, at the conquest, took the title of _baronies_;
but the divisions probably existed before.

Sir William Temple proceeds then to giv hiz conjectures respecting the origin of the word _baron_. He remarks that Guagini, in hiz description of Sarmatia, printed in 1581, calls all thoze persons who were cheef possessors of lands and dignities, next to the prince, duke or palatine, in the vast empire of Muscovy, by the common appellation of _boiarons_, now contracted into _boiars_. From this he supposes _baron_ to be derived. It iz however much more probable that _baron_ and _boiaron_ had a common root in some period of remote antiquity; which afterwards spread into all parts of Europe.

With respect to trial by jury, Sir William remarks, Vol. III. 130, that this waz undoutedly of Saxon institution, and continued thro all the revolutions in England. He says there are some traces of it in the first institutions of Odin, the first great leeder of the Asiatic Goths or Getæ into Europe. He mentions the council of twelv, established by Odin, and thinks it probable theze twelv men were at first both _judges_ and _jurors_; that iz, they were a court of arbitrators or referees, az we should now style them, empowered to decide all causes according to equitable principles and the circumstances of each case; and their determinations afterwards grew into precedent for their successors. In process of time and multiplicity of business, the matter of fact continued to be tried by twelv men of the naborhood; but the adjudgement of punishment and the sentence waz committed to one or two persons of lerning or knowlege in the ancient customs, records and traditions. Thus, he observes, in the Saxon reigns, causes were adjudged by the aldermen and bishop of the several shires, with the assistance of twelv men of the same county, who are said to hav been judges or assistants. He allows, the terms _jury_ and _verdict_ were introduced by the Normans; but asserts very justly that trials by twelv men, with that circumstance of their unanimous agreement, were used not only among the Saxons and Normans, but are known to hav been az ancient in Sweden, az any records or traditions in the kingdom; and the practice remained in some provinces of that country, til the late revolution.

POSTSCRIPT.

On further examination of this subject, I am led to subjoin the following remarks, which are supported by the indisputable authority of Glanville and Bracton.

I hav before suggested that the Saxons, prior to the conquest, conducted most of their important affairs in the county or sheriffs court, where all the free tenants were bound to attend. Theze free tenants consisted of the lesser barons, the knights and fokemen, or foccage tenants who had freehold estates. Theze freeholders, were, by the nature of their estates, the _pares curtis_; they were the proper and sole _judges_ of all causes triable at the county court, which included almost all civil actions, and they were denominated in Saxon, _lahmen_, lawmen. The county court, thus composed of all the freeholders in the shire, waz a tribunal of great consequence, and inferior only to the witena-gemote, or national assembly. The Latin riters called theze freemen _pares curtis_ and _sectatores_, _peers of court_ and _suitors_. _Curtis_ iz a Saxon word latinized,[140] like _warrantizo murdrum_, and hundreds of other law terms; and there iz little dout that _pares_ iz a word of similar origin.

[140] _Curtis_, _court_ and the Spanish _Cortez_ are all the
same word.

But what places the point I would establish, beyond controversy, iz, the _pares curtis_ were in fact of different ranks. The knights or lesser barons, az well az the common foccage tenants, were included in the term _pares curtis_; for they were bound to do suit and service in the court of the lord paramount. Another fact, iz of equal weight in the argument: Theze _pares_, in the county court, tried all real actions between the nobility. In the cause of Odo, Bishop of Bayeux, and archbishop Lanfranc, in the reign of William the conqueror, the king directed _totum Comitatum considere_. Many similar instances might be cited, were it necessary. Theze noblemen were tried by the _pares curtis_, the peers of the county court; but who ever said they were tried by their _equals_?

The Norman princes attempted to discountenance theze shire motes of the Saxons, and substitute the trial of facts by twelv _juratores_, men sworn to speek the truth. In the reign of Henry II, the trial by jurors had become common, if not general. Questions of _seisin_ were tried by twelv common freeholders; but questions of _right_ were tried by twelv knights; the sheriff summoning _four_ knights who elected the _twelv_.

I would here remark that the principal original reezon for summoning freeholders _of the vicinage_, waz that of their supposed personal knowlege of the fact in dispute. The _jurors_ were properly the _witnesses_. This iz evident from circumstances and from the positiv testimony of the erly law-riters. The first mention of a proper jury, in any public act, iz in the constitutions of Clarendon, 1164, where the sheriff iz directed, _quòd faciat jurare duodecim legales homines de vicineto, seu de villa, quòd inde veritatem secundum conscientiam suam manifestabunt_. It iz said in old writers that the jury _must speek the truth, if they know it_. If the twelv men first summoned knew the truth, they were compelled to declare it, under the penalty of perjury. If some knew the facts and others did not, the latter were dismissed and others summoned, till twelv were found who knew the facts, ether by what they had seen and heerd themselves, or from such testimony of their fathers and others, az gained full credit.

Without attending to juries in this light, the laws respecting them appeer beyond measure absurd and tyrannical. Their being _sworn to speek the truth_, would be absurd on any other ground; for had they judged of facts on _testimony_, they would hav been sworn to declare _their opinion_, and not the _truth_. Their _verdict, vere dictum_, derives its name and propriety from the same circumstance; and the present practice of swearing them to "a tru verdict giv," when they judge of facts only by the perhaps contradictory testimony of several witnesses, iz, strictly speeking, absurd.

The keeping juries, without meet, drink or fire, can be accounted for only on the same idea; it waz a method to compel an agreement among men, who were _acquainted with facts_, some of whom might at times be obstinate, and not willing to disclose them. But how ridiculous would it be to punish men for not agreeing _in opinion_, about what others testified!

All this iz still more evident from the manner in which many questions respecting real estates were ascertained and determined. It waz customary for the jurors, after they were chosen, to go upon the land to find the tru state of the fact in question, and then deliver their verdict. Hence the propriety of the expression in closing issues; _and this he prays may be enquired of by the country_.

I would observe further, that the reezon, why appeels from the verdict of a jury were not allowed, iz simply this, that the jurors were supposed to hav decided from their _own knowlege_. It waz certainly a wise provision that the solemn declaration of men under oath, living in the naborhood, and eye or eer witnesses of the recent transactions between the parties, should not be overthrown by other testimony; for all other evidence must hav necessarily been of an inferior nature. But the reezon haz ceesed, and there iz now nothing more sacred in the verdict of a jury, given on the testimony of others, than there iz in the opinions of arbitrators, referees or auditors under oath. The laws respecting juries are all founded on the idea that the men were acquainted with the facts in dispute. Their verdict waz formerly a _declaration of facts_; it iz now a mere _matter of opinion_. In short, the original design of the institution iz totally changed, and mostly superseded. Since juries rely on testimony, they need not be collected from the _vicinage_; it iz even safer to hav men who are strangers to both plaintiff and defendant. Jurors cannot be punished for _perjury_, for how can a man _perjure_ himself in giving hiz _opinion_? They cannot be starved to deth, nor carted about town for disagreement; for how iz it possible for twelv men always to _think alike_, when they hav to form their opinions on clashing testimonies? In short, juries do not now answer one of the purposes for which they were at first instituted; and however necessary they may be deemed to the preservation of civil liberty, it appeers to me they are, in a great measure, useless.

I cannot leev this subject without remarking the influence of habit, in maintaining _forms_, when the _substance_ no longer exists. This iz neerly the case with the whole institution of juries; but particularly in the manner of administering the oath to them. The practice of swearing the foreman and the other jurors separately, still exists in some of theze states, altho the reezon no longer remains. It originated in the manner of delivering the verdict, which waz, for every juror separately to answer the interrogatories of the judge. While this practice remained, it waz very proper that eech juror should take a separate oath; altho this formality iz dispensed with, in administering the oath to witnesses, in modern courts; the words, "_you_ and _eech of you_ swear," being substituted for a separate administration of the oath.

No. XXIV.

HARTFORD, SEPTEMBER, 1789.

_The_ INJUSTICE, ABSURDITY, _and_ BAD POLICY _of_ LAWS _against_ USURY.

Usury, in the primitiv sense of the word, signifies any compensation given for the use of money; but in modern legal acceptation, it iz the taking an exorbitant sum for the use of money; or a sum beyond what iz permitted by law. The municipal laws of different states and kingdoms hav fixed different rates of interest; so that what iz usury in one country or state, iz legal interest in another. The propriety of such laws iz here called in question.

1. It iz presumed that such laws are _unjust_. Money iz a species of commercial property, in which a man haz az complete ownership, az in any other chattel interest. He haz therefore the same _natural_ right to exercise every act of ownership upon money, az upon any other personal estate; and it iz contended, he ought to hav the same _civil_ and _political_ right. He ought to hav the same right to trade with money az with goods; to sell, to loan and exchange it to any advantage whatever, provided there iz no fraud in the business, and the minds of the parties meet in the contracts. The legislature haz no right to interfere with private contracts, and say that a man shall make no more than a certain profit per cent on the sale of hiz goods, or limit the rent of hiz house to the annual sum of forty pounds. This position iz admitted for self evident, az it respects every thing but money; and it must extend to money also, unless it can be proved that the privilege of using money in trade or otherwise without restraint, and making what profit a man iz able by fair contract, with gold and silver, az well az with houses and lands, will produce some great public inconvenience, which will warrant the state in laying the use of such gold and silver under certain restrictions.[141]

[141] In a conversation I had at Dr. Franklin's on this
subject, the doctor admitted the principle, and remarked,
that a man who haz 1000l. in cash, can loan it for six per
cent. profit only; but he may bild a house with it, and if
the demand for houses iz sufficient, he may rent hiz house
for fifteen per cent. on the value. This iz a fair state of
the argument, and I challenge my antagonists to giv a good
reezon for the distinction which the laws make in the two
cases; or why a man should hav an unrestrained right to take
any sum he can get for the use of hiz house, and yet hiz
right to make profit by the loan of money, be abridged by
law.

The only reezon commonly given for limiting the interest of money by law, iz, that monied men will otherwise take advantage of the distresses of the poor and needy, to extort from them exorbitant interest. Admit the proposition in its utmost latitude, and it furnishes no argument in favor of the restraint, _because the restraint iz no remedy for the evil_. On the other hand, it generally increases the evil; for when the law forbids a man to take more than six per cent. for the use of hiz money, it, at the same time, leevs him the right of withholding hiz money from hiz distressed nabor, and actually lays before him the strongest motivs for withholding it. The law tuches the pride of a man, by restraining what he deems an unalienable right, and this consideration, added to a certainty of employing hiz money to greater advantage, impels the man to turn a deef eer to hiz nabors calamities, when he would be otherwise disposed to afford relief. The law therefore, so far from furnishing a remedy, actually doubles the evil.

To proov this assertion more cleerly, let me call the attention of my reeders to facts within their knowlege. Every man knows that there are persons in every state, who, thro imprudence, idleness or misfortune, become involved, and unable to pay their dets when du. Theze persons seldom make provision for discharging their dets, till they are pressed by their creditors. When they are urged by just demands or legal process, they are under a necessity of raising money immediately: But money iz scarce; it iz in a few men's hands, who will not pay the full valu of lands or personal estate. The poor detor iz then obliged to sell hiz farm or hiz cattle, or both, at private sale or at auction, for any price they will fetch, which iz commonly but a small part of the valu. Now, if the detor could hav borrowed a sum of money, at ten, fifteen, or even twenty per cent. he might hav been a gainer by the loan; for by being prohibited by law from borrowing money, at a high interest, he haz been obliged to sacrifice twenty, perhaps fifty or a hundred per cent. Laws against usury do not help such men; on the contrary they oppress them. Could such men get money even at twenty per cent. they would often be benefited by the loan; they might save their estates and avoid misery and ruin. A prohibition of high interest only compels the distressed to seek releef by sacrificing property in a way not guarded against by law. Nay, I beg leev to assert that such laws are the very meens of producing, supporting and enriching a host of oppressors in every state in America. There are a few men, in every state, who are what iz called _beforehand_; theze men will not loan money at legal interest, for this very good reezon, they _can do better with it_, az they say; and no man can blame another for making the most profitable use of hiz money. Theze men therefore keep their money, till their distressed nabor iz forced by det to sell hiz farm; then iz the time to lay out their money; they get the farm at their own price, which iz generally less than half its valu. In most states, lands are sold at auction, where they are sacrificed; and the poor owner haz all the charges of a legal suit to pay, az wel az the det; and the land sold for a small part of its valu. This iz the common practice, authorized by law; so that laws against usury only _create_ an evil in one way, by endevoring to _prevent it_ in another.

The evil and hardships of this law, of selling real estate on execution, hav been so great, az to giv rise to a different mode of satisfying executions in Connecticut. In this state, a man's person and estate are both liable for det; but if the personal estate iz insufficient, the creditor haz hiz election, ether to confine the dettor in prison, or take hiz lands. But the law, which iz so far in favor of the creditor, here steps in to prevent a sacrifice of the real property at public sale; and ordains that the creditor shall take it at a value, which shall be apprized by three indifferent freeholders. This law does injustice to the creditor; for it interferes with the contract, and obliges him to take that for pay which he did not engage to receev. But it favors the dettor, in a state where money iz scarce and cannot be eezily raized on an emergency. So far one law, by doing injustice to creditors, corrects some of the ill effects of the law against high interest in Connecticut; but the remedy iz partial, for men in distress for money, generally sell their estates at private sale, for one half their valu; and a few monied men and rich farmers are constantly taking advantage of their nabors calamities, to enrich themselves. Such men make more than fifty per cent. per ann. on their money by theze speculations, and no law can wholly prevent them. Now laws against usury create this very evil: They drive money from a country; they create a necessity for it; and then a few welthy men enrich themselves, not by loaning at fifteen or twenty per cent. but by purchasing lands at half price, which are sold to keep men from jail, who, if they could hav got money for a few months, at twenty per cent. might hav sold their estates to advantage, or otherwise paid their dets. In general then we may obzerv, when a man iz reduced to the necessity of asking money at twenty per cent., hiz situation iz such that it iz better to giv that interest, than to risk a sale of property on a sudden to raize the money. Laws against usury do not save such men; it iz idle to suppose it; on the contrary, they multiply instances of oppression, az all America can witness.

But the argument, if good, proovs too much. If legislators hav a right to fix the profit on money at interest, to prevent exorbitant demands from injuring the necessitous, wil not the same reezon warrant a restriction on the profits of every commodity in market? If my rulers hav a right to say, my annual profit on money loaned, shal be but six per cent. hav they not a right to say the advance on my wheet shal be but six per cent.? Where iz the difference? A poor man may indeed be distressed by a demand of high interest, and so he may by the high price of flour; and I beg leev to say, that distresses from the last cause are infinitely the most numerous, and the most deserving of legislativ remedies. It wil perhaps be said that the price of bred, in all cities, iz fixed by law--tru; but if the price of wheet iz not likewise fixed, there are times of scarcity when the law must vary the price, or the baker must be ruined, and the poor be destitute of bred. In an extensiv fertile country, like America, such cases may not happen frequently; but the actual existence of the fact proovs that such laws rather _follow_ the state of the market, than _regulate_ it. And indeed it iz a question, whether in this country, the citizens of our large towns would not be supplied with bred at a cheeper rate, without any regulations at all.