This being a well attested fact, we are disposed to beleev what iz related in the Edda, Fable 7th, where it iz asked, "what the universal father did when he bilt Asgard, (the divine abode.") It iz answered, agreeable to the receeved opinion of the Goths, "he in the beginning established governors, and ordered there to decide whatever differences should arize among men, and to regulate the government in the plain, called Ida, wherein are twelv seets for themselves, besides the throne which iz occupied by the universal father."[86]
On this passage, the translator of Mallets History haz the following note. "Theze judges were twelv in number. Waz this owing to there being twelv primary deities among the Gothic nations, az there were among the Greeks and Romans? This I shall not take upon me to decide; but I think one may plainly observe here the first traces of a custom, which hath extended itself to a great many other things. Odin, the conqueror of the north, established a supreme court in Sweden, composed of twelv members, to assist him in the functions of the preesthood and government. This doubtless gave rise to what waz afterwards called the senate. And the same establishment in like manner took place in Denmark, Norway, and other northern States. Theze senators decided in this last appeal, all differences of importance; they were, if I may say so, the assessors of the prince; and were in number twelv, az we are expressly informed by Saxo, in hiz life of king Regner Lodbrog. Nor are other monuments wanting, which abundantly confirm this truth. We find in Zealand, in Sweden, neer Upsal, and if I am not mistaken, in the county of Cornwal, large stones, to the number of twelv, ranged in the form of a circle, and in the midst of them, one of a superior height. Such in thoze rude ages, waz the hall of audience; the stones that formed the circumference, were the seets of the senators; that in the middle, the throne of the king. The like monuments are found also in Persia, neer Tauris. Travellers frequently meet there with large circles of hewn stones; and the tradition of the country reports, that theze are the places where the caous or giants formerly held their councils.[87] I think one may discover vestiges of this ancient custom, in the fable of the twelv peers of France, and in the establishment of twelv jurymen in England, who are the proper judges, according to the ancient laws of that country."
It iz certain that some outlines of this mode of deciding controversies by twelv, may be seen in the customs of the Cimbri and Teutones, long before the Christian era. But I cannot find that the idea of equality ever entered into the original institution. On the other hand, every old authority that I hav consulted confirms me in the opinion, that the twelv men were chosen from among the landholders or better classes of peeple; that they were the judges of the court, and that the distinction between judges and jury, law and fact, iz a refinement or improovment on the original constitution, and comparativly of modern date.
It iz certain that a difference of rank existed among the Germans in the time of Tacitus. "Reges ex nobilitate, duces ex virtute sumunt."[88] The same writer expressly declares, that matters of inferior concern and private justice came within the jurisdiction of their princes. "De minoribus rebus principes consultant, de majoribus, omnes."[89] In another passage, he is more explicit: "Principes jura per pagos vicosque reddunt."[90] Cesar iz still more explicit: "Principes regionum atque pagorum inter suos jus dicunt, controversiasque minuunt."[91] Theze principes regionum atque pagorum, Blackstone says, we may fairly constur to be lords of hundreds and manors;[92] they were originally electiv, az we are informed by Tacitus, "eliguntur in conciliis principis," and each had a hundred comites, or assistant judges, who were chosen from among the peeple. "Centeni singulis, explebe comites, concilium simul et auctoritas, adsunt."[93] Theze hundred assistants, or companions, were chosen ex plebe; but when chosen formed the concilium principis. The prince waz their president, chosen by themselves, eliguntur in conciliis principes, and had auctoritatem, authority or jurisdiction in the town or district.
The idea of equality iz no where suggested; on the contrary; the hundredors when chosen became a court or legislature in the district, competent to the general purposes of government. No mention iz made of a distinction between the legislativ and judicial departments; on the other hand, we may safely conclude, from the passeges of Cesar and Tacitus before quoted, that the powers of making laws and deciding causes were vested in the same men. Cesar says, "nullus est in pace communis magistratus," nor could the Germans, in their primitiv simple mode of living, need such a magistrate. The princes jus dicunt, controversiasque minuunt, distributed justice, by the assistance of their comites, and according to the circumstances of the peeple.[94] This at leest waz the case with respect to matters of small magnitude.
The number of comites principis, or assistants, waz originally a hundred. This gave name to the district which they governed, and which afterwards consisted of any indefinit number, still retaining the primitiv name. In later ages, the number of assistant judges waz reduced; a grand jury still consists of twenty four; a petit jury commonly consists of twelv, but on certain occasions, and by the custom of particular places in England, may be composed of sixteen, eight or six.[95]
Such waz the constitution of the ancient Germans, in which we may discover the principles of the system which they every where established, after their conquests in Gaul, Spain, Italy and Britain.
Twelv waz a favorit number, not only with the Saxons, but with all the nations of northern original. They had twelv principal deities; they numbered the units up to twelv, instead of stopping at ten, like other nations;[96] they had twelv judges to assist their kings or princes; their hall for the election of their kings consisted of twelv huge stones, placed in a circle. Hence we discover the origin of the twelv senators of Sweden,[97] Denmark and Norway; the twelv counsellors of state in ancient times; the fable, az it iz called, of the twelv peers in France; the twelv judges in England, and the trial by twelv peers or jurors, which waz formerly common to all the northern nations of Europe.[98]
On the Gothic establishments in the south and west of Europe, government took a military complection. The kings parcelled out the conquered lands among their generals, called duces or principes, by the Latin writers; and by the Saxons, heretoga. The generals of first rank receeved or acquired whole provinces, az Burgundy, and the principalities of Germany. Theze territories they distributed among their inferior officers and comites or retainers, of whom every lord had great numbers about hiz person. Theze constituted a secondary, but very numerous class of nobility; and altho there might be differences of rank and property among them, they were called by one general appellation. In England, they were called thanes, from a word signifying to serve, because they held their lands by the condition of military service. On the continent, they were called barons, that is freemen, or tenants of land, upon condition of rendering certain military and honorable service to their superior lord, who waz called lord paramount.
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.