A Collection of Essays and Fugitiv Writings

114

Law Dict. Court baron.

115

Bacon's Selden chap. 24.

116

Some say this see waz eight hundred akers of land; others, six hundred and eighty, or 20l. a year, which, considering the difference in the value of money, waz equal perhaps to 300l. or 400l. at the present time. Here seems to be a confusion of ancient and modern ideas. The ancient knights see waz a certain tract of land; in later times that see was valued at 20l. in money.

117

Hale's Hist of Com. Law, 154.

118

L L Ethel. c. 4.

119

We find by ancient records, that the clergy, before the conquest, were sometimes summoned az jurors or judges in the temporal courts [See Selden, tit Sax. bishops]. But the thanes were the most usual judges in the courts baron. The proper Saxon name of this court waz halimate or halmote, hallmeeting; "Omnis causa terminetur vel hundredo, vel comitatu, vel halimote, socam habentiam, vel dominorum curia." [L. L. Hen. I. cap. 10]. And in W. Thorn, Anno 1176, the judges of this court are expressly said to be thanes, "thanenses, qui in Halimoto suo, in Thaneto, omnia sua judicia exerceri," (debent.) Selden, chap. 47, mentions a law of Henry I, which recites a custom of that time, by which "the bishops and erls, with other the cheef men of the county, were present in the county court az assistants in directory of judgement." Nothing can be more explicit. And altho Selden, in a passage hereafter quoted, mentions a compromise between Gunthrune, the Dane, and the Saxon king, that men of a rank inferior to lords should be tried by their equals, yet this inferior rank could extend only to freemen; for others were never admitted upon juries.

120

"And the sheriffs and bailiffs caused the free tenants of their bailiwicks to meet at the counties and hundreds, at which justice waz so done, that every one so judged hiz nabor by such judgement az a man could not elsewhere receev in the like cases, until such times az the customs of the relm were put in writing, and certainly established."– Mirror. chap 1. sect. 3.

121

Fleta. lib. I. c. 47.

122

Laghman, to this day, iz the name of a judge or magistrate, both in Sweden and Iceland. In theze countries it retains its primitiv and tru English meening.—Mallets North. Antiq. Vol. I.

123

Selden waz forced to confess the jure consulti and ætate superiores, so often mentioned in the Saxon laws, az composing the homage or jury of twelv, to hav been cheef men both for experience and knowlege. To such as stumble at this conceet, as he expresses it, he remarks that the work of jurors requires them to be cheef men, az they judge of matter of fact; (a reezon drawn from the modern notions of jurymen's province.) And he adds, the jurors, who were co-assessors, with the bishop or sheriff in the court, were seeted in the most eminent place, and might hav held it to this day, az they do in Sweden, had the cheef men still holden the service. But the great became negligent of such public duties, and left the business to thoze of a meener condition, who would not or durst not take the bench; and therefore took their seets on the floor—(took separate seets.) He says further, that the Danes, on their settlement in England, would not associate with men of this condition; so that a compromise took place between Alfred, the Saxon king, and Gunthrune, the Dane, by which it waz decreed, that a lord or baron should be tried by twelv lords, and one of inferior rank, by eleven of his equals and one lord. This waz in the case of homicide only; tho afterwards the law might extend to other cases and civil suits. By hiz own account of the matter, this writer supposes the trial by twelv waz originally a trial by the cheef men, (thanes lahmen) and the idea of equality waz never suggested in the practice till the ninth or tenth century. But juries existed az courts for centuries before; and the word peers iz acknowleged to hav had its origin on the continent, where it signified the lords or members of the high court instituted by Charlemagne. In modern use, trial by peers iz trial by equals generally; for men are mostly become freemen and landholders; but this waz not the primitiv practice; nor was equality the basis of the institution. Even if we suppose the word peer to hav signified equal, as uzed originally on the continent, it extended no privilege on that account to the body of the nations where it waz used; for it ment only the kings equals, hiz comites, hiz dukes, erls and barons, among whom he waz merely primus inter pares. In England Bracton, who wrote under Henry III, declares the king waz considered in this light; and that the "erls and barons are his associates, who ought to bridle him, when the law does not." [L. I. c. 16] The courts then which Charlemagne instituted in France and Germany, consisted merely of the kings peers or equals; and in theze countries, the courts remain mostly on the ancient footing; so that none but the nobility can be tried by their equals. In this sense of the word therefore juries were not used in England, till the compromise between Alfred and Gunthrune, about the year 900. Before that period, the jurors were not called or considered az equals; but they were thanes, jure consulti, lahmen and clergymen. A distinction afterwards took place, and lords were tried by their equals, and commoners by theirs.

124

"The division of the county waz done by freemen, who are the sole judges thereof" [Selden on the authority of Polydore]. Selden, Matthew, Paris, and others, testify that the folk-mote, peeple's meeting or county court, waz a county parliament, invested with legislativ or discretionary powers in county matters. In theze small districts, they appeer to hav been competent to decide all controversies, and make all necessary local regulations. The legislativ, judicial and executiv powers, both civil and ecclesiastical, were originally blended in the same council; the witena-gemote had the powers of a legislature, of a court of law, and of a court of equity over the whole kingdom, in all matters of great and general concern. But this court waz composed of lords, bishops, and majores natu or sapientes, men respected for their age and lerning, who were of the rank of freemen. All the freemen were bound also to do suit in the lords court, and to attend the folk-mote on the sheriffs summons; but twelv were usually selected to sit az judges in common cases.

The vast powers of the county court, when the freeholders were all summoned and actually sat in judgement, may be understood by two facts. One, the conquerors half-brother, and Lanfrank, archbishop of Canterbury, had a dispute about certain lands and tenements in Kent. The archbishop petitioned the king, who issued hiz writ, and summoned the freemen of the county, to take cognizance of the suit. After three days trial, the freemen gave judgement for the archbishop, and the decision waz final.

In like manner, two peers of the relm, a Norman and an Italian, submitted a title in fifteen manors, two townships, and many liberties, to the freeholders of the county, whose judgement waz allowed by the king [Selden. Chap. 48].s

125

"Magnaque et comitum æmulatio, quibus primus apud principem suum locus; et principum, cui plurimi et acerrimi comites." [Tacitus de mor Germ. c. 13] The princes kept az many of these retainers in their service in time of peace, az they could support. "Hæc dignitas, hæ vires, magno semper elestorum juvenum globo circumdari, in pace, decus, in bello, præsidium. Ibid."

126

In the time of Henry II, there were in England eleven hundred and fifteen castles, and az many tyrants az lords of castles. William of Newbury says, in the reign of Stephen, "Erant in Anglia quodammodo tot reges, vel potius tyranni, quot domini castellorum." It waz the tyranny of theze lords or their deputies, which rendered the intervention of twelv judges of the naborhood, highly necessary to preserve the peeple from the impositions of their rapacious masters. Hence the privilege of this mode of trial derived an inestimable valu.

127

Connecticut.

128

About the year 580.

129

Heriots or reliefs.

130

Lancæe.

131

Possibly for Mancusæ, i. e. thirty pence.

132

Capatanei.

133

This opinion of the lerned Camden, adds no small weight to my conjectures reflecting the origin of trial per pares.

134

Optimos.

135

Blackstone Com. Vol. I. 100.

136

Lelands Introd. to Hist. of Ireland.

137

L. L. Hoeli.

138

See my Dissertations on the English language, 313.

139

This iz not accurate. The thaneships or lordships of the Saxons, at the conquest, took the title of baronies; but the divisions probably existed before.

140

Curtis, court and the Spanish Cortez are all the same word.

141

In a conversation I had at Dr. Franklin's on this subject, the doctor admitted the principle, and remarked, that a man who haz 1000l. in cash, can loan it for six per cent. profit only; but he may bild a house with it, and if the demand for houses iz sufficient, he may rent hiz house for fifteen per cent. on the value. This iz a fair state of the argument, and I challenge my antagonists to giv a good reezon for the distinction which the laws make in the two cases; or why a man should hav an unrestrained right to take any sum he can get for the use of hiz house, and yet hiz right to make profit by the loan of money, be abridged by law.

142

See Blackstone on this subject, Com. Vol. II. 455, where the author's reezoning holds good, whether against fixing the value of horse hire or money lent. All exorbitant demands are unjust in foro conscientiæ; but what right haz a legislature to fix the price of money loaned, and not of house-rent?

143

The legislatures of several states during the late war, were rash enough to make the attempt; and the success of the scheme waz just equal to the wisdom that planned it.

144

Blackstone Vol. II. 462.

145

What are marine insurances, bottomry, loans at respondentia and annuities for life, but exceptions to the general law against usury? The necessity of higher interest than common iz pleeded for theze exceptions. Very good; but they proov the absurdity of attempting to fix that, which the laws of nature and commerce require should be fluctuating. Such laws are partial and iniquitous.

146

Robertsons Charles V. Vol. I. 280.

147

Blackstone Com. Vol. I. 369.

148

Blackstone remarks that allegiance iz applicable, not only to the political capacity of the king, or regal office, but to hiz natural person and blood royal. I would ask then what blood royal there can be in a man, except in hiz kingly capacity?

149

Except the case of Ambassadors or other agents.

150

It may be said, that moral right and rong must ultimately be resolved into the wil of Deity, because society itself depends on hiz wil. This iz conceded; I only contend that moral fitness and unfitness result immediately from the state of created beings, with relation to eech other, and not from any arbitrary rules imposed by Deity, subsequent to creation.

151

By the ancient laws of England, relations in the same degree, whether by consanguinity or affinity, were placed exactly on a footing. See the suttle reezoning by which the prohibitions were supported, in Reeve's History of the English Laws, Vol. IV.

152

Lands in Connecticut desend to the heirs in the following manner: First to children, and if none, then to brothers and sisters or their legal representativs of the whole blud; then to parents; then to brothers and sisters of the half blud; then to next of kin, the whole blud taking the preference when of equal degree with the half blud.

153

See my Dissertations on the English Language, page 106.

154

See Winthrop's Journal, Mather's Magnalia, and Hutchisons Collection of papers.

155

During the late war, eight thousand newspapers were published weekly at one press in Hartford.

156

This iz an evil of great magnitude.

157

Uxor deinde ac liberi amplexi; fletusque ab omni turba mulierum ortus, et comploratio sui patriæque, fregere tandem virum.—Liv. lib ii. 40.

158

The foregoing facts are taken from Leaming and Spicer's Collection; a concise view of the controversy, &c. published in 1785; and from the acts of the legislature of New Jersey.

159

See Dr. Franklins Review of the guvernment of Pensylvania.

160

The powers of legislation by the late constitution, were designed to be vested in the peeple; but in fact were vested no where. The pretended legislature consisted of but one house; and no bill, except on pressing occasions, could be passed into a law, until it had been published for the assent of the peeple.

161

Clerk or register.

162

See the proceedings of the legislature of Maryland in 1785.

163

Virginia however iz not alone in this mezure. Rhode Island formerly took the same steps, and stil adheres to its liberality.

164

The consumption of beef in New England iz the reezon why the exports of that article do not exceed thoze of Ireland. Most of the laboring peeple in New England eet meet twice a day, and az much az their appetites demand. Suppose eech person to eet but six ounces a day on an average, which iz a low estimate, and the inhabitants of New England consume more than one hundred million pounds of meet, in a yeer. I do not know what proportion of this iz beef, but the greatest part iz beef and pork, worth two pence, and two pence half penny a pound. By the best accounts from Ireland, it iz probable the inhabitants do not consume a twentieth part of the meet, consumed in the northern states, in proportion to their numbers. But suppoze they consume a tenth; let the New England peeple reduce the consumption of meet in the same proportion, and they would save ninety millions for exportation. This at two pence a pound makes the sum of two million five hundred thousand dollars, which iz a very handsome commercial income. Let the reduction proceed to all kinds of food and clothing; let our common peeple liv like the poor of Ireland in all respects, and they would save twice the sum. I would not recommend this to my countrymen; I wish them to enjoy good eeting and drinking. But I make theze estimates to show them that they never wil hav much money; for they eet and drink all they ern.

165

I say Boston, but I beleev the observations to be made at Cambridge.

166

I once passed the cape at five or six leegs from the breakers, and found but seven fathoms of water.

167

It iz evident, from the silence of all ancient monuments, that the heeling art waz not cultivated, and scarcely known among the old Romans. For several ages from the bilding of Rome, there iz hardly any mention made of a physician. Pliny relates, that Rome flurished, six hundred yeers, without physicians; that iz, the profession waz not honorable, being confined to servants or other low karacters. In Seneca's time, many of theze had acquired estates by the bizziness; but they were stil held in no estimation. "Bona in arte medendi humillimisque quibus contingere videmus." After the conquest of Greece and Asia, the manners of the Romans were corrupted by the luxuries of the eest; diseeses multiplied, and the practice of physic became more necessary and more reputable; but the art of surgery waz not separated from that of medicin, til the times of the emperors.

168

Qui diutissime impuberes permanserunt, maximam inter suos ferunt laudem: Hôc ali staturam, ali vires, nervosque confirmari putant. Intra annum vero xx feminæ notitiam habuisse, in turpissimis habent rebus.– Cesar De Bel. Gal. lib. 6. 19.

169

The ancients were wiser than the moderns in many respects; and particularly in restraining certain vices by opinion, rather than by positiv injunctions. Duelling and profane swearing are prohibited by the laws of most countries; yet penalties hav no effect in preventing the crimes, whilst they are not followed by loss of reputation. Vices which do not immediately affect the lives, honor or property of men, which are not mala in se, which are eezily conceeled, or which are supported by a principle of honor or reputation, are not restrainable by law. Under some of theze description fall, duelling, profane swearing, gambling, &c. To check such vices, public opinion must render them infamous [See Vattels Law of Nations, b. I. ch. 13]. Thoze who hav the distribution of honors and offices, may restrain theze vices by making the commission of them an insuperable bar to preferment. Were the Prezident and the executivs of the several states, to be az particular in enquiring whether candidates for offices are given to gambling, swearing or debaucheries; whether they hav ever given or receeved a challenge, or betrayed an innocent female; az they are in enquiring whether they are men of abilities and integrity; and would they, with undeviating resolution, proscribe from their favor and their company, every man whoze karacter, in theze particulars, iz not unimpeechable, they would diminish the number of vices, exclude some wholly from society, banish others from genteel company, and confine their contagion to the herd of mankind. But where iz the man of elevated rank, of great talents, of unshaken firmness, of heroic virtue, to begin the glorious reformation? America may now furnish the man, but where shall hiz successor be found?

170

See my Dissertations on the English Language, 4.