A Collection of Essays and Fugitiv Writings

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

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

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

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

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.

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.

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 state127 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.

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 exercitals129 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 mancae131 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."

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 cheeftans132 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.

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 best134 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."

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.