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cerning the training of servants and apprentices, the above instructions to Endicott, which are repeated over and over again, will appear to be only the natural outgrowth of the family regulations of the mother country.

In the library of the Massachusetts Historical Society at Boston is preserved a curious little volume in old English black-letter, on The Dvties of Constables, Borsholders, Tythingmen, and such other lowe and Lay Ministers of the Peace, by William Lambard, of Lincolnes Inne, Gent, London, 1614." Published before either Pilgrims or Puritans came over and possibly brought to this country by one of the first settlers (for another of the writings of this same William Lambard was owned by Adam Winthrop and was brought over by his son, Governor John Winthrop, together with the Charter of Massachusetts), the above treatise must be an important and trustworthy source of information as to the exact nature of these offices in Old England at the period of their transmission to the New World. It appears that there were many variations of the name of Tithingman in the mother country, just as in the Town Records of Groton, carefully edited according to the original spelling, by Dr. Samuel A. Green, we find a great variety of terms, from Tidingman and Tighing man to Tiethengman and Tiethenman.' In Saxon Law we find Tineman, Tynmanna, Teothungman, Teothungmannus. In mediæval Latin occur Decanus, Decimus, Decimalis Homo. We also find HeadBorough, Head-Boroughman, Borough Elder, Borsholder (Borhs-Ealdor) or the Elder of the Pledge, Chief of the Pledge, Capitalis, Princeps Plegii, and the like. These names we have gathered from many different sources, but they are all intelligible in the light of the following extract from Lambard's Constable: "Now whereas every of these tithings or boroughs did use to make choice of one man amongst themselves, to speak, and to do, in the name of

1 Green. The early Records of Groton, Massachusetts, 101, 108, 112, 116, 125.

them all; he was therefore in some places called the Tythingman, in other places the Borough's elder (whom we now call Bors-holder), in other places the Boro-head or Headborough, and in some other places the Chief-pledge; which last name doth plainly expound the other three that are next before it for Head or Elder of the Boroughs, and Chief of the Pledges, be all one.”

This extract from Lambard we have taken from Toulmin Smith's work on the Parish (230), showing that Lambard is recognized as good authority by one of the best modern writers upon the subject of English local institutions. Blackstone based his account of " Constables" and "Justices of the Peace" upon Lambard, and scarcely ever went back of the latter's authority. But Lambard while trustworthy in matters belonging to his own time, is to be read with great caution and in the light of modern research as regards all questions of Saxon antiquities. The following extracts from Lambard we have made from the edition of the Duties of Constables, now preserved in the library of the Massachusetts Historical Society. He says, "In some of the Westerne parts of England where there be many Tythingmen in one parish, there only one of them is a Constable for the King, and the rest do serue but as the ancient Tithingmen did." Lambard also says, "In some shires, where cuerie Third borow hath a Constable, there the officers of the other two be called Third borowes," The latter office is the same as that of Tithingman. Although not everywhere taking the name of Petty Constable, which was a term introduced by the Normans, the Saxon Tithingman acquired under the Norman régime certain constabulary functions, and these we have partly noticed in our account of the New England Tithingman. Lambard says the Tithingman really combined two offices "the one being his ancient and first office, and the other his later made office." Upon the basis of original records and of an unpublished manuscript account of constabulary duties, which was brought over to

this country by one of the early settlers of Dorchester, we shall treat of the office of Constables" in a special monograph, to be published by the New England Historic-Genealogical Society.' We are here concerned with the ancient Tithingman, who was the father of the Norman petty constable and the grandfather of New England selectmen.

According to Lambard, the ancient office of Tithingman was headship of the Frank-pledge. This is not the whole truth, for the institutions of Tithing and Tithingmen are older than that of Frank-pledge. Canon Stubbs and George Waitz, the most recent authorities upon English and German constitutional history respectively, maintain that, before the Norman conquest, there is no positive proof of the existence of collective responsibility for crime committed within a Tithing. On the other hand, Palgrave' and the older authorities are inclined to discover germs of the system of Frank-pledge even in Anglo Saxon times. By a law of Canute, every freeman who desired to enjoy the privilege of exculpation by the oath of his friends or the protection of Wer-geld (money payment for injury) was to be enrolled in a Hundred and in a Tithing; he was to be brought under pledge or Borh," and this was to hold him to right. The term Frank-pledge is a vulgar corruption of the Saxon Frith-borh or peace-pledge. Whether or no the outgrowth of Saxon beginnings, this institution in Norman times was certainly the collective personal pledge of ten or more men to their lord. The idea of associate re

6

Historical and Genealogical Register, April and July, 1882.
Stubbs' Constitutional History of England, i., 87.

3 Waitz, Deutsche Verfassungsgeschichte, i., 458 (ed. 1865.) Waitz takes strong ground: Es gab keine Gesammtbürgerschaft unter den Angelsachsen, weder für das Wergeld noch in irgend welchem andern Sinn, weder vor noch nach Aelfreds Zeiten."

4 Palgrave, English Commonwealth, part ii., cxxiii. "The system was developed between the accession of Canute and the demise of the Conqueror; and it is not improbable that the Normans completed what the Danes had begun."

sponsibility is here of more importance than the mere number, for as many as eighty men were sometimes admitted into one Tithing. Ten was the least number allowed in Frank-pledge.' Probably the Normans infused greater energy into the Saxon Tithing and gave to the idea of Frith-Borh a more strictly collective sense, as a better surety for the preservation of the peace. The old Saxon Tithingman certainly became the Borhs-Ealdor (the Borsholder of Lambard) which signifies the same as the Elder or Chief of the Pledge.

The custom of Frank-pledge and the relation of Tithingman to the same are well described in the laws of Henry I. and also in those of Edward the Confessor, both of which collections, however, belong to a period later than the time of the kings whose names they bear. In the laws of Henry there is an ordinance relating to the Hundred, giving special authority, if necessary, to all freemen, whether retainers or men having their own hearthstone (heorthfest), to convene twice a year in their own Hundred, for the purpose of ascertaining whether the Tithings are full, whether any have withdrawn, if so, how and why, and whether any have been added. It was enjoined, moreover, that a Tithingman (decimus) preside over every nine men, and one of the better sort over every Hundred, who should be called an Alderman (aldremannus) and take diligent care to promote the execution of law, whether human or divine." 'Palgrave, ii., cxxv.

Dr. Reinhold Schmid, in his edition of the Gesetze der Angelsachsen (ed. of 1858, p. 649) calls attention to the fact that we have no evidence of the Normans possessing any such institution as Frank-pledge in Normandy and says: "So weit unsere Kunde von dem Verhaeltniss bis jetzt reicht, bleibt daher der angelsaechsische Ursprung der Zehntbuergerschaft das Wahrscheinlichere." To this conclusion we had already come before discovering Schmid's note upon "Rechtsbuergschaft," but we gladly rest our results upon his solid authority. 3 "Vocabantur eldereman, non propter senectuten sapientiam." Law of Ed. Con. (Thorpe i., 456.)

sed propter

Ancient Laws and Institutes of England, i., 515; also in Stubbs' Select Charters, 106.

The law of Frank-pledge, or Frith-Borg, ascribed to Edward the Confessor, was not framed until the twelfth century. We adopt Kemble's translation: "Another peace, the greatest of all, there is whereby all are maintained in firmer state, to wit in the establishment of a guarantee, which the English call Frithborgas, with the exception of the men of York, who call it Tenmannetale, that is, the number of ten men. And it consists in this, that in all the vills throughout the kingdom, all men are bound to be in a guarantee by tens, so that if any one of the ten men offend the other nine may hold him to right." The custom of viewing Frank-pledge in the court leet or popular court of the man or, for the purpose of seeing that the tenantry are properly enrolled in Tithings, is said to prevail in Yorkshire to this day.2

The origin of Tithings, and of their multiple the Hundred, is one of the most obscure questions in the early history of English institutions. Blackstone and the earlier writers dispose of the question very summarily by ascribing the above types of local organization to Alfred: “to him,” says Blackstone, "we owe that masterpiece of judicial polity, the subdivision of England into tithings and hundreds, if not into counties." The monkish testimony of Ingulph, upon which this widely accepted statement rests, is utterly worthless upon this point. It was customary in the Middle Ages to ascribe every good institution either to Alfred or to Edward the Confessor. If pious monks and popular opinion are to be followed in institutional history, then we must ascribe to King Alfred the origin of trial by jury. As an able critic, presumably Palgrave, said years ago in the Edinburgh Review, if Alfred was really the

1 Ancient Laws and Institutes, i., 450. Kemble, Saxons in England, i., 249-50.

2 Stubbs' Constitutional History of England, i., 88, note 4.

3 Edinburgh Review (Feb. 1822), p. 289; cf. Hallam, Middle Ages, note vi. to ch. viii., part II.

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