A Collection of Essays and Fugitiv Writings

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 men136 ; 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

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."

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.

POSTSCRIPT

On further examination of this subject, I am led to subjoin the following remarks, which are supported by the indisputable authority of Glanville and Bracton.

I hav before suggested that the Saxons, prior to the conquest, conducted most of their important affairs in the county or sheriffs court, where all the free tenants were bound to attend. Theze free tenants consisted of the lesser barons, the knights and fokemen, or foccage tenants who had freehold estates. Theze freeholders, were, by the nature of their estates, the pares curtis; they were the proper and sole judges of all causes triable at the county court, which included almost all civil actions, and they were denominated in Saxon, lahmen, lawmen. The county court, thus composed of all the freeholders in the shire, waz a tribunal of great consequence, and inferior only to the witena-gemote, or national assembly. The Latin riters called theze freemen pares curtis and sectatores, peers of court and suitors. Curtis iz a Saxon word latinized,140 like warrantizo murdrum, and hundreds of other law terms; and there iz little dout that pares iz a word of similar origin.

But what places the point I would establish, beyond controversy, iz, the pares curtis were in fact of different ranks. The knights or lesser barons, az well az the common foccage tenants, were included in the term pares curtis; for they were bound to do suit and service in the court of the lord paramount. Another fact, iz of equal weight in the argument: Theze pares, in the county court, tried all real actions between the nobility. In the cause of Odo, Bishop of Bayeux, and archbishop Lanfranc, in the reign of William the conqueror, the king directed totum Comitatum considere. Many similar instances might be cited, were it necessary. Theze noblemen were tried by the pares curtis, the peers of the county court; but who ever said they were tried by their equals?

The Norman princes attempted to discountenance theze shire motes of the Saxons, and substitute the trial of facts by twelv juratores, men sworn to speek the truth. In the reign of Henry II, the trial by jurors had become common, if not general. Questions of seisin were tried by twelv common freeholders; but questions of right were tried by twelv knights; the sheriff summoning four knights who elected the twelv.

I would here remark that the principal original reezon for summoning freeholders of the vicinage, waz that of their supposed personal knowlege of the fact in dispute. The jurors were properly the witnesses. This iz evident from circumstances and from the positiv testimony of the erly law-riters. The first mention of a proper jury, in any public act, iz in the constitutions of Clarendon, 1164, where the sheriff iz directed, quòd faciat jurare duodecim legales homines de vicineto, seu de villa, quòd inde veritatem secundum conscientiam suam manifestabunt. It iz said in old writers that the jury must speek the truth, if they know it. If the twelv men first summoned knew the truth, they were compelled to declare it, under the penalty of perjury. If some knew the facts and others did not, the latter were dismissed and others summoned, till twelv were found who knew the facts, ether by what they had seen and heerd themselves, or from such testimony of their fathers and others, az gained full credit.

Without attending to juries in this light, the laws respecting them appeer beyond measure absurd and tyrannical. Their being sworn to speek the truth, would be absurd on any other ground; for had they judged of facts on testimony, they would hav been sworn to declare their opinion, and not the truth. Their verdict, vere dictum, derives its name and propriety from the same circumstance; and the present practice of swearing them to "a tru verdict giv," when they judge of facts only by the perhaps contradictory testimony of several witnesses, iz, strictly speeking, absurd.

The keeping juries, without meet, drink or fire, can be accounted for only on the same idea; it waz a method to compel an agreement among men, who were acquainted with facts, some of whom might at times be obstinate, and not willing to disclose them. But how ridiculous would it be to punish men for not agreeing in opinion, about what others testified!

All this iz still more evident from the manner in which many questions respecting real estates were ascertained and determined. It waz customary for the jurors, after they were chosen, to go upon the land to find the tru state of the fact in question, and then deliver their verdict. Hence the propriety of the expression in closing issues; and this he prays may be enquired of by the country.

I would observe further, that the reezon, why appeels from the verdict of a jury were not allowed, iz simply this, that the jurors were supposed to hav decided from their own knowlege. It waz certainly a wise provision that the solemn declaration of men under oath, living in the naborhood, and eye or eer witnesses of the recent transactions between the parties, should not be overthrown by other testimony; for all other evidence must hav necessarily been of an inferior nature. But the reezon haz ceesed, and there iz now nothing more sacred in the verdict of a jury, given on the testimony of others, than there iz in the opinions of arbitrators, referees or auditors under oath. The laws respecting juries are all founded on the idea that the men were acquainted with the facts in dispute. Their verdict waz formerly a declaration of facts; it iz now a mere matter of opinion. In short, the original design of the institution iz totally changed, and mostly superseded. Since juries rely on testimony, they need not be collected from the vicinage; it iz even safer to hav men who are strangers to both plaintiff and defendant. Jurors cannot be punished for perjury, for how can a man perjure himself in giving hiz opinion? They cannot be starved to deth, nor carted about town for disagreement; for how iz it possible for twelv men always to think alike, when they hav to form their opinions on clashing testimonies? In short, juries do not now answer one of the purposes for which they were at first instituted; and however necessary they may be deemed to the preservation of civil liberty, it appeers to me they are, in a great measure, useless.

I cannot leev this subject without remarking the influence of habit, in maintaining forms, when the substance no longer exists. This iz neerly the case with the whole institution of juries; but particularly in the manner of administering the oath to them. The practice of swearing the foreman and the other jurors separately, still exists in some of theze states, altho the reezon no longer remains. It originated in the manner of delivering the verdict, which waz, for every juror separately to answer the interrogatories of the judge. While this practice remained, it waz very proper that eech juror should take a separate oath; altho this formality iz dispensed with, in administering the oath to witnesses, in modern courts; the words, "you and eech of you swear," being substituted for a separate administration of the oath.

No. XXIV

 HARTFORD, SEPTEMBER, 1789.

The INJUSTICE, ABSURDITY, and BAD POLICY of LAWS against USURY

Usury, in the primitiv sense of the word, signifies any compensation given for the use of money; but in modern legal acceptation, it iz the taking an exorbitant sum for the use of money; or a sum beyond what iz permitted by law. The municipal laws of different states and kingdoms hav fixed different rates of interest; so that what iz usury in one country or state, iz legal interest in another. The propriety of such laws iz here called in question.

1. It iz presumed that such laws are unjust. Money iz a species of commercial property, in which a man haz az complete ownership, az in any other chattel interest. He haz therefore the same natural right to exercise every act of ownership upon money, az upon any other personal estate; and it iz contended, he ought to hav the same civil and political right. He ought to hav the same right to trade with money az with goods; to sell, to loan and exchange it to any advantage whatever, provided there iz no fraud in the business, and the minds of the parties meet in the contracts. The legislature haz no right to interfere with private contracts, and say that a man shall make no more than a certain profit per cent. on the sale of hiz goods, or limit the rent of hiz house to the annual sum of forty pounds. This position iz admitted for self evident, az it respects every thing but money; and it must extend to money also, unless it can be proved that the privilege of using money in trade or otherwise without restraint, and making what profit a man iz able by fair contract, with gold and silver, az well az with houses and lands, will produce some great public inconvenience, which will warrant the state in laying the use of such gold and silver under certain restrictions.141

The only reezon commonly given for limiting the interest of money by law, iz, that monied men will otherwise take advantage of the distresses of the poor and needy, to extort from them exorbitant interest. Admit the proposition in its utmost latitude, and it furnishes no argument in favor of the restraint, because the restraint iz no remedy for the evil. On the other hand, it generally increases the evil; for when the law forbids a man to take more than six per cent. for the use of hiz money, it, at the same time, leevs him the right of withholding hiz money from hiz distressed nabor, and actually lays before him the strongest motivs for withholding it. The law tuches the pride of a man, by restraining what he deems an unalienable right, and this consideration, added to a certainty of employing hiz money to greater advantage, impels the man to turn a deef eer to hiz nabors calamities, when he would be otherwise disposed to afford relief. The law therefore, so far from furnishing a remedy, actually doubles the evil.

To proov this assertion more cleerly, let me call the attention of my reeders to facts within their knowlege. Every man knows that there are persons in every state, who, thro imprudence, idleness or misfortune, become involved, and unable to pay their dets when du. Theze persons seldom make provision for discharging their dets, till they are pressed by their creditors. When they are urged by just demands or legal process, they are under a necessity of raising money immediately: But money iz scarce; it iz in a few men's hands, who will not pay the full valu of lands or personal estate. The poor detor iz then obliged to sell hiz farm or hiz cattle, or both, at private sale or at auction, for any price they will fetch, which iz commonly but a small part of the valu. Now, if the detor could hav borrowed a sum of money, at ten, fifteen, or even twenty per cent. he might hav been a gainer by the loan; for by being prohibited by law from borrowing money, at a high interest, he haz been obliged to sacrifice twenty, perhaps fifty or a hundred per cent. Laws against usury do not help such men; on the contrary they oppress them. Could such men get money even at twenty per cent. they would often be benefited by the loan; they might save their estates and avoid misery and ruin. A prohibition of high interest only compels the distressed to seek releef by sacrificing property in a way not guarded against by law. Nay, I beg leev to assert that such laws are the very meens of producing, supporting and enriching a host of oppressors in every state in America. There are a few men, in every state, who are what iz called beforehand; theze men will not loan money at legal interest, for this very good reezon, they can do better with it, az they say; and no man can blame another for making the most profitable use of hiz money. Theze men therefore keep their money, till their distressed nabor iz forced by det to sell hiz farm; then iz the time to lay out their money; they get the farm at their own price, which iz generally less than half its valu. In most states, lands are sold at auction, where they are sacrificed; and the poor owner haz all the charges of a legal suit to pay, az wel az the det; and the land sold for a small part of its valu. This iz the common practice, authorized by law; so that laws against usury only create an evil in one way, by endevoring to prevent it in another.

The evil and hardships of this law, of selling real estate on execution, hav been so great, az to giv rise to a different mode of satisfying executions in Connecticut. In this state, a man's person and estate are both liable for det; but if the personal estate iz insufficient, the creditor haz hiz election, ether to confine the dettor in prison, or take hiz lands. But the law, which iz so far in favor of the creditor, here steps in to prevent a sacrifice of the real property at public sale; and ordains that the creditor shall take it at a value, which shall be apprized by three indifferent freeholders. This law does injustice to the creditor; for it interferes with the contract, and obliges him to take that for pay which he did not engage to receev. But it favors the dettor, in a state where money iz scarce and cannot be eezily raized on an emergency. So far one law, by doing injustice to creditors, corrects some of the ill effects of the law against high interest in Connecticut; but the remedy iz partial, for men in distress for money, generally sell their estates at private sale, for one half their valu; and a few monied men and rich farmers are constantly taking advantage of their nabors calamities, to enrich themselves. Such men make more than fifty per cent. per ann. on their money by theze speculations, and no law can wholly prevent them. Now laws against usury create this very evil: They drive money from a country; they create a necessity for it; and then a few welthy men enrich themselves, not by loaning at fifteen or twenty per cent. but by purchasing lands at half price, which are sold to keep men from jail, who, if they could hav got money for a few months, at twenty per cent. might hav sold their estates to advantage, or otherwise paid their dets. In general then we may obzerv, when a man iz reduced to the necessity of asking money at twenty per cent., hiz situation iz such that it iz better to giv that interest, than to risk a sale of property on a sudden to raize the money. Laws against usury do not save such men; it iz idle to suppose it; on the contrary, they multiply instances of oppression, az all America can witness.

But the argument, if good, proovs too much. If legislators hav a right to fix the profit on money at interest, to prevent exorbitant demands from injuring the necessitous, wil not the same reezon warrant a restriction on the profits of every commodity in market? If my rulers hav a right to say, my annual profit on money loaned, shal be but six per cent. hav they not a right to say the advance on my wheet shal be but six per cent.? Where iz the difference? A poor man may indeed be distressed by a demand of high interest, and so he may by the high price of flour; and I beg leev to say, that distresses from the last cause are infinitely the most numerous, and the most deserving of legislativ remedies. It wil perhaps be said that the price of bred, in all cities, iz fixed by law—tru; but if the price of wheet iz not likewise fixed, there are times of scarcity when the law must vary the price, or the baker must be ruined, and the poor be destitute of bred. In an extensiv fertile country, like America, such cases may not happen frequently; but the actual existence of the fact proovs that such laws rather follow the state of the market, than regulate it. And indeed it iz a question, whether in this country, the citizens of our large towns would not be supplied with bred at a cheeper rate, without any regulations at all.

2. But the absurdity and bad policy of laws against usury, are so obvious, that it iz surprizing scarcely an attempt haz been made to abolish them in any country. Such laws are absurd and impolitic, because they actually and always produce and multiply the distresses they are designed to remedy. It iz impossible it should be otherwise: The very laws of nature and commerce require that such restraints should necessarily counteract their own design. It iz necessary that commodities should be sometimes plenty and sometimes scarce; and it iz equally necessary that money, the representativ of all commodities, should be liable to the same fluctuations. In the commercial world, money and commodities wil always flow to that country, where they are most wanted and wil command the most profit. The consequence iz that a high price soon produces a low price, and vice versa.

Let us apply the principle to the present question. When money can bear its own profit, its profit or the interest arising on loans, wil be in proportion to the profit made in commercial transactions. If a man can make twelv per cent. on hiz stock, in any kind of trade or speculation, he wil not convert that stock into cash, and loan it at six per cent. While therefore commerce or speculation wil afford a man greater profits, than the law affords him on hiz loans of cash, he wil hav no money to lend. The consequence iz, while the law fixes the rate of interest lower than the annual profits of other business, a country wil be destitute of money.