A Collection of Essays and Fugitiv Writings

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.

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

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.

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

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

"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.

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

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

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

"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.

Horne, in the Mirror of Justices, asserts112 "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."

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

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.

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

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.