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should hold their court in every hundred of the county ; but the view of frank-pledge was to be taken only once a-year, namely, the tourn after Easter. But for the more ready dispatching civil causes, the county court was held once a month, that is, in twenty-eight days, reckoning a month by four weeks, and not by the calendar.”
There would appear to have been several courts of judicature established on the subdivision of shires or counties, possessing a similar jurisdiction to the shire-gemot, but which were nevertheless subordinate to it, each court in its order of superiority having an appellant jurisdiction.
The one which was next in importance to the shire-gemot, the author apprehends, was the trithing court, in which the trithing man or lathgerieve, who was the next magistrate below the alderman, and above the hundredary, presided; and this court was composed of the members of about three or four hundreds within that division of the county which was called a trithing, lath or rape (f).
This court is stated by our chroniclers to have been discontinued at an earlier period than those the author is about to mention, and to have left but few vestiges behind it (g).
The next court in order of superiority was the hundred court, and this had jurisdiction over ten tithings, or that division of a county which was termed a hundred; and the presiding magistrate at this court was called the hundredary, who was generally a thane residing within the hundred, and elected to the office (considered to be both honourable and lucrative) by the other members (h).
This court usually met once every month, and all the members, in imitation of their German ancestors, appeared in their arms (i), it being a custom, at the opening of every meeting, for each of the members to touch the hundredary's spear with his own, in token of their submission to his authority, and of their readiness to fight under his command (k).
The archdeacon, and sometimes the bishop, presided in this court with the hundredary, and it should seem that the court had no power to condemn any person to death or slavery (l).
(f) Ante, p. 670, u. (i).
(i) And this obtained for it the name of the Wapentac.
(k) 3 Henry's Hist of G. B. p. 340, cites Wilk. Leg. Sax. 203.
(1) 3 Henry's Hist. of G. B. p. 340, who also states that the proceedings of this court were summary, and that all
questions were determined by the votes of the members collected by the hundredary, who could only pronounce the sentences.
The Anglo-Saxon hundred court seems to have survived the trithing court, and to have been discontinued in the reign of Edward the Third; but there are hundred courts existing at this day, possessing both civil and criminal jurisdiction, under the title of courts baron and courts leet, and
The chief court in cities and towns appears to have resembled the hundred court (m), and to have been called the burgemote, or folcgemot, [or folckmote,] and was composed of all the burgesses (n), the presiding magistrate being called the alderman or towngerieve, and in sea-ports, the portgerieve (o). This court was held monthly, and on particular emergencies the chief magistrate had authority to convene special meetings by the sound of the mot-bell (p).
We have already seen that each hundred division was again divided into ten tithings, each tithing consisting of abont ten families. One of the most respectable members of each tithing was elected the chief magistrate, and was sometimes called the alderman or freeburgh, but more commonly borsholder or tithingman (9).
which probably were granted to barons Looe case, has urged with great ability, and others of great rank on the decline of that “ burgess” and “ inhabitant the Saxon jurisprudence. And hence, the synonymous terms. But see per Bayauthor apprehends, the baran's mote or ley, J., 3 Barn. & Cress. 686, 687, in moot court, as distinguishable from the Rex v. Mayor, &c. of West Looe; vide court baron incident to every manor, and also post, p. 686, n. (g). which latter court, as we have seen, is not (o) In sea-ports and haven-towns, the a court of record. Ante, pp. 600, 601. court resembling the hundred court was
There are, however, hundred courts, called the portmote or portmout court, without the appendage of a leet franchise, curia portus. 4 Inst. 148. See the inand then they are merely courts baron; troduction to the report of the West Looe the freeholders being the only suitors, and case above referred to, in which Mr. being also judges of the court.
Serjt. Merewether observes, (p. 39, n. b,) (m) The ward inquest in the city of « Port did not in the Saxon times mean, London seems to correspond with the leet according to its modern acceptation, only of the hundred.
a sea-port, or a haven, but also, geneLord Coke observes that the wardmote rally, any town.” in the city of London is derived from ward (p) Wilk. Leg. Sax. p. 204, “ Folcand mote, that is, the ward court, and gemots were ordered not to be held on a adds, “ In London the parishes are as Sunday; and if any one disturbed them by towns, and the wards are as hundreds ; a drawn weapon, he had to pay a wite of 4 Inst. 249; and see Norton's Historical one hundred and twenty shillings to the ealAccount of London, p. 77.
dorman." Turner's Hist. of the AngloNo notice is taken in Domesday-book Sax. p. 264, cites Wilk. 42. Vide post, p. of the county court, or the hundred court, 682, as to the leets of borough and great nor does it contain positive evidence of a towns. popular magistracy in ancient burghs; but (9) From the Saxon word borh, a surety, this may be accounted for by the circum- and alder, a head or chief; Spelm. Gloss. stance of the leet jury being a common law right belonging to all burghs, and to Lord Coke says “ of burghs some be towns and manors held in ancient de incorporate and some not; and some be mesne, constituting independent commu- walled and some not. It was in former nities. See the article in the Edinburgh times taken for those companies of ten Review referred to, ante, p. 670, n. (k). families, which were one another's pledge,
(n) Mr. Serjt. Merewether in his very and therefore a pledge is in the Saron learned and interesting report of the West tongue borhoe, whereof some take it that
An assemblage of the tithing, with this magistrate at their head, constituted a court of justice; and it was the duty of the borsholder or tithingman to convene the members of his tithing, and to put their sentences into execution; and if not submitted to, the cause was referred, by way of appeal, to the next superior court.
Besides the hearing and determination of controversies arising among the decennaries, it was customary at the tithing courts for each member to produce bis warlike habiliments to be inspected; and at these courts new members were admitted, and testimonials given to those who had occasion to remove into other tithings (r).
The subdivision of each hundred into tithings or decennaries was admirably adapted for the preservation of the peace and good order of society; for it appears that all the members of each decennary or neighbourship, (as it was sometimes called,) and who were of the same rank (s), were pledges or sureties for the good behaviour and probity of each other; so that if any member committed a crime, the tithing or decennary by which he was pledged, were within one and thirty days to bring him forth, to answer for the offence; and on failure of so doing, they were compelled to pay the mulct prescribed by the law for the crime committed, unless indeed they could prove on oath before a magistrate, that none of the members were accomplices in the crime, and also engaged to bring the offender to justice as soon as they could apprehend him. So again if any member sustained an injury or loss, the rest contributed to redress or repair it; and in case of gross misconduct, the offender was expelled the decennary, and became an outlaw and vagabond (t).
In further support of this admirable system of police, (and upon patriarchal principles,) the head of every family was under a heavy
a burgh came; whereof also commeth a court leet for a particular township or headborough or borowhead, capitalis ple- parish, another officer is elected for the gius, or chiefe pledge, viz. the chiefe man same precinct, called a third-borough, who of the borhoe whom Bracton calleth frith- acts as an assistant constable. burgus; and hereof also commeth burg- (r) 3 Henry's Hist. of G. B. p. 334, bote, which as Fleta saith, signifieth quie- 335. tuntiam reparationis murorum civitatis aut (s) Thanes were not members of any burgi."
tithing, the family of each thane being Every city is a burgh, but every burgh considered as a separate tithing, and he is not a city ;" Co. Litt. 109 a.
himself responsible for all the members. The office of constable, at the present (t) 3 Henry's Hist. of G. B. p. 337. day, seems to correspond with that of The members of a decennary were someborsholder in the Saxon æra; for the terms times called deciners or desiners. The tythingman and borsholder are frequently term dizein we also find used by some of used in modern statutes as synonymous
our ancient law authors. See Mirr. c. 1, with constable and head-borough. Some- s. 17. Hence, probably, by a misprint or tiines where two constables are chosen at corruption, the term doziners and dozein.
responsibility, and had great authority over all the members of his family; and became also responsible for the good conduct of every stranger staying with him for three days and nights.
During the Anglo-Saxon æra, the sovereignty and the police of the country were still further maintained by an obligation imposed on every person above the age of twelve years, (with, perhaps, all or some of the exceptions the author will presently mention, in tracing the similarity of the leet jurisdiction and the Anglo-Saxon tourn,) to swear allegiance to the king, and submission to the laws, before his countrymen in the hundred court or folc-gemot (u), on pain of an imprisonment, after which he became law-worthy, or a legalis homo; and this, as we have already seen, was inquired of in the division of the subordinate shire-gemot or county court, termed the inquest or view of frank-pledge (x).
It may be difficult to determine at what particular period the court leet was established as an appendant juridical franchise, and whether before or after the discontinuance of the Anglo-Saxon trithing and hundred courts.
And although the appendancy of the court leet to a hundred or manor, may be thought to furnish evidence of its being of feudal origin, yet if it be true that the word leet is of Saxon derivation (y), the affirmance of the existence of the court, as an appendant franchise, even before the conquest (2), is greatly strengthened; and it may be proper to notice, that the tenure of land in England in the AngloSaxon æra, is very far from supplying an argument unfavourable to the supposed appendancy of the franchise to a hundred or manor at that period, as it appears that the Saxon tenure bore a strong affinity to the free socage tenure existing in England at the present day; for the Saxon lands in general were allodial, but subject to military ser
(u) 2 Inst. 70.
and to mean the populi curia or folkmote. (.r) Sulliv. 269; ante, p. 673.
See Ritson on Court Leet, in the intro(y) Lord Coke informs us that lep, duction. It rather appears to the author, leth or leet is a Saxon word, and cometh however, to be derived of the Saxon word of the verb gelapian or zele pian (led, to assign (or grant), being a juridical being added euphonie gratiá); i.convenire, franchise held by a subject under a grant to assemble together, unde conventus ; 4 from the crown. Inst. 261. It is also said to be derived (2) See Ritson on Courts Leet, 4; per from the Saxon word læt, signifying cen- Lord Mansfield, 3 Burr. 1860; ante, p. sura, arbitrium, “ because this court re- 669. And we are told that the earls of dressed wrongs by way of judgment against each county, and the lords of each leet, and any person of the frank-pledge, who had likewise representatives of towns, chosen done any wrong or injury to another.” by the burgesses of the town, were sumLex Man. 131. And again it is supposed moned to the Wittena-gemot. See Lamb. to be derived from the Saxon leod, plebs, Arch. 239, cited 2 Bac. Abr. p. 94.
vices; and were not only descendible (a), but alienable at the pleasure of the owner, and devisable.
In taking leave of the judicial polity of our Anglo-Saxon ancestors, and previously to entering on an inquiry into the constitution and authority of the court leet, as it appears to have existed from the period of the Norman conquest, it should be mentioned that the Wittena-gemot court, and those the author has noticed of a subordinate jurisdiction, would seem to have been continued for a considerable time after the conquest; but William the Conqueror becoming jealous of the legislative functions of this assembly, established a constant court in his own hall (6), thence called aula regia, or aula regis (c). This court was composed of the officers of the king's palace, of which the justiciar (capitalis justiciarius totius Anglia) was the president; and who was also the principal minister of state.
The aula regis removed with the king from one part of the kingdom to another; and all matters both civil and criminal, and regarding the revenue, were transacted there (d).
In some cases of very great importance, as upon the levying of war, or raising an escuage, it was customary to summon to the aula
(a) The descent of Saxon lands was to Laws of England, p. 271. And the author all the sons equally, as gavelkind lands in apprehends that the Wittena-gemot was a Kent, which seems to be a customary branch of this court; see Norton's Hist. relic of Saxon law, and, like gavelkind Acc. of London, pp. 343, 344. lands, they were not forfeitable for felony; (d) The latter were heard in the TreaSulliv. 278.
sury, called the Exchequer from the che(6) Aula, hulla, or haula, a hall or chief quered cloth wherewith that table was mansion house, was the usual appendage covered; but all criminal matters were of a manor; Domesd. tom. i. 21 b; ib. heard only in the hall; the civil pleas 285 b; ib. 286 b; ib. 12, 293, 307 b, 308; were heard in either court. This was the ib. 368 b; ib. 63; ib. 309; ib. 29 b; ib. sovereign court of the kingdom (Mad. 32 b. So caput manerii, 1 vol. 11, 26, c. 8), where justice was administered by
2 vol. 227, 293 b; see App. to 2nd the king himself and his officers, consistGen. Rep. of the Comm. of Pub. Rec. p. ing of the justiciar, the chancellor, (who 441. So the term hall is sometimes ap- formed all patents, and had the custody of plied to a court baron; and hence also the the seal both for writs and patents,) the town-hali, shire-hall, &c.; 2 Watk. on treasurer or auditor, (who presided in Cop. 18. Hence too the Hallmote courts matters relating to the revenue,) the conin the city of London; 4 Inst. 249. stable and marshal, (who determined all
In Yardley Hastings in Northampton- matters of war and peace, according to shire, and many other places, the manor the law of nations and of arms,) the senescourt is opened in an ancient hall, and chal or steward and marshal, (who deterthen, from its dilapidated state, adjourned mined all quarrels between the king's to some inn, or other convenient place menial servants, and had the charge of within the manor.
the prisoners, and the controul of the (c) According to Sullivan, this court king's household,) and the chamberlain, existed even in the Saxon times, under (who had the charge of the king's money the term curia regis; see his Lect. on the issued out of the treasury).