Stuart, in hiz English Constitution, remarks, "that the erls presided in the courts of law. Their jurisdiction extended over their feefs: In all causes, civil and criminal, they judged without appeel, except in cases of the utmost consequence." Part 3. Sect. 3.
I presume it iz needless to multiply authorities. The strongest argument in favor of my opinions iz drawn from the supreme judiciary powers of the house of lords in England. The lords are peers of the relm; that iz, the ancient prescriptiv judges or barons, who claim the privilege by hereditary right or immemorial usuage. The house of peers, iz literally and in fact, a house of judges; an assembly of all the ancient judges in the kingdom. So Selden relates of the Saxons, whom he supposes to be descended from the same original az the Greeks, and long prior to the ages of Roman glory; "their country they divided into counties or circuits, all under the government of twelv lords, like the Athenian territory under the Archontes. Theze, with the other princes, had the judicial power of distributiv justice committed to them, with a hundred commoners out of each division." Tit. Saxons. The same writer declares, chap. 58, that the nobles "were in their most ordinary work, meetings of judges, or courts of judicature; that the king and hiz barons made many laws and constitutions which hav obtained the name of statutes," (which he supposes may hav been equitable decisions of new causes, which afterwards had the force of laws) "that the judges of this supreme court are the baronage of England; and that the house of lords still retain their supreme judiciary powers by ancient prescriptiv right."
In addition to this authority, I would remark that the modern supreme judiciary of Scotland iz copied almost exactly from the ancient Saxon trial by laghmen or thanes. The lords of session, or president and fourteen judges, are a court of law and fact, without a jury; and this iz exactly the old trial by peers.
The parliaments in France are justly said by lord Coke, to be ordinary courts of justice; another striking evidence of what I hav advanced. The word parliament came from France, where it denotes that assembly of barons, which constitutes the supreme court of justice in each of the several provinces. This iz the original import of the word, and the parliaments in France still retain that signification. This name waz introduced into England, under the Norman princes, and superseded the Saxon name of the national assembly, witena-gemote. Indeed, during the depression of the peeple, under the first princes of the Norman line, when the military tenures were established with rigor, national assemblies were called but seldom, and when summoned, consisted principally of the bishops and peers (barons) of the relm. They however acquired the name of parliament, and retain it to this day; altho one branch of that body iz composed of commoners. The tru meening of parliament iz a meeting of barons or peers, and their principal business waz to decide controversies: They had original jurisdiction over causes in which the nobles were parties, az men of rank would not seek redress before an inferior tribunal; and they had an appellate jurisdiction over other causes in the last resort. The parliament of England iz a legislativ body; but the house of lords retains the primitiv privilege of finally deciding controversies. This branch of the legislature alone answers to the parliaments in France, which approach neer the ancient institution.[108]
So in England, the house of lords, and even the temporal lords alone, were called formerly a parliament. Blackstone, b. IV, c. 19, upon the authority of ancient books and records, repeetedly denominates the house of peers, when acting az a court of supreme judicature, a parliament, a full parliament; and the spiritual lords are not permitted to giv any vote upon gilty or not gilty, for they are not ancient peers (that iz, barons, prescriptiv judges) of the relm. It haz been douted whether the spiritual lords had a right to sit in the house on the trial of a peer; but by a determination of the lords in the erl of Danby's case, 1679, they were permitted "to stay and sit in court in capital cases, till the court proceeds to the vote of gilty or not gilty." Still they form no part of the court; the temporal lords constituting a full parliament, that iz, az I hav explained the tru primitiv meening of the word, a meeting of barons or judges.[109]
I would just add on this head, that the institution of twelv judges in England, iz copied from the ancient mode of trial in Germany. The old Curia Regis consisted of the king, hiz grand justiciary, the officers of hiz palace and his barons. This court followed the kings person wherever he went. Out of this were formed the several courts now established at Westminster. But the title of barons of the exchequer and barons of the cinque ports, who are judges, furnishes an additional argument in favor of my opinions.
The foregoing explanation of the words, baron and peer, leeds to a probable account of the trial by peers. It can be prooved that the jurors were the judges of the county, hundred and manor courts, and the probability iz that the suitors in theze courts receeved the appellation of peers, from the circumstance of their being landholders. Several authorities seem at leest to favor this opinion.
"Concerning the institution of this court by the laws and ordinances of ancient kings, and especially of Alfred, it appeereth that the first kings of this relm had all the lands of England in demesne, and les grand manors et royalties, they reserved to themselves; and of the remnant, they, for the defence of the relm, enscoffed the barons of the relm, with such jurisdiction az the court baron now hath, and instituted the freeholders to be judges of the court baron."[110]
"The manor courts are of two sorts. The first iz by the common law, and iz called the court baron, az some hav said, for that it iz the freeholders or freemens court, (for barons in one sense signifie freemen) and of that court the freeholders, being suitors, be judges. The second iz the copyholders court, which iz called a court baron, because among the laws of king Edward the confessor, it iz said: "Barones vero qui suam habent curiam de suis hominibus," taking the name of the baron who waz lord of the manor, or for that properly in the eye of the law, it hath relation to the freeholders who are judges of this court. And in ancient charters and records, the barons of London and the cinque ports do signify the freemen of London and the cinque ports."[111] Theze passages are express to my purpose. Indeed it must hav been that the freeholders, now called jurors, were judges; for the lord of the manor waz cheef judge or president merely, and we heer nothing, at this erly period of Saxon jurisprudence, of a distinction between law and fact.
Horne, in the Mirror of Justices, asserts[112] "that by the constitutions of Alfred, the free tenants in every county, hundred and manor, were to meet together and judge their nabors." "Every free tenant hath ordinary jurisdiction in theze courts." "The lords and tenants shall incur certain penalties by the judgement of the suitors." "Theze courts are called county courts, where the judgement iz by the suitors, if there be no writ, and iz by warrant of ordinary jurisdiction." That iz, when there waz no special court held by the justices in eyre.[113] So also in a book called the "Diversity of Courts," written in Henry the eighth's time, it iz said, "in the court baron the suitors are the judges, and not the steward."