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.

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.