A Collection of Essays and Fugitiv Writings

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.

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

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.

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.

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's80 ecclesiastical authority.

The jurisdiction of a bishop lost the name of parish, parochia, at a very erly period; but stil the subordinate divisions of the ecclesiastical state continued to be regulated by prior civil divisions. For this assertion, we hav an indisputable authority, which confirms my opinion respecting the origin of parishes. "It seems pretty clear and certain," says the learned and elegant Blackstone, Com. vol. I, 114, "that the boundaries 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."

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.

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

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.

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

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."

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.

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.

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

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

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.