This word iz the root of the modern wordbaron; for in ancient manuscripts, it iz sometimes speltviron, denoting itsderivationfromvir. For this we hav the authority of Camden and Du Cange under the wordbaron.
So far we tred on sure ground. That theze words hav existed or do stil exist in the sense above explained, wil not be denied; and it iz almost certain that they all had a common origin.
The wordBaroniz evidently derived from the Germanbarorpar, and under the feudal system, came to signify the proprietors of large tracts of land, or thoze vassals of the Lord Paramount, who held lands by honorable service.[77]
I shall hereafter attempt to proov that several modern words are derived from the same root; at present I confine my remarks to the wordparish, which, I conjecture, iz a compound ofpar, a landholder, andrickorrich, which haz been explained, az denoting territory or jurisdiction:Parickorparich, the jurisdiction of a par or baron. It iz true the wordsbaronandparliamentseem not to hav been used among the Saxons before the conquest; but they were used by most of the nations of the same original, on the continent; az in Germany, Burgundy, Sweden and Normandy: And the use of the wordparochiain England, before the conquest, or at leest by the first lawyers and translators of the Saxon laws, iz to me the strongest proof that some such word azparickexisted among the erly Saxons, or which waz latinized by thoze writers. Even if we suppose the word borrowed from nations on the continent, my supposition of the existence of such a word iz equally wel founded, for they all spoke dialects of the same tung.
The first knowlege we hav of the wordparishor ratherparochia, iz in the Saxon laws, copied and translated into Latin by thoze erly writers, Bracton, Britlon, Fleta, or others of an erlier date. In that erly period,parochiawaz adioceseorbishoprick.
I suspect the jurisdiction of the bishop waz originally limited by an erldom, county shire, or territory of a great lord. This waz probably the general division; for sometimes a clergyman or bishop, in the zerude ages,had cure of souls in two or more adjoining lordships; and it often happened that a lord had much waste land on hiz demesne, which waz not comprehended in the originalparish, and thus came, in later times, to be calledextraparochial. But whatever particular exceptions there might be, the remark az a general one, will hold true, with respect to the original jurisdiction of a bishop.
The number of counties in England iz at present forty, and that of the dioceses, twenty four; but the number of counties haz been different at different times; and some changes, both in the civil and ecclesiastical state, hav doubtless, in a course of a thousand years, destroyed the primitiv division. It iz however some proof of my hypothesis, that most of the bishops in England are stil called by the names of counties, or of cities which are shires of themselves; az the bishop of Durham, of Worcester, of London, of Norwich, &c. or by the names of the cheef towns in counties; az bishop of Winchester, of Chichester, &c.
Selden's account of the ancient divisions of the kingdom, confirms this opinion. See Bacon's Selden, ch. 11. The province or jurisdiction of an archbishop, waz prior to the origin of diocesses or parishes. Selden haz given an account of a division of diocesses by archbishop Theodore in the seventh century; by which it appears, that in some instances, a diocese or parish waz one shire or county; and in others, a parochia covered two, three, or more shires: But in almost every instance, the limits of a parish were the limits of a shire or shires. And however strange the reader may think it, the wordchurchandshireare radically the same. The Saxon word wazcyrickorcyrk;[78]and the Scotch pronounce and write itkirk. It iz, likeshire, derived from the SaxonSciran, cir, orseyre, to divide. The church or kirk waz the ecclesiastical division, answering to shire, and come to signify the jurisdiction of the cathedralchurch; the primaria ecclesia or mother church; and hence the Saxon termcyrick sceate, church scot or fees, paid by the whole diocese.
In later times, the originalparochiaor diocese was divided or extended by theMickle-mote,Witenagemoteor national assembly, by advice of the bishops, nobles, and cheef men.
From all I can collect respecting this subject, it appeers probable, that on the first conversion of the Saxons to christianity, eachearle,earlederman, or erl, whoze manor or jurisdiction waz the origin of a county, had hiz clergyman or chaplain to perform divine service. Hiz residence waz probably in the vicinity of the erl; and this waz the origin of thecathedral, or mother church,primaria ecclesia, to which the tenants of the whole district or erldom afterwards paid tithes. On the first establishment of theze churches, the tenants paid tithes where they choze; but fraud or delay on the part of the tenant, and the encreasing power of the clergy, occasioned a law of king Edgar, about the year 970, commanding all the tithes to be paid to the mother church, to which the parish belonged.[79]This must hav augmented the welth of the cathedral churches, and given them a superior rank in the ecclesiastical state.
Previous, however, to this period, thethanesor inferior lords, had their chaplains and private chapels; and it waz a rule, that if such chapel had a consecrated cemetery or burying ground belonging to it, the lord might appropriate one third of the tithes to the support of hiz private chaplain. The clerks or bishops who belonged to the cathedral churches, and were the officiating ministers of the erls or princes, at that time the first ranks of noblemen, acquired an influence inproportion to their property and the extent of their jurisdictions. Hence the powers of modern bishops in superintending the clergy of their dioceses. In later times, they acquired large tracts of land, ether by purchase, gift or devise, and in right of theirbaroniesgained a seet among the lords of the kingdom in parliament.
The inferior clergy were multiplied in proportion az the peeple wanted or could support them, and the jurisdiction of an earl's chaplain, being limited originally by his cure of souls, and being founded on aparrickor territory of a lord, afterwards gave name to all the jurisdictions of the inferior clergy. Hence the name ofparish, as denoting the extent of a parson's[80]ecclesiastical authority.
The jurisdiction of a bishop lost the name of parish, parochia, at a very erly period; but stil the subordinate divisions of the ecclesiastical state continued to be regulated by prior civil divisions. For this assertion, we hav an indisputable authority, which confirms my opinion respecting the origin of parishes. "It seems pretty clear and certain," says the learned and elegant Blackstone, Com. vol. I, 114, "that the boundaries ofparisheswere originally ascertained by thoze of amanorormanors; since it very seldom happens that a manor extends itself over more parishes than one, tho there are often many manors in one parish." This iz the present state of facts, for originally the parish, like the modern diocese, covered many manors, or estates of the inferior feudatories.
Parliamentiz said to be derived from the French,parlement, which iz composed ofparler, to speak, andmentormens, mind. Cowel tit.Parliament.
"Parliament," says Johnson, "parliamentuns, law Latin; parlement, French." Dict. fol. Edit.
"It is called parliament," says Coke Litt. p. 110. Ed. Lond. 1778, "because every member of that court should sincerely and discretelyparler le ment," (speek hiz mind) "for the general good of the commonwelth; which name it also hath in Scotland; and this name before the conquest waz uzed in the time of Edward the Confessor, William the Conqueror, &c. It waz anciently, before the conquest, calledmichel-sinath,[81]michel-gemote;ealla,witena-gemote; that is to say, the great court or meeting of the king and all the wisemen; sometimes of the king, with the counsel of hiz bishops, nobles and wisest of hiz peeple. This court, the French men callles estates; orl'assemble des estates. In Germany it is called a diet. For thoze other courts in France that are calledparliaments, they are but ordinary courts of justice, and az Paulus Jovius affirmeth, were first established with us."
The late editor of Cokes Institutes, remarks, in a note on this passage, that the latter part of this etymology iz justly exploded, and apologizes for hiz author by saying, "it iz to be found in preceding authors of eminence." He discards thement, and considers it, not az an essential, but an adventitious part of the word; deeming it sufficient to derive the word fromparler, to speak. This opinion he receives from Lambard.
Such a definition, with great deference to theze venerable authorities, iz a disgrace to etymology. Coke waz a great lawyer, and Johnson a good Latin and Greek scholar; but neether of them waz versed in the Teutonic language and institutions, where alone we should look for the origin of our laws and the English constitution. Johnson indeed waz a mere compiler of other mens etymologies, and Cowel, Selden, Junius and others from whom he copied, tho deeply lerned, sometimes fell into very whimsical mistakes. I am bold to assert that the English derivation ofparliament, orparlementfrom the Frenchparler, haz no better authoritythan a mere whim or notion of theze writers. We might az well deriveparlerfromparliament, and both from aparcelof gossips, because they are loquacious.
The true etymology of the word izpar, orbar, a landholder or baron, andle mote, the meeting. I saymote, for this waz the Saxon spelling of the word, after the prepositivgewaz dropped. It waz originallygemote, az inwitena-gemote; afterwards thegewaz disused, az infalk-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.
Thecommune conciliumof England, before the conquest, consisted of thewitena, or wise men. It retained the name ofwitena-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 ofparliaments, all thebarons, 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 fromthis circumstance that the provincial assemblies of France are properly denominatedparliaments. 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 aparliament, 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.
The wordpeeriz said to be derived from the Latinparequal; and this circumstance haz been the occasion of innumerable encomiums on the Englishtrial 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 wordpeer, 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 whetherpeers, az used for jurors, came from the Latinpar; for it iz almost certain that the wordpeer, az used for nobles, iz derived from the Germanpar, a landholder, and this iz undoubtedly the tru primitiv sense of the word. That there waz such a word in ancient Germany, iz unquestionable; andparamount, which signifies the lord of highest rank, iz from the same root;par-amount, theparorbaron abovethe rest. The jurists on the continent latinized the word, calling the lordspares; and this, in later ages, waz mistaken for the plural of the Latinpar.
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.Paresorbaronsbecame equivalent tojudges. Hence thehouse of peersin England iz the supreme judicatory of the nation. Hence theparliaments(meetings of peers) in France are supreme courts of justice.
Twelvwaz a favorit number with our Saxon ancestors, and the king, or lord paramount, with twelvjudges, 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 bytwelv 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 bytwelv pontiffs, who distributed justice."[83]
Let us attend to a fact confirming the account. Mallet, a historian of credit, testifies that the hall or seet of justice,maybe stil seen in different parts of Sweden and Denmark. "Theze monuments, whoze rude bulk haz preserved them from the ravages of time, are onlyvast unhewn stones, commonlytwelvin 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.
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 fatherdidwhen 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 aretwelvseets for themselves, besides the throne which iz occupied by the universal father."[86]
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 innumber 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 thecaousor giants formerly held their councils.[87]I think one may discover vestiges of this ancient custom, in the fable of thetwelv peersof France, and in the establishment of twelv jurymen in England, who are theproper judges, according to the ancient laws of that country."
It iz certain that some outlines of this mode of deciding controversies bytwelv, may be seen in the customs of the Cimbri and Teutones, long before the Christian era. But I cannot find that the idea ofequalityever entered into the original institution. On the other hand, every old authority that I hav consulted confirms me in the opinion, that thetwelv menwere chosen from among the landholders or better classes of peeple; that they were thejudgesof 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 theirprinces. "De minoribus rebus principes consultant, demajoribus, 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]Thezeprincipes 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 chosenex plebe; but when chosen formed theconcilium principis. The prince waz their president, chosen by themselves,eliguntur in conciliis principes, and hadauctoritatem, authority or jurisdiction in the town or district.
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 princesjus dicunt, controversiasque minuunt, distributed justice, by the assistance of theircomites, and according to the circumstances of the peeple.[94]This at leest waz the case with respect to matters of small magnitude.
The number ofcomites principis, or assistants, waz originally ahundred. 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]
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.
Twelvwaz 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 totwelv, 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, andthe trial by twelv peers or jurors, which waz formerly common to all the northern nations of Europe.[98]
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, calledducesorprincipes, 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 andcomitesor 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 calledthanes, from a word signifyingto serve, because they held their lands by the condition of military service. On the continent, they were calledbarons, that is freemen, or tenants of land, upon condition of rendering certain military and honorable service to their superior lord, who waz called lordparamount.
Blackstone remarks, that "a baron's iz the most general anduniversaltitle 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 frombar, 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 calledbarons, and this accounts for theuniversalityof 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 againsubject 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.
Blackstone mentions the difficulty of tracing the wordbaronto its primitiv sense; but confirms the foregoing explanation when he says, "the most probable opinion iz thatbaronswere the same az ourlords 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 Saxonheretoga, that iz generals or military commanders. But the most ancient and perhaps the most important civil title waz that ofearlesorealdormen. Theze erls were called also in Saxonschiremen, for they exercised supreme jurisdiction in theshires. After the conquest they were called by the corresponding Norman titlecounts, fromcomites, because they were the king's companions in war; and their jurisdiction waz called acounty.[101]
Inferior to theze in rank were the Saxonthanes, who were so called from the Saxonthanianministrare, because they were thecomitesor 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 majoresorthani 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, calledthani minores, who were alsolords of manors.[102]ThewordpeerI suppose to be derived from the same root azbaron, bar or par, and to be equivalent in sense. It iz cleer to me thatlandholder, 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 toequalityof rank.
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 wordpeeraz denoting jurors, says expressly, "but this word izmost 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 wordpeersignifiesequal, and assigns, az a cause of itsmost principalappropriation to the nobility, that the men, tho of different ranks, hav anequal votein 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 arepeersin respect of their nobility; so the commoners, tho some are greatly superior to others, yet all are in lawpeers, inrespect of theirwantofnobility."[103]This appeers very extraordinary, that anequality of suffrageshould giv an appellation in preference todifference of rank, which iz, so much more obvious and more flattering to the haughty barons. But if the commoners arepeersorequals in suffrageaz well az the lords; that iz, on thesame principle; or as Blackstone states it, if thelordsarepeersbecause they arenoble, and the commoners arepeers, because they arenot noble, why hav not the commoners the same appellations ofpeers of the relm? The lords are notequallynoble, by Blackstone's own statement, for they are of very different ranks; and the commons are not equallyignoble, (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 theequality of suffrageiz a proper ground for the title ofpeersin one house, the reezon extends to the other. Yet commoners are notpeers of the relm; and until a good reezon can be assigned for the distinction of titles between the houses, I shall beleev that the wordpeerhad originally no reference toequality.[104]
But say the English lawyers and antiquaries, "the bishops are not in strictness held to bepeers of the relm, but onlylords 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 notbarsorpars, the hereditary lords of manors, consequently notpeers 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 thereforelords 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]
"The appellationpeer," says Cowel, "seems to be borrowed from France, and from thozetwelv peersthat 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 allbarons, or of the nobility.[107]Can the word, applied to the members of this council, signifyequal? By no meens. Here we trace the wordto 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 wordpeers,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 cheefjudgesof all causes arising on their own manors, except such az were of great consequence.
This explanation accounts for what Selden has remarked, chap. 65, that "the barons of England, before the reign of Edward I, were rather thegreatandricher sortof men, thanpeers, 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 ofbaronsfrom 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 ofpeers, 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 calledpeers? The answer iz eesy; the jurors were thejudgesof the inferior courts, and not merely the equals of the parties, az iz commonly supposed. Theerlorbaron, in strictness; but more commonly, the vice-comes, sheriff or lords deputy, waz the president or cheef justice, and the jurors, theassistant 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 wordpeerorbaron, in time, became equivalent tojudge. Az the nobles were judges in the kings court, and decided on appeels in the last resort, so the freeholders who constituted the courtin the county, hundred or manor, came to be denominatedpeers, 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, thatbaroandjusticiariuswere often usedsynonimously." 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 arepeersof the relm; that iz, the ancient prescriptiv judges or barons, who claim the privilege by hereditary right or immemorial usuage. Thehouse 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, whomhe 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 oftwelv lords, like the Athenian territory under theArchontes. Theze, with the otherprinces, had thejudicial power of distributiv justicecommitted 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, orcourts 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 thebaronageof 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 theoldtrial bypeers.
The parliaments in France are justly said by lord Coke, to beordinary courts of justice; another striking evidence of what I hav advanced. The wordparliamentcame from France, where it denotes that assembly of barons, which constitutes the supremecourt of justicein 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 ofparliament,and retain it to this day; altho one branch of that body iz composed of commoners. The tru meening ofparliamentiz ameetingofbaronsorpeers, 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 thehouse of lordsretains the primitiv privilege of finally deciding controversies. This branch of the legislature alone answers to theparliamentsin France, which approach neer the ancient institution.[108]
So in England, the house of lords, and even the temporal lords alone, were called formerly aparliament. 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, aparliament, afull parliament; and the spiritual lords are not permitted to giv any vote upongiltyornot gilty, for they are not ancientpeers(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 afull parliament, that iz, az I hav explained the tru primitiv meening of the word,a meeting of barons or judges.[109]
I would just add on this head, that the institution oftwelv judgesin England, iz copied from the ancient mode of trial in Germany. The oldCuria Regisconsisted of the king, hiz grand justiciary, the officers of hiz palace andhis 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 ofbarons of the exchequerandbaronsof the cinque ports, who are judges, furnishes an additional argument in favor of my opinions.
The foregoing explanation of the words,baronandpeer, leeds to a probable account of thetrial by peers. It can be prooved that the jurors were thejudgesof the county, hundred and manor courts, and the probability iz that the suitors in theze courts receeved the appellation ofpeers, 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 bejudges of the court baron."[110]
"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, (forbaronsin one sense signifiefreemen) and of that court thefreeholders, being suitors, bejudges. 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 properlyin the eye of the law, it hath relation to thefreeholders who are judges of this court. And in ancient charters and records, thebaronsof London and the cinque ports do signify thefreemenof London and the cinque ports."[111]Theze passages are express to my purpose. Indeed it must hav been that the freeholders, now calledjurors, 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.
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 andjudge their nabors." "Every free tenant hath ordinary jurisdiction in theze courts." "The lords and tenants shall incur certain penalties by thejudgement of the suitors." "Theze courts are called county courts, where thejudgement 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 thesuitors are the judges, andnotthesteward."
Cowel tels us, "the court baron iz more properlycuria baronum, i. e. the court offreeholders, (for so barones does also signify) over whom the lord of the manor presides. In this court thefreeholders are judges."[114]
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 thefreemenwere judges of the fact, and the other did butedocere jura populo."[115]Here a distinction iz cleerly made beetween thefreemenand thepopulus; the freemen were the judges, and the bishop or sheriff edocuit jura, proclaimed the decision to themultitude. The freemen, or landholders, then were thepeersof the court; they were not theequalsof the multitude, for thepopulus, the laborers of all descriptions, were considered az belonging to an inferior class of men, and had no voice in the folk-mote.
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 arethe judges, and the steward in the two former, and the sheriff in the latter, arethe registrars or ministerial officers. Now it iz well known that before the conquest, theze includedall the courtsthat were in the kingdom, except thewitena-gemote, in which there waz nothing like a jury, separate from the members of that council. So that the freeholders or jurors were not onlyjudges, but they were thesole judgesin all the inferior courts in the kingdom; and of course there could be little or no distinction betweenlawandfact. Nay, more, the suitors were thewitnessesalso; and the principal reezon for summoningfreeholders of the vicinagewaz originally this; it waz supposed they were acquainted with the facts in dispute. Hence laws were made to compel the jurors totell 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 broughtbeforethewitena-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 theaula regiæ, a high court, consisting of hiz cheef officers and barons, in place of the Saxonwitena-gemote. This court waz the supreme judicature in the nation; a jurywaz 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 theAula 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 theAula 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 weretwelv knights," (that iz, probably, persons holding land amounting to a knights see.)[116]
Henry III issued writs to the several counties to enquire into the liberties of hiz subjects, bytwelv good and lawful knights.[117]The Saxon laws are more explicit. "Habeantur placita in singulis wapentachiis, ut exeanturduodecem thayniet 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 twelvethayni, 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 ofjudges, and not of thejury; but the jury themselves, in some cases, are judges, that iz, they arejudgesof thefact, and the judge iz bound to giv sentence according to their verdict."This writer here supposes thethaynito be reallyjurorsandjudges; butjudgesonly of thefact. This izthe fundamental errorof most lawyers who hav written on the subject; they take it for granted, that the distinction oflawandfactwaz 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 calledduodecem virale judicium," thejudgementof twelv men. Their sentence or decision waz called ajudgement; the distinction between theverdictof a jury, and thejudgementof the court, waz unknown in the erly ages of the Saxons; nor can I find it mentioned, till after the conquest.
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 summoningtwelv thanes. "Brady and Hicks," says Stuart, "contended that theze thanes werenot jurors, butjudgesorlawyers. Coke and Spelman were of a different opinion." The truth iz, they were bothjurorsandjudges; 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, izlahmenorlagemen; a word that haz puzzled the law writers, az it seems to meen something more thanequals; and they hav no idea of any thing in a jury, butequality. 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.Lahmaniz literally alaw man, man of the law, a judge. Law waz in a rude state, at that period; but the thanes were bothlawyersandjudges;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 thelahmen, theseniores thani, ormeliores 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 thezelahmenwere 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]
Coke defineslahmanto 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 quamsocamappellamus."[121]
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 calledlagamanof the city of York, where, he says, it doutless signified some cheef officer, az judge or recorder. Thoze who hadsocametsacam, or jurisdiction over the persons and estates of their tenants, were thethanesor 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 juryper medietatemlinguæ, he says, "Viriduodenijure consulti, Angliæ sex, Walliæ totidem, Anglis et Wallis jus dicunto." Fol. 91. 3. Here Lambard not only describes jurors az men offree conditionand respectable for age, but azjure consulti, thejudgesof the court; andjus 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 twelvthanesor men of free condition;lahmen,jure consulti, or judges, and constituted thecourt; 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 oflahman, by Spelman and others, who rendered the word,legalis homo; a good and lawful man. The meening iz not so indefinit az alawful man, which could not be redily understood or explained. Rude nations do not deal in such vagueideas. The meening iz,man of law, whoze business it waz to know the law and administer justice.[123]
But if we suppose the word to meenlegalis homo, and that the only requisit in a juror, iz freedom; or that he should beliber 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, trialper 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 thefreemenwere 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 homoiz said to comprehend every English subject. I rejoice that by the struggles of a brave peeple, this construction of that compact hazactually 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 oftrial by peerswaz 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 MagnaCharta, but were considered az a part of their lords property, and transferable, like moveables, at their plezure.
Thefreemen, or thoze classes of peeple which came within the description ofliberi hominesin that famous convention, were the nobility and clergy tenantsin 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 notpeersofthe 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 totrial by hiz peers; that iz, by freeholders of the vicinity, who arehis judges. The propriety of calling themhiz judges, pares suos, iz discovered in the gradation of courts established in England. Thepeers 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 bytheirjudges,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 thejudgesof theze courts, and calledpeers. The freemen might be said to be tried by theirequals; but the villeins were not; yet both were tried bytheirpeers; that iz, by the peers of theze inferior courts, who were exclusivlythe judges.[124]
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, theprincipes pagorum et regionum, with a certain number of assistants, originally a hundred, sometimes twenty four, but commonly twelv, elected by the peeple, (notpro re nata, but for a stated period) formed a council (concilium) for the government of a district: That in their military expeditions, theduces, or generals, had theirlife 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 calledbarons, az they were calledthanesby 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 wereassemblies of barons, and originallycourts of justice, az they are still in France: That the wordpeerswaz first used on the continent, to denote the members of this supreme judicial court, and in its primitiv sense, az derived frombarorpar, it signified freemen or landholders; and thence came to denotejudges, 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 thejudgesof 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 wordpeers, az well az the original right ofjudgingin the last resort, and this house alone iz aparliament, according to the ancient meening of the word on the continent: That thefreemenmentioned 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 wordsliberi homines, were not entitled to be jurors themselves, and consequently could not be tried by theirequals: That the twelv jurorsamong the Saxons were thecheef menof the county and judges: That the idea ofequalityin 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 theright of judgingfrom the barons, the originalpeersor 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 enableevery manto be a freeholder; thus reducing the English theory to practice, and entitling every man literally to the right oftrial by hiz equals.