BOSTON, MARCH, 1789.

_An_ ENQUIRY _into the_ ORIGIN _of the_ WORDS DOMESDAY, PARISH,

PARLIAMENT, PEER, BARON; _with_ REMARKS, NEW _and_ INTERESTING.

In the course of my etymological investigations, I hav been led to

suspect that all the writers on the laws and constitution of England,

hav mistaken the origin and primitiv signification of several words of

high antiquity, and in consequence of the mistake, hav adopted some

erroneous opinions, respecting the history of parliaments and trial by

peers. Whether my own opinions are wel supported by history and

etymology, must be hereafter decided by able and impartial judges of

this subject.

_Dome book_, or _domesday book_, iz a word wel understood by English

lawyers. _Dome book_, or _dom bec_, az it waz formerly spelt, waz the

name given to the Saxon code of laws compiled by Alfred. Some other

codes of local customs or laws were also denominated _dom becs_, but

theze are all lost. After the conquest, a general survey of all the

lands in England, except a few counties, waz made by order of William,

and recorded in a volum which iz stil extant, and called _domesday_.

This survey waz begun by five justices assigned for the purpose in each

county, in the year 1081 and completed 1086.

Our pious ancestors were not a little frightened at the name of this

book, which iz usually pronounced _doomsday_; supposing it to hav some

reference to the final doom, or day of judgement. In order to quiet such

apprehensions, lawyers of less credulity undertook to refute the common

opinion. Jacob, after Cowel, very gravely asserts, that the termination

_day_ in this word does not allude to the general judgement. "The

addition of _day_ to this dome book, waz not ment with any allusion to

the final day of judgement, az _most persons hav conceeved_, but waz to

strengthen and confirm it, and signifieth the judicial decisiv record,

or book of _dooming_ judgement and justice."[67] The same author defines

_domesmen_ to be _judges_, or men appointed to _doom_.

[67] _Jacob Dict._ word, _domesday_.

Cowel, a compiler of considerable authority, says, "day or dey," (for

_dey_ iz the true spelling) "does not augment the sense, but only

doubles and confirms the same meening. It does not, in this composition,

really signify the mesure of time, but the administration of justice; so

that _domesday_ iz more emphatically the judicial decisiv record, the

book of _dooming_ judgement."[68] According to this author, then,

_domesday_ iz _a judgement of judgements_, for he quotes Dr. Hammond to

proov that _day_, _dies_, ημερα, in all idioms, signifies judgement.

However tru this may be, I beleev our Saxon forefathers could find a

better name for a code of laws, than _a judgement of judgements_.

[68] Cowel Dict. _Daysman_.

"_Domesday_," says Coke, "dies judicii," day of judgement.[69] Such is

the influence of sounds upon credulous, superstitious minds.

[69] Coke Litt. 3. 248.

The truth seems to be this; _domesday_ is a compound of _dom_,

judgement, decree or authority; and _dey_, a law or rule.[70] Or

_domes_, in the plural, may signify _judges_. The name of the book then

will signify, ether _the rules of judging_, or _deciding_, in questions

relating to the real property of England; or what is more probable, _the

rules and determinations of the judges_ who surveyed the lands in the

kingdom.

[70] It iz singular that the last syllable of this word

_domesday_, should hav been mistaken for _day_, a portion of

time; for the latter in Saxon waz written _daeg_ and

_daegum_, az in the Saxon version of the Gospels; whereaz the

termination of _domesday_ waz formerly, and ought now to be,

spelt _dey_.

That _dom_ had the signification here explained iz capable of proof. The

homager's oath, in the black book of Hereford, fol. 46, ends thus, "So

helpe me God at his holy _dome_ (judgement) and by my trowthe," (troth,

that is truth.)[71] This explanation coincides with the meening of the

same syllable in other languages, and confirms the hypothesis of the

common origin of the languages of Europe, laid down in the Notes to my

Dissertations on the English Tung. We see the syllable in the Greek

δαμαω, the Latin _dominus_, (domo) and in the English word _tame_; az

also in _doom_, _deem_, king _dom_.[72] In all theze words we observe

one primitiv and several derivativ significations. Its primitiv sense is

that of power or authority, az in Greek and Latin. In English, it stands

for jurisdiction, a judge, or a sentence. In _deem_, it denotes the act

of the mind in judging, or forming its determinations.

[71] Cowel, Law Dict. _dome_.

[72] In some words _dom_ is substituted for the ancient

termination _rick_; and in one sense, it iz equivalent to

_rick_, which implies jurisdiction or power. _King rick_ waz

used az late az Queen Elizabeth: _Bishop-rick_ iz stil used,

denoting the territory or jurisdiction of a bishop.

The other syllable _dey_ iz probably the same word az _ley_, law, with a

different prepositiv article; for etymologists tel us, that the radical

syllable waz often found in the muther tung _ey_. Cowel informs us it

waz not _day_, but _dey_; and another author writes it _d'ey_. The word

_daysman_, or az it ought to be spelt _deysman_, stil used both in

England and America, is composed of _dey_ and _man_, and signifies an

arbitrator or judge, appointed to reconcile differences. In this country

I hav often heerd it applied to our Savior, az mediator between God and

man.

The ancient lawyers translate the Saxon _dom bec_ and _domesdey_ by

_liber judicialis_; words which seem not to convey the ful meening of

the original. I should translate them, _liber judicum_, the Judges book;

or _lex judicum_, the Judges law or rule.

The old Saxon word _ley_, before mentioned, waz, in different dialects,

or at different periods, written _ley_, _lah_, _lage_, _laga_. It iz

doubtless from the same root az the Latin _lex_, _lege_; and it is

remarkable, that the same word anciently signified _peeple_; and from

this are derived _lay_ and _laity_, the peeple as opposed to the

_clergy_.[73] It iz probable that the primitiv sense of the word, in

remote antiquity, waz _people_; and az the peeple made the laws in

general assembly, so their orders or decrees came to be called by the

same name. This conjecture iz not groundless, and is no trifling proof

of the ancient freedom of our Gothic ancestors. Tacitus says expressly

of the Germans, "De minoribus rebus principes consultant; de majoribus

_omnes_." De Mor Germ. 11. The princes deliberate upon small matters, or

perhaps decide private controverses of small moment; but laws of general

concern are enacted in an assembly of all the peeple.

[73] Johnson derives _lay_ from the Greek λαος; as he does

all other words which hav some resemblance to Greek words in

sound or signification. I beleev the Saxon or Gothic original

and the Greek may be the same, and of equal antiquity.

The origin of _Parishes_ haz puzzled all the lawyers and antiquaries of

the English nation. Johnson, after his usual manner, recurs to the

Greek, and derives the word from παροικια, accolarum conventus, an

assemblage or collection of peeple in a naborhood. Others content

themselves with deriving it from the Latin _parochia_ or French

_paroisse_. These etymologies do not satisfy me. It is improbable that

our ancestors went to the Greek for names of places or divisions of

territory, that existed in England az erly az the Heptarchy; especially

az the Greek word before mentioned waz never used in the sense of

_parish_. _Parochia_ cannot be the origin of parish; for it waz not a

Roman word; on the other hand, it is merely a Gothic or Saxon word

latinized by the erly writers on law; and to derive _parish_ from the

French _paroisse_ is trifling; for we might as well derive _paroisse_

from _parish_, which iz at leest az ancient.

"It iz uncertain at what time England waz divided into parishes," say

most of the law writers. Camden, in hiz Britannia, page 104, says, the

kingdom waz first divided into parishes by Honorius, archbishop of

Canterbury, in 636. This opinion iz controverted. Sir Henry Hobart

thinks parishes were erected by the council of Lateran, in 1179. Selden,

followed by Blackstone, supposes both to be rong, and shows that the

clergy lived in common, without any distinction of parishes, long after

the time mentioned by Camden; and it appeers by the Saxon laws, that

parishes were known long before the council of Lateran.[74]

[74] Blackstone Com. vol. I. 112.

The truth probably iz, the kingdom was not divided into parishes at any

one time, but the original ecclesiastical division grew, in a great

measure, out of a prior civil division. _Parish_ iz the most ancient

division of the ecclesiastical state, and originally denoted the

_jurisdiction of a bishop_, or what iz now called a _diocese_. For this

opinion, we hav the authority of the Saxon laws and charters. "Ego

Cealwulfus, dei gratia rex Merciorum, rogatus a Werfritho, Episcopo

Hwicciorum, istam libertatem donavi, ut _tota parochia Hwicciorum_ a

pastu equorum, regis et eorum qui eos ducunt, libera sit, &c." Charta

Cealwulfi regis, Anno 872. "Episcopus, congregatis omnibus clericis

totius _parochiæ_, &c." in a passage quoted by Cowel tit. _parish_. Here

the _bishoprick_ iz explicitly called a _parish_, parochia; and

Blackstone remarks, "it is agreed on all hands, that in the erly ages of

christianity in this island, parishes were unknown, or at leest

signified the same az a _diocese_ does now." Com. Vol. I. 112.

This, being a settled point, wil perhaps furnish a clue by which we may

find the true origin of the word and of the division.

It iz certain that there waz an ancient word among the Gothic nations,

and probably among the Celtic, which signified originally _a man_,

afterwards a freeman, or landholder, in opposition to that class of men

who had no real property. This word waz spelt by the Romans _vir_, and

signified _a man_, by way of eminence, az distinguished from _homo_; az

also a husband or householder. It answered to the ανηρ of the Greeks, az

distinguished from ανθροπος, a word denoting the human race in general.

The same word in the Gothic or ancient German waz spelt _bar_;[75] and

probably in some dialects _par_, for the convertibility of _b_ with _p_

iz obvious to every etymologist.[76] In the Erse language, az Mc Pherson

testifies, _bar_ signifies a man. The word iz also pronounced _fer_ or

_fear_, which approaches nearer to the Latin _vir_: _Fergus_ or

_Ferguth_ signifies a _man of word_ or command. In modern Welsh, which

iz the purest relict of the old Celtic, _bar_ is a son, and _barn_ a

judge. In the ancient Irish, _brehon_ or _barhon_, which iz merely

_baron_ with an aspirate, signified a judge. See Lhuyd, Mc Pherson,

Ossian, p. 4. and Blackstone's Commentaries, Vol. I.

[75] Camden's Britannia. _Baron._

[76] Let no one question the probability of such changes of

consonants which are formed by the same organs; for to this

day _b_ and _v_ are often used promiscuously. In the Spanish

language, we are at liberty to pronounce, _b_ az _v_, or _v_

az _b_; and with us, _marble_ is often pronounced _marvle_.

It is also certain that the Roman _vir_ is found in the word

mentioned by Cesar. Com. 11. 19. _Vergo bretus_, an annual

magistrate among the Ædui, a nation of Germany. This word is

derived from _vir_, and _guberno_, altho Cesar and Tacitus

never suspected it. The same word iz mentioned by Mc Pherson,

az stil existing in the Erst language, _Fergubreth_; and its

meaning iz the same az in Cesar's time: A decisiv argument

that _vir_, _fer_, and _bar_, are radically the same; and

that the ancient Celtic language had a common origin with the

Latin. A similar change of consonants iz observable in the

words _volo_ and _bull_ (the Pope's decree) which are

radically the same; az also the German _woll_ and the English

_will_. So the ancient _Pergamus_ iz called by the modern

Turks, _Bergamo_. See Masheim's Eccle. Hist. Vol. I. and my

Dissertations on the Eng. Language, Appendix.

This word iz the root of the modern word _baron_; for in ancient

manuscripts, it iz sometimes spelt _viron_, denoting its _derivation_

from _vir_. For this we hav the authority of Camden and Du Cange under

the word _baron_.

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 word _Baron_ iz evidently derived from the German _bar_ or _par_,

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]

[77] The feudal system iz commonly supposed to hav originated

in the conquest of the Roman empire by the northern nations.

The rudiments of it however may be discovered az erly az the

Cimbric invasion of Italy, a century before the Christian

era. Se Florus. lib. 3. c. 3. The Cimbri and Teutones were

tribes of the same northern race, az the Germans and Saxons.

I shall hereafter attempt to proov that several modern words are derived

from the same root; at present I confine my remarks to the word

_parish_, which, I conjecture, iz a compound of _par_, a landholder, and

_rick_ or _rich_, which haz been explained, az denoting territory or

jurisdiction: _Parick_ or _parich_, the jurisdiction of a par or baron.

It iz true the words _baron_ and _parliament_ seem 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 word _parochia_ in 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 az

_parick_ existed 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 word _parish_ or rather _parochia_, 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, _parochia_ waz a _diocese_ or _bishoprick_.

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 original _parish_, and thus came, in later

times, to be called _extraparochial_. 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 word _church_ and _shire_ are

radically the same. The Saxon word waz _cyrick_ or _cyrk_;[78] and the

Scotch pronounce and write it _kirk_. It iz, like _shire_, derived from

the Saxon _Sciran_, cir, or _seyre_, to divide. The church or kirk waz

the ecclesiastical division, answering to shire, and come to signify the

jurisdiction of the cathedral church; the primaria ecclesia or mother

church; and hence the Saxon term _cyrick sceate_, church scot or fees,

paid by the whole diocese.

[78] So it iz spelt in the Saxon laws; but its root waz

probably _circe_, from _sciran_, to divide. _C_ before _i_

and _e_ was in Saxon pronounced _ch_ or neerly; hence _circe_

is _chirche_.

In later times, the original _parochia_ or diocese was divided or

extended by the _Mickle-mote_, _Witenagemote_ or 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, each

_earle_, _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 the _cathedral_, 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.

[79] Blackstone Com. vol. I, 112. That each shire had its

bishop, seems to be obvious from a law of Edgar, c. 5, where,

respecting the county court, it iz ordered, "celeberrimo huic

conventui episcopus et aldermannus intersunto;" not _unus

episcoporum_, but _the bishop_ and _erl_.

Previous, however, to this period, the _thanes_ or 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 in

proportion 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 their _baronies_ gained 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 a

_parrick_ or territory of a lord, afterwards gave name to all the

jurisdictions of the inferior clergy. Hence the name of _parish_, as

denoting the extent of a parson's[80] ecclesiastical authority.

[80] _Parson_ iz said, by Coke and others, to be derived from

_persona_, because this officer represents the corporation or

church, _vicem seu personam ecclesiæ gerere_. This reezon

seems to be obscure and unsatisfactory. It iz possible the

word may proceed from the same root az _parish_, viz. _par_.

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 of _parishes_ were originally ascertained by thoze

of a _manor_ or _manors_; 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.

_Parliament_ iz said to be derived from the French, _parlement_, which

iz composed of _parler_, to speak, and _ment_ or _mens_, 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 discretely

_parler 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, called

_michel-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 call _les estates_; or

_l'assemble des estates_. In Germany it is called a diet. For thoze

other courts in France that are called _parliaments_, they are but

ordinary courts of justice, and az Paulus Jovius affirmeth, were first

established with us."

[81] Great synod--great meeting.

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 the _ment_, and considers it, not az

an essential, but an adventitious part of the word; deeming it

sufficient to derive the word from _parler_, 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 of

_parliament_, or _parlement_ from the French _parler_, haz no better

authority than a mere whim or notion of theze writers. We might az well

derive _parler_ from _parliament_, and both from a _parcel_ of gossips,

because they are loquacious.

The true etymology of the word iz _par_, or _bar_, a landholder or

baron, and _le mote_, the meeting. I say _mote_, for this waz the Saxon

spelling of the word, after the prepositiv _ge_ waz dropped. It waz

originally _gemote_, az in _witena-gemote_; afterwards the _ge_ waz

disused, az in _falk-mote_. What the original French orthography waz, I

am not certain; but the word came to England from France, and we find

the French article prefixed, _par-le-ment; a meeting of the barons_. The

same sound waz used in Germany, Burgundy, and other parts of Europe, and

in all, it had the same meening, which it, in some mesure, retains in

France to this day.

The _commune concilium_ of England, before the conquest, consisted of

the _witena_, or wise men. It retained the name of _witena-gemote_, til

after the Norman invasion. It iz perhaps impossible, at this distance of

time, to ascertain exactly the manner of summoning this national

assembly, or whether the commons or lesser nobility were entitled to a

seet. In old charters, the king iz said to hav passed laws by advice of

the archbishops, bishops, abbots, erls and wise men of the relm;

seniorum sapientium populi. But we are not able to determin whether

theze seniores sapientes were admitted on account of their age and

wisdom; or whether possession of real estate waz a requisit

qualification. So much iz certain, that in France and Germany, where we

first heer of _parliaments_, all the _barons_, that iz, all the

nobility, were entitled to a seet in the national council, in right of

their baronys; and this iz asserted to hav been the case in England.[82]

This fact, so well attested in history az to be undeniable, ought long

ago to hav led the critical enquirer to the true origin of the French

word, parlement. The name of parliament took its rise under the feudal

system, when the assembly of men, so called, consisted solely of barons

or bars. It iz from this circumstance that the provincial assemblies of

France are properly denominated _parliaments_. The erly Norman princes,

who introduced the name into England, summoned none to their council but

the clergy and nobility, and sometimes a few only of the greater barons.

The house of lords iz strictly a _parliament_, according to the original

of the word, altho since the commons hav made a part of the legislature,

the name iz extended to the whole body.

[82] Stuarts English Constitution, p. 275.

The word _peer_ iz said to be derived from the Latin _par_ equal; and

this circumstance haz been the occasion of innumerable encomiums on the

English _trial by peers_. So far az equality in the condition of judges

and parties, iz an excellence in any judicial system, the present

practice of trial by jury iz esteemable among a free peeple; for

whatever may be the origin of the word _peer_, a trial by men of the

naborhood may often proov a capital security against a court devoted to

party. But it iz at least doubtful whether _peers_, az used for jurors,

came from the Latin _par_; for it iz almost certain that the word

_peer_, az used for nobles, iz derived from the German _par_, a

landholder, and this iz undoubtedly the tru primitiv sense of the word.

That there waz such a word in ancient Germany, iz unquestionable; and

_paramount_, which signifies the lord of highest rank, iz from the same

root; _par-amount_, the _par_ or _baron above_ the rest. The jurists on

the continent latinized the word, calling the lords _pares_; and this,

in later ages, waz mistaken for the plural of the Latin _par_.

Az the pares or barons claimed almost exclusiv jurisdiction over their

manors, and held courts of justice, ether in person or by their

bailiffs, they came to be considered az the supreme judges in the last

resort of all civil and criminal causes. _Pares_ or _barons_ became

equivalent to _judges_. Hence the _house of peers_ in England iz the

supreme judicatory of the nation. Hence the _parliaments_ (meetings of

peers) in France are supreme courts of justice.

_Twelv_ waz a favorit number with our Saxon ancestors, and the king, or

lord paramount, with twelv judges, constituted the supreme court or

council among the ancient Germans. It will hardly be considered a

digression to examin this institution with more attention; for if I

mistake not, the rudiments of it are visible az far back az the

Christian era; or even az the Gothic migrations to the west and north of

Europe.

In the Edda, or system of Gothic mythology, compiled by Snorro

Sturleson, supreme judge of Iceland, about the year 1220, we may discern

the principles which would naturally giv rise to the practice of trial

by _twelv men_. The Edda will indeed be said to be a collection of

fables. To this I answer, fable iz generally, perhaps always, founded on

fact; whatever additions may be made in a course of time by imperfect

tradition. The Edda iz acknowledged to contain an authentic account of

the opinions of the northern nations at the time it waz written. This iz

all I ask.

Snorro, and Torfæus the historian of the north, inform us that even in

Scythia, "Odin, the supreme god of the Goths, performed the functions of

cheef preest, assisted by _twelv pontiffs, who distributed

justice_."[83]

[83] Mallets North. Antiq. Vol. I. 61. The northern nations

had, like the Greeks, _twelv_ principal deities, and this

article in their religious beleef might originate the

institution of _twelv preests_, _twelv judges_, &c. Many

civil institutions among rude nations, may be traced to their

religious opinions; and perhaps the preference given to the

number _twelv_, in Germany, in Greece, and in Judea, had its

origin in some circumstances az ancient az the race of the

Jews.

_Odin_, which in Anglo Saxon, waz _Woden_, waz the supreme

god of the Goths, answering to the Jupiter of the Greeks: And

it iz remarkable that the words, _god_, _good_, _odin_ and

_woden_, all sprung from one source. We shall not be

surprized that the same word should begin with such different

letters, when we reflect that such changes are very common.

The Danes omit _w_ in _word_; a dictionary they call

_ord-bog_, a word book; and the Spaniards, in attempting to

pronounce _w_, always articulate _g_. See my Dissertations,

p. 335.

Let us attend to a fact confirming the account. Mallet, a historian of

credit, testifies that the hall or seet of justice, may be stil seen in

different parts of Sweden and Denmark. "Theze monuments, whoze rude bulk

haz preserved them from the ravages of time, are only vast unhewn

stones, commonly _twelv_ in number, set upright, and placed in form of a

circle. In the middle iz a stone, much larger than the rest, on which

they made a seet for their king. The other stones served az a barrier to

keep off the populace, and marked the place of thoze whom the peeple had

appointed to make the election (of king.) They treeted also in the same

place of the most important affairs."[84] There iz one neer Lunden,[85]

in Scania, another at Leyra, in Zealand, and a third neer Viburg, in

Jutland.

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

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

place.

This being a well attested fact, we are disposed to beleev what iz

related in the Edda, Fable 7th, where it iz asked, "what the universal

father did when he bilt Asgard, (the divine abode.") It iz answered,

agreeable to the receeved opinion of the Goths, "he in the beginning

established governors, and ordered there to decide whatever differences

should arize among men, and to regulate the government in the plain,

called Ida, wherein are _twelv_ seets for themselves, besides the throne

which iz occupied by the universal father."[86]

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

On this passage, the translator of Mallets History haz the following

note. "Theze judges were twelv in number. Waz this owing to there being

twelv primary deities among the Gothic nations, az there were among the

Greeks and Romans? This I shall not take upon me to decide; but I think

one may plainly observe here the first traces of a custom, which hath

extended itself to a great many other things. Odin, the conqueror of the

north, established a supreme court in Sweden, composed of twelv members,

to assist him in the functions of the preesthood and government. This

doubtless gave rise to what waz afterwards called the senate. And the

same establishment in like manner took place in Denmark, Norway, and

other northern States. Theze senators decided in this last appeal, all

differences of importance; they were, if I may say so, the assessors of

the prince; and were in number twelv, az we are expressly informed by

Saxo, in hiz life of king Regner Lodbrog. Nor are other monuments

wanting, which abundantly confirm this truth. We find in Zealand, in

Sweden, neer Upsal, and if I am not mistaken, in the county of Cornwal,

large stones, to the number of twelv, ranged in the form of a circle,

and in the midst of them, one of a superior height. Such in thoze rude

ages, waz the hall of audience; the stones that formed the

circumference, were the seets of the senators; that in the middle, the

throne of the king. The like monuments are found also in Persia, neer

Tauris. Travellers frequently meet there with large circles of hewn

stones; and the tradition of the country reports, that theze are the

places where the _caous_ or giants formerly held their councils.[87] I

think one may discover vestiges of this ancient custom, in the fable of

the _twelv peers_ of France, and in the establishment of twelv jurymen

in England, who are the _proper judges_, according to the ancient laws

of that country."

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

It iz certain that some outlines of this mode of deciding controversies

by _twelv_, may be seen in the customs of the Cimbri and Teutones, long

before the Christian era. But I cannot find that the idea of _equality_

ever entered into the original institution. On the other hand, every old

authority that I hav consulted confirms me in the opinion, that the

_twelv men_ were chosen from among the landholders or better classes of

peeple; that they were the _judges_ of the court, and that the

distinction between judges and jury, law and fact, iz a refinement or

improovment on the original constitution, and comparativly of modern

date.

It iz certain that a difference of rank existed among the Germans in the

time of Tacitus. "Reges ex nobilitate, duces ex virtute sumunt."[88] The

same writer expressly declares, that matters of inferior concern and

private justice came within the jurisdiction of their _princes_. "De

minoribus rebus principes consultant, de majoribus, omnes."[89] In

another passage, he is more explicit: "Principes jura per pagos vicosque

reddunt."[90] Cesar iz still more explicit: "Principes regionum atque

pagorum inter suos jus dicunt, controversiasque minuunt."[91] Theze

_principes regionum atque pagorum_, Blackstone says, we may fairly

constur to be lords of hundreds and manors;[92] they were originally

electiv, az we are informed by Tacitus, "eliguntur in conciliis

principis," and each had a hundred comites, or assistant judges, who

were chosen from among the peeple. "Centeni singulis, explebe comites,

concilium simul et auctoritas, adsunt."[93] Theze hundred assistants, or

companions, were chosen _ex plebe_; but when chosen formed the

_concilium principis_. The prince waz their president, chosen by

themselves, _eliguntur in conciliis principes_, and had _auctoritatem_,

authority or jurisdiction in the town or district.

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

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

[90] C. 12.

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

[92] Com. Vol. III. 35. This cannot be strictly true; for the

_principes_ were electiv; and therefore could not hav owned

the land (pagus) or exercised the office of judge in right of

their property. The kings, princes, and generals of the

ancient Germans were elected; some for their _nobility_, that

iz, the respectability of their families, arising from the

valor and merits of their ancestors; others, az their

_duces_, military commanders, were chosen for their

_virtues_, their personal bravery. This I take to be the

meening of that passage in Tacitus, "Reges ex nobilitate,

duces ex virtute sumunt."

"The _Comites ex plebe_," says Selden, chap. 18, "made one

rank of freemen superior to the rest in wisdom." The Saxon

nobles were called _adelingi_, or wel born; the freemen,

_frilingi_, or free born; the latter might be assistants in

the judicial department. The lower ranks were called _lazzi_

or slaves; and indolence iz so necessary a consequence of

bondage, that this word _lazzi_, or _lazy_, haz become

sinonimous with _indolent_, _sluggish_. This word iz a living

national satire upon every species of slavery. But the effect

of slavery iz not merely indolence; its natural tendency iz

to produce _dishonesty_; "almost every slave, being, says Dr.

Franklin, from the nature of hiz employment, a theef." Az a

striking proof of this, we may instance the change of meening

in the words _villain_ and _knave_, which at first denoted

_tenant_ and _plowman_, but during the oppressions of the

feudal system, come to signify, _a rogue_. _Vassal_ also

denoted originally, a _tenant_ or _feudatory_ of a superior

lord. It waz an honorable name, the barons being called the

kings _vassals_. But servitude iz to natural a consequence of

the tenure of lands under a proprietor, in see, that _vassal_

haz become sinonimous with slave.[c] The change of meening in

theze words iz a volum of instruction to princes and

legislators. Reduce men to bondage, and they hav no motiv but

feer to keep them industrious and honest, and of course, most

of them commence rogues and drones. Why hav not the tyrants

of Europe discovered this truth? Good laws, and an equal

distribution of the advantages and the rights of government,

would generally be an effectual substitute for the bayonet

and the gallows. Look thro Europe; wherever we see poverty

and oppression, there we find a nursery of villains. A

difference in the property, education and advantages,

originates the difference of character, between the nobleman

of nicest honor, and the culprits that swing at Tyburn.

[c] Blackstone, Vol. II. 52, says, "we now uze the

word _vassal_ opprobriously, az sinonimous to slave

or bondman, on _account of the prejudices we hav

justly conceived against the doctrins grafted on

the feudal system_." So good a man ought not to hav

uzed the word _prejudice_; and so great a man ought

to hav assigned a better reezon for this

_opprobriousness_ of the modern word _vassal_.

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

The idea of equality iz no where suggested; on the contrary; the

hundredors when chosen became a court or legislature in the district,

competent to the general purposes of government. No mention iz made of a

distinction between the legislativ and judicial departments; on the

other hand, we may safely conclude, from the passeges of Cesar and

Tacitus before quoted, that the powers of making laws and deciding

causes were vested in the same men. Cesar says, "nullus est in pace

communis magistratus," nor could the Germans, in their primitiv simple

mode of living, need such a magistrate. The princes _jus dicunt,

controversiasque minuunt_, distributed justice, by the assistance of

their _comites_, and according to the circumstances of the peeple.[94]

This at leest waz the case with respect to matters of small magnitude.

[94] The practice of choosing assistant judges in the Roman

commonwealth, waz something similar to our mode of

impannelling a jury. Theze assistants were sometimes a

hundred, and it iz not improbable, the Roman and German

customs of electing that number might be derived from the

same original.

The Prætor, (cheef justice) or princeps judicum appointed by him,

summoned a number of persons, who were called _judices selecti_, select

judges. Theze were to giv their verdict in criminal matters, like our

juries. On the day of trial, the first thing after opening the court,

waz the _sortitio judicum_, or impannelling of the jury, performed by

the _judex quæstionis_ or cheef judge on the trial, who took by lot such

a number of the _judices selecti_, or jurymen, az the law, on which the

accusation waz founded, had determined. Liberty waz given to the parties

to reject, (challenge) and the places of thoze rejected, were filled by

new appointments.--_Kennetts Antiq. of Rome_, 138.

The number of _comites principis_, or assistants, waz originally a

_hundred_. This gave name to the district which they governed, and which

afterwards consisted of any indefinit number, still retaining the

primitiv name. In later ages, the number of assistant judges waz

reduced; a grand jury still consists of twenty four; a petit jury

commonly consists of twelv, but on certain occasions, and by the custom

of particular places in England, may be composed of sixteen, eight or

six.[95]

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

Such waz the constitution of the ancient Germans, in which we may

discover the principles of the system which they every where

established, after their conquests in Gaul, Spain, Italy and Britain.

_Twelv_ waz a favorit number, not only with the Saxons, but with all the

nations of northern original. They had twelv principal deities; they

numbered the units up to _twelv_, instead of stopping at ten, like other

nations;[96] they had twelv judges to assist their kings or princes;

their hall for the election of their kings consisted of twelv huge

stones, placed in a circle. Hence we discover the origin of the twelv

senators of Sweden,[97] Denmark and Norway; the twelv counsellors of

state in ancient times; the fable, az it iz called, of the twelv peers

in France; the twelv judges in England, and the trial by twelv peers or

jurors, which waz formerly common to all the northern nations of

Europe.[98]

[96] Mallets North. Antiquities.

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

[98] These facts gave rise to Cokes quaint remarks, "that the

law delighteth herself in the number of twelv;" and he adds,

"the number of twelv iz much respected in holy writ; as 12

apostles, 12 stones, 12 tribes, &c." On juries, fol. 155.

On the Gothic establishments in the south and west of Europe, government

took a military complection. The kings parcelled out the conquered lands

among their generals, called _duces_ or _principes_, by the Latin

writers; and by the Saxons, _heretoga_. The generals of first rank

receeved or acquired whole provinces, az Burgundy, and the

principalities of Germany. Theze territories they distributed among

their inferior officers and _comites_ or retainers, of whom every lord

had great numbers about hiz person. Theze constituted a secondary, but

very numerous class of nobility; and altho there might be differences of

rank and property among them, they were called by one general

appellation. In England, they were called _thanes_, from a word

signifying _to serve_, because they held their lands by the condition of

military service. On the continent, they were called _barons_, that is

freemen, or tenants of land, upon condition of rendering certain

military and honorable service to their superior lord, who waz called

lord _paramount_.

Blackstone remarks, that "a baron's iz the most general and _universal_

title of nobility; for originally every one of the peers of superior

rank had also a barony annexed to hiz title."[99] The origin of this

title haz occasioned great enquiry among antiquaries; but the difficulty

vanishes upon my hypothesis, which derives the word from _bar_, a

landholder and freeman; for on the establishment of the feudal tenures,

all the lands were held by a few men; the proprietors were all called

_barons_, and this accounts for the _universality_ of the title just

mentioned. Thus the bishops, after they had obtained gifts of large

tracts of land or manors, resigned them to the conqueror, William;

accepted them again subject to the conditions of lay fees, claimed rank

with the nobility, and took their seets in the English house of lords.

Actual possession of a barony waz originally requisit to constitute a

lord of parliament; but the title iz now granted by the king without the

possession.

[99] Com. Vol. I. 398.

Blackstone mentions the difficulty of tracing the word _baron_ to its

primitiv sense; but confirms the foregoing explanation when he says,

"the most probable opinion iz that _barons_ were the same az our _lords

of manors_."[100] The name indeed waz not used in England (so far as can

be collected from English writers) till after the conquest. But it iz

certain that the feudal system, tho not in all its severity, waz

established in England before that period; and degrees of nobility were

cotemporary with the Saxon establishments in the island. The first class

were called in Saxon _heretoga_, that iz generals or military

commanders. But the most ancient and perhaps the most important civil

title waz that of _earles_ or _ealdormen_. Theze erls were called also

in Saxon _schiremen_, for they exercised supreme jurisdiction in the

_shires_. After the conquest they were called by the corresponding

Norman title _counts_, from _comites_, because they were the king's

companions in war; and their jurisdiction waz called a _county_.[101]

[100] Com. Vol. I. 399.

[101] I am by no meens certain that this derivation of

_counts_ from _comites_, iz just; it iz at leest az probable

az otherwise, that _contees_ may be a Gothic word. But this

iz conjecture.

Inferior to theze in rank were the Saxon _thanes_, who were so called

from the Saxon _thanian_ ministrare, because they were the _comites_ or

attendants of the ancient kings or earls. Theze were numerous, and after

the conquest called by the equivalent continental title, _barons_. Of

theze there were different ranks, _thani majores_ or _thani regis_, who

served the king in places of high importance, and took rank next to the

bishops and abbots. Theze had inferior thanes under them, called _thani

minores_, who were also _lords of manors_.[102] The word _peer_ I

suppose to be derived from the same root az _baron_, bar or par, and to

be equivalent in sense. It iz cleer to me that _landholder_, or man by

way of eminence, waz its original meening; and that it iz a proper name

of the ancient nobility, given them az proprietors of vast tracts of

land, and that it had no reference to _equality_ of rank.

[102] See Cowel on the word _thane_; and in Domesday,

"thanus, est tenens, qui est caput manerii."

But there are better proofs of this point than that drawn from this

supposed derivation. The true original signification of the word we hav

in the phrases, _house of peers_, _peers of the relm_, _peerage_. And

for this assertion we hav the best authorities in the language. Cowel,

from whom Johnson and most modern lawyers have borrowed their

definitions of law terms, after explaining the word _peer_ az denoting

jurors, says expressly, "but this word iz _most principally used for

thoze that be of the nobility of the relm and lords of the parliament_."

Here the author haz mentioned a well supported fact, and quotes ancient

authorities. But he immediately leevs fact, and runs into conjecture, az

to the reezon of this appellation, which he deduces from a preconceeved,

but probably erroneous, opinion. "The reezon whereof iz, that altho

there be a distinction of degrees in our nobility, yet in all public

actions they are equal; az in their votes of parliament, &c." Here the

author takes it for granted that the word _peer_ signifies _equal_, and

assigns, az a cause of its _most principal_ appropriation to the

nobility, that the men, tho of different ranks, hav an _equal vote_ in

parliament. This a curious reason indeed! A man must be more credulous

than I am, to beleev this slight circumstance would giv rise to such a

particular appropriation of a name. One would think that the same reezon

would hav given the name to the clergy in convocation and other

ecclesiastical courts. Yet the learned and candid Blackstone haz copied

the same reezon. "The commonalty, like the nobility, are divided into

several degrees; and, az the lords, tho different in rank, yet all them

are _peers_ in respect of their nobility; so the commoners, tho some are

greatly superior to others, yet all are in law _peers_, in respect of

their _want_ of _nobility_."[103] This appeers very extraordinary, that

an _equality of suffrage_ should giv an appellation in preference to

_difference of rank_, which iz, so much more obvious and more flattering

to the haughty barons. But if the commoners are _peers_ or _equals in

suffrage_ az well az the lords; that iz, on the _same principle_; or as

Blackstone states it, if the _lords_ are _peers_ because they are

_noble_, and the commoners are _peers_, because they are _not noble_,

why hav not the commoners the same appellations of _peers of the relm_?

The lords are not _equally_ noble, by Blackstone's own statement, for

they are of very different ranks; and the commons are not equally

_ignoble_, (this word iz used merely for contrast) for they are of

different ranks: Yet the vote of one commoner iz az good in the house of

commons, az that of another; and the vote of one lord, in the other

house, iz az good az that of another. If the _equality of suffrage_ iz a

proper ground for the title of _peers_ in one house, the reezon extends

to the other. Yet commoners are not _peers of the relm_; and until a

good reezon can be assigned for the distinction of titles between the

houses, I shall beleev that the word _peer_ had originally no reference

to _equality_.[104]

[103] Com. Vol. I. 403. "But the same author, in page 399,

says, the right of _peerage_ seems to hav been originally

territorial, that iz, annexed to lands, manors, &c. the

proprietors of which were, in right of thoze estates, allowed

to be _peers of the relm_;" that iz, in plain English,

certain men, in right of their estates, were allowed to be

_equals_ of the relm. This will not pass for reezon and truth

on this side of the Atlantic.

[104] Horne, in hiz Mirror of Justices, chap. I. sect. 2.

says, "altho the king ought not to hav any _peer_ (that iz,

_equal_) in the land, yet because he cannot be a judge in a

case where he iz a party, it waz behovefull by the law that

he should hav _companions_ to heer and determin of all writs

and plaints of all wrongs, &c. Theze companions are now

called _countees_, _earles_, according to the Latin

_comites_, &c." This iz singular! The king ought to hav no

_equal_; therefore he ought to hav _companions_ for judges;

or, in plainer words, if possible, the king ought not to hav

_equals_ in the kingdom, therefore he should hav _peers_ to

heer and determin criminal causes. Common sense at leest, if

not etymology, will say, "the king ought not to hav _equals_,

but he must hav _judges_."

But say the English lawyers and antiquaries, "the bishops are not in

strictness held to be _peers of the relm_, but only _lords of

parliament_."[105] Why not? What is the distinction? Here our authors

leev us in the dark; but perhaps the foregoing clu will leed us to the

light. Bishops were not the original proprietors of baronies; they were

not _bars_ or _pars_, the hereditary lords of manors, consequently not

_peers of the relm_. This iz such an obvious solution of the question,

that I am surprized it should hav been overlooked. Under the papal

hierarchy, the clergy gained vast influence over the minds of men, and

by a variety of expedients, became possessed of large estates, and some

of them, of ancient baronies. But their acquisitions were comparativly

of modern date, and many of them usurpations, altho in consequence of

their estates they obtained a seet in the house of lords. They are

therefore _lords of parliament_; but the ancient peers, priding

themselves upon the antiquity of their families, and claiming certain

prescriptiv rights, would not admit the clergy to an equal share of

authority and honor; for to this day, a vote of the temporal lords iz

good against every vote of the clergy.[106]

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

[106] It iz now held that _e converso_, a vote of the

spiritual lords, if a majority, iz good against all the

temporal lords; but Coke douts it. Supposing this to be

admitted, the privilege is modern, and makes nothing against

my supposition.

"The appellation _peer_," says Cowel, "seems to be borrowed from France,

and from thoze _twelv peers_ that Charlemagne instituted in that

kingdom." The same word waz used by other nations. Theze twelv peers

constituted a great council or supreme court, and the members were all

_barons_, or of the nobility.[107] Can the word, applied to the members

of this council, signify _equal_? By no meens. Here we trace the word

to a remote period of antiquity, and find it used by the emperor of

Germany; or at leest an appellation given to one of the first councils

in hiz dominions. This iz the pure primitiv sense of the word _peers_,

_barons_, that iz, in the full latitude of its signification, all the

ancient nobility; who held lands of him ether immediately or mediately;

who formed hiz supreme judicial court, and in some countries, hiz

legislativ assembly; who were hereditary councillors of the crown; and

cheef _judges_ of all causes arising on their own manors, except such az

were of great consequence.

[107] It haz been remarked that _baron_ iz the most general

title of nobility; indeed every nobleman waz originally a

_baron_. Coke. I. 74. The lords of manors, both in England

and on the continent, were the suitors in the king's court,

and called _pares curtis_ or _curiæ_. The lords tenants were

called the _peers_ of hiz court baron. See Blackstone, Vol.

I. ch. 4.

This explanation accounts for what Selden has remarked, chap. 65, that

"the barons of England, before the reign of Edward I, were rather the

_great_ and _richer sort_ of men, than _peers_, altho they were of the

number." That iz, the Saxon thanes, who were great landholders, but

inferior to the erls, had, after the conquest, receeved the appellation

of _barons_ from the continent; but, being a secondary class of

nobility, had not claimed or acquired the power and privileges of the

German and French princes and nobles who had the title of _peers_, until

the Norman kings had introduced, into the kingdom, the oppressiv and

invidious distinctions of the feudal tenures, in the full extent of the

system.

It will be enquired, if this iz the sense of the word, how came juries

of common freeholders to be called _peers_? The answer iz eesy; the

jurors were the _judges_ of the inferior courts, and not merely the

equals of the parties, az iz commonly supposed. The _erl_ or _baron_, in

strictness; but more commonly, the vice-comes, sheriff or lords deputy,

waz the president or cheef justice, and the jurors, the _assistant

judges_. For this opinion, numberless authorities may be produced. The

barons were the assistant judges, _peers_, in the court of the lord

paramount or king, and thus became judges by prescription; so the word

_peer_ or _baron_, in time, became equivalent to _judge_. Az the nobles

were judges in the kings court, and decided on appeels in the last

resort, so the freeholders who constituted the court in the county,

hundred or manor, came to be denominated _peers_, that iz, _judges_.

Reeve, in hiz history of the English Law, remarks, that "the

administration of justice in the days of William the conqueror, waz so

commonly attendant on the rank and character of a baron, that _baro_ and

_justiciarius_ were often used _synonimously_." Blackstone says, "it iz

probable the barons were the same az our lords of manors, to which the

name of court baron (which iz the lords court, and incident to every

manor) givs some countenance." Vol. I. 398. It iz surprizing, theze

writers should approach so neer the tru original and meening of the

word, _baron_, and not reech it.

Most writers on the ancient state of government in Europe, hav remarked

that the nobility held the office of judges. "Les mesmes comtes," says

Mezeray, "et ducs, qui jugeoint les François, les menoient a la guerre."

tom. I. p. 118. The counts and dukes were both judges and generals.

"Duo--comitum munera fure; unum videlicet justitiæ populis ministrandæ,

alterum militiæ sibi subjectæ, quando in bellum eundum erat, educendæ

atque regendæ." Muratori. Antiq. Ital. tom. I. p. 399. The counts had

two offices or departments of business; the administration of justice,

and command of the troops in war.

Stuart, in hiz English Constitution, remarks, "that the erls presided in

the courts of law. Their jurisdiction extended over their feefs: In all

causes, civil and criminal, they judged without appeel, except in cases

of the utmost consequence." Part 3. Sect. 3.

I presume it iz needless to multiply authorities. The strongest argument

in favor of my opinions iz drawn from the supreme judiciary powers of

the house of lords in England. The lords are _peers_ of the relm; that

iz, the ancient prescriptiv judges or barons, who claim the privilege by

hereditary right or immemorial usuage. The _house of peers_, iz

literally and in fact, _a house of judges_; an assembly of all the

ancient judges in the kingdom. So Selden relates of the Saxons, whom he

supposes to be descended from the same original az the Greeks, and long

prior to the ages of Roman glory; "their country they divided into

counties or circuits, all under the government of _twelv lords_, like

the Athenian territory under the Archontes. Theze, with the other

_princes_, had the _judicial power of distributiv justice_ committed to

them, with a hundred commoners out of each division." Tit. Saxons. The

same writer declares, chap. 58, that the nobles "were in their most

ordinary work, _meetings of judges_, or _courts of judicature_; that the

king and hiz barons made many laws and constitutions which hav obtained

the name of statutes," (which he supposes may hav been equitable

decisions of new causes, which afterwards had the force of laws) "that

the judges of this supreme court are the _baronage_ of England; and that

the house of lords still retain their supreme judiciary powers by

ancient prescriptiv right."

In addition to this authority, I would remark that the modern supreme

judiciary of Scotland iz copied almost exactly from the ancient Saxon

trial by laghmen or thanes. The lords of session, or president and

fourteen judges, are a court of law and fact, without a jury; and this

iz exactly the _old_ trial by _peers_.

The parliaments in France are justly said by lord Coke, to be _ordinary

courts of justice_; another striking evidence of what I hav advanced.

The word _parliament_ came from France, where it denotes that assembly

of barons, which constitutes the supreme _court of justice_ in each of

the several provinces. This iz the original import of the word, and the

parliaments in France still retain that signification. This name waz

introduced into England, under the Norman princes, and superseded the

Saxon name of the national assembly, _witena-gemote_. Indeed, during the

depression of the peeple, under the first princes of the Norman line,

when the military tenures were established with rigor, national

assemblies were called but seldom, and when summoned, consisted

principally of the bishops and peers (barons) of the relm. They however

acquired the name of _parliament_, and retain it to this day; altho one

branch of that body iz composed of commoners. The tru meening of

_parliament_ iz a _meeting_ of _barons_ or _peers_, and their principal

business waz to decide controversies: They had original jurisdiction

over causes in which the nobles were parties, az men of rank would not

seek redress before an inferior tribunal; and they had an appellate

jurisdiction over other causes in the last resort. The parliament of

England iz a legislativ body; but the _house of lords_ retains the

primitiv privilege of finally deciding controversies. This branch of the

legislature alone answers to the _parliaments_ in France, which approach

neer the ancient institution.[108]

[108] The Norman princes might well call their councils

_parliaments_, _meetings of barons_; for they often summoned

none but the barons and clergy, and sometimes but a few of

the barons. Henry the third, once summoned but twenty five

barons of two hundred and fifty, then in the kingdom, and one

hundred and fifty of the clergy. Yet this meeting waz a

_parliament_. Selden, chap. 67.

So in England, the house of lords, and even the temporal lords alone,

were called formerly a _parliament_. Blackstone, b. IV, c. 19, upon the

authority of ancient books and records, repeetedly denominates the house

of peers, when acting az a court of supreme judicature, a _parliament_,

a _full parliament_; and the spiritual lords are not permitted to giv

any vote upon _gilty_ or _not gilty_, for they are not ancient _peers_

(that iz, barons, prescriptiv judges) of the relm. It haz been douted

whether the spiritual lords had a right to sit in the house on the trial

of a peer; but by a determination of the lords in the erl of Danby's

case, 1679, they were permitted "to stay and sit in court in capital

cases, till the court proceeds to the vote of gilty or not gilty." Still

they form no part of the court; the temporal lords constituting a _full

parliament_, that iz, az I hav explained the tru primitiv meening of the

word, _a meeting of barons or judges_.[109]

[109] Thoze who wish to see a more particular account of the

extensiv judicial powers of the barons in Europe, may consult

Robertson's Charles V. Vol. I. page 49, and note [Z] page

250, where the authorities are referred to.

I would just add on this head, that the institution of _twelv judges_ in

England, iz copied from the ancient mode of trial in Germany. The old

_Curia Regis_ consisted of the king, hiz grand justiciary, the officers

of hiz palace and _his barons_. This court followed the kings person

wherever he went. Out of this were formed the several courts now

established at Westminster. But the title of _barons of the exchequer_

and _barons_ of the cinque ports, who are judges, furnishes an

additional argument in favor of my opinions.

The foregoing explanation of the words, _baron_ and _peer_, leeds to a

probable account of the _trial by peers_. It can be prooved that the

jurors were the _judges_ of the county, hundred and manor courts, and

the probability iz that the suitors in theze courts receeved the

appellation of _peers_, from the circumstance of their being

landholders. Several authorities seem at leest to favor this opinion.

"Concerning the institution of this court by the laws and ordinances of

ancient kings, and especially of Alfred, it appeereth that the first

kings of this relm had all the lands of England in demesne, and les

grand manors et royalties, they reserved to themselves; and of the

remnant, they, for the defence of the relm, enscoffed the barons of the

relm, with such jurisdiction az the court baron now hath, and instituted

the freeholders to be _judges of the court baron_."[110]

[110] Coke Litt. 74. That the freeholders were judges iz tru;

but that the barons and freeholders derived their authority

from kings, iz wholly a mistake.

"The manor courts are of two sorts. The first iz by the common law, and

iz called the court baron, az some hav said, for that it iz the

freeholders or freemens court, (for _barons_ in one sense signifie

_freemen_) and of that court the _freeholders_, being suitors, be

_judges_. The second iz the copyholders court, which iz called a court

baron, because among the laws of king Edward the confessor, it iz said:

"Barones vero qui suam habent curiam de suis hominibus," taking the name

of the baron who waz lord of the manor, or for that properly in the eye

of the law, it hath relation to the _freeholders who are judges of this

court_. And in ancient charters and records, the _barons_ of London and

the cinque ports do signify the _freemen_ of London and the cinque

ports."[111] Theze passages are express to my purpose. Indeed it must

hav been that the freeholders, now called _jurors_, were judges; for the

lord of the manor waz cheef judge or president merely, and we heer

nothing, at this erly period of Saxon jurisprudence, of a distinction

between law and fact.

[111] 1. Coke Litt. 73.

Horne, in the Mirror of Justices, asserts[112] "that by the

constitutions of Alfred, the free tenants in every county, hundred and

manor, were to meet together and _judge their nabors_." "Every free

tenant hath ordinary jurisdiction in theze courts." "The lords and

tenants shall incur certain penalties by the _judgement of the

suitors_." "Theze courts are called county courts, where the _judgement

iz by the suitors_, if there be no writ, and iz by warrant of ordinary

jurisdiction." That iz, when there waz no special court held by the

justices in eyre.[113] So also in a book called the "Diversity of

Courts," written in Henry the eighth's time, it iz said, "in the court

baron the _suitors are the judges_, and _not_ the _steward_."

[112] Cap. I. Sect. III.

[113] He must speak of the state of things after the

conquest, otherwise _justices in eyre_ would not hav been

mentioned.

Cowel tels us, "the court baron iz more properly _curia baronum_, i. e.

the court of _freeholders_, (for so barones does also signify) over whom

the lord of the manor presides. In this court the _freeholders are

judges_."[114]

[114] Law Dict. _Court baron._

Selden's authority confirms this fact. He says, "neether waz the bishops

nor sheriffs work, in the folk-mote or county court, other than

directory or declaratory; for the _freemen_ were judges of the fact, and

the other did but _edocere jura populo_."[115] Here a distinction iz

cleerly made beetween the _freemen_ and the _populus_; the freemen were

the judges, and the bishop or sheriff edocuit jura, proclaimed the

decision to the multitude. The freemen, or landholders, then were the

_peers_ of the court; they were not the _equals_ of the multitude, for

the _populus_, the laborers of all descriptions, were considered az

belonging to an inferior class of men, and had no voice in the

folk-mote.

[115] Bacon's Selden chap. 24.

To sum up the whole, we hav the authority of the correct and judicious

Blackstone, who expressly asserts, book III. chapters IV and V, that in

the court baron, the hundred court and county court, the freeholders or

suitors are _the judges_, and the steward in the two former, and the

sheriff in the latter, are _the registrars or ministerial officers_. Now

it iz well known that before the conquest, theze included _all the

courts_ that were in the kingdom, except the _witena-gemote_, in which

there waz nothing like a jury, separate from the members of that

council. So that the freeholders or jurors were not only _judges_, but

they were the _sole judges_ in all the inferior courts in the kingdom;

and of course there could be little or no distinction between _law_ and

_fact_. Nay, more, the suitors were the _witnesses_ also; and the

principal reezon for summoning _freeholders of the vicinage_ waz

originally this; it waz supposed they were acquainted with the facts in

dispute. Hence laws were made to compel the jurors to _tell the truth,

if they knew the facts_, which waz always supposed, till the contrary

appeered. In theze courts small causes were decided; and the county

court had cognizance of ecclesiastical causes, az well az civil, and

often determined disputes between the nobles, about real estates of

immense value.

But important matters were generally brought before the _witena-gemote_,

or assembly composed of the king, bishops, erls and wise men. This waz a

national council, which united in itself all powers, legislativ,

judicial, civil and ecclesiastical, in law and equity. Such a thing az a

jury waz never known in this supreme court. William the conqueror first

separated the civil from the ecclesiastical authority, and substituted

the _aula regiæ_, a high court, consisting of hiz cheef officers and

barons, in place of the Saxon _witena-gemote_. This court waz the

supreme judicature in the nation; a jury waz no part of it, and it

followed the king wherever he went, till it waz fixed by Magna Charta in

Westminster Hall. Afterwards, in the reigns of Henry III and Edward I,

several courts were carved out of the _Aula Regis_; az the common pleas,

the court of kings bench, the exchequer and chancery courts; and it does

not appeer that a jury, distinct from the judges, formed any part of the

important common law courts, till after this period. The distinction

therefore between judges and jury, law and fact, seems not to hav been

known, till the dissolution of the _Aula Regis_, at the cloze of the

thirteenth century.

Let us enquire what kind of men theze freeholders were, who were

summoned az jurors or judges at theze courts.

Lord Coke iz express, and quotes Glanvil and Bracton for authorities,

that "in ancient times the jurors were _twelv knights_," (that iz,

probably, persons holding land amounting to a knights see.)[116]

[116] Some say this see waz eight hundred akers of land;

others, six hundred and eighty, or 20l. a year, which,

considering the difference in the value of money, waz equal

perhaps to 300l. or 400l. at the present time. Here seems to

be a confusion of ancient and modern ideas. The ancient

knights see waz a certain tract of land; in later times that

see was valued at 20l. in money.

Henry III issued writs to the several counties to enquire into the

liberties of hiz subjects, by _twelv good and lawful knights_.[117] The

Saxon laws are more explicit. "Habeantur placita in singulis

wapentachiis, ut exeantur _duodecem thayni_ et præpositus cum eis, et

jurent super sanetuarium, quod eis dabitur in manu, quod neminem

innocentem velint accusare, vel noxium concelare."[118] Here the law of

Ethelred iz explicit in ordaining a court of twelve _thayni_, thanes or

barons, with their præpositus or president, who waz the officer of the

hundred. Cowel remarks on this passage, "that this may seem to intend

the number of _judges_, and not of the _jury_; but the jury themselves,

in some cases, are judges, that iz, they are _judges_ of the _fact_, and

the judge iz bound to giv sentence according to their verdict." This

writer here supposes the _thayni_ to be really _jurors_ and _judges_;

but _judges_ only of the _fact_. This iz _the fundamental error_ of most

lawyers who hav written on the subject; they take it for granted, that

the distinction of _law_ and _fact_ waz coeval with the trial by twelv

freeholders. Yet a single circumstance, mentioned by Cowel in the same

page, with the passage quoted, might hav undeceeved him, which iz, that

"trial by jury waz anciently called _duodecem virale judicium_," the

_judgement_ of twelv men. Their sentence or decision waz called a

_judgement_; the distinction between the _verdict_ of a jury, and the

_judgement_ of the court, waz unknown in the erly ages of the Saxons;

nor can I find it mentioned, till after the conquest.

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

[118] L L Ethel. c. 4.

This, and similar passages, hav however occasioned much dispute among

other English lawyers and antiquaries. They hav adopted the opinion,

that a jury must consist of twelv equal commoners, and cannot explain

what iz ment by summoning _twelv thanes_. "Brady and Hicks," says

Stuart, "contended that theze thanes were _not jurors_, but _judges_ or

_lawyers_. Coke and Spelman were of a different opinion." The truth iz,

they were both _jurors_ and _judges_; and a knowlege of the tru primitiv

sense of one little monosyllable in our language, would hav unravelled

the whole mystery to theze learned enquirers.

The most usual word for jurors, in the Saxon laws, iz _lahmen_ or

_lagemen_; a word that haz puzzled the law writers, az it seems to meen

something more than _equals_; and they hav no idea of any thing in a

jury, but _equality_. Hicks supposed them to be judges, "duodeni jure

consulti," men versed in law. Spelman rendered the word, _legales

homines_, good and lawful men; very inadequate words indeed; but the

error haz been copied times without number, and still prevails. _Lahman_

iz literally a _law man_, man of the law, a judge. Law waz in a rude

state, at that period; but the thanes were both _lawyers_ and _judges_;

_jure consulti_.[119] Professional distinctions could not be but little

known, amidst an unlettered peeple, who had few positiv laws, and fewer

records and precedents; and the _lahmen_, the _seniores thani_, or

_meliores viri_, az they were called, were summoned at certain times to

decide controversies, according to law, where a law waz provided;

otherwise according to their discretion. The decisions of theze _lahmen_

were held in esteem; many of them were preserved and handed down by

tradition, and I hav no dout, theze, rather than statutes, gave rise to

the general and particular customs, which are called the common law of

England.[120]

[119] We find by ancient records, that the clergy, before the

conquest, were sometimes summoned az jurors or judges in the

temporal courts.[d] But the _thanes_ were the most usual

judges in the courts baron. The proper Saxon name of this

court waz _halimate_ or _halmote, hallmeeting_; "Omnis causa

terminetur vel hundredo, vel comitatu, vel _halimote_, socam

habentiam, vel dominorum curia."[e] And in W. Thorn, Anno

1176, the judges of this court are expressly said to be

thanes, "_thanenses, qui_ in _Halimoto_ suo, in Thaneto,

omnia sua judicia exerceri," (debent.) Selden, chap. 47,

mentions a law of Henry I, which recites a custom of that

time, by which "the _bishops_ and _erls_, with _other the

cheef men_ of the county, were present in the county court az

assistants in directory of judgement." Nothing can be more

explicit. And altho Selden, in a passage hereafter quoted,

mentions a compromise between Gunthrune, the Dane, and the

Saxon king, that men of a rank inferior to lords should be

tried by their _equals_, yet this inferior rank could extend

only to _freemen_; for others were never admitted upon

juries.

[d] See Selden, tit Sax. bishops.

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

[120] "And the sheriffs and bailiffs caused the free tenants

of their bailiwicks to meet at the counties and hundreds, at

which justice waz so done, that every one so judged hiz nabor

by such judgement az a man could not elsewhere receev in the

like cases, until such times az the customs of the relm were

put in writing, and certainly established."---- Mirror. chap

1. sect. 3.

Coke defines _lahman_ to be one, "habens socam et sacam super homines

suos;" that iz, liberty of holding a court over hiz tenants: Which

explanation he quotes from Bracton. "Soke,(or soc) significat libertatem

curiæ tenentium quam _socam_ appellamus."[121]

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

This word iz found in domesday and in the laws of Edward the confessor.

Cowel quotes a passage from an ancient book, where Ulvet, the Son of

Forno, iz called _lagaman_ of the city of York, where, he says, it

doutless signified some cheef officer, az judge or recorder. Thoze who

had _socam_ et _sacam_, or jurisdiction over the persons and estates of

their tenants, were the _thanes_ or barons; and this iz agreed by

Lambard, Somner, Coke, Cowel, and most writers on law.[122] Lambard,

whoze authority iz very respectable, speeks of a jury thus: "In singulis

Centuriis comitia sunto, atque liberæ conditionis viri duodeni ætate

superiores unà cum præposito, sacra tenentes juranto, &c." Of a jury

_per medietatem linguæ_, he says, "Viri duodeni _jure consulti_, Angliæ

sex, Walliæ totidem, Anglis et Wallis jus dicunto." Fol. 91. 3. Here

Lambard not only describes jurors az men of _free condition_ and

respectable for age, but az _jure consulti_, the _judges_ of the court;

and _jus dicunto_; they were men who administered law and justice. This,

it appeers from all ancient testimonies, waz the uniform practice among

the Saxons. The jurors were twelv _thanes_ or men of free condition;

_lahmen_, _jure consulti_, or judges, and constituted the _court_; with

the præpositus, or proper officer of the district, az their president,

who sat az the deputy of the erl, in the county court; the deputy of the

lord of the manor, in the court baron; or az the cheef magistrate of the

hundred. And one source of error in understanding this ancient

institution, haz been the wrong translation of _lahman_, by Spelman and

others, who rendered the word, _legalis homo_; a good and lawful man.

The meening iz not so indefinit az a _lawful man_, which could not be

redily understood or explained. Rude nations do not deal in such vague

ideas. The meening iz, _man of law_, whoze business it waz to know the

law and administer justice.[123]

[122] _Laghman_, to this day, iz the name of a judge or

magistrate, both in Sweden and Iceland. In theze countries it

retains its primitiv and tru English meening.--Mallets North.

Antiq. Vol. I.

[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.