Blackstone mentions the difficulty of tracing the word baron to its primitiv sense; but confirms the foregoing explanation when he says, "the most probable opinion iz that barons were the same az our lords of manors."[100] The name indeed waz not used in England (so far as can be collected from English writers) till after the conquest. But it iz certain that the feudal system, tho not in all its severity, waz established in England before that period; and degrees of nobility were cotemporary with the Saxon establishments in the island. The first class were called in Saxon heretoga, that iz generals or military commanders. But the most ancient and perhaps the most important civil title waz that of earles or ealdormen. Theze erls were called also in Saxon schiremen, for they exercised supreme jurisdiction in the shires. After the conquest they were called by the corresponding Norman title counts, from comites, because they were the king's companions in war; and their jurisdiction waz called a county.[101]
Inferior to theze in rank were the Saxon thanes, who were so called from the Saxon thanian ministrare, because they were the comites or attendants of the ancient kings or earls. Theze were numerous, and after the conquest called by the equivalent continental title, barons. Of theze there were different ranks, thani majores or thani regis, who served the king in places of high importance, and took rank next to the bishops and abbots. Theze had inferior thanes under them, called thani minores, who were also lords of manors.[102] The word peer I suppose to be derived from the same root az baron, bar or par, and to be equivalent in sense. It iz cleer to me that landholder, or man by way of eminence, waz its original meening; and that it iz a proper name of the ancient nobility, given them az proprietors of vast tracts of land, and that it had no reference to equality of rank.
But there are better proofs of this point than that drawn from this supposed derivation. The true original signification of the word we hav in the phrases, house of peers, peers of the relm, peerage. And for this assertion we hav the best authorities in the language. Cowel, from whom Johnson and most modern lawyers have borrowed their definitions of law terms, after explaining the word peer az denoting jurors, says expressly, "but this word iz most principally used for thoze that be of the nobility of the relm and lords of the parliament." Here the author haz mentioned a well supported fact, and quotes ancient authorities. But he immediately leevs fact, and runs into conjecture, az to the reezon of this appellation, which he deduces from a preconceeved, but probably erroneous, opinion. "The reezon whereof iz, that altho there be a distinction of degrees in our nobility, yet in all public actions they are equal; az in their votes of parliament, &c." Here the author takes it for granted that the word peer signifies equal, and assigns, az a cause of its most principal appropriation to the nobility, that the men, tho of different ranks, hav an equal vote in parliament. This a curious reason indeed! A man must be more credulous than I am, to beleev this slight circumstance would giv rise to such a particular appropriation of a name. One would think that the same reezon would hav given the name to the clergy in convocation and other ecclesiastical courts. Yet the learned and candid Blackstone haz copied the same reezon. "The commonalty, like the nobility, are divided into several degrees; and, az the lords, tho different in rank, yet all them are peers in respect of their nobility; so the commoners, tho some are greatly superior to others, yet all are in law peers, in respect of their want of nobility."[103] This appeers very extraordinary, that an equality of suffrage should giv an appellation in preference to difference of rank, which iz, so much more obvious and more flattering to the haughty barons. But if the commoners are peers or equals in suffrage az well az the lords; that iz, on the same principle; or as Blackstone states it, if the lords are peers because they are noble, and the commoners are peers, because they are not noble, why hav not the commoners the same appellations of peers of the relm? The lords are not equally noble, by Blackstone's own statement, for they are of very different ranks; and the commons are not equally ignoble, (this word iz used merely for contrast) for they are of different ranks: Yet the vote of one commoner iz az good in the house of commons, az that of another; and the vote of one lord, in the other house, iz az good az that of another. If the equality of suffrage iz a proper ground for the title of peers in one house, the reezon extends to the other. Yet commoners are not peers of the relm; and until a good reezon can be assigned for the distinction of titles between the houses, I shall beleev that the word peer had originally no reference to equality.[104]
But say the English lawyers and antiquaries, "the bishops are not in strictness held to be peers of the relm, but only lords of parliament."[105] Why not? What is the distinction? Here our authors leev us in the dark; but perhaps the foregoing clu will leed us to the light. Bishops were not the original proprietors of baronies; they were not bars or pars, the hereditary lords of manors, consequently not peers of the relm. This iz such an obvious solution of the question, that I am surprized it should hav been overlooked. Under the papal hierarchy, the clergy gained vast influence over the minds of men, and by a variety of expedients, became possessed of large estates, and some of them, of ancient baronies. But their acquisitions were comparativly of modern date, and many of them usurpations, altho in consequence of their estates they obtained a seet in the house of lords. They are therefore lords of parliament; but the ancient peers, priding themselves upon the antiquity of their families, and claiming certain prescriptiv rights, would not admit the clergy to an equal share of authority and honor; for to this day, a vote of the temporal lords iz good against every vote of the clergy.[106]
"The appellation peer," says Cowel, "seems to be borrowed from France, and from thoze twelv peers that Charlemagne instituted in that kingdom." The same word waz used by other nations. Theze twelv peers constituted a great council or supreme court, and the members were all barons, or of the nobility.[107] Can the word, applied to the members of this council, signify equal? By no meens. Here we trace the word to a remote period of antiquity, and find it used by the emperor of Germany; or at leest an appellation given to one of the first councils in hiz dominions. This iz the pure primitiv sense of the word peers, barons, that iz, in the full latitude of its signification, all the ancient nobility; who held lands of him ether immediately or mediately; who formed hiz supreme judicial court, and in some countries, hiz legislativ assembly; who were hereditary councillors of the crown; and cheef judges of all causes arising on their own manors, except such az were of great consequence.
This explanation accounts for what Selden has remarked, chap. 65, that "the barons of England, before the reign of Edward I, were rather the great and richer sort of men, than peers, altho they were of the number." That iz, the Saxon thanes, who were great landholders, but inferior to the erls, had, after the conquest, receeved the appellation of barons from the continent; but, being a secondary class of nobility, had not claimed or acquired the power and privileges of the German and French princes and nobles who had the title of peers, until the Norman kings had introduced, into the kingdom, the oppressiv and invidious distinctions of the feudal tenures, in the full extent of the system.
It will be enquired, if this iz the sense of the word, how came juries of common freeholders to be called peers? The answer iz eesy; the jurors were the judges of the inferior courts, and not merely the equals of the parties, az iz commonly supposed. The erl or baron, in strictness; but more commonly, the vice-comes, sheriff or lords deputy, waz the president or cheef justice, and the jurors, the assistant judges. For this opinion, numberless authorities may be produced. The barons were the assistant judges, peers, in the court of the lord paramount or king, and thus became judges by prescription; so the word peer or baron, in time, became equivalent to judge. Az the nobles were judges in the kings court, and decided on appeels in the last resort, so the freeholders who constituted the court in the county, hundred or manor, came to be denominated peers, that iz, judges.
Reeve, in hiz history of the English Law, remarks, that "the administration of justice in the days of William the conqueror, waz so commonly attendant on the rank and character of a baron, that baro and justiciarius were often used synonimously." Blackstone says, "it iz probable the barons were the same az our lords of manors, to which the name of court baron (which iz the lords court, and incident to every manor) givs some countenance." Vol. I. 398. It iz surprizing, theze writers should approach so neer the tru original and meening of the word, baron, and not reech it.
Most writers on the ancient state of government in Europe, hav remarked that the nobility held the office of judges. "Les mesmes comtes," says Mezeray, "et ducs, qui jugeoint les François, les menoient a la guerre." tom. I. p. 118. The counts and dukes were both judges and generals.
"Duo—comitum munera fure; unum videlicet justitiæ populis ministrandæ, alterum militiæ sibi subjectæ, quando in bellum eundum erat, educendæ atque regendæ." Muratori. Antiq. Ital. tom. I. p. 399. The counts had two offices or departments of business; the administration of justice, and command of the troops in war.