Слике страница
PDF
ePub

CHAPTER XXII.

OF THE JURISDICTION OF COURTS LEET.

SECTION I.

Origin and Nature of the Court Leet.

THE Leet, which is a court of record (a), is described as one of the most ancient tribunals noticed by our common law (b), and is accounted the King's Court; for although this franchise is frequently held by the lord of a hundred or manor under a grant from the crown, or by prescription which presupposes such grant (c), yet the lord is intitled only to the profits of the court (d), and (in legal phraseology) the day is to the king (e).

The court leet is by some writers said to be derived out of the sheriff's tourn (f); but the observation may, the author thinks, be considered as a mere obiter dictum, as far, at least, as it may tend to impugn the opinion of many of our ancient law authorities, that the jurisdiction and privileges of the leet were purchased of the crown by thanes or barons and others of large territorial possessions, in order that the people might have justice rendered to them nearer to their own homes; and whereby the author conceives the power of the sheriff in his tourn was superseded, or at least suspended to the extent of the local confines of each particular grant.

The close resemblance which the leet jurisdiction bears to the Anglo-Saxon institutions, beginning with Ethelbert in 561 (g), would

(a) Br. tit. Leet and Tourn, pl. 39; F. N. B. 82; 2 Inst. 143; 4 Inst. 263; Kitch. 82; Hetl. 62; 4 Bl. Com. 272. (b) 7 Hen. 6, 12; 2 Inst. 70; 3 Burr. 1860. And it is said to have been ordained by King Alfred, Mirr. c. 1, s. 3; Bullen v. Godfrey, 1 Roll. Rep. 73. Judge Jenkins, in his Pacis Consultum, written during the Commonwealth, states (p. 1), that the court leet was established long before the Conquest. And see Rits. on Courts Leet, 34.

(c) 2 Inst. 72; Finch's Law, 246; F. N. B. 160, 161, and the notes; Co. Cop. s. 31, Tr. 51.

(d) 41 Ed. 3, 26; Br. Leet; 4 Kitch. 82. The lord of a leet cannot claim the wastes by prescription, which may belong to one who has a manor without a leet. See 9 Hen. 6, 44, cited Br. Leet, 2.

(e) 41 Ed. 3, 26; 44 Ed. 3, 19; Br. Leet, pl. 4, 5; Kitch. 82; 2 Inst. 140; Co. Litt. 117 b.

(f) 4 Inst. 261; Cromp. 230 b; Shepp. Court Keeper's Guide, 4.

(g) The author submits that the remedial, if not the alleged legislative character of the ancient court leet may be traced even to the continental Saxon institutions. The gaugrave held his gauding or moot

seem fully to justify the opinion formed of its great antiquity; but the author does not find that the term leet is mentioned in any historical work illustrative of the Anglo-Saxon jurisprudence.

The generic character of the leet jurisdiction may perhaps be best illustrated by a reference to the territorial divisions, and to the several independent communities established by the Anglo-Saxon kings, and by a brief sketch of the different ranks of people, and the mode of administering justice at that period of our history.

It is supposed that the Anglo-Saxon monarchs divided their territories into shires or counties, and townships, in imitation of their continental subdivisions called by the Romans pagi et vici, as such divisions are frequently mentioned by historians before the end of the heptarchy (h); and it seems equally probable that King Alfred, who has the credit of that great and judicial polity, was not in fact the first to introduce the division of the kingdom into counties; but our historians certainly appear to be agreed that he made a new and more regular division of it, different from that which subsisted under the heptarchy, and probably introduced the subdivisions of shires or counties into trithings, or laths, or rapes (i); and without doubt he has the merit of the still further subdivision of trithings into hundreds, and of each hundred into decenaries, tithings or districts, consisting of about ten families (k).

The lowest orders of the people among the Anglo-Saxons were complete slaves either by birth, or by forfeiture of their freedom by crimes or breach of faith, and were incapable of any office of trust or honour; but the introduction of Christianity led to frequent manumissions, and established another class of people called frilazin, and

every six weeks, and all the tenants within the gau owed suit and service to this court; and presentments were there made by the burmeysters or bailiffs, similar to those of the court leet, of all who neglected to appear at the court, and of bloodshed, assaults, and all other crimes punishable by loss of life or limb. Vide Speculum Saxonicum; and also an interesting and erudite article in the Edinburgh Review of February, 1822, No. 72, p. 287 et seq.

(h) See vol. 3 of Henry's History of Great Britain, p. 311; Hallam's Europe, p. 390.

(i) Ib. 317; Spelm. Vita Elfrida, p. 74; St. Amand, Hist. Essay, p. 68. These intermediate divisions between shires and hundreds still subsist in England, the first (i. e. trithings) in the county of York,

where (as is observed by Mr. Justice Blackstone in his Commentaries), by an easy corruption they are denominated ridings; the second (i. e. lathes), in the county of Kent; and the latter (i. e. rapes) in the county of Sussex.

(k) The subdivision of the kingdom by our Anglo-Saxon ancestors, and the general character of English jurisprudence at that period, bear a strong affinity to the polity and integral communities of the Scandinavian nations. The hærad appears to have been the primary division of their land, analogous to the Anglo-Saxon hundred; and this district was usually subdivided into quarters, and occasionally into tithings. See Edinburgh Review of February, 1822, p. 293; Hallam, pp. 406,

407.

persons so made free were considered to be in a middle state only, between slaves and freemen.

Those who were freemen from their birth were called ceorls, and constituted a middle class between the nobility, and such labourers and mechanics as were slaves or descended from slaves; and being generally devoted to agriculture, a ceorl was the usual name for a husbandman or farmer (1); but the acquisition of five or more hydes of land, the attainment of priest's orders, or making three voyages beyond sea in his own ship and with his own cargo (m), advanced a ceorl to the dignity of a thane; and his degree of nobility was considered to be higher than the next description of thane noticed.

A ceorl who had a propensity to arms often became the attendant of some warlike earl, and was called his huscarle; and by obtaining a reward from his patron in land or warlike habiliments was likewise considered as a thane, and this was the lowest degree of nobility. The higher class of thanes were denominated kings' thanes, and appear to have been of three different degrees (n).

The thanes were the only nobility among the Anglo-Saxons; but the princes or members of the royal families were of a still superior rank.

With respect to the Anglo-Saxon jurisprudence, it should be premised that the kings were considered as the chief judges in their respective territories, and frequently administered justice in person. Alfred the Great, we are told, sometimes employed both day and night in hearing causes on appeal, with the aid of learned men acting as assessors, and forming a supreme court of justice. But after the establishment of monarchy, it was found to be necessary to appoint a chief justiciary to preside in the king's court in his absence; and the first institution of that office is supposed to have been at the time of the incursion of the Danes.

The supreme tribunal of our Anglo-Saxon ancestors was the WITTENA-GEMOT (0); which was not only a court of civil and criminal jurisdiction, but all the affairs of state, political and ecclesiastical, were there debated and regulated (p).

The ordinary assembly of the members of this court appears to have been at the festivals of Easter, Whitsuntide and Christmas, it

(1) Hallam, pp. 383, 384.

(m) Henry's History of Great Britain, vol. 3, p. 325; St. Amand, p. 73. (n) Hallam, p. 413.

(0) Wittena-gemot, or assembly of wise men; Wilk. L. Sax. pp. 14, 72, 76—79, 102, &c.; Spelm. Gloss. in voc. Hist.

Eliens. c. 10; Henry's History of Great
Britain, vol. 3, p. 372; Turn. Hist. of the
Anglo-Saxons, pp. 220, 261; Hallam, p.

388.

(p) Henry's History of Great Britain, vol. 3, p. 369.

being the prerogative of the king to appoint the time and place of their meetings; but on very solemn and important occasions all the constituent members were summoned, who being numerous, and the persons interested in their debates being still more so, the wittenagemot was frequently held in the open air on some extensive plain (q), and on the banks of a river near a large town for the benefit of water and provisions (r); and often under a large tree for the convenience of shade and shelter (s).

The next court in point of importance of Anglo-Saxon institution was the SHIRE-GEMOT, which was for the trial of both criminal and civil causes; and here transmissions of real property were recorded, and ecclesiastical affairs transacted (t). The Shire-gemot was held in each county twice in every year, viz. in the spring and autumn; and was attended by the bishop and clergy of the diocese, the alderman (u) of the shire, the shiregerieve (x), law-men, magistrates and thanes (y).

(q) 1 Tyrr. Hist. Engl. Introd. civ. cv.; Camd. Brit. Isle of Man; Spelm. Gloss. voc. Mallobergium; Eadmer. 9, and Seld. Spicileg. 197; Lamb. Preamb. Kent, pp. 441, 443, tit. Eareth. Mr. Watkins, in his 2nd vol. on Copyholds, p. 10, notices that the Welch and Irish, and other ancient nations held also their courts of justice in the open air, and generally on the slope of a hill; and adds, "Indeed, so prevalent was this custom among the Britons, that the top of a hill or eminence became at length significative of a court of justice; and the names of several persons who had jurisdiction were allusive to it;" (cites Owen's Welch Dict. voc. Bre, Brezyn, Breyr, Crug, &c). "And vestiges of this custom remain among us to this day in the Moot or Mute, or Parling Hills, still known in various parts of this and the neighbouring islands;" (cites Spelm. Gloss v. Mallobergium, and Whit. Manch. b. 1, c. 8).

(r) 3 Henry's Hist. of Great Britain, p. 373. For the names of the places where the Wittena-gemots met, see Hody's Hist. of Convocations referred to, ib.

(s) Edda. Fab. viii. North. Antiq. vol. 2, p. 53 n. (A.); 1 Tyrr. Hist. Engl. 160; Transl. Mall. vol. 2, p. 56. And see 2 Watk. on Cop. pp. 9-16; Kennet's Paroc. Antiq. Glos. v. Franciplegium.

(t) Vide Turner's Hist. of Anglo-Sax., pp. 192, 261. There is a remarkable

affinity to the Anglo-Saxon shire-govesment in the constitution of the Norman Isles. See the excellent article in the Edinburgh Review of February, 1822, already referred to. Vide also Hallam, p. 589, (citing Gardon on Court Baron).

(u) The earldorman (or alderman), or as he was called in the Danish times, the earl of a shire or county, was a person of the highest dignity and greatest power among the Anglo-Saxons, and this magisterial office was generally enjoyed by the thanes of the largest estates and most ancient families. Henry's Hist. of Great Britain, vol. 3, p. 342.

(x) The shiregerieve was an officer appointed in every shire inferior in dignity to the alderman, and who acted as his assessor and chief minister when present, and supplied his place when absent. Henry's Hist. of Great Britain, vol. 3, p. 344.

(y) It seems to have been the royal prerogative both before and after the establishment of monarchy to appoint the aldermen, shiregerieves, domesmen, and other civil and military officers, but this power was at length vested in the wittena-gemot. Henry's History of Great Britain, vol. 3, p.361; or in the shiregemot, see ib., p. 343. It has been doubted whether in the earlier Saxon times the alderman was appointed by the king. See Norton's Historical Account of London, pp. 327, 328.

The court, after a discourse from the bishop on their relative duties as Christians, and from the alderman or one of his assessors on the laws of the land and the duties of good subjects and citizens, proceeded to try, first, the causes of the church, next the pleas of the crown, and lastly the controversies of private parties (2). The decision on evidence of facts appears to have been by the votes of the whole assembly collected by the law-men, who, when any question of law arose, answered it by the dome-boc or law-book (a).

The shire-gemot often continued for several days without finishing the whole of its business; so that another court called a county court was directed to be held by the shiregerieve, from four weeks to four weeks, to determine the causes left undecided at the shire-gemot (b).

It was originally the province of this subordinate or county court to hold also an inquest or view of frank-pledge (c), to see that every person above twelve years of age was in some tything or decennary, and had taken the oath of allegiance, and found security to the king for his good demeanor.

Dr. Sullivan in his Lectures on the Laws of England (d) observes, that "since the time of King Edgar, at least, this court has been divided into two; the criminal matters, both ecclesiastical and civil, and also the view of frank-pledge, were dispatched in one court called the tourn, that is, the circuit, from the bishop and sheriff's going circuit through the country; and the civil business was dispatched in another, called the county court. The law was, that the sheriff and bishop should twice in the year (e) go their circuit or tourn, namely, in the month following Easter, and the month following Michaelmas, and

(z) 3 Henry's History of Great Britain, p. 348.

(a) It appears that independent of the wittena-gemot and shire-gemot courts, a special general placitum or plea of land was frequently held in different parts of England, as might best suit the parties in the cause. Turner in his History of the Anglo-Saxons (pp. 193, &c. 264), has selected several cases of the kind from ancient documents; one in which a general placitum was held first at London, and in a few days after at Northampton, and subsequently, on the death of one of the parties, at Walmesford, in eight hundreds; and another in which a "great placitum of the citizens and hundreds was held at Cambridge.

A great gemot or general placitum was sometimes convened from eight hundreds,

VOL. II.

and sometimes from three; 3 Gale, 469, 473, cited Turn. Hist. of the AngloSaxons, 262; who also notices that by the laws of Canute it was ordered that there should be two shiregemots and three burgh-gemots every year, and that the bishop and earldorman should attend then, for which is cited Wilk. p. 136.

(b) These subordinate county courts appear sometimes to have been called folckmotes; and the shiregerieve, the lawmen and the parties and their witnesses in the causes to be tried were alone obliged to attend them. See further as to folckmotes, post, p. 675.

(c) See further as to this subject, post, p. 682 et seq.; Hallam, 407.

(d) P. 269.

(e) See Powell on Courts Leet, p. 13.

I

« ПретходнаНастави »